10 Common mistakes that trial lawyers make (Part 3)

Mistake 5: Failing to make a timely request for a statement of decision in a bench trial

A statement of decision explains the factual and legal basis for the court’s decision. It supplements the record for appeal, allowing the reviewing court to examine the trial court’s reasoning on disputed issues to determine whether the appealed decision is supported by the evidence and the law. (Whittington v. McKinney (1990) 234 Cal.App.3d 123, 126, 127, 285 Cal.Rptr. 586.) Where no statement of decision is issued (either because it is not requested, or was waived by failure to make a timely request), the appellate court will apply the doctrine of implied findings; that is, it will presume on appeal that the trial court made all necessary factual findings to support the judgment. On appeal, the only issue will be whether there is sufficient evidence to support the judgment. (Michael U. v. Jaime B. (1985) 39 Cal.3d 787, 792-793, 218 Cal.Rtpr. 39.)

The basics of California Appeals — two not-so-simple rules (Part 3)

Happily, once you know what you need to appeal from, figuring out when you have to file the notice of appeal is usually straightforward. The rule governing the timing of the filing of a notice of appeal in most cases is Rule 8.104 of the Rules of Court. Rule 8.104(a) is titled “normal time.” It provides that unless a statute or Rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:

  1. 60 days after the Superior Court clerk serves the party filing the notice of appeal with a document titled “notice of entry” of judgment or a file-stamped copy of the judgment showing date that either was served;
  2. 60 days after the party filing the notice of appeal serves or is served by a party with a document titled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by a proof of service; or
  3. 180 days after entry of judgment.

Remember, for the purposes of this rule the term “judgment” includes an appealable order. (Rule 8.104(f).)
The Rule defines what “entry” means. (Rule 8.104(d).) It means the date a judgment is filed under Code Civ. Proc. § 668.5 or the date it is entered in the judgment book. For an appealable order, it means the date of entry in the permanent minutes, but if the minute order directs that a written order will be prepared, then the entry date is the date that the signed order is filed. (Note — that a written order prepared as required by Rule 3.1312 [which requires the prevailing party to submit a written order within 5 days of the ruling] is not deemed an order prepared by direction of a minute order.) (Rule 8.104(d)(2.)

Court clerks are required to serve orders in certain family law and probate matters. But in most civil cases, it will be a party who serves a notice of entry. So, your time to appeal will be 60 days from service of service of the notice.

Remember: Service of a file-stamped copy has the same effect of a notice of entry — they both trigger the deadline to file a notice of appeal.

“Extended Time” CRC Rule 8.108

Rule 8.108 extends the time to appeal in five situations. By its terms, it operates only to extend the time to appeal otherwise prescribed in Rule 8.104 — it never shortens the time available to file a notice. So, if the normal time to appeal stated in Rule 8.104 is longer than the extended time allowed in Rule 8.108, then the normal time prescribed in Rule 8.104 governs. (Rule 8.108(a).)

The basics of California Appeals — two not-so-simple rules (Part 2)

“There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it is entered, and finally determines the rights of the parties in relation to the matter in controversy.” (San Joaquin County Dept. of Child Support Services v. Winn (2008) 163 Cal.App.4th 296, 300, 77 Cal.Rptr.3d 470, 472.) Under the “one final judgment” rule, an appeal will only lie from the final judgment; not from intermediate rulings. (Kinsmith Financial Corp. v. Gilroy (2003) 105 Cal.App.4th 447, 452, 129 Cal.Rptr.2d 478, 481; Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 497, 15 Cal.Rptr. 177, 179.)

The flip side of the one-final judgment rule is Rule 1, above — that if a judgment or order is appealable, aggrieved parties must file a timely appeal or forever lose the opportunity to obtain appellate court review. (Eisenberg, Horvitz & Weiner, California Practice Guide — Civil Appeals and Writs (Rutter 2009 rev.)(“Civil Appeals”)§ 2:13, emphasis in text.) This is a jurisdictional principle: Appellate courts have no discretion to entertain appellate or writ review of appealable judgments or orders from which a timely appeal was not taken. (Id., citing Code Civ. Proc. § 906; Marriage of Weiss (1996) 42 Cal.App.4th 106, 119, 49 Cal. Rprt. 2d 339, 348.) A related rule is that when appellate review of a particular order is mandated by writ (a “statutory writ”) and the statute provides that this is the exclusive manner to obtain review, the failure to file a timely statutory writ will forfeit the right to later appellate review. (Civil Appeals, ¶ 15:96.1.)

