Success Stories | The Huver Law Firm

Wrongful Death Cases

$1,260,000 - David Thomas et all., v. Eric Rueckert
$975,000 - Doe Plaintiffs v. Doe Defendants
$633,333 - Lin and Xin Zhi v. Michael Zimmerman & Rand Smith
$500,000 - Margret Atanasovski v. Swink, et al.

Wrongful Death

$1,260,000 Verdict - David Thomas, et al., v. Eric Rueckert

April 14, 1994 | CA Superior Court | Ventura, CA | Case No. 118655

Description

On November 30, 1990, defendant driver, age 17, was southbound on Valley Vista Drive in Ventura County. Decedent Melanie Thomas, age 14, sat in the left rear seat. Plaintiff Stephanie Thomas, age 17, sat in the right rear seat next to her boyfriend, Jason Wallace, who was seated in the middle. Defendant was taking Melanie and her friend Alyssia, who was seated in the front, to a friend's surprise birthday party.

After getting lost in a residential neighborhood, defendant began speeding down a winding dark street. He lost control of his car as he sped around a curve and slid off the right side of the road, flipping over. The left rear passenger side of the car crashed into a cement/brick pillar, crushing Melanie. She was later pronounced dead at the hospital from massive internal injuries. Stephanie suffered various physical injuries and saw her sister, Melanie, hanging upside down in the overturned car after the accident.

Plaintiffs' Contentions Regarding Liability:

Plaintiffs alleged that defendant was negligent for speeding and failing to control his car. Plaintiffs argued negligence per se for various vehicle code violations.

Defendant's Contentions Regarding Liability:

Defendant contended that he was not speeding, was maintaining proper control and was on a "mission impossible" to get the two girls to the birthday party on time. Defendant could not offer an explanation for why the accident happened and claimed amnesia regarding his actions immediately before impact. Defendant's expert contended there was a super elevation (slope) of the road surface which contributed to the accident.

Damages:

Wrongful death of Melanie; broken jaw, cuts/bruises, emotional distress (Dillon v. Legg) to Stephanie.

Verdict:

$450,000 to David Thomas and $450,000 to Ruth Thomas for death of daughter; $85,000 for Stephanie's personal injury claim and $275,000 for her emotional distress claim.

$975,000 - Doe Plaintiffs v. Doe Defendants

September 18, 2002 | CA Superior Court | San Bernardino, CA | Case No. Confidential

Description

Decedent was a resident in a retirement home community. She was diagnosed with hypertension and advanced Parkinson's Disease. She was placed in the Health Center, a 24-hour nursing care facility. After returning from a hospital stay for pneumonia, decedent was eating in the dining room when she choked on food and/or aspirated liquid. She was taken to her room and allegedly stopped breathing upon entering her room. Emergency CPR was allegedly performed and paramedics were called. Upon arrival, paramedics found decedent had no pulse and was not breathing. Paramedics allegedly removed blockage from her airway and began CPR, eventually attaining a heart beat. Decedent was taken to the hospital unconscious. She died after being taken off life support the following day.

Plaintiff's Contentions:

Regarding the elder abuse/wrongful death claim, plaintiffs alleged defendant failed to properly supervise plaintiff while she was eating, failed to have an aide assisting her while eating, and failed to respond promptly when decedent aspirated and/or choked. Plaintiffs further alleged decedent was merely wheeled to her room and put to bed. Upon arrival, the paramedics alleged they did not see anyone performing CPR on decedent. Paramedics further alleged they found food blocking decedent's airway, which was removed.

Regarding the fraud claim, plaintiffs alleged defendants concealed from residents deficiencies found by the California Department of Health in the Health Center, and concealed from residents that a substantial fine had been levied against defendant. Plaintiffs alleged the concealment of these conditions was made at a time before decedent became a resident in the Health Center and that decedent's family would not have placed her in the Health Center had they known the true facts. Plaintiffs further alleged decedent was charged for services which in the Health Center which were already included in the monthly fee.

Defendants' Contentions:

Defendants denied any wrongdoing and denied plaintiffs' allegations. Defendants contend decedent was properly attended in the dining area, had demonstrated the ability to feed herself, and was not under orders requiring hand feeding. Defendants further contend that decedent aspirated liquid, that proper and immediate efforts were taken to assess her situation, call paramedics and treat decedent. Defendants contend that after decedent stopped breathing, CPR was started, her airway was cleared and CPR continued until the paramedics arrived. Defendants contend the only proper treatment for aspiration was hospitalization. Defendants also contend decedent died as a result of aspiration pneumonia.

Regarding the fraud claim, defendants denied concealing any information from residents, alleged the information was posted on bulletin boards and made available to any residents who requested, and denied the alleged conduct constituted actionable fraud. Defendants further denied that decedent was billed improperly, or that she was charged for services which were included in her monthly fee.

Injuries and/or Damages:

Wrongful death, elder abuse.

