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Author Topic: REI appeals Monika's case  (Read 18565 times)
ryanl
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REI appeals Monika's case
« on: 05/17/11, 02:39 PM »

I just learned that REI is appealing the most recent ruling in Monika's case. 

For those who don't know, Monika was riding downtown in 2007 when the carbon fiber fork on her bike sheared off from the frame and caused her to face plant onto the pavement. Broken jaw, broken teeth, trauma to the brain. She was going about 5 mph on the sidewalk when it happened.  Forensic testing showed that the failure was due to a manufacturing defect. Monika had to pay for the test herself, but was never reimbursed by REI. (REI issued a recall based upon the test results.)
 
REI has denied responsibility, maintaining that the company who manufactured the fork is responsible, not REI, even though REI sub contracted that company and sold Monika the bike under REI's brand name, Navaro. REI even went so far as to suggest that Monika was to blame for the fork's failure because the bike wasn't clean. As though it was Monika's responsibility to notice a manufacturing defect. The superior court sided with Monika,  ruling that REI is responsible to Monika and that REI could pursue legal action against the manufacturing company if it wished. REI appealed, and the appellate court ruled in Monika's favor the day she died. And now REI is appealing again. Wasting the time and energy of Monika's lawyer (and friend) and family.

The whole thing makes me sick. REI never reimbursed Monika for any of her medical or dental expenses, nor for her lost wages. Monika never wanted to crucify REI. She just wanted compensation for her expenses and for not being able to work full time on account of her brain injury. (She managed to sleep only about 3 hours a night)

And yet Monika still managed to get by, despite all those expenses and side effects. She did better than get by. She managed to be happy.

REI boasts about being a co op. Pretty swell treatment of one its nicer members.

fuck REI.

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Gregg_C
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Re: REI appeals Monika's case
« Reply #1 on: 05/17/11, 03:11 PM »

Thanks for the update Ryan.  That is a kick in the guts to those of us that supported Monica through all this.  I  will no longer be shopping at REI until this case is completed.  Very disappionting to hear that they are appealling the case. 
« Last Edit: 05/17/11, 03:49 PM by Gregg_C » Logged
tabski
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Re: REI appeals Monika's case
« Reply #2 on: 05/17/11, 03:20 PM »

Who are the people making these decisions, and how can they live with themselves?

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Pete Alderson
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Re: REI appeals Monika's case
« Reply #3 on: 05/17/11, 03:26 PM »

ditto what Gregg said....thanks for the update Ryan.   thats shameful REI is appealing again.   I won't be shopping there anymore.    


Who are the people making these decisions, and how can they live with themselves?
http://www.rei.com/aboutrei/directors.html
maybe worth sending some mail to REI's board asking them that very question?
« Last Edit: 05/17/11, 03:29 PM by Pete A » Logged
James Wells
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Re: REI appeals Monika's case
« Reply #4 on: 05/17/11, 03:30 PM »

Sucks.  Perhaps there is a glimmer of hope that locally operated business will respond in a good way to customer comments.

REI
1-800-426-4840
http://www.rei.com/help/feedback/servicefb.html

They promise a reply by next business day.  I sent them a comment, will see if they reply.

« Last Edit: 05/17/11, 03:41 PM by James Wells » Logged
NMaddox
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Re: REI appeals Monika's case
« Reply #5 on: 05/17/11, 03:41 PM »

E-mail sent. 
Let's flood REI with a bounty of boycotting backcountry users.  Screw'em.
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"All humans realize they are loved when witnessing the dawn... Absolved by light we decide to go on." -Rufus Wainwright
ryanl
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Re: REI appeals Monika's case
« Reply #6 on: 05/17/11, 03:48 PM »

Thanks Pete for the link. Email sent.
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wooley12
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Re: REI appeals Monika's case
« Reply #7 on: 05/17/11, 03:59 PM »

Who are the people making these decisions, and how can they live with themselves?



"The people" is some jack wagon in REI legal who is doing his job and ensuring his job security by prolonging the case using all legal means. They will stop when his boss's boss sends a memo telling the legal dept. to settle because it's causing too much bad press and loss of revenue. Keep the emails flowing and remember to include the fact that you will not be buying from them until they act with morally and in a socially responsible manner.

BTW  @ryanl - Where are you getting your info?
« Last Edit: 05/17/11, 04:08 PM by wooley12 » Logged

The stem christie is a legitimate backcountry turn
kneel turner
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Re: REI appeals Monika's case
« Reply #8 on: 05/17/11, 04:07 PM »

Done.
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No, I'm not a telephone solicitor.  I ski with my heels free.
lernr
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Re: REI appeals Monika's case
« Reply #9 on: 05/17/11, 04:27 PM »

E-mail sent.

I feel that I need to get more details, but from what I read it seems that REI is definitely not living up to my expectations Sad

Ivo
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Randy Beaver
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Re: REI appeals Monika's case
« Reply #10 on: 05/17/11, 05:21 PM »

Much sympathy. From personal experience, suing a corporation seeking what looks, smells, tastes and feels like a common sense resolution and simple human compassion to laypeople can be a truly byzantine and maddening experience. It's designed that way so individuals will stop fighting due to disgust and weariness. I would urge you, or Monica's estate, to keep fighting this, both as a memorial act/testament to what sounds like her undeniable tenacity, as well as to ideally prevent it from happening to others. I settled a similarly dramatic case to early, and have regretted it ever since. /speech
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rnbfish
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Re: REI appeals Monika's case
« Reply #11 on: 05/17/11, 07:39 PM »

will send email and not shop there until issue is resolved in Monica's favor

clearly REI is off on this one
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cchapin
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Re: REI appeals Monika's case
« Reply #12 on: 05/17/11, 10:36 PM »

Another great example of Profits over People.

Absolutely disgusting.
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altasnob
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Re: REI appeals Monika's case
« Reply #13 on: 05/18/11, 07:13 AM »

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? Has the statute of limitations run for a second suit? 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. I'm assuming REI is more concerned with the precedent established by this case than the actual dollar amount of the settlement (a drop in the bucket for a large corporation). From a PR perspective, REI is an idiot for not settling early on before public sentiment turns against them (loss of revenue from pissed off customers is going to be greater than additional law suit pay outs based on this ruling).
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Alan Brunelle
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Re: REI appeals Monika's case
« Reply #14 on: 05/18/11, 08:07 AM »

I would argue, if the facts are true regarding them appealing, that this is a story that the local press should be alerted to.

If you get the Times and the local television news programs to highlight this case on the evening news my guess is that REI will snap to it quick enough.

Regarding why Monica did not sue all parties, maybe she did not have the resources to do so or know that was the path. 

Also, if the information stated is correct, REI subcontracted the manufacture of the item in question.  They have many avenues of getting compensated for their expense in this matter without resorting to a suit from REI against their manufacturer.  If that company makes money manufacturing their bike products, they should want to satisfy their customer and REI would have huge leverage in that case. 

I am generally disenchanted by REI in general.  It has stopped being a coop long ago.  Technically it can claim to be, but it is a big business (for that segment of the market) that uses the "coop" as a marketing tool.  The coop card/membership does far less for its customers than the info they get for marketing, etc.  The membership at REI is no different now than getting your club card at Safeway, etc.

What I particularly am disappointed about is, given the vast amount of floor space, they have become just another department store, moving gear in and out (such as complete removal of backcountry skis, boots, etc. in early April!) from the stores to make room for more seasonal goods.  No recognition that backcountry skiing in this local area continues well after the lift service areas close.  Heck you can't even buy touring gear, skins etc. at the stores in Redmond.  Sure, these items at those times of the year do not necessarily make them lots of money, but where is the service to the community?

When I buy, I do look at REI among other sources.  As a coop, you would think that there might be some advantage.  Usual the case is not.  As a local resource, one might expect to get some level of expertise.  My experience is usually not.

