THE GAVEL A QUARTERLY PUBLICATION of the

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1 OCTLA THE GAVEL A QUARTERLY PUBLICATION of the Orange County Trial Lawyers Association Nuts & Bolts Biting the Bullet Medical Bills in a Post Howell-Corenbaum World Statute of Limitations Tolling in Medical Malpractice Mediation Benefit or Burden? Brickner s Bits: Dullsville Words of Wisdom In-Depth Analysis tips for obtaining success at trial creating an effective policy limits demand letter MEET THE OCTLA BOARD [SEE PAGE 5] VOLUME 17, NUMBER 2 SPRING 2014

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3 The GAVEL Volume 17, Number 2, Spring 2014 OCTLA OFFICERS President Casey R. Johnson President-Elect Ted B. Wacker st Vice President Vincent D. Howard nd Vice President H. Shaina Colover rd Vice President Geraldine Ly Secretary B. James Pantone Treasurer Jonathan Dwork Parliamentarian Jerry N. Gans BOARD OF DIRECTORS Melinda S. Bell Anthony W. Burton Brent W. Caldwell Darren J. Campbell Cynthia A. Craig Robert B. Gibson T. Gabe Houston Paul E. Lee Kevin G. Liebeck H. Gavin Long Solange E. Ritchie Sarah C. Serpa Adina T. Stern Douglas B. Vanderpool Janice M. Vinci Atticus N. Wegman Immediate Past President Scott B. Cooper Executive Director Janet Thornton Editor Sarah C. Serpa Advertising Janet Thornton Graphic Designer Primary Design Printing The Wolf Printing Co OCTLA Gavel OCTLA s Mission: To protect the rights of people who have been harmed by the wrongful acts of others, by providing superior education and training for attorneys, access to the collective resources, knowledge, and experience of our members, and promotion and support of laws which correct injustice and protect access to the civil justice system. CONTENTS columns 5 Editor s Commentary: Speaking Up About the Obsolete Sarah C. Serpa, ESQ. 7 President s View: Spring Has Sprung Casey R. Johnson, ESQ. features 6 OCTLA 2014 Top Gun Nominations Form 15 OCTLA New Members 24 OCTLA Tidbits & Announcements 26 OCTLA Photo Library 43 OCTLA Verdicts & Settlements 49 OCTLA Calendar of Events in-depth analysis 8 Tips for Obtaining Success at Trial Daniel J. Callahan, ESQ. 12 Tips for Creating an Effective Policy Limits Demand Letter Ronald J. Cook, ESQ. nuts & bolts 16 Statute of Limitations Tolling in Medical Malpractice Thomas D. Weaver, ESQ. 17 Biting the Bullet: Medical Bills in a Post Howell Corenbaum World Lawrence A. Strid, ESQ. 23 Mediation Benefit or Burden? T. Gabe Houston, ESQ. 36 Brickner s Bits: Dullsville Hon. David Brickner, RET. The Gavel is published quarterly at a subscription rate of $50 per year. Periodicals postage paid at Lake Forest, California. Copyright 2014 Orange County Trial Lawyers Association. All rights reserved. Reproduction in whole or in part without written permission is prohibited. POSTMASTER: Send address changes to The Gavel, Moulton Parkway, #135, Laguna Hills, CA The GAVEL is a publication of: ORANGE COUNTY TRIAL LAWYERS ASSOCIATION Moulton Parkway #135, Laguna Hills, CA PHONE FAX Editor: Sarah C. Serpa Executive Director: Janet Thornton Disclaimer: OCTLA does not endorse or recommend other than those officially endorsed by OCTLA any individual or company it mentions in its magazine. Any business conducted is between the member and the individual or company. 3

4 The DeVinney & Dinneen Vocational & Economic Services Terrance Dinneen, M.S. C.R.C., C.E.A. For those cases in which Employability and Economic Losses are an issue We can provide the answers. Certified in both Rehabilitation and Economics Personal injury, wrongful termination, divorce, earning capacity, present value Extensive trial experience in both State and Federal Courts in California, Nevada and Oregon 25 years of practice and experience in Southern California Toll Free Serving the Nevada, California & Oregon area since 1976 Wolf Printing Company your Gavel printer Fast high speed printimg, black/white or color Efficient free pick up/delivery, always on time Distinctive quality stationery and promotionals west santa ana street, anaheim, ca Advertisers Index by Services Offered Annuities and Structured Settlements Patrick Farber Settlements Broker Ringler Associates James Brady Kaas Settlement Consulting Appeals and Writs Donna Bader Court Reporting Services Jilio-Ryan Hunter & Olsen, Inc Employment and Wrongful Discharge Law Law Offices of Charles Pernice Exhibits and Presentation Services Executive Presentations MotionLit Video Group Court Graphix CSC Anatomy Arts Expert Services DeVinney & Dinneen Kars Advanced Materials, Inc Nolta Construction Consulting OHM Corp Traffic Engineer Wm. Kunzman Insurance Broker Aragon-Haas Legal Associations Public Law Center Marketing Services Kevin Brown Legal Marketing Mediators & Arbitrators JAMS The Resolution Experts ADR Services, Inc Judicate West Chris Mears Mediation Medical Services Dr. Gregory Fisher, Medical Expert Doctors on Liens, Inc Personal Trainer Sarah Condor, Esq Plaintiff Legal Services Callahan & Blaine Hodes Milman Liebeck Mosier, LLP Klein & Wilson Shernoff Bidart Echevarria Bentley Howard Law PC Bisnar Chase Consumer Attorneys LLP Printing Services Wolf Printing Company Private Investigations C. Jackson Investigations Workers Comp. Legal Services Thomas F. Martin Gary E. Skawin

