San Diego, CA
Mediation Lawyer at San Diego, CA
Practice Areas: Mediation
OUTCOME: $1,600,000 Settlement
Dangerous condition of public highway. Plaintiff was a passenger in a car which failed to negotiate a left hand turn at night. Plaintiff alleged there was a dangerous condition for failure to adequat ... ely warn of the upcoming curve. As a condition of settlement, the County made significant improvements at the location to prevent future accidents.
OUTCOME: Settled
Single plane crash taking off from McClellan-Palomar Airport in Carlsbad, California, killing defendant pilot and passenger Drago Atanasovski. Heirs included wife of 46 years and five adult children. ... Competing claims by the City of Carlsbad and SDG&E for property damage caused by plane crashing onto The Crossings Golf Course after colliding with power lines/pole.
OUTCOME: $146,000 combined settlement
Auto v auto accident. There were four occupants in plaintiffs' vehicle. Defendant turned left in front of plaintiff's oncoming vehicle, failing to yield the right-of-way. Plaintiffs suffered mainl ... y soft tissue injuries with the exception of one passenger who suffered traumatic injuries to his eye and eye socket from striking the seat in front of him. Defendant contended the most seriously injured plaintiff was comparatively at fault for failing to wear a seat belt. All other passengers in the car were wearing their seat belts and suffered significantly lesser injuries.
OUTCOME: $2,000,000 settlement
Plaintiff purchased 2,000-plus acres of real estate in east San Diego County with the intent to develop the land for the sale of private residences. In the 1980's, a development plan for 389 residenti ... al lots was approved by the city. However, delays and litigation forced the owner into bankruptcy. At the time of plaintiff’s purchase of the property, it was expected that approval would be given for approximately 250 residential lots. Defendant offered to issue a title policy to plaintiff incident to the property purchase based on a preliminary title report which listed 32 exceptions to title. However, the copy of the preliminary title report provided to plaintiff, its real estate broker and escrow company only contained 16 exceptions to title. Following the close of escrow, defendant sent plaintiff a title policy which listed 32 total exceptions to title, 16 of which had not been previously disclosed on the copy of the preliminary title report approved by plaintiff. Included in the 16 additional exceptions to title was an unplotted easement running the length of the property, deferred water contracts totaling approximately $500,000, and other matters. Plaintiff reported the discrepancies to defendant title company and later tendered a formal claim. Defendant failed to notify plaintiff whether it was accepting or rejected the claim for 20 months. Finally, defendant paid plaintiff $270,000, far below what plaintiff claimed as damages. Plaintiff’s Contentions: Plaintiff contended defendant failed and refused to timely accept its claim for 20 months. As a consequence, plaintiff could not move forward with its development of the property due to the uncertainty of the quality of title. Plaintiff alleged it sustained significant damages, including loss of profits from the planned development of the property. Plaintiff further alleged that defendant had engaged in bad faith claims handling both in the lengthy delay and underpayment of its claim. Defendants’ Contentions: Defendant contended there was no liability for non-disclosure in the preliminary title report. Defendant further denied liability for the allegedly incomplete preliminary title report provided to plaintiff. Defendant contended plaintiff knew from other sources regarding the non-disclosed exceptions and that plaintiff and/or its broker had another recent preliminary title report which fully disclosed all exceptions. Defendant disputed plaintiff’s stated intent to develop the property and further contended plaintiff was trying to sway the 2,022 acres for other property for purposed of building an Indian gaming casino. Finally, defendant contended its payment of $270,000 represented the diminution of the fair market value of the property.
