REI appeals Monika's case

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.

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. 

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

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?

www.rei.com/aboutrei/directors.html
maybe worth sending some mail to REI's board asking them that very question?

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
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.

E-mail sent. 
Let's flood REI with a bounty of boycotting backcountry users.  Screw'em.

Thanks Pete for the link. Email sent.

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?

Done.

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

Ivo

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

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

clearly REI is off on this one

Another great example of Profits over People.

Absolutely disgusting.

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).

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.

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.

REI is like the Wal-Mart of outdoor/sporting equipment stores.  Never really liked shopping at either, nor their customer service.

Pretty short-sighted decision on REI's part. I sent my email -- thanks for letting us know Ryan.

Web Page for sending messages directly to the board.

www.rei.com/aboutrei/boardcontact.html

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

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

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

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

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





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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alan

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.....

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?

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

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. 

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...
www.courts.wa.gov/opinions/pdf/65463-2.p...=r&cq=&id=4d50eb385f

I agree with that analysis, smoogle. I hope that the WA Supreme Court agrees with you and Division I.