Summary Judgment for Motel Operator in Third Party Assault Case

John Fedor and Keith Ciceron obtain summary judgment in favor of a motel operator against claims of liability for a serious third party criminal attack against a motel patron. The patron was walking to his room when his assailant joined him and the two talked causally in a friendly manner until the patron stopped at his room’s door. The assailant then told the patron this was a robbery, allegedly stuck a gun in the patron’s back, and followed the patron inside the room. Once inside, the assailant used his hands and fists to attack the patron and force him into the bathroom, where he then used a towel rack torn from the wall to stab plaintiff and porcelain from a toilet tank top broken during the assault to slash the patron’s hands, scalp, and throat. The patron sustained multiple serious lacerations that required more than 300 stitches and scar revision surgery. Medical expenses were approximately $175,000 with unspecified lost wages. The patron’s wife filed a loss of consortium claim. The Fresno County Superior Court judge agreed with the defense arguments and found that the facts developed by defense counsel and the applicable law established as a matter of law that the third party attack was not sufficiently highly foreseeable to impose a duty on the motel operator to protect plaintiff against the alleged attack and injuries.

Phil Hack Admitted to Nevada State Bar

Phil Hack successfully completed the 2011 Nevada State Bar Examination and was officially sworn in as a Member of the Nevada State Bar Association in September. Phil will bring to Nevada his considerable experience in such practice areas as Ambulance/Emergency Medical Services Liability, Auto and Trucking Liability, Legal & Medical Malpractice and Professional Liability. Phil joins Tony Case as FCH&F partners admitted to practice in Nevada who, along with Associate Benjamin Petiprin, are available to provide a vast array of legal services in state and federal courts throughout Nevada.

Anthony Case obtained a unanimous defense verdict on a fraud case in downtown Los Angeles Superior Court. In Fishburne v., Davis, et al., Los Angeles County Superior Court Case No. BC417582, Hattie Fishburne, mother of actor Laurence Fishburne, was involved in an automobile accident with Adrin Davis and claimed personal injuries and an inability to return to work that forced her to retire. Fishburne accepted insurance policy limits to settle her personal injury case. Fishburne later sued Davis and his insurer, Infinity Insurance Company, for allegedly fraudulently concealing assets and making intentional misrepresentations to induce her to accept in settlement far less than her claim was worth. After a five day jury trial, the jury returned a unanimous defense verdict following less than 1 hour of deliberation.

John Farmer was recently successful in obtaining a defense verdict on behalf of his client in a rear-end freeway accident case, tried to a jury in Victorville. Plaintiff contended she had been travelling in the #1 lane of the I-15 freeway for several miles and was slowing for traffic ahead, when her vehicle was rear-ended by the defendant’s vehicle and pushed into the vehicle ahead. The defendant contended plaintiff made an abrupt lane change in front of his vehicle just before the collision, then braked hard, giving him insufficient time to slow or stop to avoid the collision. Plaintiff had extensive medical treatment, including multiple MRI’s, three epidurals and two “percutaneous disc decompression (PDD)” surgeries performed by pain management specialist Dr. Van Vu of Fountain Valley, all on referral by her attorney. Plaintiff’s trial expert, neurosurgeon Jeffrey Gross, MD, testified plaintiff’s medicals of approximately $120,000 were reasonable, necessary and related to the accident, and that plaintiff was a candidate for future cervical and lumbar fusions, due to the accident, at a projected cost of $350-400,000. A loss of present and future earnings from a job as a forklift operator at Home Depot, was also alleged. Defense expert, orthopedist Steven Nagleberg, MD, testified that plaintiff should have had medical treatment for a few weeks, valued at around $4,000. He testified the treatment with Dr. Vu was not medically indicated or necessary, and plaintiff is not a future surgical candidate. The jury disbelieved the version of the accident provided by plaintiff and her witness, and commented after the verdict that had they found liability, they would not have awarded much money to the plaintiff.

John Fedor and Brittney Lee successfully moved for summary judgment in favor of a motel operator and its employee against claims that a motel resident’s dog’s attack caused another guest to fall and sustain multilevel disc herniations and radiculopathies that required treatment and surgical repair estimated at $75,000 - $120,000 and caused lost wages of approximately $40,000 - $50,000. The Los Angeles County Superior Court judge agreed with the defense arguments and found that the facts developed by defense counsel through thorough investigation and discovery and applicable law established as a matter of law the absence of a duty on the part of the motel operator and its employee to protect plaintiff against the alleged attack and injuries.

