Jim Miller Inducted into American Board of Trial Advocates (ABOTA)

James Miller headshotJim Miller, a founding partner at Powers Miller, has been inducted into the Sacramento Valley Chapter of the American Board of Trial Advocates (www.abota.org).

Membership in ABOTA is by invitation only and admittance is considered a prestigious honor among legal professionals. ABOTA members are required to have completed 10 civil jury trials to verdict or hung jury as lead counsel and been determined by their peers to exhibit high personal character and an honorable reputation.

“I am honored to be asked by my peers to join this prestigious organization and feel privileged to now be a member,” says Miller.

The purpose of ABOTA is to promote ethics, integrity and courtesy in the legal profession; provide education and training to its members; and continually improve the trial court system.

Miller, who has more than two decades in insurance and self-insured defense, specializes in defending individuals and companies in actions involving products liability, motor vehicle accidents, premises liability and commercial litigation.

Powers Miller specializes in defending individuals and companies for a wide range of commercial and insurance clients. The firm’s areas of expertise include motor vehicle and trucking accidents, premises liability, product liability (including medical devices), and general negligence actions.

In addition to Jim’s induction, Brian Powers of Powers Miller is also a member of ABOTA.

Automatic Braking Systems May Change Industry Significantly

Headshot of Robert F BennettOn September 11, 2015, the New York Times, published an article regarding an agreement among ten major automakers to make automatic braking systems standard in all vehicles.  While there was no timetable set for implementation of the systems, once they become standard they may significantly affect civil cases. Many civil cases center on auto liability and a vast majority of those cases deal in rear end auto accidents.  The automatic braking systems are envisioned to protect against all collisions, but are expected to virtually do away with rear end accidents.

Obligations And Right To Restitution of Insurer In Providing A Defense Under Commercial Liability Policy Clarified By California Supreme Court

Katherine Marlink headshotIn Hartford Casualty Insurance Company v. J.R. Marketing, L.L.C., (August 10, 2015) 2015 WL 4716917, the California Supreme Court was faced with the question that when an insurer provides an independent counsel to its insured under a reservation of rights, co-called Cumis counsel (see San Diego Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358 whether and from whom the insurer may seek reimbursement for billing that is deemed excessive, unreasonable, or unnecessary. The Court of Appeal concluded that reimbursement of such costs could not be obtained from Cumis counsel and instead were only to be sought against the insureds. The California Supreme Court reversed the judgment finding that such excessive, unreasonable, or unnecessary amounts charged could be recovered from counsel under the principles of unjust enrichment. Continue reading

California Supreme Court Clarifies Public Entity Liability Where Negligent Third Party Caused Plaintiff to Encounter Alleged Dangerous Condition

Headshot of Robert F BennettOn August 13, 2015, the California Supreme Court issued its ruling in matter of Cordova v. City of Los Angeles. At issue for the court was whether California Government Code § 835 required a plaintiff, in a tort claim against a public entity, to show that an alleged dangerous condition on a public roadway caused a third party’s negligence to continue with the claim against the public entity. Ultimately, the Court ruled such a nexus was not a requirement of the section 835. Continue reading

Ninth Circuit Finds Recalling an Empanelled Jury After Discharge Not an Abuse of Discretion

Headshot of Robert F BennettWhat trial attorney has not thought after a verdict, “man I wish we could reconvene the jury on this one issue to get it right.”  On July 24, 2015, the 9th Circuit Court of Appeals concluded such a move is possible. In Dietz v. Bouldin, the 9th Circuit held it was not abuse of discretion for the trial court to call back a jury after it had been discharged to correct an error in its verdict. Continue reading

Appellate Court Clarifies Requirements For An Adverse Possessor’s Notice of Possession

John Sciacca headshotBy John Sciacca

Recently in Carr v. Rosien (2015) 2015 DJDAR 8147, the Fourth District Court of Appeal in California ruled that an adverse possessor’s lis pendens was void because the adverse possessor failed to mail it to the address shown in the assessor’s role, regardless of the address validity. In the case, Mr. Carr filed a quiet title action for real property against Ernest Ortiz and Anna Colon. A quiet title action is typically brought to determine who the real owner of real property is or who possesses what interest in the property. Here, Mr. Carr brought a quiet title action for real property in Riverside under the claim that Mr. Carr had adverse possession of the subject property. Adverse possession is where a trespasser takes a title to property by having a hostile claim, actual possession of the property, open and notorious possession of the property, exclusive and continuous possession of the property, and payment of taxes on the property for five continuous years. Continue reading

United States Supreme Court To Hear Case On Recovery Of Disbursed Third-Party Settlement Funds under ERISA By An Insurance Company

Katherine Marlink headshotBy Katherine Marklink

The 9th Circuit Court of Appeals has held that under the Employee Retirement Income Security Act of 1974 (ERISA) a fiduciary can enforce an equitable lien against specifically identified funds that remain in the beneficiary’s possession; but that such a lien cannot extend to the beneficiary’s general assets when the specifically identified funds are no longer in the beneficiary’s possession. (Bilyeu v. Morgan Stanley Long Term Disability Plan (2012) 683 F.3d 1083, 1095.) In other words, while an Insurance Company can enforce an equitable lien on the settlement proceeds from a third-party tort recovery, if the injured party is no longer in possession of the funds recovered from the third-party then the lien cannot extend to the general assets of the injured party.

