Personal Injury Litigation Prediction: Hospital-Induced Delirium, the Next Big Claim

Author: Margarite Sullivan

Guest Editor: Tiffany Rouhi

March 4, 2019 9:00am

Subjective Complaints in Personal Injury Litigation

Traumatic Brain Injury claims are likely just the beginning of an onslaught of “subjective” injury complaints alleged by plaintiffs in personal injury actions.  I say subjective because currently, there are no scientifically accepted methods to test a person for a traumatic brain injury (TBI).  Sure, you can check imaging results for contusions, lacerations, and changes to the physical structure of the brain; however, approximately 75% of traumatic brain injuries are mild and considered “concussions[1].”  This means many of the TBI claims made by plaintiffs likely cannot be scientifically verified in the same way we can conclusively identify an injury such as a broken bone.  Generally, most patients recover from a mild TBI/concussion; however, some patients experience persisting problems related to their head injury[2]This is where the meat and potatoes for plaintiffs’ attorneys lie:  any reference to loss of consciousness, memory problems, moodiness, headaches, depression, anxiety, and general cognitive issues causes dollar signs to flash before plaintiffs’ attorneys’ eyes.

California Court of Appeal Rules Attorney’s Fees Not Proper Following Acceptance of a 998 Offer to Compromise on an Unruh Act Claim

Author: Raymond K. Wilson Jr.

Guest Editor: Tiffany Rouhi

March 4, 2019 9:00am

In Linton v. County of Contra Costa (2019) 31 Cal.App.5th 628, plaintiff sued for injuries she sustained when she fell from her wheelchair while riding in a county para-transit van. Plaintiff’s Second Amended Complaint alleged violations of the Disabled Persons Act (California Civil Code § 54 et seq.) and the Unruh Act. (California Civil Code § 51 et seq.) Both causes of action allow for attorney’s fees if liability is proven.

California Case Law Update

Author: Emily Berman

Guest Editor: Alla Policastro

March 4, 2019 9:00am

Westport Insurance Corp. v. California Casualty Management Co.[1]

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.

California Case Law Update

Author: Kris Darrough

Guest Editor: Raymond K. Wilson Jr.

February 4, 2019 12:35pm

Olive v. General Nutrition Centers, Inc. (2018) —Cal.Rptr.3d —, 2018 WL 6804361

Plaintiff Jason Olive, an actor and a model, entered a contract with General Nutrition Centers, Inc. (“GNC’) where GNC would use Olive’s likeness in its advertising campaign. Olive sued GNC alleging GNC used his likeness after the expiration of its rights. GNC admitted liability but contested the amount of damages.

California Probate Code’s Cap on Damages Will Not Bar Recovery of Costs in Excess of Policy Limits in Cases Against a Decedent’s Estate When the Insurance Company Rejects a Reasonable Settlement Offer

Author: Tara-Jane Flynn

Guest Editor: Raymond K. Wilson Jr.

February 4, 2019 12:32pm

When someone causes a personal injury in California and then passes away, the injured victims can file lawsuits against the decedent’s estate to recover damages for their losses. The California Probate Code limits the amount of recoverable damages to the policy limits of the decedents’ insurance covering their liability at the time of the accident.  However, a recent decision warns insurance companies if they reject reasonable settlement offers in these cases, they could be on the hook for costs in addition to the policy limits.   In Meleski vs. Estate of Hotlen, 29 Cal.App.5th 616, a California Court of Appeal ordered Allstate Insurance to pay costs in addition to the policy limits to a plaintiff who prevailed at trial after the insurance company refused her reasonable settlement offer.

Release of Past Fraud, Negligence, Breach of Contract & Violation of Law Allowed by California Court

Author: Robert Bernstein

Guest Editor: Raymond K. Wilson Jr.

February 4, 2019 12:01pm

A recent court decision involving claims of alleged defective construction provides guidance for parties entering into all manner of contracts under which they provide a release to the other party of its potential liability for negligence, breach of contract or statutory violations. In short, although releasing another party from liability for potential intentional or negligent conduct is prohibited under California law as against public policy, the prohibition applies only to current or future actions, and not to past conduct, absent appropriate contract language.

Highlights of New California Laws Effective January 1, 2019

Author: David Kahn

Guest Editor: Tiffany Rouhi

January 7, 2019 9:00am

The California legislature has enacted several interesting and significant laws which go into effect January 1, 2019.  These diverse laws range from areas of employment law/sexual harassment, Cannabis regulation, roadway safety, and environmental health and safety. The following will briefly provide some highlights:

2019 California Law Requires Inspection of Apartment Complex Structures

Author: Robert Bernstein

Guest Editor: Tiffany Rouhi

January 7, 2019 9:00am

On June 16, 2015, shortly after midnight, the balcony of an apartment complex collapsed killing 6 young people who were attending a 21st birthday party.  It was later determined the balcony had shown signs of water damage which was not addressed and that it collapsed as the result of wood rot in structural support beams. In addition to new laws which require contractors and their insures to report judgments and settlements in construction defect cases involving residential rental complexes (California Business & Professions Code Section 7071.20, etc.), as of January 1, 2019, California also requires the periodic inspection of balconies and other structural components in residential rental projects.

