Recent Wins: Sheila A. Wirkus
Court of Appeal orders a new trial for GMSR’s clients on the basis of disjunctive wording in a special verdict form
December 12, 2012
Siry v. Farkhondehpour et al. (2012) 2012 Cal.App. Unpub. LEXIS 9014 (California Court of Appeal, Second Appellate District, Division Two) [unpublished]. Plaintiff sued its two partners, including GMSR’s clients, both in their individual capacities and in their capacities as trustees of various trusts, claiming that they wrongfully withheld distributions. In a special verdict, the jury found defendants liable “individually or as trustees,” and awarded plaintiff compensatory and punitive damages. On appeal, GMSR argued that the disjunctive verdict mandated reversal and a new trial. The Court of Appeal agreed, reversing both the judgment and an accounting order premised on the judgment.
Siry v. Farkhondehpour et al. (2012) 2012 Cal.App. Unpub. LEXIS 9014
Court of Appeal affirms judgment in favor of GMSR’s carrier client in a coverage dispute, allowing proof at trial of insured’s additional misrepresentations
November 28, 2012
Guerrette v. Farmers Group, Inc. et al. (2012) 2012 Cal.App. Unpub. LEXIS 8636 (California Court of Appeal, Second Appellate District, Division Three) [unpublished]. Plaintiff lost his house and much of his personal property in a fire. His insurance carrier, GMSR’s client, stopped paying his claim upon discovering that plaintiff had made four material misrepresentations in the submission of his claim. At the trial of his suit for breach of contract and bad faith, over plaintiff’s opposition the court allowed the carrier to introduce evidence of misrepresentations beyond the four initially identified. The jury found for the carrier. The Court of Appeal affirmed. It found that the trial court did not err in allowing proof of misrepresentations beyond the four initially identified, and rejected plaintiff’s assertion that denial of a claim was tantamount to cancelling an insurance policy, which by statute would limit the carrier to the reasons it initially specified.
Guerrette v. Farmers Group, Inc. et al. (2012) 2012 Cal.App. Unpub. LEXIS 8636
Court of Appeal affirms preliminary injunction requiring former independent contractor insurance agent to return confidential information to GMSR’s client
February 23, 2012
Farmers Insurance Exchange et al. v. Song (2012) 2012 Cal.App. Unpub. LEXIS 1363 (California Court of Appeal, First Appellate District, Division Three) [unpublished]. The Court of Appeal affirmed a preliminary injunction in favor of GMSR’s insurer client against its former sales agent. The agent’s agreement with the insurer provided that “all manuals, lists and records of any kind (including information pertaining to policyholders and expirations)” were the principal’s confidential property, that the materials were not to be used or divulged, and should be returned to the insurer upon termination of the agency. After the agent was terminated, he asserted that the contract provision was an invalid covenant not to compete that violated Business and Professions Code 16600, and refused to return the materials. The insurer obtained a preliminary injunction prohibiting further use of its materials and requiring the agent to return them. The Court of Appeal affirmed, finding that the confidential policyholder information at issue was likely to be found a trade secret under the Uniform Trade Secrets Act and therefore supported injunctive relief.
Farmers Insurance Exchange et al. v. Song (2012) 2012 Cal.App. Unpub. LEXIS 1363
Court of Appeal affirms preliminary injunction in favor of GMSR client barring former insurance agent’s continued use of confidential policyholder information
December 6, 2011
Farmers Insurance Exchange et al. v. St. Fleur (2011) 2011 Cal.App. Unpub. LEXIS 9331 (California Court of Appeal, Second Appellate District, Division Two) [unpublished]. The Court of Appeal affirmed with directions a preliminary injunction in favor of GMSR’s client Farmers against its former insurance sales agent, Kettelie St. Fleur. After Farmers terminated St. Fleur, her counsel threatened to help her switch 1200 policyholders to other carriers in a manner that would be untraceable. As a result, Farmers sought and obtained an injunction that prevented St. Fleur from using confidential information that she gained while she was an agent, communicating with any policyholder she had formerly serviced, and soliciting or servicing policyholders in her district for one-year following her termination. The Court affirmed the preliminary injunction but remanded with directions to insert the words “regarding the business of insurance,” in order to clarify the type of communications prohibited by the injunction.
Farmers Insurance Exchange et al. v. St. Fleur (2011) 2011 Cal.App. Unpub. LEXIS 9331
Ninth Circuit clarifies the scope of the work-for-hire doctrine and reinstates a multimillion-dollar copyright judgment for GMSR’s client
August 16, 2010
Jules Jordan Video, Inc. v. 144942 Canada Inc., et al. (9th Cir. 2010) 617 F.3d 1146 (United States Court of Appeals for the Ninth Circuit) [published]. In a published opinion, the Ninth Circuit Court of Appeals reinstated a $2.6 million judgment for GMSR’s client in a copyright infringement case involving the piracy of thirteen films. In the process, the court clarified how the work-for-hire doctrine should be applied to a creative, sole proprietorship situation, where the creator has established and wholly controls a company to produce and distribute his creative works. The court did, however, vacate the right of publicity judgment the client had obtained on the basis that the publicity claim was preempted by the Copyright Act.
