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Gray Matters April 2013

admin — Fri, 12 Apr 2013 04:16:48 +0000

A Business & Litigation Firm April 2013

The Changing World of Indemnification in California

By: John Duffy

Published in: Construction Contracts Law Report

Fifty years ago, indemnification was predominately a contractual arrangement between two parties. The contract allowed the parties to define their relationship should a claim be made involving their transaction.

It was not until 1967 that the Legislature enacted legislation in order to set forth the public policy of this state, while still acknowledging that
parties were entitled to enter into contractual
indemnity agreements as they saw fit. It was
declared that the public policy of the State of
California, due to the increasing use of hold
harmless agreements in construction contracts
protecting the general contractors from liability,
would be that contractual indemnity agreements
would be honored except in situations where
the indemnitee was solely negligent or engaged
in willful misconduct.

Click here to read “The Changing World of Indemnification in California”.

How to Structure Language in a Medicare Settlement Release

By: Rene Faucher

Published in: Claims Management Magazine

In personal injury cases, Medicare has a right to reimbursement for Medicare benefits already received or that may be received for future medical care. If plaintiff or plaintiff’s counsel does not reimburse Medicare, the defendant’s liability insurer may be on the line.

When handling personal injury suits, defense counsel should keep in mind three critical issues if there is a potential for Medicare to have an interest. First, the release should explicitly state that the parties have considered Medicare’s interests. Second, the insurance carrier must report the settlement or verdict to Medicare. Lastly, the litigation file should document the consideration of Medicare’s interests and possibly obtain a judicial finding as to the quantification of those interests.

Click here to read “How to Structure Language in a Medicare Settlement Release”.

Gray·Duffy Welcomes David S. Fisher as Partner

Gray·Duffy, LLP recently announced that David S. Fisher joined the firm as a partner in the Encino office. Mr. Fisher has more than 25 years of experience handling complex real estate and business litigation and transactions, representing private lenders, developers and investors.

Common Issues in Construction Defect Claims

Gray·Duffy recently updated its comprehensive syllabus of common issues in construction defect claims to reflect 2012 case law.

The syllabus is provided as a resource to keep our clients abreast of issues that impact the construction defect industry.

Click here to read “Overview of Common Issues in Construction Defect Claims”.

Did You Miss Our

Last Newsletter?

To read past issues of Gray Matters and test your knowledge with “So You Think You Know The Law”, please visit our newsletter archives.

Gray Matters is provided for informational purposes only, and the contents are not intended and should not be construed as legal advice.

So You Think You Know The Law

Medicare Liability & Settlement Releases

1) In order to collect reimbursement of Medicare benefits paid on behalf of an injured plaintiff,
Medicare may either file a subrogation action or intervene if the plaintiff and defendant are still
in litigation. True or False

2) A plaintiff may be required to turn over his or her settlement received from the defendant’s insurer to satisfy the subrogation rights of Medicare program, even though settlement did not make the patient whole because of tortfeasor’s filing for bankruptcy. True or False

3)The statute of limitations for the government to prosecute Medicare recovery claims is 5 years. True or False

Gray·Duffy Selected to California’s Top Ranked Law Firms

Gray·Duffy, LLP has been recognized as one of California’s Top Ranked Law Firms by Martindale-Hubbell. California’s Top Ranked Law Firms features an elite group of law firms in which one out of every three attorneys has achieved Martindale-Hubbell’s® AV Preeminent® rating. Only 222 firms in California have attained this ranking.

Gray·Duffy
Offers Seminars for Clients

As a service to our clients, Gray·Duffy regularly offers complimentary seminars on a variety of topics.

Topics include, but are not limited to:

–Indemnification on commercial building projects: Responding to new changes in the law.

–How to handle notice of insurance carrier liquidations.

–Early exit and resolution strategies in personal injury cases.

If you are interested in scheduling a presentation in your offices, please contact
Gary Gray
at

(818) 907-4000 or
ggray@grayduffylaw.com
.

*CLE credit may be available depending on the topic.

Contact

Gray·Duffy

www.GrayDuffyLaw.com

15760 Ventura Blvd.
16th Floor

Encino, CA 91436

(818) 907-4000

702 Marshall St.

Suite 600

Redwood City, CA 94063

(650) 365-7343

Gray Matters January 2013

admin — Mon, 14 Jan 2013 21:48:58 +0000

A Business & Litigation Firm January 2013

2012 Year In Review

As we inaugurate the New Year, everyone at Gray·Duffy looks forward with anticipation to the beginning of our 28^th year of service to our clients.

Throughout 2012, we continued to diversify our firm’s practice by expanding our business litigation and business transaction practice. With the addition of Nathan Lee as an associate in our Encino office, we have added yet another bright, dedicated and energetic professional to our ranks.

We are proud of the many outstanding achievements our attorneys and staff accomplished throughout 2012. Below we have highlighted a few of those achievements that might be of interest:

Gray·Duffy Recovers More Than $1 Million for Client in a Breach of Contract Lawsuit.

Gray·Duffy Obtains Dismissal and Reimbursement of Attorney’s Fees for General Contractor Client.

Jury Finds Plaintiff’s Claimed Injuries Were Not Result of Automobile Accident.

Please click here for an expanded list of results the Gray·Duffy team accomplished in 2012.

Also, throughout 2012 our lawyers continued to stay on the forefront of the issues and changes in the law that impact and challenge our clients. A few articles authored by our attorneys include:

Recovery in a Personal Injury Lawsuit: What is Admissible at Trial? By: Rene Faucher, published: Mealey’s Personal Injury Report.

Revisiting California’s Construction Defect “Right to Repair Act”. By: Patrick Roberts, published: Construction Contracts Law Report.

