Tiev v. The Standard Fire Insurance Company

Hon. Jamal N. Whitehead [7] IN THE UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE [9] MALYNA TIEV and JAMES NORRIS, [10] individually and as wife and husband, and the NO. 2:23-cv-00950 JNW 11 marital community composed thereof, 12 Plaintiffs, AGREED PRETRIAL ORDER [13] v. [14] THE STANDARD FIRE INSURANCE [15] COMPANY, [16] Defendant. [17] 18 JURISDICTION 19 Jurisdiction is vested in this court by virtue of: Diversity of Citizenship pursuant to 28 U.S.C. 20 § 1332 in that the amount in controversy exceeds $75,000; Plaintiffs Malyna Tiev and James Norris 21 are citizens of the State of Washington and Defendant The Standard Fire Insurance Company 22 (Standard Fire) is a Connecticut corporation with its principal place of business in Hartford, 23 Connecticut. 24 This matter was originally filed in the Superior Court of the State of Washington for King 25 County under Cause No. 23-2-10426-9 on June 20, 2023, and then was timely removed by the 26 Defendant to Federal Court on June 26, 2023. 27 /// 28 /// [29] CLAIMS AND DEFENSES [1] The Plaintiffs will pursue at trial the following claims: (1) Consumer Protection Act [2] violations, (2) Insurance Bad Faith, (3) Negligence, (4) Insurance Fair Conduct Act violations, and [3] (5) Breach of Contract. [4] The defendant will pursue the following affirmative defenses and/or claims: [5] Standard Fire denies that it is liable to Plaintiff under any of the foregoing causes of action. [6] Standard Fire will pursue the following affirmative defenses and/or claims: [7] 1. Plaintiffs were fully compensated by the liability limits of the tortfeasor Rachel Wehr and [8] therefore is not entitled to Underinsured Motorist (UIM) Benefits. [9] 2. To the extent that Plaintiffs suffered damages, Plaintiffs have failed to mitigate those [10] damages. [11] 3. As to some or all of Plaintiffs’ claims, Plaintiffs’ Complaint fails to state a claim against [12] Standard Fire for which relief may be granted. [13] 4. To the extent that Plaintiffs have suffered damages, any such damages may have been caused, [14] in whole or in part, by Plaintiffs’ own acts or omissions. [15] 5. To the extent that Plaintiffs have suffered damages, any such damages may have been caused, [16] in whole or in part, by the acts or omissions of third parties over whom Standard Fire has no [17] control. [18] PLAINTIFFS’ ADMITTED FACTS [19] The following facts are admitted by Plaintiffs: [20] 1. A motor vehicle collision occurred on February 10, 2018 on Broadway, near 75th [21] Street, in Everett, Snohomish County, Washington involving Plaintiffs, the driver [22] following them, Racheal Wehr, and a third vehicle into which the Plaintiffs’ vehicle [23] was pushed after being impacted from the rear by Ms. Wehr’s vehicle. [24] 2. A witness driving immediately behind the Wehr vehicle indicates that Racheal Wehr [25] never braked prior to impacting the rear of the Tiev vehicle, and impacted her at [26] approximately 30 mph. [27] /// [29] 3. Rachael Wehr was fully responsible for the occurrence of the February 10, 2018 motor [1] vehicle collision (something noted in The Standard’s claims file by the UIM adjustor [2] on February 20, 2023). [3] 4. Plaintiff Malyna Tiev was 0% comparatively at fault for the occurrence of the [4] February 10, 2018 collision. [5] 5. Racheal Wehr was insured via Allstate Insurance Company and had $100,000 per [6] person limits in place as of February 10, 2018 (also something confirmed by The [7] Standard and noted in the UIM claims file). [8] 6. Malyna Tiev filed suit against Racheal Wehr and her husband when the third-party [9] claim could not be resolved. [10] 7. The Standard was Plaintiffs’ auto insurance carrier at the time of the February 2018 [11] traffic collision. [12] 8. The Plaintiffs had: (a) $10,000 in Personal Injury Protection (PIP) coverage on her [13] auto policy via The Standard, and (b) $100,000 per person/$300,000 per accident UIM [14] limits on her policy, as well, as of February 10, 2018. [15] 9. The Standard ultimately paid its full $10,000 PIP policy limits in covering a portion [16] of the Plaintiff’s medical bills resulting from the February 10, 2018 motor vehicle [17] collision. [18] 10. Trial of the third-party claim against Defendant Wehr was set for February 27, 2023 [19] in Snohomish County Superior Court. [20] 11. On January 17, 2023, Allstate agreed to tender its full $100,000 third-party policy [21] limits to Plaintiff to resolve her claim against Ms. Wehr. [22] 12. The Standard, consistent