Jules Jordan Video, Inc. v. 144942 Canada Inc., et al., (9th Cir. 2010) 617 F.3d 1146
Court reverses $15+ million judgment against GMSR's client, invalidating CACI instruction regarding determination of employee or independent contractor status
July 1, 2010
Bowman v. Tommie Wyatt, Jr., et al. (2010) 186 Cal. App. 4th 286 (California Court of Appeal, Second District, Division Four) [published]. A jury found that GMSR’s client, the City of Los Angeles, was vicariously liable for the negligence of a truck driver who was under contract with the City. Plaintiff Bowman suffered catastrophic injuries when the truck collided with his motorcycle. The jury awarded over $15 million. GMSR persuaded the Court of Appeal that CACI 3704, the standard jury instruction on how to determine whether someone is an employee or an independent contractor, misstates the law because it places undue emphasis on one out of many factors relevant to the determination.
Because the jury rendered a general verdict, getting the reversal entailed negating each of Bowman’s multiple liability theories. Apart from the CACI 3704 issue, the opinion overturns the jury’s verdict as to peculiar risk of harm; holds as a matter of law that the City was not the truck’s motor carrier; and finds there was no substantial evidence that defective brakes proximately caused the accident.
Bowman v. Tommie Wyatt, Jr., et al. (2010) 186 Cal. App. 4th 286
Court of Appeal rejects plaintiff’s claim that she was entitled to special jury instructions, finding that CACI instructions adequately encompassed the issues
January 19, 2010
Holmes v. Tsou (2010) 2010 Cal.App. Unpub. LEXIS 338 (California Court of Appeal, Second Appellate District, Division Seven) [unpublished]. Plaintiff sought treatment for her fractured wrist from GMSR’s client, defendant orthopedist. The orthopedist concluded that surgery was not a reasonable option for her, performed a nonsurgical procedure instead and never discussed surgery with her. Plaintiff then sued the orthopedist, alleging that he was negligent in treating her and in failing to disclose surgery. The jury returned a verdict for defendant. On appeal, plaintiff argued that the trial court erred by refusing her proposed instructions that defendant had a duty to disclose the existence of other schools of thought, available choices, and nonrecommended procedures. The Court of Appeal affirmed in full, and held that the standard CACI instructions adequately encompassed the legal principles set forth in plaintiff’s proposed instructions, and that she was not entitled to her special instructions.
Holmes v. Tsou (2010) 2010 Cal.App. Unpub. LEXIS 338
Court of Appeal reverses multi-million dollar judgment against GMSR clients on ground that California, not Massachusetts law, determines the applicable statute of limitations
November 5, 2009
Bioquest Venture Leasing Company-A, N.V. v. VivoRx Autoimmune, Inc. (2009) 2009 Cal.App. Unpub. LEXIS 8833 (California Court of Appeal, Second Appellate District, Division Seven) [unpublished]. Plaintiff sued GMSR's client VivoRx for breach of a biotechnology license agreement that was silent on choice of law. VivoRx argued that California law applied, and that it barred plaintiff's claims as untimely, while plaintiff insisted that Massachusetts law governed the lawsuit, and that its claims were timely under Massachusetts' longer statute of limitations. The trial court applied Massachusetts law, and entered a multi-million dollar judgment against VivoRx. The Court of Appeal reversed the judgment, adopting GMSR's arguments on two grounds. First, that plaintiff's contract with VivoRx did not incorporate by reference an earlier agreement between plaintiff and a third party that contained a Massachusetts choice of law clause, even though VivoRx had agreed to assume all of the third party's obligations under that earlier agreement. And second, that under both governmental interest analysis and Civil Code section 1646, it was California's shorter statutes of limitations that determined the timeliness of plaintiff's claims.
Bioquest Venture Leasing Company-A, N.V. v. VivoRx Autoimmune, Inc. (2009) 2009 Cal.App. Unpub. LEXIS 8833
Court of Appeal holds insureds’ misrepresentations in prior insurance claim are relevant to denial of current claim
September 22, 2008
Peralda v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 7673 (California Court of Appeal, Second Appellate District, Division Four). [unpublished]. Plaintiff insureds sued GMSR’s client, claiming a bad faith denial of their fire loss claim. The carrier denied coverage because the insured admitted to providing inaccurate information and refused to answer other questions concerning their claim. During the course of the investigation, the carrier learned that the insureds had made material misrepresentations in connection with a prior, related fire claim. The plaintiffs lost after a bench trial. On appeal, they argued that the trial court erred by denying their motion in limine to bar evidence regarding the prior fire claim.
Agreeing with GMSR’s arguments, the Court of Appeal affirmed. It held that plaintiffs had waived any objections by failing to renew them after denial of their motion in limine and that, in any event, evidence of misconduct regarding the prior fire claim was relevant to a determination whether the carrier properly denied the second fire claim.
Peralda v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 7673
False imprisonment coverage does not extend to sexual advances
March 7, 2008
Lyons v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 1939 (California Second District Court of Appeal, Division Two) [unpublished]. A former professional baseball player and sometime network announcer made advances in a hotel hallway to a woman who had been flirting with him. He pulled her aside in order to do so. When she sued, he sought a defense under his homeowner’s policy, claiming that pulling her aside triggered the policy’s false imprisonment coverage. The Court of Appeal affirmed a summary judgment for the insurer. Representing the insurer on appeal, GMSR successfully argued that the policy’s limitation to accidents governed the false imprisonment coverage and that the insured’s conduct could not have been deemed accidental. The Court also rejected the plaintiff’s argument that, so construed, the false imprisonment coverage was illusory.
Lyons v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 1939