Case Results

Plane Crash: $27 million: U.S. Navy F14 Jet Aircraft crashed into client’s hangar at the airport destroying a fleet of helicopters and their spare parts. Fortunately, the pilot bailed out of the plane and was uninjured.

Insurance Bad Faith: $17 million: Major insurance carrier denied water district’s claim for damage to the largest earth filled dam in the United States. The water damage was casued by the El Nino rain storms
while this huge reservoir was still under construction.

Three Medical Malpractice Brain Injury Cases: $8 million: These cases all involved an anesthesia mishap during what should have been routine surgery. Two of the cases were against oral surgeons who were doing tooth extractions. The clients all suffered loss of oxygen to the brain resulting in catastrophic injuries.

$3.4 million: Auto manufacturer and tire distributor settled wrongful death claims after the laintiff’s closed their case-in-chief at trial. The plaintiffs’ husband and father was only in his thirties and had
a good earning capacity.

Train Accident: $3 million: Freight train unlawfully parked blocked view of passing train on adjacent tracks which stuck clients’ car as it was crossing major intersection. Client suffered severe brain injuries.

Two Wrongful Death Auto Accident Cases: $3 million: Both cases involved a drunk driver. In one case the plaintif’ husband was the passenger in a car driven by her employer and, in the other, the plaintiff’s son was struck by a truck while riding a bicycle.

Harrington v. Macaluso in which we represented the plaintiff in a suit for breach of a real estate contract. We sued for $3 million, and recovered the full amount of $3 million at trial, plus a post-judgment award of attorneys’ fees and costs, all of which was collected. There was no actual signed written contract between the parties in that case. Therefore, we had the difficult task of proving the case through a series of numerous e-mails and conflicting testimony.

Two Health Club Failure to Use AED Cases: $2.7 million: One of these cases resulted in death and the other resulted in a severe and preventable brain injury. These incidents followed sudden cardiac arrests while exercising.

Homeowner Assoication Law

In Welk Resort Group v. Aviara Residence Club Owner’s Association, the Aviara Owners Association adopted a rule limiting the number of concurrent timeshare units that could be reserved at one time at the Four Seasons Aviara timeshare resort. This led to a lawsuit by Welk Resort Group, which had purchased a significant number of the timeshares. After a two-week trial, judgment was entered in Aviara’s favor on all points. LiMandri & Jonna LLP recovered over $1million dollars in attorneys’ fees and costs. In a counter-suit, LiMandri & Jonna LLP then obtained a $1.13 million settlement on Aviara’s behalf in an assessment collections action.

In Pacific Tower Condominium Association v. Seis, a condominium association was forced to sue one of its condo owners after the owner installed a second bathroom that was not approved by the association. LiMandri & Jonna LLP successfully obtained summary judgment in favor of the condominium association as well as all of the association’s attorneys’ fees.

In Boardwalk Condominium Association v. Travelers Indemnity Co., two condo owners notified the association of water damage in their units, and the association reported their damage to its insurance carrier. When the insurance carrier refused to cover the water and mold damage, attorneys with LiMandri & Jonna LLP sued. Following a determination by the Ninth Circuit that the association’s insurance policy covered the damage, the case settled for a confidential amount.

In another case, LiMandri & Jonna LLP successfully sued a homeowners’ association’s insurance carrier to cover the association’s large loss following a lengthy trial. LiMandri & Jonna LLP obtained near-full coverage for that loss.

Dental Malpractice – $2.6 Million

Facts / Contentions
Our client suffered a catastrophic brain injury after a routine tooth extraction involving an anesthesia mishap. LiMandri & Jonna LLP represented the plaintiff, who was left in a persistent vegetative state, as well as his wife. We pursued both the oral surgeon and the dentist who contributed to the accident, ultimately winning $2.6 million for our client just before the case went to trial.

San Diego County Superior Courts

Salim D. Sesi et al. v. Signal Landmark, Inc. aka Coronado Landmark, Inc.

Number: 624243

Plaintiff Attorney: Charles S. LiMandri, San Diego
Defendant Attorney: Lathan and Watkins, San Diego, by Joseph J. Wheeler

Plaintiff Expert: Daniel E. Johnson (Environmental Consultant) San Diego
Craig L. Carlisle (Geologist) San Diego
Albert R. Wilson, M.B.A. (Environmental Impact on Property alues) Denver, Colorado
Mary L. Walker (Attorney) San Diego
Defendant Expert: Opjit Ghuman (Geotechnical Engineer) Santa Ana

Trial Judge: Hon. Judith D. McConnell

TRESPASS – DUMPING OF HAZARDOUS SUBSTANCES

Plaintiffs in this case were a group of friends and relatives who owned three large tracts of land on Otay Mesa. As part of a beachfront development, defendant cleaned up the site of an old municipal dump in Coronado, where ash from burned refuse had been mixed with beach sand. In July of 1987, defendant dumped approximately 2,500 truckloads of the mixed sand and ash into a seven-acre canyon adjacent to one of plaintiffs’ parcels. The ash contained hazardous levels of lead and copper, which contaminated ground and surface water.

Plaintiffs dismissed a strict liability cause of action and proceeded on common law theories of trespass and nuisance.

Defendant admitted liability.

Plaintiff attorney asked the jury to award the potential costs of cleaning up the site, which could range up to $20 million.

Defendant attorney asked the jury to award $800,000 to $1 million.

Jury out one day after an eleven-day trial.

Damages: Plaintiffs claimed that the costs of cleanup could range up to $20 million.

Settlement talks: Demand cash plus costs of cleanup and litigation, with a cash value of approximately $2.3 million. Offer $1.6 million C.C.P.998.

Result: PLAINTIFF VERDICT $2,500,000
Plaintiffs also filed a companion federal case, which is pending because the subject state superior court action is anticipated not to fully recover the costs of cleanup.
Appeal filed by defendant.

Six passengers injured when van crashes in single-vehicle accident

Vehicle Negligence*Stop Sign
Product Liability*Motor Vehicles*Tire/Wheel

Riverside County Superior Court

Parks v. The Roman Catholic Diocese of Phoenix, Case No. RIC394666. District (if any): Central. Judge: Stephen D. Cunnison. Jury trial: 4 weeks. Verdict/Judgment Date: 3/14/05.

Verdict/Judgment: $2,376,189.00 According to plaintiff: $657,189 economic; $1,719,000 non-economic. Liability was apportioned 100 percent to the Roman Catholic Diocese of Phoenix and 0 percent to Michelin North America.
Vote: Mixed poll. Deliberations: 2.5 days

Trial Counsel
Plaintiff: Daniel M. DiRe, Law Offices of Charles S. LiMandri, Rancho Santa Fe, CA.
Plaintiff: Charles S. LiMandri, Law Offices of Charles S. LiMandri, Rancho Santa Fe, CA
Defendant: Alexander Calfo, Yukevich, Calfo & Cavanaugh, Los Angeles, CA.
Defendant: Mark S. Lester, Haight, Brown & Bonesteel, Riverside, CA
Defendant: Craig McCarthy, Gust Rosenfeld, Phoenix, AZ
Defendant: James Yukevich, Yukevich, Calfo & Cavanaugh, Los Angeles, CA.

Facts/Contentions
According to plaintiff: On April 6, 2003, plaintiffs Laura Parks, age 27, Lourie Plaza, age 23, Maureen Gilloon, age 22, Jaime Howe, age 23, Maricela Moffitt, age 22, and Christi Oliver, age 24, were passengers in a 1995 Ford E350 van. The van was owned and operated by St. Theresa Parish and School. The driver was an employee of Saint Theresa Parish. Plaintiffs were returning home to Phoenix after attending a religious retreat in Los Angeles.

The van was traveling eastbound on I-10 in the no. 1 lane at a high rate of speed. Suddenly, the tread separated from the left rear Michelin tire. The driver turned to the right and hit the brakes, losing control of the van and causing it to enter into a clockwise rotating skid. The van skidded across both eastbound lanes of the freeway before sliding off the side of the road and rolling three times.

As the van rolled, the roof was crushed and several of the windows popped out. The driver admitted to the CHP that he was traveling between 80 and 85 mph at the time of the accident. The posted speed limit was 70 mph.

Claimed Injuries
According to plaintiff: Plaintiffs sustained serious orthopedic injuries of varying degrees as a result of the accident. Three of the plaintiffs sustained mild brain injuries.

