Case studies and results details

Defense Verdict on Two Appeals

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Edmund G. Farrell, III and Bryan M. Weiss won two separate appeals on behalf of Century Surety.  The Plaintiff claimed that it was 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 and the court of appeal affirmed the decision.

Plaintiff filed a second appeal, which was based on the trial court awarding costs to Century Surety following the judgment in its favor.  Century Surety had 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.  Again, the trial court ruled in favor of Century Surety and was affirmed on appeal.

Motion For Summary Judgment Granted In Medical Malpractice Case

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Dan L. Longo and Aileen Rodriguez successfully filed a motion for summary judgment on behalf of a surgeon accused of a medical malpractice.

Plaintiff underwent hernia repair surgery in December 2000, and again in September 2002. During the second surgery, the surgeon discovered that the first surgery was completed incorrectly. The plaintiff brought a complaint against the surgeon who first performed the hernia surgery for medical negligence and lack of informed consent in September 2003.

The defense moved for summary judgment arguing that plaintiff’s claim was barred by the one year statute of limitations of C.C.P. � 340; and plaintiff had admitted in his response to the Request for Admissions, that he had signed a written consent form, which explained the risks/benefits of the surgery. The defense presented evidence that from May 2001, through July 2002, plaintiff complained to other physicians of chronic pain in the same surgical area since the first surgery, complained that the defendant did “not do a good job” in the surgery; verbally informed his health insurance company and the State of California Bureau of Managed Healthcare that he would not see the defendant again; was diagnosed by subsequent physicians with hernia recurrence; and had even scheduled a second hernia surgery with a different surgeon to treat the same pain in the same area .

The court granted summary judgment, even after the court granted the plaintiff additional time to file opposition. The court held that the plaintiff had a reasonable suspicion of wrongdoing before September 2002, such that his claim was barred by the one year statute of limitations.

Successful Motion In Elder Abuse Case

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Dan L. Longo, Robert S. Ackley and Michelle Hancock recently won a successful motion for summary judgment on an elder abuse case..

Plaintiff was a resident of Windsor Gardens Hawthorne on and off throughout 2001 and 2002. In early December 2002, she died at another skilled nursing facility nearly six months after leaving Windsor Gardens. At the time of her death, plaintiff was 92 and had experienced numerous serious pre-existing medical conditions. .

Plaintiff’s family sued Windsor Gardens alleging elder abuse contributed to her death. The defense propounded contention interrogatories to determine the nature and basis of the contentions against Windsor Gardens. The discovery responses revealed a lack of support for the allegations. Based on these responses, defense filed a Motion for Summary Adjudication on the Elder Abuse, Fraud, and Willful Misconduct causes of action, and to get rid of the Punitive Damages claim. .

The Court granted the defense’s Motion for Summary Adjudication. The Motion resulted in a significant reduction in the damages that plaintiff can recover, assuming that plaintiff can meet the burden of proof at trial. The Medical Injury Compensation Reform Act (MICRA) limits cap the damages at $250,000. This ruling was also affirmed by the Court of Appeal. This successful motion puts the defense in an excellent bargaining position for settlement negotiations.

Alleged Brain Injury Case Resolves With Client Recovering Defense And Indemnity Costs

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Guy R. Gruppie, Robert Clayton and Tina Varjian, recently obtained a very favorable result for a general contractor client in a major injury case that went to trial in the Orange County Superior Court.

The lead plaintiff, a local banker earning a six-figure income, claims to have hit a bump while on a bike ride near his home. Plaintiff allegedly was thrown over his handlebars, landing so hard on his head that his helmet was “crushed.” .

There were no witnesses to the accident, and the helmet was discarded by plaintiff’s wife, who also joined the lawsuit on a loss of consortium claim. The lead plaintiff claimed several orthopedic injuries plus a traumatic injury to his brain that left him cognitiviely and emotionally impaired, and returned to work only briefly before going on permanent disability. At trial, he claimed more than $3 million in lost future earnings among other damages. Plaintiff claimed that the bump, at the transition of a bike lane and bus deceleration pad, constituted a dangerous condition. He and his wife brought suit against the city, the county, and the general contractor, who was retained to oversee a slurry seal project that was completed two years before the accident, the subcontractor that performed the slurry seal job, and the project engineers..

Summary adjudiction was granted on the subcontractor’s defense obligation, and 100% of the indemnity costs were reimbursed, along with 95% of the attorney fees. The client paid approximately $6,000 out of the total $200,000 in fees and costs occurred in defense.