Prior to what I have heard on this thread, I have treated REI as any other purely commercial outlet.  My being a "member" does not make me want to spend more for an item there when I can get it cheaper elsewhere or get some level of important service or expertise elsewhere.  Reading this thread and learning of what Monica went through makes me even more cautious and I will avoid from now on. 
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Gregg_C
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Re: REI appeals Monika's case
« Reply #15 on: 05/18/11, 08:15 AM »

The only good thing about this--and it is really sad in itself-- is that Monika doesn't have to bear this news.  She would have taken this hard.   REI is showing itself to be a corporation that doesn't care about the individual.  Completely at odds with the founding principals that Anderson and his pals started with in the '30's. 

Monika's lawyer was 90% certain that REI would settle after the first decision.  Now that they have decided to contest that decision they have a responsibility to explain that reasoning to thier members.  I hope that others will demand some answers from them as well.
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Donski
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Re: REI appeals Monika's case
« Reply #16 on: 05/18/11, 08:15 AM »

REI is like the Wal-Mart of outdoor/sporting equipment stores.  Never really liked shopping at either, nor their customer service.
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Marcus
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Re: REI appeals Monika's case
« Reply #17 on: 05/18/11, 08:26 AM »

Pretty short-sighted decision on REI's part.  I sent my email -- thanks for letting us know Ryan.
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Gregg_C
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Re: REI appeals Monika's case
« Reply #18 on: 05/18/11, 08:27 AM »

Web Page for sending messages directly to the board.

http://www.rei.com/aboutrei/boardcontact.html
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ryanl
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Re: REI appeals Monika's case
« Reply #19 on: 05/18/11, 08:31 AM »

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:

Quote
« Last Edit: 05/18/11, 08:37 AM by ryanl » Logged
Big Steve
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Re: REI appeals Monika's case
« Reply #20 on: 05/18/11, 09:00 AM »

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.
« Last Edit: 05/18/11, 09:29 AM by Big Steve » Logged
dkoelle
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Re: REI appeals Monika's case
« Reply #21 on: 05/18/11, 09:17 AM »

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. 
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Big Steve
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Re: REI appeals Monika's case
« Reply #22 on: 05/18/11, 09:27 AM »

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.
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Alan Brunelle
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Re: REI appeals Monika's case
« Reply #23 on: 05/18/11, 09:29 AM »

 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
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ryanl
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Re: REI appeals Monika's case
« Reply #24 on: 05/18/11, 09:42 AM »

Steve, I respect and appreciate your thoughts. I nevertheless find it incredulous that REI is and has been powerless in this matter. The petitioner in the appeal is REI, not REI's product liability insurance carrier. What's more, nothing has precluded REI from making a gesture, of ANY kind, to recognize that Monika was victim in this case.

At the very least, REI could have bought her a tooth.....
« Last Edit: 05/18/11, 09:49 AM by ryanl » Logged
Good2Go
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Re: REI appeals Monika's case
« Reply #25 on: 05/18/11, 10:14 AM »

I'm also a lawyer.  Steve's analysis was very informative (thanks for that Steve), but I disagree that REI is not in control in this case.  I'm sure they wield incredible power over their insurer compared to the typical policy holder, because of the amount of coverage they likely procure on an annual basis.  If they wanted the insurer to pay the claim or offer a reasonable settlement, I'm confident that would happen.  They also have the means to settle and/or pay the claim directly, without affecting their bottom line in the least.  The legal issues Steve mentioned are all relevant from a business perspective, but if the same thing happened to REI's CEO or one of her family members, I'm pretty sure there wouldn't have been any appeals.  Would you disagree with that conclusion Steve?
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lernr
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Re: REI appeals Monika's case
« Reply #26 on: 05/18/11, 10:43 AM »

At this point, even if REI settles / pays out - I am still very hesitant about supporting it.

After all, it seems that when it does (IF it does) - it would be driven only out of concern for lost potential profits. I prefer to spend my money with organizations, which are motivated to do the right thing based on their ethics and concern for customers / members

Cheers
Ivo
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Big Steve
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Re: REI appeals Monika's case
« Reply #27 on: 05/18/11, 10:50 AM »

Yes, G2G I will respectfully disagree.  I deal with insurance carriers (mostly professional malpractice carriers because I sometimes represent or sue attorneys or other professionals) but I have reviewed numerous products liability policies and been involved in a few PL coverage disputes.  IME, all PL policies allocate control to the carrier and a carrier will control the litigation decisions notwithstanding the insured's protests, especially when a legal issue of first impression is at stake and that issue may have a future ripple effect of millions of dollars.  So, I will disagree with the notion that REI could have pressured its carrier to settle in this case.  I am currently dealing with a similar situation, and the carrier is wholly unmoved by my client's strong desire to settle.

Also, the policy likely provides that REI is not permitted to make any payouts, publish apologies, etc., lest it forfeit coverage.  And doing something to forfeit coverage would be a breach of the REI’s board’s obligations to its members.  Let me say it again: unless something wholly outside my experience is happening, the carrier is in control and REI cannot do anything about that.

But this misses the point.  Directing anger at REI is what the insurance industry wants you to do, that is, blame someone other than the insurance carrier and the lawmakers in its pockets which  created these circumstances.  I would hope that this sort of injustice would get people focused on the real culprit.  But that doesn’t appear to be happening so the insurance industry’s tactics once again prove successful.

I’m not trying to defend REI here.  I’m just trying to answer some questions here based on my experience and background.  And in doing so, I really do not want in any way to diminish Monika’s legacy.  In my few encounters with her, she was delightfully friendly and I’ve never heard an unkind word about her.  I contributed to this thread because I’ve seen many other victims of insurance carriers and it saddens me that they are so successful in deflecting blame to others.

ETA: FWIW, I have a bias against REI’s bicycle biz.  As a former participant in the bicycle industry, I’ve watched REI’s dominance in some markets crush the mom & pops. 
« Last Edit: 05/18/11, 11:02 AM by Big Steve » Logged
smoogle
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Re: REI appeals Monika's case
« Reply #28 on: 05/18/11, 11:02 AM »

Thank you for posting the update.  I'm sorry that Monika's friends and family have to experience this aggravation.  I hope that Monika prevails.

BigSteve provided excellent information.  Products liability is outside my expertise, but I thought this was a pretty straightforward case.  The WA Products Liability Act sets forth a provision for vicarious liability when a seller sells a product under its own name - it's as if the seller is the manufacturer.  It can be huge burden for a consumer to track down the manufacturer of a defective product, especially when there are parts coming from multiple sources all over the world.  The WPLA allows the consumer to get damages for his/her injury directly from the seller if the seller brands the product as his own.  The seller can still turn around and get damages from the manufacturer for defective parts.

This is a pretty important consumer issue.  Think of all the REI branded gear that is sold (or any other company for that matter).  If I'm injured by a defective REI  product, I wouldn't want to track down all of the different manufacturers that provided parts; REI is in a better position to do that.

For those of you who might be interested in the opinion by the WA Court of Appeals...
http://www.courts.wa.gov/opinions/pdf/65463-2.pub.doc.pdf#xml=http://206.194.185.202/texis/search/pdfhi.txt?query=Monika+Johnson+REI&pr=www&prox=page&rorder=500&rprox=500&rdfreq=500&rwfreq=500&rlead=500&rdepth=0&sufs=0&order=r&cq=&id=4d50eb385f
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Big Steve
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Re: REI appeals Monika's case
« Reply #29 on: 05/18/11, 11:04 AM »

I agree with that analysis, smoogle.  I hope that the WA Supreme Court agrees with you and Division I.
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ryanl
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Re: REI appeals Monika's case
« Reply #30 on: 05/18/11, 11:05 AM »

Steve....REI is the petitioner. Period. Are you suggesting that REI was  required to file by their insurance policy carrier? ...to basically sign their name against their will? If REI failed to put its name on the dotted line, what would happen?

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Alan Brunelle
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Re: REI appeals Monika's case
« Reply #31 on: 05/18/11, 11:05 AM »

Certainly the board has obligations.  Members or bottom line (which becomes one and the same in thiis weird coop scenario).  But REI may end up in a pickle here.  How much does it lose if it blows off this insurer vs. how much business does it lose because if fails public trust.  No decisions other than bottom line, damn the members or public involved.

Do we really know the contractual terms that this insurer operates with REI?  Does REI have no freedom to act morally here?

