Sacramento Car Accident Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED FACTS AND DEFENDANT'S SUPPORTING EVIDENCE ARE IMPROPER AND OBJECTIONABLE ON NUMEROUS GROUNDS AND SHOULD BE STRICKEN.

As plaintiffs demonstrate in their separately filed objections to defendant's evidence offered in support of defendant's undisputed facts, much of defendant's evidence is objectionable hearsay or is offered without foundation, or without a showing of personal knowledge, or violates the best evidence rule. The evidentiary items to which plaintiffs object should be stricken on the grounds stated for each item. Defendant's motion cannot succeed with the paltry unobjectionable evidence that remains, evidence which supports only the most basic notions about the nature of the case. The court should deny defendant's motion because it is not supported by competent evidence.

DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES SHOULD BE DENIED BECAUSE IT FAILS TO IDENTIFY, WITH PARTICULARITY, THE EVIDENCE SUPPORTING EACH ISSUE DEFENDANT WISHES TO HAVE ADJUDICATED IN ITS FAVOR.

Defendant's motion for summary adjudication of issues (Motion at page 34) fails to
identify with any particularity the evidence upon which defendant relies for each of the four issues it desires to have adjudicated in its favor. Rather, for each issue, defendant mechanically incorporates by reference Undisputed Material Facts Nos. 1 through 104 as if fully set forth herein. The rules (not to mention fundamental due process considerations) require that a defendant seeking summary adjudication separately identify each claim, cause of action, affirmative defense or issue of duty and each supporting material fact with respect to said claim, cause of action, affirmative defense or issue of duty in a two column format with citations to exhibits, titles, page numbers and line numbers. See California Rules of Court, rules 3.150(C),(d). Defendant has done none of this.

Continue reading "Sacramento Insurance Company Engaged In Bad Faith With Accident Victim, Part 7 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

THE COURT OF APPEAL'S PUBLISHED DECISION ON PLAINTIFFS' APPEAL FROM THE FIRST GRANT OF SUMMARY JUDGMENT IN THIS CASE AND ITS DETERMINATION THAT THE CASE PRESENTS DISPUTED MATERIAL FACTS THAT CAN ONLY BE RESOLVED BY TRIAL CONSTITUTES LAW OF THE CASE AND BARS A SECOND GRANT OF SUMMARY JUDGMENT IN DEFENDANT'S FAVOR.

In Sally Lawrence v. California Physicians' Service, 158 Cal.App.4th 452, 69 Cal.Rptr.3d 789, 2007 Cal.App. LEXIS 2083 [mod. January 22, 2008, with no change of judgment, ___ Ca.App.4th ___ (2008)], the Court of Appeal stated as follows: We conclude [Health and Safety Code] section 1389.3 precludes a health services plan from rescinding a contract for a material misrepresentation or omission unless the plan can demonstrate (1) the misrepresentation or omission was willful, or (2) it had made reasonable efforts to ensure the subscriber's application was accurate and complete as part of the precontract underwriting process.

Because both of these issues turn on disputed facts, the trial court's summary judgment ruling cannot stand. We also conclude a triable issue of fact exists whether Blue Shield engaged in bad faith, and that the Lawrences adequately alleged a cause of action for intentional infliction of emotional distress. We therefore reverse the judgment. Id., at pp. 459-460.

Defendant's present motion for summary judgment, of necessity, plows the same ground defendant covered in its first motion, i.e., to succeed, the present motion must address the same material issues that were relevant the first time defendant brought its motion. But the Court of Appeal has plainly declared that summary judgment is not appropriate or available in this case because, in its considered opinion, plaintiffs have already demonstrated the existence of disputed facts. Ibid.

Continue reading "Insurance Application Omissions Lead To Suit By Sacramento Accident Victim, Part 6 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

FACTS ESSENTIAL TO JUSTIFY OPPOSITION MAY EXIST BUT CANNOT, FOR REASONS STATED IN THE ACCOMPANYING EXPERT WITNESS DECLARATIONS, NOW BE PRESENTED. DEFENDANT'S MOTION SHOULD THEREFORE BE DENIED OR, ALTERNATIVELY, THE MOTION SHOULD BE CONTINUED TO PERMIT AFFIDAVITS TO BE OBTAINED AND DISCOVERY TO BE HAD.

Code of Civil Procedure section 437c, subdivision (h), provides in pertinent part as follows:
(h) If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or make any other order as may be just. The application to continue the motion to obtain necessary discovery may be made by ex parte motion at any time on or before the date the opposition response to the motion is due.

