Archive for November, 2009

Second Appellate District Holds That A Second Section 998 Offer, Once Withdrawn, Does Not Supersede A Prior Offer Not Withdrawn

One Star, Inc. v. Staar Surgical Company, No. B212098 (November 30) is an opinion from Division Four of the Second Appellate District resolving an issue of first impression as to Code of Civil Procedure Section 998 settlement offers.  That provision provides that if a plaintiff does not accept a defendant’s pretrial settlement offer and then [...]

November 30, 2009   Posted in: Blog  Comments Closed

CA Supreme Court Holds Discovery Referee’s Review and Redaction of Opinion Letter Violated Attorney-Client Privilege

In an important clarification of the attorney-client privilege, the California Supreme held, in Costco Wholesale Corp. v. Superior Court (Randall), No. S163335 (November 30), that a trial court’s direction of a discovery referee to conduct an in camera review of an opinion letter sent by outside counsel to a corporate client, allowing the referee to [...]

November 30, 2009   Posted in: Blog  Comments Closed

CA Supreme Court Issues Opinion Carefully Analyzing Appropriate Calculation of Punitive Damages

Roby v. McKesson Corp., No S149752 (November 30), is an important holding from the California Supreme Court on employment law issues not the subject of this blog with language on the appropriate calculation of punitive damage awards relevant to all industries.  A jury found Roby was wrongfully discharged based on her medical condition and related [...]

November 30, 2009   Posted in: Blog  Comments Closed

Sixth Appellate District Upholds Trial Court’s Decision Denying Preliminary Injunction To Prevent PPO From Delisting Chiropractor

In the unpublished case of Davis v. First Health Group Corporation, No. H032183 (November 25), the Sixth Appellate District was confronted with a trial court’s refusal to enjoin a preferred provider organization (PPO) from delisting a chiropractor.  The chiropractor contended that he was protected under the common law fair procedure doctrine and that the PPO [...]

November 25, 2009   Posted in: Blog  Comments Closed

Sixth Appellate District Holds That COLAs For Life Pensions And Total Permanent Disability Indemnity Are Added To Those Payments Starting January 1, 2004 And Every January 1 Thereafter

In Duncan v. Workers’ Compensation Appeals Board (WCAB), No. H034040 (November 25), the Sixth Appellate District was faced with a case of first interpretation requiring it to construe Labor Code Section 4659 (c).  The WCAB had construed it to mean that the cost of living adjustment to total permanent disability payments and life pensions are [...]

November 25, 2009   Posted in: Blog  Comments Closed

First Appellate District Clarifies Insurer’s Good Faith Duty When Settlement Offer Made Directly to Insured

California law is clear that an insurer has no good faith duty to accept a policy limits settlement offer for the release of only one of multiple defendants insured under the same policy.  In the unpublished case of Kauffman v. California State Automobile Association Interinsurance Bureau, No. A123494 (November 24), Division One of the First [...]

November 24, 2009   Posted in: Blog  Comments Closed

Court Not Estopped From Entering Bond Forfeiture Summary Judgment Despite Clerk’s Mistake In Informing Surety Bond Exonerated

In the unpublished case of The People v. Indiana Lumbermen’s Mutual Insurance Company, No. D054009 (November 24), Division One of the Fourth Appellate District was faced with the appeal of a summary judgment by a surety.  Approximately four months after the trial court mailed the surety a formal notice declaring a bail bond forfeited, a [...]

November 24, 2009   Posted in: Blog  Comments Closed

Fifth Appellate District Strikes Award For Past Medical Damages Where No Evidence Provided As To Reasonableness of Charges

In the unpublished case of Vo v. Sandita Mitsathaphone, No. F056245 (November 23), the Fifth Appellate District considered a challenge to damages awarded the plaintiff after a single vehicle automobile accident.  Plaintiff was awarded $1,747,801.30 in damages against the vehicle’s driver.  Defendant appealed, contending that plaintiff presented no evidence to support the award of certain [...]

