This will make you feel warm and fuzzy about your insurance company.  On February 7, 2011, Division One of our Court of Appeals handed down a decision regarding the case of Bushnell v. Medico Insurance Company and handed down a bit of justice.  Better late than never?

In 1987 Leroy Bushnell purchased a nursing care insurance policy for his mother from Medico Insurance Company.  The policy provides benefits for medically required skilled and intermediate nursing care for an unstable health condition.  The policy provided that as a condition for receiving the benefits, the insured must be confined in a qualified nursing facility that is recommended by a physician “within 14 days after required hospital confinement of at least three days in a row” for the “continued treatment of the condition(s) for which you were in the hospital.”  This is amazing language.  So you pay for this insurance for all of these years and they can decline you because you left the hospital a day early?  The trolls over at the insurance company must stayed up all night thinking that one up. 

The policy also provided that the provisions in the policy must conform with the laws of the state in which the insured resides.  In 1988 the Washington Legislature passed a law prohibiting insurance companies from requiring prior hospitalization as a condition of receiving nursing care benefits. 

Bushnell paid the premiums on this policy for 20 years!  His mother Evelyn had a stroke in December 2006 and came to live with him.  In February Evelyn’s doctor recommended full-time skilled nursing care and on February 24^th she was admitted to a care facility.  Bushnell submitted a claim for benefits under the policy for which he had paid premiums for 20 years.  Medico’s response:  DENIED!  

Medico stated that since Evelyn had gone straight to the nursing facility and had not stayed in a hospital for three days as was required in the policy, her claim for benefits was denied.  Bushnell’s lawyer wrote Medico and informed them of our state’s law prohibiting this requirement.  Medico claimed that since the policy was issued before that law went into effect, it did not apply. 

Bushnell sued and pointed out in summary judgment that since the policy was renewed each year, once the state prohibition went into effect, the next renewal date encompassed the new prohibition.  Medico argued that it was the same policy that was issued in 1986 and that subsequent renewals just continued the same policy.  The trial court found that the hospital stay requirement was valid, Bushnell was not entitled to coverage, Medico did NOT act in bad faith, and dismissed Bushnell’s case.  Hmmmm.  It seems like bad faith.  It looks like bad faith.  It sure smells like bad faith.  Are you sure it’s not bad faith? 

Bushnell appealed. 

I will save you all the legal analysis that goes into interpreting an insurance contract.  Medico claimed that the state law didn’t apply because this was not a “long-term” care policy.  WRONG!  Medico again argued that the state law prohibition did not apply to this policy because it was in effect before the law was in effect.  However, previous case law had already established that each time a policy is renewed, a new contract is formed.  Therefore Medico could not have a three day hospital stay requirement in their policy after the law went into effect and could not enforce such a requirement. 

Dismissal reversed!  Ah, sweet justice.  Unfortunately, Evelyn died in August 2008, well before this decision ever came down.

Now if the court doesn’t have personal jurisdiction, then they are somewhat limited as to the orders they can enter.  For instance the court could dissolve the marriage, but it couldn’t order the non-present party to pay spousal maintenance.  The court could award property to either party as long as the property is located in this state, but it couldn’t enter a parenting plan.  So after all that hard work I did in Civil Procedure under the watchful eye of the very astute Professor Reiber, I have found that personal jurisdiction IS NOT always necessary.

So what does personal jurisdiction have to do with Picasso, hamburgers, and Three Girls?  Nothing.  That’s just how I spent the rest of my day.  My wife and son had already been to the Picasso exhibit here in Seattle.  “This is a once in a life time opportunity,” she assured me.  “You have to go.”  So we took a snow day.  I mean the TV stations in the Seattle area really wanted us to have a snow day anyway.  We got the snow during the night.  They already knew that it was going to melt right away.  But we got the media blitz any way.  I mean after all some guy did flip his car at 2:00 a.m. onto the light rail tracks and it was because of the snow.  That’s got to be worth several minutes of air time. 