with Hamiton v. Farmers Insurance Co., 107 Wn.2d 721 23 (1987), was formally placed on notice of the proposed third-party policy limits [24] settlement with Racheal Wehr/Allstate on January 23, 2023, given the opportunity to [25] “buy out” the underlying 3rd Party claim, asked to waive PIP reimbursement if they [26] chose not to “buy out” the third-party claim and provided a detailed PowerPoint [29] presentation detailing the circumstances surrounding the underlying February 10, [1] 2018 collision and Ms. Tiev’s and Mr. Norris’s claims. [2] 13. After being placed on notice of the proposed policy limits $100,000 third-party [3] settlement, Reid Mitsuyoshi was named by The Standard as the UIM adjustor for the [4] Tiev-Norris claim. [5] 14. On January 24, 2023, UIM adjustor Reid Mitsuyoshi authorized settlement with the [6] third-party defendant(s) and formally agreed to waive all PIP [7] subrogation/reimbursement. [8] 15. On January 25, 2023, a UIM policy limits settlement demand with numerous exhibits, [9] again including the detailed PowerPoint summarizing the claim, was sent to Reid [10] Mitsuyoshi at The Standard via email link. [11] 16. On January 26, 2023, adjustor Reid Mitsuyoshi asked an in-house, Travelers [12] employed licensed nurse practitioner (LPN), Tanya Blachowicz, to review Ms. Tiev’s [13] medical records and bills, and posed 4 questions for her to respond to regarding the [14] same, noting the same in the Tiev claims file. [15] 17. On January 27, 2023, LPN Blachowicz accepted the review assignment per the Tiev [16] claims file. [17] 18. On January 30, 2023, adjustor Reid Mitsuyoshi requested records from Warrior [18] Massage which had inadvertently not been provided with the January 25, 2023 UIM [19] settlement demand despite being referenced in the same. [20] 19. On January 31, 2023, the requested Warrior Massage records were sent to adjustor [21] Reid Mitsuyoshi via email link. [22] 20. Also, on the morning of January 31, 2023, LPN Blachowicz finished her review of the [23] Tiev matter, noting in the claims file that she spent 3 hours reviewing the same, and [24] prepared and placed her Review Report into the claims file. [25] 21. By February 20, 2023, UIM adjustor Reid Mitsuyoshi entered into The Standard [26] claims file his evaluation of the total value of Ms. Tiev’s and Mr. Norris’s claims, [27] valuing the Tiev claim at between $36,445 and $46,445 gross, but including the $3,334 [29] in estimated Winters fees owed on the PIP in his evaluation, along with $13,111 in [1] accepted medical bills and $20,000-$30,000 in general damages to arrive at said [2] number. [3] 22. Adjustor Mitsuyoshi’s evaluation of the claim, excluding the Winters fees owed as a [4] matter of law by The Standard, was thus 33.11% to 43.11% of the Allstate $100,000 [5] third-party policy limits settlement offer. [6] 23. No value was placed on husband James Norris’s independent loss of consortium claim [7] per UIM adjustor Reid Mitsuyoshi’s claims file notations. [8] 24. On February 21, 2023, UIM adjustor Reid Mitsuyoshi communicated to counsel for [9] the claimants that in his opinion the claimants had been fully compensated by the [10] Allstate policy limits and tendered no monetary offer on claimant’s UIM claim. [11] 25. On March 1, 2023, via email, adjustor Reid Mitsuyoshi informed counsel for the [12] claimants that The Standard would not agree to arbitrate the claimant’s UIM claim [13] and provided the requested certified copy of the Tiev-Norris policy to counsel. [14] 26. Also on March 1, 2023, in this same email, adjustor Mitsuyoshi offered to engage in [15] pre-filing mediation, but asked that their insureds share the cost of paying the [16] mediator. [17] 27. In response, on March 2, 2023, counsel for the claimants informed adjustor [18] Mitsuyoshi, also via email, that consistent with Kenworthy v. Pennsylvania General [19] Insurance Co., 113 Wn.2d 309 (1989) (insurer must pay UIM arbitration fees so as to [20] not reduce insured’s coverage) their insureds would engage in pre-filing mediation [21] only if The Standard paid 100% of the cost of the mediation, and also invited payment [22] under Geico v. Beasley of all uncontested amounts on the UIM claim given Mr. [23] Mitsuyoshi’s claim that he had not made a “zero offer.” [24] 28. On March 6, 2023, adjustor Mitsuyoshi agreed that The Standard would pay the full [25] cost of the mediation and was referring the matter out to defense counsel. [29] 29. On May 1, 2023, a half-day mediation was held with mediator Brad Davis, with The [1] Standard being represented by then-counsel Gordon Klug and the claimants by the [2] undersigned. [3] 30. No monetary UIM offer was ever made to either claimant by The Standard or its [4] representatives at this mediation. [5] 31. On June 20, 2023, suit was filed against The Standard by claimants in King County [6] Superior Court. [7] 32. On June 26, 2023, counsel for The Standard filed a Notice of Removal, and this matter [8] was removed to Federal Court. [9] 33. No offer of settlement was ever made to the claimants until June 12, 2024 when [10] present counsel for The Standard tendered an offer. [12] DEFENDANT’S ADMITTED FACTS [13] The following facts are admitted by Standard Fire: [14] 34. A motor vehicle collision occurred on February 10, 2018 in Everett, Washington [15] involving Plaintiffs, Racheal Wehr, and a third vehicle. [16] 35. Rachael Wehr was fully responsible for the occurrence of the February 10, 2018 motor [17] vehicle collision. [18] 36. Plaintiff Malyna Tiev was 0% comparatively at fault for the occurrence of the [19] February 10, 2018 collision. [20] 37. Racheal Wehr was insured via Allstate Insurance Company and had $100,000 per [21] person limits in place as of February 10, 2018. [22] 38. Standard Fire was Plaintiffs’ auto insurance carrier at the time of the February 2018 [23] traffic collision. [24] 39. The Plaintiffs had: (a) $10,000 in Personal Injury Protection (PIP) coverage on her [25] auto policy via Standard Fire, and (b) $100,000 per person/$300,000 per accident UIM [26] limits on her policy, as well, as of February 10, 2018. [27] 40. Standard Fire paid its full $10,000 PIP policy limits. [29] 41. On January 17, 2023, Allstate agreed to tender its full $100,000 third-party policy [1] limits to Plaintiff to resolve her claim against Ms. Wehr. [2] 42. Standard Fire was formally placed on notice of the proposed third-party policy limits [3] settlement with Racheal Wehr/Allstate on January 23, 2023 and provided a [4] PowerPoint presentation. [5] 43. On January 24, 2023, UIM adjustor Reid Mitsuyoshi authorized settlement with the [6] third-party defendant(s) and formally agreed to waive all PIP [7] subrogation/reimbursement. [8] 44. On January 25, 2023, a UIM policy limits settlement demand was sent to Reid [9] Mitsuyoshi at Standard Fire. [10] 45. On January 26, 2023, adjustor Reid Mitsuyoshi asked a licensed nurse practitioner [11] (LPN), Tanya Blachowicz, to review Ms. Tiev’s medical records and bills. [12] 46. On January 30, 2023, adjustor Reid Mitsuyoshi requested records from Warrior [13] Massage which had not been provided with the January 25, 2023 UIM settlement [14] demand despite being referenced in the same. [15] 47. By February 20, 2023, UIM adjustor Reid Mitsuyoshi valued the Tiev claim at [16] between $36,445 and $46,445. [17] 48. On February 21, 2023, UIM adjustor Reid Mitsuyoshi communicated to counsel for [18] the claimants that the claimants had been fully compensated by the Allstate policy [19] limits. [20] 49. On March 1, 2023, via email, adjustor Reid Mitsuyoshi informed counsel for the [21] claimants that Standard Fire would not agree to arbitrate the claimant’s UIM claim [22] and provided the requested certified copy of the Tiev-Norris policy to counsel. [23] 50. Also on March 1, 2023, in this same email, adjustor Mitsuyoshi offered to engage in [24] pre-filing mediation. [25] 51. In response, on March 2, 2023, counsel for the claimants informed adjustor Mitsuyoshi [26] their insureds would engage in pre-filing mediation only if Standard Fire paid 100% [27] of the cost of the mediation. [29] 52. On March 6, 2023, adjustor Mitsuyoshi agreed that Standard Fire would pay the full [1] cost of the mediation and was referring the matter out to defense counsel. [2] 53. On May 1, 2023, a half-day mediation was held with mediator Brad Davis. [3] 54. On June 20, 2023, suit was filed against Standard Fire by claimants in King County [4] Superior Court. [5] 55. On June 26, 2023, counsel for Standard Fire filed a Notice of Removal, and this matter [6] was removed to Federal Court. [7] ISSUES OF LAW [8] The following are the issues of law to be determined by the court: [9] 1. There is a pending motion for summary judgment filed by The Standard (Doc. No. 21) [10] seeking dismissal of Plaintiffs’ causes of action for bad faith, negligence, violation of the Consumer [11] Protection Act, and violation of the Insurance Fair Conduct Act. [12] EXPERT WITNESSES [13] (a) Each party has retained one (1) medical litigation expert witness and one (1) bad [14] faith/insurance expert witness. No experts not properly identified should be allowed to testify. The [15] names and addresses of the expert witness(es) to be used by each party at the trial and the issue upon [16] each will testify is: [17] On Behalf of Plaintiffs: [18] (b) Non-Litigation Witnesses with Expert Credentials: Plaintiff’s treating doctors, [19] Benjamin Lacy, M.D. and Yung Lee, M.D., may be called to testify regarding their care and treatment [20] of Plaintiff Malyna Tiev, and can be expected to express any opinions formulated by them during the [21] course of their treatment of the Plaintiff, or in the case of Dr. Lacy, included within his sworn [22] Declaration previously executed by him, including the permanency of the Plaintiff’s injuries and [23] symptoms. They are, however, treating physicians of Plaintiff Tiev, not litigation experts, but may [24] still be expected to express any opinions contained in their records, Reports, Declarations or [25] formulated by them during the course of their care and treatment of the Plaintiff. Depositions of Dr. [26] Lee and Dr. Lacy were not requested. [27] /// [29] (c) The names and address of the litigation-retained expert witness(es) to be used by each [1] party at the trial and the issue upon which each will testify is: [2] 3 1. David E. Spanier, MD 4035 120th Avenue SE [4] Bellevue, WA 98006 [5] Dr. Spanier is board certified in physical medicine and rehabilitation, as well as in pain [6] medicine. Dr. Spanier will offer expert opinion medical testimony regarding all matters contained in [7] his deposition previously taken herein, as well as in his report dated January 3, 2023, and his [8] addendums to the same dated January 16, 2023, January 19, 2023, and July 23, 2024. [9] These opinions will include, but are not necessarily limited to the following topics: opinions [10] and conclusions about the nature and extent of the Plaintiff’s crash-related injuries, the [11] reasonableness, necessity and crash-relatedness of the Plaintiff’s claimed past treatment and medical [12] bills (to the extent necessary), any opinions he may have regarding the Plaintiff’s pre-crash medical [13] history and alleged pre-existing conditions (or the absence or non-symptomatic nature thereof), any [14] opinions he may have regarding the appropriateness and crash- relatedness of Plaintiff’s post-crash [15] treatment, the permanency of the Plaintiff’s injuries and her future treatment needs, and the costs [16] thereof. [17] He can also be expected to comment upon the defense medical examination report(s) of [18] defendant’s hired physician, upon the comments from Tanya Blachowicz, the in-house LPN who [19] reviewed the Plaintiff’s claim for The Standard, the nature and estimated costs of Plaintiff’s future [20] care and care needs (if any), and will further employ one or more of the anatomical illustrations/ [21] drawings/medical aids/items to illustrate the specific nature, location and extent of the Plaintiff’s [22] incident-related injuries and treatment, including her past injections, and will otherwise explain the [23] Plaintiff’s injuries via use of the same. [24] Dr. Spanier will, in addition to those items referred to/listed in his report (if issued), also [25] review the Plaintiff’s relevant medical records, any reports/Declarations from other treating or expert [26] health care providers, reports from defense experts, the Plaintiff’s diagnostic films and/or billings, [27] her interrogatory responses, her deposition, the depositions of other relevant health care providers or [28] persons and may rely upon the same as a basis for his testimony and/or in testifying at the time of [29] trial. He will also testify about his conversation with Dr. Lee, the Plaintiff’s current treating physician [1] at Evergreen Health, as well. [2] 3 2. Rob Dietz PMB 390 4 3405 172nd St. NE, #5 5 Arlington, WA 98223 6 Mr. Dietz is an expert with respect to claims handling and claims practices. 7 Mr. Dietz will offer expert testimony regarding all matters contained in his report dated March 8 18, 2024, including his opinions and conclusions about the bad faith actions of Standard Fire in the 9 handling and adjustment of the Tiev-Norris claim, as well as to all matters addressed or touched upon 10 by him in his deposition taken herein. 