If as you suggest, we should be lighting the fire under the carrier, then could you propose a way by which that is done?  Name the company and suggests ways that could be effective?

Is it impossible that a fairly potent corporation like REI not write into its contracts means by which it can avoid such a pickle.

Either way, the bucks go to REI and the buck has to stop at the top, just like the responsibility they should be held to for mistakes made by contractors.

If they made bad choices as to the insurance carriers they do business with, then so be it, they need to live by it.  Otherwise the suggestion is that there is no competition in the insurance business and we are all screwed.
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lernr
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Re: REI appeals Monika's case
« Reply #32 on: 05/18/11, 11:09 AM »

Not much legal training other than bus law courses, but I think Big Steve is right:
REI probably has such a contract with the insurance co that any move to apologize / pay would be a breach.

Having said this, I still have the (maybe naive) idea that in some cases contracts can be breached to do the right thing.
Ivo
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Big Steve
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Re: REI appeals Monika's case
« Reply #33 on: 05/18/11, 11:27 AM »

Steve....REI is the petitioner. Period. Are you suggesting that REI was  required to file by their insurance policy carrier? ...to basically sign their name against their will? If REI failed to put its name on the dotted line, what would happen?
Yes, almost all liability policies allocate to the insurance company the right and capacity to defend the lawsuit in REI's name.  Not sure what you mean by "sign the name" or "name on the dotted line," but if REI frustrated or interfered with the carrier's defense, it would likely forfeit coverage and that would put REI's board in the line of fire from the membership.  It's a Catch 22. 
If as you suggest, we should be lighting the fire under the carrier.  .  .  .
No, I’m not suggesting that.  I tried to make people aware that the insurance carrier, not REI, is the entity which has failed to compensate Monika or her estate, and that the law upon which the carrier relies was the product of intensive lobbying by the insurance companies (which was enabled by the industry's multi-million dollar blame the victim propaganda campaign).  If people are angry and want to do something to help future victims like Monika, they should direct their efforts to the legislators who time and again pass laws which favor the insurance industry and screw victims, stop buying into the industry’s propaganda and resist continued efforts to influence laws which will create more victims like Monika.  Blaming REI and ignoring the powerful insurance industry merely plays into the latter’s hands.
« Last Edit: 05/18/11, 11:37 AM by Big Steve » Logged
Randy
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Re: REI appeals Monika's case
« Reply #34 on: 05/18/11, 11:44 AM »

Steve....REI is the petitioner. Period. Are you suggesting that REI was  required to file by their insurance policy carrier? ...to basically sign their name against their will? If REI failed to put its name on the dotted line, what would happen?

IDK specifically about Monika's unfortunate case -- but I will say that in a personal injury case -- my wife was hit by a snowboarder -- that our medical insurance company persued the snowboarder to recover costs.   They did this without asking us.

Fortunately for us, our medical insurance covered the bills for the ER visit and other care upfront.  Other than providing a copy of the accident report we filed with the ski patrol we haven't been directly involved.

It sounds like Monika unfortunately didn't have medical and disablity insurance at the time of the accident ?  If she had it it seems like it would be her insurance carriers that should be seeking a settlement from REI and the manufacturer instead of burdening her (and her estate) with this action.
 
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CookieMonster
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Re: REI appeals Monika's case
« Reply #35 on: 05/18/11, 11:52 AM »

So who is REI's insurance carrier?
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Big Steve
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Re: REI appeals Monika's case
« Reply #36 on: 05/18/11, 11:56 AM »

Randy, you are talking about a victim's medical insurance carrier subrogating to the position of the victim.  I don't know what sort of coverage Monika had, and it's none of my business.  If she had med coverage, the carrier likely did subrogate because she had some severe, expensive to treat, physical injuries.  But, as Ryan's messages seem to indicate, she suffered damages which medical insurance would not cover, e.g., deductible, lost wages, loss associated with residual brain injury.  Also, many med policies do not cover dental work.
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Alan Brunelle
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Re: REI appeals Monika's case
« Reply #37 on: 05/18/11, 12:11 PM »

It's a Catch 22.   No, I’m not suggesting that.  I tried to make people aware that the insurance carrier, not REI, is the entity which has failed to compensate Monika or her estate, and that the law upon which the carrier relies was the product of intensive lobbying by the insurance companies (which was enabled by the industry's multi-million dollar blame the victim propaganda campaign).  If people are angry and want to do something to help future victims like Monika, they should direct their efforts to the legislators who time and again pass laws which favor the insurance industry and screw victims, stop buying into the industry’s propaganda and resist continued efforts to influence laws which will create more victims like Monika.  Blaming REI and ignoring the powerful insurance industry merely plays into the latter’s hands.
Seems like a catch 22.  Maybe it is time for industry to stand up along with the public to fight insurance.  I can only venture a guess as to where industry would side on this issue.  Maybe a little "civil disobedience" on REI's part might be in order here.  Sure it might piss the insurer off.  Sure it might require that REI go get insurance somewhere else, or self-insure such as some medical doctors do in pools (and if they can afford to do so certainly a company like REI could).  But regarding their backs being pinned to the wall and their having to answer to their members and board, I say that the public reason they can give is that it is bad business (and could dramatically hurt their business, $$$) if this become a public relations disaster.

Maybe if companies stand up to insurance, insurance might change.  Why is it always left to individuals to take on the big dollar responsibilities?  It is far easier for the public here in this case to put pressure on the retailer (and it is ultimately their responsibility) than it is to write letters to their state or fed. legislature. Edited to add: I think that we should also write the legislature as well.

I don't disagree with any of the technical legal stuff you state.  It is perfectly logical within the bounds of our current society.  I completely disagree with you if you are suggesting that REI take none of the heat in this situation.  At the very least let us make REI stand up in public (not their insurance representative) and explain where they stand on the issue and what their goals are.

Alan
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Big Steve
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Re: REI appeals Monika's case
« Reply #38 on: 05/18/11, 01:01 PM »

At the very least let us make REI stand up in public (not their insurance representative) and explain where they stand on the issue and what their goals are.
As I state above, doing so before the litigation is resolved would likely be a breach of the insurance policy and may result in a forfeiture of coverage.

Some here seem to assume that REI has more bargaining power than it actually has when purchasing products liability insurance.  IME, product liability policies are offered on a take it or leave it basis.  In case you haven't noticed, the insurance companies, banks, defense contractors and a few other country clubbers control this world.  I once heard Yvon Chouinard speak about his frustration with the product liability system.  A couple decades ago, a series of products liability suits forced Chouinard Equipment into a Chapter 11 bankruptcy.  The technical equipment assets got sold out of BK to some CE employees (who formed Black Diamond).  Yvon took the soft goods into Patagonia.  He said that he missed dealing with the hard goods -- he was, of course, the inventor of many modern climbing devices -- but that he had grown weary of the product liablity issues and thus stayed away from BD's operation.  He specifically mentioned his frustration with the litigation control exerted by the insurance carriers.  (IIRC, he was dismayed by one insurance payout to a victim who had misused a product and, in his opinion, was not entitled to compensation.)

I don’t want to start a political argument here but, to fully understand the grip that the insurance industry has on American manufacturers, retailers and other industries, one might compare our system to Western Europe.  Western Europe does not have a tort system like ours (although one seems to be emerging in some nations).  Instead, people like Monika are compensated via socialized programs.  The government regulates designs and quality, and imposes fines, often very stiff fines, on manufacturers of dangerously defective products, and can even shut down the worst offenders.  The proceeds of the fines go into the govt general funds, thus helping to set off expenditures for compensation victims like Monika, whose medical expenses, lost wages and disability are covered by socialized systems.  This system cuts out the insurance middleman and the trial attorney middleman.  Americans seem to prefer the so-called tort (jury lottery) system even though a great deal of wealth gets skimmed off by the insurance companies and trial attorneys.  I am not suggesting here which system is better.  I bring up the issue only to help people take a big step backwards and see a bigger picture of how other parts of the developed world compensate victims of dangerously defective products.
« Last Edit: 05/18/11, 01:07 PM by Big Steve » Logged
Pete Alderson
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Re: REI appeals Monika's case
« Reply #39 on: 05/18/11, 01:13 PM »

is there any chance the state supreme court would refuse to review the case and thus let the prior ruling stand as the final judgement?
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Randy
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Re: REI appeals Monika's case
« Reply #40 on: 05/18/11, 01:22 PM »

Randy, you are talking about a victim's medical insurance carrier subrogating to the position of the victim.  I don't know what sort of coverage Monika had, and it's none of my business.  If she had med coverage, the carrier likely did subrogate because she had some severe, expensive to treat, physical injuries.  But, as Ryan's messages seem to indicate, she suffered damages which medical insurance would not cover, e.g., deductible, lost wages, loss associated with residual brain injury.  Also, many med policies do not cover dental work.