So we took the afternoon to go to SAM and see Picasso’s “private collection.”  Or stuff he never sold.  Or finished.  I think they cleaned his attic out.  No, I’m kidding.  He was a very gifted artist.  But being crammed into that warm room with a bunch of people who insisted on standing between me and the artwork just because I’m tall, was not that fun to me.  The museum provides you with a device that looks very much like a cell phone.  Some of the pieces of art had numbers next to them and you dial the number into your phone and listen to the story behind that piece.  Without this device, I would have left in the first five minutes.  I can’t handle that many people crammed in close.  But the phone allowed me to listen to some very interesting facts about Picasso and let me escape into the art.  Escape from the long haired dude who bumped into me three times.  Escape from the lady who thought that she needed to stand two inches in front of each piece so only she could see it.  Escape from the pain in my lower back after standing on those hard floors for two hours.  Well, actually I never escaped from that.  It was very interesting, but the most interesting thing to me was the man, not his art.  I came into the gallery filled with photos of Picasso, with his family, with his friends, with his work.  This I found really interesting.  He was quite the womanizer.  A drinker.  A smoker.  Loved the bull fights, naked ladies, and the beach.  Interesting.  In some aspects more interesting than a painting of a distorted face with three eyes and I think a penis (maybe it was a nose).  More interesting to me that is.  To each their own. 

Then onto the art that I love:  FOOD!  We went across the street to Pike Brewing Company.  Nothing fancy, just bar food.  But you can still work magic with “just bar food.”  I had the the Broken Arrow Burger: covered in Pike ale-braised onions and Beecher’s Flagship cheddar.  As soon as I saw Beecher’s, I was sold.  Very good.  Everything at Beecher’s is made in food heaven, which is Pike Place Market!  One odd thing about the menu at Pike Brewing Company:  their desserts were paired with beer.  Sorry.  That doesn’t work for me.  Especially when I know that Three Girls Bakery is just down the street.  At least they used to be.

As we headed upstairs from Pike Brewing Company (which is downstairs in the same building as DeLaurenti), we noticed a new business.  But it wasn’t a new business, it was Thiree Girls moved into their temporary shop while they are under construction.  Sweet surprise!  So we all ordered a favorite cookie.  Okay I ordered two.  Emma got my favorite the Double Oh.  This is a peanut butter cookie with a full sized Reese’s Peanut Butter Cup pressed into the middle.  Yum.  But I remember the day when they made the Tripple Oh!  Same cookie but dipped into Belgian dark chocolate.  TRIPPLE OH!!  And that name has no other connotation.  Today, I ordered the Mounds cookie, which is a very good coconut macaroon dipped in very thick, dark chocolate.  Great with a glass of milk. 

Well, that was my Wednesday.

Dave gave me a bottle of Cockspur 12 (my favorite rum) and a handful of good cigars.  I really didn’t even need to go to a Christmas party after receiving those, but I saved them for New Year’s Eve.  We decided to avoid the chaos known as downtown Bellevue two days before Christmas and find someplace on the fringe of chaos.  My wife remembered that there was a new restaurant that had just opened in the northwest corner of the Factoria Mall parking lot.  No not the taco truck.  It’s called Novilhos Brazilian Steakhouse.  I also like to call it Meat Heaven. 

Novilhos is in the same building where Torero’s Mexican Restaurant used to be.  However, an extreme overhaul was done to the inside of the building.  Novilhos has lots of dark wood and feels very classy.  From the moment we walked in the door, we had an army of staff waiting on us.  This was nice.

While I’m not a big wine drinker, the menu looked quite extensive.  But that was the only menu we saw.  That’s right, there’s no menu.  Our waiter, dressed like a Brazilian gaucho or cowboy, greeted us, obtained our drink orders and instructed us that the first step in our feast was the salad bar.  However, this was no normal salad bar.  I’m sure I won’t do this justice, because I can’t remember everything they had, but it included Waldorf salad, smoked salmon, asparagus, beets, rice, stroganoff, crispy bacon strips, salami, paper-thin prosciutto, olives, cheeses, and breads.  And much, much more.

