Richard Thompson was rendered a paraplegic when he lost his balance and fell through a defectively-constructed scaffold at the San Diego shipyard of National Steel and Shipbuilding Company (“NASSCO”). NASSCO obtained summary judgment against Thompson in the U.S. District Court for the Southern District of California. The district court granted NASSCO’s motion on numerous grounds, finding that there was no evidence that NASSCO had furnished unsafe equipment, and no evidence that furnishing the unsafe equipment affirmatively contributed to Thompson’s injuries. The Ninth Circuit reversed and remanded, rejecting all of the district court’s findings.
Jeffrey I. Ehrlich to speak at 2010 Rutter Seminar on Insurance Litigation. Jeffrey I. Ehrlich has accepted the Rutter Group’s invitation to join its Insurance Litigation Update 2010 panel. He will be speaking on November 30, 2010 in San Francisco, and on December 2, 2010 in Los Angeles. Ehrlich is also speaking on September 29, 2010, in Los Angeles on the Rutter seminar on Summary Judgment Practice.
LAPD Lieutenant Corina Smith claimed that the LAPD had submitted her to a hostile work environment and retaliated against her. The City moved for summary judgment. Smith’s trial counsel submitted a lengthy opposition, but many of the opposition declarations failed to contain a proper jurat under Code Civ. Proc. section 2015.5 (because they failed to indicate that they were either signed in California, or under penalty of perjury under California law.)
The Court of Appeal reversed, finding that the City had failed to show that it was entitled to judgment as a matter of law. (Smith v. City of Los Angeles B209861 (unpublished).
The California Supreme Court ruled against the insurance industry Thursday in a case closely watched by insurance lawyers. Safeco Insurance Co. argued that its policy didn’t cover homeowner Betty Schwartz for liability stemming from a sexual molestation committed by her son David. The company argued that the policy excluded coverage for intentional acts of “an insured” and her son was an insured since he lived in her house. But a unanimous Supreme Court said the policy was unclear because it also contained a severability-of-interests clause that provided “separate insurance” to each insured. Under California law, ambiguous insurance contract terms must be interpreted in favor of what a policyholder would reasonably expect.
A unanimous California Supreme Court held that a “severability of insurance” clause made a homeowner’s liability policy ambiguous where the insurer sought to rely on an exclusion that withdrew coverage for all insureds under the policy based on the intentional acts of one insured. Plaintiff Scott Minkler holds a $5 million judgment against David Schwartz, who molested him, and against David’s mother, Betty, for negligently failing to stop the wrongful conduct. Betty’s insurer rejected coverage, arguing that the intentional-acts exclusion in the policy, which withdrew coverage for any claim arising from the intentional acts of “an” insured, applied to the claims against Betty because David’s conduct was intentional. The Supreme Court adopted the approach advanced by the Ehrlich Law Firm, finding that the policy’s severability provision, which states that “this insurance applies separately to each insured” would lead a reasonable insured to conclude that he or she would be treated as the only insured under the policy. Because most liability policies have severability clauses, the Minkler case may substantially broaden coverage in California for failure-to-supervise claims. Minkler v. Safeco (2010) __ Cal.4th __.)
AC was taken from the multipurpose room at an elementary school by a school employee, led onto a stage that was part of the room, and molested. The stage area was effectively screened from view because the school had been using the area to store cartons of books. The trial court granted summary judgment to the district on the ground that the stage could not constitute a dangerous condition on public property, and that there was no proximate cause.
The Court of Appeal reversed, finding that the manner in which the stage had been maintained created triable issues of fact about whether it was dangerous, and that the district had not negated proximate cause as a matter of law. (AC v. Pomona Unified School Distr. (2010) B.215607 (unpublished.)
On February 1, 2010, West rolled out its new, updated version of Westlaw, called WestlawNext (“WLN”). West is sparing no expense to market the new product, with ads in airports and high-traffic web sites. In addition, whenever you sign on to Westlaw (now called Standard Westlaw) you see a prominent invitation at the right of the screen to take a video tour of WLN. Basically, the promotional video touts three major improvements: (1) new search algorithms that make it easier to find what you are looking for, (2) a new updated interface that makes it easier to build effective searches, and (3) new ways to organize and store the results of your research in folders created and stored within WLN.
After viewing the videos, I was interested in learning more. I emailed my Westlaw rep and asked her for more information. She sent me a temporary password, good for a week, which gave me full access to WLN. I didn’t really have time to use the new product extensively that week. But in the brief time I used it I was impressed enough to want to know what it would cost to switch. The news didn’t make me happy: A straight switch-over would increase my monthly Westlaw bill by about 20%, and would require a new 3-year commitment. So I dropped one of the databases that I seldom used, which brought the cost down a bit, and signed up for the new product. Here is my report.
After the Nazaryetan family’s twins were born with severe brain injuries, Blue Shield rescinded the policy to avoid having to pay for the cost of their care. It claimed that the family had misstated their health history on their application form. The trial court granted Blue Shield’s motion for summary judgment. The Court of Appeal reversed, finding that whether or not Blue Shield’s underwriting practices were reasonable and designed to resolve all questions on the application was a factual issue that could not be resolved on summary judgment. (Nazaryetan v. California Physician’s Service (2010) 182 Cal.App.4th 1601.)