$633,333 Settlement - Lin and Xin Zhi v. Michael Zimmerman & Rand Smith

April 16, 1998 | CA Superior Court | San Diego, CA | Case No. 717833

Description

On Sunday, February 16, 1997, Cindy Zhi, age 9, Nini Lowrey, age 7, and five other children, left a Chinese New Years celebration at an elementary school, intending to play at a public park across the street. Park Village Drive, a 4-lane road with posted speed limits of 45 mph, is divided by a raised center island covered with vegetation and trees.

The seven children ran across two lanes of travel (not in a crosswalk) and waited on the center island for traffic to pass. Defendant Rand Smith, driving an Isuzu Rodeo, approached the children and decided to stop his vehicle in lane number 1 (closest to center island). Smith then waved for the children to continue across the street.

Defendant Zimmerman had just turned left onto Park Village Drive approximately 1/4 mile away and entered lane number 2. At that moment, 5 of the children stepped off the center island and walked in front of Smith's vehicle, looking to see if there were any approaching cars. However, Nini and Cindy continued across the street, directly in front of defendant Zimmerman. Zimmerman was unable to stop and struck both girls.

Cindy Zhi was placed on life support and died the following day.

Plaintiff's Contentions:

Plaintiff contended defendant Zimmerman failed to maintain proper control of his vehicle, failed to maintain a proper lookout, was speeding, and should have seen Smith's stopped vehicle and anticipated the vehicle was stopped for a reason. Plaintiff contended defendant Smith violated California Vehicle Code by stopping his vehicle in the middle of the road, created a visual obstruction between Zimmerman and the children, and negligently waved them across the street.

Defendants' Contentions:

Defendant Zimmerman contended Cindy was comparatively negligent for crossing the street while not in a crosswalk (there was a crosswalk at the corner of the block), that Zimmerman never saw any children until the two girls ran in front of his car, and that it was an unavoidable accident. Defendant Smith contended his stopping of his vehicle was proper and that he never waved the children across the street. Smith also contended Zimmerman was speeding and the children were negligent for crossing the street outside a crosswalk.

Injuries and/or Damages:

Wrongful death of 9-year old child.

$500,000 - Margret Atanasovski v. Swink, et al.

August 10, 2009 | CA Superior Court | San Diego, CA | Case No. not filed

Description

Single plane crash taking off from McClellan-Palomar Airport in Carlsbad, California, killing defendant pilot and passenger Drago Atanasovski. Heirs included wife of 46 years and five adult children. Competing claims by the City of Carlsbad and SDG&E for property damage caused by plane crashing onto The Crossings Golf Course after colliding with power lines/pole.

Personal Injury

Jury verdict $681,136 Gross - Carol Simkin v. Pinkerton Security Services, et al.

October 13, 1999 | CA Superior Court | San Diego, CA | Case No. 722905

Description

Plaintiff's Contentions:

In 1992, the State of California (dismissed on summary judgment) realigned Mussey Grade Road as it approached State Route 67 in Ramona, California. Mussey Grade was originally constructed to continue straight ahead where it intersected SR 67. It was realigned in 1992 to create a left-hand curve, partially in response to numerous accidents involving vehicles attempting to merge onto SR 67 from Mussey Grade Road. The realignment created a T-intersection.

This accident occurred at the intersection of El Camino Real and High Bluff Drive in San Diego on January 4, 1998, at approximately 5:15 a.m. Plaintiff was on her way to the local AM/PM for her 20 year old grandson who was ill with the flu. On her way to the store, she stopped by a local medical complex to make su

Plaintiff's Contentions:

re her daughter's coffee cart, which had been installed the day before, was safe. Plaintiff left the medical complex and approached the intersection intending to turn left back down the hill to the AM/PM. Plaintiff alleged she waited for her light to turn green, then proceeded to make her left-hand turn.

Defendant James Lee Smith, in the course and scope of his employment as a patrol officer for Pinkerton Security Services, was on his way to his next stop. He was heading north on El Camino Real. Defendant claimed the light changed from red to green when he was at least 150 feet away from the intersection. Defendant claimed plaintiff entered the intersection on the red light. Plaintiff's car was broadsided on the driver's side in the middle of the intersection. There were no eyewitnesses to the accident and scant documentation regarding the existence or location of physical evidence at the scene.

Trial was bifurcated on liability and damages.

Plaintiff's Contentions:

Plaintiff contended she had the green light and defendant Smith ran the red light.

Defendants' Contentions:

Defendants contended Smith had the green light and that plaintiff ran the red light.

Injuries and/or Damages:

Concussion with brain contusion (with no surgery), 5 fractured ribs, fractured spleen (with no surgery), soft tissue neck, back and knees.

Plaintiff prevailed on liability 12-0; the jury apportioned liability 80% to defendants, 20% to plaintiff; verdict was 9-3 on comparative.

In the damages phase, the jury awarded plaintiff $681,136.81 gross; $156,136.81 for medical expenses, $25,000 for past attendant care and $500,000 general damages. Damages verdict was 11-1.

$329,000 Verdict - Kimberly Johansen, et al., v. Troy Thompson, et al.