Claimed Damages
According to plaintiff: Plaintiff’s medical bill exceeded $500,000. The life care plan for the three most seriously injured plaintiffs approximated $4 million after reduction to present value. Plaintiffs claimed an additional $4.5 million in non-economic damages.

Settlement Discussions
According to plaintiff: Plaintiffs settled with Ford Motor Company in December 2003. Ford made a motion of good faith settlement for a confidential amount, which was subsequently granted by the court. Although the matter was mediated with one of the other remaining defendants on three separate occasions, no subsequent settlement offers were made.

Trial Experts
Plaintiff: Joseph A. Awad, biomechanical engineer, Forensic Injury Consulting, San Diego, CA (619) 295-3020.
Plaintiff: Howard J. Friedman, neuropsychologist, Neurological Sciences, Inc., Walnut Creek, CA (925) 933-5594.
Plaintiff: William R. Goodrich, life care planner, National Life Care Services, Missoula, MT (800) 322-9320.
Plaintiff: William O. Hagerty, tire expert, Escondido, CA (760) 735-3222.
Plaintiff: Craig Metzger, orthopedist, Arizona Orthopedic & Fracture Surgeons, Phoenix, AZ (620) 230-1400.
Plaintiff: Stephen L. Plourd, accident reconstructionist, Stephen Plourd Investigations, San Diego, CA (858) 274-9500
Plaintiff: Robert E. Walker, tire expert, Cypress, TX (281) 807-1079.
Plaintiff: Vickie M. Wolf, economist, Brodshatzer, Wallace, Spoon & Yip, San Diego, CA (619) 234-4173.
Defendant: Stephen M. Arndt, safety engineer, Phoenix, AZ (480) 706-2963.
Defendant: Thomas Dodson, tire engineer/failure analysis consultant, Copley, OH (330) 666-1328.
Defendant: Donald C. Stevens, safety engineer, Phoenix, AZ (480) 706-2963.

Expert Testimony
Not Reported.

Comments
According to plaintiff: The insurance carrier for the Roman Catholic Diocese of Phoenix and Saint Theresa Parish and School was Catholic Mutual. Roman Catholic Diocese of Phoenix and Saint Theresa Parish and School paid the judgment. Plaintiffs agreed not to file an appeal as to Michelin North America.

Mark S. Lester and Craig McCarthy representing the Roman Catholic Diocese of Phoenix and St. Theresa Parish and School. James Yukevich and Alexander Calfo represented Michelin North America.

Homeowners Sue Carrier for Failure to Pay Mold-related Claim

INSURANCE
Bad Faith: Duty to Indemnify/First Party Coverage: Property

SAN DIEGO COUNTY SUPERIOR COURT
Rogers v. USAA, No. GIC803200, Central. John S. Meyer.
Jury trial: 7 days. Verdict/judgment: 1/21/2004.

VERDICT/JUDGMENT: $2,187,500
$37,500 special damages; $400,000 general damages; $1,750,000 punitive damages. Plus attorney fees and costs. The jury voted 12 to 0 on breach of contract, 12 to 0 on the breach of implied covenant of good faith and fair dealing, and 11 to 1 on punitive damages. Vote: Mixed poll. Deliberations: Not reported.

TRIAL COUNSEL
Plaintiff: Charles S. LiMandri, Law Offices of Charles S. LiMandri, Rancho Santa Fe. Richard Salpietra, Law Offices of Charles S. LiMandri, Rancho Santa Fe.

Defendant: Gregory C. Kane, Shifflet, Kane & Konoske, San Diego. Gregory P. Konoske, Shifflet, Kane & Konoske, San Diego.

FACTS/CONTENTIONS
According to plaintiff: Homeowners sued for bad faith refusal by their insurance carrier to cover mold-related damages. The plaintiffs were Richard Rogers and Donna Rogers, owners of a home in Fallbrook. The defendant was USAA (United Services Automobile Association). Plaintiffs were issued a homeowners insurance policy by defendant on or about June 27, 2001. The policy provided coverage for, among other things, loss to plaintiffs’ residence, loss to personal property, loss of use of premises, and additional living expenses. Plaintiffs alleged that a leak in a kitchen pipe and the resultant property damage should be fully covered for remediation and repair under their policy.

On February 5, 2002, plaintiffs contacted their insurance company about a leak in their kitchen. The insurance company investigated, but did not find the leak. Defendant then replaced the damaged wood flooring in the kitchen. During this process, which was completed in the summer of 2002, defendant issued a new policy with lower limits on coverage for damage. On September 23, 2002, plaintiffs again experienced a leak in their kitchen, which caused damage to the same area of the floor and surrounding cabinets. After consulting plumbing experts, they finally found the hole in a pipe underneath the kitchen concrete slab, which the plumbers concluded had caused both leaks. Plaintiffs alleged that defendant should pay for all of the water damage and the remediation of the mold because it was caused by a continuation of the prior unrepaired leak, which occurred under the original policy. Plaintiffs also sought benefits for their additional living expenses for the five months that they had to be out of their home and emotional distress and punitive damages for defendant’s bad faith breach of their insurance contract.

Defendant contended that the subsequent leak fell under the new policy, which greatly limited the amount to be paid for mold-related damage.

CLAIMED INJURIES
According to plaintiff: Mold-related injuries.

CLAIMED DAMAGES
According to plaintiff: $35,000 reconstruction and remediation costs; $2,500 medical costs.

SETTLEMENT DISCUSSIONS
Not reported.

TRIAL EXPERTS
Plaintiff: Ronald A. Simon, allergist/immunologist, Scripps Allergy, La Jolla (858) 554-8618. Everette Lee Herndon, Jr., insurance/bad faith consultant, Ranch Murieta (916) 354-8521.

Defendant: James McKinnon, insurance/claims, Claims Resource Management, Acton (661) 269-5867.

Community college student collapses and dies during lecture

Negligence*Miscellaneous
Wrongful Death*Adult

San Diego County Superior Court

Kinney v. Grossmart-Cuyamaca Community College, Case No. GIE018319(II). District (if any): Central. Judge: Lillian Y. Lim. Jury trial: 5 days. Verdict/Judgment Date: 3/10/04.

Verdict/Judgment: $2,076,000 According to defendant: $1,076,000 economic; $1,000,000 loss of society; apportioned $1,256,000 to Ri Kinney, $720,000 to Skylar Kinney.
Vote: 11-1. Deliberations: 3 days.

Trial Counsel
Plaintiff: Daniel DiRe, Law Offices of Charles LiMandri, Rancho Santa Fe
Plaintiff: Charles LiMandri, Law Offices of Charles LiMandri, Rancho Santa Fe
Defendant: Susan H. Bartleston, Stutz, Artiano, Shinoff & Holtz, San Diego.
Defendant: Jack M. Seeth, Stutz, Artiano, Shinoff & Holtz, San Diego.

Facts/Contentions
According to defendant: A community college student collapsed and died during an evening lecture. The plaintiffs were Ri Kinney and Skylar Kinney, wife and daughter, respectively, of decedent Darren Kinney, a 35-year-old student. The defendants were Grossmart-Cuyamaca Community College District and Jake Henn, Ph.D., professor. Decedent was a college student in an evening psychology class. During class, he began to snore loudly and fell out of his chair. Some students began to laugh. The instructor, who had some personal experience with sleeping disorders and was preparing a unit on sleep disorders, thought that the student was suffering from a sleep disorder. He told the class not to make fun of decedent, and when a student asked if 911 should be called, the instructor said, “I think he’ll be O.K.” The instructor tried to continue the lecture. A few minutes later, decedent stopped snoring and stopped breathing. Students in the class who knew CPR gave aid, and the instructor called the campus police, who coordinated a medical response with an automated defibrillator. Decedent died of a heart attack. The students and instructor testified that they did not know that falling asleep with sounds like snoring were symptoms of a heart attack.

Defendants contended that there was no duty to rescue, hence no breach of duty. The case was tried on the theory that the instructor told a student not to call 911 under a theory of negligent interference with a rescue. Defendant College contended that the law was unclear and that interference with a rescue required some affirmative act or something more than an opinion that “he would be O.K.” The jury was asked if the instructor’s conduct was unreasonable interference with a rescue.

Claimed Injuries
According to defendant: Death

Claimed Damages
Not Reported

Settlement Discussions
According to defendant: Demand: $3.2 million, reduced to $2.9 million (CCP § 998), and $1.5 million (CCP § 998) at trial. Offer: Not reported.

