Case Summaries
Injury & Tort Law
[8/09] King v. Willmett.
An appellate court has ruled that a personal injury plaintiff is entitled to recover the full amount of his medical bills, even though his health care providers accepted discounted payments from his insurance company. Sacramento attorney Michael King suffered significant back injuries in a car crash. His total medical bills were nearly $170,000, but the trial court reduced them to the $76,000 paid by his insurance company. The First District Court of Appeal ruled 2-1, in King v. Willmett, Case No. 06AS02165, that King’s damage award should include the full amount of his medical bills. The final word, though, is expected to come from the California Supreme Court, which currently is considering another case (Howell v. Hamilton Meats & Provisions, Inc.) that presents the identical issue.
[07/24] United States v. Nobari
The Ninth Circuit Court of Appeals has criticized a federal prosecutor for making improper ethnic references in a drug case. DEA agents in Turlock arrested four men, three of whom are of Middle Eastern descent and one of whom is of Mexican descent, on methamphetamine charges. At trial, prosecution witnesses testified that persons of Middle Eastern background usually were the traffickers in the substances used to make meth, while persons of Mexican background were usually the ones that "cooked" the product. The prosecutor, in closing argument, also asked the jury to "not let the city of Turlock down." On appeal, the court ruled this testimony and argument was improper and prejudicial, but upheld the convictions because the rest of the evidence overwhelmingly showed the defendants were guilty.
[07/24] Long Beach Area Peace Network v. City of Long Beach
Long Beach Assembly Ordinance Partly Unconstitutional. The Ninth Circuit Court of Appeals has found that the city of Long Beach's ordinance governing protest assemblies is partly constitutional and partly unconstitutional. The case arose from the refusal by the Long Beach Area Peace Network to pay administrative fees for a permit for a rally in 2003. A trial judge completely invalidated the city ordinance, but on appeal, the Ninth Circuit found that some parts of the ordinance, including a requirement that protest groups obtain insurance and allowing the city to impose conditions on protests, were valid. But the court agreed that other parts of the ordinance, including a requirement that groups indemnify the city and a provision that allowed the city to waive permit fees, but with no standards to determine when the fees would be waived, was unconstitutional. The court sent the case back to the federal trial court for further proceedings.
[07/24] Lockhart v. MVM, Inc.
California Law Doesn't Help Disabled Worker On Federal Property. California's Second District Court of Appeal has held that a disabled worker who lost her job at a "federal enclave" cannot sue under the state's anti-discrimination law. The plaintiff, Leslie Lockhart, was a trainee officer at the immigration detention facility on Terminal Island who was dismissed after several weeks on the job. She sued under California's Fair Employment and Housing Act (FEHA), claiming she was let go because she suffered from depression and neuralgia, and that her employer, a private contractor, knew about her condition when she was hired. But a unanimous Court of Appeal upheld the summary judgment against her, ruling that state law did not apply because the Terminal Island facility is a "federal enclave" located on land that the U.S. government acquired from Los Angeles in 1927.
[07/23] U.S. v. Guzman-Padilla
Court Allows Border Patrol To Use Tire Spikes. The Ninth Circuit Court of Appeals has rejected a claim by two accused smugglers that it was unconstitutional for the Border Patrol to use tire spikes to stop their vehicle in a remote valley near Interstate 8. Daniel Guzman-Padilla and Juan Vasquez-Rosales were arrested on February 4, 2007, which was Super Bowl Sunday, after Border Patrol agents spotted their Ford Expedition coming from the direction of the border. The officers spread tire spikes in the Expedition's path. All four tires deflated and the defendants were arrested, and 1,000 pounds of marijuana was recovered from the vehicle. The defendants challenged their conviction, saying there was no probable cause to use the spikes. The appeals court disagreed, noting testimony that the Expedition had been driving unusually fast and that its rear was covered by a black tarp that the officers said was always used by smugglers. The court found the officers acted reasonably in the stop and arrest.