John Farmer and Lisa Freund again teamed together in the successful defense of a significant off-road injury case by way of a Motion for Summary Judgment. The accident occurred on Competition Hill at Buttercup Campground in Winterhaven, CA, in Imperial County. Plaintiff’s ATV collided with the defendant’s sandrail, resulting in a 2-3 month hospitalization for injuries consisting of multiple rib fractures on the left, ribs 9 through 12; thoracolumbar spine fractures, T11 and T12; left ankle fracture with open reduction and internal fixation; a pneumothorax and a hemothorax with a resulting left tube thoracostomy. His claimed medical expenses were approximately $500,000. The loss of earnings claim was uncertain, but plaintiff had not worked since the accident. The principal defense rested on the theory of primary assumption of the risk applicable in the off-road accident setting under the case of Distefano v. Forester (2001) 85 Cal.App.4th 1249. Following contested oral argument, the trial court found the defense applicable and granted summary judgment for the defendant sandrail operator.

Phil Hack, FCH&F’s newest name partner, recently successfully concluded a 5 day jury trial defending against overreaching and exaggerated damage claims. In Carmen Moreno v. Laidlaw Transit, Inc., plaintiff was a passenger on a Laidlaw Transit bus operating in heavy traffic when a car entered the bus’ path and the bus and the car collided. Plaintiff claimed she was thrown from her seat and sustained serious physical injury necessitating bilateral knee replacements. The defendants admitted liability and tried the case on causation and damages.

Plaintiff initially demanded $1,000,000 from both defendants, reduced her joint demand to $700,000 at mediation, then offered to settle with Laidlaw alone for $250,000. Laidlaw offered $105,000. Due to Phil’s advocacy skills and aggressive defense, the jury returned a damage award totaling $90,000. Liability was apportioned 66% to the car driver and 34% to Laidlaw, resulting in Laidlaw paying $30,000 to satisfy its portion of the judgment on a case with an initial $1,000,000 demand.

For nearly 15 years, the firm has been engaged in the practice of insurance defense litigation and related law in Southern California, the Bay Area and Nevada. Phillip Hack has been a partner and an integral part of Farmer Case & Fedor since 2007. His expertise and reputation are well established. We are pleased to add his to the firm’s name.

Anthony Case obtained a defense verdict on behalf of a driver of a vehicle who allegedly assaulted a Border Patrol agent during an incident at the Otay Mesa International Border Crossing. While driving home to the United States, the defendant and his wife were in their vehicle at the crossing when a heated exchange began between the wife and Border Patrol agents. Defendant’s wife exited the vehicle and was taken down by Border Patrol agents. Defendant went to assist his wife and, while getting out of the vehicle, allegedly struck plaintiff in the face. Plaintiff claimed substantial injuries, including a broken nose that caused chronic sinus infections that led to middle ear problems that required surgical intervention, a black eye, and teeth and mouth injuries with subsequent tooth loss and root canal surgeries. Plaintiff claimed past medical expenses of $18,000, up to $20,000 in future medical expenses, and $14,000 in loss of earnings. Plaintiff, whose $25,000 demand the defendant previously rejected, asked the jury for a verdict in excess of $500,000. After a 4 day trial, the jury deliberated 1 hour before returning a defense verdict.

Plaintiff’s motions for judgment notwithstanding the verdict and for a new trial were denied, and Mr. Case secured a substantial costs award in favor of his client.

John Farmer and Lisa Freund recently obtained a defense verdict on behalf of an asphalt slurry contractor in the trial of a motor vehicle accident case.  Plaintiff, travelling home from the grocery store, was struck head on by a drunk driver who had crossed the center line of the roadway.  The week before, the asphalt slurry contractor had slurried the roadway, necessarily covering up the existing lane lines and double yellow line defining the center of the roadway.  The City had undertaken the responsibility for placing temporary reflective tabs on the roadway after the slurry had been applied to replace the lane markings, pending the repainting of the lines several days later.  The yellow tabs placed in the center of the roadway were alleged to have been single as opposed to double tabs and were claimed to have been spaced too far apart.  Plaintiff, who did not join the City as a defendant, claimed the temporary markings were insufficient per the Caltrans manual, confusing to drivers and contributed to the accident.  Plaintiff claimed that the slurry contractor was responsible because it had not completed its work at the site, despite the City's apparent assumption of responsibility.  Plaintiff had substantial injuries, including two shattered kneecaps with 4 open reduction surgeries, a broken rib, pneumothorax, DVT with insertion of a vena cava filter and a comminuted fracture of the right fourth metacarpal with surgery.  Agreed past medical expenses were $240,000.  The defense contended plaintiff's loss of earnings was $21,000; plaintiff claimed past and future lost earnings/earning capacity of $192,000.  Plaintiff's counsel asked the jury for $1,432,000, including $900,000 in general damages.  Prior to trial, plaintiff demanded $1,000,000 from the contractor, reduced to $850,000 by CCP 998 demand, and further reduced to $700,000 while the jury was out.  The carrier for the intoxicated driver co-defendant offered its $15,000 policy.  The carrier for the contractor offered $147,875 by CCP 998 offer, increased before trial to $200,000.  After a 2 1/2 week trial, the jury returned a verdict of $511,000 ($261,000 economic, $250,000 non-economic) and allocated fault at 85% to the intoxicated driver, 15% to the non-party City and 0% (no negligence) to the slurry contractor, Farmer Case Hack & Fedor’s client.