Please click here for a complete list of all of the articles authored by our firm in 2012.

We are pleased to have such an accomplished group of professionals who dedicate themselves to delivering the expertise, compassion and results that have benefited our clients this year and in years past.

From all of us at Gray·Duffy, we thank you for entrusting your need for legal services with us and we are grateful that we can be of service to you. We look forward to doing so again whenever you may need us.

Until then, we wish you a successful and fulfilling year.

Sincerely,

Gary Gray

Managing Partner, Gray·Duffy, LLP

California’s New

Construction Indemnity Law

As of January 1, 2013, changes to existing law (Civil Code § 2782) and a new law (Civil Code § 2782.05) limit contractual indemnity provided by subcontractors to general contractors, construction managers and other subcontractors.

Under the new law, the subcontractor is not required to indemnify for claims:

Arising out of the active negligence or willful misconduct of general contractors, construction managers and other subcontractors.

Outside the scope of work of the subcontractor.

Arising out of WRAP policies.

Click here to read an in-depth article on the new changes titled, “The Changing World of Indemnification in California”.

Existing construction contracts may need to be reviewed and revised as a result of these changes. Please contact John Duffy at jduffy@grayduffylaw.com or (818) 907-4000 if you have any questions.

Miss Our Last Newsletter?

To read past issues of Gray Matters and test your knowledge with “So You Think You Know The Law”, please visit our newsletter archives.

Gray Matters is provided for informational purposes only, and the contents are not intended and should not be construed as legal advice.

So You Think You Know The Law

Contractual Indemnity on Commercial Building Projects

1) A general contractor is sued by a property owner. The general contractor has an indemnification agreement with its subcontractor on a commercial building project. The general contractor can tender the defense of the claim to the subcontractor, and that subcontractor must defend the general contractor, if the subcontract provides for defense and indemnification of the general contractor’s active negligence. True or False

2) If a subcontractor learns through the grapevine that the general contractor on a commercial building project has been sued by the property owner for defects implicating the subcontractor’s scope of work, the subcontractor has an immediate obligation to indemnify the general contractor if the subcontract so provides. True or False

3) When a general contractor on a commercial building project is sued by the property owner for construction defects, the general contractor who seeks defense from a subcontractor pursuant to a subcontract is only entitled to defense of those allegations implicating the subcontractor’s scope of work. True or False

Should you have any questions regarding contractual indemnity or would like to have us review your contracts to ensure that they do not run afoul of the changes in the law in 2013, please contact John J. Duffy at (818) 907-4000 or jduffy@grayduffylaw.com.

Contact

Gray·Duffy

www.GrayDuffyLaw.com

15760 Ventura Blvd.
16th Floor

Encino, CA 91436

(818) 907-4000

702 Marshall St.

Suite 600

Redwood City, CA 94063

(650) 365-7343

Gray Matters Fall 2012

admin — Tue, 09 Oct 2012 18:07:37 +0000

A Business & Litigation Firm October 2012

Is Your Shop at Fault?

How far does a shop's responsibility go when it works on a vehicle?

By: Michelle MacDonald, Esq.

Published: Auto Inc.

The modern car is a complex machine containing thousands of interacting parts that must be serviced regularly for the vehicle to perform well over its lifetime. If any one of those parts fails due to a design or manufacturing defect, the original manufacturer may be found responsible. But what if a car is brought in to the local repair shop by the owner for a routine oil change and later the brakes fail due to a condition that perhaps could have been detected by a thorough inspection? Is the repair shop responsible for ensuring that all of the vehicles' systems are functioning properly if it was not part of the duties outlined in the original repair estimate?

Typically, the repair shop is not responsible for thorough inspections such as this. The law draws a clear distinction between a manufacturer and an independent repair shop. Manufacturers can be found liable for the design and fabrication of its products such that a customer must only prove that the product was defective without necessarily demonstrating explicit negligence on the manufacturer's behalf. Repair shops are held to a negligence standard, which means a customer must prove the shop did something by act or omission that "fell below the standard of care" generally expected of repair shops.

Continue reading Is Your Shop at Fault?

Recovery in a Personal Injury Lawsuit: What is Admissible at Trial?

By: Rene Faucher, Esq.

Published: Mealey's Personal Injury Report

In personal injury cases, Medicare has a right to reimbursement for Medicare benefits already received or that may be received for future medical care. If a plaintiff or plaintiff's counsel does not reimburse Medicare, the defendant's liability insurer may be on the line.

When handling personal injury suits, defense counsel should keep in mind three critical issues if there is a potential for Medicare to have an interest. First, the release should explicitly state that the parties have considered Medicare's interests. Second, the insurance carrier must report the settlement or verdict to Medicare. Lastly, the litigation file should document the consideration of Medicare's interests and possibly obtain a judicial finding as to the quantification of those interests.

Continue reading Recovery in a Personal Injury Lawsuit: What is Admissible at Trial?

Miss Our Last Newsletter?

To read past issues of Gray Matters and test your knowledge with "So You Think You Know The Law", please visit our newsletter archives.

Gray Matters is provided for informational purposes only, and the contents are not intended and should not be construed as legal advice.

So You Think You Know

The Law...

__________

1. How much does it cost to file a complaint with the Los Angeles Superior Court where the amount in controversy is more than $25,000?

a) $100 b) $435 c) $725

2. How much more does it cost each plaintiff and defendant if the case is designated as "complex litigation"? (Think about a construction defect case containing 100 homes and 50 contractors.)

a) $500 b) $750 c) $1,000

3. How much do you need to deposit with the court if you want a jury trial?

a) $150 b) $350 c) $500

For any questions you may have regarding jury and court fees, please contact Kevin M. Cruz in our Encino office.