The decisions make it quite clear that this subsection of the statute is designed to guarantee due process and to ensure that the drastic remedy of summary judgment is not resorted to where, for stated reasons, the party opposing the summary resolution of a case has not been able to obtain the discovery and affidavits that would demonstrate the existence of triable issues of fact. See, e.g., Ambrose v. Michelin North America, Inc., 134 Cal.App.4 th 1350, 1353 (2005); Dee v. Vintage Petroleum, Inc., 106 Cal.App.4th 30, 34 (2003); Frazee v. Seely, 95 Cal.App.4th 627, 634 (2000); Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 (2001); Vanderbilt v. Superior Court, 105 Cal.App.3d 628, 637 (1980).

Continue reading "Husband And Wife From Sacramento Fight For Accident Coverage, Part 5 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

14. Plaintiff Bob Lawrence sustained disabling injuries in an automobile accident on March 19, 2001.

15. On June 5, 2001, Blue Shield mailed plaintiffs a letter informing them their coverage was cancelled retroactively to December 15, 2000.

16. Before rescinding the contract, Blue Shield had authorized surgery, treatment, care and physical therapy for plaintiff Bob Lawrence's injuries in an amount in excess of $457,000.00.

17. After rescinding the contract, Blue Shield paid for only a small portion of the surgery, treatment, care and physical therapy it had previously authorized for Bob Lawrence.

18. After the rescission the Lawrences were unable to pay the medical bills they had incurred or obtain the surgery, treatment, care and physical therapy which plaintiff Bob Lawrence required because they lacked the money to do so.

19. On December 15, 2000, and thereafter, plaintiffs could have obtained coverage under the health plan offered by plaintiff Sally Lawrence's new employer had they been denied coverage under the Blue Shield plan.

Continue reading "Insurance Company Rescinds Coverage To Sacramento Accident Victim, Part 4 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

STATEMENT OF FACTS

1. Plaintiffs submitted their application for a family health care services contract to Blue Shield in 2000 through insurance agent Kenny Shulman.

2. Blue Shield extended coverage to Sally Lawrence and her family commencing December 15, 2000.

3. Blue Shield conducted no investigation and made no inquiry beyond the application answers into whether the information Sally Lawrence provided on the application was accurate and complete before issuing coverage, and instead performed its risk assessment on the assumption the application contained no errors by assigning values to the risks disclosed.

4. Blue Shield did not make inquiry into the accuracy and completeness of Sally Lawrence's application answers and did not make any inquiry or investigation into the accuracy and completeness of her responses until February 8, 2001, when it referred plaintiffs' contract to its Underwriting Investigation Unit. .

5. The Blue Shield application's agent's certification required Kenny Shulman to ask Sally Lawrence, Bob Lawrence and Sammy Lawrence each question contained in the Blue Shield application, exactly as stated, to ensure that each oral answer was accurately set forth in the written application.

6. Kenny Shulman did not ask Sally Lawrence, Bob Lawrence and Sammy Lawrence each question contained in the Blue Shield application, exactly as stated, to ensure that each oral answer was accurately set forth in the written application.

7. Plaintiffs' Second Amended Complaint contains causes of action for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing and Intentional Infliction of Emotional Distress.

8. The California Court of Appeal, Fourth District, Division Three, determined that the three causes of action set forth in Plaintiffs' Second Amended Complaint are viable.

Continue reading "Sacramento Insurance Company Mistakes Injure Couple, Part 3 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

Plaintiffs' complaint against Blue Shield contains causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing and intentional infliction of emotional distress. Plaintiffs' primary contention is that Blue Shield engaged in prohibited post claims underwriting in violation of Health and Safety Code section 1389.5 when it waited s until after claims had been filed to look beyond the four comers of the application's answers to ascertain whether the answers Sally Lawrence provided were accurate and complete.

The trial court sustained Blue Shield's demurrers to plaintiffs' complaint and granted summary judgment. On appeal, the Fourth District Court of Appeal determined that the complaint's causes of action were viable and that Blue Shield was obliged to complete its medical underwriting and resolve all reasonable questions arising from the written application before issuing coverage. The court specifically determined that medical underwriting requires health care service providers to do more than simply assign values to the risks disclosed on the application. They must make reasonable efforts in every case to make inquiries outside the application and to answer all reasonable questions arising from the information provided on the application to make sure that a potential subscriber's application is accurate and complete. Blue Shield did not do any of that in this case, and plaintiffs sustained significant injury and damage as a consequence of that failure.

