Gray v. Hanford
Third District Court of Appeal
Case No. C052180

A homeowner represented by the Firm was sued under a premises liability theory for the wrongful death of an equipment operator who was crushed by a large concrete slab which was being unloaded from a flatbed trailer which had been parked the day before on the homeowner's property. On behalf of the homeowner, the Firm moved for summary judgment, contending that the homeowner was not negligent. The firm introduced undisputed evidence that the homeowner had not loaded or secured the load and had not transported the trailer, but had only given general directions as to where the trailer should be parked. Plaintiffs and one of the other defendants (whose employees had loaded the trailer) opposed the summary judgment motion.

The trial court agreed that the homeowner had not been negligent and granted the homeowner's summary judgment motion. Judgment was entered in favor of the homeowner. Less than two months later and just before trial, the two remaining defendants settled with the plaintiffs. Then, the remaining defendant which had funded the bulk of the settlement with the plaintiffs, appealed from the judgment in favor of the homeowner. The basis of the appeal was the contention that the homeowner's summary judgment motion should not have been granted. In taking the appeal, the settling defendant was seeking indemnity against the homeowner for some portion of its $1.6 million contribution to the settlement with the plaintiffs.

In an unpublished decision, the Third District Court of Appeal found in favor of the homeowner. The appellate court agreed with the lower court's conclusion that the homeowner had not been negligent. The appellate court therefore affirmed the judgment in the homeowner's favor and awarded the homeowner costs on appeal.

Excellent Settlement

Trombley v. Bailey
El Dorado County Superior Court Action No. PC 2006 0405

In this wrongful death action, the Firm represented a property owner, who was also a licensed general contractor, and who was building his own home. The property owner/general contractor arranged for the purchase and delivery of roof trusses to his property, and signed a written contract with the roof truss company.

In its contract, the roof truss expressly retained control over the decision of whether the products would be delivered to the job site or delivered to the end of the driveway adjoining the street. Prior to delivery, another employee of the roof truss company inspected the property owner's driveway and determined that delivery to the job site could be safely accomplished.

On the day of the accident, the roof truss company's truck driver, operating a semi- tractor equipped with a crane and flatbed trailer, arrived at the property. The truck driver apparently decided it was safe to deliver the roof trusses to the homesite and drove up the driveway without incident.

After the roof trusses were unloaded, because there was no place at the top of the driveway to turn around, the truck driver began backing the tractor trailer down the driveway. After he had gone about 60-80 feet, the brakes on the trailer inexplicably locked up. Leaving the truck's engine running and the transmission in neutral, the truck driver got out of the cab to investigate.

For reasons unknown, before he got out of the cab, the truck driver failed to set the truck's parking brake. The unattended truck suddenly began to slowly roll backward down the driveway. The truck driver ran to the cab and while the truck was moving, he attempted to climb aboard, but lost his balance and was pinned under one of the wheels of the tractor. The 37-year-old truck driver died a short time later.

The truck driver's heirs, his young wife and three daughters, filed a wrongful death action against the property owner based upon general negligence and premises liability theories. Plaintiffs then made a statutory settlement demand for the property owner's homeowners policy limits of $500,000. The Firm responded on behalf of the property owner by contending that the property owner had not been negligent in the management of his property.

The Firm also contended that the property owner had no liability as a matter of law because he owed the driver no legal duty to exercise due care. In taking this position, the homeowner relied upon the Privette doctrine, which stands for the proposition that a hirer of an independent contractor owes no legal duty of care to the independent contractor's employees unless the hirer retains control over the operative details of the work or is aware of a hazardous condition unknown to the independent contractor.

The statutory demand was allowed to expire.

At a court-ordered settlement conference, this wrongful death case settled for $45,000.

Annual Firm Ski Trip

Our annual ski trip will be held this year on February 29, 2008. Instead of our usual North Star adventure, we will be traveling to Heavenly.

New Attorney

The law firm is pleased to announce that longtime Sacramento defense attorney and all-around good guy, John Thurber, has recently joined the firm. For more on his background, please see the attorney profiles section.

Defense verdict!

Jim Donahue recently defensed a rear end auto accident for State Farm in Sacramento Superior Court. According to Jim, the keys to victory included good photographs of vehicles, excessive medical treatment and an overreaching plaintiff.

It's a Win!

Jeff Lambert, with a small assist from Bill Blakemore, bested the now classic plaintiff attorney formula (i.e. low speed impact, post arbitration surgery, policy limits demand) in a two-week trial in Sacramento. The case featured many interesting twist and turns, including the courts decision to exclude photographs showing minimal damage to the plaintiff's vehicle (not relevant and prejudicial in the absence of biomechanical testimony) and denial of a motion to disqualify the plaintiff's firm. Even with the post arbitration surgery, Jeff Lambert managed to bring in the verdict for less than the arbitration award. Truly amazing.