OUTCOME: Settled $11,900,000
Plaintiff purchased an Employer’s Purchased Individual Disability Insurance policy for one of its pitchers, Randy Myers, who was acquired from the Toronto Blue Jays during the 1998 season. Myers pit ... ched through the end of the season, including in the 1998 World Series against the New York Yankees. The policy ran from August 10, 1998 through February 15, 1999, or the start of spring training, whichever was sooner. Upon returning for spring training on February 28, 1999, Myers was examined by the Padres’ team physician, who determined he had significant weakness of his rotator cuff. Myers nonetheless pitched during spring training. Near the start of the regular season, Myers complained that he had “tweaked†his throwing arm and when called upon to pitch on opening day, stated he could no longer pitch. The policy provided $4,000,000 of coverage for the 1999 and 2000 seasons if Myers became disabled as a result of an “accidental bodily injury†which occurred during the policy period, or a “sickness or disease†which was first “reasonably capable of diagnosis by a physician†during the policy period. The Padres submitted a claim in December 1999, contending that Myers had become disabled as a result of rotator cuff disease which was first reasonably capable of diagnosis by a physician during the off-season while the policy was in force. Lloyd’s delayed a decision on the claim for 16 months, finally issuing a denial in April 2001. Plaintiff’s Contentions: Plaintiff alleged the evidence established that Myers was disabled as a result of a massive tear of his rotator cuff caused by “disease†and that said condition was first “reasonably capable of diagnosis by a physician†in late December 1998 or early January 1999, within the policy period. Plaintiff further alleged that defendant failed to properly and impartially investigate its claim, failed to have or use any procedures manuals, failed to document the claims file, conducted an improper “independent medical examination,†wrote portions of the “IME†report for the doctor to sign, disregarded evidence supporting payment of the claim and instead manufactured evidence to support the denial. Plaintiff also alleged defendant unreasonably delayed a decision on the claim for 16 months, during which time it was concocting the basis for its denial. Defendants’ Contentions: Defendant contended that Myers was disabled either as a result of an “accidental bodily injury†when Myers “tweaked†his shoulder after the policy expired, or, if the disability was caused by a “sickness or disease,†that said “sickness or disease†was first “reasonably capable of diagnosis by a physician†in 1993 based upon MRI films which revealed the presence of the “disease†at that time. Defendant alleged that Myers had pitched in 6 exhibition games after the policy expired and only reported an inability to pitch on opening day, almost 2 months after the policy expired. Defendant contended its investigation was reasonable, that any delay in denying the claim was to permit a proper and thorough investigation, including the obtaining of medical records, and that the claim was denied within 30 days after the final IME report being issued. Damages: Contract damages of $4,000,000 per season for the 1999 and 2000 major league seasons, plus interest; attorneys’ fees and punitive damages for bad faith.
OUTCOME: $15,000,000 estimated settlement value
This was a California only class action. BMG is a music company which offers members the opportunity to join one or more “music clubs†which offer discounted CDs and cassette tapes. BMG sends ... uniform offers to prospective new members through direct mail campaigns and advertisements placed in popular magazines and newspapers. Each prospective new member is offered a certain number of CDs or cassettes for “FREE†or for 1¢ (the “enrollment packageâ€). The offers state in small print that “shipping and handling†will be added, but fail to state the amount of the shipping and handling charges. Upon joining the “club,†the new member selects his or her “FREE†CDs or cassettes from a pre-determined list. Upon receipt of the enrollment package, the new member is billed a “shipping and handling†charge for each selection, often at a total charge of $30.00 or more. Plaintiffs’ Contentions: Plaintiff alleged that defendant systematically deceived and misled consumers by (1) failing to disclose that the “shipping and handling†charge would be applied to each selection; (2) failing to disclose the actual amount of the charge which is known to BMG at the time the offer is made; (3) distributing letters to those who complained which failed to accurately identify the basis for the charges. In addition, plaintiff alleged the “shipping and handling†charge had no relation to any actual costs to ship or handle the merchandise, that defendant’s charges were unreasonable and/or that said charges exceeded 80% of the actual cost of the free merchandise, thereby violating California law. Defendants’ Contentions: Defendant denied any wrongdoing, denied that any consumers were deceived or misled, that the information regarding the amount of the charges was disclosed in the “New Members Guide†which accompanied the shipment of the enrollment package, that the “shipping and handling†charges were reasonable, did not exceed 80% of the actual cost of the product, and were consistent with competitors’ rates. Defendant contended that any consumer who did not want to pay the shipping and handling charge could simply return the merchandise within a 10-day no risk period. Damages: Excess charges paid by consumers for “shipping and handling†their enrollment packages.