Trial Experts
Plaintiff: Harold Copans, cardiologist, San Diego Cardiology Associates Medical Group, San Diego, (619) 287-7060.
Plaintiff: Milton Erman, physician, Pacific Sleep Medicine Services, San Diego, (858) 657-0550.
Plaintiff: Marvin Pietruszka, family practitioner/internist/pathologist, Del Carmen Medical Center, Reseda, (818) 705-1157.
Plaintiff: Roberta J. Spoon, economist, Brodshatzer, Wallace, Spoon & Yip, San Diego, (619) 234-4173.
Defendant: Brian P. Brinig, economist, Brinig & Company, San Diego, (619) 687-2600
Defendant: Dennis Leahy, cardiologist, Escondido, (760) 743-0546.
Defendant: Werner U. Spitz, forensic pathologist, St. Clair Shores, (810) 776-2060.

Expert Testimony
Not Reported

Comments
According to defendant: Defendants were self-insured under the Joint Powers Authority – Keenan & Associates Claims Representatives. Defendants are filing a notice of appeal.

Editor’s Note: A report on this case, based on information provided by counsel for plaintiffs, was published in volume 7, issue 13 of Trials Digest (13 TD 7th 11).

Insurance company sued for bad faith handling of fire loss claim

INSURANCE
Bad Faith & Coverage/Commercial Policy/Fire

SOUTHERN DISTRICT FEDERAL COURT
Whispering Winds Catholic Conference Center Inc. v. Markel Insurance Company, Docket number: 05CV01911, San Diego. Judge: Irma E. Gonzalez. Trial Type: Bench. Verdict/Judgement date: 7/24/2007.

DECISION: $2,000,000

COUNSEL
Plaintiff: Charles S. LiMandri, Law Offices of Charles S. LiMandri, Rancho Santa Fe.
Defendant: David L. Jones, Gordon & Rees, San Diego. Matthew Elstein, Gordon & Rees, San Diego.

FACTS/CONTENTIONS
According to plaintiff: Defendant Markel Insurance Company insured plaintiff Whispering Winds Catholic Conference Center against property damage and business interruption losses. In October 2003, the “Cedar Fire” destroyed much of the camp. It was closed for almost a year. Plaintiff tendered the claim to defendant, which paid $641,000 for building losses, $167,000 for contents, and $50,000 for lost income. Although its own files showed that the business interruption policy limits were $150,000, defendant represented to plaintiff that the limits were only $50,000.

Plaintiff sought to recover additional benefits (policy limits) for its property damage. Defendant refused to investigate or adjust that part of plaintiff’s claim, and plaintiff filed suit for breach of contract and bad faith. During discovery, plaintiff discovered that the actual policy benefits for business interruption were $150,000. The district court granted plaintiff’s motion for partial summary judgment on defendant’s bad faith handling of the lost business income portion of plaintiff’s claim.

Notwithstanding defendant’s failure to fulfill its statutory duty to investigate, the district court granted partial summary judgment on the building portion of plaintiff’s bad faith claim, based on its findings of a “genuine” dispute between the parties regarding the amount of property damage.

Plaintiff informed defendant that it planned to appeal that ruling after trial of the breach of contract claim. On the eve of trial, defendant paid the balance of its policy limits to plaintiff. Upon being informed of this payment, the district court vacated its summary judgment order in favor of defendant on the issue of bad faith. On the morning the trial was scheduled to begin, defendant accepted plaintiff’s statutory offer to compromise.

CLAIMED INJURIES
NA

CLAIMED DAMAGES
According to plaintiff: Breach of contract damages – property damage and business interruption benefits at policy limits of approximately $1,450,000, plus pre-judgment interest; bad faith damages – attorney fees and costs for recovery of policy benefits.

SETTLEMENT DISCUSSIONS
According to plaintiff: Defendant declined to make any settlement offer at private mediation or at the Mandatory Settlement Conference.

EXPERTS
Plaintiff: Ted Bumgardner, cost estimator, Gafcon Inc., San Diego (619)231-6100. Everette Lee Herndon Jr., insurance/bad faith consultant, Rancho Murieta (916)354-8521. Christopher Glenister, business interruption, The Greenspan Co./Adjusters International, South San Francisco (800)248-3888.

Defendant: Edward J. McKinnon, insurance claims adjuster, Claims Resource Management Inc., Acton (661)269-1124. Peter D. Fowler, cost estimator, Peter Fowler Construction Services Inc., San Clemente. Gary Johnson, business interruption, Morgan Johnson Carpenter & Company, Charlotte, NC.

COMMENTS
According to plaintiff: Defendant paid the policy benefits in an effort to cut off plaintiff’s ability to recover attorney fees and costs after a likely successful appeal to the district court’s summary judgment order regarding defendant’s bad faith as to the property damage claim. Since defendant had consistently denied that it owed any more policy benefits to plaintiff, the district court apparently saw this tactic as evidence that defendant had been acting in bad faith all along and vacated its order sua sponte.

Wrongful Death Lawsuit Against Health Club – $1.15 Million

Facts / Contentions
We represented the family of a man who went into cardiac arrest and died while exercising at a local health club. Unprepared to handle this type of emergency, the health club staff failed to render the proper care and did not use an automatic external defibrillator. LiMandri & Jonna LLP settled the case for $1.15 million shortly before trial.

Bad Faith

Coverage Denied

SETTLEMENT: $700,000

CASE/NUMBER: Case I.D. Confidential.

COURT/DATE: San Diego Superior / Oct. 14, 1999.

JUDGE: Hon. Jay M. Bloom, Dept. 25.

ATTORNEYS: Plaintiff – Charles S. LiMandri (Law Offices of Charles S. LiMandri, Rancho Santa Fe)

Defendant – Gary A. Hamblet (Breidenbach, Buckley, Huchting, Halm & Hamblet, Los Angeles).

TECHNICAL EXPERTS: Plaintiff – Vincent Derby, insurance claims handling, North Hollywood; Albert Ickstadt, physics and engineering teacher, San Diego; Geoffrey Schroeder, fire consultant, Tujunga; Jim Smidt, fire consultant, San Diegeo

Defendant – Joseph Gildner, insurance adjuster, Tustin; Steven Mackaig, fire investigator, El Cajon; Leonard Paulin, insurance broker, Studio City.

FACTS: In the late evening hours of Dec. 9 or the early morning hours of Dec. 10, 10997, a fire broke out at a San Diego bar owned by the plaintiff. The bar was insured under a property policy issued by the defendant insurance company. The bar was destroyed in the fire.

The Plaintiff filed a claim with the defendant insurer, but the insurer denied coverage.

The plaintiff brought this action against the insurer based on breach of contract and breach of the implied covenant of good faith theories of recovery.

PLAINTIFF CONTENTIONS: The plaintiff contended that the firm started before the policy expired. The plaintiff also contended that the failure to renew his policy was improper; that defendant insurer breached the insurance policy and the implied covenant of good faith and fair dealing when it denied coverage for the fire in bad faith.

The plaintiff maintained that he was entitled to the benefits owed under the policy and any consequential damages sustained as a result of the defendant’s bad faith denial of the claim.

DEFENDANT CONTENTIONS: The defendant contended that the policy expired at 12:01 a.m. on Dec. 10, 1997; that the plaintiff did not suffer a loss until approximately two hours later; and that, therefore it owes no benefits under the policy.

The defendant denied liability for consequential and punitive damages.

DAMAGES: The plaintiff sought $95,866 in economic damages. The plaintiff also sought punitive damages.

JURY TRIAL: Length, 10 days; deliberation, six hours and 40 minutes.

SETTLEMENT DISCUSSIONS: Before trial, the plaintiff made a settlement demand for $200,000.

The defendant made a settlement offer of $26,000.

OTHER INFORMATION: The jury found the defendant breached its insurance contract with the plaintiff by denying his claim for benefits, and also found bad faith.

The jury awarded $250,000 for emotional distress, $28,000 for lost profits and $1,600 for medical bills. The judgment included $10,266 in prejudgment interest.

The settlement was reached two days after the jury reached its verdict, but before the punitive damages phase of the trial. This was approximately one year and two months after the case was filed.

CASE INFORMATION
Type: Medical Malpractice: Dentist
Court: San Diego
Name: Fisher v. Spectrum Dental Health Assn.
Case Number: 626160
Judge: Carlos A. Cazares
Trial Type: Jury Trial
Trial Length: 5.5 Days

VERDICT/JUDGMENT
For: Plaintiff. $188,741: $63,741 special damages and $125,000 general damages against Spectrum Dental Health Assn.
Deliberations: 1 day
Vote: Not reported
Date: 03/02/92

COUNSEL
Plaintiff: Charles S. LiMandri, Law Offices of Charles S. LiMandri, San Diego.
Defendant: David G. Brown and Raylene T. Kelsberg Neil, Dymott, Perkins, Brown & Frank, San Diego.