Steve I think you make some good points -- doesn't it seem like if her medical insurance company persued cost recovery for the expenses covered by their policy that liability for expenses not covered would be (at least to some degree) established?   It seems like the unpleasant thing here isn't that REI is offering a settlement that is unjustly small -- but that they are contending they bear no responsiblity for the injuries incurred. 
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Big Steve
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Re: REI appeals Monika's case
« Reply #41 on: 05/18/11, 01:28 PM »

is there any chance the state supreme court would refuse to review the case and thus let the prior ruling stand as the final judgement?
Yes and no.  Yes, the WA Supremes could deny cert.  No to the second question becuase there is no final judgment.  The case would be remanded to the trial court and proceed.  That's how I interpret the procedural status of the case.
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Pete Alderson
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Re: REI appeals Monika's case
« Reply #42 on: 05/18/11, 01:31 PM »

ah, okay.  thanks Steve.... i was hoping there could actually be an end in sight for this if the supreme court refuses to review...guess not.
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Big Steve
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Re: REI appeals Monika's case
« Reply #43 on: 05/18/11, 01:41 PM »

Pete, if the WA SC denies cert, there would be a high likelihood of a settlement.  To my eyes, there are no federal issues in play so, if cert is not granted, the appeal process should end with Division I's opinion.  When determining whether or not to grant cert the ostensible conflict between the two statutory schemes will be given weight and tend to militate in favor of granting cert.  OTOH, a minority of cert applications are actually granted.
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Layback
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Re: REI appeals Monika's case
« Reply #44 on: 05/18/11, 02:18 PM »

Email sent.  Yet another reason to support Pro Mountain Sports, Marmot and Feathered Friends whenever possible.
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kath
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Re: REI appeals Monika's case
« Reply #45 on: 05/18/11, 02:27 PM »

this is totally unacceptable .. we have been members since the early 70's and i have sent the ceo letters  .. not email cause i think they may be more potent.. b4 about the direction they're taking .. only to be brushed off .. i support you fully .. thx for posting this ryan 
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Good2Go
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Re: REI appeals Monika's case
« Reply #46 on: 05/18/11, 02:38 PM »

I disagree w/your conclusions Big Steve.  I think the business judgment rule would protect the Board if they decided to do the right thing (by forcing the insurer to settle or paying the claim directly).  The facts of this case, coupled with the determination of the appellate court should provide a sufficient basis for them to defend a decision to settle or pay the claim and separately seek redress from their insurer. Disagreements between insurers and insureds regarding what is necessary to satisfy indemnification and hold harmless obligations (including cutting potential losses when branding, reputation and/or goodwill will be harmed permanently) happen all the time.  It is within the Board's purview to elect that course of action, without breaching their duty to REI's members.  And, I stand by my earlier assertion: If this had happened to REI's CEO or one of her family members, there would have been no appeal.    

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Big Steve
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Re: REI appeals Monika's case
« Reply #47 on: 05/18/11, 02:57 PM »

I have no reason to believe that an indemnification provision is in play here.  Perhaps you have some information that is not apparent from reading Division I's opinion.  The enforceability of provisions which allocate control over settlement and litigation decisions to the insurance carrier has been well established by the courts. 

I will disagree with your position that the business judgment rule would immunize the board if it were to forfeit insurance coverage through an advertant breach of the insurance policy and that fofeiture of coverage resulted in a huge award against REI that would have otherwise been covered by insurance.  If you have authority that the BJR has been applied in such a way, please advise and I will eat crow.

But, again, this misses the point.   If writing letters to REI and/or refusing to patronize REI makes people feel better, then have at it.  REI marketed a dangerously defective fork and there is nothing wrong with being outraged by that and refusing to do biz with such a company.  But confining one's action to REI merely preserves the status quo and paves the path for more injustice to victims like Monika in the future.  The insurance carrier, not REI, decided not to compensate Monika and to instead appeal.  And the carrier relies on a statute which is the product of the insurance lobby and which has resulted in great injustices to many other victims and will do so in the future.  If people are going get get angry, direct the anger where it belongs, i.e., the insurance industry lobby and the legislators in its hip pocket.   
« Last Edit: 05/18/11, 03:13 PM by Big Steve » Logged
ryanl
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Re: REI appeals Monika's case
« Reply #48 on: 05/18/11, 03:36 PM »

Steve, you speak as though a breach of insurance policy and forfeiture of coverage is a natural and definitive place to end discussion about REI's responsibility in this.  As though either or both of those alternatives represent a line which REI is unable to cross. I disagree. Breaching an insurance policy and forfeiting coverage would be no more difficult to navigate and no more of an inconvenience to REI than any of the challenges Monika had to overcome in the past 4 years.  Apples to oranges, perhaps. But rotten apples and rotten oranges are both rotten.

What's more, as Monika's attorney has pointed out, REI could have avoided having to make such a difficult decision had it worked out the most basic type of contract with its supplier ( Fairly Bike Manufacturing Company was contracted by REI to make Monika's bike) such that REI would have recourse in the event of an accident due to a defective component manufactured by an entity other than the supplier (Aprebic, contracted by Fairly, made the fork).  REI failed to do this, and now it "has its hands tied". The insurance carrier is insisting that REI appeal because REI failed to protect itself.

 I don't doubt anything you've said, Steve, and I certainly don't think you've been disrespectful or insensitive in any way.  I also appreciate your enlightening me about the state of affairs in the insurance industry. I just can't get over the irony, for lack of a better word, that REI-- the company that preaches 100% satisfaction guaranteed-- left Monika high and dry. As her attorney wrote to me an email,

"REI is all about branding to its members, creating that strong sense of value, community and reliability in their products.  But when push comes to shove, when a member is seriously hurt through no fault of her own, this is their response.  Shameful"

I may be naive, and I may not understand the case completely. But I believe that REI is responsible on some level for the bike it sold Monika and that it has failed on every level to accept any of that responsibility. Even a letter saying what you said, Steve, would have eased Monika's mind. She actually felt guilty at times for seeking compensation.

So like I began....
Fuck REI
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Big Steve
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Re: REI appeals Monika's case
« Reply #49 on: 05/18/11, 03:50 PM »

Steve, you speak as though a breach of insurance policy and forfeiture of coverage is a natural and definitive place to end discussion about REI's responsibility in this.
Ryan, I don't think that's a fair characterization of what I said.  For example, among other things, in my prior post I said:
Quote
REI marketed a dangerously defective fork and there is nothing wrong with being outraged by that and refusing to do biz with such a company.
I am dismayed to hear that REI failed to have meaningful recourse against its supplier.  (BTW, I dealt with Bob Christie years ago.  He's a very fine attorney.)  I have not suggested that REI be given a pass.  If you got that impression, please read my messages again.  But I will stand on my position that the decision to not compensate Monika and instead appeal was made by the insurance carrier, and that confining the anger to REI will not do much good to prevent future injustices to people in Monika's circumstance.  She was the victim of a system rigged in favor of the insurance carriers.  The system needs fixing.
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Mofro
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Re: REI appeals Monika's case
« Reply #50 on: 05/18/11, 04:05 PM »

But I will stand on my position that the decision to not compensate Monika and instead appeal was made by the insurance carrier, and that confining the anger to REI will not do much good to prevent future injustices to people in Monika's circumstance.  She was the victim of a system rigged in favor of the insurance carriers.  The system needs fixing.

Don't hate the player, hate the game.