The potential trap for trial lawyers then, is that a court issues a ruling or order that is deemed final or appealable, and the lawyer fails to appeal at the time, thinking instead that the matter will be addressed in the appeal from the final judgment.
There is no easy, all-purpose rule to apply to avoid this problem. Instead, trial lawyers can protect themselves by (a) being familiar with section 904.1 of the Code of Civil Procedure, which sets forth which orders are appealable; and (b) having a passing understanding of the workings of the one-final judgment rule, and its exceptions, which allow appeals from less-than-final judgments or orders.

10 Common mistakes that trial lawyers make (Part 4)

Mistake 7: Failing to get the proponent of each proposed instruction on the record

Jury instructions are often hashed out in chambers, in a hurry, shortly before the jury is instructed. If you are not satisfied with any of the final instructions the court has decided to give, be sure that you get the trial court to make a proper record of court’s ruling on jury instructions, either by going on the record or by issuing a minute order. Make sure that the record accurately reflects the proponent of each instruction – you do not want to be accused of inviting error for an instruction you did not propose. Make sure the record reflects the judge’s ruling and rationale, as well as your objections. If the instruction is too general, incomplete, or vague, both object and propose language to cure the problem. (Civil Trials, ¶ 14:225.)

Can HMOs be sued for “Bad Faith Insurance?” (Yes.)

In most cases, the providers decide what is covered and what is not covered, without any input from the HMO. (Although in most cases, the member can appeal the decision to the HMO.) The HMO is, in essence, nothing more than a middleman. So, can you sue your HMO / Health Care Service Plan for bad faith and punitive damages?

Yes. We are proud that two of our cases, Smith v. Pacificare and Kotler v. Pacificare, confirmed that regardless of the differences between HMOs and insurers, HMOs are “in the business of insurance,” and can be sued for bad faith. When an insurance company can be sued for bad faith, you may be able to sue for punitive damages in addition to economic damages.

Common reasons that plans deny care and what you can do about it

Most plans — whether HMOs or insured plans, deny care for one of four reasons:

  • The patient went “out of plan” to receive care, instead of following the plan’s rules and seeing a provider who has a contract with the plan;
  • The services requested were determined not to be “medically necessary;”
  • The services requested were determined to be “experimental or investigational;”
  • The services were simply not covered by the plan — for example, almost all plans exclude coverage for cosmetic procedures, and so would not cover a face lift or breast-augmentation surgery.

Here are some things you can do about unfairly denied insurance claims.

What is the difference between “health insurance,” a “health-care service plan,” and a “health-maintenance organization (“HMO”)?

A health-care service plan is the same as an HMO. The California Health & Safety Code calls these plans “health care service plans,” while the Federal Health Maintenance Organization Act calls them HMOs. Sometimes, it makes more sense to call all these plans “health plans.”

It used to be easy to distinguish between the various kinds of plans. An “insurance” plan paid your medical bills after you incurred them. Technically, it “indemnified” you (paid you back) for the medical costs you incurred if you received health care. These plans were referred to as “indemnity plans.” Under indemnity plans, you chose your medical providers, you incurred the liability for paying them, and the plans reimbursed you. In some cases, the step of the patient paying for the treatment first and being reimbursed was skipped, and the medical provider would bill the insurer directly, and the insurer would pay the bill.

HMO FAQs: Can I sue my HMO for bad faith?

What makes an HMO an HMO is that the policyholder (usually called a subscriber or member) pays the HMO a premium in exchange for a promise of health coverage provided by the HMO. Some HMOs provide the coverage directly; others enter into contracts with doctors and hospitals to provide the care. The HMO does not own the facilities or employ the staff. Often, the medical group will not employ the doctors who belong to it either. Rather, the HMO will pay the hospitals and the groups a fixed amount each month based on the number of members enrolled in the plan.The hospital or group then agrees to provide care in exchange for this monthly payment.

In most cases, the providers decide what is covered and what is not covered, without any input from the HMO. (Although in most cases, the member can appeal the decision to the HMO.) The HMO is, in essence, nothing more than a middleman.

HMO FAQS: MHO vs PPO – How HMOs Operate and Make Money

The key difference between an HMO and an insurer is that HMOs provide the promised coverage to the member (either directly or indirectly) while traditional insurance simply pays for care that the policyholder has obtained, after the care was rendered.

In today’s world, the differences between HMOs and regular insurance can be blurry, because insurers may have restrictive practices or policy terms, or may offer financial incentives to use providers who have agreed in advance to provide care for a discounted fee.

Traditional insurance usually allowed a policyholder to obtain treatment from any medical provider. The insurer would then agree to pay a certain amount, and if that was not enough to cover the provider’s fee, the policyholder would be responsible for paying the balance. In order to cut costs, insurers began to enter into contracts with providers in advance, in which the providers agreed to accept a discounted fee in exchange for being listed in the plan’s provider network. Some plans encourage their policyholders to seek care from these “preferred providers” by paying less for care given by non-preferred providers. Some plans simply provide that there is no coverage for care outside of the plan’s network. This type of plan in some ways resembles an HMO.