PARTIES
Plaintiff: Rose Fisher, dress designer
Defendant: Spectrum Dental Health Assn. Lynn Simms, Barnaby Bender, dentists and owners of Spectrum Dental Health.

FACTS/CONTENTIONS
According to Defendant: Defendants placed a temporary bridge in plaintiff’s mouth which came off repeatedly. After placement of permanent bridge, plaintiff claimed to experience TMJ problems as a result of incorrect fittings of the various bridges. She claimed further that her TMJ pain caused her to lose her business, her home and an investment condominium.

INJURIES
According to Defendant: TMJ syndrome requiring splint and endodontics; pain; alleged temporary disability.

DAMAGES
According to Defendant: $15,000 past medical; $10,000 future medical; $25,000 past income; $140,000 future income; lost business, home and investment home.

SETTLEMENT DISCUSSIONS
According to Defendant: Demand: $175,000. Offer: $0

EXPERTS
Plaintiff: Gerald McCracken, dentist, San Diego 619/231-1670
Defendant: Robert LeRibeus, dentist, San Diego 619/583-7162. Edward Holly, dentist, San Diego 619/224-2828.

Horse owners sue veterinarian for death of their Arabian stallion

Professional Malpractice*Veterinarian
Surgery/Procedures*Intubation
Surgery/Procedures*Miscellaneous
Personal Property*Damage

San Diego County Superior Court

Kohl v. Amaral, No. GIC757926. Central. E. Mac Amos, Jr. Jury trial: 6 days. Verdict/Judgment Date: 11/28/01.

Verdict/Judgement: $25,000
Vote: 12-0 liability; 9-3 damages. Deliberations: 3 hours.

Trial Counsel
Plaintiff: Charles S. LiMandri, Law Offices of Charles S. LiMandri, Rancho Santa Fe.
Defendant: Steve R. Schwartz, Wallace, Grantham & Schwartz, Los Angeles.

Facts/Contentions
According to plaintiff: Owners of a champion stallion sued a veterinarian for professional malpractice, which resulted in the death of their horse. The plaintiffs were Karen and William Kohl. The defendant was Gary Amaral, a veterinarian. Plaintiff’s business of breeding valuable Egyptian Arabian horses centered on one unique, prize champion stallion. Defendant, the stallion’s long-term veterinarian, was required to perform a naso-gastric intubation of mineral oil into the stallion’s stomach to ease the horse’s gastric problems. Defendant botched the procedure and caused the horse’s death. The horse died aspirating the mineral oil into its lungs because defendant pumped the oil through the tube without assuring that the tube’s terminus remained in the stomach. Defendant purposely continued to pump the oil at a hurried pace, to drain the bucket, even after learning that the tube was slipping and that it likely had come out of the stomach. Plaintiffs alleged that defendant’s negligence proximately caused the death of their stallion. Plaintiffs further alleged that their horse was a rare, champion Egyptian Arabian stallion that was sired by a stallion belonging to the most celebrated line of Egyptian Arabian stallions in this century, and stood at the core of their horse showing and breeding business. Plaintiff also alleged that the defendant’s expert, James Lowe, was a trainer and not an appraiser, and was unfamiliar with the stallion and was unaware of the stallion’s lineage. Plaintiff’s further alleged that he testified about the horse’s worth, without adequate basis, and ignored the fact that each foal sired by Plaintiff’s horse alone fetched $5,000 to $10,000.

Defendant contended that plaintiffs were contributorily negligent. (This defense utterly failed, as it was ascertainable from the outset that defendant’s negligence was the proximate cause of the stallion’s death as a matter of law.)

According to defendant: Owners of an Arabian stallion sued a veterinarian for professional malpractice, which resulted the death of their horse. The plaintiffs were Karen and William Kohl. The defendant was Gary Amaral, a veterinarian. Plaintiff’s Arabian stallion was treated with nasogastric stomach intubation of mineral oil for colic. There was oil aspiration, which caused respiratory distress, aspiration pneumonia and death, subsequent to abdominal surgery. Plaintiff alleged that their Arabian stallion was a valuable champion worth $400,000 to $450,000.

Defendant contended that plaintiff Karen Kohl, a professional horse breeder, was comparatively at fault for not holding the horse properly during intubation.

Claimed Injuries
According to plaintiff: Death. According to defendant: Same as above.

Claimed Damages
According to plaintiff: $400,000 to $500,000 damages for the loss of a rare horse. According to defendant: $400,000 to $450,000 value of the champion stallion.

Settlement Discussions
According to plaintiff: Demand: Not reported. Offer: Defendants refused to settle for “even a penny.”

According to defendant: Demand: $1,000,000 (CCP 998), reduced to $300,000. Offer: Not reported.

Trial Experts
Plaintiff: Don Burt, horse appraiser, Rancho Palso Verdes.
Plaintiff: Willard Ommert, veterinarian, Temecula.
Defendant: James Lowe, Arabian horse trainer/appraiser, Scottsdale.
Defendant: Jeffery Oney, veterinarian, Pasadena.

Expert Testimony
According to plaintiff: The defense expert James Lowe, a horse trainer, testified that the horse was worth only $10,000 to $20,000.

Comments
According to plaintiff: The court denied plaintiff’s request for a jury instruction on the “peculiar value” of the horse, pursuant to Civil Code §3355. The verdict was reached approximately one year and one month after the case was filed. Plaintiffs filed a motion for new trial limited to damages, or alternatively, additur, which was set to be heard on January 25, 2002. Plaintiffs also submitted a memorandum of costs in the amount of $156,602, which included $147,527 in attorney fees and expert fees for defendant’s unreasonable denial of plaintiffs’ requests for admissions on liability, per CCP §2033(o). The motion for fees was to be heard at the same time as the motion for new trial/additur.

SETTLEMENT – Passenger on fishing boat slips and falls down stairs

PREMISES LIABILITY
Slip/Trip & Fall: Stairs/Slippery Surface

RECREATIONAL ACTIVITIES
Miscellaneous

ORANGE COUNTY SUPERIOR COURT
LeCocq v. San Clemente Sportfishing, No. 01CC12561. Andrew Banks. Settlement Date: 1/22/2003.

SETTLEMENT RESULT: $30,000

COUNSEL
Plaintiff: Ned P. Reilly, Horton, Barbaro & Reilly, Santa Ana.

Defendant: Sterling J. Stires, Law Offices of Charles S. LiMandri, Rancho Santa Fe.

FACTS/CONTENTIONS
According to defendant: A passenger on a fishing vessel alleged that he slipped and fell down some stairs because of the presence of suntan lotion on the steps. The plaintiff was Andrew LeCocq, a 67-year-old human factors consultant. The defendant was San Clemente Sportfishing. Plaintiff and his adult son were aboard defendant’s vessel for a half-day fishing trip. Plaintiff alleged that he slipped and fell on suntan lotion while descending stairs on defendant’s sportfishing vessel. Plaintiff further alleged that inadequate handrailing contributed to his slip and fall. On the day of the slip and fall, there were approximately 35 other passengers on board the subject vessel. Yet, there were no witnesses to plaintiff’s alleged accident. Furthermore, all of the passengers were given precautionary warnings that the vessel’s deck surfaces could become slippery throughout the fishing trip. Plaintiff’s adult son boarded the vessel eight months after the accident for the purpose of obtaining test samples of water taken off the subject stairs. The admissibility of these samples was hotly contested. The “step samples” allegedly showed the presence of coconut oil and matched the coconut oil taken off of plaintiff’s shoes.

CLAIMED INJURIES
According to defendant: Full thickness tear rotator cuff injury, resulting in loss of full function in right shoulder; right elbow laceration.

CLAIMED DAMAGES
According to defendant: At least $116,000 loss of earnings (plaintiff failed to produce any income documentation until two weeks prior to trial, at which time he produced timesheets that he prepared himself); in excess of $250,000 for pain and suffering.

SETTLEMENT DISCUSSIONS
According to defendant: Demand $65,000 (CCP§998) just prior to trial. Offer: $20,000 (CCP§998) early in the case, $25,000 (CCP§998) just prior to trial.

