News & Events:

Debunking the Bunkhouse Rule

August 27, 2015

If an employee who lives on the employer’s property is injured – does that mean the employer is responsible under workers’ compensation?   California has a doctrine, known as the Bunkhouse Rule, which has long held that it does; however, recently the rule got some clarification in Wright v State.  That ruling held that the injury must arise out of AND occur in the course and scope of employment.  This requirement is met when the employment agreement contemplates, or the work requires, the employee reside on the property.

 

The case that brought about the clarification involved an employee, Wright, who worked for the State and lived on State-owned property.  Wright was injured when a stair in a common area of the property gave out.  Wright filed a civil suit alleging premises liability rather than a workers’ compensation claim but the trial court found his was an industrial injury.  Wright appealed.

The Court of Appeal found that Wright did not come within the Bunkhouse Rule because he was not required to live on the property or provided any employment benefit.  That the State required Wright to name the State as an additional insured on his liability policy, a fact which the Court found underscored that Wright’s residency was not an employment benefit. 

The difference to Wright in whether the injury was industrial or a civil tort claim is significant.  In a tort case the plaintiff is entitled to full compensation for all damages caused by the injury if the landowner was negligent.  In comparison, an injured employee receives partial compensation in the form of medical expenses, partial temporary disability, and, if applicable, a proportionate permanent disability award.  

Case Citation:  Wright v State, 233 Cal.App.4th 1218 (2015)

 

Author

Rayma Church
Rayma Church

Practice Area

  • Agribusiness Disputes & Litigation
  • Hospitality & Premises Lawsuits
  • Personal Injury Claims & Litigation

I HEARD IT THROUGH THE GRAPEVINE: MARKETING ORDER MAY BE UNCONSTITUTIONAL

July 30, 2015

The US Supreme Court heard arguments in April that the taking of a Valley farmer's raisins for a reserve under the Agricultural Marketing Agreement Act of 1937 eminent domain provision is a taking by the government without just compensation, which is unconstitutional.  While each commodity's program differs from others, doubtless each association and its growers are watching for the outcome of this case.

The Marketing Agreement Act, a government program dating back to the Great Depression, requires raisin farmers to contribute to a reserve for later use.   Horne, a Kerman area grower, has been opposing the requirement for the last 12 years, claiming the reserve violates the Fifth Amendment takings clause.  It has been reported that Horne was required to submit 37% and 42% of his crops in the two years preceding his legal saga.  And it has been a saga because this is Horne's second trip to the Supreme Court.

In 2013 the Ninth Circuit federal appeals court rejected Horne's case because it said it should be submitted to the federal claims court as a tax appeal, not an eminent domain case but the Supreme Court directed it to consider the issue.  Justice Elena Kagen foretold of troubled waters stating the Ninth Circuit should figure out "whether this marketing order is a taking, or just the world's most outdated law."

Reports of the April 2015 oral arguments before the US Supreme Court indicate the Government took more fire than did Horne.  One Justice likened the program to Central Planning in 1937 Russia, or forcing cell phone makers to give every fifth phone to the government.  

A decision is expected this month.

Case citation:  Horne v Department of Agriculture (2013) 133 S.Ct. 2053, 186 LEd.2d 69.

 

Author

Rayma Church
Rayma Church

Practice Area

  • Agribusiness Disputes & Litigation

ESCAPE THE LEGAL "FOG": UNDERSTANDING EMPLOYER/EMPLOYEE LIABILITY WHILE DRIVING IN BAD WEATHER

April 23, 2015

Many employers have difficulty navigating the legal quagmire of employee liability.  Plaintiffs’ counsel look for the deepest pockets available for the biggest payout, and thus business owners face concerns about being held financially liable for their employee’s actions.  At times, the concept of employer liability seems a tricky one.

The rule is that an employer is responsible for an employee’s acts within his or her employment capacity.  This can be true even if the employer is unaware of the employee’s actions at the time.  This can also be true when the employee is also serving his or her own interest coincidental to conduct within the scope of the job.  Thus, for an employer, sometimes the conduct of an employee does not appear to be benefiting the employer and the employer’s responsibility therefore seems questionable.
 

If an employee is driving in the capacity of his or her job (such as driving to meet a customer or delivering a product) and is involved in an accident, the employer will be legally responsible for the damages.  This is true even if the employee made the decision, as opposed to the employer, to head out into foggy or other conditions beyond the control of the employer. But what if the employee, on the way to make a delivery, stops in the fog to do something else and thereby contributes to the occurrence of a collision?  Who is responsible?
 
Any time an employee is driving during his or her normal work hours the employer will face potential liability.  There is a significant body of law relating to the determination of liability for an employee who is driving to or from work – a body of law frequently referred to as the “going-and-coming” rule.  Generally, an employee is not within the scope of employment when driving to or from work; however, there is a veritable laundry list of exceptions.  How does an employer anticipate an exception?

In Caldwell v ARB*, a controlling Fifth District case, an employee was driving home from work with a co-worker in the rain and was involved in an accident.  The injured party sued the employer and argued that the employee was acting within the scope of his employment because he was giving a coworker a ride home.  The court held that only the acts of an employee in which an employer derives benefit qualify as a circumstance justifying employer liability.  Driving a fellow employee home was not one of those benefits.

An employer can escape liability if it can prove the employee was not acting within the scope of employment or for the employer’s benefit.  It is very important to limit the amount of activities requiring an employee to drive during bad weather.  If an employee chooses to drive off site for lunch on a foggy day, be sure they are not taking work with them or it could be determined the drive was employment related.

*Caldwell v. ARB, INC., 176 Cal. App. 3d 1028 (Cal. Ct. App. 1986)

 

 

Author

Rayma Church
Rayma Church

Practice Area

  • Agribusiness Disputes & Litigation
  • Trucking and Transportation
  • Personal Injury Claims & Litigation

WHY NOT MEDIATE BEFORE A LAWSUIT IS FILED?

