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Shaffer v. McFadden1/18/2005
A Washington resident traveled to British Columbia, Canada to have laser assisted in situ keratomileusis (LASIK) eye surgery performed. When the patient suffered complications from the procedure, he sued the Canadian surgeon in King County Superior Court. The surgeon moved for summary judgment for lack of personal jurisdiction and improper venue based on a forum selection clause. The trial court granted the surgeon's motion. We reverse and remand for further proceedings because there are issues of material fact as to whether the forum selection clause is enforceable and whether the surgeon is subject to personal jurisdiction in Washington.
FACTS
Robert Shaffer, a Washington resident, traveled to Canada to have LASIK eye surgery performed at Lexington Eye Institute. Shaffer received a pre-operative evaluation at Focus Eye Care, Inc. in Bellevue, Washington by Dr. Alan Israel. Shaffer then scheduled his LASIK procedure and traveled to Canada for the procedure. When Shaffer arrived at Lexington, Dr. Murray McFadden, a Canadian resident, reviewed Shaffer's medical charts and spoke with Shaffer about the condition of his eyes. Before the procedure, Shaffer signed an informed consent booklet, which included a forum selection clause. McFadden performed the procedure, and Shaffer returned to his home in Washington.
Shaffer suffered adverse consequences from the procedure and sued Lexington and McFadden in King County Superior Court. The court entered default judgment against Lexington. McFadden moved for summary judgment for lack of personal jurisdiction and improper venue based on the forum selection clause. The trial court granted McFadden's motion, and Shaffer moved for reconsideration. The trial court denied Shaffer's motion for reconsideration, and Shaffer filed a timely notice of appeal.
STANDARD OF REVIEW
We review a trial court's order granting summary judgment de novo. Van Noy v. State Farm Mut. Auto. Ins. Co., 142 Wn.2d 784, 790, 16 P.3d 574 (2001).
ANALYSIS
We first address whether McFadden can enforce the forum selection clause. Forum selection clauses are enforceable unless they are unreasonable and unjust. Voicelink Data Services, Inc. v. Datapulse, Inc., 86 Wn. App. 612, 617, 937 P.2d 1158 (1997). If a plaintiff signed a valid forum selection clause choosing a forum other than Washington, dismissal under CR 12(b)(3) is proper. Voicelink, 86 Wn. App. at 617. Here, Shaffer signed the following forum selection clause:
Governing Law:
I hereby agree that the relationship and the resolution of any and all disputes arising from the treatment or from this Surgical Consent Form between myself and Murray McFadden, M.D., Lexington Laser Vision, L.P. and Lexington Management, L.P. shall be governed by and construed in accordance with the laws of the Province of British Columbia.
Jurisdiction:
I hereby acknowledge that the treatment will be performed in the Province of British Columbia and the Courts of the Province of British Columbia shall have sole jurisdiction to entertain any complaint, demand, claim or cause of action, whether based on alleged breach of contract or alleged negligence arising out of the treatment. I hereby agree that if I commence any such legal proceedings they will be only in the Courts of the Province of British Columbia, and I hereby irrevocably submit to the exclusive jurisdiction of the Courts of the Province of British Columbia.
Shaffer argues that McFadden cannot enforce the forum selection clause because he was only a third-party beneficiary to the contract between Shaffer and Lexington. 'A third-party beneficiary con
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