After we returned to our table with our first plates overflowing, we noticed the servers walking through the dining area carrying delicious meats impaled on large swords.  Each dinner has a small coin on the table with red on one side and green on the other.  If you want more meat, you flip green up.  There were 15 different types of meat!  I think I tried at least 10.  All of the meats were simply fabulous.  They included filet mignon, filet mignon wrapped in bacon, lamb, rib-eye,  top and bottom sirloin, pork sausage, bacon-wrapped chicken, grilled chicken, and Parmesan cheese pork loin.  The best was a cut of meat that they called the “house special.”  It was indeed very special.  When the server approached your table with a skewer of meat, he would ask you how you like you meat cooked.  He would then cut a thin slice from the sword.  In some cases, like the sausage, chicken legs, and bacon-wrapped meats, they would just slide the meat from the sword onto your plate.  And through all of this, the attentive waiters kept replenishing plates of cheese bread, fried bananas, and garlic mashed potatoes which were also very tasty.  I had never tried fried bananas before; delicious!

The price was $42 per person and it is all you can eat.  I think I got my $42 worth.  The drinks were good, but a little pricey ($9 for a cocktail).  And to be quite honest, with all of this food, the alcohol really didn’t have much effect.  The lounge was empty when I peeked in, but very nicely furbished. 

Believe it or not, we all ordered dessert and shared, so I got to try vanilla cheesecake, chocolate lava cake w/vanilla ice cream, and papaya cream.  All delicious. 

This is the type of place you have to try.  Pricey, but worth every penny.  Great food, great service, great atmosphere, and great drinks. 

I wish you all a very Happy New Year and may the meat cowboy come by your table often.

At first scratch I thought that for sure the guitar lessons would be considered educational, but I wasn’t sure about the sports.  I did some quick research, but the cases on this issue were rather slim.  A 1997 unpublished opinion from Division One Court of Appeals (Marriage of Edwards, 88 Wn. App. 1015) discusses whether private violin lessons are “educational expenses.”  The father in Edwards had been ordered to pay 100% of his three sons’ educational expenses.  Edwards refused to pay for his sons’ private violin lessons or private language lessons as he maintained “that they were luxuries and not educational expenses as contemplated in the child support order.” 

The Court of Appeals reasoning went like this:  The rule set out in In re Marriage of Stern was that the educational expense in question must be for something that the children “needed or would benefit from.”  Stern was in the context of private schooling versus public.  The Stern court held that the children would not receive any additional benefit from the private school and it was not needed.  Applying Stern in the Edwards case, the question was “whether the evidence is sufficient to show the music equipment and private lessons provide educational benefits beyond those the children already receive in school.”  Since the school recommended that the kids in the music program obtain their own instruments and private lessons, the lower court’s holding that these were “educational expenses” was upheld.  The fact that the mother was able to make educational decisions that were not “significant” also meant that she was able to somewhat determine what the children’s educational needs were.

So, are guitar lessons educational?  I posed this question to several colleagues and received a plethora of responses.  One interesting point raised: does it matter if the child is playing classical violin versus playing hard rock guitar?  Is one more educational than the other?  If a student is a gifted musician, they can earn a music scholarship.  While there are probably many more music scholarships granted to students who play classical music versus hard rock, that doesn’t necessarily mean that the classical music student has been educated in music and the hard rock student hasn’t.

And what about sports?  Do we learn anything from playing sports?  Is it “educational” to participate in sports?  What about team work, dedication, communication?  Are skating lessons or dance lessons educational?  You can earn a scholarship playing sports or dancing so it must be an important thing, right?  There are certainly expenses associated with kids playing sports.  It’s not fair that a paying parent decides that some activity is not educational so they are not going to contribute to the expense.  

I understand that sometimes parents just can’t afford to put their kids into every extracurricular activity that comes along.  Our finances are limited and choices have to be made.  As one of my colleagues pointed out, sometimes you have to chose between little Suzie’s braces or piano lessons.  Between car insurance for you 16-year-old or a new drum set. Horse riding lessons or paying for those lost library books.  Some parents just can’t afford additional money to pay for these activities.

At the end of the day, I think it comes down to one thing:  As a parent, you really shouldn’t turn down your child’s desire to take on a new activity just because you don’t think it’s an “educational expense” or because “I’m not giving that B@*! another dime of my money!”  This seems more like animosity towards the parent receiving the support than a legitimate reason to deny your child the opportunity to expand their minds.  If we don’t encourage our children to participate in these activities then they are left to fill in that time with something else.  Something that usually involves the television.  