5 Guidelines for Manuscript Submission The Gavel accepts unsolicited manuscripts for consideration. Articles are judged on the basis of research, writing, topic, and interest to membership of OCTLA. The Gavel follows a modified version of the California Style Manual for legal citations. Manuscripts submitted should follow those rules as closely as possible. The Gavel prefers authors to avoid footnotes or endnotes, but such use will not be a basis for declining to publish an article. Authors should submit a copy of the article on disk or via , preferably in Microsoft Word format. Please include a photo and brief biography with all submissions. to: The Gavel retains copyright on all articles. The Gavel freely grants permission to others to reprint the article, upon their agreement to acknowledge the copyright. The editors may make editorial changes to an article, without changing its substance. Submissions to The Gavel are subject to editing. Editorial decisions are based on writing quality, subject matter, potential interest to The Gavel readers, and other concerns the Editor may deem relevant in her sole discretion. The views expressed in the content of The Gavel are those of the authors, and may not be reflective of the views or policy of the OCTLA, its board of directors, and/or its membership. The content of The Gavel shall not be construed as legal advice. The articles, commentary, advertisements, and/or any other content contained herein are the opinions of the authors, and are not intended to be relied upon as legal advice. The views, positions, interpretations of law and arguments of the authors herein are theirs alone, and no endorsement by the OCTLA, its board of directors, and/or its membership should be inferred by virtue of their publication in The Gavel. OCTLA Gavel Speaking Up About the Obsolete Editor s Commentary J udge Richard Posner recently addressed the age-old hearsay rule in an opinion on a criminal case involving utterances during a 911 call. Two exceptions to the hearsay rule were at issue: the excited utterance and the present sense impression exceptions. The utterances during the 911 call included a woman relaying that an aggressor had a gun. The statements were made admissible under these two exceptions, and the defendant/ alleged aggressor was convicted of being a felon in possession of a firearm. Posner noted in his opinion that the 911 call was hearsay and doubted whether either the excited utterance or present sense impression Sarah C. Serpa, esq. exceptions should apply. He reasoned that the rationale behind the present sense impression exception is contrary to recent studies. He noted that such studies conclude that less than one second is needed to fabricate a lie. He offered an example that it would be very easy for him to immediately lie about whether, as a cat person, he believed a dog he just met was beautiful. Posner went on to question the excited utterance exception on similar grounds, writing, the exception for excited utterances rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas. Posner stated (Continued, see Editor, page 48) OCTLA 2014 Officers and Board of Directors Front Row (left to right): Geraldine Ly, Scott Cooper, Casey Johnson, Ted Wacker, Vincent Howard. Second Row: Anthony Burton, Sarah Serpa, Jerry Gans, Jim Pantone, Jonathan Dwork, Adina Stern. Third Row: Brent Caldwell, Paul Lee, Janice Vinci, Cynthia Craig, Melinda Bell, Solange Ritchie. Top Row: Atticus Wegman, Douglas Vanderpool, Gabe Houston, Rob Gibson, Darren Campbell, Gavin Long. 5

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7 Spring Has Sprung Although we are only a quarter of the way through 2014, OCTLA continues to make good on its ambitious agenda living up to its theme for the year OC Justice: Access and Accountability. On May 6, 2014, the Consumer Attorneys of California will host their annual Justice Day in Sacramento which provides attendees with the opportunities to meet with legislators to discuss issues facing California consumers. The focus of this year s meetings will again be on restoring muchneeded funding to California s courts. While legislative changes to secure consumer protections in specific areas remain important, the ultimate impact of any such protections is diluted, if not completely eroded away, if consumers are denied the opportunity to have their matter timely heard in court. Without access to courts, accountability will be denied. I strongly encourage everyone reading this column to attend Justice Day. There is strength in numbers. For more than five years, OCTLA has sent one of the largest contingencies to Justice Day, and we plan on continuing that tradition this year. Another tradition that OCTLA is excited to continue is our reception the night before Justice Day. This year, OCTLA s reception falls on the evening of May 5, so please join us for a Cinco de Mayo celebration at Vallejo s (located 1100 O Street in Sacramento). Due to the Cinco de Mayo holiday, space will be limited, so please RSVP to Register online to attend Justice Day at See you in Sacramento! Signatures have been gathered and everything is on track for the Troy and Alana Pack Patient Safety Act to appear on the November ballot. California voters will be given the opportunity to right injustices President s View Casey R. Johnson, esq. that have persisted for nearly 40 years, while increasing patient protections through prescription drug monitoring and drug testing of doctors. You can guarantee to hear more about this in coming months and look for additional information and updates on our website. Speaking of our website, by the time this column goes to print, OCTLA will have launched its new and improved website. More than two years in development, octla.org has been complete redesigned to provide members with easier access to even more information than ever before maximizing the benefit of OCTLA membership. The new Forum will replace the old bulletin board and provide members with instant access to the collective wisdom of the entire membership or daily digests of members hot topics of conversation. Stepby-step tutorials will be available on the website to help answer questions about the new functionality of the website. Though change is never easy, OCTLA s new website will be a huge asset to all of our members for many years to come. Looking forward to November, and OCTLA s annual Top Gun Awards Dinner and Charity 7 Auction, OCTLA has selected High Hopes Head Injury Treatment Center as the beneficiary of this year s silent and live auction. Last year OCTLA raised more than $64,000 for charity, and we hope to meet or exceed that figure this year. High Hopes was founded in 1975, as the first non-profit organization in the country to exclusively serve the needs of brain injured adults and their families. By crafting individualized treatment plans to serve its patients through physical programs and therapies, speech therapy, cognitive retraining, vocational training, occupational therapy and independent living classes, High Hopes has enjoyed tremendous success in helping its patients maximize their level of functioning and independence. High Hopes is recognized as a leader in the field of brain injury treatment and, through the generous support of donors, has been able to amass a facility complete with the most advanced and effective therapy machines available. High Hopes is one of just a few treatment facilities in the country that have two Lokomat Training machines which help individuals with brain injuries relearn to walk. In Orange County alone, 2,000 people will suffer a non-fatal brain injury in With the average lifetime cost of medical care and rehabilitation for someone with a brain injury estimated at $7 million, the need for affordable brain injury treatment has never been greater. Of the 70 patients currently treating at High Hopes, 69 receive some sort of scholarship/charitable assistance in order to participate in the program. OCTLA looks forward to working closely with High Hopes in the coming year to help High Hopes continue to provide cutting edge brain injury treatment and expand its (Continued, see President, page 34)

