Category - Damages

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FLASH BULLETIN – McMillin Albany LLC et al. v. Superior Court (2018) S229762
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UPDATE – McMillin Albany LLC v. Superior Court & Gillotti v. Stewart
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Gillotti v. Stewart (2017) 2017 WL 1488711 Rejects Liberty Mutual, Holding Once Again That The Right To Repair Act Is The Exclusive Remedy For Construction Defect Claims
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California Court Of Appeal Limits The Application Of Howell In Cases Involving Medical Finance Companies – Moore v. Mercer (2016) 4 Cal.App.5th 424
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CGL Exclusions Common to Construction-Related Claims
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California’s Court Of Appeal Confirms That Comparative Fault Applies To Professional Malpractice Claims And That Pre-Judgment Interest Is Not Recoverable Where Issues Exist On Fault And Apportionment
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Immigration Status No Longer Discoverable in Personal Injury Cases

FLASH BULLETIN – McMillin Albany LLC et al. v. Superior Court (2018) S229762

By: Richard H. Glucksman, Glenn T. Barger, Jon A. Turigliatto, David A. Napper
February 15, 2018

HOT OFF THE PRESS:

THE CALIFORNIA SUPREME COURT HAS RULED THAT THE RIGHT TO REPAIR ACT (SB800) IS THE EXCLUSIVE REMEDY FOR CONSTRUCTION DEFECT CLAIMS NOT INVOLVING PERSONAL INJURIES WHETHER OR NOT THE UNDERLYING DEFECTS GAVE RISE TO ANY PROPERTY DAMAGE in McMillin Albany LLC et al. v. Superior Court (2018) S229762.

The Construction Industry finally has its answer.  The California Supreme Court ruled that the Right to Repair Act (SB800) is the exclusive remedy for construction defect claims alleged to have resulted from economic loss, property damage, or both.  Our office has closely tracked the matter since its infancy.  The California Supreme Court’s holding resolves the split of authority presented by the Fifth Appellate District’s holding in McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132, which outright rejected the Fourth Appellate District’s holding in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98.

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UPDATE – McMillin Albany LLC v. Superior Court & Gillotti v. Stewart

By: Richard H. Glucksman, Glenn T. Barger, David A. Napper, and Chelsea L. Zwart
October 25, 2017

The matter has been fully briefed since 2016 and the construction industry has been anxiously awaiting the California Supreme Court’s highly anticipated decision regarding McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132. At long last, oral argument has finally been set for Tuesday, November 7, 2017 at 1:30 p.m. in Sacramento. Numerous amicus briefs were filed including one by the Association of Southern California Defense Counsel, with the immediate past president of the organization, CGDRB’s Glenn T. Barger, Esq., listed as the attorney of record, Mr. Barger will personally appear and represent the ASCDC at oral argument.

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Gillotti v. Stewart (2017) 2017 WL 1488711 Rejects Liberty Mutual, Holding Once Again That The Right To Repair Act Is The Exclusive Remedy For Construction Defect Claims

By: Richard H. Glucksman, Esq. and Chelsea L. Zwart, Esq.
June 5, 2017

Background

In Gillotti v. Stewart (April 26, 2017) 2017 WL 1488711, which was ordered to be published on May 18, 2017,  the defendant grading subcontractor added soil over tree roots to level the driveway on the plaintiff homeowner’s sloped lot.  The homeowner sued the grading subcontractor under the California Right to Repair Act (Civil Code §§ 895, et seq.) claiming that the subcontractor’s work damaged the trees.

After the jury found the subcontractor was not negligent, the trial court entered judgment in favor of the subcontractor.  The homeowner appealed, arguing that the trial court improperly construed the Right to Repair Act as barring a common law negligence theory against the subcontractor and erred in failing to follow Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98. The Third District Court of Appeal disagreed and affirmed the trial court’s judgment in favor of the subcontractor.

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California Court Of Appeal Limits The Application Of Howell In Cases Involving Medical Finance Companies – Moore v. Mercer (2016) 4 Cal.App.5th 424

By: Ashley H. Verdon and Katherine J. Flores
May 25, 2017

In a plaintiff friendly decision, the Third District California Court of Appeal held that an uninsured plaintiff may present evidence of the full billed amount for medical treatment where a healthcare provider has sold its accounts receivable and medical liens to a medical finance company.