Gray·Duffy Presents at Crane & Rigging Seminar

John Duffy and Matthew Shorr of Gray·Duffy, LLP recently spoke at the Crane & Rigging Seminar in Long Beach, CA on September 27 and 28. The seminar provided attendees with up-to-date information on regulatory changes being made in the industry. Gray·Duffy presented on California's new anti-indemnity statues. The firm, along with other industry experts, and representatives of NBIS also addressed topics including: job hazard analysis forms, accident investigation, new B30 regulations, top 10 crane accidents, contract management options, risk management package, new insurance coverages and more.

The seminar, hosted by Emery & Karrigan, was attended by owners, supervisors, safety personnel, risk managers and contract managers.

Contact

Gray·Duffy

www.GrayDuffyLaw.com

15760 Ventura Blvd.
16th Floor

Encino, CA 91436

(818) 907-4000

702 Marshall St.

Suite 600

Redwood City, CA 94063

(650) 365-7343

Gray Matters Summer 2012

admin — Wed, 15 Aug 2012 15:19:23 +0000

A Business & Litigation Firm August 2012

New Developments in the Foreclosure Crisis

By: Patrick Roberts

Published: National Mortgage Professional

The real estate market’s foreclosure crisis continues to evolve and, as it does, so does the law governing wrongful foreclosure and related lender defenses.

One theory that homeowners have used to set aside foreclosures in the past, was that an improper assignment or transfer of the mortgage or Deed of Trust by the lenders rendered it invalid. Historically, whenever a mortgage or Deed of Trust was transferred or assigned, the transaction was recorded in the real property records. However, in recent years, lenders have transferred Deeds of Trust or mortgages (or certain fractional shares of the same) so frequently that lenders no longer record each particular assignment. To assist with the epidemic of mortgage recordation, lenders began utilizing the Mortgage Electronic Registration Systems (“MERS”) – a nationwide registry system which held various Deeds of Trust in its name. When an interest was transferred, the Deed of Trust stayed in the name of MERS, and a transfer was simply made in the internal records.

An argument raised by homeowners in foreclosure litigation following the adoption of MERS was that MERS itself was illegal, and foreclosures under Deeds of Trust held by MERS were improper and could be set aside. Specifically, borrowers would allege that MERS was not the “true” beneficiary under the Deed of Trust, never had ownership of the promissory note, nor held an assignable interest in the note or Deed of Trust. As such, any assignment of the note by MERS to any other institution was invalid.

Continue reading New Developments in the Foreclosure Crisis.

Rick Williams Presents “Special Employment: Subrogation and Other Issues”

Gray·Duffy, LLP partner Richard Williams recently presented, “Special Employment: Subrogation and Other Issues,” to a group of claims and risk management professionals from Volt Information Services, Inc. and Gallagher Bassett in Las Vegas. Mr. Williams provided an overview of the Special Employer Doctrine, including how to test for special employment; the difference between a general employer and a special employer; how workers’ compensation coverage applies in a dual employment situation; and why the special employer carries exclusive liability.

For more information on this presentation, please contact Rick Williams at RWilliams@GrayDuffyLaw.com or (650) 365-7343.

To read past issues of Gray Matters and test your knowledge with So You Think You Know The Law, please visit our newsletter archives.

Gray Matters is provided for informational purposes only, and the contents are not intended and should not be construed as legal advice.

So You Think You Know The Law…

__________

1. In California, a homeowner with a front yard that abuts a public sidewalk has a duty to maintain the sidewalk.

True or False

2. A homeowner’s statutory duty to maintain the sidewalk in front of his house means that he is liable for injuries to pedestrians caused by a dangerous condition in the sidewalk, even if he did not create the dangerous condition.

True or False

3. Despite state law, a city can pass an ordinance making a homeowner liable for injured pedestrians due to sidewalk defects, regardless of whether the homeowner created the dangerous condition.

True or False

For any questions you may have regarding premises liability please contact Kevin M. Cruz in our Encino office.

Contact

Gray·Duffy

www.GrayDuffyLaw.com

15760 Ventura Blvd.
16th Floor

Encino, CA 91436

(818) 907-4000

702 Marshall St.

Suite 600

Redwood City, CA 94063

(650) 365-7343

Gray Matters Spring 2012

admin — Tue, 15 May 2012 21:44:10 +0000

Welcome to Gray Matters, Gray·Duffy, LLP’s seasonal newsletter, keeping you up-to-date on legal trends and firm news. If you’d like to be removed from our list, please click the “SafeUnsubscribe” button at the bottom of this email.

Understanding the Borrowed Servant Doctrine

By: Matthew Shorr

Published: Crane Hot Line

Determining whether and with whom a special employment relationship exists can be critical to limiting liability for employers, such as crane and equipment rental companies, that loan out their employees to customers. More important than the employment agreement, is answering the question of who has the right to control an employee’s activities.

Under the workers’ compensation system, an employee may have two employers, a general employer and a special employer. A general employer is one that “lends” or “hires out” an employee to another entity or person for a period of time, such as when a crane or equipment rental company furnishes an operator to operate the rented equipment to work at the direction and control of the customer. The customer that borrows the employee from the crane or equipment rental company is known as the employee’s special employer.

The subcontractor (who supplies the equipment and/or “loans out”

an operator to the contractor that hires him or her) may enter into a

lease contract which includes an agreement concerning how the operating personnel will be treated for workers’ compensation purposes. In the event that an employee of the hiring contractor becomes injured on the job site, the injured worker would potentially be precluded from bringing suit against the “loan-out” employee and the crane or equipment rental company, under the Exclusive Remedy Rule of the workers’ compensation system.