Anthony Case and Daniel Fallon successfully defended a dual agent and broker in the trial of a real estate fraud and non-disclosure case in the San Diego Superior Court in El Cajon.  In Trejo v. Brikho, et al., plaintiffs alleged fraud, realtor malpractice, breach of fiduciary duty and breach of contract with respect to their purchase of real property, and requested damages in excess of $800,000 in addition to punitive damages. Farmer Case & Fedor represented the dual agent and broker in the transaction. Plaintiffs claimed that the agent and broker intentionally failed to disclose a reciprocal driveway easement affecting the subject property, failed to disclose certain alleged defects at the residence, and failed to make certain repairs at the property that were allegedly promised. Following plaintiffs’ case-in-chief, the defense argued a Motion for Judgment.  After reviewing the moving papers and hearing oral argument thereon, Judge Halgren entered judgment on behalf of the FCH&F clients.

John Farmer and Lisa Freund were recently successful in obtaining summary judgments in a declaratory relief action in Marin County, to establish the lack of coverage for damages arising from the alleged wrongful death of the named insured under the applicable policy.  In State Farm v. Ranft, the named insured, a Pixar Studios executive, was riding as a passenger in his own vehicle, driven by a permissive user.  As the vehicle approached a bridge, it was either struck by another vehicle passing on the left over the double yellow lines, or otherwise forced to veer to the right.  The vehicle went off the bridge and into the river below.  Unfortunately, the named insured and the permissive driver died in the accident although a third passenger escaped.  The survivors of the named insured sued the other driver, the estate of the permissive driver and the State of California for multi-millions of dollars in loss of support and future income.  The State cross-complained for indemnity against the estate of the permissive driver.  The State Farm policy describing the car excluded liability coverage for "bodily injury to any insured."  In its ruling on State Farm's summary judgment motions in the DRA as to both the plaintiffs' claims in the complaint and the State's indemnity claim in the cross-complaint, the court found that the exclusion applied, such that State Farm had no duty to defend or indemnify.  Mr. Farmer and Ms. Freund continued their success in this matter in defense of the appeal. The California Court of Appeal, First Appellate District affirming the judgment in full.

Mr. Farmer and Ms. Freund continued their success in this matter in defense of the appeal. The California Court of Appeal, First Appellate District issued an unpublished opinion on January 30, 2009 affirming the judgment in full.

Phil Hack obtained a defense verdict in Clifford Hoggatt v. Laidlaw Transit, Inc., a San Diego County Superior Court case in which the plaintiff claimed he injured his left arm, rotator-cuff and shoulder when the bus driver closed the doors on him as he was boarding a transit bus.  The jury unanimously rejected plaintiff's prayer for $160,000 in damages and found in favor of the bus driver and bus company after less than one hour of deliberation.
 

John Fedor represented Motel 6 Operating L.P. in the matter of Mary & William Butler v. Motel 6, a trip and fall case in San Diego County Superior Court.  While liability was not truly at issue, Motel 6 believed the plaintiffs' claimed damages - personal injuries with need for future surgery by Mary Butler and loss of consortium damages by William Butler - were highly exaggerated.  At trial, plaintiffs requested awards of $500,000 - $700,000 and $150,000 - $200,000, respectively.  Essentially agreeing item by item with the defense's presentation of its damages defense, the jury was out less than 2 hours before returning with the expected plaintiffs' verdict, but with awards of $69,685 and -0-, respectively.

Phil Hack had a successful trial result in Jose Canela v. American Medical Response of Southern California, a Los Angeles County Superior Court case that arose from an auto versus ambulance accident in the Vernon community of Los Angeles.  Forced to go to trial on a liability case by the plaintiff's $2,000,000 settlement demand, Phil effectively challenged the plaintiff's medical claims and expert witness testimony so that a jury returned the expected verdict for plaintiff, but awarded $190,000 ($237,500 award reduced 20% for plaintiff’s comparative negligence), less than the statutory offer to compromise AMR made prior to trial.  In light of AMR's position as "prevailing party" due to plaintiff's inability to obtain a verdict more favorable than the rejected compromise offer, Phil further saved the client substantial money by negotiating a post-trial settlement for $140,000.  This case illustrates that sometimes an adverse verdict is actually a client win when a proper FC&F liability and damage evaluation reveals an unreasonable plaintiff demand.