Figueroa v. Mariscal
| Decision Date | 03 April 2018 |
| Docket Number | No. 34671-4-III,34671-4-III |
| Parties | Monica Diaz BARRIGA FIGUEROA as parent and natural guardian of Brayan Martinez, a minor, Appellant, v. Consuelo PRIETO MARISCAL, individually and the marital property thereof, if any, Respondent. |
| Court | Washington Court of Appeals |
Ned Stratton, Anderson Law, 5861 W. Clearwater Ave., Kennewick, WA, 99336-1849, for Appellant.
Steven M. Cronin, Attorney at Law, 115 N. Washington St., Ste. 3, Spokane, WA, 99201-0657, for Respondent.
PUBLISHED OPINION
¶1 Monica Diaz, as parent and guardian for her son Brayan Martinez, appeals from a defense verdict finding Consuelo Prieto not negligent for driving over and fracturing Brayan's lower right leg. Ms. Diaz primarily argues that the trial court erred in admitting the personal injury protection (PIP) application to her insurer. She argues that the PIP application was hearsay and confidential work product.
¶2 We hold that the PIP application was not hearsay because it was an admission by a party opponent under ER 801(d)(2)(iv). However, we hold that the trial court erred when it failed to extend work product protection to the PIP application and that this error was prejudicial. We therefore reverse the jury's verdict and grant Ms. Diaz a new trial.
¶3 On October 30, 2013, Ms. Prieto was driving her minivan southbound on North Cedar Avenue in Pasco, Washington. Her teenage daughter, Melissa Guzman, was riding in the front passenger seat. There were vehicles, including an orange pickup, parked on the right side of the road. As Ms. Prieto passed the orange pickup, she heard a noise on the passenger side of her van and felt her van jump a little. She stopped, got out, and saw eight-year-old Brayan Martinez lying near the pickup and next to his bicycle. It was evident that Brayan's lower right leg had been run over by one of the minivan's tires. Melissa called 911. Brayan was taken to the hospital and treated for his injuries.
¶4 A police officer arrived at the scene to investigate and prepare a report. The officer spoke to a few people, including Ms. Prieto and her daughter. No one the officer spoke to actually saw what happened. Nevertheless, the officer's report indicated that Brayan had ridden his bike from between two parked cars and into the road.
¶5 Ms. Diaz, a monolingual Spanish speaker, contacted a law firm and sought its assistance in making a claim under her insurance policy to pay for medical expenses. On November
21, 2013, Ms. Diaz met with an employee of the law firm who spoke Spanish. Following this meeting, a legal assistant asked Ms. Diaz to sign a blank form that the assistant later completed. The form was an application for PIP benefits. Although PIP benefits are available regardless of fault, the form had a line that required the applicant to provide a brief description of the accident. The legal assistant used a copy of the police report to complete the form. The legal assistant wrote:
Vehicle was traveling on North Cedar when child on a bike rode into road. There were 2 parked cars on the road creating a blinde [sic] spot for the driver. Child was struck and had right leg ran over.
¶6 Ms. Diaz, on behalf of her son, brought suit against Ms. Prieto. Ms. Diaz hired an accident reconstruction expert to assist in establishing liability. The expert, Patrick Stadler, met with Brayan at the accident scene to determine how the accident happened.
¶7 Brayan explained that prior to the accident, he rode his bicycle from the sidewalk into the roadway in front of the orange pickup to make U-turn type maneuvers. Defense counsel later deposed Brayan. Brayan's statements during the deposition varied enough that Mr. Stadler determined he should meet with Brayan again. Brayan's second explanation to Mr. Stadler was that his shoelace became tangled in his bike chain and that the bike came to rest near the front of the orange pickup. He was stopped and leaning over his bike with his right leg extended out in the road when the minivan ran over his leg. Brayan did not mention the shoelace becoming stuck during his initial interview with Mr. Stadler.
