Hawkins v. Diel

Decision Date26 January 2012
Docket NumberNo. 39993–8–II.,39993–8–II.
Citation269 P.3d 1049,166 Wash.App. 1
CourtWashington Court of Appeals
PartiesDon HAWKINS and Geri Hawkins, Appellants/Cross–Respondents, v. Ma Herlouise Caro DIEL, Hermogenes Diel and Jane Doe Diel, husband and wife and their marital community composed thereof, Defendants,Dobler Management Company, Inc., dba University Commons apartment complex, Respondents, Cross–Appellants.


Elizabeth Ann Jensen, Attorney at Law, Fircrest, WA, for Defendants.

Darrell L. Cochran, Pfau Cochran Vertetis Amala PLLC, Tacoma, WA, Jason Paul Amala, Pfau Cochran Vertetis Amala PLLC, Seattle, WA, for Appellants/Cross–Respondents.

Everett Allen Holum, Everett Holum PS, Tacoma, WA, for Respondents/Cross–Appellants.JOHANSON, J.

[166 Wash.App. 4] ¶ 1 Don and Geri Hawkins were tenants in an apartment that was damaged when a car drove through a wall. The apartment's management, Dobler Management Company, Inc. (DMC), delayed in making the necessary repairs. The Hawkinses sued DMC in district court and obtained relief in the form of special damages and attorney fees. The Hawkinses nonetheless appealed to superior court on the ground that the district court improperly dismissed their negligence claim for general damages. DMC cross appealed, arguing that the district court erred in excluding certain liability insurance evidence and in awarding the Hawkinses attorney fees. The superior court reversed the district court and remanded for a new trial. We reverse the superior court, holding that the district court properly excluded the evidence of liability insurance, properly dismissed the Hawkinses' claim for general damages, and properly awarded attorney fees to the Hawkinses.


¶ 2 In April 2006, Ma Herlouise Caro Diel crashed her family's car into the apartment that the Hawkinses rented from DMC. The car created an eight foot, floor-to-ceiling hole in the Hawkins's bedroom wall. That night, DMC offered to host the Hawkinses in a hotel room, but the Hawkinses declined because they did not feel that their belongings would be secure. The next day, DMC secured the apartment wall by screwing pieces of plywood over most of the opening, although several inches at the bottom remained exposed. The Hawkinses informed DMC about the void and offered to fix the hole, but DMC told them not to fix the hole because DMC would make the repairs. The Hawkinses relied on these representations.

¶ 3 The plywood covering remained the only repair to the Hawkinses' apartment until July 2006. The Hawkinses remained in the apartment and continued to pay rent because they could not afford to move into another unit. On June 10, 2006, the Hawkinses sent an e-mail to DMC asking it to fix the wall, with no response. On June 15, they hired an attorney who sent a formal letter to DMC, asking it to fix the hole. After a second letter, DMC responded by denying responsibility for the repairs. But in July 2006, DMC began and finished the repairs, which took approximately one week.

¶ 4 In December 2006, the Hawkinses filed suit in district court against DMC and the Diels, alleging (1) negligent infliction of emotional distress; (2) negligent violation of landlord duties under common law; (3) violation of the Washington Residential Landlord–Tenant Act of 1973 (Landlord–Tenant Act), chapter 59.18 RCW; and (4) breach of contract. The Diels admitted liability and reserved the issue of damages for trial.1

¶ 5 In June 2008, the district court held a jury trial on the Hawkinses' claims. The Hawkinses brought a motion in limine to exclude all evidence of insurance. DMC opposed the motion, arguing that the district court should allow it to present evidence of insurance to establish that the Diels' insurance adjuster delayed the repairs. DMC maintained that the Diels' liability insurance evidence was relevant as to whether the Diels, by virtue of their insurance carrier, caused all or a portion of the delay. The district court excluded all mention of insurance but allowed DMC to present other evidence of delay, such as difficulty in obtaining bids.

¶ 6 At the close of the Hawkinses' case, DMC moved to dismiss the Hawkinses' negligence claims under common law and residential landlord tenant law, arguing that the Hawkinses failed to prove general damages and failed to mitigate. Over the Hawkinses' opposition, the district court granted DMC's motion and later denied the Hawkinses' motion for reconsideration.

¶ 7 The jury found that DMC breached its contract with the Hawkinses and caused damages to the Hawkinses in reduced rental value. The district court awarded the Hawkinses damage against DMC in the amount of $2,356. The jury also awarded the Hawkinses $4,789.20 against the Diels for economic damages, reduced rental value, and property damages. Determining that the Hawkinses had prevailed on the contract issue, the district court ordered DMC to pay the Hawkinses $20,000 in attorney fees, a reasonable amount that represented only the work done to prevail on the contract issue.

