Randy Moss and Lisa Pan score another victory for DAR clients on dispositive motion, this time in an insurance bad-faith action alleging wrongful failure to defend and indemnify.

The insurer client’s insured was involved in a physical altercation when he found his estranged wife at a restaurant with another man (Plaintiff in the underlying action). During the fight, the Plaintiff sustained a broken jaw.

The DA investigated but declined to file criminal charges because it had insufficient evidence as to who started the fight.  The Plaintiff filed civil suit against the insured, who claimed he acted in self defense, and that Plaintiff broke his jaw, not when the insured intentionally punched him in the face (in self defense), but in the subsequent struggle in which both fell to the ground, striking the pavement hard.  The insured tendered his defense to the insurer who, after investigating (including taking the insured’s recorded statement), declined to defend.  In his statement the insured claimed he did not intend to injure the Plaintiff but admitted that he did intend to take Plaintiff down to the ground during their struggle.  The insured continued his defense through personally-retained counsel. Shortly before trial of the underlying civil suit, the parties stipulated to entry of Judgment against the insured in favor of Plaintiff for policy limits of $300,000 and an assignment of the insured’s rights against the insurer, in exchange for a covenant not to execute against the insured personally.  Thereafter, the Plaintiff filed suit against the carrier alleging assigned causes of action for breach of contract and the implied covenant of good faith and fair dealing, and a direct statutory cause of action against the insurer on the judgment.

Plaintiff assignee sought damages for defense costs, the $300,000 judgment and  other damages purportedly suffered by both him and the insured as a result of the carrier’s denial of defense. After persuading the Plaintiff to dismiss the bad-faith action, DAR filed summary judgment on the remaining claims, contending that there was no potential for coverage because the Plaintiff’s injuries did not arise out of an “occurrence” (i.e., accident). 

DAR argued that, even if the insured acted in self defense, and questions of fact existed as to whether plaintiff’s injuries were the result of being punched in the face or when the parties fell to the pavement, and even if the insured denied intending to cause injury, the insured’s act were intentional and therefore not accidental.  The Superior Court, County of Sonoma agreed, noting that there was no evidence that the Plaintiff was injured as a result of an involuntary reflexive act on the insured’s part.  Rather, Plaintiff’s injury was the result of intentional conduct (though the resulting injury was  not intended) and therefore not accidental.

The court granted the motion in its entirety.

Case: Dominic Capito v. Mid-Century Insurance Company (Sonoma County Superior Court)

We would like to congratulate Amber Kelly as a new member of the American Board of Trial Advocates (ABOTA).  On August 7, 2021, she was voted into ABOTA —a prestigious, invitation-only organization of plaintiff and defense lawyers in which prospective members are strictly screened for high personal character, an honorable reputation and for having tried a significant number of jury trials to verdict.

Congratulations to Paul Bessette and Lisa Pan on another MSJ victory.  In Whiting v, Buxton, Alameda County Superior Court, an on-duty Alameda County firefighter sued for personal injuries against the owners of rental property.  The plaintiff was responding to a fire on the property.  ACFD rescued numerous dogs owned by the tenants on the premises and escorted one of them across the street, entrusting it to the care of the tenant’s minor daughter.  While the plaintiff was attempting to question the minor, the dog lunged at him causing severe facial injuries.  Plaintiff firefighter sued the landlords of the premises alleging that the fire was caused by electrical defects in the premises and for the injuries caused by the dog. His wife joined asserting a claim for loss of consortium. The County served notice of lien in the amount of $326,000.  Defendant landlords prevailed on motion to strike the allegations regarding the alleged electrical defects/cause of the fire based upon the firefighter’s rule.  Thereafter, they filed a motion for summary judgment on the ground that they had no notice that the tenants harbored a dangerous dog on the premises.  Following discovery, including depositions of the landlord and his assistant, Plaintiffs agreed to dismiss the action with prejudice and for a waiver of costs 