8 As all experienced trial attorneys know, success at trial does not come easy. It is the product of hard work, garnished with occasional splashes of brilliance. Preparation, preparation and more preparation is the blueprint for success. True, good facts and good law go a long way toward producing good results. Assuming everything is equal, the trial team that is better prepared and more sensitive to jury attitudes and beliefs is more likely to prevail. For purposes of this article, assume that both sides have diligently prepared their cases for trial. All sides have deposed all prospective witnesses, collected the necessary documents, researched the relevant law, and arranged for competent witnesses to support their version of the facts. In this scenario, what often separate winners from losers is the mode of presentation to the trier of fact. Develop a Theme For the most part, jurors are everyday people, with basic everyday values, i.e., honesty, loyalty, stability, fairness and a deep desire to do the right thing. Sometimes, these social mores conflict with the strict interpretation of the law. In such cases, juries will often latch on to an argument that will allow the community s social values to prevail. OCTLA Gavel Tips for Obtaining Success at Trial Daniel J. Callahan is the Managing Partner of Callahan & Blaine, Santa Ana, California. Mr. Callahan obtained a jury verdict of $934 million in the Beckman v. Flextronics case, which to date remains the largest jury verdict in Orange County history. Mr. Callahan was named as a Trial Lawyer of the Year by California Lawyer Magazine and twice by the OCTLA. He has been listed in the Top 50 Orange County Super Lawyers from 2004 to present and in the Top 10 Southern California Super Lawyers in In-Depth Analysis Daniel J. Callahan, esq. Attorneys should review the facts of their case and develop a theme to argue to the jury. This theme should be consistent with the jury s preconceived notions of fairness and justice. Told at the end of trial that they must follow the instructions given them, jurors often ignore the instructions that do not coincide with their fundamental beliefs. In such cases, jurors may choose to rely on only those instructions that justify a result which leaves them feeling they have done the right thing and fulfilled their civic duty. Thus, it is imperative to match one s arguments to the community s existing social mores. An attempt to change the fundamental viewpoints, even through brilliant, well reasoned argument, is a sure ticket to failure. Rather than seek to change the jury s values, one needs to fit the facts of the case squarely into a theme falling within the jurors pre-conceived notions of justice. Do not wait until closing argument to develop a theme. By that time, 8 the case has already been won or lost. The theme must be developed during the early pre-trial stages of litigation so supporting evidence can be elicited during the discovery phase. The theme should not be intricate or confusing. It should be simple and compelling, i.e., justifiable reliance v. an obscure technical legal defense; David v. Goliath; loyalty v. betrayal; honesty v. deceit. Once chosen, the theme should be presented to potential jurors immediately. Effective Voir Dire During voir dire, the jury is actively watching trial counsel, his or her staff, the court staff and everyone in the courtroom. This is the time when jurors eagerly search for an understanding of what is to follow. Selection of a jury panel gives counsel an opportunity to impress the panel with her own presence, memory and command of the courtroom. If a juror is impressed with what she sees, she is more likely to become receptive to the themes of the case espoused by the attorney. One way to impress the jury is not to bore the jury from the outset. On too many occasions, I have seen attorneys do their voir The theme should be consistent with the jury s preconceived notions of fairness and justice dire examination in a lock step manner. For example, they will start with juror number one, ask five questions, do no, if any, follow up, and then proceed to juror number two and consecutively down the line with the same five questions. By the time the counsel has gotten to juror number three, the jurors have lost interest. Each has learned what the questions are and what an acceptable response would be. Nothing of significance concerning a juror s attitudes and (Continued, see Success, page 10)