How to Read an Insurance Policy

The law requires that insurance policies be drafted in clear language. But anyone who has tried to read an insurance policy knows that they are seldom clear and that they are almost always difficult to read and understand.

Determining what the policy covers and does not cover can be made a little bit easier by knowing how insurance policies are typically structured. Almost all policies are structured in a similar way.


The “definitions” explain how the insurance company has used certain words or terms in the policy. For example, the policy is likely to refer to the insurance company as “us.” The term “us” will be a defined term in the policy. Similarly, the policy will refer to “you” and that term will be defined to mean “the named insured referred to in the declarations.”

HMO FAQs: Are HMOs really all bad? Why are there so many HMO horror stories?

HMOs make more money by not providing care to patients. The medical group or doctor working with an HMO is paid a fixed amount each month, whether or not care is provided. Therefore the most profitable situation for the HMO is when no care is provided to its members. HMOs were designed to hold down the cost of health care, and so they tend to charge lower premiums than traditional insurers. Some HMOs can provide excellent care. But there are also many examples where HMOs have not provided the care that their members required.

Why do HMOs have such a bad reputation?

In the pursuit of profit, HMOs have negotiated ever-declining rates with their providers. As a result, many medical groups and hospitals have gone bankrupt in the last few years. Doctors are ultimately human, and may succumb to the economic incentive that the HMO structure provides to withhold care.

The kind of HMO horror stories that make the newspapers occur when the economic incentives that HMOs create to withhold care end up harming patients. For example, it was recently reported that Kaiser Permanente was facing criticism for refusing to pay for organ transplants performed at non-Kaiser facilities. Instead, it required its members to obtain their transplants at a new Kaiser hospital, where the waiting list for organs was the longest in the country.

FAQS: HMO Doctors and Specialists

h3>Do I have to see the HMO’s doctor?

It depends. HMOs are obligated by law to make medically necessary care available to their members within a reasonable time. So, if the HMO has a qualified doctor in the network, but the doctor is so busy that the member cannot obtain an appointment within a reasonable time, the HMO must provide another doctor, or pay for the member to be seen “out of plan.”

In California, HMOs are also called “health care service plans.”

What if my HMO does not have the right doctor or specialist?

Similarly, because of the highly-specialized nature of medical practice today, the HMO may not have the right specialist available within the network. If not, then the member must be referred outside the network to obtain necessary care.

What is ERISA? Can I sue my HMO for punitive damages?

ERISA preempts (that is, overrides) many state laws that regulate employee benefit plans. Simply put, if you obtain your health insurance, life insurance, or disability insurance through a plan set up by your employer, ERISA probably applies. If it does, your rights are dramatically limited.

As a practical matter, this means that when ERISA applies, there is no economic incentive for the plan to provide the benefits that have been promised. If the plan refuses, and the member sues, the worst thing that happens to the plan is that a court may order it to do what it was supposed to do in the first place. In other words, it pays what it owes. There is no additional penalty. This is like limiting the penalty for bank robbery to making the bank robber give back the money.

The absence of any right to compensatory damages can lead to tragic cases. In one, the plan refused to allow a member to undergo necessary treatment for cancer, even though it was covered. The member went through the plan’s various appeal processes, and the plan eventually relented and agreed to authorize treatment. But by then, it was too late, and the window of opportunity for the treatment to be effective had passed. The plan member died shortly after that.

When her family sued the plan, the court dismissed the case under ERISA, finding that there was no remedy available. Because the member was dead, there was no way to award her the plan benefits she was originally entitled to (the medical treatment) – which is the only remedy allowed. There is no remedy for emotional distress, or wrongful death. In effect, ERISA allows plans to kill their members with impunity.

How ERISA Law affects the insured’s rights

If the insurance at issue in a potential case was obtained through an employer, the claims of the insured person or their beneficiary against the insurance company are likely subject to a federal law called the Employee Retirement Security Act of 1974, more commonly known by the acronym of “ERISA.” ERISA is located at Title 29 of the U.S. Code, beginning at section 1001. ERISA does not apply to employees of state and local governments,or employees of religious organizations.

Congress originally enacted ERISA to protect workers’s pension benefits, and to standardize the administration of “employee benefits plans.” Employer-sponsored life, health and disability insurance plans are considered “employee benefit plans” under ERISA. Unfortunately, certain aspects of ERISA have been seized on by insurers and the courts to severely limit the rights of people whose insurance is affected by ERISA.