11 He can also be expected to comment upon the report and opinions of Jerry Hartmann, 12 defendant’s hired claims specialist (if any) and will further base his opinions upon the depositions 13 taken herein of the parties and their representatives, including the Plaintiffs, adjustor Reid Mitsuyoshi 14 and in-house LPN Tanya Blachowicz, as well as reports issued by Mr. Hartmann in other cases for 15 defense counsel and/or Standard Fire/Travelers in the past. 16 3. Dr. Benjamin Lacy Pacific Medical Centers 17 19401 40th Avenue W Suite 230 [18] Lynnwood, WA 98036 [19] See, subsection (b) above. [20] 21 4. Dr. Yung Lee EvergreenHealth 22 Evergreen Rehabilitation Services 12039 NE 128th St Ste 500, Kirkland, WA, 98034 [23] See, subsection (b) above, and the July 23, 2024, report of Dr. Spanier detailing his [24] conversation with Dr. Lee about Ms. Tiev. [25] 26 On behalf of Defendant 27 1. Dr. Patrick N. Bays 28 c/o Lether Law Group 1848 Westlake Ave, Suite 100 [29] Seattle, WA 98109 1 (206) 467-5444 [2] Dr. Patrick N. Bays is a board-certified orthopedic surgeon who performed Plaintiff [3] Malyna Tiev’s Independent Medical Evaluation. Dr. Patrick N. Bays will be called to testify as to [4] the examination, his report, the nature and extent of Plaintiff’s injuries, as well as her damages. [5] 2. Gerald Hartmann [6] c/o Lether Law Group 7 1848 Westlake Ave. N., Ste. 100 Seattle, WA 98109 8 (206) 467-5444 [9] Mr. Hartmann is Standard Fire’s claims handling expert. Mr. Hartmann will be called to [10] testify to his opinions that SF’s conduct was consistent with industry custom and standard for the [11] handling of UIM insurance claims. [12] OTHER WITNESSES [13] The names and addresses of witnesses, other than experts, to be used by each party at the time [14] of trial and the general nature of the testimony of each are: [15] 16 (a) On behalf of Plaintiffs: [17] Witness Address Testimony Will Testify/ By 18 Possible Depo Malyna Tiev c/o Quick |Law Group Regarding the Will Testify 19 1621 114th Ave SE allegations made in the Suite 228 Complaint in this matter, [20] Bellevue, WA 98004 including damages. [21] James Norris c/o Quick |Law Group Regarding the Will Testify 22 1621 114th Ave SE allegations made in the 23 Suite 228 Complaint in this matter, Bellevue, WA 98004 including damages. [24] Reid c/o Lether Law Group Regarding UIM claims By [25] Mitsuyoshi 1848 Westlake Ave N handling Depo 26 Suite 100 Seattle, WA 98109 [29] Witness Address Testimony Will Testify/ By 1 Possible Depo Tanya c/o Lether Law Group Regarding Defendant’s By [2] Blachowicz, 1848 Westlake Ave N medical opinion Depo 3 LPN Suite 100 Seattle, WA 98109 [4] 5 Dr. Yung Lee EvergreenHealth Regarding Malyna Possible Evergreen Tiev’s injuries from the 6 Rehabilitation Services February 10, 2018 12039 NE 128th St Ste traffic collision [7] 500, Kirkland, WA, 8 98034 9 Dr. Benjamin Pacific Medical Regarding Malyna Possible 10 Lacy Centers Tiev’s injuries from the 19401 40th Avenue W February 10, 2018 11 Suite 230 traffic collision Lynnwood, WA 98036 [12] 13 Tracy Jacoby 2024 Columbia Ave. Regarding the February Possible Everett, WA 98203 10, 2018 traffic collision 14 (last known address) and all matters discussed in her sworn Declaration [15] dated 1/30/23. 16 Racheal Wehr 2409 74th Street S.E. Regarding the February Possible Everett, WA 98203 10, 2018 traffic collision [17] (last known address) and all matters testified 18 to her in her deposition taken in the underlying 19 3rd party action. [20] (b) On Behalf of Defendant: [21] Witness Address Testimony Will Testify/ By [22] Possible Depo 23 Reid c/o Lether Law Group Regarding Standard Will Testify Mitsuyoshi 1848 Westlake Ave N Fire's claims handling 24 Suite 100 and evaluation of Seattle, WA 98109 Plaintiffs claim, and [25] Standard Fire's 26 affirmative defenses. [27] 28 /// [29] EXHIBITS 1 (a) Plaintiffs’ Exhibits [2] Ex. # Description Authenticity Admissibility Objection Admitted [3] 1 Police Report Agreed Disputed FRE 802 [4] 5 2 Dec – Tracy Jacoby Agreed Disputed FRE 802 6 3 Wehr car photo 1 Agreed Agreed (front of vehicle) [7] 4 Wehr car photo 2 Agreed Agreed [8] (front of vehicle) [9] 5 Wehr car photo 3 Agreed Agreed 10 (rear of vehicle) 11 6 Tiev vehicle photo – Agreed Agreed rear end [12] 13 7 Third involved Agreed Agreed vehicle photo – rear 14 end 15 8 Wehr vehicle Prop Agreed Disputed FRE 802 damage repair cost FRE 702 [16] 17 9 Tiev vehicle prop Agreed Disputed FRE 802 damage repair cost FRE 702 [18] 10 Scene with debris Agreed Agreed [19] photo [20] 11 UIM claim Agreed Disputed FRE 802 21 PowerPoint FRE 602 FRE 704 22 MIL 23 FRE 805 24 12 Chart Note 2/14/18 Agreed Disputed FRE 802 (Burdine) FRE 702 [25] 13 Chart Note 2/28/18 Agreed Disputed FRE 802 [26] (Phone Encounter) FRE 702 [27] 14 