While I agree the system needs fixing, it's easier to target outrage towards an entity than an industry.
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not always bad
Good2Go
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Re: REI appeals Monika's case
« Reply #51 on: 05/18/11, 04:41 PM »

I'm not a litigator, but I have purchased commercial insurance on behalf of US corporations, and I continue to stand behind everything I said.  REI's purchasing power does significantly influence the decisions made by its insurers, irrespective of what the policy says.  Are you suggesting that an insurer does not have to take the insured's best interests (apart from just payment amounts) into account when fulfilling their defense (and potentially indemnification) obligations?  Also, do you believe the insurer acted against REI's wishes at any point in this case?  My guess is that REI has been complicit throughout.  And, a "huge judgement" to you and me is hardly even worth mentioning on REI's annual report.  As such, the BJR should be sufficient to insulate the Board's decision to settle or pay in the manner I described above.

Finally, do you disagree that the result would have been different if the injury had happened to REI's CEO or a member of her family?  IME, the rules you are touting only apply to people like Monika, but not "VIPs".  How can that possibly be the case if a corporation's hands are tied by the insurance industry, as you are suggesting?  

IMO, the focus can and should stay squarely on REI.  If there is enough public outcry, the case will be swiftly resolved.
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T. Eastman
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Re: REI appeals Monika's case
« Reply #52 on: 05/18/11, 11:17 PM »

Did REI have the bike and/or the fork designed to meet its cost requirements?

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Big Steve
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Re: REI appeals Monika's case
« Reply #53 on: 05/19/11, 08:15 AM »

Did REI have the bike and/or the fork designed to meet its cost requirements?
Interesting question.  I would assume that cost was a factor.  Legally, in WA, it's not very relevant because the WPLA imposes strict liability on REI a private labeler.  Strict liability means that once Monika (and now her estate) establishes that the fork was dangerously defective and the defect caused injury to her, she is not required to prove fault to establish liability.  OTOH, in states with punitive damages, the manufacturer's use of cost as a factor might be relevant, e.g., the Ford Pinto memo.

G2G, I'll keep my response to your most recent comments brief and then withdrawal from this thread.  I'm not an expert on insurance bad faith law, but I have dealt with the subject numerous times in the past 20+ years.  I am pretty certain that the duty of an insurance carrier does not extend anywhere near the extent you suggest.

I'm out of this thread.  I have done what I can to raise awareness of a rigged system and hope some of someone here might do something (e.g., vote against the next anti-victim/pro-carrier initiative) to help future victims of that rigged system.  (Mofro, note that I condemned the entire system, i.e., the insurance industry, its lobbyists, its PR blame the victim propagandists and the legislators.)

I wish Monika's estate, Monika's loved ones and Mr. Christie's firm all the best.  I am hopeful that justice will be served and that the WA Supremes will either deny cert or affirm Division I.

« Last Edit: 05/19/11, 08:27 AM by Big Steve » Logged
Alan Brunelle
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Re: REI appeals Monika's case
« Reply #54 on: 05/19/11, 09:07 AM »

Big Steve,

I think you have done a fine job of illustrating some of the major issues regarding the way insurance operates, why they do what they do and how we have all played a part in it.

You suggest attacking all facets of the problem, and in that I agree. 

However the problem is that society as a whole, and us as individuals have little power against powerful lobbies.

Insurance companies respond to $$$.  If insurance companies lost money because of the way they operate then they might change.  But I have no doubt that they have rigged and will continue to rig the markets in their favor. 

However, REI is a purchaser of insurance.  It too should fight the good fight.  If it insurance companies are placing it between a rock and a hard place then it should seek a solution.

If REI sought to offer the highest quality under its own brand (those items which place it in line for such liability claims) then its liabilities should be relatively low.  Maybe it should seek to be self-insured for those instances so that it has control as to how it will satisfy customer/member product issues.  I am assuming that a company the size of REI could handle a typical yearly rate of claims.  This creates three positives for a company like REI.  1) it probably saves them tons of money.  2) it puts pressure on them to offer only the highest quality in their products and demands it from their suppliers to their own brand.  3) they settle claims fairly and under the spirit of a "cooperative".  That is good for business.  They should pay to be insured for only that which is catastrophic, such as buildings, and maybe class action law suits, etc.  What I propose is akin to raising their deductible (for us little guys), that way in small individual cases such as this their insurance company never hears about it.

If REI could give this insurer the boot, i.e. the insurer loses business, do you think that is one way to fight the problem?  Conversely, does insurance allow businesses to operate poorly?  Do they feed off of one another.  If an insurance company knows that it will never suffer a payout because it has the best lawyers, it can then be highly competitive in offering insurance to lousy companies who operate callously.

What I propose in self insurance is not pie in the sky.  I know that some clinics (essentially doctor cooperatives, etc.) that have given the boot to insurance and now self insure.  Typically doctors as individuals cannot sustain the risk so must go to insurers who offer the advantage of the pool.  But clearly it does not take that many members to form a pool which can be self sustaining.  So if doctors can do this, which have to be among the most sued businesses an highest level of risk per income than any group, why can't a company like REI, which probably easily exceeds revenues and profits of any clinic do this?

What we as customers of REI can do is all that you propose, BUT not just accept that REI has no culpability and throw our hands up.  A war is won with many small fights and battles and REI must be put on the hot seat, so that if they are also suffering an injustice at the hands of insurance, then they also fight the good fight.  We as customers can more easily pressure REI than we can the other groups and we can do it very fast.  You propose one long drawn out fight, but here we may be able to win this one small battle that will also potentially move the broader battle into their field of play.
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James Wells
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Re: REI appeals Monika's case
« Reply #55 on: 05/19/11, 10:18 AM »

REI's entire response to an email:
[Someone on CC reposts getting the exact same text, apparently it is their form reply]

<quote>
Thank you for your email. Monika Johnson was highly regarded in the outdoor community, a member of the REI community, and a dear friend of many REI employees. Please know that we have expressed our condolences to Monika's family and extend them to you, as well.
 
The issues addressed in any lawsuit are often complex and sometimes, as is the case here, have broad impacts beyond just the parties. REI's appeal is not about the amount of money Monika's estate should receive through either a trial or a settlement. Instead, it is about the degree to which responsibility should be shared between a private label seller, like REI, and the manufacturer who designed and made the bike component.
 
The right to have a court or jury consider this question is important to all companies, big or small, that sell products under private labels. REI would have preferred to resolve Ms. Johnson’s case early on, but circumstances beyond our control made this impossible. 
 
As we have since REI was founded in 1938, we stand behind our products, and we are committed to acting in accordance with the co-op’s values. We have kept those values front and center throughout the defense of this case, and we will continue to do so through final resolution.
 
Sincerely,
 
Libby Catalinich
Director, REI Corporate Communications

<end quote>
« Last Edit: 05/19/11, 10:39 AM by James Wells » Logged
glenn_b
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Re: REI appeals Monika's case
« Reply #56 on: 05/19/11, 10:51 AM »

REI's entire response to an email:
[Someone on CC reposts getting the exact same text, apparently it is their form reply]



Same as I got.  Forwarded it to the Seattle PI and Times.
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Alan Brunelle
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Re: REI appeals Monika's case
« Reply #57 on: 05/19/11, 11:10 AM »

Pretty much as expected from what Big Steve had to say.

"The right to have a court or jury consider this question is important to all companies, big or small, that sell products under private labels. REI would have preferred to resolve Ms. Johnson’s case early on, but circumstances beyond our control made this impossible."

Would seem to be a conflicting statement except for the explanations that we have had.  In this case it would appear the company most intent on exercising this right is the insurance company.

When a product fails under warranty almost all companies will rectify the situation immediately without protest.  Many companies will also do so if a product is out of warranty but clearly defective.  But if such a product somehow causes damage, then the admission seems to go away....  Clearly money is everything here.

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reddirt
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Re: REI appeals Monika's case
« Reply #58 on: 05/19/11, 11:29 AM »

As simplistic & naîve as it sounds:

REI's product liability representation exists at the behest of REI, not the other way around. They can choose to do the right thing at any point, just as a patient in a medical situation can decide to go against medical advice.