EXPERTS
Plaintiff: Charles E. Turnbow, safety engineer, Apple Valley (760) 247-1050. Ronald E. Glousman, orthopedic/sports medicine surgeon, Kerlan-Jobe Medical Group, Los Angeles (31) 665-7200. David Stolk, metallrgist, Richardson, TX. Scott Pavey, Bedford, TX.

Defendant: Kendall S. Wagner, orthopedic surgeon, Fullerton Orthopedic Surgery Medical Group Inc., Fullerton (714) 879-0050. Peter J. Zande, safety engineer, Lake Forest (949) 859-0409. Laura Fuchs-Dolan, CPA, economist, Bruno, Mack & Barclay, San Diego (619) 687-0001. Capt. Bob Janecek, marine consultant surveyor, Dana Point (949) 489-0814. Kathleen E. Loeffler, legal nurse consultant, Carlsbad (760) 729-6954.

COMMENTS
According to defendant: The independent adjusting company was Arnold and Arnold, Inc.; the independent adjuster was Lauralee Meade.

26 Trials Digest 2d 100 (Cite as: 1996 WL 763192 (T.D.Cal.Jury))

Copyright © 2003 Trials Digest Publishing, Inc.

*1 TITLE: Flores v. Heritage Security Services

TOPIC:
Case Type: Vehicle Negligence; Motor Vehicle v. Bicycle; Vehicle Negligence; Excessive Speed; Course and Scope of Employment

DOCKET-NUMBER: 688556

VENUE:
Court: San Diego County Superior Court/El Cajon

STATE: California

YEAR:
Verdict/Judgment Date: September 7, 1996

JUDGE: Donald L. Meloche

ATTORNEYS:
Plaintiff: Domingo R. Quintero, Quintero & Quintero, San Diego
Defendant: Charles S. LiMandri, Law Offices of Charles S. LiMandri, Rancho Santa Fe

SUMMARY:
Verdict/Judgment: Defendant
Verdict/Judgment Amount: Defense
(Range: $0)
Trial Type: Jury
Trial Length: 8 days
Deliberations: 4.5 hours
Jury Polls: 10-2 no liability

EXPERTS:
Plaintiff: David A. Casteel, accident reconstructionist, Ayres Group, San Diego, (619) 696-6800
David Pechman, orthopedic surgeon, La Jolla, (619) 450-1700
Defendant: William P. Curran, Jr., orthopedic surgeon, Orthopedic Group of San Diego, San Diego, (619) 268-2224
Jonathan A. Schleimer, neurologist, La Jolla, (619) 554-1644

TEXT:

CASE INFORMATION
FACTS/CONTENTIONS
According to Defendant:
Plaintiff bicyclist was struck and injured while making a turn directly in front of defendant’s vehicle. The plaintiff was Luciano Guerrero Flores, a 35-year-old laborer. The defendants were Heritage Security Services, a provider of security services for the San Diego Trolley, and Ramil F. Laurino, a security officer employee who was operating the vehicle.

The incident occurred on January 19, 1995 in Chula Vista. Plaintiff alleged that defendant’s vehicle, which was operated by employee Laurino, was speeding and ran him down. Defendants contended that plaintiff was under the influence of drugs and made an illegal turn in front of defendant’s vehicle and did not property signal.

CLAIMED INJURIES
According to Defendant:
Not reported.

CLAIMED DAMAGES
According to Defendant
Not reported

SETTLEMENT DISCUSSIONS
According to Defendant:
Demand: $150,000 at time of trial. Offer: $35,000.

COMMENTS
According to Defendant:
Defendants filed a memorandum of costs.

Cal. Super., 1996
Flores vs. Heritage Security Services
26 Trials Digest 2d 100, 1996 WL 763192 (T.D.Cal.Jury)

TD Citatation 6 TD 8th 7

Worker injured on ship sues under Longshore Act

Maritime*Longshoreman Act

Southern District Federal District Court

Jones v. Westcoast Marine Construction Inc., Case No. 02CV0359BEN (RBB). District (if any): San Diego. Judge: Roger T. Benitez. Bench trial: 5 days. Verdict/Judgment Date: 12/10/04.

Verdict/Judgment: Defense

Trial Counsel
Plaintiff: Rocky Kent Copley, Borton, Petrini & Conron, San Diego, CA.
Defendant: Thomas R. Kelleher, Walsh & Furcolo, San Diego, CA.
Defendant: Sterling J. Stires, Law Offices of Charles S. LiMandri, Rancho Santa Fe, CA.
Defendant: John Walsh, Walsh & Furcolo, San Diego, CA.
Intervenor: Thomas C. Fitzhugh, III, Fitzhugh, Elliott & Ammerman, Houston, CA.

Facts/Contentions
According to defendant: Plaintiff Timothy Jones was a 36-year-old ship repairman and Harbor Worker as defined by the Longshore and Harbor Workers’ Compensation Act. Plaintiff sued defendants in a third party action pursuant to § 905(b) of the Longshore Act [33 U.S.C. 905(b)]. The invtervenor was St. Paul Fire & Marine.

In late February 2001, Titan, a defense contractor, contacted defendant Westcoast Marine Construction Inc. and requested that Westcoast provide services for a job abroad the U.S. Navy vessel U.S.S. Constellation, which included providing a crane on board a barge on San Diego Bay, to perform lifting tasks on the U.S.S. Constellation. Westcoast was not in the business of operating cranes, so Westcoast contacted defendant A Trucking Crane Rentals & Repair Inc. (“ATC”) to provide the crane services for the subject job.

On March 5, 2001, using two tug vessels, the barge with the crane abroad was moved along the port side of the Constellation by defendant Westcoast. ATC’s crane operator directed the tugboat captains where the barge needed to be placed for the subject job. Once the barge was in place, crane operations conducted by ATC’s crane operator began by lifting an existing lifeboat canister platform off of the Constellation’s flight deck.

At the time the crane was operating at the Constellation, plaintiff was working aboard the ship as a welder/fitter for Titan. Plaintiff alleged that when the crane was lifting the old platform off of the Constellation the platform swung into him and caused severe injuries. Plaintiff claimed that he suffered a herniated disk in his lumbar spine, which required surgical fusion at the L5-S1 level. Plaintiff also claimed that he injured his right shoulder and right hand and suffered minor abrasions on the inside of his right leg. Plaintiff’s fusion surgery was not successful, and he alleged that he requires another back surgery. Defendants asserted that the failure of the first surgery was a direct result of reckless behavior and lifestyle of plaintiff.

Defendants disputed the nature and extent of plaintiff’s injuries. Specifically, defendants asserted that plaintiff only injured his right hand as a result of the alleged incident, and that the accident was not the fault of defendants in any way. Defendants further asserted that a second back surgery for plaintiff was not reasonable or necessary.

Defendant ATC contended that its crane operator was the “borrowed servant” of Westcoast. Westcoast vehemently denied this and proved that ATC paid the crane operator for the subject job, that ATC prepared the crane for the subject job, and that ATC ordered the operator to show up at the job. As the trial judge ruled that plaintiff failed to meet his burden of proof, the judge did not rule on the “borrowed servant” issue.

Claimed Injuries
According to defendant: Herniated disk L5-S1; surgery; right shoulder strain; leg abrasions; crush injury to right hand.

Claimed Damages
According to defendant: Plaintiff sought past and future medical costs, past and future loss of wages, and pain and suffering damages. Defendants cross-complained against each other for indemnity and declaratory relief.

Settlement Discussions
According to defendant: Demand: $3 million, reduced to $475,000 one week prior to trial. Offer: $30,000 by defendant Westcoast just prior to trial; $100,000 (CCP § 998) by defendant ATC.

Trial Experts
Plaintiff: William P. Curran Jr., orthopedist, Orthopedic Group of San Diego, San Diego, (619) 268-2224.
Plaintiff: Richard Holmstrom, economist, RGL Gallagher LLP, San Diego, (619) 236-0377.
Plaintiff: Jay William Preston, safety engineer, Los Angeles, (323) 776-3464.
Plaintiff: Roger A. Thrush, vocational rehabilitation consultant, San Diego, (619) 465-2784
Defendant: Carl E. Englund, human factors consultant, Julian, (760) 765-4663.
Defendant: Richard Greenfield, orthopedic surgeon, San Diego (858) 270-4420.
Defendant: Robert B. Hall, vocational rehabilitation consultant, Hall & Associates, La Mesa, (619) 463-9334.
Defendant: Gerald D. Martin, economist, Martin & Vavoulis, Fresno, (559) 439-8383.
Defendant: Donald Pellow, safety engineer, Pellow Engineering, Kansas City, (816) 931-4113

Expert Testimony
According to defendant: Defendant Westcoast’s crane safety, operations, and crane standard of care expert, Pellow, testified that Westcoast was not negligent and did nothing to cause the accident.