Chart Note 2/28/18 Agreed Disputed FRE 802 28 (Burdine) FRE 702 [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 15 Chart Note 4/3/18 Agreed Disputed FRE 802 (Phone Encounter) FRE 702 [3] 16 Chart Note 4/12/18 Agreed Disputed FRE 802 4 (Burdine) FRE 702 [5] 17 Chart Note 5/24/18 Agreed Disputed FRE 802 6 (Burdine) FRE 702 7 18 Chart Note 6/19/18 Agreed Disputed FRE 802 (Lacey) FRE 702 [8] 19 Chart Note 7/20/18 Agreed Disputed FRE 802 [9] (Lacey) FRE 702 [10] 20 Chart Note 12/10/19 Agreed Disputed FRE 802 11 (Lacey) FRE 702 12 21 Chart Note 8/23/22 Agreed Disputed FRE 802 13 FRE 702 14 22 Declaration Benjamin Agreed Disputed FRE 802 Lacey, MC FRE 804 [15] 23 Spanier Initial Report Agreed Disputed FRE 802 [16] 1/3/23 FRE 804 [17] 24 Spanier Report Agreed Disputed FRE 802 18 Addendum 1/16/23 FRE 804 19 25 Spanier Report Agreed Disputed FRE 802 Addendum 1/19/23 FRE 804 [20] 21 26 Spanier Report Agreed Disputed FRE 802 Addendum 7/23/24 FRE 804 [22] 27 Report of Ron Dietz Agreed Disputed FRE 802 23 dated 3/18/24 FRE 804 [24] 28 Chart Note – Dr. Lee Agreed Disputed FRE 802 25 4/2/24 FRE 804 26 29 Chart Note – Dr. Lee Agreed Disputed FRE 802 5/9/23 FRE 702 [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 30 Chart Note – Dr. Lee Agreed Disputed FRE 802 6/13/23 FRE 702 [3] 31 Records – Agreed Disputed FRE 802 4 EvergreenHealth – FRE 702 5 Lee records (5.9.23 – 5.18.23) [6] 32 Bills – Pacific Agreed Disputed FRE 802 7 Medical Centers FRE 702 [8] 33 Bills – Vida Agreed Disputed FRE 802 9 Integrated Health – FRE 403 Chiropractic [10] 34 Bills – Vida Agreed Disputed FRE 802 11 Integrated Health - FRE 403 12 Massage 13 35 Bills – Vida Agreed Disputed FRE 802 Integrated Health – FRE 403 14 Physical Therapy [15] 36 Bills – Daisy Herb Agreed Disputed FRE 802 16 Acupuncture FRE 403 17 37 Bills – Warrior Agreed Disputed FRE 802 Massage FRE 403 [18] 38 Bills – Agreed Disputed FRE 802 [19] EvergreenHealth – FRE 403 20 4/2/23 21 39 Bills – Agreed Disputed FRE 802 EvergreenHealth – FRE 403 [22] 5/9/23 [23] 40 Bills – Agreed Disputed FRE 802 24 EvergreenHealth FRE 403 6/13/23 [26] 41 Order Granting Agreed Disputed FRE 802 Plaintiff’s MSJ on FRE 403 27 Bills (6/24/22) [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 42 High-Density Round Agreed Disputed FRE 802 Foam Roller receipt FRE 403 [3] 43 Massage gun and Agreed Disputed FRE 802 4 neck massager receipt FRE 403 5 FRE 402 6 44 Ergonomic office Agreed Disputed FRE 802 chair receipt FRE 403 7 FRE 402 [8] 45 Thera Cane massager Agreed Disputed FRE 802 9 receipt FRE 403 FRE 402 [10] 46 Adjustable computer Agreed Disputed FRE 802 11 stand receipt FRE 403 12 FRE 402 13 47 Back and neck Agreed Disputed FRE 802 massager pillow FRE 403 14 receipt FRE 402 [15] 48 Photo Ergo desk 1 Agreed Disputed FRE 802 16 FRE 403 FRE 402 [17] 49 Photo Ergo desk 3 Agreed Disputed FRE 403 [18] 50 Photo Ergo Keyboard Agreed Disputed FRE 403 [19] 20 51 Photo at work; back Agreed Disputed FRE 403 support visible [21] 52 Photo at work; Agreed Disputed FRE 403 22 support on mid-upper 23 back 24 53 Illustrative – Trigger Agreed Disputed FRE 403 Point Injections 1 [25] 54 Illustrative – Trigger Agreed Disputed FRE 403 [26] Point Injections 2 [27] 55 Illustrative – Trigger Agreed Disputed FRE 403 28 Point Injections 3 [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 56 Illustrative – Medial Agreed Disputed FRE 403 Branch Block 1 [3] 57 Illustrative – Medial Agreed Disputed FRE 403 4 Branch Block 2 [5] 58 Illustrative – Medial Agreed Disputed FRE 403 6 Branch Block 3 7 59 Photo – Malyna – Agreed Disputed FRE 403 Close-up [8] 60 Photo – Malyna – Agreed Disputed FRE 403 [9] Close-up of MT [10] 61 Photo Malyna in front Agreed Disputed FRE 403 11 of Henredon sign 12 62 Photo – Malyna – Agreed Disputed FRE 403 13 Hiking with 3 others 14 63 Photo Malyna hiking Agreed Disputed FRE 403 on trail [15] 64 Photo Malyna on trail Agreed Disputed FRE 403 [16] above lake [17] 65 Photo Malyna – Agreed Disputed FRE 403 18 mechanical bull riding [19] 66 Photo Malyna skiing Agreed Disputed FRE 403 [20] at top of slope [21] 67 Photo Malyna – in Agreed Disputed FRE 403 22 flowers 23 68 Photo Malyna with Agreed Disputed FRE 403 24 dolphin 25 69 Photo Malyna-Jim Agreed Disputed FRE 403 hiking at Multnomah 26 Falls [27] 70 Photo snowboarding Agreed Disputed FRE 403 28 at top of mountain [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 71 Photo car racing Agreed Disputed FRE 403 3 72 Photo Snowboarding Agreed Disputed FRE 403 4 73 Photo on elephant in Agreed Disputed FRE 403 Cambodia [5] 