California Case Law Update

Author: Alla Policastro

Guest Editor: Tiffany Rouhi

January 7, 2019 9:00am

Thee Sombrero, Inc. v. Scottsdale Insurance Company (2018) 28 Cal.App.5th 729

In November, the California Court of Appeals expanded the potential basis for property damage claims when it held that property damage and loss of use claims can be based on intangible damage to property.

Facts

Thee Sombrero, Inc. (Sombrero) owned a commercial property in Colton, CA.  Sombrero obtained a conditional use permit (CUP) allowing its lessees to operate the property as a nightclub.  Crime Enforcement Services (CES) provided security services at the nightclub. In 2007, due to non-permitted property modification by CES, there was a fatal shooting at the nightclub.  Following the shooting, the CUP was revoked and replaced with a modified CUP, which allowed the property to be operated only as a banquet hall.  Revenues from operation of the property as a banquet hall were significantly lower than revenues when it was operated as a nightclub.

Big Shoes to Fill: Insurer Barred from Bringing Subrogation Claim on Behalf of Suspended Corporation

Author: Mia Kelly

Guest Editor: Tiffany Rouhi

January 7, 2019 9:00am

The California Court of Appeals recently affirmed a trial court ruling denying an insurer’s leave to amend its complaint after a motion for judgment on the pleadings was granted in favor of the defense.  In Travelers Property Casualty Company of America v. Engel Insulation, Inc. (2018) WL6259032, Travelers, the contractor’s insurer, sought leave to amend its complaint against subcontractor Engel Insulation for defense fees and costs.  The trial court denied Traveler’s request to amend.  The Court of Appeals affirmed the trial court’s ruling and held an insurer may not “may not pursue a subrogation recovery if the insured is itself barred from filing suit.”  (See Low v. Golden Eagle Ins. Co.(2002) 101 Cal.App.4th 1354, 1363.)

Defend, Indemnify, and Hold Harmless, Till the Expiration of This Agreement Do Us Part

Author: Margarite Sullivan

Guest Editor: Alexander Nguyen

December 3, 2018 9:00am

You just had a matter come across your desk and, of course, one of your first tasks is evaluating the liability exposure of your client.  But sometimes lost in the liability exposure analysis is whether the exposure arose out of the work of a contractor.  Why is this important?  Because you could single-handedly save your client hundreds of thousands, if not millions of dollars, in legal fees by simply identifying possible indemnity contracts between your client and other entities.  In this article I will highlight my favorite ways to use Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541 to protect the businesses and assets my clients worked tirelessly to build.

Rules Governing Expert Testimony Based on Hearsay

Author: Tiffany Lemelle

Guest Editor: Alexander Nguyen

December 3, 2018 9:00am

Court comes to order and you begin examination of your cardiology expert.

Q: Doctor, in your work on this case, did you review the radiologist’s report of the chest x-ray taken of the plaintiff on March 1, 2018?
A: Yes.
Q: Did you rely on the x-ray in rendering a differential diagnosis in this case?
A: Yes, I did.
Q: What did the radiologist find with regard to the x-ray?

An attorney hollers, “objection, hearsay!” What now?

Martinez Decision Clarifies Rules For California C.C.P. § 998 Offers

Author: Robert Bernstein

Guest Editor: Alexander Nguyen

December 3, 2018 9:00am

California’s Fourth Appellate District, Division Three, recently issued an opinion that provides additional clarity regarding the interpretation and application of Statutory Offers to Compromise, also known as “998 offers.” Martinez v. Eatlite One, Inc. (2018) 27 Cal.App.5th 1181 holds when a 998 offer is silent on costs and fees a court should simply compare the jury award with the 998 offer because, for comparison purposes, plaintiff’s pre-offer costs and fees are added to both the jury award and the (silent on costs) 998 offer.

Crying “Bad Faith”

Author: Terra Davenport

Guest Editor: Tiffany Rouhi

December 3, 2018 9:00am

In California, an insurance bad faith claim is a claim that an insured has against his or her insurance company resulting from the insurance company’s bad acts. These claims usually arise from actions an insurance company takes, or fails to take, after incidents like a motor vehicle accident or property damage. Insurance bad faith is a complicated area of law.

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