Continue reading "Sacramento Auto Accident Results In Insurance Lawsuit, Part 2 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

Plaintiffs' Opposition to Defendant's Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION
Blue Shield offered health care coverage to plaintiffs based on an on-line application which Blue Shield's insurance agent, Kenny Shulman, prepared and forwarded to Blue Shield after plaintiff Sally Lawrence delivered her paper application for individual family coverage to Mr. Shulman. Sally Lawrence understood that the application asked for only her health history, and she provided it. Had Blue Shield's paper application been clearer and less ambiguous, or had Mr. Shulman asked plaintiffs each question on the paper application as the application's certification section required, the on-line application which Mr. Shulman prepared and sent to Blue Shield would have been amended to include the health histories of Bob Lawrence and their son, Sammy Lawrence, and to accurately reflect the history and status of Sally Lawrence's irritable bowel disclosure.

Significantly, Blue Shield issued coverage (effective December 15, 2000) based on Mr. Shulman's incomplete and inaccurate on-line application. Had Mr. Shulman performed his duty, Blue Shield would likely have denied coverage, in which case plaintiffs would have obtained other coverage which would have been in effect on the date of Mr. Lawrence's March 19, 2001, automobile accident.

Continue reading "Insurance Company Denies Coverage To Sacramento Couple, Part 1 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

Starting with what plaintiff would have earned if not injured in the automobile collision and subtracting what she is able to earn now that she is partially disabled, the future lost income submitted to the jury was $347,352.00.

It was also established that because of plaintiff's partial disability, her ability to contribute household services was diminished by 8 hours a week. Projecting forward to age 65, Mr. Stevens testified that the economic value for the loss of those services was $220,064.00.

It is noteworthy that although defendant complains that the award of economic damages was excessive, her motion for a new trial is conspicuous by its failure to assert that plaintiff's expert analysis of economic loss was incorrect, no less any suggestion as to why that might be so. Simply because Dr. W. could find no medical reason why plaintiff was unable to work for the amount of time she claimed is no reason to set aside the jury's conclusion that plaintiff's witness had established such a medical reason for a past wage loss and future economic losses.

The Court Should Not Remit the Award of Damages

Clearly, the defendant is not happy with the jury's verdict and award of damages. A party's disappointment with the trial result is no reason for a court to issue a remittitur. Defendant makes no claim that the jury was improperly instructed, that evidence was improperly admitted, or that the jurors engaged in misconduct. Rather, defendant asserts because that a properly instructed jury that heard properly admitted evidence and, upon due deliberation, awarded substantial damages, the court should remit the award because defendant presented evidence at odds with the jury's resolution of this case. The contention is lacks merit and should be rejected. The motion for new trial should be denied.

Continue reading "Woman's Future Earnings Limited Due To Sacramento Auto Accident, Part 5 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

The Award of Damages was Not Excessive

Plaintiff's medical bills totaled $24,194.89. In her motion for a new trial, defendant does not contend those expenses were unreasonably incurred.

Although Dr. W. testified that, in his opinion, there was no reason why plaintiff was unable to work for the time she claimed to have been off work as a result of this accident, plaintiff presented extensive and essentially uncontroverted expert testimony that both explained and justified her absence from work and her future economic and non-economic damages.

Dr. Y., who had evaluated the plaintiff a week prior to the trial, concluded that plaintiff's condition had deteriorated since her last therapy treatment, that she needed therapy to strengthen her muscle and tissues around her neck, and that she would require careful monitoring and therapy for the remainder of her life. More specifically, she testified that it was reasonably certain that, during the next 3 to 6 months, plaintiff would require three to four osteopathic treatments a month at a cost of $1,920.

Dr. Y. projected that for the following 3 months, plaintiff would require two treatments per month at a monthly cost of $960.00 for a total of $2,880.00. She would also need physical therapy four times per month for 1.5 months, at $120.00 per visit, and then two times per month for a total cost of $3,960.00.

Continue reading "Defendant In Sacramento Motor Vehicle Collision Challeges Jury Award For Victim, Part 4 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

There Was Ample Evidence that Plaintiff was Seriously Injured in the Accident

Plaintiff presented as a woman who had no problems with her neck prior to being struck from behind by defendant. Both treating physicians, Dr. X. and Dr. Y. testified that the accident caused the injury to plaintiff's neck, a disc bulge in her C5 region. Dr. Z., a board certified neurologist, testified that plaintiff's injury was consistent with having been caused by a rear end accident. Not surprisingly, the defense produced an expert, Dr. W., who disputed those findings. Like a murder defendant who tells the jury that he didn't do it but if he did, it was in self-defense,

Dr. W. opined that plaintiff was not hurt in the accident, but if she was, it was minor. His credibility was quickly undermined, however, when he initially testified that plaintiff's post-accident ability to swim and snorkel at the time of the IME was evidence that she was not injured and then was later forced to concede that she had really quit swimming (although recommended by her treating doctor) a year earlier prior to the IME because of a severe allergic reaction to plaintiff's eye from the chlorine in the pool.

