Volume 100 — Washington Reports, Second Series

<bold>[1] Insurance — Multiple Coverage — Personal Injury Protection —</bold> <bold>Primary Insurer — Excess Insurer — Subrogation.</bold> When a person injured in a nonowned automobile is provided excess coverage by separate insurance policies on his own automobile and the automobile involved in the accident, the insurer of the automobile involved in the accident is the primary insurer and is liable to its policy limits without apportionment whereas the insurer of the injured person's automobile is liable only to the extent the loss suffered exceeds the limits of the policy on the automobile involved in the accident. An excess insurer which has paid its insured's claim is subrogated to its insured's right to obtain payment from the primary insurer. <bold>[2] Appeal and Error — Delay — Frivolous Appeal — What</bold> <bold>Constitutes.</bold> For purposes of imposing terms and compensatory damages under RAP 18.9 for pursuing an appeal for delay only, an appeal is frivolous when, considering the record as a whole and resolving all doubts in favor of the appellant, the appellate court is convinced that it presents no debatable issues upon which reasonable minds might differ and it is so devoid of merit that there is no reasonable possibility of reversal.

<bold>[1] Judgment — Vacation — Review — In General.</bold> A trial court's decision regarding a motion to vacate a judgment under CR 60(b) will not be overturned on appeal unless the court manifestly abused its discretion. <bold>[2] Guardians — Guardianship Proceeding — Judicial Authority —</bold> <bold>Previous Transactions.</bold> The superior court in a guardianship proceeding retains its powers as a court of general jurisdiction. Among such powers is the power to confirm or set aside transactions between the guardian and ward occurring before the commencement of the guardianship relationship. <bold>[3] Judgment — Vacation — Fraud — What Constitutes.</bold> CR 60(b)(4), which permits vacation of a judgment for fraud by an adverse party, does not relate to substantive allegations or presumptions of fraud which were the subject matter of the litigation. <bold>[4] Guardians — Costs — Attorney Fees — Guardianship</bold> <bold>Proceeding.</bold> The attorney fee authorization for guardians established by RCW <cross_reference>11.92.180</cross_reference> is limited to attorney fees incurred by the guardian on the ward's, not the guardian's, behalf. DORE, J., did not participate in the disposition of this case.

<bold>[1] Automobiles — Emergency Vehicles — Duty of Care — Statutory</bold> <bold>Privileges — Effect.</bold> Neither the privileges granted a driver of an emergency vehicle by RCW <cross_reference>46.61.035</cross_reference>(2) nor the requirement of RCW <cross_reference>46.61.210</cross_reference>(1) that drivers of other vehicles yield the right of way to an emergency vehicle relieves the driver of an emergency vehicle of his duty under RCW <cross_reference>46.61.035</cross_reference>(4) of exercising due care for the safety of all persons. <bold>[2] Trial — Instructions — Sufficiency — Applicable Law.</bold> When read as a whole, instructions must accurately inform the jury of the applicable law. <bold>[3] Evidence — Tape Recordings — Hearsay — Business Records.</bold> Hearsay statements contained in tape recordings are not admissible as business records unless they come within one of the recognized exceptions to the hearsay rule. <bold>[4] Evidence — Review — Harmless Error — What Constitutes.</bold> An error in admitting evidence is not prejudicial if the evidence was cumulative and it is highly unlikely that its admission affected the outcome of the trial. <bold>[5] Negligence — Emergency Doctrine — Availability of</bold> <bold>Alternative Conduct — Necessity.</bold> The emergency doctrine, whereby a person's action when confronted by a sudden peril requiring instinctive reaction is deemed nonnegligent, is not applicable when there were no alternative courses of action available to the person. <bold>[6] Trial — Verdict — Juror Misconduct — Hearing — Necessity.</bold> Compelling jurors to testify as to their possible misconduct is a decision within the trial court's discretion. <bold>[7] Trial — Comment on Evidence — Harmless Error.</bold> A trial judge's remark which is subject to being interpreted as a comment on the evidence is harmless if the remark was an isolated incident and was followed by a curative instruction. <bold>[8] Witnesses — Impeachment — Bias — Scope of Cross</bold><page_number>Page 189</page_number> <bold>Examination.</bold> The scope of cross examination to show a witness' bias is a matter within the trial court's discretion. <bold>[9] Trial — Taking Case From Jury — Unresolved Factual Issues.</bold> Summary procedures for deciding issues as a matter of law are not appropriate when the issues involve unresolved factual disputes. ROSELLINI, J., did not participate in the disposition of this case.

