Case studies and results details

Summary Judgment Granted in Product Liability Matter

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Gina E. Och and Corine Zygelman obtained summary judgment on behalf of their client, a distributor of motion picture cameras, digital intermediate systems, and lighting equipment. The plaintiff sued his employer, the defendant, for negligence and products liability, claiming to have sustained injury while moving a scanner, manufactured by a parent company of the defendant, down a city street for a customer. The defendant moved for summary judgment and the court granted the motion, finding that the plaintiff’s claims were barred by the workers’ compensation exclusive remedy and the plaintiff failed to show that he fell within the exception regarding a dual employer based on the employer’s role as the product manufacturer. The court further found that plaintiff failed to show (1) he was a consumer or end user of the product and (2) the defendant company was the manufacturer of the product.

Summary Judgment Granted in Nevada Contribution Action in Favor of Subcontractor Insurer with “Ongoing Operations” Additional Insured Endorsement

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In A Case of First Impression In Nevada , General Contractor Found To Not Be An Additional Insured in CD Action Where Endorsement Was Limited To “Ongoing Operations” – ISO Form CG 2010 10/93

The Clark County District Court granted summary judgment on a cross-complaint for contribution, arising out of an underlying construction defect action, defended by Jean M. Lawler, Michael J. Nunez and Carolyn A. Mathews. Mid Century Insurance Company’s insured, Sunstate Landscape & Lawn, was a landscape subcontractor for National Union’s insured General Contractor, Falcon Development, on four large condominium developments in Las Vegas, Nevada. Mid Century issued CG 2010 10/93 Endorsements on Sunstate’s policies naming Falcon Development as an additional insured. The endorsement limited coverage for Falcon to property damage that occurred during Sunstate’s “ongoing operations” and did not provide complete operations coverage for Falcon.

Construction defect litigation was filed against Falcon by the owners and homeowners associations of the four condominium developments. Arrowpoint Capital Corp., the insurer that defended and indemnified Falcon in the four construction defect actions, sued National Union for indemnity and contribution, and National Union filed a third party complaint against Falcon’s subcontractors’ insurers, including Mid Century.

The M&C team moved for summary judgment in favor of Mid Century on the basis that coverage did not exist under Sunstate’s policy for the claims asserted against Falcon Development in the four construction defect actions because the damages involved did not occur during Sunstate’s ongoing operations. The suits were brought by the homeowners and their associations after the condominiums were purchased and occupied and the damages, therefore, did not occur during Sunstate’s ongoing operations. The Clark County District Court agreed that, under the plain and ordinary meaning of the CG2010 10/93 endorsement, coverage for Falcon was limited to claims for property damage that occurred during Sunstate’s ongoing operations and there was no completed operations coverage for Falcon. The complaints filed against Falcon in the four underlying construction defect actions alleged only property damage that occurred after Sunset’s work on those project was completed. This issue was one of first impression in Nevada.

Final Order Attached Below
PDF FileView as PDF

Summary Judgment Granted in Favor of Excess Carrier in Bad Faith & Coverage Action

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After six Amended Complaints, a trip to the Court of Appeals and a Phase I Declaratory Relief trial, summary judgment was granted in favor of the firm’s excess insurer client by the Orange County Superior Court on the threshold of the start of the Phase II trial.

This matter involved an underlying multi-million dollar claim that began with allegations that defective bags had been supplied by the insured for the packaging of boxed wines, allegedly resulting in wine contamination. The bags had been manufactured in the U.S., with the contaminated wine generating Australian and European losses/claims. Suit was never filed by the claimant against the insured supplier and the matter was eventually settled. The insured sought coverage for the claim under both its primary and excess policies of insurance. The primary and excess carriers investigated the claim and ultimately indemnified the insured for the loss, with a subrogation action being filed in Australia against the manufacturers of allegedly defective taps.

The insured filed an action for breach of contract and “bad faith” against both the primary and excess carriers in the Orange County Superior Court claiming that, among other things, the insurers had not properly investigated the claim and had not properly indemnified it for the loss. Early in the action, the defense prevailed on a “choice of law” motion, in which the court ruled that Illinois law applied, rather than CA law, and the excess carrier prevailed in having a demurrer sustained without leave to amend on other issues. After a trip to the appellate court on the demurrer resulted in the matter being returned to the trial court for trial, the matter proceeded to the Phase I trial. After receiving certain rulings in Phase I of the trial and prior to the start of the Phase II trial, summary judgment was sought on behalf of the excess carrier on the grounds that the firm’s client did not breach the insurance contract by either failing to indemnify the insured or by failing to investigate the loss. The trial court granted summary judgment for the excess carrier, finding that it had indeed investigated the claim and that it had fully indemnified its insured, thereby leaving plaintiffs with no viable cause of action against the excess carrier.

