REI appeals Monika's case

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Wondering if someone with personal injury/product liability law can chime in on this case. Why wasn't the sub contractor sued in addition to REI?

The sub contractor resides in a foreign country. It's extremely complicated and difficult to bring actions against a foreign entity

 I thought the general idea with these cases was to sue everyone you can possibly think of and let the companies figure out who's going to cut the check.

Monika wasn't out to get rich or point fingers. All she wanted was fair reimbursement for the money that came out of her savings to fix the problems that others caused her. Mistakes happen. She knew that. She just assumed that REI would be on her side and would treat her as an unfortunate victim. She was wrong, sadly.

Here are some pictures of the bike failure that REI attempted to attribute to poor maintenance:





And here's a picture of what the accident did to her.



That last image hurts to see, and I'm hesitant to post it. But I want those who are interested to know the severity of her accident. And to also know how incredible she was at putting herself back together:

I am an attorney and a former bicycle framebuilder (now a hobby).  Some of these issues lie outside the sweet spot of my legal expertise, but I'll offer these comments:

1.  I highly doubt that the decision to appeal is in REI's control.  It is more likely in the control of REI's product liability insurance carrier.  The policy likely provides that the carrier (who is ultimately on the hook to pay) controls all decisions re settlement and litigation.  I've never heard of a PL policy that gives control over such matters to the insured.  Such a rare provision might exist in some rare policy, but I've never seen one nor have I heard of one.  So, I will assume that REI has no control over the decision to appeal.

2.  I have quickly read through the opinion issued in Feb by the Court of Appeals, Division I.  The fundamental issue is purely legal and involves the tension between the Washington Products Liability Act (WPLA) and comparative fault provisions of RCW Chapter 4.22 (sometimes called the "Tort Reform Act").

3.  The WPLA generally imposes strict liability on the manufacturer of a defective product, but holds a mere "product seller" (e.g., a mom and pop bicycle shop) to liability only for negligence, breach of express warranty or intentional misrepresentation.  However, the WPLA also provides that, in limited circumstances, a the liability standard of a manufacturer may be imposed on a seller "where the product was marketed under a trade name or brand name of the product seller.”  This private labeler liability appears to apply to REI’s Novara branded bicycle products.

4.  Where more than one party has contributed to the injury suffered by the plaintiff, under the comparative fault provisions of RCW Chapter 4.22 one of the several liable parties can “point the finger” at the other parties by attributing a percentage of fault to them, thus limiting the finger pointer's liability.  (I’m simplifying things here, so tort experts please forgive me.)  In this case, the manufacturer, Aprebic Industry Company, Ltd., was not named in Monika’s action and was thus an “empty chair.”  (I will assume that Aprebic was not named because Monika’s attorneys did not want to get stuck trying to chase assets in Asia.)   So, the legal issue is whether REI can attribute all or a large percentage of fault to Aprebic and thus avoid liability or some portion of it.  

5.  Division I ruled in favor of Monika, rejecting REI’s argument that the CF provisions of RCW Ch. 22 trumped the WPLA imposition of manufacturer liability on private label sellers.  Division I reasoned, among other things, that allowing REI to allocate fault would have the effect of abrogating the private labeler liability of the WPLC.  Division I’s opinion is very well reasoned and well written.  While it is difficult to forecast what WA Supreme Court will do, I am optimistic that Division I’s ruling will be affirmed.

6.  If people are going to get angry at someone, I suggest you direct your ire against the insurance industry which heavily lobbied the WA legislature to pass RCW 4.22 and those lawmakers who are shills for the industry.  As I state above, REI likely has no control over whether or not to appeal.  The insurance industry continues its efforts to avoid liability by, for example, blaming soaring medical costs on insurance payouts to victims of medical malpractice and their attorneys, when, in fact, such costs are only a minor cause of the staggering increase in medical costs.  This is America, where the powerful blame the victim and obscures the truth.  I ran into Monika a few times in the backcountry and shared a ride with her from the WA Pass hairpin to BL TH a couple years ago, but I did not really know her.  I imagine that, as a thoughtful person and health care provider, she had formed opinions about the insurance industry, its shameless propagandist campaigns and undue influence on our lawmakers.  But for the insurance industry's grip on the WA legislature, this case would have been resolved in favor of Monika a long time ago, before her untimely death.  Getting angry is fine, but one ought to direct the anger to the correct place.

Thanks for the insights Steve. I did not know Monika but as a 30yr+ REI member I have certainly sent emails to the in-boxes mentioned above in this thread, expressing my disappointment. From what I recall these were not punitive lawsuits and simply sought to recover medical costs and lost wages.

There are no punitive damages in WA (except for some modest exemplary damages provided by some statutes, which don't apply here), so that would be correct.

REI's products liability insurance carrier is appealing not because it seeks to deny a recovery to Monika's estate, but because it wants to make law which will favor it in the future by denying recovery to future victims like Monika. REI's carrier's insurance company's law firm is very expensive, and so I'll will assume that it could have settled with Monika for a fraction of the cost of the litigation and appeals.

 If people are going to get angry at someone, I suggest you direct your ire to the insurance industry which heavily lobbied the legislature to pass RCW 4.22, and those lawmakers who are shills for the industry.  As I state above, REI likely has no control over whether or not to appeal.  

Sure, no doubt that insurance issues may be involved here.  But REI should not cower behind that as a reason to screw it's "members"/customers.

As a business, REI has a right to operate in its own best interest.  As a cooperative, it also ought to operate in its member's best interest.  As either, it should operate and act morally.

REI ought to be able to say enough is enough and settle.  If it wants to settle monetarily with Monica and her estate and eat the cost that would be the moral thing to do, insurance be damned.  Let their insurance company continue to fight the legal crap for as long as they want.

If the PR of this should negatively drive REI's profits into the dirt, would REI be obliged to remain a partner with its insurance company in such a fight?  Is REI now an insurance company?

REI had another company manufacture a product for them under an REI brand.  They need to vet that companies quality control and should also either direct the specifications for performance/safety etc. or accept the quality controls, standards and specifications, and then stand by THEIR product.  If they cannot do so they should get out of that business.

If their insurance company drops them because REI will not allow them to continue pursuing legal loopholes, then that will in itself be a big marketing failure for REI.  If it costs REI more money to secure liability insurance, then so be it, that is part of doing business and part of securing sound products, properly, truthfully and fairly marketing and selling those products to the public.

Again, I think this should be brought to the attention of the media.  That will make REI act on behalf of its member rather than its insurer.

Alan