Advertising

Friday, July 16, 2004 - Page updated at 12:00 AM

E-mail article     Print

Crash victim beats the odds in high court

Seattle Times consumer-affairs reporter

Related

A Seattle woman's 10-year battle for justice was rewarded yesterday by the state's highest court, which ruled she deserves a chance to prove that her insurance company was wrong to deny her benefits in connection with a car accident that wasn't her fault.

One of the most remarkable aspects is that Mary Mulcahy, a 60-year-old Irish national who lacks a college degree, argued her own case and beat a veteran insurance defense attorney. The high court's unanimous ruling — which overturned two lower-court decisions — sends her case back for trial with clear instructions that Mulcahy's case deserves attention.

"When I started I didn't know what a motion was," recalled Mulcahy, a small, white-haired woman who still speaks with a bit of a brogue. For the most part, she recounted yesterday, she could not interest lawyers in her case because they were unwilling to take it on a contingency basis and she couldn't afford to pay them a retainer.

The case is rooted in a car accident that occurred in Vancouver, B.C., in May 1994, as Mulcahy was making her way back to Seattle. A driver "jack-rabbited" in front of her car from a side street, causing her to swerve at the last moment to avoid hitting him squarely.

Mulcahy nonetheless was hospitalized and diagnosed with a broken sternum. "I was in absolute pain," she recalled.

More than five years after the collision, Mulcahy entered into mediation with the other driver's insurance company. She agreed to settle for a total of $375,000 Canadian.

JOHN LOK / THE SEATTLE TIMES
Mary Mulcahy has amassed 40 legal binders thick with filings during her 10-year legal battle in Canadian and Washington state courts. Yesterday she won an important round in Washington's Supreme Court.
Back in 1986, however, her carrier, Farmers Insurance, had filed what's known as a "power of attorney and undertaking" that allowed it to limit its liability in Canadian insurance claims. As a result, Farmers agreed to compensate customers like Mulcahy when they are involved in an accident in B.C. according to the same terms that B.C. residents are entitled to. So Mulcahy's payoff was reduced by $150,000.

Confident that Farmers was wrong to deny her that money, Mulcahy filed lawsuits in British Columbia and also in Washington state. Her complaint in King County Superior Court alleged breach of her insurance contract, bad faith and violations of the state's Consumer Protection Act.

By last January, when she argued before the justices in Olympia, Mulcahy had amassed 40 legal binders thick with filings made in Canadian and Washington state courts. Mulcahy is winning so far in the Canadian courts, though the case is still pending. Her victory before the state Supreme Court is her most stunning to date.

Mulcahy says she still suffers pain as a result of the accident — a collision the high court noted was entirely the other driver's fault.

As a result of deteriorating health and financial hardships that she claims resulted from Farmers' failure to provide benefits, Mulcahy was forced over a period of months to live in her car on Seattle streets and take showers at a public pool. She also rented a storage locker for her possessions — and her legal binders.

During the course of her self-taught legal education, Mulcahy took advantage of a free law clinic in Seattle — until she got a call from the King County Bar Association, which operated the clinic, asking her to quit coming because she was monopolizing resources, Mulcahy said.

Of yesterday's win, she said, "I knew that Farmers were obligated to pay, and all I wanted was some court to say that's the case," she said. "And I had to go as far as the Supreme Court here to say 'yes.' "

In a brief interview yesterday, Sid Snyder, the attorney who argued for Farmers before the state Supreme Court, said the case centered on an "obscure issue" involving the effect of its power-of-attorney filing in Canada. He was otherwise at a temporary loss for words, saying he was still "trying to digest" the decision.

Mulcahy's saga is not over, because there is no guarantee she will win at trial. At the same time, some lawyers believe the justices sent a clear message.

After scanning yesterday's ruling, Karen Koehler, a former insurance defense lawyer who now represents plaintiffs against carriers, said the opinion provides "very clear guidance for the lower court to look at this issue again."

She noted that the justices criticized the appeals and lower courts for applying the wrong standard in granting Farmers' motion for summary judgment. Essentially, the new ruling makes it easier for plaintiffs to make "bad faith" claims against carriers.

Summary judgment is not appropriate in such cases, the high court wrote, when "reasonable minds could differ that the insurer's conduct was reasonable."

Between the lines, Koehler added, the court's language indicates "they are applauding this woman and telling her 'good job!' and finally telling Farmers Insurance company, 'You have messed up. Take care of this.' Whether Farmers chooses to listen or not, that's another story," Koehler said.

She described Mulcahy's story as "almost unheard-of," noting that most successful pro se cases involve convicts with time on their hands. She added, "This is a very committed woman who believes she has been done wrong by her insurance company. I have no doubt that she's going to see this through to the end."

Mulcahy now resides in government-subsidized housing in Ballard and is subsisting on disability payments. She's hoping for a settlement but said she will prepare for trial if necessary.

Her future beyond that is unclear. One avenue she will consider: "Maybe I'll study law. Who knows?"

Peter Lewis: 206-464-2217 or plewis@seattletimes.com

Copyright © 2004 The Seattle Times Company

advertising


Get home delivery today!

Advertising

Advertising