The jury heard both plaintiff's treating physicians and board certified neurologist testify and they heard Dr. W.'s testimony and found plaintiff's witnesses to be more persuasive. In her motion, defendant presents no reasoned analysis of any deficiencies in the testimony of plaintiff's witnesses.

Continue reading "Plaintiff's Medical Experts Confirm Sacramento Accident Victim's Injuries, Part 3 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

It is noteworthy that the defendant did not produce any eye witnesses to dispute Ms. Diaz's observations. The best that the defendant could say was that she wasn't sure if she braked and that she didn't remember hearing the screeching of tires that typically accompanies sudden braking. Not surprisingly, there was no evidence that the were any skid marks left by the defendant's tires.

Simply because no ambulance was called to the scene and Ms. Hayes drove herself home does not establish, as defendant seems to think it does, that this was a minor accident. It is not an uncommon event for several hours or more to pass before pain from the accident caused injury manifests itself. Moreover, in her motion defendant neglects to mention that her car was totaled, with more than $9,600.00 in damages. The force of the impact was so great that plaintiff's solid steel trailer hitch, which was bolted to the frame of the van, was cracked and pushed into the rear of the van sealing the rear door shut.

Defendant asserts that Dr. Kelkar's unrebutted biomechanical accident reconstruction testimony established that plaintiff could not have been injured as she claimed. No trier of fact is required to accept expert testimony as gospel, even if unrebutted. (In re Marriage of Duncan (2001) 90 Cal. App. 4th 617.) [A]s a general rule, provided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.] [Citation.] This rule is applied equally to expert witnesses. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 890.)

Continue reading "Eyewitness To Sacramento Auto Accident Helps Victim, Part 2 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

Plaintiff's Opposition to Defendant's Motion for a New Trial
The Court Should Not Grant a New Trial Because the Jury's Verdict is Amply Supported by the Evidence

Motion for a New Trial Should Not be Granted Unless the Court is Convinced that the Jury Clearly Should Have Reached a Different Verdict

Code of Civil Procedure §657 provides, in pertinent part, that a trial court should not grant a motion for a new trial on the grounds of insufficiency of the evidence, "unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the... jury clearly should have reached a different verdict or decision." In other words, while a trial court has wide discretion in ruling on a motion for a new trial, the use of the word clearly in §657 makes it evident that such a motion should not be granted unless the trial court is firmly convinced that the jury got it wrong. Simply put, there is no basis for such a finding in this case.

This was No Minor Accident

Citing her own motion, defendant complains that the jury verdict should be set aside because this was a minor accident, making it seem like a fender bender. Not so. Defendant seems to have forgotten, or at least forgotten to discuss, that there was an independent witness, Ms. Vilma Diaz, who had no prior relationship with either party, who witnessed the entire automobile accident unfold in front of her.

Continue reading "Sacramento Auto Accident Results In Serious Injuries, Part 1 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

LEGAL ISSUES cont.

The defendant, if he was negligent, is solely responsible for the initial injury; liability for the defendant's enhanced or aggravated injury is properly apportioned between the plaintiff the defendant and subsequent healthcare providers in accordance with the rules of comparative fault and Civil Code § 1431.2.

A second legal issue is evidence of the financial interest of the plaintiff's expert witnesses, including their fee arrangements with plaintiff's counsel. The defendant will provide evidence of financial ties between plaintiff's physicians and attorney to demonstrate an ongoing business relationship between plaintiff's physicians and attorney.

A witness may be examined on the issue of possible bias, which includes a financial interest in the case. (See: People v. Mickle (1991)54 Cal.3d 140, 168; People v. Munoz(1984) 157 Cal.App. 3d 999, 1010.) Evidence Code § 780(f) allows for the interrogation or questioning of a witness to determine the credibility of a witness, including the existence or nonexistence of a bias, interest or motive. Whether a treating doctor has a lien in the matter is indicative not only of his pecuniary interest in the case but goes to the issue of credibility and bias and the jury is entitled to know of such financial interest. If the plaintiff loses, the doctor does not get paid.

Continue reading "Automobile Accident Forces Sacramento Victim To Battle Defense Medical Experts, Part 5 of 5" »