February 20, 2001 | CA Superior Court | Case No. 801266

Description

This auto accident occurred on November 1, 1997, at approximately 1:00 a.m. Plaintiff Kimberly Johansen, age 22, a junior at UCSD, was a front seat passenger in her mother's Honda Accord being driven by defendant Joel Soper. Another couple was in the back seat. The group was returning from a bar where they had celebrated Halloween.

Defendant Troy Thompson was driving a 1983 Yamaha motor scooter east on Interstate 8, when the motor scooter allegedly lost power. Witnesses who passed by Thompson gave varying accounts about whether the scooter's lights were on or off. One witness testified the scooter was lying on its side in the middle of the freeway.

Several weeks prior to the accident, Thompson had taken his motor scooter to San Diego House of Motorcycles, complaining that the motor scooter had died while he was riding it on the street. A new battery was put in the motor scooter. Thompson had previously brought the motor scooter in for repair for allegedly the same problem, although the reason for the prior repair was heavily disputed.

Defendant Soper came upon Thompson and the motor scooter in the middle of the freeway and was unable to avoid hitting them. Either Thompson and/or the motor scooter went through the windshield, allegedly striking plaintiff Johansen, who was unconscious at the scene.

Plaintiff's Contentions:

Plaintiff contended as follows: defendant Thompson was negligent in permitting his motor scooter to be stopped in the middle of the freeway. Defendant Soper was driving too fast, failed to maintain a proper lookout and failed to maintain proper control, especially since other drivers had been able to avoid Thompson. Defendant Yamaha was liable for a defectively designed motor scooter. Plaintiff contended the scooter's switch was designed poorly and with improper materials, such that it allowed the switch to short out. Once power is interrupted, plaintiff contended the motor scooter would stop, regardless of battery power. Defendant Lorrie-L, Inc. was negligent for failing to properly inspect and repair the motor scooter and failing to identify the defective, intermittent switch problem.

Defendants' Contentions:

There were cross-complaints by various defendants against other defendants. Generally, defendant Thompson contended that Yamaha and/or Lorrie-L were responsible for the accident and for the motor scooter dying on the freeway - either because of a defective design of the switch device and/or negligent inspection and repair by Lorrie-L. Soper contended he was maintaining proper control and could not avoid Thompson, who was at fault for standing in the middle of the freeway. Yamaha contended its motor scooter was not defective nor was any action by Yamaha the cause of the accident. Yamaha contended that parts of the motor scooter had been lost by Thompson's former counsel and/or by certain storage yards, making proof and defense difficult if not impossible. Yamaha contended that Soper was negligently driving his vehicle at the time of the accident, and that Thompson should not have been standing in the middle of the freeway. Yamaha contended that tests conducted at the hospital showed trace amounts of marijuana in Thompson's system. Lorrie-L contended it had properly serviced the motor scooter, that there was no indication of any intermittent switch problems, and that they were never advised by Yamaha to be on the lookout for any intermittent switch problems with the subject motor scooter. Lorrie-L contended Thompson and Soper were the only responsible parties.

Injuries and/or

Damages:

Kimberly Johansen - Closed head injury with residual minimal deficits. Missed one year from college with delayed entry into the work force and potential diminished earning capacity. Medical specials of approximately $79,000. Loss of earnings - 2 months from part-time job as teller.

Barbara Johansen - property damage claim only.

$200,000 - Makenna Starmack v. Odwalla Inc., et al.

December 22, 1997| San Diego County Superior Court | Case No. 706887

Facts and Background:

On October 12, 1996, plaintiff Makenna Starmack, age 4, consumed an Odwalla 100% Pure Apple Juice that had been purchased from Starbucks. A few days later, plaintiff experienced intermittent stomach pains, followed by vomiting and diarrhea. She was admitted to Children’s Hospital for dehydration where she received antibiotics and fluids. She was released 4 days later and was fully recovered within 10 days thereafter.

On October 30, 1996, the FDA issued a bulletin advising of an outbreak of E-coli 0157:h7 associated with Odwalla’s apple juice. Testing confirmed the presence of the bacteria in a sample of Odwalla’s apple juice, which was voluntarily pulled from all store shelves.

Plaintiff's Contentions Regarding Liability:

Plaintiff contended Odwalla was strictly liable for placing a defective product on the market, for failing to properly test the product for the presence of food borne pathogens, and/or for failing to properly treat the product prior to sale to destroy any pathogens, including E-coli 0157:h7. Further, plaintiff contended defendant Starbucks was liable as a retail seller of a defective product.

Defendant's Contentions Regarding Liability:

Defendants contended the presence of E-coli in apple juice was unexpected. Defendant Odwalla further contended their procurement of apples specifically excluded any “dropped” apples which could come into contact with cow manure, that their manufacturing processes appropriately cleaned and sanitized the apples, and that scientific literature supported the notion that a high Ph content would prevent the growth of such pathogens. Defendant Odwalla further contended the presence of E-coli 0157:h7 was an emerging problem for the juice industry and that their processes at the time were appropriate and even exceeded many other juice manufacturers.

Damages:

Stomach cramps, vomiting and diarrhea. Medical expenses of $6,100.