OUTCOME: $975,000
Decedent was a resident in a retirement home community. She was diagnosed with hypertension and advanced Parkinson’s Disease. She was placed in the Health Center, a 24-hour nursing care facility. ... After returning from a hospital stay for pneumonia, decedent was eating in the dining room when she choked on food and/or aspirated liquid. She was taken to her room and allegedly stopped breathing upon entering her room. Emergency CPR was allegedly performed and paramedics were called. Upon arrival, paramedics found decedent had no pulse and was not breathing. Paramedics allegedly removed blockage from her airway and began CPR, eventually attaining a heart beat. Decedent was taken to the hospital unconscious. She died after being taken off life support the following day. Plaintiff’s Contentions: Regarding the elder abuse/wrongful death claim, plaintiffs alleged defendant failed to properly supervise plaintiff while she was eating, failed to have an aide assisting her while eating, and failed to respond promptly when decedent aspirated and/or choked. Plaintiffs further alleged decedent was merely wheeled to her room and put to bed. Upon arrival, the paramedics alleged they did not see anyone performing CPR on decedent. Paramedics further alleged they found food blocking decedent’s airway, which was removed. Regarding the fraud claim, plaintiffs alleged defendants concealed from residents deficiencies found by the California Department of Health in the Health Center, and concealed from residents that a substantial fine had been levied against defendant. Plaintiffs alleged the concealment of these conditions was made at a time before decedent became a resident in the Health Center and that decedent’s family would not have placed her in the Health Center had they known the true facts. Plaintiffs further alleged decedent was charged for services which in the Health Center which were already included in the monthly fee. Defendants’ Contentions: Defendants denied any wrongdoing and denied plaintiffs’ allegations. Defendants contend decedent was properly attended in the dining area, had demonstrated the ability to feed herself, and was not under orders requiring hand feeding. Defendants further contend that decedent aspirated liquid, that proper and immediate efforts were taken to assess her situation, call paramedics and treat decedent. Defendants contend that after decedent stopped breathing, CPR was started, her airway was cleared and CPR continued until the paramedics arrived. Defendants contend the only proper treatment for aspiration was hospitalization. Defendants also contend decedent died as a result of aspiration pneumonia. Regarding the fraud claim, defendants denied concealing any information from residents, alleged the information was posted on bulletin boards and made available to any residents who requested, and denied the alleged conduct constituted actionable fraud. Defendants further denied that decedent was billed improperly, or that she was charged for services which were included in her monthly fee. Injuries and/or Damages: Wrongful death, elder abuse.
OUTCOME: $55,000,000 estimated settlement value
This was a nationwide class action case. Columbia House is a music company which offers members the opportunity to join one or more “music clubs†which offer discounted CDs and cassette tapes. ... Columbia House sends uniform offers to prospective new members through direct mail campaigns and advertisements placed in popular magazines and newspapers. Each prospective new member is offered a certain number of CDs or cassettes for “FREE†or for 1¢ (the “enrollment packageâ€). The offers state in small print that “shipping and handling†will be added, but fail to state the amount of the shipping and handling charges. Upon joining the “club,†the new member selects his or her “FREE†CDs or cassettes from a pre-determined list. Upon receipt of the enrollment package, the new member is billed a “shipping and handling†charge for each selection, often at a total charge of $30.00 or more. Plaintiffs’ Contentions: Plaintiff alleged that defendant systematically deceived and misled consumers by (1) failing to disclose that the “shipping and handling†charge would be applied to each selection; (2) failing to disclose the actual amount of the charge which is known to Columbia House at the time the offer is made; (3) distributing letters to those who complained which failed to accurately identify the basis for the charges. In addition, plaintiff alleged the “shipping and handling†charge had no relation to any actual costs to ship or handle the merchandise, that defendant’s charges were unreasonable and/or that said charges exceeded 80% of the actual cost of the free merchandise, thereby violating California law. Defendants’ Contentions: Defendant denied any wrongdoing, denied that any consumers were deceived or misled, that the information regarding the amount of the charges was disclosed in the “New Members Guide†which accompanied the shipment of the enrollment package, that the “shipping and handling†charges were reasonable, did not exceed 80% of the actual cost of the product, and were consistent with competitors rates. Defendant contended that any consumer who did not want to pay the shipping and handling charge could simply return the merchandise within a 10-day no risk period. Damages: Excess charges paid by consumers for “shipping and handling†their enrollment packages.
