Case studies and results details

Defense Verdict Obtained in Wrongful Death Action

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Guy R. Gruppie, Joshua M. Rosen and Tina D. Varjian recently obtained a defense verdict in a wrongful death action where the father of a 19-year-old disabled youth sought damages resulting from the drowning death of his son that occurred during a school-sponsored field trip.

Prior to trial, defendant settled the separate lawsuit of the mother of decedent, who was estranged from the husband. Defendant had moved unsuccessfully for summary judgment, contending that the boy died as the result of a seizure when he was swimming, thus activating the defenses contained in a release signed by the mother.

At trial, where only damages were contested, the father alleged that his late son was the focal point of his life that he could barely live without him and that every day he thought about him. However, he was forced to admit on cross-examination that several years prior the death of his son, he took up with another woman, lived much of the time with the other family, and devoted the bulk of his earnings to the other family.

Decedent’s mother and sister were called as witnesses by the plaintiff, but offered testimony helpful to the defense. They stated that the father played no role in his late son’s school or social life, and that on days he did stay at the family house, he sometimes was under the influence of alcohol.

In closing argument, counsel for plaintiff asked the jury to award his client $1.5 million. The defense argued that there was no showing that plaintiff suffered a loss of companionship or society and was entitled to no recovery. After about a half hour of deliberation, the jury returned a defense verdict. Plaintiff’s motion for new trial was denied.

Murchison & Cumming Wins Three Defense Verdicts Within 48 Hours

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Los Angeles, CA – June 13, 2002 – The law firm of Murchison & Cumming, has more than one reason to cheer. Recently, two of its partners and a senior associate won defense verdicts in three Los Angeles Superior Court jury trials, all within a 48-hour period.

Partner Guy R. Gruppie obtained a defense verdict in a wrongful death matter tried in San Fernando, after only 22 minutes of deliberation. Plaintiff was seeking $1.5 million.

Later that day, senior associate Hugh Jeffrey Grant won a defense verdict in an elder abuse/negligence case heard in Glendale. The plaintiff sought $50,000 from each defendant, totaling $100,000.

The next day, Partner Scott L. Hengesbach received the firm’s third defense verdict within 48-hours. This case tried in Norwalk, involved fraud, negligence and property damage. The plaintiff was initially seeking $240,000.

Additional Insured’s Action Against Non-Defending Insurer Barred When Defense is Being Provided by Another Insurer – Summary Judgment Granted

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On May 2, 2002 summary judgment was granted in San Luis Obispo Superior Court in favor of an insurer that had not participated with other insurers in the defense of an additional insured general contractor. VCL, an additional insured filed suit against non-defending insurers alleging that although another insurer was providing VCL’s defense, because that defense was provided under reservation of rights, VCL was potentially obligated to reimburse the defending insurer. In addition, VCL sought damages because the defending insurer’s payment to defense counsel, made under Civil Code section 2860, was at a rate lower than VCL had agreed to pay its attorneys (i.e., the hourly rate was approximately $185 per hour and the defending insurer was paying $135 per hour). The defense contended VCL had suffered no damages because VCL was receiving a full and complete defense from the defending insurer and that VCL was not entitled to any rate differential. The court agreed, finding that VCL had no viable claim for breach of ontract or bad faith, granting summary full summary judgment in favor of the insurer. Any potential claim for recovery would belong to the defending insurer in a contribution action. The matter was handled by Jean M. Lawler, James S. Williams and Daniel G. Pezold.

No Liability for Residential Care Facility for Insured Caused by Resident

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In this suit venued in Orange County, a mother and daughter alleged that, on February 21, 2001, plaintiff Melanie Martinez, a 2-month old child, sustained injuries when Gregory Berthel a 21-year old developmentally disabled man, bit her while they were shopping at a Target Store in Costa Mesa.

Gregory Berthel was a resident of Pierce Adult Residential Care Home, a 24-hour residential care facility, which provides board, care and supervision for adults with developmental disabilities at its facility.

Plaintiffs sued Nelludy, the owner and operator of Pierce, for negligent supervision, premises liability and negligent infliction of emotional distress. Plaintiffs also sued Gregory Berthel, Robert J. Berthel, Target (they settled) and Orange County Regional Center.

The Lanterman Development Disabilities Services Act provides that adults with development disabilities are granted certain rights and are permitted to make their own decisions as well as live a life within a community that approximates the pattern of everyday living.

On Motion for Summary Judgment, Gina E. Och argued that Nelludy did not owe plaintiffs a duty to supervise Gregory Berthel while at Target and under the supervision of his father. Moreover, it was argued that Gregory was an unconserved adult who was responsible for his actions on February 21, 2001. In other words, in addition to their being no duty, Nelludy did not cause the plaintiff’s injuries. On February 22, 2002, Judge Andrew B. Banks granted Nelludy Motion for Summary Judgment finding no triable issues of material fact on the matters raised by motion, i.e no duty and no causation.