$146,000 Combined Settlement - Cully, et al. v. French

February 2, 2009 | CA Superior Court | San Diego, CA

Description

Auto v auto accident. There were four occupants in plaintiffs' vehicle. Defendant turned left in front of plaintiff's oncoming vehicle, failing to yield the right-of-way.

Plaintiffs suffered mainly soft tissue injuries with the exception of one passenger who suffered traumatic injuries to his eye and eye socket from striking the seat in front of him.

Defendant contended the most seriously injured plaintiff was comparatively at fault for failing to wear a seat belt. All other passengers in the car were wearing their seat belts and suffered significantly lesser injuries.

Defective / Dangerous Products

Settled $6,250,000 - Lee Newhouse, et al., v. Maxwell Transport, et al.

September 20, 1996 | CA Superior Court | San Diego, CA | Case No. 671033

Description

This case involved an action for personal injuries and loss of consortium based on theories of negligence, vicarious liability and failure to warn.

On October 17, 1993, plaintiff Lee Newhouse was driving home from his office northbound on the 805 Freeway in San Diego, California. A 1990 Peterbilt 3-axle tractor and trailer rig owned by defendant Maxwell was driving southbound on the 805 Freeway.

Two days before this accident, the 14-year old grandson of one of the owners of defendant Maxwell had completed a brake job on the Peterbilt tractor. In replacing the wheels, plaintiffs contended he failed to properly torque the lug nuts on the inner and outer wheels.

The dual wheels (manufactured by Alcoa) on the left-third axle suddenly broke off the truck. The two wheels separated with one bouncing over the center divider and striking plaintiffs' vehicle head-on at the driver's side A-pillar.

Plaintiff's Contentions:

Plaintiffs contended defendant Maxwell had failed to properly maintain their truck, negligently entrusted the maintenance to an unqualified 14-year old, and failed to properly torque the lug nuts on the inner and outer wheels, thereby causing the wheel studs to fracture and allow the wheels to come free.

Plaintiffs contended defendants Alcoa and Paccar had failed to properly warn users of the dangers and hazards of over-torquing the lug nuts on semi tractor-trailer wheels. Plaintiffs contended the warnings in the manual were insufficient and that defendants should have placed a warning label somewhere on the tractor near the wheels, or should have placed a warning somewhere on the rim of the aluminum wheel. Plaintiffs contended that without such a warning, the wheels were defective.

Plaintiffs contended defendant Coast was vicariously liable for the negligence of Maxwell. Plaintiffs contended that under applicable California case law, including Eli v. Murphy (1952) 39 Cal.2d 598, a trucking company which held either an I.C.C. common carrier certificate or a P.U.C. permit could not escape liability by subcontracting the work to an independent contractor.

Defendants' Contentions:

Defendant Maxwell denied liability and denied the lug nuts had been improperly torqued. Maxwell contended the air impact wrench that had been used to tighten the lug nuts was set to "maximum" torque. Maxwell contended the brake job had been supervised and checked by a qualified maintenance employee.

Defendants Alcoa and Paccar denied the aluminum wheels were defective without a warning, contended sufficient instructions and warnings had been incorporated into the owners and maintenance manuals, denied an additional warning was necessary or appropriate, and contended that even if a warning label had been in place, it would not have prevented this accident. Defendants contended the lug nuts had been under-torqued, rather than over-torqued as plaintiffs contended. Thus, defendants contended that a warning regarding over-torquing would have been ineffective and unnecessary.

Defendants' Contentions Regarding Damages:

Defendants agreed plaintiff Lee Newhouse had suffered brain damage. Defendants claimed plaintiff did not need 24-hour custodial care. Defendants all disputed that plaintiff was entitled to any compensation for loss of earnings, claiming he had not worked for compensation for over 10 years before the accident. Defendants also discovered evidence that plaintiff had been flying a small plane after the accident, which they contended cast some doubt on the severity of plaintiff's claimed permanent injuries.

Injuries and/or Damages:

Lee Newhouse: Skull and facial fractures on left side of head, brain damage resulting in global aphasia (more expressive than comprehension) and seizures. Plaintiff was unemployable and required supervision, although he was able to care for himself, feed himself, walk and communicate through a few words, gestures and some writing.

Settled $6,000,000 - Richard Antunez v. Coastal Conveyor Systems, Inc., et al.

December 16, 1994 | CA Superior Court | El Cajon, CA | Case No. EC 006343

Description

Richard Antunez was a filter-press operator at the Leathers Geothermal power plant. The power plant was developed by Magma Power Company. Dow Engineering had been hired to provide technical assistance in the overall design and manufacture of the plant. Gulf States, Inc. was the general contractor.

Dow Engineering hired Coastal Conveyors (bankrupt and without insurance coverage) to design and build the conveyor belt. Richard Denney, the mechanical engineer at Coastal, had designed and manufactured over 2,000 conveyor belts, including conveyors for 2 other similar geothermal power plants in which Magma and Dow had been involved.

Plaintiff's job included maintaining a conveyor belt that transported material to storage bins. On December 16, 1991, plaintiff was attempting to dry the head pulley on this conveyor belt when he put his hand into the nip point (area between the head pulley and belt). He was pulled in up to his shoulder.