<bold>[1] Sheriffs — Pensions — Disability — Loss of Election —</bold> <bold>Reversion to Former Position — Effect.</bold> Once an elected sheriff is defeated in a bid for reelection, he no longer is eligible for disability retirement from the office of sheriff. If the sheriff is authorized to revert to a position as deputy sheriff when leaving office, his eligibility for disability retirement depends upon his ability to perform the duties of the deputy position.

<bold>[1] Judges — Discipline — Findings of Commission — Consideration</bold> <bold>by Supreme Court.</bold> The findings of the Judicial Qualifications Commission are not binding on the Supreme Court but will be given considerable weight. <bold>[2] Judges — Discipline — Penalty — Recommendation of Commission</bold> <bold>— Effect.</bold> The Supreme Court will give serious consideration to the recommendation of the Judicial Qualifications Commission in determining the appropriate sanction for judicial misconduct but the ultimate decision rests with the court. The sanction should be sufficient to restore and maintain the dignity and honor of the judiciary, to protect the public from any future excesses, and to prevent reoccurrences. DORE, J., did not participate in the disposition of this case.

<bold>[1] Physicians and Surgeons — Psychiatry — Patient-Caused</bold> <bold>Injuries — Duty To Prevent — Scope.</bold> A psychiatrist has a duty to take reasonable precautions to protect any person who might foreseeably be endangered by his patient's mental problems. <bold>[2] Trial — Instructions — Sufficiency — Statutory Language.</bold> Instructions are reviewed to determine if, taken as a whole, they properly inform the jury of the applicable law and permit each party to argue his theory of the case. An instruction incorporating the language of a controlling statute is not error. <bold>[3] Torts — Sovereign Immunity — Discretionary Acts — What</bold> <bold>Constitutes.</bold> The extremely limited discretionary act exception to the abolition of sovereign immunity applies only to policy decisions resulting from a conscious weighing of advantages versus risks. <bold>[4] Mental Health — Commitment — Release — Sovereign Immunity.</bold> A psychiatrist's decision regarding the release of a patient from a state mental hospital does not constitute a discretionary activity for which the State is immune from liability. <bold>[5] Negligence — Proximate Cause — Determination.</bold> The issue of proximate cause is for the trier of fact when the facts and the inferences to be drawn therefrom are disputed. <bold>[6] Physicians and Surgeons — Malpractice — Standard of Care —</bold> <bold>Expert Testimony — Necessity.</bold> Expert testimony is not required to establish the standard of care for a mental health professional if the conduct complained of constitutes a gross deviation from ordinary care such as would easily be recognized by a nonprofessional. <bold>[7] Evidence — Subsequent Conduct — In General.</bold> Evidence of a party's conduct subsequent to the incident giving rise to the action is admissible if relevant to an issue in dispute. <bold>[8] Trial — Instructions — Request for Erroneous Instruction.</bold> A proposed instruction which does not state the law correctly need not be given. <bold>[9] Evidence — Opinion Evidence — Hypothetical Questions —</bold> <bold>Erroneous Factual Assumption — Effect.</bold> Including an erroneous assumption of fact in a hypothetical question does not<page_number>Page 422</page_number> prevent the expert from responding if the assumed fact is not material to the issue in dispute. <bold>[10] States — Torts — Action Against State — Cost Bond —</bold> <bold>Validity.</bold> The cost bond requirement of RCW <cross_reference>4.92.010</cross_reference> for plaintiffs bringing actions against the State violates constitutional equal protection guaranties. DIMMICK, J., concurs in the result only; STAFFORD, J., did not participate in the disposition of this case.

<bold>[1] Adverse Possession — Elements — Hostile Possession and Claim</bold> <bold>of Right.</bold> The element of adverse possession whereby the possession must be hostile and under a claim of right made in good faith requires only that the claimant treat the land as his own as against the world throughout the statutory period. The nature of the possession is measured objectively, and the subjective belief of the claimant regarding his true interest and the interest of others as well as his intent to dispossess or not dispossess another is irrelevant to a determination of whether the element has been established. (<italic>Peeples v. Port of Bellingham</italic>, <cross_reference>93 Wn.2d 766</cross_reference>, and other similar cases are overruled insofar as they are inconsistent.) <bold>[2] Adverse Possession — Elements — Open and Notorious</bold> <bold>Possession.</bold> The open and notorious element of adverse possession has been satisfied if the true owner has actual knowledge of another's possession, or if the claimant uses and occupies the land in such a manner that, in the light of the character of the land, a reasonable person would assume him to be the true owner. STAFFORD, J., did not participate in the disposition of this case.<page_number>Page 854</page_number>