OUTCOME: $500,000 settlement fund
This class action/§17200 lawsuit involved variable interest rate home mortgage loans that were originally sold by defendants Northeast Savings, F.A. and Nemac, Inc., dba Northeast Federal in the late ... 1980's. The loans adjusted on either a monthly (1/12 loans) or every six month (6/6 loans) basis. The interest rate for the loans was tied to the Weighted Average Cost of Funds for the Eleventh District Savings Institutions of the Federal Home Loan Bank of San Francisco (COFI Index). The loan agreements required defendants to adjust the loan payments by using the COFI Index last received from the U.S. Government through the U.S. mail prior to the date of calculation. The COFI Index is known in the industry to lag behind other traditional indexes, such as CD or T-Bill rates. Thus, when interest rates are falling, the COFI Index falls slower than the industry. During the 1990's, interest rates on home mortgage loans began to fall. After adjusting the loans for several years, defendants Northeast Savings, and Northeast Federal sold the loans to various institutions, including defendants American Savings Bank (now Washington Mutual Savings) and First Fidelity Thrift & Loan Association. Northeast was later purchased by another financial institution, which was subsequently purchased by defendant Fleet. At the conclusion of discovery, plaintiffs were only able to identify errors being made on adjusting the 6/6 loans involving less than 100 of the 373 identified class members. Plaintiffs’ Contentions Regarding Liability: Plaintiffs contended that on adjusting the loans, defendants should have used the COFI Index that had been received no later than 30 days prior to the adjustment date. However, plaintiffs contended that defendants used COFI Indexes that had been received 60, 90 or more days prior to the adjustment date, and that these Indexes resulted in higher interest rates being used to adjust the loans than the lower, more recent Indexes. The higher interest payments also resulted in less of a principal balance reduction. Defendants’ Contentions Regarding Liability: Defendants contended that the loans had been serviced properly, that there was nothing to indicate an improper interest rate had been used to adjust the loans, that plaintiffs and the class were regularly provided written notices setting forth the interest rate adjustments that were made, and that the lawsuit was barred by the statute of limitations. DAMAGES: Higher interest payments, less principal balance reduction. SETTLEMENT: $500,000 settlement fund from which claims would be paid. Class members with the 6/6 loans received a set percentage of their original loan balance (a class member with an original loan balance of $300,000, for example, would receive approximately $1,400.00). Class members with 1/12 loans received $100.00. (The case settled after mediation before Judge J. Lawrence Irving, Retired).
OUTCOME: $329,000
This auto accident occurred on November 1, 1997, at approximately 1:00 a.m. Plaintiff Kimberly Johansen, age 22, a junior at UCSD, was a front seat passenger in her mother’s Honda Accord being drive ... n by defendant Joel Soper. Another couple was in the back seat. The group was returning from a bar where they had celebrated Halloween. Defendant Troy Thompson was driving a 1983 Yamaha motor scooter east on Interstate 8, when the motor scooter allegedly lost power. Witnesses who passed by Thompson gave varying accounts about whether the scooter’s lights were on or off. One witness testified the scooter was lying on its side in the middle of the freeway. Several weeks prior to the accident, Thompson had taken his motor scooter to San Diego House of Motorcycles, complaining that the motor scooter had died while he was riding it on the street. A new battery was put in the motor scooter. Thompson had previously brought the motor scooter in for repair for allegedly the same problem, although the reason for the prior repair was heavily disputed. Defendant Soper came upon Thompson and the motor scooter in the middle of the freeway and was unable to avoid hitting them. Either Thompson and/or the motor scooter went through the windshield, allegedly striking plaintiff Johansen, who was unconscious at the scene. Plaintiff’s Contentions: Plaintiff contended as follows: defendant Thompson was negligent in permitting his motor scooter to be stopped in the middle of the freeway. Defendant Soper was driving too fast, failed to maintain a proper lookout and failed to maintain proper control, especially since other drivers had been able to avoid Thompson. Defendant Yamaha was liable for a defectively designed motor scooter. Plaintiff contended the scooter’s switch was designed poorly and with improper materials, such that it allowed the switch to short out. Once power is interrupted, plaintiff contended the motor scooter would stop, regardless of battery power. Defendant Lorrie-L, Inc. was negligent for failing to properly inspect and repair the motor scooter and failing to identify the defective, intermittent switch problem. Defendants’ Contentions: There were cross-complaints by various defendants against other defendants. Generally, defendant Thompson contended that Yamaha and/or Lorrie-L were responsible for the accident and for the motor scooter dying on the freeway - either because of a defective design of the switch device and/or negligent inspection and repair by Lorrie-L. Soper contended he was maintaining proper control and could not avoid Thompson, who was at fault for standing in the middle of the freeway. Yamaha contended its motor scooter was not defective nor was any action by Yamaha the cause of the accident. Yamaha contended that parts of the motor scooter had been lost by Thompson’s former counsel and/or by certain storage yards, making proof and defense difficult if not impossible. Yamaha contended that Soper was negligently driving his vehicle at the time of the accident, and that Thompson should not have been standing in the middle of the freeway. Yamaha contended that tests conducted at the hospital showed trace amounts of marijuana in Thompson’s system. Lorrie-L contended it had properly serviced the motor scooter, that there was no indication of any intermittent switch problems, and that they were never advised by Yamaha to be on the lookout for any intermittent switch problems with the subject motor scooter. Lorrie-L contended Thompson and Soper were the only responsible parties. Injuries and/or Damages: Kimberly Johansen - Closed head injury with residual minimal deficits. Missed one year from college with delayed entry into the work force and potential diminished earning capacity. Medical specials of approximately $79,000. Loss of earnings - 2 months from part-time job as teller. Barbara Johansen - property damage claim only.
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