Trial Has Become So Unfair in Washington

I find myself in the middle of trial again, this time in Whatcom County (Bellingham).  Washington law provides that a defendant must be sued in the county in which the accident occurred or where the defendant resides.  Here, my British Columbia resident clients were injured in a car crash in Whatcom County in 2012.  They were rear-ended in their 2,500 lb Honda Civic by a 5,500 lb Chevy Avalanche at 50 mph!  They had no choice but to sue the defendant driver there.

He’s insured by USAA for $500,000 per person/$1,000,000 per accident.  Unfortunately, Washington law does not allow us to tell the jury about the existence of insurance.  One prospective juror said she was unable to consider an award of damages to my clients without considering the financial worth of the defendant.  We were able to challenge her for cause.  But we couldn’t tell the other prospects that the judgment wouldn’t be coming out of the defendant’s pocket.  He has insurance.

Additionally, another prospective juror wondered out loud whether my clients’ treatment was all covered by the “Canadian” medical system.  It’s actually provincial and not federal, but it sure doesn’t cover everything.  As far as I can tell, it’s a lot more similar to the system in the US than it is different.  People pay premiums, not everything is covered, when a person’s own insurance covers treatment and that expense is recouped from a defendant, the original insurer expects to be repaid according to a formula–that’s known as subrogation.  Certain kinds of treatment require a substantial co-pay.  One of my clients had to choose between paying for physiotherapy and paying for psychological counseling.

Counsel for the defendant driver stood before the jury in opening statements and had the gall to suggest that the defendant accepts responsibility for the collision.  Really?  Seven years later, he finally admits liability but his insurer has never offered to pay for a single treatment nor to cover a single dollar of wage loss.  How is that accepting liability?

I always make the promise that I won’t insult jurors’ intelligence.  Unfortunately, it’s impossible for me to keep that promise given that I can’t share with them these basic factors of who pays what and why.

Trial continues Monday morning…

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