Case studies and results details

Court of Appeals Rules in Favor of Defendant Regarding HOA Fees

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Dan L. Longo and Michelle A. Hancock have been defending the Bear Creek Master Association and The Avalon Management Group for its assessment and collection of HOA fees, contending that since there were no buildings on their condominium units they did not owe any fees. The Court of Appeals has repeatedly ruled in the Defendants’ favor.

Most recently, a Motion for Summary Judgment on behalf of The Avalon Management Group (“Avalon”) was granted. Subsequently, the defendant filed a Motion for An Award Fixing Attorneys Fees on behalf of Avalon. Avalon’s Motion was granted, awarding Avalon attorneys fees and costs of over $50,000.00.

Having previously collected over $66,000.00 in attorneys fees from the opposing litigants, this latest ruling from the Court brings the total to over $116,000.00 awarded on behalf of our clients after our continued success in the case.

Court Grants Summary Judgment – “Fear Factor” Stuntman Sees Case Tumble Out Of Court

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Prominent motion picture stunt coordinator who suffered possibly disabling injuries while wrapping up work on an episode of NBC’s “Fear Factor” had his personal injury lawsuit thrown out of Los Angeles Superior Court last week.

Judge Melvin D. Sandvig granted the Motion for Summary Judgment of defendant Featherlite, Inc., the manufacturer of a custom trailer which Douglas Neithercut, age 58, was working near on August 26, 2005.

Neithercut, the stunt coordinator for the now canceled but at one time popular television series where attractive participants competed in physically and psychologically challenging events, suffered multiple fractures and possible internal injuries when the lift gate of the trailer collapsed on him.

Neithercut and his wife sued the defendant on negligence and strict product liability theories. In its Motion for Summary Judgment, Featherlite argued that the trailer had been modified before Neithercut’s accident and that the modification not only prevented plaintiffs from recovering under California product liability law, but that the modification was the legal cause of the accident.

Neithercut, a veteran of many motion picture and television series, was expected to make a significant loss of earnings claim at trial, on top of claims for substantial medical expenses and a significant general damages claim.

“I am pleased that the court has vindicated our client, and reinforces the well known fact in the industry that Featherlite makes products that are not just the best in the business but also, the safest,” said attorney Guy R. Gruppie of Los Angeles’ Murchison & Cumming, counsel for Featherlite.

Plaintiffs, represented by Browne Greene and Geoffrey S. Wells of Santa Monica’s Greene, Broillet and Wheeler, are expected to appeal the court’s ruling.

M&C’s Successful Motion to Stay in Benzene Case Is Upheld on Appeal

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As lead liaison defense counsel in a mass wrongful death/toxic tort matter, Eric P. Weiss, working with Guy R. Gruppie, filed a novel Motion to Stay based on a forum non conveniens theory that the Alameda County Superior Court ultimately granted. Edmund G. Farrell, III, represented all defendants, including our client and lead defendant Fuji Hunt Photographic Chemicals, Inc., in a hotly contested and complex appeal in which he prevailed, effectively dismissing a potential multimillion dollar claim from California courts and forcing plaintiffs to pursue their claims in Texas. Morris v. AGFA Corporation, 2006 DJDAR 15311, Nov. 24, 2006.

Nancy Potter Prevails with Summary Judgment in Bad Faith Action Seeking Coverage for Wrongful Termination Suit

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Saving our client, US Liability, hundreds of thousands of dollars in potential indemnity and attorney fee awards, M&C associate Nancy N. Potter successfully moved for Summary Judgment in an insurance coverage matter arising out of an underlying wrongful termination case, in which some defendants claimed they should have been covered by an existing US Liability policy and sued for breach of contract, reformation of the contract and insurance bad faith. In granting our motion, Judge Lee Smalley Edmond concurred that it was never intended that these defendants would be covered by the policy, nor was our client required to provide them coverage.

Two Defense Verdicts Upheld On Appeal for Insurer – Reformation of Policy Not Allowed and Costs Under 998 Awarded to Insurer

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Murchison & Cumming, through the efforts of Edmund G. Farrell, III and Bryan M. Weiss, recently won two separate insurance coverage appeals on behalf of Century Surety Company.

Plaintiff claimed to be an additional insured under the Century Surety insurance policy. However, due to a clerical error unknown to Century Surety, the wrong entity was named on the additional insured endorsement. Plaintiff sought to have the policy reformed so as to name the correct entity as an additional insured. The trial court ruled in favor of Century Surety, denying Plaintiff’s claim, and the Court of Appeal affirmed the decision.

Plaintiff filed a second appeal based on the trial court’s award of costs to Century Surety following the judgment in its favor. Century Surety made a CCP Section 998 offer in the amount of $100 plus a waiver of costs. Plaintiff argued that it was not a “good faith” settlement offer and that costs should not have been awarded. The trial court again ruled in favor of Century Surety and was affirmed on appeal.