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10 Success (continued from page 8) beliefs have been elicited. This progression continues through to the last juror when the jury panel can then arise from their combined slumber. The process I have just described does not generate positive feelings in the jury towards the examiner. Often, quite the opposite. There is a better way, however. An effective examination will keep all the jurors on their toes. This can be accomplished by bouncing from one juror to another in no predictable pattern. The jurors realize that they can be called at any moment. For example, going from juror number eight to juror number two, to juror number twelve, and back to eight, leaves them with the understanding that they can be called on at any moment. Also, the questions to the next juror may very well ask if they agree with an earlier juror s response to a prior question. Now, the jury knows that their name can be called at any time and they may be asked questions about another juror s response. The result is an attentive jury. This is in stark contrast to the boredom, the lock step approach produces. Although some courts do not allow an attorney to refer to the jurors by name but only by their number, where courts do allow counsel to refer to the jurors by their name, it is good practice to memorize their names. With some practice this can be easily done when the jurors are first called to join the panel and during the court s obligatory instructions to the panel before counsel is allowed to voir dire them. As with all people, the jury is impressed when the attorney, not only bounces from one to another juror with the examination, but does so by referring to each juror by his or her own name. The impression now left with the jury is that the counsel is very competent, engaged in the process and someone they can rely upon to present an effective and interesting case. The questions attorneys ask during voir dire can alert the jurors to what is coming. Asking potential jurors if they have ever had an opportunity to judge another person s credibility and whether they believe they can differentiate between a lie and the truth, makes jurors aware that the case is likely to have conflicting testimony. This becomes the foundation for the theme of honesty v. deceit. Questions to the jurors about whether they had any moral, philosophical or religious reason that would inhibit their willingness to award large compensatory or punitive damages lets the jury know they will be making decisions regarding high numbers and evil conduct. Later, the jury will be more susceptible to supporting a high award and will be watching for evil conduct when it arises at trial. This pre-conditioning alerts individual jurors to be on the lookout for evidence that 10

11 may fall within a given theme. It can also be used by counsel to obtain a pledge from the jurors that they will act in accordance with counsel s wishes if the evidence comes forward as suggested. For example, counsel can ask the jurors if the facts and law support one result, would you work during deliberation to convince the other jurors of your position s merit and factual interpretation? In so doing, trial counsel creates allies and advocates during deliberations that can turn the tide in counsel s favor. Likewise, if a juror states that he or she will follow the law as instructed, it empowers the other jurors to remind that juror later of the pledge made to counsel. The bottom line on jury selection is that it should be a pre-conditioning of the jury to the themes that you feel will arise in your case. Then, when the evidence does appear, the jury will recognize its significance and will fit it neatly into counsel s case theme. While many treatises advise counsel not to precondition the jury during the voir dire, preconditioning the jury is exactly what a good trial lawyer does. Opening Statement The opening statement also is extremely critical. After voir dire, this is the first time that the jury fully learns what the case is about. Even though jurors are instructed that a lawyer s comments during opening statement are not evidence, studies show that jurors overwhelmingly form opinions after opening statement. Moreover, nine times out of ten those opinions will not change. A juror, like anyone else, likes to be right. Based upon opening statement, jurors form opinions about what happened, who was right, and who was wrong. Jurors use those opinions to filter the evidence presented to them. In a typical trial, there are several issues in serious dispute with evidence going both ways. If the juror has made a preliminary determination after opening statement of the merits of the controversy, that juror will place greater emphasis on the facts supporting the juror s preliminary opinions and ignore evidence that is inconsistent with his or her pre - established viewpoint. Thus, opening statement is critical. True, a Perry Mason or Matlock type confession on the stand will sway jurors to change their minds, but that rarely happens. Defense counsel does have a right to defer opening statement and deliver it at the commencement of defense s case. This strategy, however, is an egregious mistake. By the time the defense has an opportunity to call its witnesses in its casein-chief, the case is over in the juror s mind and nothing short of witness stand confession is going to sway the juror s opinions. Since the opening statement is so important, it must be delivered in a concise and compelling manner. Opening statements must be clear and to the point. The statement should be put in simple terms and rely on fundamental concepts. A lawyer should never seek to impress the jury with his apparent intelligence and counsel s use of big words just to impress the jury will often have the opposite effect. Jurors are turned off by pretentious attorneys who have a better-than-thou attitude and the client s case will suffer because of the jurors distaste for the lawyer. A good opening statement will lay out the facts, both chronologically and on an issueby-issue basis. Presenting an opening statement is no more and no less than telling a compelling story. It is often said that a picture is worth a thousand words. A corollary to that is a video maybe worth millions. As we discuss in more detail below, use of technology in displaying evidence to the jury during the opening statement can have a lasting, positive impact. Often courts will allow exhibits to be shown to the jury during opening statement, especially if they have already been stipulated for admission. Similarly, some courts will allow limited excerpts of video depositions of opposing parties to be shown during opening statement to the jury. You should seize upon this 11 opportunity if available, as it functionally turns your opening statement into a presentation of irrefutable facts to support your case. In fact, presentation of video deposition testimony of your adversary during your opening, will often color the jury s view of this individual and affect his credibility as the potential witness approaches the witness stand. This is invaluable as a technique to undermine the credibility of some witnesses based simply upon an irrefutable presentation of factual evidence during the opening statement. Although you cannot argue the facts to the jury, there is a very fine line between argument and a persuasive factual recitation. Many judges discourage objections during another parties opening statement because the jury has already been told that counsel s statements are not evidence. Many attorneys are afraid to object during opening statement out of fear of alienating the jury. Therefore, some liberties can be taken in opening statement so long as the gist of what counsel is portraying is what the evidence will show. After opening statement, the jury should have a clear understanding of how each fact relates to the case themes. The jurors should be left feeling they fully understand the case and how they will vote. Afterwards, all counsel needs to do is fill in the blanks with the documents and witness testimony. Some lawyers during opening statement make the mistake of overstating their case. This approach backfires during closing argument, when their opponent quotes from a certified transcript of the statement, pointing out mischaracterizations of the evidence, misstatements of fact, and factual statements for which no evidence was ever introduced. When a lawyer s credibility is successfully attacked this way during closing argument, the task of rehabilitating the lawyer s credibility is akin to Sisyphus pushing a boulder uphill. Thus, careful attention must be paid (Continued, see Success, page 38)