¶ 8 The Hawkinses appealed to superior court, arguing that the district court erred when it dismissed their claims for common law negligence and negligent violation of residential landlord tenant laws. DMC cross appealed, arguing that the district court erred when it (1) excluded evidence of conversations between DMC and the Diels' insurance company that caused delays to the repair of the Hawkinses' apartment and (2) awarded attorney fees to the Hawkinses. The superior court reversed the district court and remanded for a new trial.

¶ 9 The Hawkinses appeal the superior court's reversal and ask this court to affirm the district court's decision to (1) exclude references to Diel's insurance company and (2) award attorney fees. DMC cross appeals the superior court's reversal and asks this court to affirm the district court's decision to dismiss the Hawkinses' negligence claims for general damages.


I. The Hawkinses' Appeal
A. Liability Insurance

¶ 10 The Hawkinses first argue that the district court correctly excluded evidence of liability insurance. We agree.

¶ 11 ER 411 generally prohibits the introduction of evidence that a person did or did not possess liability insurance as proof that the person acted negligently or otherwise wrongfully. See, e.g., Goodwin v. Bacon, 127 Wash.2d 50, 55, 896 P.2d 673 (1995) (noting that, in general, evidence regarding availability of insurance is inadmissible on the issue of negligence under ER 411); Todd v. Harr, Inc., 69 Wash.2d 166, 168, 417 P.2d 945 (1966) (holding that whether or not a personal injury defendant carries liability insurance is immaterial); Kappelman v. Lutz, 141 Wash.App. 580, 590, 170 P.3d 1189 (2007) ([T]he fact that a defendant in a personal injury case carries liability insurance is not material to the questions of negligence and damages.”), aff'd, 167 Wash.2d 1, 217 P.3d 286 (2009); Lopez–Stayer v. Pitts, 122 Wash.App. 45, 51 n. 5, 93 P.3d 904 (2004) (“ER 411 restricts evidence of a defendant's insurance coverage or the lack of such coverage as proof of negligence or other wrongdoing.”). A party may introduce evidence of another's liability insurance, however, when such evidence is offered to prove matters other than the party's wrongdoing, including proof of agency, ownership, or control; or bias or prejudice of a witness; or to rebut an element of a claim. Goodwin, 127 Wash.2d at 55, 896 P.2d 673 (citing Kubista v. Romaine, 87 Wash.2d 62, 69, 549 P.2d 491 (1976)); ER 411.

¶ 12 DMC argues that this case is like Kubista, in which our Supreme Court found evidence of liability insurance admissible. In Kubista, the plaintiff, a shipfitter, suffered back injuries and had to find another occupation due to the defendant's negligence. Kubista, 87 Wash.2d at 62–63, 549 P.2d 491. The defendant's insurance adjuster encouraged the plaintiff to go to school to learn a new trade, promising that the insurance company would “take care of him.” Kubista, 87 Wash.2d at 63, 549 P.2d 491. The plaintiff later filed suit against the defendant, alleging general damages that included reduced earning capacity and lost wages. Kubista, 87 Wash.2d at 63, 549 P.2d 491. The defendant moved to exclude testimony concerning the insurance adjuster's statement to the plaintiff, and the plaintiff responded that such evidence was necessary in order to rebut the defendant's anticipated claim of failure to mitigate. Kubista, 87 Wash.2d at 64, 549 P.2d 491. The trial court excluded the insurance testimony as irrelevant, and in closing remarks to the jury, the defendant argued that it was not responsible for the plaintiff's decision to go to school rather than seek employment. Kubista, 87 Wash.2d at 65, 67, 549 P.2d 491. Our Supreme Court reversed the trial court's decision, holding that [t]his evidence on its face is relevant to show defendant was estopped to assert the defense that plaintiff's failure to seek employment violated his duty to mitigate damages.” Kubista, 87 Wash.2d at 67, 549 P.2d 491.

¶ 13 Kubista is distinguishable. In Kubista, the plaintiff sought to introduce evidence of insurance that was directly relevant to estop the defendant from asserting its defense. Kubista, 87 Wash.2d at 67, 549 P.2d 491. Here, DMC attempts to point to the Diels' insurance carrier's delay to avoid its own contractual responsibility. This evidence is simply not relevant to the duty DMC owed to the Hawkinses. The Diels admitted liability; accordingly, DMC has recourse to recover from them in a separate action. Evidence of the Diels' liability insurance had no relevance to any issue in dispute between the Hawkinses and DMC.

¶ 14 Additionally, the district court's ruling to exclude evidence of the liability insurance did not affect DMC's ability to argue that their delay in making the repairs was reasonable. Neither did the district court's ruling preclude DMC from introducing evidence of its efforts to procure...

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