Truck Manufacturers Not Liable – Plaintiff Files Voluntary Dismissal

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The plaintiffs are residents of the San Pedro area, near the Port of Los Angeles, who alleged that they suffered various personal injuries and a decrease in value of their property because of increased air pollution in their neighborhood as a result of recent expansion of the Port. The plaintiffs named as defendants numerous shipping operations, cruise lines, port operators, trucking companies and diesel truck and engine manufacturers, among other entities.

Partner Scott L. Hengesbach of Murchison & Cumming represented Freightliner, LLC, a manufacturer of large diesel trucks, in this matter. M&C, through the assistance of Adrian J. Barrio, took the lead in preparing and filing a demurrer which attacked the entirety of the Complaint on the grounds that diesel truck manufacturers could not be held liable to the plaintiffs for their alleged exposure to diesel exhaust. The essence of the demurrer was that truck manufacturers could not be held liable for unspecified exposures of the plaintiffs to unidentified vehicles allegedly traveling near the plaintiffs’ residence. Other truck manufacturers, such as Mack and Volvo, joined the demurrer and/or filed similar demurrers.

Rather than attempt to oppose these demurrers, plaintiffs elected to dismiss its claims against all diesel truck and engine manufacturers and proceed against the balance of the defendants.

Successful Motions In Elder Abuse Case

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The deceased was a resident of the Windsor Gardens skilled nursing facility on and off during 2001 and the first half of 2002. In early December 2002, he died at an acute care hospital nearly six months after leaving Windsor Gardens. At the time of his death, he was 92 and had experienced numerous serious pre-existing medical conditions.

The Plaintiffs are the decedent’s widow and two of his adult children who sued Windsor Gardens alleging that elder care abuse contributed to his death. Dan L. Longo, lead counsel from Murchison & Cumming, propounded contention interrogatories to the Plaintiffs to determine the exact nature and basis of the allegations against Windsor Gardens. Based on the lack of supporting evidence revealed in the discovery responses, we filed a Motion for Summary Judgment on behalf of SNF Management, and a Motion for Summary Judgment/Adjudication on behalf of Windsor Gardens.

The Court granted the SNF Management Motion for Summary Judgment, freeing it from the case, and awarded costs of suit to SNF Management. The Court dismissed all but one cause of action against Windsor Gardens, resulting in a significant reduction in the damages Plaintiffs can recover, assuming they can meet the burden of proof at trial. The Medical Injury Compensation Reform Act (MICRA) limits now take effect, capping the possible damages at $250,000. This ruling, affirmed by the Court of Appeal, puts our client in an excellent bargaining position for settlement negotiations.

Product Defect Claim Rejected

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Guy R. Gruppie recently won a 12-0 jury verdict against product liablity claims arising from personal injury claims concerning plaintiff’s assembly of a novelty oil lamp in Bolden v. Target Stores.

Plaintiff Dismisses Action with Prejudice

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In a case handled by Jean M. Lawler and Daniel G. Pezold, plaintiff filed suit against the operators of a restaurant and bar for premises liability and negligence arising from an alleged assault and battery in which plaintiff suffered a broken leg.  The insurer denied coverage based upon an assault and battery exclusion contained in the policy.  The insured demanded judgment and assigned all rights against insurer arising from the coverage denial.  Based upon the assignment, plaintiff filed suit against insurer for breach of contract and bad faith.

Murchison & Cumming filed a demurrer and motion to strike, and plaintiff filed a notice of intent to amend.  The First Amended Complaint contained contradictions to the original allegations.  A demurrer and motion to strike the amended pleading were filed, along with a motion for monetary sanctions.  Prior to the hearing, plaintiff agreed to dismiss the action, with prejudice, in exchange for a mutual waiver of costs.

M&C Prevails on Choice of Law Motion Eliminating Plaintiff’s Claims for Breach of the Implied Covenant of Good Faith and Fair Dealing and Exemplary Damages

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M&C’s insurance company client issued an excess insurance policy to a world wide supplier of wine products. Its excess policy, as well as that of the primary insurer, were issued in Illinois. The headquarters for the supplier was located in Illinois at the time the policies were issued but a management-based office was thereafter located in California. A claim was filed against the insured following a substantial loss stemming from the alleged failure of the product in locations outside the U.S.

The insured sued both carriers in the Orange County Superior Court, California, seeking damages for alleged breach of contract, for breach of the implied covenant of good faith and fair dealing, and with a claim for exemplary or punitive damages. Both defendant insurers filed Motions for Choice of Law arguing that Illinois substantive law should apply, rather than California law. The motions were granted.

Thereafter, M&C filed a demurrer to the amended pleading by the Plaintiff, arguing that pursuant to Illinois statues (Ins. Code § 155) Plaintiffs’ claims for Breach of the Implied Covenant of Good Faith and Fair Dealing and for Exemplary Damages could not be maintained. The trial court granted the Demurrer and subsequently denied Plaintiff’s Motion for Reconsideration.

Jean M. Lawler, Bryan M. Weiss and Daniel G. Pezold, of the firm’s Insurance Law practice group, were the attorneys representing the excess carrier in this matter.