Emily Berman is an Associate in Tyson & Mendes’ San Diego office. Her practice primarily focuses on general liability and commercial and insurance litigation, including personal injury defense. Ms. Berman has experience representing individuals, businesses, and insurance companies in litigation across California state courts.
Prior to joining Tyson & Mendes, Ms. Berman was an associate at an insurance defense firm in Los Angeles and a business litigation firm in San Diego. She has successfully resolved numerous cases involving high value complex accidents, personal injury, business, and contractual disputes.
Ms. Berman earned her B.A. in Psychology, cum laude, from the University of Kansas in 2010. She went on to earn her J.D. from the University of San Diego School of Law in 2013, where she was a member of the Student Bar Association and the Moot Court Executive Board, coordinating and competing in multiple intra-school competitions. She is licensed to practice law in California and is a member of the San Diego County Bar Association and San Diego Defense Lawyers. She has also been a member of the Louis M. Welsh Inn of Court and the Lawyer’s Club of San Diego.
In her free time, Ms. Berman volunteers as a Court-Appointed Special Advocate with Voices for Children. She also enjoys traveling, running, and reading.
Recent PostsCalifornia Case Law Update
Westport Insurance Corp. v. California Casualty Management Co.
California’s Ninth Circuit recently affirmed that an excess insurer for a California school district had to cover $2.6 million of the total $15.8 million settlement paid by the primary insurer to resolve a case involving three former students’ claims of sexual abuse, finding that the lower court had properly apportioned the settlement between the two insurance carriers.EVENT RECAP: The Ask Event, Part II: Promoting Yourself in a Tough Legal Industry
On October 3, 2018, the Tyson & Mendes Women’s Initiative partnered with the San Diego Lawyer’s Club (SDLC) to host a wonderful and thought-provoking event, inviting discussion and action to promote women in the legal industry. The event was designed to build on “The Ask, Part I,” hosted earlier in the year by the SDLC. The Ask, Part II was held at the La Jolla Country Club with over 100 professionals in attendance. The evening began with a check-in and a half-hour of networking. Members of the Lawyer’s Club and Tyson & Mendes employees mingled over wine and appetizers on the club’s patio, overlooking the beautiful La Jolla Cove.Colorado Case Law Updates
Rooftop Restoration, Inc. v. American Family Mut. Ins. Co.
In this recent Colorado Supreme Court decision, the Court issued an opinion interpreting and applying C.R.S. §§ 10-3-1115/1116, the statutes that provide a private right of action against an insurer for unreasonable delay or denial of insurance benefits. The Court held claims under the statute are not subject to the one-year statute of limitations applicable to penalties and insureds are entitled to recover two times the covered insurance benefit in addition to the covered benefit, for a total of three times the covered benefit. In order to reach this conclusion, the Court looked at the language of the accrual statute associated with Colorado’s statutory scheme for statutes of limitation. The accrual statute states that a cause of action for penalties accrues when the determination of overpayment or delinquency is no longer subject to appeal. The Court reasoned that an action for unreasonable delay/denial never leads to a determination of overpayment or delinquency. Thus, the Court reasoned, if a cause of action for unreasonable delay/denial is a penalty subject to the one-year statute of limitations, it would never accrue and the clock to bring the claim would never start ticking. The Court concluded the “penalty” actions referred to in the statute of limitations cannot include unreasonable delay/denial actions. Accordingly, the Court held claims under C.R.S. §§ 10-3-1115/1116 are not governed by the one-year statute of limitations in C.R.S. § 13-80-103(1)(d).California Case Law Updates
Products Liability-Record $70 Million Punitive Damage Award Pending Appeal
Kuhlmann et al. v. Ethicon Endo-Surgery Appellate Case No. A147945, Court of Appeal, First District
A record high $70 million punitive damages verdict against Johnson & Johnson in a lawsuit over a defective surgery stapler is up on appeal. Johnson & Johnson contends the evidence does not support the jury’s finding the stapler manufacturer acted with malice. If the verdict is allowed to stand, it will be the highest punitive award affirmed by a California court. Johnson & Johnson’s attorneys claim the amount is excessive, as it far exceeds what courts have approved for cases involving far more reprehensible alleged misconduct, such as harm caused by asbestos or the tobacco industry.California Case Law Updates
Coalition Against Distracted Driving et al. v. Apple Inc. et al.
