Independent Contractor Status Refutes Attorney-Client Privilege Claim

Posted on September 18, 2008 by Grace Healy

For the past few months I have subscribed to a Westlaw service that sends a daily email with links to cases in which the words ‘in-house,” and “lawyer” or “counsel” appear.  Most of the cases aren’t very illuminating about how courts view in house lawyers.  However, I have found two trends of interest.  First, there are a lot of discovery disputes about production of in-house lawyers’ notes.  And, second, when attorney fees are awarded, courts require opposing parties to pay attorney fees for time spent by in-house lawyers on litigation matters much more often than I expected.  When I come across a case that seems to lay down some law instead of simply ruling on these points, I’ll do a post.

Meanwhile, I did come across an auto accident case, Stallings v. Werner Enterprises, Inc., 2008 WL 4078783, pending in the federal district court for Kansas, which illustrates one downside to identifying a worker as an independent contractor – it can refute a claim of attorney client privilege. Defendant Werner Enterprises’ in-house counsel interviewed an independent contractor driver as part of an accident investigation shortly after a truck/car accident.  Plaintiff sought the notes of the meeting.  The court ruled that the attorney-client privilege did not cover the interview – the driver wasn’t seeking legal advice from the lawyer and there was no confidential relationship.  Because plaintiff demonstrated a need for the statements made shortly after the accident, the attorney’s notes were to be examined in camera to see if the statements could be separated from the attorney’s impressions. After the court’s review, only two paragraphs were redacted.

The case applies Kansas law, but might be thought of during accident or any other internal investigations.

 

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No Minimum Time for Statute of Limitations Disability Toll in Washington

Posted on September 18, 2008 by Grace Healy

Washington defense counsel had best not breathe a sigh of relief because the statute of limitations on a potential claim has run on the calendar.  On the other hand, plaintiff counsel should not despair because a statute may have been missed.  In Washington, a short stay in intensive care during which a cause of action accrues may toll a statute of limitations.

Plaintiff in Rivas v. Overlake Hospital filed one day after a three-year statute of limitations had run.  Last month, the Washington Supreme Court ruled that the statute of limitations on her medical malpractice claim may have been tolled because of incapacity during four days spent in intensive care during which the cause of action arose.  Defendant offered evidence that plaintiff was alert, oriented and aware of her surroundings at all times.  Plaintiff’s expert countered that she was incapacitated and not capable of understanding legal proceedings during her intensive care stay; her family described her as unresponsive and out of it. 

In reaching its decision, the court analyzed the interaction of the tolling statute  and the Guardianship Act, which the tolling statute states determines incompetency or disability. The Court of Appeals had ruled that plaintiff had not been incapacitated long enough to trigger the tolling statute.  However, the Washington Supreme Court reversed holding that the tolling statute does not require that a party be incompetent or disabled for any minimum amount of time.  A dissent reasoned that the Guardianship Act requires that an inability to manage ones affairs must exist over time for a finding of incapacity.

My knowledge of this case is based on the Supreme Court opinion and dissent.  But, as an aside, although the opinion and the tolling statute are clear that the incapacity must be present when the cause of action accrues, I am having a hard time with the chronology because it suggests that the facts supporting the cause of action led to the incapacity and didn’t necessarily exist at the time that the cause of action arose. I find myself wondering how plaintiff consented to the surgery if she were, indeed, incompetent.  Whether or not she was able to consent seems like pretty important evidence regarding her capacity; however, the opinion doesn’t mention this. 

Anyway, the Washington Supreme Court has ruled, and it would be a mistake to think that this broad reading of incapacity warranting a toll is limited to medical malpractice claims. Why wouldn’t any claim involving a serious injury or trauma implicate this toll?  No matter, there is a good chance that a statute of limitations defense may now create collateral issues, litigation and expense.

 

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