PO Box 40126
Olympia, WA 98504-0126
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
The Torts Division is comprised of 43 attorneys and 88 professional staff in Olympia, Tacoma, Spokane, and Seattle. The division defends tort claims and lawsuits against all state agencies, officers and employees. The majority of cases are based on actions brought under theories of liability for state actions such as highway design, release of inmates, injuries on state property, medical malpractice, employment, child care and custody, auto accidents, maritime injuries, false arrests, and unreasonable force. Tort attorneys also provide legal and risk management advice to the Department of Enterprise Services, Office of Risk Management and state agencies on tort matters.
The Torts Division also includes the Complex Litigation Unit which is comprised of 3 attorneys and 3 professional staff. The unit assists AGO divisions with litigation that requires unique resources because of complexity or sensitivity. The work is hands-on and collaborative, and typically includes class actions, multi-party lawsuits, and multi-claim lawsuits. The unit has assisted in cases covering issues such as Medicaid funding, employment, the environment, elections, foster care, unfunded mandates, pensions, and school funding. These complex and costly cases represent significant exposure for state agencies.
The primary legal service provided by the Torts Division is the resolution of damage claims against state agencies and employees. Many cases are resolved through successful pretrial motions, saving the state significant resources in research, discovery and investigations. The remaining cases are evaluated for settlement after pre-trial discovery. If possible, cases are settled through direct negotiation or mediated negotiation. Cases that cannot be settled, or those which are inappropriate for settlement due to lack of liability, are tried before juries. The Torts Division also handles all appeals resulting from those cases.
The Torts Division attorneys handle an average caseload of about 500 lawsuits per year, and its investigators handle approximately 350 pre-lawsuit claims for damages each year.
The division resolved 61 percent of the cases with no payout in state funds in fiscal year (FY) 2012. During the same period, 44 percent of the remaining suits were resolved for less than $50,000. The Torts Division prevailed at trial in roughly 67 percent of cases tried in FY 2012. Overall payouts have been generally increasing, even as defense costs have been declining.
The division created a Torts Appellate Program in 2001. In FY 2012, the program handled 41 appeals, with a favorable result rate of 89 percent. Over the last five years, the division has an average win/loss ratio on appeals of 80 percent. The appellate team is made up of a supervising attorney, an assistant attorney general, and three paralegals and professional staff. The team handles not only appeals but also consults on significant trial court motions and jury instructions.
The Torts Division has recently enhanced its early resolution program. The goal of the program is to achieve savings by early negotiation of lawsuits and claims arising from incidents for which the state is likely to be held liable. Experienced Torts attorneys not only attempt to limit the amount of tax dollars spent on tort payouts, but also provide advice, training, and other risk management assistance to state agencies and institutions.
Moore v. HCA: This class action lawsuit claims the State has misclassified employees resulting in the denial of health benefits. RCW 49.44.160 and .170. The claims in Moore v. HCA impact all state agencies and non-permanent job classifications. Plaintiffs seek unspecified compensatory damages, declaratory relief, injunctive relief, and attorneys’ fees and costs.
McCleary v. Washington: Plaintiffs brought a challenge, under Article IX of the Washington Constitution, to the adequacy of the State’s funding of basic education. By way of remedy, plaintiffs seek an order directing the Legislature to determine the “actual cost” of providing a basic education to all Washington K-12 public school students. The trial court ruled in favor of the plaintiffs, that the State is failing to make ample provision for education, and that the Legislature should determine the actual cost of providing such education as well as the “State sources” for funding same. On appeal the Washington Supreme Court affirmed in part and reversed in part. The court directed the parties to submit proposed plans for the court’s oversight of efforts to adequately fund basic education.
Stormans v. Bd. of Pharmacy: Defendant Board of Pharmacy adopted rules requiring all pharmacies to timely provide medications to patients, with certain narrow exceptions. Plaintiffs, a pharmacy owner and two pharmacists, challenge the rules as a violation of their constitutionally protected right of religious expression, equal protection and due process. Their challenge focused specifically on any requirement to provide emergency contraceptives, Plan B, to patients. On different theories, the federal district court has twice held the rule to be unlawful. The most recent decision of the court is currently again on appeal to the Ninth Circuit.
Dependency Cases: State law provides that Department of Social & Health Services can obtain a court order allowing temporary foster care for children who are suspected of being victims of abuse or neglect. Department of Social & Health Services, with legal assistance from the Attorney General’s Office, handles thousands of these dependency cases every year. In some cases, the courts ultimately decide to remove children from their parents permanently or for extended periods of time. However, in many cases children are returned to their parents after investigation or professional examination reveals that abuse likely did not occur. In the past, it has always been thought that the state had no liability for obtaining temporary court orders to protect children. Recently, however, the courts have ruled that parents can sue and argue that the state “negligently investigated” the allegations of abuse or neglect which led to the court order for temporary foster care.
Juries have been awarding hundreds of thousands of dollars in these cases. This is a major legal development because there are hundreds of cases every year in which the state might now be sued for placing children in protective foster care.
“Parole” Liability Cases: In 1992, the State Supreme Court held that the Department of Corrections could be liable for crimes committed by released offenders who were under state post-release “supervision.” This has produced a huge increase in payouts. In 1997, there was a large ($6.5 million) verdict against the state in one of these cases, and in 1998 the State Supreme Court reaffirmed its decision allowing this liability and extended the liability to local government “probation” supervision. As a result of these developments, there has been a large increase in lawsuits against the state by victims of crimes by released offenders under state supervision. The state now has several lawsuits and claims pending against it for murder, rape and other serious crimes by released offenders. Many of these suits represent multi-million dollar loss exposures for the state.