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Mahler v. State Farm: Adventures in Windmill Tilting

By William S. Bailey

Contrary to the apparent public opinion of trial lawyers, there is a strong component of windmill tilting, a willingness to fight for principle to protect others with no realistic expectation of compensation. That deep seated passion for justice is alive and well in our profession, an important ingredient in who we are. So is the willingness to help one another serve our clients. I have not encountered another profession where members help each other as consistently as within the plaintiff trial bar. Over the years, I have been the beneficiary of hundreds of hours of good advice from other trial lawyers and hope that I have reciprocated when others have sought me out. Both of these qualities, the pursuit of justice and the desire to help one another, are defining characteristics of the Mahler litigation.

In some sense, the genesis for the Mahler case was at least in part from a Tom Chambers WSTLA Roundtable presentation in the Smith Tower over five years ago. The subject was handling soft tissue auto cases and Tom's underlying philosophical theme was, "Don't just go through the motions of processing claims and turning files. View each obstruction of fairness by an insurance company as an opportunity to do the right thing and protect your client." What struck me more than anything else was the conviction behind Tom's words. It was obvious that he really practiced what he preached.

As a 1960's political activist in college with a strong distrust of large institutions, Tom Chambers' pep talk found a receptive audience in me. I filed away this experience, possessed with a greater awareness than I had before going to the roundtable that day. But in that my practice does not emphasize soft tissue auto injury cases, an opportunity to take up the matter of principle for the good of the order in this setting did not come for several years.

When Elaine Mahler and her husband, Jack, came in to see me in the middle of February, 1994, I would not have predicted that this case would ultimately end up in the Washington State Supreme Court with law reform implications. On January 4, 1993 , Elaine Mahler was driving her 1989 Honda Accord in Bellevue , Washington . Dr. George Szucs pulled out of the University Bookstore Parking Garage and struck Elaine's car without warning. She was thrown forward, striking her right forehead on the rear-view mirror, her chest on the steering wheel and her right knee on the dashboard. She suffered neck, low back and hip pain, as well as persistent headaches.

Elaine and Jack Mahler had been insured with State Farm for years and had never been in any accidents or made any claims. They continued to send in their premiums to State Farm year after year with the expectation that if either of them were ever hurt, their company could be counted on to be a "good neighbor" and protect them. Elaine and Jack Mahler were totally unprepared for the aggressive, hostile way in which their own insurance company came after them following this accident. As Ms. Mahler commented repeatedly throughout the case, "I can't believe my own company is doing this to me.