Katherine Marlink was recently successful on a motion for summary judgment resulting in a judgment in favor of a Powers Miller’s client. In this Sacramento Superior Court case, Plaintiff, a licensed contractor, filed suit seeking damages for injuries sustained while he was doing repair work on a rental property. While repairing a patio cover, Plaintiff fell to the ground sustaining significant injuries which included: a fractured scapula, a fractured clavicle, rib fractures, and a closed head injury with fractures of the temporal bone with subarachnoid and epidural hemorrhages. Plaintiff continued to complain of ongoing issues including those from his closed head injury including cognitive deficits such as memory loss and functional difficulties as well as hearing loss which have led to his inability to return to his usual and customary employment. Plaintiff received benefits in excess of $1,000,000 from the State Compensation Insurance Fund. Plaintiff demanded payment of $4,000,000 to resolve the matter prior to the filing of the motions for summary judgment.
Marlink moved for summary judgment on the grounds that the plaintiff’s claims were barred by the Privette doctrine and the doctrine of assumption of the risk. After significant opposition by Plaintiff’s counsel, including oral argument, the court agreed with defendants’ arguments and granted the motion summary judgment. The granting of the motion allowed defendants to not only obtain a judgment in their favor but also seek to recover costs of just under $5,000 incurred in the defense of the case.
In 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
By 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.
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Claimant was involved in an automobile accident with an underinsured motorist in 2003 and subsequently settled with the third party for the policy limits in late-2006. The claimant expressed a desire, through counsel, to pursue an underinsured motorist claim pursuant to the terms of his automobile policy. By 2015, the claim remained unresolved with attempts to bring the matter to completion hindered by a failure of claimant’s counsel to respond to requests to select an arbitrator. Continue reading
Plaintiff Hernandez filed a lawsuit in Sacramento County Superior Court for personal injuries arising from a rear-end motor vehicle collision that occurred on January 19, 2012. At the time the collision occurred, Mr. Hernandez was off from work for similar injuries sustained in a work-related incident that occurred on August 29, 2011. Rather then proceed with a trial of the matter, the parties agreed to binding arbitration. Continue reading
Plaintiff Stover filed an action in Placer County Superior Court alleging injuries as the result of a physical altercation between himself and his neighbor, Mr. Sherrill. In addition to naming Mr. Sherrill as a defendant in the matter, the plaintiff named as defendants a guest on the neighbor’s property Mr. Colaw, who he alleged intervened in the fight escalating it and causing him further injury, and Mrs. Sherrill, against whom he alleged she had breached her duty in purposefully directing Mr. Colaw to intervene to cause injury to the plaintiff. J. Brian Powers and Katherine L. Marlink of Powers Miller represented Mrs. Sherrill in the action. Continue reading
Following a binding arbitration of an underinsured motorist claim, Jim Miller obtained a favorable award well below the amount demanded by the claimant.
The claimant was involved in a rear-end collision on a surface street in Sacramento. In her claim, she alleged she sustained injuries to her neck and back including radiating pain to the extremities. Continue reading