Defendant Westcoast retained A.N. Tillet & Associates of San Diego to conduct “Condition and Valuation” surveys of the two tugboats and barge for the purpose of Westcoast’s affirmative defense of the Limitation of Shipowners Liability Act.

Comments
According to defendant: The insurance carriers for defendant Westcoast were Insurance Company of the West and various London underwriters; the adjuster was Monica Zylstra; the investigator was Bill Bernard of Coast Claims. The insurance carrier for defendant ATC was Caliber One Insurance Company.

The Magistrate Judge was the Hon. Ruben B. Brooks.

Sterling J. Stires represented defendant Westcoast and provided the information for this report.

Premises Liability

Child falls from second story screened window; Male, 3, fractured femur

RESULT: Defense
TYPE: Jury Trial

COUNTY: San Bernardino

CASE No.: SCV 35811

CASE NAME:
Damont Jackson, Jr. v. Rico L. Smith

PLAINTIFF ATTY:
Sprague, Tomlinson & Nydam, By: Kenneth W. Nydam, San Bernardino

DEFENSE ATTY:
Law Offices of Charles S. LiMandri, By: Michael S. Dea, Rancho Santa Fe

PLAINTIFF EXPERTS:
Joseph P. Klein, M.D., Orthopedist, Hemet
Jerome N. Borowick, Ph.D., Accident Recon, San Bernardino

DEFENSE EXPERTS:
Gary L. Painter, M.D., Orthopedist, Loma Linda
Stephen C. Wexler, Safety Engineer, Marina del Rey

SETTLEMENT DEMAND: $90,000

SETTLEMENT OFFER: None

FACTS:
Pltf, 3 ¼ years-old, lived in an apartment with his parents and his one year-old sister. It was on the second story. On March 10, 1996 at the time of the accident, Pltf’s mother was talking on the phone in the kitchen while Pltf and his sister were playing in the living room. The mother had opened the window in the living room which was covered only with a screen. The bottom ledge of the window was 22 inches off the floor. Pltf fell through the screen eleven feet to the ground below.

PER PLTF:
That Deft was responsible for the dangerous condition of the apartment window.

INJURY:
Fractured right femur requiring casted for two months with residual leg shortening.

PER DEFT: Contended no negligence.

SPECIAL DAMAGES:
$18,000 past medical; $10,000 – $15,000 future medical.

VERDICT: Defense

JURY POLL: 10-2

RESOLVED: 1/21/1999

PRIOR ARBITRATION: Defense; Pltf denovoed.

NOTES: Century-National Insurance was insurance carrier for Deft.

JUDGE: Rex A. Victor

COURT: San Bernardino County Superior Court, San Bernardino

CRA#: 10744

Construction Contracts

Delay/Miscellaneous

LOS ANGELES COUNTY SUPERIOR COURT
American Pacific Concrete Pipe Company v. Calfon Construction Company, Inc., No. VC012482, Norwalk. John R. Stanton. Jury trial: 12 days. Verdict/judgment: 9/27/94.

VERDICT/JUDGMENT: DEFENSE
On the complaint, the jury awarded plaintiff nothing on its general verdict for breach of contract against Calfon for non-payment. On the cross-complaint, Calfon was awarded $274,843 as against Ampac reduced to $129,853 to reflect credit to Ampac; and $183,229 (special verdicts) awarded to Calfon against cross-defendant Los Angeles County Sanitation Districts. The jury found for Calfon against Ampac on the theories of fraud, breach of contract and negligence. Vote: Not reported. Deliberations: 5 hours.

TRIAL COUNSEL
Plaintiff: Jeanette Palla, Law Offices of Jeanette Palla, Douglas City.

Defendant: Charles S. LiMandri, Law Offices of Charles S. LiMandri, San Diego. R. Timothy Ireland, Law Offices of Charles S. LiMandri, San Diego.

Cross-Defendant: Paul Beck, Knapp, Marsh, Jones & Doran, Los Angeles.

FACTS/CONTENTIONS
According to defendant: Plaintiff sued to recover the contract balance and interest due on pipe supplied to defendant for a sewer pipe project. The plaintiff was American Pacific Concrete Pipe Company (Ampac), a manufacturer of pipes. The defendant was Calfon Construction Company, Inc. a general contractor. Defendant cross-claimed against plaintiff for fraud, breach of contract and negligence. Defendant also cross-claimed against the Los Angeles County Sanitation Districts for breach of contract and indemnity.

Defendant was the general contractor on a sewer pipe project in the City of Industry for cross-defendant District. Defendant contracted with plaintiff to manufacture and deliver large diameter reinforced concrete pipe. Much of the pipe broke upon installation by defendant, causing delays and repair costs. Plaintiff claimed that the pipe broke because it was improperly installed. Defendant contended that the breakage was due to plaintiff’s deviation from its original design drawings regarding the proper use of reinforcing steel in the pipe. Cross-defendant District and plaintiff argued that defendant alone was responsible for the quality of the pipe it supplied as the general contractor and that is plant inspectors were not responsible for ensuring that plaintiff complied with the original design drawings that plaintiff prepared and cross-defendant approved. Defendant cross-claimed for damages, for delays, disruption, inefficiency, extra work, assessed liquidated damages by cross-defendant District and the unpaid contract balance by cross-defendant District.

CLAIMED INJURIES
NA

CLAIMED DAMAGES
According to the defendant: Complaint: $144,939 contract balance and interest. Cross-complaint: %526, 449 after credit to Ampac of $117,000.

SETTLEMENT DISCUSSIONS
According to defendant: Demand on complaint: $100,000. Offer on complaint: Not reported. Demand on cross-complaint: $500,000 to Los Angeles County Sanitation Districts and Ampac jointly. Offer on cross-complaint: Not reported.

TRIAL EXPERTS
Plaintiff: Not reported.

Defendant: Bill Manginelli, construction delay and damages, Traunch Consulting Services Inc., Philadelphia, PA (215) 546-0288. D.A. Hausman, engineer, Pasadena (818) 564-0425. Peter Rij, construction practices, San Diego (619) 268-3236.

EXPERT TESTIMONY
According to defendant: The defense expert on construction delay and damages, Manginelli, testified as to the nature and quantity of damages suffered by Calfon including the delays and disruptions caused by the broken pipe. Defense expert Hausman, an engineer, testified that removal of the rebar from the spigot end of the reinforced concrete sewer pipe of a large diameter was below industry standards and was the cause of the breakage. Rij, the defense expert on construction practices, testified that the installation of the pipe by Calfons was proper.

COMMENTS
According to defendant: The jury awarded $274,843 against Ampac. The trial court gave Ampac credit of $144,939 for a total judgment in favor of Calfons of $129,854 plus interest from July 18, 1992. The jury awarded Calfon $183,229 against the District. Payment of the judgment plus costs of $9,551 and interest is expected. A motion by Calfons for attorney fees and costs against Ampac was settled for $250,000 and was not made a part of the judgment. Ampac has paid $250,000 and the parties have waived respective rights to appeal in exchange for payment of $129,854 by Ampac on or before October 13, 1994.

Paul Beck represented cross-defendant Los Angeles County Sanitation Districts.

TD Citation 25 TD 6th 4

ARBITRATION – Owners of charter vessel sue insurance carrier for bad faith

Insurance*Bad Faith*Duty to Indemnify
Insurance*First Party Coverage* Property
Maritime*Miscellaneous

Los Angeles County Superior Court

Williams v. Insurance Company of the West, No. BC251743. Downtown. Gregory W. Alarcon.
Arbitration Date: 2/27/03.

Arbitration Result: Defense According to defendant: Plaintiffs failed to meet their burden of proof regarding the cause of their engine losses. The subject insurance policy was a specified peril policy and included coverage for latent defects. Plaintiffs failed to prove that the losses were caused by latent defects.

Counsel
Plaintiff: Charles H. Gardner, Law Offices of Michael Mirharooni, Beverly Hills.
Plaintiff: Michael Mirharooni, Law Offices of Michael Mirharooni, Beverly Hills.
Defendant: Sterling J. Stires, Law Offices of Charles S. LiMandri, Rancho Santa Fe.