Sub-contractor’s Liability Insurer Wins Summary Judgment

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Todd A. Chamberlain and Daniel G. Pezold successfully filed a motion for summary judgment on behalf of Employers Fire Insurance Company in an insurance contribution action. .

Employers Fire insured a HVAC sub-contractor whose employee was seriously injured in a fall from a two- story construction site ladder when a shipping bracket camouflaged as a ladder rung gave way. The employee settled the liability case for $2.1 million. .

The insurers who funded the settlement then brought claims for implied indemnity and contribution against Employers and others for reimbursement of the settlement monies. The theories advanced by the insurers included claims that the general contractor was an additional insured under Employers policy. The defense filed a motion for summary judgment on behalf of Employers, asserting that the additional insured certificate and endorsement was issued the day after the accident and thus provided no coverage for the additional insured, or standing for the HVAC sub-contractor’s insurer against Employers.

After a hotly contested hearing, the court granted the motion for summary judgment finding as a matter of law that the general contractor was not an insured under the policy at the time of the accident barring any coverage under the HVAC sub-contractor’s liability policy.

Defense Verdict Granted in Premises Liability Action

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Russell S. Wollman, Pamela J. Marantz and Tina Varjian successfully defended a premises liability case involving a slip and fall accident occurring at an Inn.

Plaintiff allegedly slipped on a piece of loose carpeting and, falling down two flights of stairs and injuring his shoulder, knee and back.  Plaintiff claimed he required surgery on his right shoulder, neck and left knee due to the fall.  His medical expenses totalled $10,000 and estimated future medical expenses would total $50,000 to $75,000.  Plaintiff claimed that the Inn should have known about the dangerous condition and fixed the problem.

The case was defended on two theories: (1) that plaintiff did not offer any notice of the alleged accident and; (2) the alleged incident probably did not occur.  During the trial, a witness testified that she had seen plaintiff lay down at the top of the stairs just prior to this accident occurring.

The defense presented medical records proving that plaintiff’s knee, shoulder, neck and back injuries existed prior to the alleged incident.  Plaintiff also testified that he had never made a claim before this accident and had never been on disability.  Records were uncovered, which showed that plaintiff had been on disability multiple times prior to this incident and filed prior worker’s compensation claims.

The jury, in a 10-2 decision, determined that there was no notice of a dangerous condition.

Successful Motion in Breach of Contract Suit

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Nancy N. Potter and Casey Yim successfully represented Kaiser Foundation Health Plan which was sued under the Employee Retirement Income Security Act (ERISA) for declining to refer a health plan member to an out-of-plan eating disorder clinic.

Plaintiff sought treatment for bulimia nervosa from a non-Kaiser facility.  Plaintiff then presented a claim for reimbursement to Kaiser under their health plan.

Kaiser denied the claim because Kaiser offered a range of treatments for eating disorders, including the services sought by the plaintiff.  Plaintiff utilized the appeal process within Kaiser, but was denied reimbursement for the cost of the in-patient treatment. Plaintiff then sued in U.S. District Court, under ERISA, seeking damages for reimbursement of their medical expenses, in the amount of $45,000, plus attorney’s fees.

The parties filed cross-motions for summary judgment. The key issue was the proper standard of review of Kaiser’s decision denying the plaintiffs’ claim – “abuse of discretion” or “de novo”.  Plaintiff contended that the standard should be “de novo” because Kaiser’s appeal board was inherently biased and had a conflict of interest in considering the reimbursement claim.

The defense successfully argued that the applicable case law  (Barnett v . Kaiser Foundation Health Plan, Inc. 32 F.3d 413, 415 (9th Cir. 1994)) established that because Kaiser was a not-for-profit entity, there could be no conflict of interest.  Thus, the appropriate standard of review of Kaiser’s decision was “abuse of discretion”, not  “de novo”.

The judge agreed, finding that Kaiser had not abused its discretion in denying reimbursement, and granted Kaiser’s motion for summary judgment, and denied plaintiffs’ motion.

Successful Summary Judgment In Premises Liability Case

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Michael J. Nunez and Robert Clayton successfully filed a motion for summary judgment in a premises liability case.

Plaintiff attended a seminar presented by L.A. Neighborhood Housing Services Corp. (“LA NHSC”) at the Radisson Hotel in Los Angeles and alleged that she lost her footing and fell down the stairs that she was descending. Plaintiff’s Complaint originally named only the property owner (i.e. Radisson Hotel) as a defendant. On the eve of trial, Plaintiff amended her Complaint to name LA NHSC. Plaintiff alleged that the defendants were negligent in the management and maintenance of the property because a dark stairwell was allowed to exist on the property.