Continue reading Understanding the Borrowed Servant Doctrine.

Clergy Abuse: Mediating an

American Tragedy

By: Rick Williams

Published: Daily Journal

With deep-seated roots in contemporary Western civilization and religion, allegations of sexual abuse by Catholic clergy have been in the public consciousness in many Western countries for decades. In 2004, the John Jay Report indicated that between 1950 and 2002, over 4,000 priests (approximately 4 percent of the then active priesthood) were accused of various forms of sexual misconduct and abuse. Because clergy abuse is so abhorrent to our innate moral sense and leaves such permanent and deep scars on its victims, the issues presented by such cases are unique, and potential solutions are sometimes enigmatic.

By the late 20^th and early 21^st centuries, major lawsuits in California and across the United States had been filed, with claims that priests had sexually abused minors and the hierarchy of the Catholic Church had consciously attempted to conceal this misconduct. In 2002, the California Legislature passed a law that suspended for one year the existing statute of limitations for the filing of clergy abuse actions. Prior to this 12-month window, suits in California had to be filed before the victim turned 26 or within three years after concluding that the abuse caused them to suffer psychological problems. This law and similar ones in other states opened the door for plaintiffs who were in their 30s, 40s, 50s, and older to file actions based on alleged abuse many decades earlier.

Continue reading Clergy Abuse: Mediating an American Tragedy.

www.grayduffylaw.com

Encino Office

15760 Ventura Blvd., 16th Floor

Encino, CA 91436

(818) 907-4000

Redwood City Office

702 Marshall Street, Suite 600

Redwood City, CA 94063

(650) 365-7343

In This Issue

Understanding the Borrowed Servant Doctrine

Clergy Abuse: Mediating an American Tragedy

So You Think You Know The Law…

Firm Announcements

So You Think You Know

The Law…

Test your knowledge on issues related to public school tort liability by answering the following questions:

1. A public school is responsible for any injury sustained by a student while on a voluntary school sponsored and supervised field trip. (True/False)

2. A public school is liable for a student’s inability to learn or pass an achievement test. (True/False)

3. A public school is not responsible for a student’s knee injury sustained during a football game. (True/False)

4. If a child is hurt due to the negligent or criminal conduct of a teacher, the parent may immediately hire a lawyer and file a lawsuit against the district as the teacher’s employer. (True/False)

5. Your wife is seriously injured when she falls on the new handicap ramp at the performing arts center at the local high school. You can sue the school district and the city for your wife’s injuries and medical expenses. (True/False)

Please contact Rick Williams if you have any questions about public school tort liability.

Firm Announcements

Gray·Duffy Welcomes New Associate: Nathan B. Lee

Gray·Duffy, LLP is pleased to announce that Nathan B. Lee has joined the firm as an Associate.

Mr. Lee has a variety of legal experience serving as corporate counsel for small corporations, including experience in trademark and copyright issues. He also has successfully litigated on behalf of numerous clients in civil, family and criminal proceedings, including at evidentiary hearings and trial.

______________________

Gray·Duffy Welcomes New Carrier Client

Gray·Duffy, LLP is honored to announce that Chartis, a global leader in commercial and personal insurance solutions, has become a client of the firm. The firm will represent Chartis throughout the entire state of California.

______________________

As a helpful reminder to our clients, Gray·Duffy, LLP recommends that business owners have their indemnity agreements regularly evaluated and annually reviewed by their attorney.

Gray Matters is provided for informational purposes only, and the contents are not intended and should not be construed as legal advice.

Gray Matters Winter 2012

admin — Wed, 08 Feb 2012 01:28:51 +0000

Gray·Duffy: Year in Review

As 2012 begins, we at Gray·Duffy celebrate the beginning of our 27^thyear of service to our clients. Throughout 2011, we diversified and strengthened the firm’s expertise with the addition of Ed Scott as a partner in our Redwood City office. Ed brought with him many long-time clients and has added depth to our Insurance and Construction Law practice as well as provided a unique expertise with his knowledge of Equine Law.

We again achieved outstanding results for clients in a number of our practice areas. To read more on our recent achievements, please click on the cases below:

Gray·Duffy obtains testimony from third-party witness, leading to the dismissal in toxic tort wrongful death lawsuit.

Gray·Duffy resolves construction defect case for general contractor defendant without payment toward settlement and recovers attorney fees.

Gray·Duffy negotiates favorable settlement for crane company in construction site accident and recovers attorney fees and costs.

Please click here for a complete list of the firm’s 2011 case results.

Overall, we couldn’t be more proud of the work that our skilled professionals perform on a daily basis for the firm. From an in-depth knowledge of the law, the issues that impact our clients, to the responsiveness and dedication they offer, they are committed to ensuring that our client’s legal experience is a positive one.

On behalf of all of us at Gray·Duffy, we appreciate your business and value our relationship. We look forward to serving you again soon.

We wish you a successful and fulfilling year.

Sincerely,

Gary S. Gray, Managing Partner

Reducing Risk, Shifting Liability:

Assessing the Privette Doctrine

By: Michelle MacDonald

Published in Crane Hot Line

In California, property owners and general contractors can shift liability away from themselves for injuries to subcontractor employees through a legal doctrine known as Privette after the landmark 1993 case of the same name. Essentially, what the California Supreme Court found in that case was that, in the absence of affirmative negligence by the owners and/or general contractors which actually caused the injury, the subcontractors are in the best position to protect the welfare of their own employees through the workers compensation system.

