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Case Summaries

Injury & Tort Law

[09/23] Fountain v. Karim
In a personal injury suit Federal Tort Claims Act (FTCA), 28 U.S.C. sections 1346(b) and 2671?80, and New York law, against a federal government employee, who borrowed a government?owned motor vehicle at the end of his workday without first obtaining explicit permission to do so and was involved in an accident with plaintiff, the District Court's dismissal of all claims against the government for lack of subject jurisdiction and refusal to exercise supplemental jurisdiction over the remaining state?law claims against the employee, after finding that the employee was not acting within the scope of his employment at the time of the accident, are reversed where although such a finding would warrant dismissal in an action under the FTCA, dismissal was premature here in light of an unresolved factual dispute over whether the employee used the vehicle with implied permission.

[09/22] Regalado v. Callaghan
In a personal injury action brought by an employee of a subcontractor against a licensed contractor who acted as an owner-builder for his home project on which plaintiff was injured, the trial court's entry of the jury's findings that defendant was negligent and was 40 percent at fault, is affirmed over defendant's claims that: 1) the court erred by failing to instruct the jury that a person who hires an independent contractor is not liable for injuries to the contractor's employee unless the hirer's negligent exercise of retained control 'affirmatively contributed' to the employee's injury; 2) insufficient evidence supported the jury's verdicts on both premises liability and negligence; 3) plaintiff's counsel committed misconduct by urging the jury to base its verdict on protecting the community; 4) the trial court erred by permitting plaintiff to recover past wages; and 5) the jury's award of future medical costs must be reduced because it was not supported by substantial evidence.

[09/20] Mills v. AAA Northern CA, NV and Utah Ins. Exch.
In a suit against an insurance company that denied uninsured motorist coverage to a third party beneficiary injured in an automobile accident because it had cancelled the policy before the accident occurred, brought by the third party, the trial court?s grant of summary judgment to the insurer is affirmed over plaintiff?s contentions that: 1) the cancellation was invalid because a written notice seeking information sent by the insurer to the insureds prior to cancellation was unreasonable as a matter of law; and 2) disputed facts existed as to whether the insurer had mailed the notice of cancellation and actually cancelled the policy.

[09/16] Jorge v. Culinary Institute of America
In a suit for injuries sustained when plaintiff was struck by a car driven by an instructor employed by the defendant school, the jury's finding that the instructor was acting in the scope of his employment at the time of the accident is reversed where defendant cannot be liable to plaintiff for injuries caused by the instructor's negligence because there was no evidence that at the time of the accident instructor was acting within the scope of his employment.

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Workers' Comp

[08/17] Kerrigan v. MSPB
In an appeal of a final decision of the Merit Systems Protection Board dismissing, for lack of jurisdiction, his claim that his workers' compensation benefits were improperly terminated in retaliation for protected whistleblowing activity, the Board's decision is affirmed where, although the Board incorrectly held that 5 U.S.C. section 8128(b) bars its review of petitioner's appeal, petitioner failed to make a nonfrivolous allegation that his protected disclosure was a contributing factor in the agency's action.

[08/11] Truck Insurance Exchange v. WCAB
In a worker's comp case in which employer received notification of the injury the day after it happened by a workers compensation claim was not submitted to insurer until more than seven years later, the order excluding laches as an affirmative defense is affirmed where laces does not apply because notice to or knowledge of a workplace injury on the part of the employer is deemed to be notice to or knowledge of the insurer.

[06/22] State Compensation Insurance Fund v. WCAB
In an action seeking review of a decision of the Workers' Compensation Appeals Board regarding the medical necessity of proposed treatment requested by an employee of the California Highway Patrol (CHP), involving Labor Code Section 4610.6, which created a new procedure--independent medical review (IMR)--that an injured worker may use to challenge an employer's timely denial, delay or modification of a request for authorization of proposed medical treatment, the Board's decision is reversed where the 30-day time limit in section 4610.6(d), is directory and, accordingly, an untimely IMR determination is valid and binding upon the parties as the final determination of the director.

[05/11] SSA Terminals and Homeport Ins. Co. v. Carrion
In an action brought by a claimant seeking disability benefits under the Longshore and Harbor Workers' Compensation Act, an employer/insurer's petition for review of a decision by the Benefits Review Board is denied where: 1) the claimant timely filed his claim against his employer; 2) claimant's knee injury was a permanent, rather than a temporary, disability; and 3) the doctrines of exhaustion and waiver were inapplicable because claimant presented his claim of permanent disability well before the conclusion of the administrative process and neither the employer nor the agency was blindsided by the argument.

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