In this appeal recently brought before the Second Appellate District (downtown Los Angeles), appellant urged the Court to revive a suit in he and a coalition brought against Apple, Google, Samsung and Microsoft. In that suit, it was alleged these tech giants should be required to warn consumers about the dangers of using smartphones while driving. Plaintiffs argued the four tech companies must apply warning labels regarding the dangers of distracted driving to their products. The trial court dismissed the case, ruling the coalition had no standing to sue.California’s Delayed Discovery Rule in the Medical Malpractice Context
Statutes of limitations are an integral component of the legal system enacted as a matter of public policy and designed “to give defendants reasonable repose, that is, to protect parties from defending stale claims [and] to require plaintiffs to diligently pursue their claims.” In California, there is an important exception to the general rule that a cause of action accrues when appreciable harm occurs. This is known as the Delayed Discovery Rule. The Rule applies in certain circumstances where it is not reasonably possible for a person to discover the cause of injury or even know that an injury has occurred, until an extended period of time after the act which caused the alleged injury. In these situations, the Delayed Discovery Rule operates to “postpone the accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” The principal purpose of the rule permitting postponed accrual of certain causes of action is to protect aggrieved parties who, with justification, are ignorant of their right to sue.Florida Case Law Update
Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Company
Florida’s Supreme Court recently held in a construction defect matter, an insurance carrier’s duty to defend may be triggered by a construction defect notice against its insured. In this case, general contractor Altman Contractors, Inc. challenged a lower court ruling that its insurer, Crum & Forster, Inc. was not obligated to cover its defense against a slew of notices under the Florida Statute’s Chapter 558, which provides for a presuit proceeding through which a property owner can assert a claim for construction defects against a builder. Specifically, the Court ruled that a Chapter 558 Notice is an “alternative dispute resolution proceeding” which fits the definition of a “suit” for purposes of triggering Crum & Forster’s defense obligations under the commercial general liability policy it had issued to Altman.The 2020 Women on Boards 6th Annual National Conversation on Board Diversity
The Tyson & Mendes Women’s Initiative promotes growth and facilitates business development opportunities for both our attorneys and clients through networking and social information sharing opportunities. On November 15, several attorneys and staff from Tyson & Mendes attended a fascinating and thought-provoking event hosted by the 2020 Women on Boards non-profit organization. 2020 Women on Boards is a national campaign to increase the percentage of women on U.S. company boards to 20% or greater by the year 2020. Each year, the campaign holds an annual panel discussion in cities across the country, where prominent successful women and directors offer valuable insight to attendees in an open dialogue. The San Diego event was well attended by hundreds of local women and men from across a multitude of industries and backgrounds, as well as leaders, politicians (including Senator Toni Atkins!), high-level executives and, recognized experts.Howell Update: Class Certification Denied in Action Seeking Declaratory Relief that Hospital “Chargemaster” Rates are Unreasonable
Tyson & Mendes argued and won the landmark Supreme Court decision of Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal. 4th 541, which held that a personal injury plaintiff is limited to recovering the lesser of what is actually paid or the reasonable value of medical services, rather than what a healthcare provider has billed the plaintiff for the services. A recently published decision reinforces the importance of this rule and the huge discrepancy between billed vs. paid amounts. Artur Hefczyc v. Rady Children’s Hospital-San Diego, 2017 WL 5507854 (filed 11/17/17 and certified for publication). In this case, a plaintiff sought declaratory relief (on behalf of a proposed class) to establish that (among other things) a hospital was only authorized to charge self-pay patients for the reasonable value of its services, and that it was not permitted to bill based on a master list of itemized charge rates. The Court declined to issue the relief because it found the issues were inappropriate for class action litigation.Florida Case Law Update
Richard DeLisle v. Crane Co., et al. (July 2017)
The Florida Supreme Court is set to revisit the standard by which expert witnesses are qualified. Specifically, the Court is considering the Legislature’s proposed change to the state’s evidence code to now require what is known as the Daubert standard instead of the Frye standard, which the Court has favored for decades.