Facts/Contentions
According to defendant: The owners of a charter vessel brought a bad faith claim against their insurance carrier. The plaintiffs were Stafford Williams; James Culligan; and Daniel Rohrback dba Beach Cities Enterprises (“Beach Cities”). The defendant was the Insurance Company of the West (“ICW”). This was an insurance bad faith case in which plaintiffs alleged that defendant wrongfully denied insurance coverage for plaintiffs’ claim of damage to the charter vessel, the M/V Galatea. Plaintiffs’ claim arose out of an incident that took place on or about December 17, 2000, in which the two separate diesel engines of the M/V Galatea “broke down,” which allegedly caused substantial damage to the vessel. Initially, plaintiffs alleged causes of action for breach of the insurance policy and for tortuous bad faith failure to provide insurance benefits. Plaintiffs also initially sought punitive damages. The applicable insurance policy was a “specified” or “named” standard hull policy. As this was a named peril insurance policy, plaintiffs’ bore the burden of proving that the subject engine failures were caused by a named peril within the insurance policy. The “Inchmaree Clause” within the policy provided coverage for “latent defects” in the machinery if the loss or damage was not the result of “want of due diligence” by the insured. Plaintiffs alleged that the two separate engine failures were caused by latent defects, and they argued that the “Inchmaree Clause” provided coverage for their loss in the standard “Hull and Machinery” ocean marine insurance policy.

Defendant contended that plaintiffs breached their continuing duty to operate the vessel in a “seaworthy” condition, and that plaintiffs breached their duty of “utmost good faith” implied in all ocean marine insurance policies.

Claimed Injuries
NA

Claimed Damages
According to defendant: Breach of insurance policy, breach of implied warranty of good faith and fair dealing, and punitive damages exceeding $1,000,000.

Settlement Discussions
According to defendant: Plaintiffs initially demanded $1,000,000, later made several CCP§998 demands, the lowest being $29,000. Defendant rejected the statutory demands. Plaintiff’s agreed to a binding arbitration with a cap of any award in the estimated amount of the loss (approximately $53,000), plus 40 percent of the award for attorney fees, and agreed to dismiss the insurance bad faith cause of action and punitive damages claim. Prior to the binding arbitration, plaintiffs offered to settle for $20,000. At the binding arbitration hearing before Hon. Irwin Nebron, plaintiffs raised new issues regarding crew negligence as a potential cause of loss, which if found true, would have provided coverage under the policy. The arbitrator requested that the parties fully brief all of the issues, including the new issue of crew negligence. Subsequent to the filing of the amended arbitration briefs, the arbitrator found that plaintiffs failed to meet their burden of proof as to each and every issues alleged.

Experts
Plaintiff: Paul Chappell, diesel mechanic, The Sea Wrench, (310) 374-9705.
Defendant: Phillipe Van Herle, mechanical engineer/metallurgist, Vollmer-Gray Engineering Lab., Long Beach, (562) 437-6468.

Expert Testimony
According to the defendant: Plaintiffs’ expert, Chappell, testified that the two separate engine failures were caused by latent defects.

Defense expert, Van Herle, testified that the two subject engine failures were not caused by latent defects, but rather inadequate lubrication between metallic surfaces in the engines.

Comments
According to defendant: Defendant was self-insured.

U.S. District Courts – San Diego

Number: 85-2649(B)/85-30-30(B)
Plaintiff Attorney: John A. Marin, San Diego, by Frank S. Clowney, III
Defendant Attorney: Lillick, McHose and Charles, San Diego, by Charles S. LiMandri
Plaintiff Medical: Richard A. Richley M.D. (Orthopedist) San Diego
Defendant Medical: Robert L. Cummings M.D. (Orthopedist) La Jolla
Byron King M.D. (Orthopedist) Encinitas
Plaintiff Expert: Warren E. McElwain (Reconstruction) La Jolla
Defendant Expert: None
Trial Judge: Hon. Rudi M. Brewster

SLIP AND FALL – JONES ACT

March 27, 1985 plaintiff, 30-year-old fisherman-cook from San Diego, was injured when he slipped and fell on the defendant’s boat, which was berthed at the “G” Street Pier in San Diego.

Plaintiff contended that the defendant’s tuna fishing vessel was unseaworthy and/or that the defendant was negligent because the step-down box was missing a step; and that there was grease and oil on the deck, both of which caused him to fall.

Defendant contended that the missing step on the step-down box did not contribute to the accident; and that there was no grease and oil on the deck when the plaintiff fell.

Plaintiff attorney stated that he asked the jury to award $75,000.

Defendant attorney stated that the plaintiff attorney asked the jury to award $130,000.

Jury out one day after a six-day trial.

Injuries: Dr. Richly testified that as a result of the subject accident the plaintiff suffered torn ligaments in his right ankle and required two surgeries; and that the plaintiff would not be fully recovered until August 31, 1987.

Defendant’s doctors testified that the ligaments in the plaintiff’s ankles were repaired in the first surgery; and that the subsequent surgery was not necessary.

Specials: Medical $18,680. Wage Loss $44,342

Settlement talks: Demand $25,000
Offer, according to the plaintiff attorney, $5,000
Offer, according to the defendant attorney, $10,000

Result: PLAINTIFF VERDICT $3,959 (MAINTENANCE AND CURE).
Motion for new trial made by Plaintiff – DENIED. June 11, 1987

17 Trials Digest 3d 84 (Cite as: 1999 WL 318956 (Cal. Superior))

Copyright © 2003 Trials Digest Publishing, Inc.

*1 TITLE: Wigfall v. Rance King Properties Inc.

TOPIC:
Synopsis: Tenant rendered paraplegic after falling through window – claims lack of safety bar/glass

Case Type: Premises Liability; Miscellaneous; Real Property; Landlord/Tenant; Residential Lease

DOCKET-NUMBER: NC016702

VENUE:
Court: Los Angeles County Superior Court/Long Beach

STATE: California

COUNTY: Los Angeles

YEAR:
Verdict/Judgment Date: March 11, 1999

JUDGE: Joseph E. DiLoreto

ATTORNEYS:
Plaintiff: Thomas Stolpman, Stolpman, Krissman, Elber, Mandel & Katzman, Long Beach.
Defendant: Robert W. Armstrong, Demler, Armstrong & Rowland, Long Beach
Charles S. LiMandri, Law Offices of Charles S. LiMandri, Rancho Santa Fe
Timothy J. Lippert, Demler, Armstrong & Rowland, Long Beach.

SUMMARY:
Verdict/Judgment: Defendant
Verdict/Judgment Amount: Defense
(Range $0)
Trial Type: Jury
Trial Length: 12 days
Deliberations: 5 hours
Jury Poll: 10-1-1

EXPERTS:
Plaintiff: Mack Quan Ph.D, mechanical engineer, Quan-Smith Associates, Santa Monica, (310) 264-5778
Defendant: John R. Brault, biomechanist/biomedical engineer, Biomechanics Associates, Inc., El Segundo, (310) 615-1622.
Herbert Katz Jr., architect, Los Angeles.
Herbert Moskowitz Ph.D., human factors consultant/toxicologist, Encino, (818) 783-8876.
Stephen C. Wexler Ph.D., civil/safety engineer, Wexco International Corporation, Marina del Ray, (310) 306-3877.

TEXT:
CASE INFORMATION
FACTS/CONTENTIONS
According to Defendant:
Plaintiff claimed that the second-story window through which she fell should have been equipped with a safety bar or tempered glass. The plaintiff was Lillian Wigfall, 33. The defendants were R.K. Properties, Inc., Rance King Properties Inc. dba R.K. Properties, R.K. Partners, William Rance King and Atlantic Garden Apartments.

The incident occurred on April 11, 1995 at the Atlantic Garden Apartments in Long Beach. Plaintiff claimed that she had complained about the window on numerous occasions and had asked that it be equipped with a safety bar or tempered glass since it was one of only two windows in the entire complex which was not guarded by either a balcony or safety bars. As a consequence of her fall, plaintiff was rendered paraplegic.

Plaintiff alleged that the resident property manager employed by defendant R.K. Properties had expressly admitted that he felt the window was dangerous and that safety bars or safety glass could have been installed for less than $200. Plaintiff also alleged that the windows violated current building codes. She also presented expert testimony that the 1/8-inch glass in the window was inadequate to provide fall protection in the event of inadvertent contact with the window.