My client will probably end up shouldering the cost of the guitar lessons herself.  She could spend a lot of money to get a court’s decision on whether guitar lessons are an educational expense, but it’s not certain she will win.  Perhaps if it were violin lessons, the scales would tip in her favor a bit, but it’s hard to tell.  Hopefully, one day her son will appreciate that she and she alone encouraged him to play the guitar.  Hopefully he will become a mega rock star and his father can take credit for NONE OF IT!!

A judge approved the $230,000 settlement against B&R Aerial Crop Care of Connell and Anderson Farms, but didn’t approve the plaintiffs request to hold the pilot down and spray him with clethodim.  I wonder how much the workers actually received after costs and all.  I’m sure these defendants got off cheap.

"INCOMING!!!"

So it’s been a few weeks since I last wrote.  A lot has happened since then, including “POLAR BLAST 2010″ as the news referred to it.  You know it’s serious when they preempt Good Morning America to show some idiot sliding down Queen Anne Hill in their Subaru.  At least when I slid down Queen Anne Hill it was in a laundry basket.  I think that was “WINTER FREEEZE 2004!!!”  And this time it was before Thanksgiving!  That’s kinda scary.  It should be a real fun winter.  The snow affects us all in different ways.  I can work from home, so nothing changed for me.  My wife had a four hour bus ride from Seattle to Bellevue.  When she walked in the house that night, frozen solid and I’m sitting there eating sloppy joes (disclosure of limited culinary skills) and watching Monday Night Football, I felt kind of bad telling her that according to the news, fours hours was nothing.  We began to worry that the snow would keep our Thanksgiving Day guests away.  I actually had to use this thing they call a “snow shovel” to clear the front sidewalk.  Unfortunately, my step-son had poured hot water on the sidewalk the day before to assist him in clearing the way.  Long story short, I fell on my butt and sprained by wrist.  This made carving the turkey a little difficult, but I eased the pain with a couple of cocktails and all was good.  

Now as many of you know, I love food.  So when I found out that a good friend had taken up the art of BBQ (I call it art, he calls it competition), I was excited to try his food out.  He now is running a BBQ catering service called Smoke It If Ya Got It.  Since we had a lot of people coming for Thanksgiving I ordered up some sausage, a tri-tip roast and of course the smoked turkey.  All of these were delicious, but I really loved the smoked sausage.  The sausage comes in small meatloaf-like loafs.  Slice them up and serve them with some strong cheese.  YUM!  But the best dish of the day by far was the turkey my lovely wife cooked up.  ABSOLUTELY PERFECT!

The snow brought up some other interesting issues: since the King County Courts closed, what happens to hearings that were scheduled on the days the court closed?  I had a protection order hearing scheduled for Tuesday, but after the courts were closed on both Tuesday and Wednesday for snow and then Thursday and Friday for the Thanksgiving Holiday, I wasn’t sure what to do.  Of course the website was of no assistance at all, so I just showed up on Monday morning and hoped it would get straightened out.  I did get straightened out, but talk about chaos down at the courthouse that morning.  More chaotic than I-5 after two inches of snow!  Bada-bing.

I also wanted to briefly mention my thoughts about success in practicing law.  And when I say success, I’m not talking about financial success.  I’m talking about what in my mind makes me feel like I’ve done the very best for my client and they are thankful for what I have achieved for them.  I recently had a client who gave up the battle to be with his children.  I was very frustrated at this man as I had done everything possible (including working when I wasn’t getting paid) to push him in the direction of doing what he needed to do to be with his children.  In the end, he just wouldn’t take responsibility.  It was his ex-wife’s fault, it was the judge’s fault, it was the evaluator’s fault, it was his children’s fault, it was myfault.  Everybody’s fault but his own.  This was not success.  It was frustrating.  I gave up too.  But on the heels of this case was a story of a different man who had lost his daughter due to his drinking problem.  Years later, after he sobered up, all he wanted was his visitation rights with his daughter.  He took responsibility for what he had done.  He owned up to his neglect.  He did everything in his power to make it right again.  He just wanted his allotted time with his daughter.  However, he had done such a good job of cleaning up his act, that the evaluator (GAL) thought that it was time for his daughter to return to him.  When I called to give him the news, he cried and yelled with joy at the news.  He couldn’t believe it.  Good job Scott!  This was success.  This felt good.  I almost cried myself.  Maybe I did a little.