Plaintiff's Contentions:

Plaintiff contended the head pulley was not adequately guarded, failed to comply with industry guarding standards, that defendants Dow, Magma and Gulf were negligent in the design, manufacture and installation of the conveyor belt system, and that defendants had failed to verify the head pulley had been properly manufactured by Coastal. Plaintiff contended the defendants should have been responsible for checking Coastal's work.

Defendants' Contentions:

Defendants contended the head pulley guard complied with all applicable industry guarding standards, including ANSI. Defendants and their experts claimed these guarding standards were designed to protect a worker from inadvertent or accidental contact with a hazard. They claimed plaintiff was deliberately and intentionally acting to contact the head pulley, thereby defeating the guard in place. Defendants contended if anything was defective with the conveyor belt, it was the sole responsibility of the company which designed and manufactured the conveyor belt, Coastal Conveyor Systems (not a party to the case because bankrupt and without any insurance.) Defendants contended plaintiff was comparatively negligent (50% to 75%) for failing to turn off the conveyor before attempting to clean the head pulley as he had been trained to do by his employer, including during a safety training course just 2 months before the accident. Defendants also contended plaintiff's employer Redhill was comparatively negligent (25% to 50%) for failing to adequately train plaintiff and for creating an unsafe work environment by virtue of a bonus plan which rewarded employees for competitive productivity with other geothermal plants. Defendants contended this bonus plan encouraged employees to act dangerously and not shut down the system in instances where they should. Defendants also contended plaintiff's employer Redhill was responsible for inadequate guarding of the head pulley under Cal-OSHA regulations.

Injuries and/or Damages:

3rd and 4th degree burns to 30% of his body, including head, face and chest. Right (major) arm surgically amputated at mid-humerus level. During medical care, plaintiff's dura was torn, resulting in subdural hematoma causing right-sided hemiparesis and mild aphasia.

Insurance

Settled $11,900,000 - San Diego Padres v. Lloyd's of London

May 15, 2003 | CA Superior Court | San Diego, CA | Case No. 758640

Description

Plaintiff purchased an Employer's Purchased Individual Disability Insurance policy for one of its pitchers, Randy Myers, who was acquired from the Toronto Blue Jays during the 1998 season. Myers pitched through the end of the season, including in the 1998 World Series against the New York Yankees. The policy ran from August 10, 1998 through February 15, 1999, or the start of spring training, whichever was sooner.

Upon returning for spring training on February 28, 1999, Myers was examined by the Padres' team physician, who determined he had significant weakness of his rotator cuff. Myers nonetheless pitched during spring training. Near the start of the regular season, Myers complained that he had "tweaked" his throwing arm and when called upon to pitch on opening day, stated he could no longer pitch.

The policy provided $4,000,000 of coverage for the 1999 and 2000 seasons if Myers became disabled as a result of an "accidental bodily injury" which occurred during the policy period, or a "sickness or disease" which was first "reasonably capable of diagnosis by a physician" during the policy period.

The Padres submitted a claim in December 1999, contending that Myers had become disabled as a result of rotator cuff disease which was first reasonably capable of diagnosis by a physician during the off-season while the policy was in force. Lloyd's delayed a decision on the claim for 16 months, finally issuing a denial in April 2001.

Plaintiff's Contentions:

Plaintiff alleged the evidence established that Myers was disabled as a result of a massive tear of his rotator cuff caused by "disease" and that said condition was first "reasonably capable of diagnosis by a physician" in late December 1998 or early January 1999, within the policy period. Plaintiff further alleged that defendant failed to properly and impartially investigate its claim, failed to have or use any procedures manuals, failed to document the claims file, conducted an improper "independent medical examination," wrote portions of the "IME" report for the doctor to sign, disregarded evidence supporting payment of the claim and instead manufactured evidence to support the denial. Plaintiff also alleged defendant unreasonably delayed a decision on the claim for 16 months, during which time it was concocting the basis for its denial.

Defendants' Contentions:

Defendant contended that Myers was disabled either as a result of an "accidental bodily injury" when Myers "tweaked" his shoulder after the policy expired, or, if the disability was caused by a "sickness or disease," that said "sickness or disease" was first "reasonably capable of diagnosis by a physician" in 1993 based upon MRI films which revealed the presence of the "disease" at that time. Defendant alleged that Myers had pitched in 6 exhibition games after the policy expired and only reported an inability to pitch on opening day, almost 2 months after the policy expired. Defendant contended its investigation was reasonable, that any delay in denying the claim was to permit a proper and thorough investigation, including the obtaining of medical records, and that the claim was denied within 30 days after the final IME report being issued.

Damages:

Contract damages of $4,000,000 per season for the 1999 and 2000 major league seasons, plus interest; attorneys' fees and punitive damages for bad faith.