Mercury Insurance Co. took over two years to process and pay the straightforward business-loss case of Amerigraphics Company, a commercial printer in the San Fernando Valley, whose premises were flooded when a pipe broke in the building they leased.
A jury found that Mercury acted in bad faith and awarded punitive damages. The Court of Appeal affirmed, holding that the company’s business-interruption coverage applied to the business’s fixed costs, even if the business was not making a profit, and finding that Mercury’s conduct was tortious and warranted an award of punitive damages. (Amerigraphics v. Mercury Ins. Co. (2010) 182 Cal.App.4th 1538.)
Waters, Kraus & Paul, with one of the premier asbestos-litigation practices in the U.S., hired the Ehrlich Law Firm to argue an important products-liability case, O’Neil v. Crane Co. in the Court of Appeal, Second District, Div. 5.
The issue in O’Neil was whether sailors injured by asbestos released during the maintenance of valves and pumps that were manufactured to contain asbestos within them, and that were insulated with asbestos, could be held liable on theories of strict products liability and negligence, even if the asbestos material in the equipment had been replaced with other asbestos material during the product’s life.
In Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, the Court of Appeal , First District, held that the manufacturers could not be held liable because the asbestos was not “their” product.
Ehrlich convinced the court not to follow Taylor, and in a written decision the court held that Taylor had been wrongly decided. (O’Neil v. Crane Co. (2010) 177 Cal.App.4th 1019.) The Supreme Court later granted review to resolve the conflict between the positions advocated in O’Neil and Taylor. Ehrlich is expected to argue the matter in the California Supreme Court.
Jeanette Thompson was a 16-year old cashier working at a McDonalds’ franchise store in the Crenshaw District of Los Angeles. She was pulled through the window at the drive-through and shot. In her suit, she claimed that McDonalds’ Corporation controlled the design of the drive through, and failed to install proper protective features.
The trial court granted summary judgment for McDonalds’. The Ehrlich Law Firm obtained a reversal, and the matter will now be proceeding to trial. Thompson v. McDonalds’ Corp., 2009 WL 1653443 (2d District, Unpublished)
Ehrlich Law Firm convinces U.S. District Judge to reconsider summary judgment for insurer in $8.2 million bad-faith lawsuit, allowing case to go to trial. Lexington Insurance withdrew its defense of an obstetrician in a medical-malpractice lawsuit, and refused to settle the claim within its $1 million policy limits, resulting in an adverse judgment of $8.2 million. In the resulting bad-faith lawsuit, the district court granted summary judgment to Lexington in May 2009.
In May 2002, Darrel Prindle murdered his ex-wife, Jessica, and shot her sister and her sister’s children. The survivors filed a lawsuit against Jessica’s estate for negligently failing to warn them of Darrel’s prior threats and dangerous behavior. Jessica’s homeowner’s insurer, Travelers, refused to defend the estate in the lawsuit, and refused to settle it for the $100,000 policy limits. The estate later settled with the plaintiffs, who obtained a judgment against it in excess of $7 million, and then assigned its rights to the plaintiffs. The plaintiffs then sued Travelers on the assigned claims. Travelers sought summary judgment arguing that the plaintiffs’ bad-faith claim was defective because they had failed to file a timely claim against Jessica’s estate.
In a published decision, the Court of Appeal affirmed the trial court’s denial of the summary judgment motion, holding that Travelers was estopped to assert the failure to file a timely probate claim, by virtue of its refusal to defend. In re: Estate of Prindle, 173 Cal.App.4th 119 (3d Dist. 2009). The Ehrlich Law Firm then successfully opposed Travelers’ petition for review in the California Supreme Court.
Judge David Mintz had been fighting lung cancer for years. When it recurred, his doctors said his only chance was a treatment called radio-frequency ablation (“RFA”). Blue Cross was the third-party administrator of Mintz’s CalPERS health plan. Blue Cross denied the claim for RFA on the grounds that it was excluded as experimental. But it failed to notify Mintz that under state law, the plan was required to pay for experimental treatment if an independent medical review determined it would be more beneficial for the patient than conventional treatment. Mintz was unable to obtain RFA, and died while his lawsuit was pending. The trial court dismissed his case on demurrer, and the Court of Appeal reversed, finding that third-party administrators can be held liable for their negligent administration of the plan. Mintz v. Blue Cross of California, 172 Cal.App.4th 1594 (2d Dist. 2009).
Scott Minkler appealed the district court’s order granting summary judgment on his claim against Safeco Insurance Company under a homeowner’s liability policy. Minkler’s claims arose out of Safeco’s refusal to defend Betty Schwartz, whose son David molested Minkler. Safeco denied coverage because of an exclusion in its policy for claims arising from the acts of “an” insured, because David was a resident of Betty’s home, and hence an insured under her policy. The issue in the case is the proper construction of a provision in the Safeco policy stating that “This insurance applies separately to each insured.” The Ninth Circuit, at the Ehrlich Firm’s request, has asked the California Supreme Court to decide the meaning of that provision. Minkler v. Safeco Ins. Co., 561 F.3d 1033 (9th Cir. 2009).