Demler Armstrong & Rowland is pleased to announce that its San Francisco Managing Partner, John R. Brydon, was lead trial counsel for Pneumo Abex, LLC, a former manufacturer of asbestos containing brake linings, and obtained a 12-0 defense verdict in a disputed mesothelioma wrongful death case in Pierce County Superior Court, Tacoma, Washington.  Abex was the last remaining defendant in a case brought by the heirs of 88-year-old Donald Winslow who claimed exposure to Abex brake linings from the blow out of old brake drums while he was the owner and occasional mechanic at an Atlantic Richfield gas station in Port Orchard, Washington from 1967-1980. Mr. Winslow also spent over a dozen years as a sheet metal worker at the Puget Sound Naval Shipyard in Bremerton, Washington in the 1950 and early 1960s. The case was tried under the former Washington products liability common law rules, which imposes joint & several liability for full damages against any remaining defendant less any post-judgment offsets from prior settlements.  Plaintiffs asked the jury to award $7 million and after one juror was discharged for work related reasons during the initial deliberations, the jury restarted deliberations with the alternate and returned a 12-0 defense verdict in under 2 hours.

Mr. Winslow had been initially diagnosed with “probable” pleural mesothelioma by his treating physicians, but no biopsy of the tumor was done while he was alive.  Mr. Winslow’s son commissioned an autopsy and had the pathology slides reviewed by pathologist/pulmonologist Richard Kradin, a frequently used plaintiff expert who agreed with the diagnosis but did not review the autopsy photos or conduct his own testing. Dr. Kradin concluded that the tumor was a sarcomatoid mesothelioma.

Pathology material was obtained by the defense and sent to Lucien Chirieac, MD, a pathologist who has written extensively on guidelines for this difficult to diagnose disease and after conducting his own testing of the tumor and viewing hundreds of photos taken at autopsy testified that this was not a mesothelioma.  It did not present like mesothelioma, did not behave like a mesothelioma in the way it metastasized and tested negative for mesothelioma.  He concluded that the tumor was a sarcoma, which all the experts agreed is a cancer that is not caused by exposure to asbestos.

The defense also challenged the product identification and exposure claims in the case and argued if there was any release of asbestos during blow out of spent linings that may have been supplied by Abex, it was de minimis and in the unlikely event that this was mesothelioma, the claimed exposures were insignificant and would not be a legal cause of the disease.

The case was tried in person in a socially distanced facility with a live Zoom public feed.  All participants, including the jurors, were required to wear masks except when speaking, examining, or testifying, Plaintiffs’ experts all testified via Zoom and all the defense witnesses were presented live.

TRIAL LENGTH:               

15 Court Days  | Verdict July 6, 2021

PLAINTIFFS COUNSEL:   

Craig Sims, Esq. | Schroeder, Goldmark Bender, Seattle WA

Kaitlin Wright, Esq.  | Schroeder, Goldmark Bender, Seattle WA

DEFENSE COUNSEL:      

John R. Brydon, Esq. | Demler, Armstrong & Rowland LLP, San Francisco, CA

Johan D. Flynn, Esq. | Wheeler Trigg O’Donnell LLP, Denver, CO

Michael E. Ricketts, Esq. | Gordon Thomas Honeywell LLP Seattle, WA

JUDGE:                            

Hon. Michael E. Schwartz, Pierce County Superior Court, State of Washington

CASE:                                

Donald Gail Winslow v. Pneumo Abex. LLC, Case No. 20-2-05066-6        

John Brydon to present a webinar on punitive damages on July 14, 2021, 12:00 p.m. to 1:00 p.m. for the Association of Defense Counsel, “Punitive Damages – Trial Perspective,” where he will share his perspective on countering punitive damages before and during trial. Click here to register

Partner Derek Lim to moderate “The Plaintiff’s Lawyer’s Perspective on the Anatomy of a Truck Crash Case”

Click here for details and to register

Partner John Brydon to speak on Zoom Jury Trials on April 2, 2021. Click here for more information and to register:  https://slobar.org/events-calendar/#!event/2021/4/2/cctla-presents-zoom-jury-trials