This matter was handled by attorneys Jean M. Lawler, Bryan M. Weiss and Daniel G. Pezold.

Suit Against Client Dismissed in Response to Discovery Requests

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Plaintiff Cintas Corporation was unable to articulate the basis of its product liability claims in a suit successfully handled by Robert M. Scherk. The plaintiff purchased a chemical dispensing system, which distributes and blends chemicals into up to twelve different machines at once, built by M&C client Automatic Control Systems, Inc. The machine was originally purchased from Automatic Control Systems by co-defendant Washing Systems, LLC who in turn sold it to Cintas Corporation for use in the industrial laundering of uniforms.

An employee of Washing Systems was servicing a washing machine at the business premises of Cintas Corporation when a leak or spill occurred, allegedly due to a faulty valve in the chemical dispensing system manufactured and sold by Automatic Control Systems. An employee of the plaintiff claimed to have slipped on the chemical spill, allegedly injured himself and collected Workers Compensation benefits. His employer, plaintiff Cintas Corporation, filed a subrogation claim to be reimbursed for the Workers Compensation benefits paid to the injured employee. The suit alleged claims of negligence and breach of contract against co-defendant Washing Systems, and claimed strict products liability against M&C’s client.

Mr. Scherk served detailed Requests for Admissions and product liability contention Interrogatories on Cintas Corporation. The plaintiff could not respond to the discovery and rather than attempting to do so, in December of 2009, dismissed its suit against Automatic Control Systems for a waiver of costs.

Actions Against Plumbing Supply Client Dismissed

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Robert M. Scherk and Scott J. Loeding successfully brought a Dismissal with prejudice for their client in a matter arising from product liability, breach of warranty and breach of contract claims.

Plaintiff Hale & Sons, Inc., a plumbing contractor which purchased plumbing fixtures in connection with its plumbing-related construction work, filed suit against client Hughes Supply, Inc., now known as HD Supply, Inc., which distributes and sells plumbing fixtures. The plaintiff claimed that it purchased approximately 300 P-Traps, which are found in almost all sink drains, from the defendant, and that the P-Traps were installed by Hale & Sons in a condominium project. Hale & Sons claimed the P-Traps were defective in design and manufacture, but that the defects did not become known until after installed throughout the San Diego condominium and that all the traps had to be replaced at a cost of over $30,000.

The plaintiff replaced most of the traps in early 2006, but did not file suit until January of 2010, some six years after the traps were purchased and four years after the alleged damages were discovered. On behalf of its client, rather than filing an Answer to the Complaint, M&C filed a Demurrer to each of the five causes of action arguing that plaintiff’s strict liability and negligence claims were barred by the three year statute of limitations found in California Code of Civil Procedure Section 338(b), and that the breach of implied and express warranty claims, and breach of contracts claims were barred by the four year statute of limitations found in Commercial Code Section 2725.

Rather than attempting to oppose the Demurrer filed by M&C on behalf of its client, plaintiff’s counsel wrote to Mr. Scherk, stating: “Plaintiff has multiple matters it is pursuing right now and has indicated that it may want to forego pursuing one of the matters. Would your client be willing to make a small settlement offer and execute mutual releases in exchange for a Dismissal with prejudice?”

Mr. Scherk responded to plaintiff’s counsel that it was apparent the plaintiff’s suit was time-barred when it was filed and thus had not merit. He indicated that no settlement would be made, but that he would recommend a waiver of costs in exchange for a Dismissal with prejudice. Five days later, on June 9, 2010, the plaintiff’s counsel agreed to dismiss M&C’s client in exchange for a waiver of costs.

Court Rejects Plaintiff’s Plea to Extend Negligent Infliction of Emotional Distress for Bystanders

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The role technology plays in negligent infliction of emotional distress claims was at the heart of a case successfully handled by Stephen K. Anderson and Gina E. Och. The case arose out of injuries allegedly sustained by Plaintiff Michaela Kellner in February 2007, when she slipped, or tripped, and fell down a set of stairs that she was descending on premises owned by Defendant California College of the Arts, which is located in Oakland, California.

Michaela Kellner was talking to her mother, Sheryl Kellner, on her mobile phone when the incident occurred. As a result, Sheryl Kellner claimed that she was “present” at the scene of her daughter’s fall, and sustained emotional distress premised on her status as a “bystander.” Prominent San Francisco plaintiff attorney Christopher Dolan argued that, with the advancement of technology, experiencing the injury of her daughter via a cell phone satisfied the requirements for Sheryl Kellner to be considered a bystander. Plaintiff used the example of people watching loved ones perish on television during the 9/11 attacks to support her argument.