November 23, 2009   Posted in: Blog  Comments Closed

Fourth Appellate District Holds Injured Plaintiff May Recover Differential Between Full Amount of Medical Providers’ Bills and Negotiated Rate Actually Paid

In Howell v. Hamilton Meats & Provisions, Inc., No. D053620 (November 23), Division One of the Fourth Appellate District was faced with the question whether a plaintiff in a personal injury lawsuit who has private health care insurance may recover, under the collateral source rule, economic damages for the amount of past medical expenses her [...]

November 23, 2009   Posted in: Blog  Comments Closed

Plaintiff Not Entitled to Separately Recover Property Damage Claim Where Arbitration Between His And Other Party’s Insurer Resulted In Decision Finding No Liability

In the unpublished case of Contreras v. Wong, No. A122772 (November 23), Division Four of the First Appellate District was faced with a lawsuit by Julio Contreras against Rico Wong after the two were involved in an automobile accident.  Following a court trial, the trial court declined to award Wong some $12,479.12, the amount that [...]

November 23, 2009   Posted in: Blog  Comments Closed

Supreme Court Issues Grant and Hold Order on Yabsley v. Cingular Wireless

Yabsley v. Cingular Wireless, No. S716146, helpfully disagreed with Krumme v. Mercury Insurance Company (2004) 123 Cal. App. 4th 924, finding that administrative regulations can provide a UCL “safe harbor.”  See our April 20 blog post.  On November 19, the Supreme Court issued a grant and hold order in the case pending disposition of  Loeffler [...]

November 23, 2009   Posted in: Blog  Comments Closed

Fourth Appellate District Upholds Summary Judgment Against City of Carlsbad On Landslide Claim Against Insurance Company of the State of Pennsylvania

In the  case of the City of Carlsbad, et al v. Insurance Company of the State of Pennsylvania (ISOP), No. D053843 (November 20; ordered published December 17), Division One of the Fourth Appellate District addressed a landslide that occurred as result of Carlsbad and the Carlsbad Municipal Water District’s negligent maintenance of its water system. [...]

November 20, 2009   Posted in: Blog  Comments Closed

Bail Bond Forfeiture Upheld Where Surety Held to Have Misrepresented To Court Reason For Seeking An Extension Of Time for Forfeiture Proceeding

In the unpublished case of  The People v. Lincoln General Insurance Company, No. B211055 (November 13), Lincoln appealed from a summary judgment on a forfeited bail bond.  Lincoln had posted a $30,000 bond to secure the release of a criminal defendant.  He failed to appear as scheduled and the bond was ordered forfeited.  Near the [...]

November 13, 2009   Posted in: Blog  Comments Closed

WCAB Award Finding Employer Liable For Section 132a Discrimination Annulled Where Supreme Court Standard Not Applied

Labor Code Section 132a penalizes employers who discriminate against employees on the basis of a workers’ compensation claim.  Such a finding was made against Gelson’s by the Workers’ Compensation Appeals Board in Gelson’s Markets, Inc. v. Workers’ Compensation Appeals Board (WCAB) and Paul Fowler, No. B209336 (November 13), a case heard by Division Three of [...]

November 13, 2009   Posted in: Blog  Comments Closed

Second Appellate District Upholds Prior Publication Exclusion As Defeating Defense Duty In Trademark Infringement Action

In Kim Seng Company v. Great American Insurance Co. of New York, et al, No. B208699 (November 13), Division Five of the Second Appellate District upheld a summary judgment in favor of the insurers holding that they had no duty to defend the insured in a trademark infringement action under their advertising injury coverage based [...]

November 13, 2009   Posted in: Blog  Comments Closed

Second Appellate District Releases Significant Clarification of Mediation Confidentiality

In Cassel v. Superior Court (Wasserman, Comden, Casselman & Pearson, L.L.P.), No. B215215 (November 12), Division Seven of the Second Appellate District, in a 2-1 decision,  issued a significant clarification of the mediation confidentiality law embodied in Evidence Code Section 1115 et seq. we discussed most recently in our October 28 blog post.  The context [...]

November 12, 2009   Posted in: Blog  Comments Closed

Second Appellate District Annuls WCAB Order Effectively Ordering Double Death Benefits

In City of Los Angeles v. Workers’ Compensation Appeals Board (WCAB) and State of California Death Without Dependents (DWD) Unit, et al, No. B211331 (November 12), Division Seven of the Second Appellate District was faced with a petition for review of a WCAB award ordering a full $125,000 death benefit to the DWD Unit under [...]