$6,769,544 - Pro Bono Representation of Cedar Fire Victims

2008

Settlement Amounts:

Combined Payments of $6,769,544 Beyond Policy Limits

Case Name:

Pro Bono Representation of Cedar Fire Victims

Facts and Background:

In October 2003, one of the most devastating wildfires in U.S. history struck San Diego County. Over 300,000 acres and 2,400 homes were destroyed. After losing virtually everything they had, many of the fire victims discovered that their insurance limits were significantly less than they needed to rebuild their homes and replace what they had lost. Most insurance companies refused to extend coverage beyond the stated limits in the insurance policies, claiming the homeowners had the duty of selecting the correct amount of coverage. As a result, some homeowners were hundreds of thousands of dollars short of the insurance coverage they needed.

Because of the widespread devastation and in an effort to help San Diego citizens, Richard Huver and Su Barry provided hundreds of hours of pro bono assistance to over 250 families who lost their homes with respect to numerous aspects of their insurance policies, submitting claims, responding to the insurance companies and understanding their rights and the insurance company’s obligations. In addition, Mr. Huver and Ms. Barry were able to assist many fire victims in recovering a total of $6,769,544 additional insurance coverage beyond their stated policy limits.

$6,159.759 - Cedar Fire Consolidated Litigation

2008 | San Diego County Superior Court | Case No. GIC 842237 et al.

Settlement Amounts:

Combined Payments of $6,159,759 Beyond Policy Limits

Plaintiffs:

Numerous underinsured fire victims

Defendants:

Various homeowner insurance companies

Facts and Background:

Plaintiffs’ contentions regarding liability:

Plaintiffs contended the insurance companies had assumed the duty of correctly estimating the cost to replace their homes by virtue of actions taken during the sale and underwriting of the insurance policies. Plaintiffs further contended that if the Coverage A limits (dwelling coverage) was calculated too low, the remaining insurance coverage limits (for contents, landscaping, ALE, etc.) would likewise be too low.

Defendants’ contentions regarding liability:

The insurance companies contended that pursuant to long-standing California law, the insured had the legal duty of selecting the amount of coverage they wanted for their homes and contents. By virtue of the specific language of the policies, the insurance industry also contended that their liability was limited to the coverage amounts in the policies and they were not liable for any additional payments.

Damages and recovery:

22 homeowners recovered an additional $6,159,759 of insurance coverage beyond their stated limits, allowing them to rebuild their homes and replace most of what was lost.

$2,500,000 - Cowest Holdings, LLC v. Bill Terry Insurance Agency

February 26, 2009| Case Not Filed

Facts and Background:

Cowest Holdings, LLC, owned real property in Santa Barbara County, California. The home was the primary residence for Sally and J.B. Lecomte. In November 2008, fire destroyed hundreds of homes in and around the Santa Barbara area, including plaintiff’s home. Upon submitting a demand for coverage under the homeowners policy, plaintiff was advised the insurance policy had not been renewed. Plaintiff’s claim was therefore denied.

For years prior to the fire, plaintiff had used the Bill Terry Insurance Agency for all their insurance needs, including homeowners insurance on the Santa Barbara property.

Plaintiff's Contentions Regarding Liability:

Plaintiff contended the Terry Agency had received notice of the upcoming renewal of plaintiff’s policy, but failed to act properly in processing the renewal. Plaintiff contended the lack of homeowners insurance was the result of defendant’s breach of duty as plaintiff’s agent/broker.

Defendant's Contentions Regarding Liability:

Defendant contended plaintiff’s renewal policy had been processed and that Lloyd’s insurance company had received the requested renewal documents before plaintiff’s home was destroyed. Defendant contended Lloyd’s had breached its contractual obligations by denying plaintiff’s claim because a policy renewal had been offered and accepted.

Damages:

Loss of home without insurance. Homeowners policy for $2,500,000 coverage should have been issued.

Result:

Defendant paid $1,925,000 to settle plaintiff’s claims. Plaintiff assigned all rights as against Lloyd’s of London for breach of contract in exchange for an agreement to receive up to $575,000 from any settlement as between the Terry Agency and Lloyd’s. Terry’s claim against Lloyd’s was later settled and plaintiff received an additional $575,000, for a total of $2,500,000.

$2,000,000 Settlement - Doe Corporation v. Doe Title Ins. Co.

January 24, 2005 | San Diego, CA | Case No. Confidential

Description

Plaintiff purchased 2,000-plus acres of real estate in east San Diego County with the intent to develop the land for the sale of private residences. In the 1980's, a development plan for 389 residential lots was approved by the city. However, delays and litigation forced the owner into bankruptcy. At the time of plaintiff's purchase of the property, it was expected that approval would be given for approximately 250 residential lots.

Defendant offered to issue a title policy to plaintiff incident to the property purchase based on a preliminary title report which listed 32 exceptions to title. However, the copy of the preliminary title report provided to plaintiff, its real estate broker and escrow company only contained 16 exceptions to title. Following the close of escrow, defendant sent plaintiff a title policy which listed 32 total exceptions to title, 16 of which had not been previously disclosed on the copy of the preliminary title report approved by plaintiff. Included in the 16 additional exceptions to title was an unplotted easement running the length of the property, deferred water contracts totaling approximately $500,000, and other matters.