[07/22] Palmer/Sixth Street Properties, LLP v. City of Los Angeles
Court Limits LA's Affordable Housing Ordinance. California's Second District Court of Appeal has sided with a developer in a case challenging the application of the affordable housing ordinance in the city of Los Angeles. The city used the ordinance to require the developer of a housing complex just west of the Harbor Freeway to include 60 "affordable" units, which would be subject to specific rent control rules for 30 years, out of a total of 360 new units. The developer challenged the requirement, contending that the city's requirement would make the project economically unfeasible, and that a state law, the Costa-Hawkins Act, pre-empted the city ordinance. The city denied the developer's request to waive its ordinance, but the trial court rejected the city's position, as did the Court of Appeal, which found that the Costa-Hawkins Act allowed the developer to set the initial rent for all the units to be built, despite the local ordinance.
[04/01] Ortega v. Sacramento County Dep't of Health & Human Serv.
In a case against Child Protective Services for the release of a minor who was later stabbed by her father, summary judgment for defendant based on immunity under Government Code section 820.2 is affirmed where the Legislature has chosen to immunize government employees from liability for discretionary acts "whether or not discretion be abused" even though such discretion is exercised badly.
[04/01] Garibay v. Hemmat
In a medical malpractice suit arising from a surgery performed by defendant-doctor, summary judgment for defendant is reversed based on defendant's failure to meet the burden of producing evidence where: 1) a medical expert witness based his opinions on facts derived from a review of hospital and medical records which were not properly admitted into evidence under the business records exception to the hearsay rule; and 2) thereby, there were no facts before the court on which the expert medical witness could rely to form his opinion.
[04/01] Porina v. Marward Shipping Co., Ltd.
In a tort action against a ship owner for a collision allegedly caused by its negligent operations, dismissal of the complaint for lack of personal jurisdiction is affirmed where: 1) the owner of a vessel may not constitutionally be subjected to personal jurisdiction with respect to an unrelated suit merely because, as the owner may have expected, the vessel has repeatedly visited the forum's ports at the sole direction of its charterers; and 2) defendant's contacts with the United States did not satisfy the heightened minimum contacts requirement for general jurisdiction over a non-resident.
[04/01] Booth v. Carnival Corp.
In a wrongful death action filed in state court before the lapse of a one-year contractual limitation period, denial of defendant's motion to dismiss premised on equitable tolling of a parallel federal action during the pendency of the state suit is affirmed where: 1) plaintiff filed his wrongful death claim in a state court that possessed subject matter jurisdiction concurrently with the federal courts; 2) the state suit was dismissed solely on grounds of improper venue; and 3) plaintiff's filing and diligent prosecution of his state court suit was sufficient to equitably toll his contractual limitation period.
[03/31] Pompa v. Am. Family Mut. Ins. Co.
In an action involving an insurer's duty to defend and indemnify plaintiff-insured with respect to a wrongful-death action brought against him after he pled guilty to negligent homicide, a judgment finding that insurer had no duty to defend or indemnify plaintiff is affirmed over claims that: 1) a criminal-conviction exclusion in his homeowner's insurance policy applies only to a conviction after trial; 2) public policy bars the exclusion; and 3) Colorado law does not permit consideration of his conviction in determining the duty to defend when the wrongful-death complaint makes no mention of it.
[03/28] Garza v. Asbestos Corp., Ltd.
In an asbestos lawsuit, judgment pursuant to jury verdict for plaintiffs and damage awards for personal injury and loss of consortium is affirmed over claims that: 1) trial court lacked personal jurisdiction as defendant made a general appearance by filing an answer and litigating the case to trial; 2) damage awards must be set aside because there was insufficient evidence to support punitive damages and claim for loss of consortium; and 3) even if there was sufficient evidence to support underlying damages, the amount awarded in each case was excessive.
[03/28] Murff v. Pass
In a health care liability case, a court of appeals decision finding abuse of discretion by the trial court in refusing to disqualify challenged jurors is reversed where upon jury confusion as to the standard of proof the trial court clarified that standard.
[03/28] Hamilton v. Wilson
In a health care liability suit, the court of appeals judgment affirming the trial court's summary judgment is reversed where the court concludes reasonable and impartial jurors could differ in their conclusions as to what caused a tear in the patient's esophagus.
