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WPI 107.11 Breach of Fiduciary Duty—Damages

6 WAPRAC WPI 107.11Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 107.11 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part IX. Particularized Standards of Conduct
Chapter 107. Legal Malpractice
WPI 107.11 Breach of Fiduciary Duty—Damages
It is the duty of the court to instruct you as to the measure of damages. [By instructing you on damages, the court does not mean to suggest for which party your verdict should be rendered.]
[If your verdict is for(name of plaintiff), then] you must determine the amount of money that will reasonably and fairly compensate(name of plaintiff)for such damages as you find were proximately caused by(name of defendant)'s breach of fiduciary duty.
[If you find for(name of plaintiff),]you should consider the following types of damages:
(Insert here the elements of damages applicable to the particular case; for further discussion, see the Comment.)
The burden of proving damages rests with(name of plaintiff). It is for you to determine, based on the evidence, whether any particular type or amount of damages has been proved by a preponderance of the evidence.
Your award must be based on evidence and not upon speculation, guess, or conjecture.
This instruction addresses damages for cases involving a breach of fiduciary duty. For cases that involve negligence-based malpractice, use WPI 107.08 (Legal Malpractice—Negligence—Damages) instead of this instruction.
Complete this instruction by inserting appropriate elements of damages. For a general discussion of damages, see the Comment to WPI 107.08 (Legal Malpractice—Negligence—Damages). For a discussion of noneconomic damages, see the Comment below.
If there is a directed verdict or admitted liability, delete the first three bracketed phrases. If cross-claims or third-party claims are asserted, modify the text and/or use WPI 41.05 (Counterclaim—Cross-Claim—Third-Party Claim).
Damages generally. The elements of damage may be different for breach of fiduciary duty cases than for negligence-based malpractice claims. The appropriate elements of damage for fiduciary duty cases will depend largely on the type of duty that was breached.
Noneconomic damages. Washington law has not yet addressed the circumstances under which noneconomic damages might be available in fiduciary duty cases. However, a plurality of the Washington Supreme Court has held that damages for emotional distress are recoverable in negligence based legal malpractice cases under certain discrete circumstances. See Schmidt v. Coogan, 181 Wn.2d 661, 335 P.3d 424 (2014), and the discussion of this topic in the Comment to WPI 107.08 (Legal Malpractice—Negligence—Damages). See generally Mallen, 3 Legal Malpractice §§ 21:19–21:20 (2017 ed.).
The delineation between emotional distress damages and damages awardable in a legal malpractice/ breach of fiduciary duty action under more traditional theories of liability should be addressed in an appropriate verdict form. See WPI Chapter 45 (Forms of Verdicts).
[Current as of September 2018.]
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