Over the years, exceptions have been carved out of the original holding including for the supplying of defective equipment and for failing to warn of hidden dangerous conditions. One exception, which has been legally controversial, may be decided by the California Supreme Court shortly in the case of Seabright Insurance v. Lujan. Specifically, the Court is expected to determine when a statutory duty (such as Cal/OSHA requirements) may be delegated to subcontractors and when such regulations are non-delegable. To the extent a duty is non-delegable and the failure to comply actually caused an injury, Privette would then not apply because it would be considered a form of affirmative negligence.

Continue reading about the Privette Doctrine.

The Role of the Spouse in Mediation

By: Richard Williams

Published in Daily Journal

Winston Churchill once said, “My most brilliant achievement was my ability to be able to persuade my wife to marry me.” As much as I agree with him, I never thought I could relate his prophetic statement to the mediation process. But there’s a tool that is available to most mediation processes and is more often than not completely overlooked: The spouse as a decision maker.

Today’s mediation landscape has become increasingly more complex in terms of what it takes to bring a dispute to a reasoned resolution. A mediator’s “bag of tricks” now, more than ever, needs to include every available tool that might be useful in bringing the parties to settlement. A concerned and thoughtful spouse may be such a tool.

Continue reading The Role of the Spouse in Mediation.

www.grayduffylaw.com

15760 Ventura Blvd., 16th Floor

Encino, CA 91436

(818) 907-4000

702 Marshall Street, Suite 600

Redwood City, CA 94063

(650) 365-7343

In This Issue

Year in Review

Reducing Risk, Shifting Liability

The Role of the Spouse in Mediation

So You Think You Know the Law…

Firm Announcements

So You Think You Know

The Law…

Test your knowledge on issues related to insurance coverage/bad faith by answering the following questions:

1. A general liability insurer’s duty to defend is not only determined by the policy and the allegations in the complaint, but also on facts that are extrinsic to the complaint. (True/False)

2. In a tort action for wrongful denial of policy benefits, an insured may be entitled to its attorneys’ fees incurred to compel payment of benefits due under an insurance policy. (True/False)

3. If a complaint alleges punitive damages, it automatically entitles the insured to appointment of independent counsel. (True/False)

4. If there is a continuous loss, a general liability insurance carrier can reduce its liability by “stacking” deductibles or self-insured retentions (SIRs) under other policies. (True/False)

5. A contribution action between liability insurers should be brought within two years from the date of the plaintiff insurer’s last payment in the underlying lawsuit. (True/False)

Please contact Wendy Lin Suh if you have any questions about insurance coverage/bad faith.

Firm Announcements

Gray·Duffy is pleased to welcome the firm’s new clients: NBIS,

Markel Insurance and Gallagher Bassett.

NBIS is a Managing General Underwriting Organization specializing in construction and related transport program coverage.

Markel Insurance provides property and casualty coverage for specialty insurance products.

Gallagher Bassett is the largest property/casualty third-party administrator, offering services in the areas of claims management, information management, medical cost containment and consultative services.

View a full list of Gray·Duffy’s representative clients.

New Gray·Duffy Website

In order to better serve our clients and friends, Gray·Duffy’s website has a new look and feel. Please take a moment to look at our new website.

Gray Matters is provided for informational purposes only, and the contents are not intended and should not be construed as legal advice.

Gray Matters Fall 2011

admin — Thu, 01 Dec 2011 05:09:00 +0000

Recreational Immunity Explained

By: Barry Brown

Published in The Recorder

Most people in this country are probably aware that landlords may be subject to liability for injuries sustained on their property. However, they may not be aware that there may be certain exceptions to that rule, depending on the circumstances of the injury.

Imagine, if you will, a not too uncommon scenario. One evening, a teenage boy, Billy, and his friends climb up an exterior roof access ladder on a 30-foot warehouse building in Santa Rosa, California. They plan to practice skateboard stunts on the rooftop. Billy decides to use the skylight curb as part of his stunt. Unfortunately, instead of this scenario ending the way he intended, Billy miscalculates, goes over the curb, and crashes through the skylight. He falls to the concrete floor 30 feet below, sustaining significant injuries to his arms and legs.

Billy, through his mother as guardian ad litem, sues the owner/landlord of the property and the tenant renting the warehouse. At the outset, these facts sound like a great premises liability case with a comparative fault component. The initial thought from both the plaintiffs’ and defendants’ attorneys would be that this is a case that will likely settle somewhere down the line, but it may not be that simple.

Continue reading Recreational Immunity.

How to Deal with Borrower Challenges to

Non-Judicial Foreclosures

By: Patrick Roberts

Published in ABA Banking Journal

Today’s economic climate has caused an ever-growing number of borrowers to be in default and subject to the non-judicial foreclosure process. As a result, creative borrowers are attempting to “un-ring the bell” of a foreclosure by filing lawsuits alleging a variety of claims.

Lenders have potential defenses to such claims, which should be sustained by courts. No strategy is foolproof and specifics will depend on the jurisdiction where a lender does business, but the following is a guideline to possible assistance. Non-judicial foreclosures can be done in thirty-three of the fifty states.

Battle between lenders and delinquent borrowers. A new legal industry, it might be said, has emerged in many states in response to the sustained high level of foreclosures.

Continue reading about the different types of borrower challenges.

A Moveable Feast:

The Key to a Successful Mediation

By: Richard Williams

Published in The Recorder

Like the real life literary characters in Hemingway’s memoire about the “Lost Generation” in the 1920s, a good mediator needs to offer a variety of options to participants and their counsel and treat them to an endless supply of ideas and suggestions for resolution. Often times at the end of an initial mediation session, the parties are somewhat adrift in a sea of facts, ideas and concepts, like a rudderless ship. They need direction and continued cajoling from the mediator, in the form of follow-up. As a baseball great is often quoted saying, “it ain’t over ’til it’s over.” The significance of these literary and cultural references is simple; persistence settles cases.