And finally, I would like to discuss my reality TV addiction:  First, Survivor:  Can you believe that Na is still there?!  The theme is out wit, out play, out last, but she has done it by not cheating, stealing, lying, quiting, whining, and abusing an amputee (both physically and verbally).  Would someone please snuff her flame!!  Second, Top Chef All Stars:  I love this show even better than the regular Top Chef.  We already know all the players; it’s great.  And any show with Anthony Bourdain ripping on food is worth watching.  Oh, cry me a river Fabio.  If Anthony Bourdain says your food tastes like crap:  IT TASTES LIKE CRAP.  Get over it.  At least you didn’t get eliminated.  That honor was bestowed to Elia and her lame fish dish.  So lame that she has now been eliminated twice by the same dish.  Third, Biggest Loser:  All I can say is Go Brendan.  And is it just me or is Bob getting bitchier?  Oh and by the way, I watched an “American Pickers” marathon last night.  New addiction!  Makes me want to go to garage sales in Ephrata or some other desolate place where I might find some unknown treasure.  Very cool.

Well thanks for tuning in.

This is my first blog on my website. I want to give thanks to Harmony Starr for creating a great website for me. I’ve gotten lots of compliments on it. I also want to thank Justin Walsh for allowing me to blog on his site The Amateur Law Professor for the last year or so. It was a great experience and I really enjoyed having fun with this great group of attorneys/legal bloggers.

So what am I going to write about on this blog? I want to continue to write about current opinions out of the Court of Appeals and the Supreme Court, but here I’m going to limit my writings to tort law and family law cases. I know it will disappoint a lot of my readers (all three of them) that I’m not going to continue my comedic coverage of criminal cases anymore, but since I don’t practice criminal law anymore, it doesn’t make sense for me to write about it.

I know that the past readers of my infamous Survivor Memos would love me to go back to writing about episodes of Survivor, but I’m not sure that is appropriate for an attorney’s blog. But hey, if it will bring in a few more readers, then I might give it a shot. We’ll see.

I could write about our cats Red and Sadie. They both spend enough time in my home office that I’m thinking about claiming them as deductions. Fuzzy staple removers maybe? Red does provide quite a bit of entertainment as he becomes accustomed to his new back yard. We can see him from the office window as he watches the squirrel highway that is our back fence. I would say he is stalking the squirrels but “stalking” does have some connotation that there will be a move to capture. He prefers to just sit and shake his butt like he’s going to pounce, but never quite makes that final move. After all they are those menacing Eastside squirrels. You know, the kind that try to run you over in the crosswalk with their Mercedes while flipping you off for not getting out of their way quicker. I hate those ones.

I could write about one of my true passions:  GOOD FOOD!!!  I love food.  Looking at my belly you wouldn’t imagine that I even knew where the gym was.  But truth be told I drag my butt in there three to five times a week.  And immediately afterwords I run and grab a burger and onion rings from Broiler Bay or how about one of those great cupcakes from Trophy.  I really think it should be against the law for them to put a Taco Time right across the street from the gym.  I mean really, there I am huffing and puffing on the treadmill and I can see across the street where deep fried burritos are dancing in the window taunting me.  It’s an ongoing struggle.  And a big thanks to Costco for selling the Mega-Bag of Halloween candy.  Does anybody really get that many trick-or-treaters?  Better safe than sorry right.  And how dare you suggest that I buy candy that I don’t like so I’m not tempted to eat it!  What the hell would I do with a Mega-Bag of Tootsie Pops after only 12 kids knocked at my door.  Really, I would rather just keep that handful of mini Almond Joys in my pocket at the gym…just in case.  Last night Meg and I enjoyed dinner at Chantanee Thai Restaurant in Bellevue.  The deep fried wontons with crab and cream cheese were delightful!  I didn’t realize that they have cream cheese in Thailand.  And the cocktails from their Naga lounge are incredible.  I would personally recomend the Pain Killer.  Num!  Or should I say:  Numb!

 So I guess this blog will be a hodgepodge of stuff.  Whatever’s on my mind I guess.  Feel free to add your comments.  That way I know that I haven’t lost one of my three readers.