Upon service of Plaintiff’s amended Complaint, counsel for LA NHSC successfully moved for a trial continuance and filed a Motion for Summary Judgment. The defense moved for summary judgment on the grounds that the undisputed evidence in the case revealed that LA NHSC was not responsible and did not maintain the lighting on the premises. It was asserted that summary judgment was therefore warranted because LA NHSC owed no duty to Plaintiff.

Additionally LA NHSC asserted that Plaintiff admitted that she observed the lighting condition in the stairwell before she knowingly and voluntarily choosing to descend the stairs. Therefore, summary judgment was proper under the “open and obvious” defense as plaintiff was aware of the allegedly dangerous condition before her fall and thus, defendants had no duty to warn her of the same. The Court agreed, and granted LA NHSC’s motion on both grounds. Judgment was entered in favor of LA NHSC and against Plaintiff.

Escalator Malfunction Raises Product Liability And Negligence Issues – Case Voluntarily Dismissed After Partial Summary Judgment Granted for Defense

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Guy R. Gruppie, Michael J. Nunez and Joshua Rosen recently obtained a partial summary judgment and voluntary dismissal of the remaining counts of a personal injury action filed against Mitsubishi by a Los Angeles Police Dept. officer.

The officer alleged that in June 2002, the escalator he was riding on at the MTA’s Westlake Red Line Station malfunctioned, stopped abruptly and caused him to suffer a significant injury to his left knee. The injury eventually required surgery, and the officer made a claim of medical expenses, pain & suffering, and lost wages.

Plaintiff’s complaint alleged strict products liability, breach of warranty and negligence. The defense’s motion for summary judgment/summary adjudication was partially granted, as the court ruled as a matter of law that Mitsubishi was not involved in the manufacture, sale, design or distribution of the escalator system/components. However, the court denied the motion on the negligence count.

Further discovery ensued after which plaintiff accepted Mitsubishi’s Statutory Offer to Compromise for a waiver of costs and attorney fees, as the defense demonstrated through lay and expert witnesses that it breached no duty owed plaintiff in its maintenance of the escalator system. This case is the latest in a string of successful court rulings that Murchison & Cumming has obtained for Mitsubishi.

Motion For Summary Judgment Successful On Recreational Use Immunity suit v. Utility

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Murchison & Cumming, LLP successfully obtained a motion for summary judgment in a personal injury case, the matter having been handled by Friedrich W. Seitz, Kenneth H. Moreno and Gina E. Och.

Two minor girls were injured when one of the girls contacted electrical equipment at a substation owned by Southern California Edison Company (“Edison”). The two girls lived in the neighborhood next to the substation. On the day of the incident, the girls were playing ball and the ball flew over the wall of the substation and into a fenced-off area containing the electrical equipment. The two girls decided to retrieve the ball and climbed onto the substation’s surrounding brick wall and over into the substation. One of the girls then climbed a locked, chain link fence, measuring 6 feet tall, and jumped down into the area with the electrical equipment. As she was reaching for the ball, she made contact with the electrical equipment. Warning signs and “Do Not Enter” signs were posted around the perimeter of the substation, inside the substation, and around the perimeter of the chain link fence. Additionally, barbed wire, chain link fencing, and spikes were affixed to the outside brick wall.

Plaintiffs sued Edison for negligence and premises liability. In response, the defense filed a Motion for Summary Judgment based on a statutory immunity codified at Civil Code section 846, commonly known as the “recreational use immunity.” The immunity is intended to prohibit any negligence claims against property owners by uninvited, non-paying recreational users. Edison argued that the recreational use immunity applied in this instance because it met the two elements of section 846: (1) it owned the substation; and (2) plaintiffs’ injuries resulted from their entry into the premises for a recreational purpose. Based on the legislative purpose, the statutory language, and current case law, the Court granted the defense’s summary judgment motion. The Court found that not only did Edison own the substation, but that the girls’ actions were included in the statutory definition of “recreation.” Moreover, the Court held that none of the three statutory exceptions to the recreational use immunity applied. Namely, there was no evidence that (1) Edison willfully or maliciously failed to guard or warn against a dangerous condition on its property; (2) Edison did not grant the plaintiffs permission to enter the property in exchange for a paid fee; and (3) Edison did not expressly invite plaintiffs to come upon its property. Accordingly, plaintiffs’ entire complaint was barred and Edison was not liable as a matter of law.