Many consumers of the mediation product currently on the market, made available by professional mediators, lawyers, retired jurists and anyone else engaged in the dispute resolution profession, do not realize the potential impact of persistence. This brief article attempts to discuss the many uses of this underused tool in the mediator’s toolbox.

Continue reading A Moveable Feast.

www.grayduffylaw.com

15760 Ventura Blvd., 16th Floor

Encino, CA 91436

(818) 907-4000

702 Marshall Street, Suite 600

Redwood City, CA 94063

(650) 365-7343

In This Issue

Recreational Immunity Explained

Borrower Challenges to Non-Judicial Foreclosures

The Key To A Successful Mediation

So You Think You Know the Law…

So You Think You Know the Law…

Test your knowledge on issues related to civil damages by answering the following questions.

1. A man is “on a break” from his wife when his leg is broken by a negligent snowmobile driver while skiing with his mistress. When his wife finds out about the mistress, she files for divorce. Subsequent to entry of the divorce decree, the man recovers $50,000 from the snowmobile driver. The ex-wife is entitled to 50 percent because the recovery is community property. (True/False)

2. You just bought a large specialized ten-year-old piece of machinery at an auction from a failed business voluntarily selling off its assets. You paid $60,000 for the piece, which retails brand new for $120,000. When the trucking company you hired to transport the machinery to your plant negligently crashes and destroys the machinery, the trucking company is obligated to buy you a new one because there are no more used ones on the market. (True/False)

3. You are injured while vacationing in Sonoma by another vacationer who lives in Los Angeles. When you return to your home in Fresno you file a lawsuit against the negligent party at your local courthouse. If the defendant tries to have the case transferred to Los Angeles for their own convenience, you will most likely recover your attorney’s fees incurred in opposing the motion to transfer. (True/False)

4. You and your common law husband move from Texas to California for greater economic opportunities, (It could happen). While residing in California your common law husband is injured because of the negligence of another individual. You can recover loss of consortium damages from the negligent party as his common law wife. (True/False)

5. You are automatically entitled to punitive damages when you prevail against your insurance company in a bad faith insurance action. (True/False)

Please feel free to contact

Kevin Cruz if you have any questions about civil damages.

Gray Matters is provided for informational purposes only, and the contents are not intended and should not be construed as legal advice.

Gray Matters Summer 2011

admin — Wed, 01 Jun 2011 04:37:21 +0000

Read My Lips:

How Plaintiffs Behave at Deposition Can Foretell How Juries Will React to Their Testimony at Trial

By:Michael S. Eisenbaum

Published in Best’s Review

Some lawyers fight to take money, others fight to keep it. In this constant battle, 95 percent of the cases that go to trial do so because one side or the other has not accurately evaluated the case. It is not always about the amount of the plaintiff’s medical bills or the type of injury. It is often more about the nature of the individual who was injured. How well this person connects with a jury will largely determine whether the award of general or non-economic damages will be at the high end of the spectrum, or more toward the lower end. Although the caliber of the attorneys representing each side should not be overlooked either, all else being equal, the value of an injury can double or even triple based on the ability of the plaintiff to make a real connection with a jury.

There is no set formula for determining general or non-economic damages, which are generally considered to be compensation for the injured person’s “pain and suffering” as a result of the injury. This includes compensation for both past and future pain and suffering. Roughly 20 years ago, defense attorneys and insurance companies defending personal injury cases frequently employed a formula of three to five times the reasonable medical expenses when attempting to reach a settlement of a particular case. The theory was that three times the medical expenses allows for one-third to cover medical expenses, one third to cover attorneys fees and one third is left over for the plaintiff.

Continue reading Read My Lips.

Breaking Down the Privette Doctrine:

Assessing Liability Shifts

By: Michelle MacDonald

Published on ForConstructionPros.com

The Privette Doctrine, which holds that owners and general contractors are not liable for injuries to the employees of subcontractors unless they have affirmatively done something by act or omission to cause the injury, has an almost 20 year history in California. In 1993, the California Supreme Court in Privette v Superior Court found that a homeowner was not liable for injuries when a roofing subcontractor’s employee was burned by hot tar. Over the years, the doctrine has been extended to general contractors. At the same time, exceptions have been carved out of the original holding involving breach of a non delegable duty imposed by statute, for supplying defective equipment and for the failure to warn of hidden dangerous conditions. None of these exceptions undermined the primary rationale behind Privette shifting liability for injuries to subcontractor employees back to the subcontractor for policy reasons due to the availability of workers compensation benefits. In the absence of affirmative negligence of the property owner or general contractor, the courts have reasoned that the subcontractors are in the best position to protect the welfare of their own employees.

The California Supreme Court has decided a case which redefined the parameters of the Privette Doctrine. Specifically, in the case of Seabright Insurance v US Airways, the court is held that the person hiring an independent contractor implicitly delegates to the contractor the duty to comply with all statutory and regulatory safety requirements.

Learn more about Breaking Down the Privette Doctrine.

www.grayduffylaw.com

15760 Ventura Blvd., 16th Floor

Encino, CA 91436

(818) 907-4000

702 Marshall Street, Suite 600

Redwood City, CA 94063

(650) 365-7343

In This Issue

Read My Lips

Breaking Down the Privette Doctrine

So You Think You Know the Law…

Firm Announcements

So You Think You Know the Law…

Test your knowledge on issues related to Medi-Cal by answering the following questions.

1. If a plaintiff has received benefits from Medi-Cal and files a lawsuit against someone who may be liable for the plaintiff’s injuries, the plaintiff must give written notice of the lawsuit to Medi-Cal by personal service or registered mail within 30 days of its filing and file proof of such notice in his lawsuit and the defendant’s liability insurance carrier must also give notice of the lawsuit to Medi-Cal.