6 74 Photo Malyna in Agreed Disputed FRE 403 White Dress; Space 7 Needle in view 8 75 Photo Malyna with Agreed Disputed FRE 403 boys in car [9] 10 76 Photo Tiev family in Agreed Disputed FRE 403 front of christmas tree [11] 77 Photo Kids with Agreed Disputed FRE 403 12 Aunt-Uncle [13] 78 Photo Sister Agreed Disputed FRE 403 14 Channary Tiev with family in Cambodia [15] 79 Photo sons on play Agreed Disputed FRE 403 [16] scooter [17] 80 Family photo (J, T, Agreed Disputed FRE 403 18 Kids and A-U) 19 81 Photo Malyna hiking Agreed Disputed FRE 403 Multnomah Falls [20] 21 82 Photo Wedding in Agreed Disputed FRE 403 Cambodia 1 [22] 83 Photo Wedding in Agreed Disputed FRE 403 23 Cambodia 2 [24] 84 Photo Wedding in Agreed Disputed FRE 403 25 Cambodia 3 26 85 Photo Wedding in Agreed Disputed FRE 403 Cambodia 4 [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 86 Photo US Agreed Disputed FRE 403 Naturalization 3 certificate 4 87 Photo Malyna at work Agreed Disputed FRE 403 5 with massager (family on screen) [6] 88 Photo Boeing PT (1) Agreed Disputed FRE 403 [7] 89 Photo Boeing PT (2) Agreed Disputed FRE 403 [8] 90 Photo Boeing PT (3) Agreed Disputed FRE 403 [9] 10 91 Photo using massage Agreed Disputed FRE 403 gun at work [11] 92 Photo using neck unit Agreed Disputed FRE 403 12 in work chair [13] 93 Photo spinal massage Agreed Disputed FRE 403 14 unit 15 94 Photo using massage Agreed Disputed FRE 403 unit - mid back at [16] work [17] 95 Photo using Agreed Disputed FRE 403 18 Theracane massager at work [19] 96 Life Expectancy table Agreed Disputed FRE 403 [20] (WPI) [21] 97 The Standard PIP Agreed Disputed FRE 403 22 Payment log FRE 402 23 98 Claims File excerpts Agreed Disputed FRE 403 24 (TSFIC_000001-63; FRE 402 1099-1103; 1143) [25] 99 Photo Aung-Uncle Agreed Agreed 26 with Jake as Baby [27] 100 1/24/23 Ack Rep - Agreed Disputed FRE 403 28 Waive PIP [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 101 1/23/23 - Hamilton Agreed Disputed FRE 403 Letter - Tiev FRE 802 3 FRE 602 FRE 402 [4] 5 102 2/21/23 Mitsuyoshi - Agreed Disputed FRE 408 fully compensated FRE 802 6 email FRE 602 FRE 402 [7] 103 3/1/23 Refusal to Arb Agreed Disputed FRE 802 [8] - Split Mediation FRE 602 9 FRE 403 10 104 3/2/23 Mediation Agreed Disputed FRE 802 payment - Beasley FRE 602 [11] provided FRE 403 [12] 105 3/6/23 Agreement to Agreed Disputed FRE 802 13 pay for mediation FRE 602 FRE 403 [14] 15 106 Chart Note 11/19/18 Agreed Disputed FRE 802 (Burdine) FRE 602 16 FRE 403 17 107 Chart Note - 3/7/19 Agreed Disputed FRE 802 (Burdine) FRE 702 [18] 19 108 Chart Note - 3/9/19 Agreed Disputed FRE 802 standing desk FRE 702 20 accommodation (Burdine) [21] 22 109 Chart Note - 11/12/19 Agreed Disputed FRE 802 (Sieberson for FRE 702 23 Burdine) 24 110 Medical Cost Agreed Disputed FRE 802 25 Summary FRE 403 ($19,055.12) [26] 111 EvergreenHealth FRE 802 27 Xrays of C-Spine FRE 702 dated 5.9.23 [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 N/A Demonstrative: Because this Medial Branch Block exhibit is 3 Syringe designated as [4] demonstrati 5 ve, and will presumably 6 not be offered into [7] evidence, no 8 objection to this exhibit [9] is necessary 10 at this time. Defendant 11 reserves the right to [12] assert any 13 objections to the content 14 or use of 15 said exhibit at the time 16 of trial. 17 N/A Demonstrative: Because this Trigger Point exhibit is [18] Injection Syringe designated 19 as demonstrati [20] ve, and will 21 presumably not be 22 offered into evidence, no [23] objection to 24 this exhibit is necessary 25 at this time. 26 Defendant reserves the 27 right to assert any [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 objections to the content 3 or use of said exhibit [4] at the time 5 of trial. 6 N/A Demonstrative: Because this Imaging exhibit is [7] designated 8 as demonstrati 9 ve, and will presumably [10] not be 11 offered into evidence, no 12 objection to 13 this exhibit is necessary 14 at this time. Defendant [15] reserves the 16 right to assert any 17 objections to the content [18] or use of 19 said exhibit at the time [20] of trial. [22] (b) Defendant’s Exhibits [23] 24 Ex. # Description Authenticity Admissibility Objection Admitted 25 A-1 Policy 995058083 Admitted Disputed FRE 802 203 1 [26] A-2 Redacted Claim File Admitted Disputed FRE 802 [27] FRE 402 28 FRE 403 [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 Also disputed by 3 Defendants (Exh. 97) [4] 5 A-3 Photos of Tiev Admitted Admitted so Vehicle long as all 6 vehicle photos and property [7] damages cost 8 records are