Insurance Adjusters: Not Immune from Liablity for Negligent Misrepresentation

  California courts have consistently held that agents and employees of insurance companies, including insurance adjusters, do not owe a legal duty to the insured. Instead, liability for their actions lies with the insurer, so long as the agency was disclosed to the insured and the conduct complained of took place within the course and scope of such agency. Claims of negligence, therefore, fail against adjusters acting within the course and scope of their employment. But, what about the tort of negligent misrepresentation? Continue reading

Real Estate Broker Not Liable for Factually Accurate Statement in MLS

  Real estate brokers owe their clients fiduciary duties—they owe third parties, including adverse parties in a real estate transaction, only duties imposed by statute. The statutory duties owed to third parties include a general obligation of honesty, fairness, and full disclosure. A broker’s specific duties with respect to any listing or information posted with a Multiple Listing Service are specified in Civil Code section 1088. Continue reading

NIED Damages Unavailable to Sister Who Believed Brother Had Heart Attack

  In Thing v. La Chusa the California Supreme Court has held that a plaintiff “may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.”

 Scuba tank May a sister recover as a bystander for the emotional distress she suffered when she witnessed the tragic death of her brother while they were scuba diving when she erroneously believed at the time of the incident that her brother had a heart attack – but later learned her brother’s death was caused by a defective regulator?

  No. Thing requires a contemporaneous perception of what caused the injury. Since plaintiff sister did not meaningfully comprehend that a defective product caused the injury, she cannot satisfy the second Thing requirement. Fortman v. Förvaltningsbolaget Insulan AB.

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Counseling Session Tolls Statute of Limitations for Sexual Abuse Victim

  This case, Doe v. Doe, caught my eye because of the title. There are very few published cases entitled Doe v. Doe or Doe v. Roe. So, I had a look-see. The case is about the sexual molestation of a young parishioner by a Catholic priest and whether the case is time barred.

  There are no salacious or illicit details and it’s a tedious read — probably only of interest to the Catholic Church and its childhood sexual abuse victims – because of the tortured history of the statute of limitations. The case turns on the question of whether Insurance Code section 11583 operates to toll the statute of limitations so that, under the specific facts of the case, plaintiff’s action was timely filed. Continue reading

CA Supremes Repudiate Common Law “Release Rule” Re Joint Tortfeasors

   The California Supreme Court, in a unanimous ruling, repudiates the common law “release rule.” Under the rule, a plaintiff’s settlement and release of liability of one joint tortfeasor also releases from liability all other joint tortfeasors. The common law rule’s rationale is that there can be only one compensation for a single injury and because each joint tortfeasor is liable for all of the damage, any joint tortfeasor’s payment of compensation in any amount satisfies the plaintiff’s entire claim. Continue reading

Workers’ Compensation “Power Press Exception” Does Not Authorize Loss of Consortium Claim

   An employee, and his or her dependents, injured in the course and scope of employment is generally limited to workers’ compensation as the exclusive remedy for satisfaction of claims against the employer. There are, however, limited statutory exceptions that allow an injured worker to augment workers’ compensation benefits by bringing an action at law for damages against the employer.

   One exception is Labor Code section 4558, the “power press exception”, which authorizes an injured worker to bring a civil action for tort damages against his or her employer where the injuries were caused by the employer’s removal of, or failure to install, an operation guard on a power press where the manufacturer designed, installed, and required a guard.

   Does the power press exception operate to allow an injured workers’ spouse to file an action at law against the employer for loss of consortium? The California Supreme Court, in LeFiell Mfg. Co. v. Superior Court, has answered the question: “No.” Under settled principles of workers’ compensation law, the exclusivity rule bars a dependent spouse’s claim for loss of consortium.

First Circuit Follows Second re Loss of Consortium Claims

   I recently posted here that the Second Circuit held that for a loss of consortium claim related to an asbestos related injury, the claimant need only be married to the injured party when the disease is diagnosed. The First Circuit has followed suit in Leonard v. John Crane, Inc. The court made this additional observation in Leonard, because Leonard’s husband, John, and voluntarily dismissed his personal injury claim against Crane:

John’s dismissal of his cause of action against Crane has no impact on Sandra’s ability to pursue her loss of consortium claim.  They are separate causes of action. John’s dismissal was in any event without prejudice, and can have no arguable res judicata or collateral estoppel effect on Sandra’s loss of consortium claim.

Loss of Consortium Damages Available If Married When Disease Diagnosed

   In California, a spouse is permitted damages for loss of consortium for the personal injury or death of a spouse. The recovery for loss of consortium is limited to married couples.  Individuals in relationships, boyfriends and girlfriends, or even couples who are engaged but not married, are not entitled to such damages. Continue reading

4th Appellate District Recognizes New Tort: Intentional Interference with an Expected Inheritance

   In Beckwith v. Dahl, filed May 3, 2012, a panel of the Fourth Appellate District overruled the lower court which had sustained a demurrer to Beckwith’s cause of action for Intentional Interference with an Expected Inheritance (“IIEI”). In recognizing the tort for the first time in California, the court held that plaintiff must allege:

  1. That plaintiff had an expectancy of inheritance;
  2. There must be proof to a reasonable degree of certainty that, but for the actions of the defendant, the plaintiff would have received an inheritance;
  3. Defendant had knowledge of the plaintiff’s inheritance and took actions to interfere with it;
  4. The interference was by independent tortious means, i.e, the underlying interference must be wrong for a reason other than for the interference itself;
  5. Plaintiff suffered damage.

   The decision creates a high bar for plaintiffs. However, it creates a remedy previously unavailable and should be welcomed. Wrongful interference with an expected inheritance no longer will have the law as a shield.

  I consult with clients and accept cases involving probate matters and contracts to make a will, including cases involving Intentional Interference with an Expected Inheritance. For other types of cases I accept, please scroll my “Home” and “My Practice” pages. If you are seeking a legal consultation or representation, please give me a call at 818.971.9409. – Michael Daymude

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