Yesterday, Division II of the Washington Court of Appeals issued its decision in Hendrickson v. Tender Care Animal Hospital. This case arose when the Plaintiff took her Golden Retriever to the Defendant for neutering and insertion of a microchip. The dog died, and the Plaintiff brought claims of negligent misrepresentation, lack of informed consent, professional negligence, reckless breach of bailment contract, and emotional damages.
Of note is the fact that the Appellate Court upheld the dismissal of the emotional distress claims on the basis that “no Washington court has held that such causes of action exist in the context of loss of a pet.” They went so far as to say “Washington law is clear that a pet owner has no right to emotional distress damages or damages for loss of human- animal bond based on the negligent death or injury to a pet.”
A couple of months ago, I had an out of state attorney lecture me about my “lack of awareness” that courts are now awarding emotional distress damages for the loss of a pet. My response? I was very aware, but I practice in Washington, where that is clearly not the case. The other attorney then wisely agreed to settle.
This case has implications beyond the animal law context, though. The other issue of note is the confusion still surrounding the independent duty doctrine (formerly known as the economic loss rule) in Washington. When I first started practicing, it was fairly common to bring negligent misrepresentation claims when a seller did not disclose problems in real estate sales. That all changed with the Washington Supreme Court’s decision in Alejandre v. Bull, 159 Wn.2d 674. (2007). In that case, the Court held that tort remedies (such as negligent misrepresentation) were not available in actions that were based on economic losses from breach of contracts. Alejandre was a real estate sale misrepresentation case.
That bright line rule hardly seemed fair, and since the Alejandre decision, various “refinements” have been made by the courts. In a case following Alejandre, Eastwood v. Horse Harbor Fund, Inc. 170 Wn.2d 380, the court changed the name of the economic loss rule to the independent duty doctrine because the previous name “gives the impression that this is a rule of general application and any time there is an economic loss, there can never be recovery in tort.” The court held that instead of an absolute bar, the IDD requires the courts to analyze whether there was a breach of a tort duty independent of the terms of the contract.
What was really striking about the Eastwood decision is that the Supreme Court held that lower courts were not to apply the doctrine to tort remedies in various types of contract cases “unless and until this court has, based upon consideration of common sense, justice, policy and precedent, decided otherwise.” In other words, the Supreme Court held that it was up to them to analyze various types of contracts and torts, as the cases came before them, to determine whether or not the IDD applied.
In the Hendrickson case, the court reversed the trial court’s dismissal of the tort claims, and remanded back to the trial court. The reason? “Because our Supreme Court has not specifically approved of the applying of the independent duty doctrine to cases involving veterinary care liability or the torts at issue here.” But what is the lower court supposed to do, in light of the Supreme Court’s admonition that it is up to that court and that court alone to decide whether the IDD applies? I suspect that what the court was really doing was issuing an invitation for Adam Karp, the very able attorney for Ms. Hendrickson, to appeal this decision up to the Washington Supreme Court, who will then decide whether the IDD applies in this context or not.
Sheer confusion. This puts parties in lawsuits involving contracts in the position of always having to appeal all the way to the Supreme Court if that court has not yet made a decision regarding that type of tort in the context of that type of contract. A virtual gold mine for attorneys, but not so good for the clients involved.