A Los Angeles court granted a summary judgement in favor of Motorcycle Safety Foundation, represented by Murchison & Cumming attorney Nancy N. Potter. The plaintiff took a beginners’ motorcycle riding course from Motorcycle Safety Foundation, on the campus of Cerritos College; as part of the enrollment, he signed a waiver and release of liability. During the class, another student was unable to control his motorcycle and hit the plaintiff’s knee and the plaintiff sued, alleging simple and gross negligence. The defense filed a motion for summary judgment based on the waiver and release which the plaintiff signed, noting the position that he had not been given time to read the document before signing it. The court held that the plaintiff was bound by the release which he had signed, that there had been no facts showing fraud, and that the waiver was not against public policy because motorcycle training is not an essential activity and the plaintiff had many sources for the training. The court also held that there was no possibility of gross negligence, based on the facts alleged, and therefore granted summary judgment.

The Los Angeles Superior Court granted summary judgment to an insurer in a breach of contract and bad faith case handled by Nancy N. Potter. The plaintiffs, apartment owners, sued the insurer after their 100 year-old Los Angeles apartment building suffered a major sewage leak. The insurer retained a mechanical engineer who inspected the pipe and concluded that it was old and completely corroded. The insurer denied coverage for the sewer line repairs and replacement based on the exclusions applicable to underground pipe, excavation, lack of maintenance, wear and tear, and pollution.

The apartment owners sued the insurer, primarily arguing that the loss was “sudden and accidental” and should have been covered. Ms. Potter filed a Motion for Summary Judgment showing that the loss was to non-covered pipes and land, and that pollution was excluded from coverage. She also presented the mechanical engineer’s opinion as to the age of the pipe, and excerpts of the deposition of a tenant who had been complaining about the sewer odor for four months, before the plaintiffs claimed the loss occurred, to demonstrate that the issue was caused by an ongoing lack of maintenance.

The court found that the plaintiffs’ opposition evidence of a sudden and accidental loss was insufficient, that the loss was not covered and, therefore, the denial of the claim did not breach the insurance contract and was not in bad faith.

The San Bernardino Superior Court granted summary judgment in a suit filed against a hospital and doctors. The case was handled by Michael B. Lawler, Nancy N. Potter and Mary C. Trinh.

An elderly man with many medical conditions was admitted to Rancho Specialty Hospital. Murchison & Cumming’s client was his attending physician. After about two weeks in the hospital, the patient slipped while going to the restroom and suffered a broken hip. About three weeks later, he died of his other conditions. His children sued the hospital and doctors, alleging that better fall precautions should have been in place, and that the broken hip led to his death.

The Murchison attorneys filed a Motion for Summary Judgment on two grounds: that the physician did not breach the applicable standard of care with respect to the orders he gave for fall precautions, and that the cause of death was not the broken hip. In response to the plaintiff’s opposition, the Murchison attorneys dealt with substantial expert testimony with respect to standard of care and causation. The court agreed with Murchison’s position as to the qualification and authoritativeness of the expert testimony, and granted the summary judgment motion in favor of the doctor.

Plaintiff client (also plaintiff in underlying wrongful termination case) alleged that the defendant’s attorney, represented by Casey Yim and Nancy N. Potter, did not communicate a time limitation on a settlement proposal by the defendant in the underlying case. The attorney had e-mails to the plaintiff transmitting the proposed settlement agreement, and making reference to the time limitations set forth in the settlement document itself, and in the opposing counsel’s e-mail transmittal correspondence.

On the day of the deadline, the defendant’s attorney sent another e-mail to the plaintiff, again requesting that she sign the settlement document immediately, and again referencing the deadline that afternoon. Plaintiff e-mailed the attorney back, stating that she had been re-thinking the settlement, that she wanted to change some of the terms; and as to the time deadline, she said: “Make them wait”.

The deadline came and went, and attorney continued to try to negotiate for the new terms requested by client, but opposing counsel declined. Thereafter, a Motion for Summary Judgment was granted, dismissing plaintiff’s case.

Defendant’s attorney filed a claim for legal fees due, and the plaintiff filed a separate claim for legal malpractice. Arbitrator granted defense award, in favor of defendant’s attorney. Arbitrator also granted defendant attorney his costs and arbitration fees.

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.