*2
Defendants contended that the window complied with the building code which was in effect at the time of installation and that the window did not need to be replaced with safety glass unless it was broken. Defendants disputed the admissions made by its former property manager and contended that he was a disgruntled former employee who was bitter about being fired. Defendants also presented expert testimony that the window was sufficient to withstand incidental contact and argued that in order for plaintiff to have gone through the window, she must have been pushed with some force. Defendants also disputed plaintiff’s allegation that she simply backed into the window. Defendants called numerous witnesses to testify that plaintiff was intoxicated that evening and that there was a physical altercation taking place in her apartment before she went through the window.

CLAIMED INJURIES:
According to Defendant:
T-10 compression fracture resulting in permanent paraplegia.

CLAIMED DAMAGES:
According to Defendant:
Approximately $105,000 Medi-Cal lien; estimated $1,000,000-$2,000,000 future medical and daily living expenses.

SETTLEMENT DISCUSSIONS:
According to Defendant:
Demand: $2,000,000 (policy limits). Offer: $200,000.

COMMENTS:
According to Defendant:
The jury poll was 10 to 1 to 1 with one juror voting for plaintiff and one juror abstaining. Robert W. Armstrong and Timothy J. Lippert represented defendants R.K. Properties, Inc., Rance King Properties Inc. dba R.K. Properties and provided the information in this report. Charles S. LiMandri represented defendants R.K. Partners, William Rance King and Atlantic Garden Apartments.

Trials Digest Publishing, Inc.
Los Angeles County Superior Court / Long Beach
Wigfall vs. Rance King Properties Inc.
17 Trials Digest 3d 84, 1999 WL 318956 (Cal. Superior)

TD Citation 1 TD 8th 10

SETTLEMENT – Boat passenger trips and falls in gap between vessel and boarding ramp

Maritime*Unseaworthiness

Los Angeles County Superior Court

Tiratsuyun v. Pacific Adventure Cruises, Inc., Case No. 03A04856. District (if any): Downtown. Judge: None. Settlement Date: 4/20/04.

Settlement Result: $9,000

Counsel
Plaintiff: Gerald Egbase, Law Offices of Egbase & Associates, Van Nuys
Defendant: Sterling J. Stires, Law Offices of Charles S. LiMandri, Rancho Santa Fe

Facts/Contentions
According to defendant: On July 4, 2003, plaintiff Sirapi Tiratsuyun, age 59, was disembarking from defendant Pacific Adventure Cruises Inc.’s vessel, the M/V Miss Christi, and allegedly stepped in a six-inch gap between the vessel and the boarding ramp. Plaintiff alleged that this caused her to fall and become injured. Plaintiff alleged that the existence of the gap between the vessel and the boarding ramp constituted negligence by defendant.

Defendant contended that plaintiff stepped into the gap because she had turned her head to talk with somebody behind her while walking forward down the ramp. Several witnesses, including a superior court judge, confirmed this. Defendant asserted that the existence of the gap was not negligence and did not render the vessel unseaworthy.

Claimed Injuries
According to defendant: Sprained ankle; sprained/strained knee; traumatic bruises on both legs; injury to right elbow and fingers; lumbar sprain; severe emotional distress and anxiety.

Claimed Damages
According to defendant: In excess of $15,000 medical; special damages; pre-judgment interest and costs. Further, plaintiff sought statutory damages; however, statutory damages did not apply to this case.

Settlement Discussions
Not Reported.

Expert Testimony
Not Reported

Comments
According to defendant: The insurance carrier was Sunderland Marine Mutual Insurance Co. Ltd.

TD Citation 39 TD 6th 4

SETTLEMENT – Deckhand injured in fall from tugboat

Martitime*Miscellaneous

Southern District Federal District Court

Morgan v. Westcoast Tug & Barge, No. 02CV1921HNLS. San Diego. Marilyn L. Huff. Settlement Date: 7/9/03.

Settlement Result: $67,500 According to defendant: Settled at the Early Neutral Evaluation conference with Magistrate Judge Nita Stormes.

Counsel
Plaintiff: Jeffrey M. Winter, Law Offices of Jeffrey M. Winter, San Diego
Defendant: Sterling J. Stires, Law Offices of Charles S. LiMandri, Rancho Santa Fe

Facts/Contentions
According to defendant: A deckhand was injured in a fall from a tugboat onto a floating platform. The plaintiff was David Morgan, a tug vessel deckhand. The defendants were Westcoast Marine Construction, Inc. dba Westcoast Tug and Barge; LMW Investments, Inc.; and M/V Harbor Cadet. Plaintiff was working as a deckhand aboard defendant Westcoast’s vessel, the Harbor Cadet, as a deckhand in training. Plaintiff fell after he jumped from the tugboat’s bow to a floating platform. Plaintiff claimed that the floating platform was listing to one side and that he may have landed on a piece of rope, which he alleged caused or contributed to his accident. Plaintiff executed a written statement within a week of the accident, stating that the accident was caused by “mis-footing” when he landed on the floating platform while hopping off the Harbor Cadet. Plaintiff alleged that he proceeded headfirst into a barge, which caused him further injury. The exact facts and circumstances regarding what tasks were being performed by the Harbor Cadet were in dispute. Plaintiff alleged that the Harbor Cadet was pushing a salvaged vessel and that he jumped from the salvaged vessel to the floating platform. However, the captain and the other deckhand stated that plaintiff jumped from the bow of the tug vessel to the floating platform when the tug vessel was approximately three feet from the floating platform. The vertical distance from the bow of the tug vessel to the floating platform was approximately two feet. The captain of the Harbor Cadet and the other deckhand both stated that the captain gave plaintiff an order to stay on the vessel until the captain gave further instructions.

Claimed Injuries
According to the defendant: Herniated cervical disk, resulting in cervical fusion surgery that included the installation of four screws and two plates on plaintiff’s cervical spine; severe spine; severe pain in right shoulder related to calcific tendonitis (a condition not caused by the subject accident); surgical repair of right shoulder.

Claimed Damages
According to defendant: Pursuant to the doctrine of maintenance and cure, plaintiff received medical care for his injuries and daily “maintenance” payments, both provided by defendants, Plaintiff alleged pain and suffering in an unspecified amount, past and future lost wages, and a diminishment in work life.

Settlement Discussions
Not Reported

Expert Testimony
Not Reported

Comments
According to defendant: Defendants filed a claim under the Limitation of Liability Act (46 USC at § 183, et seq.), which, if successful, would have limited defendants’ liability to the appraised market value of the tug vessel, Harbor Cadet.

The independent insurance adjusting company was Coast Claims, which also provided investigation services.

SUMMARY: Premises Slip & Fall: Wet Tile Entryway in Home – Verdict: Defense

County: San Diego
State: CA
O’Brien’s Verdictum Juris: 1998-43-21

Plaintiff Attorneys:
Shaun K. Boss (Law Offices of Shaun K. Boss), San Diego (619) 236-1333

Defense Attorneys:
Hugh K. Swift (Law Offices of Charles S. Limandri), Rancho Santa Fe (619) 759-9930

Trial Judge: David J. Danielsen San Diego 7/24/98
Trial Time: 3 Days Deliberation Time: 1 ½ Days

Insurance Company: Century National

Case: Lisa Garrison v. Steven Weller and Cynthia Weller

Facts:
8/13/96: Plaintiff, a 36-year-old self-employed real estate appraiser, went to Defendants’ residence to perform an appraisal. As she walked across a tiled entryway floor, she fell and injured her right knee.
Injuries: Right-knee meniscus tear, soft tissue right shoulder, neck, and back injuries, and headaches. Treatment: Arthroscopic meniscectomy to right knee and physical therapy.
Medical Costs: $20, 978 past, $2,000 future
Other: $852 incidental

Contentions:
Plaintiff claimed Defendants left the floor wet after cleaning for ants. Defendants were negligent because the tile floor was wet, causing her to fall.
Defendants argued they had cleaned the floor several hours before Plaintiff arrived. It had ample time to dry. Plaintiff walked over the tile floor several times before she fell.

Settlement Negotiations:
Offer: 7,500 Demand: 12,500

Verdict:
Defense as to Steven Weller
Nonsuit as to Cynthia Weller
Jury Poll: 12-0

Arbitration:
$22,900 by John E. Petze; Trial de Novo by Defendants.

Note:
Motion for new trial was not made.

Plaintiff Experts:
Leferre, George W. Orthopedic Surgeon San Diego
Friedlander, Melvin L. Safety Engineer San Diego

Defense Experts:
Bells, Carl A. Safety/Human Factors Rancho Santa Fe
Gomez, Mark A. Biomechanical San Diego