(True/False)

2. A plaintiff who has received benefits from Medi-Cal and receives a settlement, judgment or award in a lawsuit, does not need to give notice to Medi-Cal for the case outcome to be deemed final or satisfied.

(True/False)

3. If a liable defendant’s insurance carrier enters into a settlement of a personal injury claim with a plaintiff who has received benefits from Medi-Cal, the carrier is not required to give notice to Medi-Cal of the settlement.

(True/False)

4. The plaintiff can get a reduction of Medi-Cal’s lien on a personal injury settlement including 25 percent for attorney’s fees and a pro-rate share of the costs of litigation.

(True/False)

5. A hospital has an automatic lien on a judgment or settlement for the reasonable costs of medical care to a personal injury plaintiff.

(True/False)

Please feel free to contact

Rene Faucher if you have any questions about Medi-Cal.

Firm Announcements

Jack Liebhaber recently spoke on “Workers’ Compensation Claims” at two seminars in Southern California. Mr. Liebhaber discussed how to handle a workers compensation claim/lien in a third party case and how they affect bodily injury claims. Mr. Liebhaber shared examples, statues and case laws pertaining to workers compensation claims.

More than 100 people attended the two seminars arranged by Mercury Insurance Group.

If you are interested in discussing worker’s compensation with your company, please contact

Jack Liebhaber.

Gray Matters Spring 2011

admin — Tue, 01 Mar 2011 09:00:25 +0000

Beware The Doctrine Of Superior Equities

By: John J. Duffy

Published in Insurance Law360

Any insurer considering settlement of a claim with the intention of recouping its payment through a subrogation action against co-tortfeasors (third parties), should carefully consider the potential impact of the
arcane “doctrine of superior equities.”

The doctrine of superior equities may have the effect of preventing any recovery against co-tortfeasors who are significantly less at fault than the insured of the settling insurance company.

The doctrine of superior equities is a remnant of the “all or nothing” era of contributory negligence but it can still pack a significant wallop to an unsuspecting insurer that satisfies a claim against an insured
and believes it can obtain some contribution toward the payment made to the claimant, from a joint tortfeasor.

Equitable subrogation allows an insurer to stand in the shoes of its insured, and thereby assert a claim against a third party that is also liable for the damages incurred by a claimant. The doctrine of superior
equities must be understood in order to be successful on a cause of action for equitable subrogation.

Continue reading Beware The Doctrine of Superior Equalities.

The (Overlooked) Advantages of Pre-Suit Mediation

By: Richard
M. Williams

Published in The Recorder

When a personal injury plaintiff’s medical providers are reimbursed at a reduced rate for performed medical services by third party payors such as a private health insurer, Medicare or Medicaid, what amount is the plaintiff entitled to recover in settlement
or at trial? When may a party liable for those expenses benefit from the reduced rate? Most attorneys know about, and use, some form of alternative dispute resolution (ADR) as part of their litigation practice, as do many sophisticated business men and women.
Most ADR is brought into disputes, or lawsuits, after thousands of hours and dollars have been spent “fighting the fight.” How many of us ever consider the idea of mediating a contested matter BEFORE it matures into litigation?

After more than 36 years of law and mediation practice, my answer is, sadly, very few. All too often personal, financial or business concerns overshadow the simple truth that early evaluation of an issue and the
involvement of a skilled neutral third-party mediator, may set the course for an expeditious settlement. At minimum, pre-suit mediation can build a bridge over the risks, known and unknown, which can consume resources and have a destructive force that prudence
would tell all parties to avoid. The following illustrates why pre-suit mediation is a grossly underutilized vehicle for litigation avoidance.

Learn more about the advantages of pre-suit mediation.

The Essential Elements of Job Tickets:

How To Make Sure Yours Provide Protection

By: Matthew S. Shorr

Published in Crane Hot Line Magazine

A crane company was recently held negligent in a lawsuit when a man was struck by a crane at a jobsite. An inclusive Job Ticket (or lease contract) could have prevented this company from a multi-million dollar exposure by transferring liability to the customer.

A typical Job Ticket serves several functions, including documenting type of equipment leased, hours worked, payment terms and standard terms and conditions.The standard terms and conditions are intended to cover
the equipment rental, the duties and responsibilities of the crane operator and the customer, and in the event of a loss such as indemnification and insurance, the customer’s obligations in the case of default. Indemnity is a critical term in an agreement
for crane lifting services.

Indemnity has been defined as the obligation of a party to make good on a loss or damage that another party has incurred-in this case the crane operator. Traditionally, indemnity falls into three types of agreements:
a “Type I” otherwise known as specific indemnity, “Type II” known as general indemnity, and “Type III.”

Had the crane company included a Type I indemnity agreement in the Job Ticket, they would have been potentially protected by the customer for numerous acts, including the active negligence of the indemnitee, in this case the crane operator.

Type I agreements are the highly preferred type of indemnification contracts to be used in the framework of a crane operator’s standard lease terms and conditions, given the hazards and risks associated with performing lifting operations on construction projects.

Read more about the different types of indemnity agreements.

15760 Ventura Blvd., 16 Floor

Encino, Ca 91436

(818) 907-4000

www.grayduffylaw.com

In This Issue

The Doctrine of Superior Equalities

Advantages of Pre-Suit Mediation

Elements of Job Tickets

So You Think You Know the Law…

Firm Announcements

So You Think You Know the Law…

Test your knowledge on issues related to automobile accidents by answering the following questions.