August 5, 2014

We may get drummed out of the Association of Defense Counsel for this suggestion, but we believe that pre-litigation mediation should be considered more frequently.  There are several good reasons, the best of which of course are time and money.

Traditionally, insurance carrier claims representatives would negotiate with plaintiffs’ attorneys in an attempt to settle cases.  That still works in the majority of cases.  However, there can be complicating factors:  1) Some plaintiffs’ attorneys resist negotiating with claims people over the phone, and, (2) Since so many cases are mediated these days utilizing a “neutral,” newer attorneys often hesitate to become involved in “the old days” practice of direct dealing.

Claims professionals are very often not in the same state where a case is filed and do not know the plaintiff’s attorneys or their reputations, their track records both with respect to settlements and trials, and other important considerations. 

A defendant’s chances of success at mediation are enhanced when a limited assignment is made to competent defense counsel.  Competent means a firm which (a) knows the plaintiff’s attorney and his or her “tendencies”; (b) knows the venue and likely settlement and verdict values; and (c) can assist in making sure sufficient documentation is obtained to properly evaluate the case.

The Central Valley of California is a decidedly different venue than Southern California or the Bay Area.  The value of a dollar is different as are the jurors and their verdicts.   Lawyers in the valley still guard their reputations.

To properly evaluate any claim requires sufficient medical, employment and other records that are not available pre-litigation except from Plaintiff’s counsel.  Having a relationship with Plaintiff’s counsel, or a solid reputation locally, can substantially increase the amount of pre-litigation information obtained.  There are many reasons why Plaintiff’s counsel may have an interest in pre-litigation mediation.   Time and money always being the most significant.
 

Author

James D. Emerson
James D. Emerson

Practice Area

  • Business Disputes & Litigation

FOOD POISONING CLAIM COSTS RESTAURANT $682,500

July 8, 2014

In April 2014, a food poisoning claim was settled in California for $682,500 based upon a diagnosis of reactive arthritis caused by salmonella poisoning.   The 30 year old plaintiff was hospitalized for 16 days and will require medication the remainder of her life.  The case was brought against the restaurant, the distributor and the marketing company. 

Food safety is an increasing area of regulation and potential legal liability.   It has been almost 20 years since the Jack in the Box cases which were promptly followed by the Odwalla e.coli cases.   Consumer awareness and expectations have grown during that time period as have the regulations placed upon the food and produce industries.  

The California Health & Safety Code establishes extensive health and sanitation standards for retail food facilities to assure that Californians have a food supply that is safe, and unadulterated.  In addition the federal Food Safety Modernization Act has far reaching implications for anyone in the food, produce or food service industries.  To comply with state and federal regulations, best practices (particularly “Good Manufacturing Practices”) have to be adhered to by everyone in the “food chain,” or each and all may be included in any resulting litigation.  

Knowing how to prepare for litigation once it appears on the horizon is the next best thing to avoiding litigation in the first place.   The lawyers at Emerson Sorensen Church have helped numerous clients in the food industry navigate and interpret state regulations as well as defend against all manner of claims.  We work with our clients and their business counsel to strategize early and be prepared in an effort to control the damage litigation always causes. 
 

Author

Rayma Church
Rayma Church

Practice Area

  • Hospitality & Premises Lawsuits

ADDITIONAL EXPERTS BEING USED IN TBI CLAIMS

June 26, 2014

We are seeing a dramatic increase in Plaintiff's claims for mild traumatic brain injury (TBI).  Many of these cases are being supported by the use of expert witnesses not usually brought into play in the past.

An example of this trend is seen in a worrying verdict rendered by a California jury recently.  In this case, an 80 year old Plaintiff hit her head on the steering wheel in a low impact collision.  Plaintiff called a physical medicine specialist and a registered nurse, but no neurologist, neuro-psychologist or neuro-radiologist was consulted.  Plaintiff’s counsel focused on this to create doubt and won a verdict for a minor TBI of over $1.5 Million.
 
In the past,  the standards of no loss of consciousness and a normal Glasgow Coma Scale would have been barriers to claiming mild TBI.  This is no longer the case.

Traditionally defense counsel has retained a neurologist and a neuro-psychologist in working up the defense of TBI claims.  Now a very capable neuro-radiologist is frequently necessary as well.

In addition, MRI imaging is evolving.  What was common and standard up until three or four years ago is changing.  Gradient Recalled Echo Imaging (GRE MRI) is being supplanted frequently by Susceptibility Weighted Imaging (SWI) MRI technology.

Sometimes the SWI imaging can create false-positive results, or "show too much".  Our office had a case recently in which the Plaintiff relied upon a neuro-radiologist in Southern California to claim that the SWI image showed three lesions that could not be seen in GRE imaging, providing the basis for a mild TBI claim.

Our defense neuro-radiologist was able to basically defeat the plaintiff's claim with a knowledgeable explanation that the SWI image that the neuro-radiologist relied upon could be interpreted in several different ways, only one of which would indicate evidence of lesions.  Additionally, the defense neuro-radiologist was able to opine that the plaintiff's age and physical condition (including hypertension and diabetes) could very well explain the findings on the SWI MRI.

It is very likely that the SWI imaging is going to lead to an increase in "false positives".

Defense counsel need to be attuned to plaintiff counsel's skillful use of SWI imaging and retention of friendly neuro-radiologists to substantially advance claims of "objective" evidence of traumatic brain injury.  Unfortunately, this expanding use of Experts is likely to continue to rise.

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Author

James D. Emerson
James D. Emerson

Practice Area

  • Personal Injury Claims & Litigation
  • Motor Vehicle