In Moore v. Mercer, an uninsured plaintiff executed medical lien agreements with her doctors in order to obtain medical treatment following an automobile collision.  At trial, plaintiff filed a motion in limine to exclude evidence of the medical finance company’s involvement on the grounds that it was irrelevant and prejudicial.  The trial court granted the motion in limine under Evidence Code §352.  Defendant appealed.

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CGL Exclusions Common to Construction-Related Claims

By: Dominic J. Fote
Published by AmWINS Group, Inc.

The Commercial General Liability policy (CGL) is an essential factor in the equation that consists of building planning, financing, construction, operation, and protection from risk. While its coverage potential is determined by claim professionals and insurance coverage counsel daily throughout the country, it is useful to step back and consider application examples of some of the standard form’s most prominent provisions. The following is a primer on three of the CGL form’s exclusions which most commonly come into play in the world of construction defect claims.

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California’s Court Of Appeal Confirms That Comparative Fault Applies To Professional Malpractice Claims And That Pre-Judgment Interest Is Not Recoverable Where Issues Exist On Fault And Apportionment

By: Ashley H. Verdon
May 25, 2017

In Yale v. Bowne (2017) 9 Cal.App.5th 649, Yale sued her former attorney for negligence in the preparation of an estate plan which, contrary to Yale’s wishes, transmuted all of her separate property to community property, and ultimately forced her to enter into an unfavorable settlement with her ex-husband so that Yale could avoid potentially losing half of everything in her divorce.  In the negligence case, the jury found that Yale’s attorney was professionally negligent and that Yale was comparatively negligent, allocating 90% fault to her attorney and 10% fault to Yale.

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Immigration Status No Longer Discoverable in Personal Injury Cases

By: Jon A. Turigliatto, Esq. and Chelsea L. Zwart, Esq.
December 9, 2016

NEW CALIFORNIA EVIDENCE CODE SECTION 351.2 PROHIBITS DISCOVERY AND ADMISSIBILITY OF A PERSON’S IMMIGRATION STATUS FOR PURPOSES OF LIMITING DAMAGE CLAIMS.

On January 1, 2017, AB 2159, which prohibits discovery related to a person’s immigration status in personal injury and wrongful death actions, will become effective, adding Section 351.2 to the California Evidence Code and overturning Rodriguez v. Kline (1986) 186 Cal.App.3d 1146.

Under Rodriguez v. Kline, an individual injured in the United States who is subject to deportation is not entitled to compensation based upon his or her projected earning capacity in the United States, but rather may only recovery damages for lost future income the individual would have earned in his or her country of origin. Later case law applied Rodriguez v. Kline to the recovery of medical costs, limiting recovery by an undocumented person to the amount the individual would have incurred for medical treatment in his or her country of origin.

Newly introduced Evidence Code Section 351.2 states:

(a) In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.

(b) This section does not affect the standards of relevance, admissibility, or discovery prescribed by Section 3339 of the Civil Code, Section 7285 of the Government Code, Section 24000 of the Health and Safety Code, and Section 1171.5 of the Labor Code.

Proponents of Section 351.2, which effectively invalidates Rodriguez v. Kline, assert that the rationale behind the new law is to ensure that personal injury and wrongful death victims are not penalized for their immigration status and to protect undocumented immigrants from being exploited.  The intent is to equalize compensation received by persons who work and live in California and thus should be entitled to equal treatment in the California court system, regardless of immigration status.

By prohibiting the discovery and admissibility of a plaintiff’s immigration status, the new code section will have a severe impact on defendants’ potential exposure for damages relating to lost income and medical expenses.  After January 1, 2017, an undocumented person’s loss of earnings claim will no longer be limited to wages earned in his or her country of origin, but will rather be based on the individual’s income in the United States, whether here legally or not.  The same will be true for medical expenses, which will be based on those actually incurred.

Historically, many undocumented plaintiffs did not pursue loss of earnings claims as defendants regularly pointed to immigration status as a way to significantly lower potential exposure for such claims. Given that earnings and medical costs are generally substantially higher in the United States than in countries from which people immigrate without documentation, the enactment of Evidence Code Section 351.2 will deliberately result in larger awards for loss of income and medical expenses to injured immigrants.

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