This is an REI/Novara brand equipment malfunction, not a Trek or Cannondale merely purchased through REI.

If REI is to reap the rewards of selling their own house branded Novara products, they must also own up to the liability of such products.

The onus of due diligence should be on REI in making sure (sub)contracting manufacturer(s) is competent.
« Last Edit: 05/19/11, 02:13 PM by reddirt » Logged
wooley12
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Re: REI appeals Monika's case
« Reply #59 on: 05/19/11, 12:00 PM »

As independent citizens, we have only two legal means of recourse. For the lawmakers, write them about you displeasure and always vote for the incumbent ( I do) until such time as you are satisfied that they are representing you and not their capitalist pimps. Probably when hell freezes over but so be it. Nothing wrong at all with capitalism but as it is by nature amoral, it needs to be overseen.

For the profit makers, do not buy from them. A publicized boycott at least gets a public response. Given their inability to monitor the quality of their suppliers, I would not purchase any REI branded product that I had to trust my safety with.  I've been a sales rep for Asian manufacturers selling to US sporting good companies and I know how it works and the pit falls.

You CAN make a difference.
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The stem christie is a legitimate backcountry turn
ryanl
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Re: REI appeals Monika's case
« Reply #60 on: 05/19/11, 12:30 PM »

REI has just stated what is so sickening and shameful about its treatment of Monika.

If REI wishes to address the degree to which responsibility should be shared between a private label seller and the manufacturer who designed the flawed bike component, it should by all means go ahead and do so. Yet to do so at the expense of Monika's well being is deeply disheartening. Granted, the point is somewhat moot now because of Monika's accident, but making her family deal with it is only slightly less disheartening.

REI made a mistake when it signed an incomplete and poorly thought out contract with Fairly Bike Manufacturing company. Monika's accident has revealed the limitations of that contract. Now REI claims, as Steve has suggested, that "circumstances beyond its control" have rendered it powerless to resolve Monika's issue.

Bullshit. REI has the power to end litigation involving Monika('s family) at any time. It has always had this power. It would be costly, no doubt, but as I said in an earlier post, the cost to REI would be no more difficult to manage than what Monika had to endure on account of her accident. REI is not powerless by any stretch of the imagination.  

What's more, one of the reasons that REI is even attempting to excuse itself from responsibility is the result of the forensic bike test that revealed a manufacturing defect in the Aprebic fork. Monika paid for the test out of her own pocket without so much as a dime in reimbursement from REI. Think about that, whoever reads this. Monika paid close to 10k out her savings to pay for a test that REI requested, and never received reimbursement. What's 10k to REI? To Monika it meant not being able to fly to Germany for her grandmother's funeral last year.

Libby stated in that mass email she sent to people who voiced concern that REI stands by its products and has been committed to its co-op values throughout its defense. Libby, if you read this, are you aware that REI refused to reimburse Monika for the cost of her bike!?

REI is a hypocritical company, which in my opinion is the worst of the wost.




« Last Edit: 05/19/11, 12:41 PM by ryanl » Logged
Good2Go
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Re: REI appeals Monika's case
« Reply #61 on: 05/19/11, 12:44 PM »

Pretty much as expected from what Big Steve had to say.

"The right to have a court or jury consider this question is important to all companies, big or small, that sell products under private labels. REI would have preferred to resolve Ms. Johnson’s case early on, but circumstances beyond our control made this impossible."

Would seem to be a conflicting statement except for the explanations that we have had.  In this case it would appear the company most intent on exercising this right is the insurance company.

When a product fails under warranty almost all companies will rectify the situation immediately without protest.  Many companies will also do so if a product is out of warranty but clearly defective.  But if such a product somehow causes damage, then the admission seems to go away....  Clearly money is everything here.



Don't be fooled by BS' or REI's arguments!  They're feeding you the party line typically spouted by corporate defense counsel (e.g., we can't do the right thing, because of an insurance policy).  Think about how absurd that is!  They're saying they can't pay proven damages established at trial, because of the terms of a commercial contract (which is all an insurance policy is).  That argument may have had some relevance before REI's liability was established at least 3 separate times (e.g., on summary judgment, at trial, and on appeal), but not at this stage. REI's probability of success at this point is incredibly small.  By appealing this time, they're electing a tactic intended to limit their liability (by delaying payment and increasing Monika's estate's costs). Their executives could make this all go away if they wanted to, without breaching their obligations to their members.  IMO the response they provided in their form email proves that they have been complicit in their defense strategy all along, and continue to care more about their bottom line than doing the right thing.  
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burns-all-year
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Re: REI appeals Monika's case
« Reply #62 on: 05/19/11, 08:39 PM »

Before everyone breaks out the torches and pitchforks, has anyone considered what Monika or her family would want done in this situation?     

I got to climb/ski (chase!) Monika on Mt. Adams, and she didn't seem the type of person that would waste energy on futile or symbolic gestures. 

BTW, I think Big Steve is spot on in his analysis of where to direct our efforts and outrage...I can't speak to the business/legal points.  Thanks Steve for taking the time to present and clearly articulate your views.  Maybe unpopular, but very important.

-Burns

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glenn_b
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Re: REI appeals Monika's case
« Reply #63 on: 05/19/11, 09:07 PM »

BTW, I think Big Steve is spot on in his analysis of where to direct our efforts and outrage...I can't speak to the business/legal points.  Thanks Steve for taking the time to present and clearly articulate your views.  Maybe unpopular, but very important.

Yes!  It's been an education.  Thanks to all the legal types weighing in here and especially over at NWHikers.
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peteyboy
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Re: REI appeals Monika's case
« Reply #64 on: 05/19/11, 11:39 PM »

This is sickening and I as well am angered for our friend's mistreatment - even so much moreso given her passing.  But things don't change from an emotional response - only a calculated measured one.  Yes, the system needs fixing, and yes, REI participated in the broken liability insurance game in ways they have to - but only economic impact from public shaming will change how REI responds and treats its clients.  My calculated measured response to the tremendously insulting response of "valuing our members and standing behind our products" is sorry you have to participate in such a rigged mega-industrial underwriting scheme - but you made your bed, you have to lie in it.  To those who are connected - please seek out any ear that may receive your voice which is in a position of media message distribution and get Monika's REI fiasco story out there.  They're gonna wish they settled right out of the gate.
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SKIER-X
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Re: REI appeals Monika's case
« Reply #65 on: 05/20/11, 08:57 AM »

It's not a bargin to pay 10% more for an item and wait all year for some B.S. rebate. I'm taking any product of theres I have and am going to R.eturn E.very I.tem . I urge everyone to do the same.    X    R.E.I. customer
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Oyvind_Henningsen
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Re: REI appeals Monika's case
« Reply #66 on: 05/23/11, 12:50 PM »

e-mail sent to board
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trees4me
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Re: REI appeals Monika's case
« Reply #67 on: 05/23/11, 04:57 PM »

email sent.

ryanl, Big Steve, and everyone else thanks for contributing to this discussion.

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Scottk
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Re: REI appeals Monika's case
« Reply #68 on: 05/24/11, 11:39 PM »

Although I understand people's emotional response, this string has a certain "lynch mob" feel to it.  I tried to explain Monica's case to an attorney friend of mine, which was complicated by my lack of direct knowledge of the case.  It wasn't making any sense to him so he was inspired to review the February court ruling.  Keeping in mind that he has no knowledge of the situation, other than what is in the court ruling, here's his summary:

"You’ll see that REI was attempting to join the manufacturer as a defendant in Monika’s lawsuit, but the trial court refused to do so, even though the liability claim for a defective product plainly involved a claim that would be a primary claim against the manufacturer and only a vicarious claim (a vicarious claim is where one party is held liable for the wrongful acts of another) against REI.  Because the trial court refused to join the manufacturer, REI was going to be stuck in the position that even if it was shown that the manufacturer was totally at fault, REI would not be able to recover anything against the manufacturer.  That is the “anomaly” discussed at the end of the opinion.  That does seem a somewhat goofy outcome.  My guess is that REI decided to make its comparative fault argument because of this.  It was in the position that unless it found some creative way to get the manufacturer into the case, it would end up being stuck for the whole tab, even though it perhaps did absolutely nothing wrong and nothing to cause the injury."