[03/28] City of Corsicana v. Stewart
In a premise defects case, a court of appeals decision reversing a trial court's grant of the City's plea to jurisdiction based on governmental immunity is reversed and suit dismissed where plaintiff failed to raise a fact issue regarding the City's actual knowledge of a dangerous condition.
[03/28] Bushnell v. Mott
An owner of a dog not known to be vicious owes a duty to attempt to stop the dog from attacking a person after the attack has begun.
[03/28] 20801, Inc. v. Parker
Under Tex. Alco. Bev. Code section 106.14(a), 1) an employer bears the burden of establishing that its employees attended certain training classes and that the employee in question actually attended these classes 2) an employer bears the burden of establishing direct or direct encouragement, and 3) encouragement may be shown, at the minimum, by evidence of the provider's negligence.
[03/28] New Texas Auto Auction Services v. Gomez de Hernandez
In a case involving auctioneering of a defective car, the court of appeals decision holding an auctioneer could be liable for claims of strict liability and negligence under products liability law is reversed, where section 402A of the Second Restatement of Torts does not apply when the auctioneer does not sell automobiles for its own account and no legal duty to discover and remedy unknown dangers exists.
[03/28] In re. Jorden
Tex. R. of Civ. Pro. Rule 202 prohibits Rule 202 pre-suit depositions until after the expert report is served in health-care lawsuits.
[03/28] Nationwide Insurance Co. v. Elchehimi
In a breach of contract suit stemming from denial of insurance coverage on a claim arising from a collision between an insured vehicle and an axle-wheel assembly, a Court of Appeals reversal of the trial court's grant of summary judgment in favor of the insurance company is reversed where there was no actual physical contact between the insured's vehicle and another motor vehicle per Tex. Ins. Code section 1952.104(3).
[03/28] Mission Independent School District v. Garcia et. al.
The Tort Claims Act's election-of-remedies provision under Tex. Civ. Prac. & Rem. Code section 101.106 applies to bar common-law claims for discriminatory dismissal against the Independent School District , but does not bar common-law claims under the Texas Commission on Human Rights Act, Tex. Lab. Code section 21.001?21.556.
[03/27] Flores v. Autozone West, Inc.
In an action arising from damages caused by an employee's physical assault of a customer at defendant-employer's store after the customer spoke to him in an arguably insulting matter, summary judgment for defendant is reversed and remanded where the underlying evidence of the case supports a reasonable inference that the altercation was attributable to work-related events.
[03/27] In Re City of New York
In a tort action arising out of a ferry crash into a maintenance pier, a bench trial judgment which found the city negligent and denied limitations of liability is affirmed where the city did not act with reasonable care when it allowed a single pilot to operate the Staten Island Ferry without at least one other person in or near the pilothouse, aware of the navigational circumstances, and ready to render or summon assistance in the event of an emergency.
[03/26] Progressive Cas. Ins. Co. v. Owen
In coverage dispute involving a commercial auto insurance policy brought by plaintiff-insurer against defendant, former vice-president, secretary, and director of corporate named insured, summary judgment for defendant is reversed where: 1) the district court erred in reforming the policy to provide coverage to all owners, officers, and directors of the corporate named insured, regardless of whether they were occupying an insured auto; and 2) insurer was entitled to summary judgment because defendant presented no evidence that she was using a friend's truck in place of one of insured's vehicles that was withdrawn from use because of breakdown, repair, servicing, loss, or destruction.
[03/26] Garcia v. Paramount Citrus Assn., Inc.
In a tort action against a private landowner for injuries sustained from a traffic accident alleging that landowner owed a duty to place a warning on its private road alerting drivers to the approaching intersection with the public road, denial of landowner's motion for summary judgment is reversed as landowner owed no legal duty under the facts of this case.
[03/26] In re "Agent Orange" Prod. Liab. Litig.
In a products liability action arising from the alleged injuries, mostly forms of cancer, caused by veterans' exposure to the chemical defoliant "Agent Orange" used during their service in Vietnam, summary judgment for defendants is affirmed over claims that the district court: 1) erred in concluding that the government contractor defense applied to bar plaintiffs' claims; and 2) abused its discretion by denying them discovery beyond what was available in files from prior Agent Orange litigation.
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