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Washington State Physicians Insurance Exchange & Association v. Fisons Corp.9/16/1993
al pain and suffering are not recoverable under either the Consumer Protection Act or the product liability act.
Because we conclude that the facts of this case do not support a cause of action under the PLA for the doctor's pain and suffering damages, we need not address the drug company's other arguments as to why the PLA should not apply.
Issue Three.
Conclusion. The Washington product liability act (RCW 7.72) created a single cause of action for product-related harms, and supplants previously existing common law remedies, including common law actions for negligence.
Dr. Klicpera argues that if a product liability claim under the PLA is disallowed by this court, we should then allow a negligence claim based upon the drug company's failure to warn of its product's dangers. We decline to do so. After the enactment of the PLA, such a claim is not viable in a products case.
As we explained in Washington Water Power Co. v. Graybar Elec. Co., 112 Wash. 2d 847, 850-55, 860, 774 P.2d 1199, 779 P.2d 697 (1989), the PLA preempts traditional common law remedies for product-related harms. A claim previously based on negligence is within the definition of a
product liability claim. Since this present cause of action is predicated upon a failure to warn by a product manufacturer, any negligence cause of action therefor is now preempted by the PLA. Therefore, this product liability claim cannot be maintained on a common law negligence theory.
The PLA does allow claimants to bring a Consumer Protection Act claim since that cause of action has been specifically exempted from the preemptive effect of the product liability act.
Issue Four.
Conclusion. The trial court did not err in declining to allow WSPIE's Consumer Protection Act claim to be submitted to the jury.
Dr. Klicpera's insurer, WSPIE, argues that the $500,000 it paid to the Pollocks in settlement of the malpractice claim should have been recoverable from the drug company under the Consumer Protection Act. The trial court did allow WSPIE's fraud cause of action against the drug company to go to the jury. However, the jury found in favor of the defendant drug company on this issue. The trial court declined to allow WSPIE's Consumer Protection Act claim to be submitted to the jury. We agree.
Such an action is simply an indirect attempt to obtain contribution from the drug company. WSPIE, on behalf of Dr. Klicpera, paid $500,000 in settlement of the Pollocks' claim for malpractice. A hearing determined that settlement to be reasonable. Thereafter, Fisons settled with the Pollocks and that settlement was also determined to be reasonable. Hence, as a matter of law each party's potential contribution rights available under RCW 4.22.040 were extinguished.
RCW 4.22.060(2) provides in pertinent part:
A release . . . entered into by a claimant and a person liable discharges that person from all liability for contribution, . . .
After the drug company settled with the Pollocks, the court held a reasonableness hearing and ordered that "Dr. Klicpera's contribution/indemnity claims against Fisons are extinguished pursuant to RCW 4.22.060." WSPIE was acting on behalf of its insured and hence could have been subrogated to the rights of its insured. However, once Fisons settled, Dr. Klicpera's contribution rights for reimbursement for amounts paid to the Pollocks were extinguished. To allow the insurance company to bring a consumer protection
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