Justice Prevails

Bill Blakemore brought in a binding underinsured motorist award for $30,000 below the pre arbitration offer (including new money and relinquishment of statutory setoffs). The accident involved multiple rollovers of the claimant vehicle without any comparative fault. While most of the injuries were undisputed, the attempt to attribute bilateral carpal tunnel syndrome and related surgical releases to the accident was hotly contested. Plaintiff's expert, Dr. Thomas O'Loughlin, is a real patient advocate in the Fresno area and one to watch out for in the future.

Summary Judgment Granted

In San Joaquin County, Bill Blakemore had summary judgment granted in favor of their client, the Stocken Open Air Mall. Plaintiff had stored her carnival train at defendant's property where it was damaged by a fire which was started by a juvenile on adjoining property. The court agreed (finally) that the Mall owed no duty to protect plaintiffs property as the criminal conduct of the juvenile defendant was not foreseeable. Of interest, the court disregarded the declaration (in English) of an alleged employee of defendant, who later testified that he was unable to read or write English.

New Attorney - Part II

Earlier this year, the firm was able to steal away Huong Vu from the Sacramento County District Attorney's office. To learn more about Huong, check out her bio in the Attorney Profile section.

Summary Judgment Granted - Written Release

In Sacramento County, William Blakemore had summary judgment granted in favor of their client MechanicalBulls.Com. Plaintiff's mother signed a release of liability prior to allowing her minor son ride the mechanical bull operated by defendant. Plaintiff broke his wrist when he fell off of the mechanical bull. The court agreed that the mechanical bull operator owed no duty to the minor plaintiff under the release of liability signed by his mother. The negligent infliction claims of the mother and other family members were also dismissed.

"It's Not My Dog" Defense Prevails

In Sacramento Superior Court, Mark Bates filed a motion for summary judgment in a dog bite claim against the non resident landlord of the property who had no prior notice of any dangerous propensities possessed by the tenants dog. The court agreed that the landlord owed no duty to plaintiff since he did not own the dog, live at the residence or have knowledge of the dog's dangerous propensities.

Habitability Claim Defensed at Arbitration

Plaintiff tenants claimed that their landlord and the property management company violated Civil Code section 1942.5 by raising rents and evicting them in retaliation for reporting allegedly substandard living conditions to city officials.

At arbitration, Brian O'Conner sifted through the extensive documentation and testimony to clearly show that the defendants timely responded to each of the plaintiffs' complaints, and that the plaintiffs, with the help and advice of their former counsel, had timed their complaints in such a way as to set up the presumption of retaliation under Civil Code '1942.5. The arbitrator entered an award in favor of defendants, including recovery of costs.

Plaintiff Walks Out of Deposition and Dismisses Case

Following a multi-car automobile accident, plaintiff alleged that defendant was at fault for the accident despite her contrary statements to the police at the scene. Her story had changed when the person actually at fault was cleared of fault at trial in traffic court.

However, at plaintiff's deposition, Brian O'Conner, focusing on the physical evidence, forced plaintiff to revert to her original version of the events. At a subsequent witness deposition attended by plaintiff, she was placed in such a bad light that she left before the deposition was concluded. Plaintiff thereafter dismissed her case.

Insurer Not Responsible For Acts of Agent

John McFadden recently filed a motion for summary judgment on behalf of an insurer in a case where plaintiff alleged the agent had misrepresented the underwriting requirements to renew a policy. At issue was the equine loss of use coverage for a thoroughbred horse trained for eventing. The original policy of insurance included mortality, major medical and loss of use coverage. Underwriting requirements for renewal required a new veterinarian certificate of good health.

As a policy came up for renewal, the agent contacted plaintiff informing of the pending expiration and provided an application and letter stating the requirements to renew the policy. A new veterinarian certificate of health was not provided though the full amount of the premium was tendered.

The carrier, pursuant to its underwriting rules, issued the policy for mortality and medical payments coverage, but did not renew the policy provision for Aloss of use@. Within a month of the policy's issuance, the horse developed a medical condition rendering it no longer viable for Aeventing@. The carrier denied the loss of use claim, paying only the major medical. The plaintiff then sued the agent and the insurance carrier.

Our defense via motion for summary judgment is based on the case of Rios v. Scottsdale Insurance (2004) 119 Cal. App. 4th 1020, which holds that the insurance carrier shall not be held responsible for the errors and omissions of its agent made in the issuance of a new policy of insurance. Our situation varies somewhat as this was a renewal of an existing policy. The hearing date is December 9, 2004.