I think his judgement reflects the unemotional legal basis for REI's case, which is clearly not the full story.  Here's my personal synopsis: The court's decision appears to acknowledge that it's unfair that REI will be prevented from going after the manufacturer but that they have to uphold the laws of the state.  One of the judges has actually requested that the legistlature change the law (to no avail).  Although it seems unjust that REI hasn't offered any compenstation to Monica, it's also unjust that REI should be prevented from suing the manufacturer.  I'm not ready to judge REI to harshly. I think we need to see how this is resolved before calling for a boycott of a company that has a long track record of being a good corporate citizen.
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aaron_wright
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Re: REI appeals Monika's case
« Reply #69 on: 05/25/11, 06:29 AM »

Although I understand people's emotional response, this string has a certain "lynch mob" feel to it.  I tried to explain Monica's case to an attorney friend of mine, which was complicated by my lack of direct knowledge of the case.  It wasn't making any sense to him so he was inspired to review the February court ruling.  Keeping in mind that he has no knowledge of the situation, other than what is in the court ruling, here's his summary:

"You’ll see that REI was attempting to join the manufacturer as a defendant in Monika’s lawsuit, but the trial court refused to do so, even though the liability claim for a defective product plainly involved a claim that would be a primary claim against the manufacturer and only a vicarious claim (a vicarious claim is where one party is held liable for the wrongful acts of another) against REI.  Because the trial court refused to join the manufacturer, REI was going to be stuck in the position that even if it was shown that the manufacturer was totally at fault, REI would not be able to recover anything against the manufacturer.  That is the “anomaly” discussed at the end of the opinion.  That does seem a somewhat goofy outcome.  My guess is that REI decided to make its comparative fault argument because of this.  It was in the position that unless it found some creative way to get the manufacturer into the case, it would end up being stuck for the whole tab, even though it perhaps did absolutely nothing wrong and nothing to cause the injury."

I think his judgement reflects the unemotional legal basis for REI's case, which is clearly not the full story.  Here's my personal synopsis: The court's decision appears to acknowledge that it's unfair that REI will be prevented from going after the manufacturer but that they have to uphold the laws of the state.  One of the judges has actually requested that the legistlature change the law (to no avail).  Although it seems unjust that REI hasn't offered any compenstation to Monica, it's also unjust that REI should be prevented from suing the manufacturer.  I'm not ready to judge REI to harshly. I think we need to see how this is resolved before calling for a boycott of a company that has a long track record of being a good corporate citizen.
The court isn't preventing REI from suing the manufacturer of the fork. The court said that REI couldn't claim Aprebic(fork manufacturer) as a third party defendant in THIS suit. The court said if REI wanted to do so it would have to be another trial. REI did not want to go that route. I read the ruling.
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burns-all-year
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Re: REI appeals Monika's case
« Reply #70 on: 05/25/11, 07:17 AM »

Sometimes lynch mobs are more satisfying, regardless of whether their outrage fairly reflects the reality of a situation.  Ask the folks who trashed Starbucks in Seattle a few years ago!

Also, could someone take down that picture of Monika w/ her face all f***ed up.  Inappropriate, unecessary and disrespectful to her and her family. 

I understand people are grieving, and I'm sorry for that, but this is over the top.

BTW, maybe the current home page w/ the hideous helmet picture could be replaced with a more fitting picture of this beautiful woman, as well.   
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Scottk
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Re: REI appeals Monika's case
« Reply #71 on: 05/25/11, 09:58 AM »

Although my previous post was intended to pass on a legal opinion regarding REI's case, I'd like to focus on what I think is the fundamental issue: Monica suffered terrible injuries due to a manufacturing defect and she (now her family) should be compensated by the responsible parties.  I think REI should assume responsibility, regardless of their ability to obtain compensation from the manufacturer, and I support reasonable efforts to pressure REI to resolve this case in favor of Monica's family.
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aaron_wright
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Re: REI appeals Monika's case
« Reply #72 on: 05/25/11, 11:54 AM »

Although my previous post was intended to pass on a legal opinion regarding REI's case, I'd like to focus on what I think is the fundamental issue: Monica suffered terrible injuries due to a manufacturing defect and she (now her family) should be compensated by the responsible parties.  I think REI should assume responsibility, regardless of their ability to obtain compensation from the manufacturer, and I support reasonable efforts to pressure REI to resolve this case in favor of Monica's family.
Nice backpedal.
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Big Steve
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Re: REI appeals Monika's case
« Reply #73 on: 05/25/11, 01:58 PM »

Scottk, your attorney friend's take in a bit inaccurate.

First, the Court of Appeals confirmed the trial court's order bifurcating trials, but the trial court did grant leave to REI to implead (i.e., bring in as a third party defendant) Aperbic in the action.  The opinion states, in part:
Quote
Although the trial court denied REI’s request to attribute fault to Aprebic, it did grant to REI leave to join Aprebic as a third party defendant. However, the trial court noted that if REI did so, the court would “require separate trials under CR 20(b) to prevent delay and prejudice to [Johnson].” CP at 198.
The C/A affirmed the order bifurcating, but made no ruling on granting leave to implead (which apparently was not assigned as error, nor would there be any reason for REI to have done so.)  Thus, REI was indeed free to implead Aperbic.

Second, REI's liability under the WPLA is direct, not vicarious nor imputed.  As a private label seller, REI has the liability of a "manufacturer." 

Third, it's obvious from reading the opinion that REI was attempting to use the comparative fault provisions of RCW 4.22 to make an end run of the private labeler “manufacturer’s” liability under the WPLA by attributing all or most of the fault to Aperbic, thus avoiding or greatly reducing REI's exposure.  See the comments in my first post on this thread. 
« Last Edit: 05/25/11, 02:14 PM by Big Steve » Logged
davidG
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Re: REI appeals Monika's case
« Reply #74 on: 05/25/11, 06:34 PM »

With great respect for my friend, Burns, i offer +1 for the photo comments, and a short story about getting things done.  First, no stranger to gentle rants about REI - especially their house branded products, where I am caused to wonder about their R&D budget, engineering expertise, subcontractor oversight, etc., and why 'they' should profit from it - or the lack of it -  there is no question, in this posters mind, that REI is so wrong - perhaps the most wrong I have ever seen them (i have a 5 digit member #) - to have left Monika chasing ghosts in her fair effort for reasonable answers.

A number of years ago, my friend Ron bought a new lawn mower at Pay N Pak.   Once home, he couldn't get the cheap mower to run, so he took it back.  They couldn't get it started either.  Ron wanted his money back, and after a fruitless chat with customer service, the manager, Herb, was called in.  He explained that they would exchange the mower, but that no money could be returned.  The only words out of Rons' mouth were "Wrong answer, Herb".  Ron went to the back of the store, found a large piece of cardboard, came back after grabbing a can of spray paint off the shelf, and walked out the front door, where he made his sign.  He spoke with anyone who'd listen - and some who didn't.  In under 20 minutes, Herb walked out the door, cash in hand, in the exact amount of the mower purchase.

Write your emails, if that's your thing.  It carries weight.  Just, not that much..
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ace117
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Re: REI appeals Monika's case
« Reply #75 on: 05/25/11, 06:59 PM »

Email sent
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chmnyboy
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Re: REI appeals Monika's case
« Reply #76 on: 05/25/11, 07:36 PM »

Any suggestions on what to do with the handful of cash once I return my past 5 yrs of REI purchases?
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ErikT
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WWW
Re: REI appeals Monika's case
« Reply #77 on: 05/26/11, 02:27 PM »

Thought I would pass this along... I'm sure many of those who emailed REI got a similar if not identical response, but this is what was forwarded to me:



Dear Mr. Turner,



There is more to this situation than meets the eye. Although we understand we cannot tell everyone exactly what they would like to hear right now, I’d like to send you a couple of points.



REI has a long, respected history of standing behind our products and we will do so in this situation, too.  What you and others may not realize is that early on in the case, to demonstrate our good faith, we helped Monika offset some of her expenses.   



