trend but that is an insufficient reason to
follow it. Washington does not shy away
from providing greater protection than
other states. See York v. Wahkiakum,
School Dist, 163 Wn.2d 297, 303 (2008).
A solid number of states reject that standard, among them Betts v. Allstate Ins.
Co, 154 Cal. App. 688,
697 (1994), and Gore v.
Rains & Block, 189 Mich.
App. 729, 740 (1991).
The standard Justice
Stephens applied is consistent with the breach
of other “special relationships” because, as
not even Justice Wiggins contests, it is
well established that the attorney-client
relationship is a special relationship.
Schmidt, 181 Wn.2d at 688. Under this
standard the plaintiff must prove general damages but they flow naturally, no
differently than in insurance bad faith
and medical malpractice, without the
additional burdens imposed by Justice
The parties and the court analo-
gized general damages in malpractice
to general damages in insurance bad
faith. Justice Wiggins' rejected holding
attorneys to the same level of account-
ability as insurance adjusters, saying
“an insurer must deal fairly with an
insured, giving equal consideration in
all matters to the insured's interests.” Id.
at 677. But so must attorneys. See Arden
v. Forsberg & Umlauf, 193 Wn. App.
731, 743 (2016). He also distinguished
bad faith law, saying the source of an
insurer’s duty is statutory whereas an
attorney’s is common law. That misses
the point: ( 1) insurers also owe a common law duty, the breach of which gives
rise to general damages, and ( 2) it does
not matter how the special relationship
arises. Every one has a unique genesis.
The issue is having breached the special
relationship, what damages are available.
Once a relationship is determined to be
special, Washington courts uniformly
allow general damages for its breach.
All except, under Justice Wiggins’
opinion, when an attorney commits the
breach. Finally, Justice Wiggins rejected
comparing general damages in bad faith
to malpractice, saying it "places the cart
before the horse in that we have never
before addressed the availability of
emotional distress damages for insur-
ance bad faith…” Schmidt, 181 Wn.2d at
676. Two longstanding Court of Appeals
cases recognize them and more implied-
ly do. Their availability is woven into
the law. Thomas V. Harris, Washington
Insurance Law, § 7.05 (3d ed. 2012).
Unless Justice Wiggins believes the
full court would reject
general damages in bad
faith cases, offering that
as a reason to reject
them in malpractice is,
in the words of Justice
Finally, Justice Wig-
gins rejected general
damages despite their availability in
insurance bad faith because “importing
insurance bad faith standards… will
only cause confusion.” Neither Ms.
Schmidt nor Justice Stephens argued
that bad faith law should be "imported."
They offered the uncontroversial fact
that the attorney-client relationship is
no less special than any other special
relationship, attorneys are due no special
immunity for their breach of it, and it is
inconsistent to create a higher standard
for general damages in protection of
only attorneys. Indeed, the attorney-cli-
ent relationship is perhaps the most
special of all special relationships and to
suggest otherwise, as Justice Stephens
explained, “erodes the trust that is
The attorney’s uninsured malpractice set in
motion two jury trials, three trips to Division II,
and two trips to the Supreme Court....