¶8 The case proceeded to trial. During opening statements, Ms. Prieto referred to the PIP application. After opening, Ms. Diaz orally requested that the PIP application be excluded:
¶9 In response, defense counsel argued:
¶10 The trial court then heard voir dire testimony from Ms. Diaz. Ms. Diaz explained that her attorney's legal assistant directed her to sign the blank PIP application. The trial court determined that the form was prepared by plaintiff's agent, constituted an admission against interest, and therefore denied Ms. Diaz's request to exclude it. The trial court stated that the document was not privileged but provided no analysis in making its conclusion.
¶11 During trial, Mr. Stadler opined that Brayan could not have been struck while riding his bike. His opinion was based on the fact that the frame of the bike was not damaged and that Brayan's injuries did not include any impact or sliding on the pavement. It was his opinion that Brayan had been stationary and adjacent to the orange pickup when Ms. Prieto's minivan ran over his extended right leg.
¶12 Ms. Diaz asked one of her medical experts how Brayan had described the accident. On cross-examination, Ms. Prieto asked the expert about statements in the medical records that indicated Brayan had ridden his bike out into the road. Ms. Diaz objected on the basis of speculation and hearsay. The trial court noted that the expert had reviewed and relied on the medical record, and overruled the objection on the basis that Ms. Diaz had opened the door during her questions to her expert.
¶13 Defendant's accident reconstruction expert, Eric Hunter, testified that it would have taken Ms. Prieto 1.6 seconds or less to stop once she saw an object in the roadway. He also testified that accident reconstruction experts rely on police reports when forming opinions and that he relied on the police report for this accident. Ms. Prieto began reading the police report into evidence, and Ms. Diaz objected. The trial court overruled the objection but qualified its ruling by saying the jury would be instructed that the police report was admitted only for a limited purpose and could not be considered as substantive evidence. Ms. Prieto did not continue reading the police report. Rather, she then focused on the description of the accident contained in the PIP application.
¶14 After both sides presented their evidence and closing arguments, the case was submitted to the jury. The jury returned a verdict finding Ms. Prieto not negligent. Ms. Diaz moved for judgment notwithstanding the verdict, and the trial court denied her motion. Ms. Diaz appeals.
¶15 Ms. Diaz argues that the trial court erred when it admitted the PIP application. She argues that the PIP application was hearsay and was confidential. We review these two claims independently.
¶16 The trial court's factual determination regarding whether a statement falls within a hearsay exception will not be disturbed absent an abuse of discretion. Statev.Strauss, 119 Wash.2d 401, 417, 832 P.2d 78 (1992).
¶17 The unrefuted evidence established that a legal assistant for Ms. Diaz's attorney prepared the PIP application based on the police report, and the police report was not based on eye-witness evidence. Ms. Diaz argues that the PIP application has multiple levels of hearsay, is speculative and, for these reasons, the trial court erred in admitting it. We disagree.
¶18 ER 801(d) defines certain statements that are not hearsay. That rule provides in relevant part: "A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by the party's agent or servant acting within the scope of the authority to make the statement for the party." ER 801(d)(2)(iv).
¶19 Ms. Diaz hired an attorney to assist her in making a PIP claim. A legal assistant for the attorney completed the PIP application. During oral argument, Ms. Diaz conceded that a legal assistant could speak for a law firm by virtue of being part of that firm.2 This is dispositive. We conclude that the legal assistant was a speaking agent for Ms. Diaz and that the statement contained in the PIP application was made within the legal assistant's scope of authority.
¶20 Ms. Diaz implies that because the legal assistant's statement was derived from the police report instead of from Ms. Diaz, the statement was not admissible. She offers no authority for this.3 ER 801(d)(2)(iv) does not explicitly require that the agent or servant have firsthand knowledge or direct knowledge from the party. Nor does the rule explicitly require the agent's statement to be nonspeculative. The vast majority of jurisdictions and the Federal Rules of Evidence do not require firsthand knowledge as a...
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Barriga Figueroa v. Prieto Mariscal
...holding the PIP application was work product and its admission was prejudicial, requiring a new trial. Barriga Figueroa v. Prieto Mariscal, 3 Wash. App. 2d 139, 414 P.3d 590 (2018). We granted Prieto’s petition for review and denied the issues raised by Diaz. Barriga Figueroa v. Prieto Mari......