In their Motion for Summary Judgment, Mr. Anderson and Ms. Och countered plaintiff’s argument with recent case law limiting the scope of negligent infliction of emotional distress based on a bystander theory. The basic elements, as set forth in Thing v. La Chusa, 48 Cal.3d 644, 663-664 (1989), are:

  • plaintiff must be closely related to the victim,
  • plaintiff must be present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim, and
  • as a result, suffers emotional distress beyond that which would be anticipated in a disinterested witness.

The defense argued that, while Sheryl Kellner is closely related to Michaela Kellner as her mother, and although she heard some commotion over the telephone at the alleged moment of the incident, there was absolutely no showing that she had an appropriate level of sensory awareness at the scene of the injury-producing event, or that she was then aware that California College of Arts was causing her daughter harm. The Superior Court agreed with the defense and granted its Motion for Summary Judgment.

Not Your Property, Not Your Liability: Summary Judgment Granted in Favor of Jons

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A Los Angeles Superior Court judge recently granted summary in favor of Jons Marketplace in a matter where an 11-year-old girl suffered a serious ankle fracture while leaving a Jons store in Van Nuys with her mother.

The Hon. Michael Latin ruled that Jons could not be liable as a matter of law because the injury occurred on the sidewalk of a shopping center where the market was situated but not owned or controlled by Jons.

Plaintiff alleged that the sidewalk was a dangerous condition that caused her to “trip/slip/fall.” The court agreed with Jons that plaintiff could not establish claims for negligence/premises liability because Jons did not owe plaintiff any duty of care as a non-owner of the property in question.

Guy R. Gruppie and Marieanne Zakarian successfully represented Jons.

Verdict of the Week: Pltfs’ decedent caused plane crash, not hired pilot: defense

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Verdict Search California

Verdict         
Defense

Case 
Marsha Voorhis and Nathan Voorhis v. Thermal Self Serve Inc., Signature Flight Support Corporation, Million Air Interlink Inc.,    Million Air La Quinta, The County of Riverside, Cessna Aircraft Company, Deanna Webb and La Quinta FBO Two LLC, No. RIC451391

Court 
Superior Court of Riverside County, Riverside, CA

Judge
Gloria C. Trask

Date
11/12/2009

Plaintiff Attorney(s) 
Lawrence P. Grassini, Grassini & Wrinkle, L.C., Woodland Hills, CA

Defense Attorney(s) 
William T. DelHagen (lead), Murchison & Cumming, LLP, Los Angeles, CA
Lisa D. Angelo, Murchison & Cumming, LLP, Los Angeles, CA
Paul R. Flaherty, Murchison & Cumming, LLP, Los Angeles, CA
Don G. Rushing, Morrison & Foerster LLP, San Diego, CA

Facts & Allegations     In March 2006, plaintiffs’ decedent Rick Voorhis, 53, perished in a plane crash in the Banning Pass between Los Angeles and Palm Springs that also killed a Cessna Aircraft Company pilot.  The Cessna pilot was a regional sales manager who brought the turbine-powered, single-engine utility airplane to the West Coast for demonstration to a series of customers.  Voorhis was in the left seat and the sales manager was in the right seat.  Voorhis was an outside sales representative specializing in that type of airplane.

Voorhis’s widow and son sued Cessna, Thermal Self Serve Inc., Signature Flight Support Corporation, Million Air Interlink Inc., Million Air La Quinta, the County of Riverside, Deanna Webb and La Quinta FBO Two LLC.  (Thermal Self Serve, Signature Flight, Million Air, Riverside County, Webb and La Quinta FBO were let ouf of the case prior to trial.  The case went to trial against Cessna.)

The plaintiffs alleged piloting negligence and strict products liability on the design of the aircraft, but they dropped all the claims except for piloting negligence.

Plaintiffs’ counsel argued that the Cessna pilot was completely responsible for the flight’s failure because he filed the flight plan.  The lawyers also argued that an inability to handle icing conditions caused the plane to stall, spin and plummet to the ground.

Cessna argued that there was no ice accumulation.  The lawyers contended that Voorhis was controlling the plane and overreacted to danger warnings of approaching rising terrain from an onboard system and from air traffic controllers.  Voorhis became overcome by panic, they claimed, rolled the aircraft over, became disoriented in the weather conditions and flew into the ground.