This view held by the 9th Circuit is a minority view only shared by the 8th Circuit. Six other circuit courts have now reached contrary conclusions generally  holding that an equitable lien could extend to general assets even if the funds have been disbursed.

Due to the split in the Circuit Courts of Appeal, the United States Supreme Court has granted a writ of certiori to hear the issue in regards to a case arising from the 11th Circuit, Montanile v. Board of Trustees Of The National Elevator Industry Health Benefit Plan, United States Case No. 14-723. Briefing is presently underway in the matter with the case set to be heard in the next Supreme Court term beginning October 2015.


Disclaimer: The information contained in this post are provided for informational purposes only. Such information is not intended as, nor does it constitute legal advice, and information is current only as of the date indicated. No attorney-client relationship is created by this website, nor by any exchange of information in connection therewith, unless and until a written agreement containing all terms of representation has been signed.

California Supreme Court Extends Assumption of Risk Doctrine to Cases Where an In-home Caregiver is Injured by their Patient

Headshot of Robert F BennettBy Robert Bennett

On August 4, 2014, the California Supreme Court released a decision in Carolyn Gregory v. Lorraine Cott. At issue for the court was whether an in-home caregiver was precluded from suing her Alzheimer’s patient when she was injured in the course of caring for her. In 2005 Bernard Cott contracted with a home health care agency to care for his then 85 year old wife, Lorraine Cott, who was suffering from Alzheimer’s disease. The agency assigned Gregory to work in the Cott home. Gregory was trained to care for Alzheimer’s patients and was advised by Bernard that his wife was combative often kicking, biting, scratching and flailing. In 2008, Gregory was washing dishes when Lorraine bumped into her. Gregory, who was holding a knife at the time, attempted to restrain Lorraine when she dropped the knife which struck her wrist and caused injuries. Gregory filed a workers’ compensation claim and then a separate civil claim against the Gregorys. Continue reading

Appellate Court Declares Amounts Charged For Plaintiff’s Care Completely Inadmissible When Lesser Amounts Accepted As Payment By Provider.

Headshot of Robert F BennettOn April 30, 2013, the Third Appellate District Court of Appeals published Corenbaum v. Lampkin holding that “evidence of the full amounts billed for a plaintiffs’ medical care was not relevant to the amount of damages for past medical services, damages for their future medical care or noneconomic damages.” Given plaintiffs were unable to show that the full amounts of the medical bills were relevant to any other issue, admission of such amounts was held to be error.

The trial court’s in limine rulings allowed the jury to hear evidence of the full amounts billed for past medical care and heard no evidence of the lesser amounts accepted by providers pursuant to prior agreements with the insurers. A special verdict regarding the plaintiffs’ past and future economic and non-economic damages was returned on June 3, 2011, based on the amounts presented at trial. A motion to reduce the rewards was filed pursuant to Hanif v. Housing Authority,(1988) 200 Cal.App.3d 635, and Nishihama v. City and County of San Francisco, (2001) 93 Cal.App.4th 298. Subsequently, the California Supreme Court issued its opinion in Howell v. Hamilton Meats & Provisions, Inc., (2011) 52 Cal.4th 541, on August 18, 2011. The motion to reduce the compensatory damages was heard on September 6, 2011, and was denied as the trial court felt it was without jurisdiction due to a previously denied Motion for New Trial. An appeal followed.

In holding that the full amounts billed for medical services are inadmissible, the appellate court first addressed the relevance of the full amounts billed as to past medical expenses in light of the holding in Howell. It then turned to whether the full amounts billed were relevant to the determination of future medical expenses, which was not expressly addressed in Howell. Relying on the Court’s statement in Howell that the full amount billed by a medical provider is not an accurate measure of the value of medical services, the appellate court concluded that evidence of the full amounts billed for past medical services is not relevant to the determination of damages for future medical expenses, cannot support an expert opinion on the reasonable value of future medical services and is not relevant to noneconomic damages such as pain and suffering. As the amounts of the full medical bills were not offered into evidence for any other purpose, the court found that admission was in error and remanded for a new trial as to compensatory damages.

This decision extends Howell’s holding regarding the admissibility of full amounts billed for medical services to both future economic and non-economic damages. The opinion discusses in-depth the holding in Howell and its extension in light of the collateral source rule and relevance.


 

Disclaimer: The information contained in this post are provided for informational purposes only. Such information is not intended as, nor does it constitute legal advice, and information is current only as of the date indicated. No attorney-client relationship is created by this website, nor by any exchange of information in connection therewith, unless and until a written agreement containing all terms of representation has been signed.