12 Tips on Creating an Effective Policy Limits Demand Letter One of the most useful yet least understood tools available to a plaintiff s attorney is a policy limits demand. A timely and well executed policy limit demand can either settle a case for the most the client could ever practically realize, or can force an insurance company to pay the entire verdict even if that number exceeds the defendant s policy limit because the insurer failed to settle the case within the policy limit when it had the chance. Make no mistake, this exercise is intended to provide the insurer the opportunity to protect its insured from an excess verdict. Contrary to popular belief, a policy limit is not automatically open the instant a policy limits demand is rejected. An open limit depends on many factors, chief among them whether a reasonable insurer would have paid the limit knowing what the carrier knew or should have known when the demand was rejected or expired. Only if the answer to that question is Yes will the insured (or the plaintiff s attorney via a post-trial assignment of rights) be in a position to compel the insurance company to pay more than the stated policy limit through a separate bad faith lawsuit. The following will identify in checklist format many of the issues, law and practical considerations associated with making an effective policy limits demand. Ronald J. Cook is an insurance coverage specialist who represents both insurers and policyholders. In addition to insurance, his practice includes commercial litigation, construction, real estate, personal liability and landlord-tenant law. He has been selected by his peers to be included in The Best Lawyers in America, a Top Lawyer by Corporate Counsel, and is a Northern California Super Lawyer. In-Depth Analysis Ronald J. Cook, esq. Get Client s Consent to Make Policy Limit Demand Needless to say, before a lawyer can demand the policy limit, he/she needs to secure the client s consent to settle for policy limit. Accepting that the policy limit entails giving up the right to pursue personal assets in excess of the limit since payment of the policy limit requires a full and final release of all claims. Discuss every detail with the client and secure their consent to settle for the policy limit. Confirm that agreement in writing, confirming their permission along with the details of your conversation. It is usually a good idea to perform an asset search in advance to fully inform your client what they might be walking away from. Examples abound of attorneys who secured a policy limit settlement only to later face a disgruntled client who complains that the settlement was insufficient because the defendant has a nice house or drives a nice car. 12 What if You Don t Know the Policy Limit? How can you make a pre-litigation policy limit demand if you don t know the limit? The easy answer is to have your client ask the adverse party (attorneys should not contact prospective litigants directly), or simply ask the insurance company to reveal the policy limit. In many cases, the claims person will voluntarily reveal the limit in the interest of settling the case. However, many carriers refuse to disclose the limit in reliance on Griffith v. State Farm Mutual Auto Ins. Co. (1991) 230 C.A.3d 59, 65-68, which holds that policy limits are technically confidential and cannot be revealed without the insured s consent. Smart carriers go and get consent. Stubborn ones claim their hands are tied. They are wrong. In Boicourt v. Amex Ins. Co. (2000) 78 C.A.4th 1390, 1392, the court held it can be bad faith to neglect to seek the insured s consent to disclose the The starting point for opening or popping the policy limit is a rock solid demand letter limit since a failure to do so inhibits the chances of the case settling within the policy limit. When you really want to settle the case early because the client needs the money, doesn t want to litigate, or because liability is weak but the damages are big, write a letter telling the carrier about Boicourt. More often than not, the insured gives consent to disclose the limit so the case will settle. If the insurance company refuses to consult the insured you are well on your way to establishing unreasonable conduct on the part of that insurance company. If, despite your best efforts, you remain in the dark your only options are to file suit