Plaintiff reported the discrepancies to defendant title company and later tendered a formal claim. Defendant failed to notify plaintiff whether it was accepting or rejected the claim for 20 months. Finally, defendant paid plaintiff $270,000, far below what plaintiff claimed as damages.

Plaintiff's Contentions:

Plaintiff contended defendant failed and refused to timely accept its claim for 20 months. As a consequence, plaintiff could not move forward with its development of the property due to the uncertainty of the quality of title. Plaintiff alleged it sustained significant damages, including loss of profits from the planned development of the property. Plaintiff further alleged that defendant had engaged in bad faith claims handling both in the lengthy delay and underpayment of its claim.

Defendants' Contentions:

Defendant contended there was no liability for non-disclosure in the preliminary title report. Defendant further denied liability for the allegedly incomplete preliminary title report provided to plaintiff. Defendant contended plaintiff knew from other sources regarding the non-disclosed exceptions and that plaintiff and/or its broker had another recent preliminary title report which fully disclosed all exceptions. Defendant disputed plaintiff's stated intent to develop the property and further contended plaintiff was trying to sway the 2,022 acres for other property for purposed of building an Indian gaming casino. Finally, defendant contended its payment of $270,000 represented the diminution of the fair market value of the property.

Class Action Cases

Settlement of $120,000,000 - Judith Rubin v. Allstate Insurance Company, et al.

January 29, 1998 | US District Court | San Diego, CA | Case No. USDC 95-3635 J (JFS)

Details

Most of the facts of the case and the terms of the settlement are confidential. However, it involved claims regarding homeowners insurance for 1.2 million California policyholders.

$55,000,000 Estimated Settlement Value - California Consumers, et al. v. The Columbia House

October 22, 2001 | CA Superior Court | Case No. 216699

Description

This was a nationwide class action case.

Columbia House is a music company which offers members the opportunity to join one or more "music clubs" which offer discounted CDs and cassette tapes. Columbia House sends uniform offers to prospective new members through direct mail campaigns and advertisements placed in popular magazines and newspapers. Each prospective new member is offered a certain number of CDs or cassettes for "FREE" or for 1¢ (the "enrollment package"). The offers state in small print that "shipping and handling" will be added, but fail to state the amount of the shipping and handling charges.

Upon joining the "club," the new member selects his or her "FREE" CDs or cassettes from a pre-determined list. Upon receipt of the enrollment package, the new member is billed a "shipping and handling" charge for each selection, often at a total charge of $30.00 or more.

Plaintiffs' Contentions:

Plaintiff alleged that defendant systematically deceived and misled consumers by (1) failing to disclose that the "shipping and handling" charge would be applied to each selection; (2) failing to disclose the actual amount of the charge which is known to Columbia House at the time the offer is made; (3) distributing letters to those who complained which failed to accurately identify the basis for the charges. In addition, plaintiff alleged the "shipping and handling" charge had no relation to any actual costs to ship or handle the merchandise, that defendant's charges were unreasonable and/or that said charges exceeded 80% of the actual cost of the free merchandise, thereby violating California law.

Defendants' Contentions:

Defendant denied any wrongdoing, denied that any consumers were deceived or misled, that the information regarding the amount of the charges was disclosed in the "New Members Guide" which accompanied the shipment of the enrollment package, that the "shipping and handling" charges were reasonable, did not exceed 80% of the actual cost of the product, and were consistent with competitors rates. Defendant contended that any consumer who did not want to pay the shipping and handling charge could simply return the merchandise within a 10-day no risk period.

Damages:

Excess charges paid by consumers for "shipping and handling" their enrollment packages.

$15,000,000 Estimated Settlement Value - California Consumers, et al. v. BMG Direct Marketing, Inc.

December 12, 2002 | CA Superior Court | Case No. 216700

Description

This was a California only class action.

BMG is a music company which offers members the opportunity to join one or more "music clubs" which offer discounted CDs and cassette tapes. BMG sends uniform offers to prospective new members through direct mail campaigns and advertisements placed in popular magazines and newspapers. Each prospective new member is offered a certain number of CDs or cassettes for "FREE" or for 1¢(the "enrollment package"). The offers state in small print that "shipping and handling" will be added, but fail to state the amount of the shipping and handling charges.

Plaintiffs' Contentions:

Plaintiff alleged that defendant systematically deceived and misled consumers by (1) failing to disclose that the "shipping and handling" charge would be applied to each selection; (2) failing to disclose the actual amount of the charge which is known to BMG at the time the offer is made; (3) distributing letters to those who complained which failed to accurately identify the basis for the charges. In addition, plaintiff alleged the "shipping and handling" charge had no relation to any actual costs to ship or handle the merchandise, that defendant's charges were unreasonable and/or that said charges exceeded 80% of the actual cost of the free merchandise, thereby violating California law.