I can appreciate that Monika’s friends – of which there are many at REI – feel strongly about this situation.  That said, this case involves important issues of Washington law that deserve the attention of the Washington Supreme Court, which is the reason REI asked the court to consider the case.   We trust that when this case is resolved, people will see that we have acted responsibly and in a manner consistent with REI’s enduring values.



We wish you continued adventures and hope we can continue to serve you.



Libby Catalinich

Director, Corporate Communications

REI - Recreational Equipment, Inc.
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JasonGriffith
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Re: REI appeals Monika's case
« Reply #78 on: 05/26/11, 08:25 PM »

I got nearly the same form letter.  So . . .is the claim of expense reimbursement legit?  I had thought they hadn't given her anything.  Ryan?
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ryanl
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Re: REI appeals Monika's case
« Reply #79 on: 05/27/11, 07:52 AM »

I got nearly the same form letter.  So . . .is the claim of expense reimbursement legit?  I had thought they hadn't given her anything.  Ryan?

I was wrong when I said that REI failed to make a gesture of any kind. 18 months after her accident, and a few weeks after she filed a complaint, REI offered an amount to offset (partially) out of pocket meds. Monika never received reimbursement for the bike, nor the forensic bike test.
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lernr
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Re: REI appeals Monika's case
« Reply #80 on: 05/27/11, 12:37 PM »

Shame!
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alecapone
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Re: REI appeals Monika's case
« Reply #81 on: 05/27/11, 01:50 PM »

Any suggestions on what to do with the handful of cash once I return my past 5 yrs of REI purchases?

If everyone is making returns in protest, shouldn't we be doing so in a large obnoxious group carrying signs, clogging lines and such?

I sent an e-mail and returned a piece of rei branded luggage I bought over ten years ago... when asked why i was returning, I said I was afraid of faulty REI branded equipement injuring me.

I still have an rei sleeping bag. scarred what might happen should the zipper fail and trap me in.
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scott
Gregg_C
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Re: REI appeals Monika's case
« Reply #82 on: 11/14/11, 04:16 PM »

Thought I would revive this thread.  Ryan told me Sat. night that the State Supreme Court has refused to her the appeal from REI.  So in the end she would have won.
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davidG
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Re: REI appeals Monika's case
« Reply #83 on: 11/14/11, 04:50 PM »

thanks gregg.  i'm still disgusted with rei.  they talk the line, but they don't walk it.  they could have stood up, but they didn't.  they are right up there with the monkeys who created the shrinking candybar and the folks who found focus groups that determined 11.2 oz of beverage satisfied better than 12.

my 'membership' at rei goes back to the early 60's.  i'm not quite giving up them, but i feel they have lost thier way..        dg
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normanclyde
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Re: REI appeals Monika's case
« Reply #84 on: 11/15/11, 04:28 PM »

Thought I would revive this thread.  Ryan told me Sat. night that the State Supreme Court has refused to her the appeal from REI.  So in the end she would have won.

I haven't re-read the entire thread, but I believe the ruling which REI had appealed was that Monika's case had legal standing and could proceed to trial.  So the Supreme Court's refusal to hear the appeal does not mean Monika has won, but that her estate at last has the chance to pursue justice in court.

Which means, I suspect, that REI will be hasty to seek a settlement.  They would be certifiably insane to take this case to trial.
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Eric_N
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Re: REI appeals Monika's case
« Reply #85 on: 05/21/13, 05:33 PM »

"REI defends reputation despite claims of broken bikes and injured riders"  on KOMO News tonight.

Link

http://www.komonews.com/news/local/REI-defends-reputation-despite-claims-of-broken-bikes-and-injured-riders-208380251.html?tab=gallery&c=y&img=0

At the start of this thread I sent several e-mails to REI regarding their policy on personal injury due to REI branded equipment failure.  All of REI's responses were 100% evasive.
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Plinko
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Re: REI appeals Monika's case
« Reply #86 on: 05/21/13, 05:37 PM »

Glad to see the local station finally picking this up.
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JCR
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Re: REI appeals Monika's case
« Reply #87 on: 05/21/13, 05:58 PM »

I despise KOMO's joke journalism/sensationalism almost as much as REI but they have their muckraking use. The horrible thing about this entire saga is the absolute corporate led REFUSAL to accept any responsibility at all. Lawyer up and delay, delay, delay. When an executive can't even offer an apology you know the lawyers are in charge.
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silaswild
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Re: REI appeals Monika's case
« Reply #88 on: 05/21/13, 07:46 PM »

Channel 4 at 11pm tonight for those who missed it earlier.
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Gregg_C
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Re: REI appeals Monika's case
« Reply #89 on: 05/22/13, 07:42 AM »

I for one am pleased that their corporate behavior in this matter is finally getting an audience beyond her family, friends and the TAY community.  Since this started with Monika I have not set foot in an REI and I don't plan to in the future until they apologize to her family and Ryan.  It angers me that they let the publicist respond instead of actually admitting that what they did was WRONG!!.
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Joedabaker
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Re: REI appeals Monika's case
« Reply #90 on: 05/22/13, 09:08 AM »

Just saw the report online. My jaw was dropped by the end saying that their branded products meet or exceed manufacture quality.
So if that is the case why don't they stand behind the products instead of pawning the responsibility off on the manufacture. All large companies get a black eye now and then. Boeing planes fall out of the sky, Brakes fail on car, but they take responsibility for the action rather than throwing it on the manufacture that they brand.
This is so lawyered up it is hard for REI to turn back without major financial repercussions. I'm dropping their credit card so I don't support their weak kneed approach to Quality Guaranteed!   
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CascadeClimber
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Re: REI appeals Monika's case
« Reply #91 on: 05/22/13, 09:16 AM »

I have no pity for, nor do I accept any claim of 'lack of control' by REI.

They chose their insurance carrier, their legal department approved the insurance contract, they chose to have their bike cheaply made by a string of subcontractors in China.

How convenient that REI has crafted a comfy little nest for themselves where they can, outrageously, claim to be a victim here.

The downstream effects of allowing companies to evade liability by off-shoring manufacturing terrifies me. Is GM somehow off the hook for failures in their cars due to parts they didn't actually manufacture? Oh, sorry that airbag went off randomly and killed you. Please make sure to sue Superfriendly Happybag of Szechuan for that. Thanks.

In my book if you signed the contract to manufacture, the insurance contract, and sold the product under your own name and brand, YOU ARE RESPONSIBLE for the product and any defects/damages.

While I accept Steve's legal expertise, I believe that the only way to effect change here is to attack REI's revenue. A handful of angry outdoor enthusiasts trying to effect change in tort law is tilting at windmills. If you want to get traction, put that pic of Monika on a picket sign and educate people outside REI stores about the facts in this case. A week of covering every store in western Washington would, I think, achieve something.
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jtack
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Re: REI appeals Monika's case
« Reply #92 on: 05/22/13, 01:42 PM »

Sign me up for a shift!
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davidG
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Re: REI appeals Monika's case
« Reply #93 on: 05/22/13, 04:34 PM »

 5/26/2011, from REI to ErikT, above ...

...   "We trust that when this case is resolved, people will see that we have acted responsibly and in a manner consistent with REI’s enduring values. " ...


Libby Catalinich

Director, Corporate Communications

REI - Recreational Equipment, Inc.
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Gregg_C
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Re: REI appeals Monika's case
« Reply #94 on: 05/22/13, 05:06 PM »

5/26/2011, from REI to ErikT, above ...

...   "We trust that when this case is resolved, people will see that we have acted responsibly and in a manner consistent with REI’s enduring values. " ...
 

Yea, like pulling out all the stops to try and get the story killed.  I guess freedom of the press is not one of their "enduring values".    Despite their best heavy handed efforts, the story was aired.  Kudos to KOMO for standing up to bullying tactics.
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andyski
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Re: REI appeals Monika's case
« Reply #95 on: 05/23/13, 01:53 PM »

Yea, like pulling out all the stops to try and get the story killed.  I guess freedom of the press is not one of their "enduring values".    Despite their best heavy handed efforts, the story was aired.  Kudos to KOMO for standing up to bullying tactics.
What evidence do you have of REI bullying KOMO? Did I miss something?
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