13 and learn the limit in discovery, or make a blind policy limits demand hoping that the carrier pays. Needless to say, be prepared to get very little if the policy limit is small. Standards Applied to Insurance Company s Evaluation of a Policy Limit Demand Insurance companies are obligated to look for opportunities to settle claims within the policy limit. Liability insurers must accept a policy limit settlement offer when the amount of the judgment is likely to exceed the policy limit. However, a recent Second District Court of Appeals panel held that the bad faith failure to settle cannot be premised on the insurance company s failure to initiate settlement discussions. This case suggests that insurers are not obligated to offer the policy limit to settle, even if the case is obviously worth more than the limit. There must be some evidence that the injured party, at a minimum, communicated an interest in settlement to trigger a duty on the part of the insurer to settle the claim. (See Reid v. Mercury Ins. Co. (2013) 220 C.A.4th 262, 272 (rev. den January 21, 2014). As for whether or not a policy limit demand is reasonable, such factors as exclusions or limitations in the policy language, a desire to reduce the amount of future settlements, or a belief that the policy does not provide coverage may not affect the insurer s decision whether a settlement offer is reasonable. (Johansen v. California State Auto Assn. Inter Ins. Bureau (1975) 15 C.3d 9). In deciding whether to settle a liability claim the insurer must conduct itself as though it alone were liable for the entire amount of the judgment. (Miller v. Elite Ins. Co. (1980) 100 C.A.3d 739, 756). In determining whether a settlement offer is reasonable an insurer may not consider the issue of coverage. [citation] Rather, the only permissible consideration in evaluating the reasonableness of the settlement offer is whether, in light of the victim s injuries and probable liability of the insured, the ultimate judgment is likely to exceed the amount of the settlement offer. (Blue Ridge Ins. Co. v. Jacobson (2001) 25 C.4th 490, 498). The law does not require claimants against insureds to begin settlement overtures with letter perfect offers to which insurers need only to respond yes or no. An insurer s duty of good faith would be trifling if it did not require an insurer to explore the details of a settlement offer that could prove extremely beneficial to its insured [evidence supports the conclusion that the insurance company ignored the offer, as a calculated gamble on which only its insured could lose. ] (Allen v. Allstate Ins. Co., 656 F.2d 487, 490 (9th Cir. 1981). If the insurer fails to accept the settlement offer without seeking clarification of its terms, it cannot later avoid the consequences by claiming the offer was uncertain. (Betts v. Allstate Ins. Co. (1984) 154 C.A.3d 688, 708). (See also, Justice Croskey s exhaustive analysis in Archdale v. Amer. Intern. Specialty Lines Ins. Co. (2007) 154 C.A.4th 449). Essential Elements of an Effective Policy Limit Demand Letter That starting point for opening or popping the policy limit is a rock solid demand letter. The following is intended to help you avoid the pitfalls that frequently provide insurers with a viable argument that the policy limit demand was defective and therefore did not open the policy. These guidelines apply when the case is already in litigation and are even more important when making a pre-litigation effort to settle the case. 1. Convince the Carrier This Is a Liability Case The first step in establishing the reasonableness of a policy limit demand is to convince the insurance company (and a judge/jury who may ultimately read this letter in a subsequent bad faith case), that liability is either clear or close to it that any reasonable insurance company would 13 pay the policy limit to avoid financial ruin for its insured because of an excess verdict. This includes attaching copies of police reports, investigation reports, witness statements, the identities of witnesses by address and telephone numbers so that insurance company can interview them, photographs or videotape, and anything else that prove a prompt settlement is prudent and reasonable. Keep in mind that at this point it is likely that the insurance company is either unaware or just barely aware of the claim and has not yet retained counsel or investigators. You need to make it appear that settlement is a no-brainer. The better your argument, the more likely it is the case will either settle or the policy limit will be opened. There is some strategic decision making involved here. You may have to decide if you want to disclose your work product. If you have devastating evidence you would prefer to sit on, just know that if the insurer proves you had it and held it back when making the demand, you are potentially gift wrapping an argument that if the carrier only knew all the facts, it would have paid the limit. 2. Convince the Carrier Damages Will Exceed Policy Limit Provide the insurer with a complete array of the claimant s damages including medical reports and records, x-rays (if applicable), wage loss verification, business income records, photographs of injuries or damages, and anything else that a reasonable insurance company would need to know to conclude the damages will likely exceed the policy limit. Even if the plaintiff is still treating and full medical specials are unknown, if the medical bills and general damages are already approaching or are already above the limit, it is not premature to make a policy limits demand. Against a $15,000 policy limit, an emergency room visit alone can often exceed the policy limit. [Obviously, recent developments regarding (Continued, see Demand, page 15)

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15 Demand (continued from page 13) the collateral source rule and collectability of damages as seen in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 C.4th 541 should be factored into your analysis]. When is a demand reasonable? Case law suggests a settlement demand is reasonable if it is equal to or less than the sum of the products of each possible outcome of a case and the probability of that outcome occurring. For instance, in Miller, supra a $5,000 settlement was reasonable as a matter of law when the insurer assessed damages at $11,000 and the insured s liability was a 50% certainty. Conversely, in Isaacson v. CIGA (1988) 44 C.A.3d 775, 794, a $500,000 settlement demand was not reasonable where the insured s maximum exposure of $750,000 was only a 50% possibility. Hence, the duty to pay the policy limit can arise when the policy limit is extremely low, the damages are extremely high, and there is only a small chance of proving liability (e.g., 3 out of 10 times a case hits for $500,000 against a $50,000 policy limit). One commentator suggests a 1% chance of getting hit for a $10 million verdict should result in policy limit settlement of $100, Demand Must Offer a Full and Final Release of all Claims The demand letter must make clear that plaintiff is offering a full and final release of all claims in exchange for payment of the policy limit. In fact, absent a full and final release of all claims, an insurance company cannot agree to pay. The offer must be unequivocal and therefore should not contain any built-in contingencies or variables. For instance, a policy limits OCTLA Welcomes the Following New Members Meghan Grim Andrew Jaramilo Sam Konugres Mark Martinez Alina Sorkin Heather Tovar ASSOCIATE Member Brett Robinson AFFILIATE Members 4 Corners Deposition Summaries, Sheila La Civita Aptus Court Reporting, Jason Ferber Communication Excellence Institute (CEI), Janet Palmer Hodson PI Professional Investigations, Justin Hodson Hon. Francisco Firmat (Ret.), Mediator, ADR Services, Inc. Ringler Associates, James Brady Shirley Watkins Mediation, Shirley Watkins Villareal & Barraza Legal Nurse Consultant, Leticia Villareal-Barraza LAW STUDENT Members Katherine Currie-Diamond Dan Daniet Long Hoang Matthew James LeMakos Nada Nassar Peter Nguyen Tiffany Vu 15 THANK YOU OCTLA would like to thank these members who have recruited one or more NEW members this past quarter: Brent Caldwell Scott Cooper Casey Johnson Phil Nghiem Geoffrey Rill Solange Ritchie Troy Roe John Upton Douglas Vanderpool demand is inconsistent with a companion demand that the defendant provide an asset declaration. This raises the possibility that even if the carrier accepts the demand, the plaintiff could still back out. Barring proof that the case definitely would have settled in its entirety, the policy limit will not be open. (See generally, Coe v. State Farm Mut. Auto. Ins. Co (1977) 66 C.A.3d 981, approval by third party defeats open limit claim). Finally, the demand must resolve all claims against all insureds by all claimants. [Caution settlements that require minor s compromise approval might not qualify since the court could reject the settlement]. 4. Loss of Consortium/Wrongful Death Claims Are Included If the claimant is married, make sure the letter agrees to release any loss of consortium claim that might accompany a lawsuit. In wrongful death cases, you need to likewise provide the assurance that payment of the policy limit will satisfy the claims of any and all parties who could conceivably make a wrongful death claim. 5. Liens Included in Demand The demand letter should also make clear that if the policy limit is paid, the claimant will be responsible for the payment/reimbursement/compromise/satisfaction of any (Continued, see Demand, page 30)