Defendants' Contentions:

Defendant denied any wrongdoing, denied that any consumers were deceived or misled, that the information regarding the amount of the charges was disclosed in the "New Members Guide" which accompanied the shipment of the enrollment package, that the "shipping and handling" charges were reasonable, did not exceed 80% of the actual cost of the product, and were consistent with competitors' rates. Defendant contended that any consumer who did not want to pay the shipping and handling charge could simply return the merchandise within a 10-day no risk period.

Damages:

Excess charges paid by consumers for "shipping and handling" their enrollment packages.

Settlement of $5,800,000 - Mark West v. Prudential Property and Casualty Insurance Company

August 20, 1997 | CA Superior Court | Los Angeles, CA | Case No. BC195922

Description

Prudential issued homeowners insurance policies in California that protect homeowners against losses due to certain covered perils (e.g., fire), subject to the terms and conditions of the policy. The base amount of insurance on the policyholder's home is stated on the "declarations page" of the insurance policy as the "Coverage A Dwelling limit." Dwellings and certain other structures (collectively, the policyholder's "home") are insured at a dollar figure representing estimated "replacement cost."

In 1995, Prudential utilized a third-party computer program known as System 81 to estimate the replacement cost of policyholders' homes in California. System 81 estimated the replacement cost on the basis of a selected number of the physical characteristics of the home, including, among others, the style of the home, the type of construction of exterior and interior walls, the number and size of stories, floor area, bathrooms, type of flooring, type of roof covering, porches and garages.

Plaintiffs' Contentions Regarding Liability:

Plaintiff alleged that defendant systematically inflated homeowners' replacement cost calculations for homes located in California by, inter alia, attributing characteristics to homes which did not exist. These additional characteristics increased the replacement cost for the home, and thus increased the amount of premium paid by the homeowner. In addition, plaintiff alleged that Prudential concealed the System 81 printout from policyholders, denying them the opportunity to verify the accuracy of the information.

Defendants' Contentions Regarding Liability:

Defendant denied there were any characteristic errors on policyholders' System 81 printouts, and that if any errors were present, they did not necessarily increase the replacement cost calculation. Defendant also denied that it concealed any documentation from policyholders but rather left it to the Prudential insurance agents' discretion whether or not to provide a copy of the System 81 print-out to policyholders. Prudential further contended that agents should not be affirmatively required to furnish the System 81 print-outs to policyholders. Finally, Prudential alleged that the California Department of Insurance had primary jurisdiction of the dispute. The matter was referred to the DOI by the Los Angeles County Superior Court.

Damages:

Over-insurance of approximately 100,000 policyholders' dwelling coverage limits, resulting in excessive premiums wrongfully obtained by Prudential.

$500,000 Settlement Fund - Robert Davis, et al., v. Northeast Savings, F.A., et al.

February 26, 2001 | CA Superior Court | San Diego, CA | Case No. 718101

Description

This class action/§17200 lawsuit involved variable interest rate home mortgage loans that were originally sold by defendants Northeast Savings, F.A. and Nemac, Inc., dba Northeast Federal in the late 1980's. The loans adjusted on either a monthly (1/12 loans) or every six month (6/6 loans) basis. The interest rate for the loans was tied to the Weighted Average Cost of Funds for the Eleventh District Savings Institutions of the Federal Home Loan Bank of San Francisco (COFI Index). The loan agreements required defendants to adjust the loan payments by using the COFI Index last received from the U.S. Government through the U.S. mail prior to the date of calculation. The COFI Index is known in the industry to lag behind other traditional indexes, such as CD or T-Bill rates. Thus, when interest rates are falling, the COFI Index falls slower than the industry. During the 1990's, interest rates on home mortgage loans began to fall.

After adjusting the loans for several years, defendants Northeast Savings, and Northeast Federal sold the loans to various institutions, including defendants American Savings Bank (now Washington Mutual Savings) and First Fidelity Thrift & Loan Association. Northeast was later purchased by another financial institution, which was subsequently purchased by defendant Fleet.

At the conclusion of discovery, plaintiffs were only able to identify errors being made on adjusting the 6/6 loans involving less than 100 of the 373 identified class members.

Plaintiffs' Contentions Regarding Liability:

Plaintiffs contended that on adjusting the loans, defendants should have used the COFI Index that had been received no later than 30 days prior to the adjustment date. However, plaintiffs contended that defendants used COFI Indexes that had been received 60, 90 or more days prior to the adjustment date, and that these Indexes resulted in higher interest rates being used to adjust the loans than the lower, more recent Indexes. The higher interest payments also resulted in less of a principal balance reduction.

Defendants' Contentions Regarding Liability:

Defendants contended that the loans had been serviced properly, that there was nothing to indicate an improper interest rate had been used to adjust the loans, that plaintiffs and the class were regularly provided written notices setting forth the interest rate adjustments that were made, and that the lawsuit was barred by the statute of limitations.

Damages:

Higher interest payments, less principal balance reduction.

Settlement:

$500,000 settlement fund from which claims would be paid. Class members with the 6/6 loans received a set percentage of their original loan balance (a class member with an original loan balance of $300,000, for example, would receive approximately $1,400.00). Class members with 1/12 loans received $100.00. (The case settled after mediation before Judge J. Lawrence Irving, Retired).