also admitted; 9 otherwise, disputed (Exh. [10] 3-10) [11] A-4 Clinical Notes from Admitted Disputed and ER 802 12 Dr. Ramona Burdine already ER 702 disputed by [13] Defendants 14 (Exh. 12-16) 15 A-5 Clinical Notes from Admitted Same as A-4 Same as ADr. Nha Ke Ton 4 [16] A-6 Chart Notes from Admitted Disputed Same as A17 Chiropractor Jimmy 4; not what 18 Greer it is purported [19] to be – is 20 4/12/18 Burdine 21 chart note 22 A-7 Clinical Notes for Admitted Disputed Objected to 23 Trigger Point by Def’s Injections already 24 (Exh. 18); FRE 802, [26] A-8 Clinical Notes from Admitted Disputed Incomplete 27 Medical Assistant record; Alix M. Koppisch disputed [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 already by Def’s (Exh. 3 18); FRE 802, 702 [4] 5 A-9 Discharge Admitted Disputed Incomplete Evaluation from record, 6 Chris insurance Soterakopoulos, PT and [7] collateral 8 information ; FRE 802, 9 702 [10] A-10 Chart Note from Dr. Admitted Disputed Incomplete 11 Ramona Burdine record; FRE 802, 12 702 13 A-11 Underlying Admitted Disputed Irrelevant; 14 Complaint contains police 15 report Def’s have [16] objected to 17 (Exh. 1); FRE 40218 403; FRE 802, 702 [19] 20 A-12 Underlying Answer Admitted Disputed FRE 402403; FRE 21 802, 702; Irrelevant [22] 23 A-13 Underlying Admitted Disputed Irrelevant Statement of 24 Arbitrability 25 A-14 Chart Notes from Admitted Disputed Already 2nd Trigger Point objected to [26] Injection by Def 27 (Exh. 21); incomplete [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 record; FRE 802, 3 702 4 A-15 Arbitration Award Admitted Disputed Wholly 5 irrelevant; FRE 4026 403; SCCAR [7] 7.2-7.3; 8 MIL 9 A-16 Dr. Bays’ IME Admitted Disputed FRE 802, Report 804; [10] Plaintiff’s 11 IME report objected to 12 by Def’s also (Exh.’s [13] 23-26) [14] NA Illustrative – Claims Agreed Disputed FRE 403; 15 Handling Timeline because this exhibit [16] is attorney17 created and illustrative 18 only, and will [19] presumably 20 not be offered into 21 evidence, 22 no objection is 23 necessary at this time, [24] but if 25 offered, this exhibit 26 will be objected to, [27] and all 28 other [29] Ex. # Description Authenticity Admissibility Objection Admitted [1] 2 objections are 3 reserved, as Defendants [4] have done 5 with Plaintiff’s 6 demonstrati ve exhibits [7] (N/A – 8 following Exh.110) [9] NA Illustrative – Agreed Disputed Same as [10] Medical Treatment N/A above 11 Timeline 12 NA Illustrative – Policy Language [13] Powerpoint [15] ACTION BY THE COURT [16] (a) This case is scheduled for a bench trial on October 21, 2024, at 9:00 AM. [17] (b) Trial briefs shall be filed by October 7, 2024, and a Pretrial Conference is scheduled [18] for October 14, 2024. [19] This order has been approved by the parties as evidenced by the signatures of their counsel. [20] This order shall control the subsequent course of the action unless modified by a subsequent order. [21] This order shall not be amended except by order of the Court pursuant to agreement of the parties or [22] to prevent manifest injustice. [23] 24 DATED this 15th day of October, 2024. [25] 26 A 27 HON. JAMAL N. WHITEHEAD UNITED STATES DISTRICT JUDGE 28 /// [29] FORM APPROVED [1] s/ Bradford J. Fulton [2] Bradford J. Fulton, WSBA #18036 3 Matthew D. Quick, WSBA #47455 QUICK | LAW GROUP, PLLC 4 1621 114th Avenue SE, Suite 228 5 Bellevue, WA 98004 Phone (425) 576-8150/Fax (206)694-2587 6 Brad@QuickLawGroupPLLC.com Matt@QuickLawGroupPLLC.com [7] Attorneys for Plaintiffs [9] s/ Ellen McGraw [10] Eric J. Neal, WSBA #31863 11 Ellen McGraw, WSBA #60240 LETHER LAW GROUP 12 1848 Westlake Ave N., Suite 100 13 Seattle, WA 98109 P: 206-467-5444 / F: 206-467-5544 14 eneal@letherlaw.com emcgraw@letherlaw.com [15] Attorneys for Defendant The Standard Fire Insurance Company [29] CERTIFICATE OF SERVICE [1] I hereby certify that on the date below written, I electronically filed the foregoing with the [2] Clerk of the Court using the Court’s CM/ECF system and caused to be served a true and correct copy 3 of the same to the parties of record below: 4 Eric J. Neal, WSBA #31863 5 Ellen McGraw, WSBA #60240 LETHER LAW GROUP 6 1848 Westlake Ave N., Suite 100 Seattle, WA 98109 [7] P: 206-467-5444 / F: 206-467-5544 8 eneal@letherlaw.com; emcgraw@letherlaw.com Attorneys for The Standard Fire Insurance Company [10] Dated this 30th day of September, 2024, at Bellevue, Washington. [11] s/ Shannon Liberio 12 Shannon Liberio, Paralegal 13 Quick | Law Group, PLLC 1621 114th Avenue SE, Suite 228 14 Bellevue, Washington 98004 Phone: (425) 576-8150