16 Statute of Limitations Tolling in Medical Malpractice For those of you who handle medical malpractice cases, the 1st DCA (Alameda County, A135792) has issued an opinion dealing with when the MICRA statute of limitations is tolled for the presence of a foreign body. The case is Maher v. County of Alameda. Mr. Maher had abdominal surgery at Alameda County Medical Center following a gunshot wound in 1996, in which a biliary stent was placed in the bile duct. Fourteen years later, in 2010, he presented to a Kaiser emergency room with abdominal pain and vomiting, which was diagnosed as a biliary obstruction, finding the existence of the 14-year-old stent to be the cause. They immediately removed it, and told Mr. Maher that the stent was intended to be Tom Weaver, a former editor of The Gavel, practiced tort law for over 35 years, for the last 20 years litigating medical malpractice cases exclusively. He is now a full-time mediator and neutral arbitrator. His website is WeaverMediation.com. Nuts & Bolts Thomas D. Weaver, esq. temporary and should have been removed within months of its placement. He then sued Alameda County Medical Center, alleging that he did not have any idea that he had a stent until informed by the doctors at Kaiser. The trial court ruled that the foreign body tolling exception did not apply to the biliary stent. It agreed with the defense, which cited MICRA cases wherein such things as silicon injection material and intervertebral disc spacers, intentionally placed in the body, were not foreign substances for tolling purposes in CCP 340.5, even if they later failed or caused problems. In overturning the trial court s ruling, the appellate court analyzed MICRA and went back to a 1936 Supreme Court decision which contains the original rationale for the foreign body exception. The Maher court found that MICRA added only one qualification to the previous common law, that the foreign body have no therapeutic purpose or effect. So then the question became, not merely whether it was intentional vs. unintentional, but rather: What if the foreign body had a therapeutic purpose when originally left in the patient s body, but was (Continued, see Tolling, page 46) SAVE THE DATE: OCTOBER 13, 2014 OCTLA S ANNUAL BENCH & BAR COLUMBUS DAY GOLF TOURNAMENT EL NIGUEL COUNTRY CLUB, LAGUNA NIGUEL SPONSORSHIP OPPORTUNITIES ARE AVAILABLE: call

17 Biting the Bullet: Medical Bills in a Post Howell-Corenbaum World Any prudent personal injury practitioner is aware of the groundbreaking precedent established in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, holding that a plaintiff in a personal injury claim cannot claim more for past economic damages for medical expenses than what the healthcare provider accepted from a collateral source as payment in full, be the collateral source the patient s own medical insurance company or a co-payment directly paid or owed by the patient themself. The ruling in Howell was an extension of a similar ruling in the equally ground-breaking case of Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, and which dealt with a plaintiff s medical expenses being adjusted and then paid by Medi-Cal. Despite Hanif being limited on its facts to a Medi-Cal beneficiary, many liability carriers in evaluating bodily injury claims post- Hanif would only consider the adjusted medical expenses, regardless of the nature of the collateral source provider, to the general consternation of the plaintiffs bar thereafter. Similar to Hanif, the case of Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, was usually cited in conjunction with Hanif by the defense in attempting to limit claims for medical bills to what the provider received and accepted as payment in full, prior to the Supreme Court ruling in Howell. Howell did not directly address the admissibility at trial of the full amount of the medical charges as billed, and inferred that Lawrence A. Strid, Law Offices of Lawrence A. Strid in Irvine, practices personal injury and business litigation. He can be reached at Nuts & Bolts Lawrence A. Strid, esq. such evidence might still be admissible in order to prove whether the claimed medical expenses were reasonable and necessary. See Howell, supra, at 52 Cal.4th Accordingly, in a post-howell era, most plaintiffs attorneys attempted to submit evidence at trial of the full amount of the medical charges as billed, and then dealt with the pertinent Howell reduction by stipulation or a motion post-verdict. Attorneys who took this approach would rely on pre-howell case authority, with some cases holding that the full amount of medical charges as billed were still relevant as to an assessment of non-economic damages. For example, see Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1157; and Nishihama, supra, at 93 Cal.App.4th 309. That approach was dealt a death-blow by the subsequent ruling in Corenbaum v. Lampkin (2013) 215 Cal.App.4th Further clarifying the ruling in Howell, the court in Corenbaum held that evidence of the full amount of the medical charges as 17 billed is simply not relevant to the determination of the plaintiff s economic damages at trial, and that evidence of the adjusted amount accepted by the healthcare providers from a collateral source is not made inadmissible by the collateral source rule so long as the source of the payment is not disclosed. Corenbaum further held that evidence of the full amount of billed charges vs. the adjusted charges after receiving payment from a collateral source would only serve to confuse the jury, and was not relevant to proving non-economic damages or future medical expenses. Corenbaum, supra, at 215 Cal.App.4th Historically in personal injury practice, the amount of a plaintiff s medical expenses has usually been the barometer of the value of any given personal injury case the greater the amount of the bills, then arguably the greater the severity of the injury; and the greater the severity of the injury, then the more the case was theoretically worth. While it may have been an urban legend to some degree, surely every personal injury attorney (and even some non-lawyers) have heard the old adage about any injury case being worth at least three times the meds. When collateral insurance adjusts a provider s bills, the results can often be dramatic in the reduction of the medical charges that would be admissible at trial reductions of 50% or greater are not uncommon, and if a public benefit collateral source is involved, such as Medicare or Medi-Cal, then the amount of admissible medical charges may end up being ten cents on the dollar. Worst of all are those patients who belong to certain HMOs, (Continued, see Medical, page 19)