Injuries/Damages death; loss of society
Voorhis lost his life.
His survivors — widow Marsha Voorhis and son Nathan Voorhis — asked the jury for $37 million in economic damages and $40 million in noneconomic damages for wrongful death.
Cessna contended that economic damages should be no more than $6 million.

Result
The jury found for the defense.

Demand  
$75,000,000, according to defense counsel

Offer
$5,000,000, statutory, according to defense counsel

Insurers    
Global Aerospace

Trial Details 
Trial Length: 6 weeks
Trial Deliberations:  70 minutes
Jury Vote: 11-1

Plaintiff Expert(s) 
Jay Rosenthal, M.A., C.C.M., meteorology/climatology, Pacific Palisades, CA
William E. Simpson, C.P.A., CPAs, Los Angeles, CA
Donald E. Sommer, aircraft, Denver, CO

Defense Expert(s)  
David E. Bloom, Ph.D., economics, Boston, MA
Terry Heaslip, flight plan reconstruction,
Tom Jordan, aviation, (commercial pilot)
Tommy McFall, pilot performance/error, Southlake, TX
Bob Rice, aviation, (flight test/icing)
Wayne Sand, weather, Boston, MA
Michael Selig, aerodynamics, Urbana, IL

Post-Trial
Motions for a new trial and JNOV were denied, but a motion to tax some costs was granted, according to defense counsel.

Editor’s Note
This report is based on informations that was provided by plaintiffs’ counsel and defense counsel.

Defense Judgment Granted in ERISA Case

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In an ERISA case by a Kaiser Foundation Health Plan, Inc. member against Kaiser, defensed by Casey Yim in Federal Court, the plaintiff sought recovery of $350,000 in medical services rendered by “out of plan” provider, Providence Hospital. Defendant Kaiser paid Providence only $31,000, representing the “self pay discount,” which was actually billed by Providence to the plaintiff.

Kaiser was granted a Motion for Summary Judgment because, under California law, Providence could not seek the “balance” from the plaintiff.

“Balance Billing” to the patient is prohibited under a recent California Supreme Court case law (Prospect Medical Group v. Northridge). This is probably the first “Balance Billing” case in California since the Supreme Court’s decision in the Prospect Medical Group case. If the case is published, it will serve as a landmark for future cases in the area.

Nancy N. Potter assisted in the case.

Unanimous Defense Verdict for Major Supermarket Chain The Vons Companies

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Jury Delivers Unanimous Defense Verdict

An East County San Diego Superior Court jury recently reached a unanimous verdict declaring that The Vons Companies, Inc. were reasonable in the maintenance of their Spring Valley store property, in response to allegations of safety-related negligence by Plaintiff Robbyn Kuykendall.  The case concluded victoriously for both the major supermarket chain, and Murchison & Cumming attorney Jefferson S. Smith, representing the defense.

On May 23, 2008, a day of scattered showers, Kuykendall entered the Spring Valley supermarket wearing flip-flops.  She walked past an orange cone located just outside the store’s entrance doors, and over a six-foot mat, before slipping and falling almost four feet from where the mat lay.

Kuykendall, who eventually underwent surgery for total knee replacement, contended the store should have placed a warning cone inside the lobby, that the floor mat was worn and saturated, and that the floor was unreasonably slippery.

The defense responded that the store had taken reasonable precautions with the safety measures in place during the time of the incident, and had made repeated inspections throughout the day.  A member of the store crew inspected and cleaned the area 10 minutes prior to the incident.  The defense also argued that the cone was not necessary because it was obvious foot traffic could cause tracking of rainwater into the lobby entrance, and that the floor was reasonably safe under such conditions.

A key witness providing evidence favorable to the defense came from store customer, Richard Jameson, who witnessed the store conditions shortly after the incident and acted as a Good Samaritan by comforting Kuykendall after her fall.  In a somewhat tragic twist, Jameson appeared on February 25 to testify on the conditions of the store’s lobby and then died only three days later, due to unrelated causes.

“I was flabbergasted when I learned Mr. Jameson had died.  He was an honest man who presented his observations in an articulate manner,” said Smith.

Store Manager Tim Bottenberg and Claims Manager Rhonda Naugle played major roles in the proceedings, providing testimony as to the procedures followed in an effort to keep the store safe for customers.

“In speaking with the jurors post verdict, the critical evaluation came down to the integrity of the store manager.  In the end, the jury was convinced that [Bottenberg] ran a safe store,” said Smith.

Smith described the verdict as providing a well-deserved spotlight on The Vons Companies’ thorough implementation of policies and procedures in regards to customer safety.