1. If a driver is in an automobile accident while holding his cell phone, the driver may be presumed to be at fault and the burden shifts to the defendant driver to prove that he was not negligent rather than the
plaintiff having to prove the defendant was negligent.

(True/False)

2. If you are driving down the road and, in order to avoid a runaway truck, you drive your vehicle into a store front, you can be held liable for the damages to the store owner.

(True/False)

3. A passenger injured in a car because of the negligence of the driver can be held comparatively liable for his own injuries.

(True/False)

4. If your contractual employee (think police officer or professional athlete) is injured in a car accident as the result of a third party’s negligence, you can sue the third party for the benefits you continue to
pay your contractual employee while he is unable to work.

(True/False)

5. You can sue the fire department where the death of a loved one resulted from the firefighter’s allegedly negligent operation of a fire truck while attempting to fight a fire.

(True/False)

Please feel free to contact either Jack Liebhaber or Kevin Cruz if you have any questions on defending automobile accident related claims.

Firm Announcements

Gray·Duffy
is pleased to announce

Edmund
M. Scott has joined the firm as a partner in the Redwood City office. Mr. Scott’s practice covers a broad spectrum of civil litigation matters including personal injury, construction defect, wrongful death, landlord/tenant, premise liability and employment.

Mr. Scott has extensive trial experience such as landlord/tenant, fire loss, premise liability, professional liability, childhood sexual abuse, toxic torts, crop damages and recreational provider liability matters.

The
firm has named Michael S. Eisenbaum partner. Since joining the firm, he has represented clients in hundreds of cases involving premises liability, contract liability and enforcement, construction defect, product liability, personal injury and property damage litigation.
Mr. Eisenbaum’s expertise includes handling a variety of civil lawsuits from inception through trial and appeal.

View more Gray·Duffy profiles.

Gray Matters is provided for informational purposes only, and the contents are not intended and should not be construed as legal advice.

Gray Matters Winter 2011

admin — Mon, 01 Nov 2010 09:00:45 +0000

Gray·Duffy: Year in Review

The year 2010 was an extraordinarily successful one for Gray·Duffy. We diversified and broadened the firm’s expertise with the addition of two new attorneys and achieved noteworthy settlements on behalf of our clients in many of our practice areas. To read representative success highlights, click here.

We’re proud to announce the addition of two attorneys who bring a wealth of experience to our litigation, mediation and personal injury practice areas. In our Redwood City office, we welcomed partner Richard M. Williams, who brought many of the clients from his large mediation and arbitration practice, including school districts and a major supermarket chain in the southern San Francisco Bay Area, a new geographic area for Gray·Duffy. In our Encino office, we welcomed Jack M. Liebhaber, whose particular speciality in automobile, motorcycle, and pedestrian accidents expands our personal injury practice area.

We wish you all a very promising year and we look forward to 2011.

Sincerely,

Gary S. Gray, Managing Partner

UPDATE: Recovery of Medical Expenses

Under Hanif/Nishihama

By: Brian Plessala

The Hanif/Nishihama doctrine has addressed these questions for some time in California. The California Supreme Court is now poised to address the issue in Howell v. Hamilton Meats and Provisions, Inc. The decision to review the case indicated the statewide importance of the issues and will likely resolve the conflicts between Hanif, Nishihama and Howell.

Click here to continue reading about this success.

Do You Need Security Guards?

By: Rene Faucher
Published: LA Daily Journal

As a commercial property or building owner, the security of your tenants and guests is always a main priority. But how do you know when you need increased security and what type of security system you should employ? The courts in California have recognized that circumstances which make assaults reasonably foreseeable may create a duty to have security guards.

Such circumstances include a prior incident of an assault or battery on a tenant or a guest on or near your commercial property, or several previously threatened assaults or even thefts in the vicinity of this property, as well as being located in a high crime area, or having a known presence of gang members around the property. Once you have made the decision to have security guards, who do you hire? What are the details you should consider?

Continue reading this article to find out how to protect your establishment.

15760 Ventura Blvd., 16 Floor

Encino, Ca 91436

(818) 907-4000

www.grayduffylaw.com

In This Issue

Year in Review

Case Update: Recovery of Medical Expenses

Do You Need Security Guards?

So You Think You Know the Law…

New Partner Announcement

So You Think You Know the Law…

Test your knowledge on legal issues by answering True or False to the following questions. Click the (True/False) links for the answers.

1) The statute of limitations for medical malpractice is always one year from the date of injury. (True/False)

2) If a reasonable person knows of facts sufficient to cause them to suspect an injury caused by medical error or malpractice, the statute of limitations is one year from the date the person suspects the injury was caused by malpractice. (True/False)

3) The statute of limitations in medical malpractice can begin to run if a plaintiff knew or should have suspected that the injuries were caused by negligence or wrongdoing. (True/False)

4) The statute of limitations in a wrongful death case involving medical malpractice can extend beyond one year from the date of death. (True/False)

5) The time for commencement of a medical malpractice action may exceed three years if a foreign body is present which has no diagnostic or therapeutic purpose. (True/False)

If you have any questions regarding medical malpractice, please contact Kevin Park or call (818) 907-4000.

Firm Welcomes New Partner:

Richard M. Williams

The firm is pleased to announce Richard M. Williams has joined as a Partner in the Redwood City, CA office. Mr. Williams has more than 35 years of complex litigation experience. His practice covers a breadth of litigation matters including product and premises liability, catastrophic and other personal injury, public entity defense and unfair business practices.

Mr. Williams has extensive experience in ADR and has been involved in more than 700 cases as an acting judge pro tem, special master, arbitrator or mediator.

View more Gray·Duffy profiles here.

Gray Matters is provided for informational purposes only, and the contents are not intended and should not be construed as legal advice.