18 18

19 Medical (continued from page 17) where the charges incurred with their primary physician may be capitated down to zero or a nominal co-pay. The law is therefore clear on the limits of what the plaintiff can claim for medical expenses. The bigger question that this article intends to address is whether this application of the law is being followed by the plaintiffs bar. In the personal experience of this practitioner as derived from being an arbitrator at court-ordered arbitrations, as a designated neutral in mediation sessions, and as a settlement officer at settlement conferences conducted at Orange County Superior 19 Court, most plaintiffs attorneys still present evidence of the full amount of medical charges billed, and ignore any adjustments called for by Howell and Corenbaum. Many of these plaintiffs attorneys do not even have the amounts of the adjusted medical bills set forth in their briefs or settlement statements, much less being able to relay what that adjusted number is when confronted with that question. Rest assured that defense counsel and the adjuster have this information calculated down to the near penny. The only reasons that this practitioner can envision as to why a plaintiff s attorney would not have the adjusted medical expenses itemized at their disposal would be that (1) they are hoping that the defense carrier and their counsel have never heard of the holdings in Hanif, Howell, and Corenbaum; (2) it is too much work to review the bills and explanation of benefits and calculate the adjusted medical expenses yourself; and/or (3) it is easier to rely on the defense to provide the adjusted medical expenses and hope that their figures are correct. None of these reasons make any sense, and the failure of the plaintiff s attorney to directly deal with the adjusted medical expenses will mean that a critical aspect of the value of the case is being ignored, and it can also leave a less than favorable impression with the defense carrier s perspective on the expertise of the plaintiff s attorney. If there is a bright side to this development in the law for the plaintiff s bar, it might be that it is now easier to argue that the medical expenses are reasonable and necessary, after they have been adjusted. Moreover, some defense attorneys will stipulate at trial as to the amount of the adjusted figure so that the custodians of record of the various providers don t have to come to trial to testify, and the evidence for the (Continued, see Medical, page 20)

20 Medical (continued from page 19) total adjusted expenses can then be reduced to a written summary that the plaintiff s testifying physician can lay a foundation for, so that just the summary alone can come into evidence. Notwithstanding the writing on the wall as to the admissible amount of past medical expenses, some plaintiff s practitioners have been creative in attempting to circumvent it, in one of two methods: (1) counseling the client not to utilize their medical insurance to defray their past medical bills; and (2) utilizing a factoring company to assume legal title to the bills. Both of these approaches leave much to be desired and a lot to risk for both the plaintiff and their attorney. Insofar as not billing the client s medical insurance, this issue would probably not arise to the extent that a client requires emergency medical treatment, and at which time they are more interested in seeing a physician on an emergency care basis versus immediately consulting with an attorney. Most emergency care providers collect the patient s medical insurance information as a condition of admission, and automatically bill the carrier thereafter. Few clients, if any, would be aware of the consequences of Howell and Corenbaum until after they have consulted with counsel. As to non-emergency care providers that the client may see thereafter, if the client has applicable medical insurance that would defray all or part of such expenses, it is the opinion of this practitioner that an attorney who advises their client not to utilize their insurance is most likely doing their client a disservice, and may be setting themselves up for a legal malpractice case down the road. As the saying goes, there are only two (Continued, see Medical, page 33) LET YOUR VOICE BE HEARD 2014 JUSTICE DAY SACRAMENTO TUESDAY MAY 6, 2014 Join with your fellow consumer attorneys at the Capitol, Sacramento, to help protect the civil justice system and defend the rights of your clients. SCHEDULE 7:30 Registration Opens th St 8:15 Introduction and MCLE Program th St w/ Continental breakfast 10:00 Group Photo Capitol Bldg 10:15 Meeting with Legislators Capitol Bldg 12:00 Luncheon Program (lunch provided) th St 1:30 Meetings with Legislators Capitol Bldg 5:30 7:30 Annual Legislative Reception MIX Downtown REGISTRATION Space is limited so register early. Register by Monday, April 28, 2014, to be guaranteed legislative meetings. (See CAOC RSVP, page 21). ALSO JOIN US FOR THESE EVENTS ON MONDAY, MAY 5 POLITICAL OUTREACH TRAINING Tips on Lobbying, Testifying & Fundraising Monday, May 5 3:00 to 5:00 PM Citizen Hotel RSVP: Valerie Shope x115 WOMEN S CAUCUS AND DIVERSITY COMMITTEE RECEPTION Monday, May 5 5:30 to 7:30 PM th Street RSVP: Valerie Shope x115 OCTLA NETWORKING MIXER & MARGARITAS Monday, May 5 7:30 to 11:00 PM Vallejo s, 1100 O Street Hosted Fiesta Buffet & Margaritas RSVP: or

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