A Closed File Is A Good File

Anna Niemann racked up an impressive track record for case resolution, averaging better than a settlement and a half per month in 2004. Three of those cases settled on the day of trial for an average of 15% less than the last amount demanded by the plaintiffs.

Settlement Demands Alone Are Insufficient

In November, 2004, the 3rd District Court of Appeal upheld the trial court's order of dismissal of an action that had been originally filed back in 1998. While we conducted the necessary discovery, plaintiff's efforts consisted exclusively of escalating settlement demand letters, each of which were promptly rejected. Anna Niemann filed a motion for involuntary dismissal in November of 2003, which was vigorously opposed on numerous grounds. However, the trial court concluded, and the court of appeal agreed, that settlement demands do not constitute diligent prosecution.

Failure to Cooperate in Discovery Leads to Dismissal

In a personal injury action, plaintiff alleged significant injury and on going treatment, including a referral to surgery, following a low impact rear end accident. After receiving only unverified discovery responses and following a series of failures by the plaintiff to appear for his deposition, Ms. Niemann successfully moved for a terminating sanction, on ground of misuse of the discovery process.

Case Dismissed!

In San Francisco County, Dave Erickson obtained dismissal of an asbestos lawsuit brought against a nationally known mail order seller of electronic parts and supplies. The case illustrates the widening scope of potential asbestos defendants which did not manufacture products containing asbestos, but may have been involved in distribution of these products containing minimal amounts of the substance now known to present serious health risks. Plaintiff attorneys are looking for new target defendants after bankrupting numerous corporations that manufactured asbestos with thousands of claims. Following extensive documentation of the client's corporate history and filing a summary judgment motion based on corporate succession and other legal theories, plaintiff's counsel recognized the lack of merit against Dave's client and dismissed the case for a waiver of costs.

Accident Related?

Dave Erickson recently obtained a $34,000 UIM arbitration award following the claimant's settlement demand for the remaining $93,000 policy limits. The claimant, who appeared to have degenerative hip disease in her left hip prior to a motor vehicle accident with an under insured motorist, subsequently had hip replacement surgeries in both hips. Dave was able to demonstrate that the two post accident hip replacement surgeries were not accident related and obtain an arbitration award that was fair to both insured and insurer.

Interesting Facts

Dave Erickson recently settled bodily injury claims for heart valve replacement and pacemaker surgeries, psychiatric hospitalization, corresponding medical bills and wage loss allegedly resulting from emotional distress after the plaintiff was stopped for driving a rental car that had been previously reported stolen. The plaintiff was stopped by a sheriff's deputy in Wyoming after it was observed that the vehicle was listed as stolen in the national NCIC database. The plaintiff had innocently rented the car after the vehicle had managed to find its way back into the rental car company's fleet in the days after the attacks on 9/11. The plaintiff, who managed to immediately clear himself with paperwork showing he had properly rented the car, drove back home where he then suffered an alleged complete nervous breakdown with subsequent physical problems. The case settled after extensive discovery and mediation with Raul Ramirez, a retired federal judge.

Ski Condo Split up

Dave Erickson successfully concluded a recent bench trial for the partition of real property located in Alpine County. The co owners, who were tenants in common, were unable to agree on management and use of the property. Dave was able to obtain a favorable price for the sale of his client's undivided 50% interest in the property, and prevailed on claims of ouster and rental reimbursement brought by the other owner while obtaining a judgment for excess sums advanced by his client to retire the mortgage debt encumbering the property.

No General Damages Awarded at Trial

In a recent jury trial in San Joaquin Superior Court, Thomas Connolly succeeded in bringing a verdict in for medical specials only, despite the fact that the case involved a clear liability, rear end accident. In talking to the jury afterward, it became clear that although they felt the amount of the medical specials was somewhat high and possibly goal motivated, they liked the plaintiff and did not want to punish her by providing a verdict below the amount of the medical specials. The jury determined that plaintiffs limited provable general damages did not warrant any general damage award. This determination was helped along by Tom's impeachment of plaintiff's inflated trial statements with her much more modest deposition testimony.

The final jury verdict of $4,700 was $3,000 below plaintiff's attorney's best pretrial settlement demand.

Defense Verdict in Binding 3-Day UIM Arbitration

Claimant was rearended in the course of employment on 10/20/99 and has not returned to work as an auto technician with CSAA. Claimed injuries included TMJ, shoulder impingement and cervical disc bulge. Medical bills totaled $90,000, with an alleged income loss of over $150,000. The Workers Compensation lien was settled by claimant from $100,000 received from the underlying tortfeasor. Demand was $500,000. The UIM policy was $1,000,000. Jim Donahue argued that the claimant's case was worth less than the $100,000 already received, and the arbitrator agreed.

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