May It Please The Court
Quote of the Day - It's funny to me that people find other people getting coffee really interesting, or walking their dog in the dog park.
No Recovery For Slip And Fall While Walking Diogi The Dog
Is a dog park a trail? Why would you care?
If you're walking your dog in a dog park, slip and fall and get injured, you're going to care. Especially if you want to sue the city that maintains the dog park. You should first understand that cities and counties have immunities for injuries that occur on trails because you're supposed to understand that there's an inherent risk in using the trail, and you're more likely to slip and fall there than on a city sidewalk, where it's more likely the city or county may be liable.
For Anni Amberger-Warren, she found out the hard way that she couldn't sue the City of Piedmont. The court of appeals ruled that the dog park (at least the off-leash section) looked more like a trail than a city sidewalk, and denied recovery for Ms. Amberger-Warren's injuries.
So, if you're out there walking your dog, be careful. It's a jungle.
U-Haul's Refueling Fee May Amount To Unfair Competition, But Two Charges Dismissed
Just after I graduated from college, I didn't own a pickup, and I couldn't afford to use a moving company like my parents did as we moved up and down the East coast. Instead, I turned to U-Haul. It worked out pretty well; the small truck was able to handle all of my worldly possessions: my stereo system and speakers, my bricks and wooden shelves, telephone spool table and beanbag chairs. Oh yes, my record collection in milk crates.
As you can probably guess, many others used U-Haul, too. One other U-haul user was Leonard D. Aron. Unfortunately, Mr. Aron was not satisfied with one aspect of U-Haul's contract: the $20.00 refueling fee and $2.00 per gallon charge. I don't remember whether I paid that fee the several times I used U-Haul some 25 years ago, but Mr. Aron did, and he did something about it. He sued.
U-Haul discloses the fee in its contract and gives customers the option of avoiding the charge by refueling the truck before returning it. Even so, Mr. Aron alleged that the fee was unconscionable because U-Haul used the fuel gauge to measure the amount of fuel, which he believed was an inaccurate method of measurement. Under California law, it may be, but that's the province of the court, not this blog.
U-Haul argued against Mr. Aron's allegations, pointing to a statute that allowed rental car companies to charge refueling and gas fees for vehicles returned with less fuel than at the time of rental. Unfortunately for U-Haul, it's not a rental car company It rents trucks. U-Haul did succeed, however, in dismissing several other of Mr. Aron's claims for unfair business practices and fraudulent business practices.
This case is in its beginning stages, and those customers of U-Haul who rented trucks over the last four years may end up getting a coupon or some other token of the court's appreciation for paying the extra twenty dollar fee, but that's still up in the air.
Coast to Coast Internet Radio Takes a Swing at the Big LeaguesIt's October and it is that time of season again! You can just about smell the hot dogs and cracker jacks in the air! Itís the baseball Playoffs! Baseball is not only Americaís favorite pastime, but a favorite amongst our two guests. Join me and my fellow Law.com blogger and co-host, Bob Ambrogi, as we welcome attorneys and baseball enthusiasts, Howard M. Bloom, a partner in the Boston office of Jackson Lewis LLP and Michael Kun, a partner at Epstein Becker & Green in Los Angeles, to discuss their book, The Baseball Uncyclopedia: A Highly Opinionated, Myth-Busting Guide to the Great American Game. Donít miss out as Howard and Michael shatter the myths of baseball.
Does Your Insurance Policy Cover Your Business Contracts?
You're in business, and you've probably signed a contract or two or three that requires you or your company to indemnify someone else or another company The indemnity contract goes something like this: sure, I'll buy your product or service, but if something goes wrong or someone gets hurt, you will defend and indemnify me if I get sued.
But will your insurance company stand behind your promise? At least for the non-profit Heritage Housing Development, Inc., Westport Insurance Corporation won't. Heritage issued bonds to raise funds, and then apparently defaulted on repaying those bonds. Heritage and members of its Board of Directors were sued, and they turned the claim over to Westport, which denied coverage.
Westport's policy specifically excluded coverage for contractual indemnity, so it was able to defeat Heritage's claim for coverage.
Your policy, however, may include coverage for business contracts, surprisingly enough, and you may not have ever thought to submit a claim to your carrier when you're required to defend and indemnify someone else. Check your policy carefully and talk to your insurance broker. You may be required to list the specific contracts you enter into. But when a lawsuit comes, you may be grateful you did your homework.
The directors of Heritage Housing probably wish they had.
Insurance Company That Slept On Its Rights Denied Remedy
Once an insurance company rejects a claim, it can't later try to jump into the lawsuit and salvage what may have been a mistake. Zurich insured CalTrans for any negligence arising out of its highway designs. One of those designs apparently led to several deaths and injuries. CalTrans tendered the claim to Zurich, who promptly denied coverage.
During the course of the inevitable wrongful death litigation that arose from that accident, the parties (several years later) realized that there probably was coverage under the policy and elected to settle. For $29 million. CalTrans paid part of that claim and then assigned the remainder of the judgment to the Plaintiffs who were set to sue Zurich and recover just over $27 million.