Appellate Court Affirms that Summary Judgment Was Properly Granted in Favor of Insurer Based on Professional Services/Architect Exclusion

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Gianetti Felderman v. Estate of Habicht

Murchison & Cumming, through Jean M. Lawler and Nancy N. Potter, represented a deceased architect who was being defended by its general liability insurer pursuant to Probate Code Sections 550, et seq. (that section provides that an insurer may respond on behalf of a deceased insured and/or his estate) in a massive construction defect action pending in Santa Monica, California. This insurers policy was provided Commercial General Liability coverage with a specific exclusion for architect and engineer’s professional services.  A summary judgment motion was filed on the theory that if the decedent had no insurance coverage, as a decedent he had no liability in the lawsuit; and that under the insurance policy in question; the architect was not covered for the claims for damage made against him in the litigation. Judge Lorna Parnell granted the Motion for Summary Judgment, ruling:

“The policy contained unambiguous exclusions for professional architectural services, which services provide the basis for the alleged liability of [decedent.] Accordingly, the Court finds that there is no insurance liability or coverage under the [insurance] policy for the claims made against [decedent] or his Estate in this action.”

Judge Parnell subsequently denied in a Motion to Vacate that judgment. Thereafter, another architect who claimed to be insured under the same CGL policy appealed from the judgment. On March 13, 2002, the Court of Appeal, in an unpublished decision, affirmed Judge Parnell’s ruling, holding that coverage for architectural services was clearly excluded, so that there was no insurance coverage available for the decedent and no liability on the part of the decedent for the alleged construction defect damages, and summary judgment was properly granted.

Defense Verdict for “Black Dog” Suit

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On February 28, 2002 after trial, in “Skinner, et al vs. Rafaella, Inc., et al”, a personnel inquiry case involving the entertainment industry tried in the Los Angeles County Superior Court, Central District, the jury returned a verdict in favor of the defendants. Specifically, the jury found that plaintiffs Anthony Bradley and Ronald Skinner were employees of defendant Black Dog Productions, Inc. (“BDPI”), and were co-employees of defendants Rafaella Delaurentiis, Hester Hargett and Peter Saphier. This finding rendered each of the four defendants immune from tort liability under the exclusive remedy provisions of the Workers Compensation Act.

This personal injury case arose out of a January 6, 1998 explosion in Wilmington, NC on the second unit of the production of the motion picture “Black Dog.” Mr. Bradley and Mr. Skinner were setting up a special effect sequence, wherein it would appear that an explosion would turn over a flatbed truck. The pyrotechnics consisted of approximately two gallons of gasoline in a plastic bottle, wrapped in primer cord and placed inside a cardboard mock-up of side-saddle gasoline tank.

In reality, an air ram located just to the rear of the truck cab was designed to drive a wooden post into the ground, at the moment that the explosion went off. The ram, not the explosion, was to in fact turn the truck on its side.

Unfortunately, as Mr. Bradley and Mr. Skinner were working just feet from the gasoline, setting up the “gag” minutes before the filming was to take place, the pyrotechnics detonated prematurely severely burning both men.

BDPI, DeLaurentiis, Hargett and Saphier answered the complaint and pled the affirmative defense of the use of workers compensation as the “exclusive remedy” for the plaintiffs. They argued that the plaintiffs were the “special” or borrowed employees of BDPI, and were the “general employees” of Entertainment partners/PixPay, an entertainment industry payroll services company. DeLaurentiis, Hargett and Saphier, pled that they were the co-employees of the plaintiffs and argued along with BDPI that the plaintiffs were injured during the course and scope of their employment.

Because that issue was dispositive as to them, the defense was able to successfully argue that trial should be bifurcated so that the issue of plaintiff’s employment would be tried first, with the burden of proof resting with the defendants.

At trial, the defense was able to demonstrate through witness testimony that the defendants had the right to control, and that the plaintiffs accepted control from the defendants and their agents, over the details of the plaintiff’s work. This was shown to be the custom and practice in the industry. Also, the defense demonstrated that through documentary evidence consisting of W-2’s, time cards, pay stubs, union contracts, crew “deal memos” and employment “start/close forms” that the plaintiffs had agreed to be employees.

Christopher Overton of Murchison & Cumming in Los Angeles, was co-trial counsel for BDPI, DeLaurentiis, Hargett and Saphier, along with Michael B. Lawler and Michael J. Nunez.  The plaintiffs were represented by Browne Greene, Esq. and Frank O’Kane, Esq. of Greene, Briollet, Panish & Wheeler.