State Court judge rules Sellers can be vicariously liability under RCW 80.36.390 and RCW 80.36.400
- Peter Schneider
- Sep 11
- 3 min read
Telemarketers often have bad timing. How many times have they called you while you were in the middle of something else?
Sometimes their arguments in court have bad timing too. Nathen Barton sued a couple insurance companies for unwanted calls, and defendant American Family Life Assurance Company of Columbus (the quacking duck Aflac) filed a motion to dismiss with what they thought must be a winning argument. They argued that Washington’s DNC statute, RCW 80.36.390 only gives a cause of action to persons “aggrieved by repeated violations of this section.” . . . Washington’s DNC statute is silent as to vicarious liability. They went on to make the same argument on RCW 80.36.400 [t]his subsection thus applies to callers, that is, “person[s] [who] use an automatic dialing and announcing device.”
Talk about bad timing, Mr. Barton came back with an opinion dated two days prior from the Clark County Superior Court that addressed this very issue. First, some background.
THIS MATTER came on regularly for bench trial before the undersigned Judge on July 29, 2025 on Plaintiff Nathen Barton’s Motion for Default Judgment. Plaintiff appeared pro se and Defendant Insurance Supermarket Inc. did not appear. The Court having reviewed Plaintiff's Motion and other filed pleadings, heard testimony from Mr. Barton and arguments, and being fully apprised, the Court FINDS as follows: Plaintiff initiated this action in Clark County Superior Court on July 5, 2024. Plaintiff moved for default against Defendant Insurance Supermarket Inc. (“Insurance Supermarket” or “IST’) based on this Defendant not appearing or defending in the present action. This Court granted default pursuant to CR 55(a) on February 21, 2025. The Court having considered the sworn testimony of Plaintiff, admitted exhibits and argument of Plaintiff, makes the following findings of fact and conclusions of law on Plaintiff's request for damages pursuant to CR 55(b)(2): Plaintiff seeks statutory damages against Insurance Supermarket under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and its implementing regulations. Plaintiff also alleges violations of Washington law under RCW 80.36.390 and RCW 80.36.400. With respect to the specific provisions of these statutes that Plaintiff alleges ISI violated and the damages he requests accordingly, the Court relies on the testimony and evidence presented at trial, the pleadings on record, as well as the summary of violations and damages requested in Plaintiff's Trial Brief. Plaintiff presented sworn testimony and other evidence that between December 1, 2022 and January 6, 2023, he received 34 unsolicited, pre-recorded, automated calls to a personal cell phone number registered to his name from Defendant EDM Leads, LLC (“EDM”). In his Complaint, Plaintiff identified the cell phone number as a “residential telephone line”. Plaintiff also testified his telephone number was registered on the Federal Trade Commission’s national Do Not Call registry more than 31 days before the calls at issue in this case. The pre-recorded telephone call used the name script with a female voice identifying herself as “Sam with BIS”. Plaintiff testified that these calls were unwanted and made without his consent. Plaintiff presented circumstantial evidence that the calls he received matched calls another party received from ISI (through contracting with EDM) and sued under similar facts in a federal Colorado case (Ulery ,et al. v. Insurance Supermarket, Inc., et al, 1:23-cv-00490 (U.S. Dist. Col.)). In addition to the Colorado case assertions, Plaintiff swore in his complaint that the “ISI was aware someone was initiating robocalls from ‘Sam’ and transferring those calls to ISI prior to and during the time period Barton received the ‘Sam’ calls,” and “ISI contracted with EDM to place calls on its behalf...” Based on the uncontroverted facts, Plaintiff has demonstrated that ISI is responsible for the 34 unsolicited, pre-recorded calls made to Plaintiff's cell phone in violation of 47 U.S.C. § 227 and RCW 80.36.390 and RCW 36.400. [There it is, Insurance Supermarket held vicariously liable for the calls placed by EDM leads]
Aflac gets to reply to this Clark County Superior Court opinion, so I'll update this post after they do.
Got a Case Like This?
If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
Are telemarketers bothering you in Washington, Oregon, or Montana?
I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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