Zurich, sensing a problem, sought to intervene in the original lawsuit in an attempt to have some effect on the settlement and ultimate judgment it would eventually have to pay. In the case entitled Noya v. A.W. Coulter Trucking, the trial court and appellate court denied Zurich's motion to intervene, saying it was too late. If Zurich had cared that much, the court reasoned, then it should have defended CalTrans in the beginning or tried to become involved much earlier.
Just goes to show you. When money matters, insurance companies pay attention. It will be an expensive lesson to learn.
Bodily Injury Excluded From Residential Real Estate Arbitration Requirement
So you bought a house. Everything is great until you've been there awhile, and you start finding that you're sick, and you think it's due to the house. You want to sue, but you read the purchase agreement and see that it contains a mediation/arbitration clause. Those provisions are in the standard California Association of Realtor contract, typically used to buy a house here in California.
Do you have to mediate?
Not according to this recent opinion, Gravillis v. Coldwell Banker, which limits those provisions to contractual claims arising out of the purchase, and excludes claims for bodily injury. You can go straight to court and don't have to arbitrate.
Court Rules Insurance Reserves Discoverable In Bad Faith Cases
When an insurance carrier initially receives a claim from its insured, it typically sets a "reserve" of money that it anticipates it may have to pay to satisfy the claim. These reserves are required by many insurance commissioners, and particularly here in California. That way, the state can be assured that the insurance company is adequately capitalized to handle the amount of insurance that it issues to its policyholders.
There are other reasons, too. Claims adjusters try to pay less than the amount "reserved" for the claim in order to demonstrate their value to the insurance company. The greater the differential between the reserve and the amount paid to satisfy the claim, the more valuable the claims adjuster. That value sometimes translates directly into raises, bonuses and other perks to the claims adjuster.
There's a dark side to the whole concept, however. Given the financial pressure on claims adjusters, they sometimes get stubborn and either don't pay or try to underpay legitimate claims. The interests of the insurance company and claims adjuster in saving money are not in line with the interest of the policyholder to be fully compensated for the loss.
That conflict between the insurance company and the policyholder frequently leads to charges that the insurance company's underpayment or failure to pay amounts to bad faith, exposing the insurance company to a lawsuit coupled with a demand for hefty punitive damages.
Such is the case in the battle between Bernstein v. Travelers Insurance Companies, Case No. No. C 05-01528 SBA (WDB), a case recently decided in the United States District Court for the Northern District of California. Unfortunately, the case isn't available on the Northern District's website, but here's a short summary from the case itself: "the plaintiffs [policyholders] assert that the defendants [Travelers Insurance] made unjustifiable demands for proof of claims during the claims processing period. The defendants also allegedly delayed payments."
So Plaintiff/Policyholder Ronald Bernstein sued The Travelers for bad faith, and then sought to find out how much Travelers had set aside as a "reserve." Travelers resisted the discovery request, forcing Bernstein to bring a motion to compel.
In a wonderfully written opinion comparing federal civil procedure with California substantive insurance law and procedure, the Court found that the policyholder had the right to know how much Travelers "reserved" when the claim was filed. Bernstein will then most likely be able to argue that the alleged delays and underpayments by Travelers were unjustified and Travelers may very well end up with a bad faith judgment, depending on how reasonable the final payment of the claim was compared to the initial amount reserved.
Round One In Trademark Battle Goes To Google; Roadmap For Challenge Set
Rescuecom, a company that's giving the Geek Squad a run for its money, sued Google last year because the 800-pound gorilla search engine allowed others to buy the name "Rescuecom" for its AdWords program, despite the real Rescuecom's trademark on the name. Filed in federal court, the lawsuit was dismissed by the court because Rescuecom apparently didn't actually use the trademark.
According to the Court, "there is no allegation that defendant places plaintiff's trademark on any goods, containers, displays, or advertisements or that its internal use is visible to the public."
That omission makes it difficult to win a trademark case. It's one thing to have one; it's quite another to use it in the stream of commerce according to the Court. Defendant Google argued that it could use the Rescuecom name to trigger delivery of AdWords that feature companies who compete directly with Rescuecom. Google claimed "fair use" of Rescuecom's name because it was only using Rescuecom's name internally in order to generate its AdWords when it also featured a link to Rescuecom's site.
The Court argued it was no different than a grocery store grouping competing products together on a shelf, which we all should know is not a trademark violation. There's just one difference; when I go to the grocery store, I don't tell the store manager that I want to see a particular product and then expect to have the manager show me the entire range of products. I expect to get what I asked for. Google's argument is that it gives you that and more - if you don't like it, I presume, the company would tell you to use another search engine.
Easy for Google to say.
These cases in the Second Circuit are all over the map, and you can look for this case to be appealed. Certainly the next such case won't be filed in the Second Circuit. Eventually, the matter will make it to the Supreme Court and we'll get some definitive law. In the meantime, if you want visibility on the Internet, start a blog.