November 12, 2009   Posted in: Blog  Comments Closed

Fourth Appellate District Reverses Wrongful Death Verdict With Important Rulings on Duty and Causation

Cabral v. Ralphs Grocery Company, No. E044098 (November 10), is an interesting 2-1 decision from Division Two of the Fourth Appellate District reversing a wrongful death judgment in favor of plaintiff’s decedent.  On February 27, 2004, Adelemo Cabral’s pick-up truck collided with a tractor trailer (big rig) driven by Hen Horn, an employee of Ralphs.  [...]

November 10, 2009   Posted in: Blog  Comments Closed

Bail Forfeiture Improper When Case Not Called On Arraignment Date and No Jurisdiction On a Later Arraignment Date

The People v. American Surety Insurance Company, No. G040720 (November 9), is a decision by Division Three of the Fourth Appellate District reversing a trial court’s judgment forfeiting bail after a motion to set aside the forfeiture was denied.  On appeal, American Surety argued that the trial court lost jurisdiction to forfeit bail when the [...]

November 9, 2009   Posted in: Blog  Comments Closed

Commissioner Denies Request To Increase WC Claims Cost Benchmark

Commissioner Poizner today denied a second consecutive request by the Workers’ Compensation Insurance Rating Bureau (WCIRB) to increase the Claims Costs Benchmark.  The Commissioner said insurers continue to ignore what he believes to be readily-available cost control measures.  The Commissioner said he has “clear evidence that the cost control reforms from 2003-2004 have yet to [...]

November 9, 2009   Posted in: Blog  Comments Closed

Fourth Appellate District Carefully Parses Policy Language To Find Potential Completed Operations and Products Hazard Coverage

In the unpublished case of Stout v. Balboa Insurance Company, No. D053779 (November 6), Division One of the Fourth Appellate District was faced with a claim for environmental contamination allegedly caused by Zambelli Manufacturing Company stemming from a time period it occupied and used property owned by the E. F. Schultz Trust.  The City of [...]

November 8, 2009   Posted in: Blog  Comments Closed

Commissioner Prevails Against PacifiCare Life & Health Insurance Co. Attempt to Derail Enforcement Action

Commissioner Poizner announced today that Los Angeles Superior Court Judge James Chalfant has thrown out a lawsuit by PacifiCare Life & Health Insurance Company that attempted to blockade the Commissioner’s enforcement action alleging more than 100,000 violations of law in the company’s processing of health insurance claims.  The Commissioner has charged PacifiCare with, among other [...]

November 6, 2009   Posted in: Blog  Comments Closed

Second Appellate District Applies Montrose Stay Policies Outside Defense Duty Context

Hartford Casualty Insurance Company v. Superior Court (Mission Fiber Group, Inc.), No. B218209 (November 5), is an unpublished decision from Division Two of the Second Appellate District on a writ petition/order issued pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal. 3rd 171, 181.  Mission, a recycler, filed a breach of contract/bad faith [...]

November 5, 2009   Posted in: Blog  Comments Closed

Surety Which Failed To Demonstrate Criminal Defendant Deported and Not Eligible For Return Forfeits Bail

In the unpublished case of County of Los Angeles v. Safety National Casualty Corporation, No. B210455 (November 5), Safety National appealed from a judgment forfeiting the bail it posted to secure release of a criminal defendant.   Safety National contended that its bond was exonerated because the defendant was deported and federal law prevented the defendant [...]

November 5, 2009   Posted in: Blog  Comments Closed

Judicial Council Forms Do Not A Cause of Action Make

In the unpublished case of  Shon v. 21st Century Insurance Co., No. B212308 (November 4), Division Six  of the Second Appellate District  affirmed a trial court’s dismissal of plaintiff Shon’s tort/personal injury action against 21st Century.  Shon, claiming he was involved in an automobile accident with a vehicle driven by a 21st Century insured, obtained [...]

November 4, 2009   Posted in: Blog  Comments Closed