USLAW-Magazine_FallWinter2018

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Ms. Chelsea successfully argued the
client did not violate Section 1630(a) because
the building at issue (built on a steep
slope) measured 59 feet 10 inches at the
northeast side of the building where the primary
construction entrance was located,
and therefore the building was not 60 feet
or more in height. She further argued it
was immaterial the building height exceeded
60 feet in height as measured at the
three other sides of the building because
the only relevant measurement was from
the primary construction entrance.
The Division of Occupational Safety
and Health (“DOSH”) that prosecuted the
citation claimed the building exceeded 60
feet in height at other construction entrances
and disputed the location of the primary
construction entrance. The client
introduced evidence of the height of the
building as measured from ground level at
the primary construction entrance. DOSH
introduced the building plans showing the
building exceeded 60 feet in height at locations
other than the primary construction
entrance. DOSH also argued because the
client originally believed the building
height exceeded 60 this was proof of how
the building should be measured and established
a willful violation of Section 1630(a).
After a one-day hearing, the Administrative
Law Judge issued an opinion finding
the construction entrance identified by
the client was the primary construction entrance.
She further held DOSH did not
meet its burden of establishing the building
was 60 feet or more in height as measured
from ground level of the primary construction
entrance to the highest structural
point. Because the building did not exceed
60 feet in height, no passenger elevator was
required. The citation was dismissed and
the penalty vacated.
This was a significant victory for the
general contractor client. If the citation
had been affirmed the client would be required
to disclose the willful citation to potential
clients, impairing its ability to obtain
future contracts.
Murchison & Cumming
(Los Angeles, CA)
A Los Angeles Superior Court Jury returned
with a defense verdict in favor of a skilled
nursing facility after a 10-day trial in which
plaintiffs sought to recover more than $15
million in compensatory as well as punitive
damages. Murchison & Cumming’s Dan L.
Longo and Mary C. Trinh represented the
defendant skilled nursing facility and defendant
corporate entities.
The plaintiff was admitted to the
skilled nursing facility to recover from brain
surgery that was performed after a series of
falls at home. On admission to the skilled
nursing facility, the plaintiff was noted to
have four skin ulcers. Three months later,
three of the skin ulcers healed but the sacral
decubitus ulcer evolved from a Stage II to
an unstageable/Stage IV ulcer.
At trial, the plaintiff contended that
purported poor care, reckless neglect and
the defendants placing "profits over people"
led to the progression of the sacral decubitus
ulcer from a Stage II to an infected, lifethreatening,
"baseball-sized" Stage IV ulcer.
The plaintiff's daughter and son asserted
separate claims for negligent infliction of
emotional distress and intentional infliction
of emotional distress attributed to the neglect
of their mother and the facility's alleged
attempts to "cover up" the progression of
the sacral decubitus ulcer.
There was no dispute that the sacral decubitus
ulcer evolved. However, the defense
successfully argued that the progression of
the sacral ulcer was medically unavoidable
due to the plaintiff's significant underlying
serious health issues which, combined with
the location of the ulcer, interfered with the
healing process. Mr. Longo and Ms. Trinh
also presented evidence that an interdisciplinary
team closely monitored and treated
the ulcer and that the family received regular
updates regarding the plaintiff's condition
and the care provided.
The jury returned with a defense verdict
as to all causes of action after only three
hours of deliberation.
Rivkin Radler LLP (Uniondale, NY)
Rivkin Radler secured a victory in the first
appellate case to interpret Insurance Law §
3408(c) since a 2014 amendment.
Under Insurance Law § 3408(c), a
property insurer or an insured can demand
that appraisers selected by the parties decide
disagreements over the “amount of the
loss.” Typically, insurers argue that an appraisal
is confined to an agreed scope of
damage, and resist submission to appraisal
in situations where the “scope of damage”
or required repairs are disputed.
In response to intense lobbying efforts
from the plaintiffs’ bar, the New York
Legislature amended the statute in 2014 to
permit appraisers to decide the “extent of
the loss or damage.” The Legislature also acknowledged
that an appraisal is only appropriate
to determine issues relating to
damages and that “an appraisal shall not determine
whether the policy actually provides
coverage for any portion of the
claimed loss or damage.” After the amendments
became effective, insureds aggressively
pursued appraisal, even in cases where
coverage was disputed by the insurer.
No appellate court had interpreted the
amendments to the statute until the First
Department issued its opinion in Louati v
State Farm Fire and Casualty Co. (2018 NY
Slip Op 03908 [May 31, 2018]). In Louati,
the Court affirmed the dismissal of the insured’s
Petition to Compel Appraisal. While
the insured argued that the only issue to be
decided was the “scope of damages,” State
Farm showed that an appraisal was not appropriate
in this case since there were unresolved
issues relating to the cause of the
loss and whether or not the insured complied
with certain provisions of the policy
relating to exhibiting the damaged property.
In ruling in our client’s favor, the Court
adhered to the longstanding principle that
a court must first resolve policy coverage issues
before the parties can seek an appraisal.
The Court also reaffirmed
well-settled New York law, as well as the plain
language of the amendment, that coverage
issues cannot be decided in an appraisal.
The decision provides guidance and clarity
for those seeking to rely on New York’s appraisal
statute.
Attorneys Cheryl F. Korman, Michael
A. Troisi, Michelle A. Bholan and Henry M.
Mascia managed this case.
Snyder Burnett Egerer, LLP
(Santa Barbara, CA)
After three weeks of jury trial in San
Bernardino County, Barry Snyder and
Jessica Farley of Snyder Burnett Egerer, LLP
secured a defense verdict on April 30, 2018,
in a race retaliation, whistleblower, and
defamation case. Plaintiff, a Caucasian
woman, claimed she was terminated from
C.R. England because she complained to
HR that she was underpaid and that her
Hispanic supervisor favored Hispanic employees
when it came to hiring, scheduling,
speaking Spanish in the office, and celebrating
staff birthdays.
To prove her case, plaintiff relied
largely on a parade of former employees--all
of them Caucasian and female--to disparage
plaintiff's Hispanic supervisor. C.R. England
refuted each of these witnesses by calling
former, current, Caucasian, Hispanic,
Filipino, African-American, male and female
employees to show that plaintiff's complaints
were unsubstantiated.
The defense presented undisputed evidence
that plaintiff was terminated because
she came to work without a required doctor's
note after telling her supervisor that
she had a "highly contagious" disease. In
doing so, she violated company policy and
a direct order by her supervisor. At trial,