Winning Results

Another Win for a JZ Client!
 
Attorney Jose Gonzalez of Jampol Zimet secured another defense judgment for the firm in a legal malpractice case last week.  If you're keeping score, Jampol Zimet is 3-0 for 2012!  In this case, Plaintiff claimed that our attorney clients were negligent, breached their fiduciary duty and contract for legal services by dismissing an automobile driver in an underlying three car chain reaction accident case, which indisputably resulted in injury to Plaintiff.  We argued that the "middle driver" was impacted from the rear driver and, as such, caused no independent injury to Plaintiff.  As such, our clients were not only correct in dismissing the middle driver, but had an ethical duty to do so.  Plaintiff's last settlement demand was $400,000.  Over the course of four days, the court sustained hundreds of our objections to inadmissible testimony and documents.  At the close of Plaintiff's case-in-chief, we made a motion for judgment, which the court granted.  Given the court's favorable rulings on the hundreds of objections, there was no admissible evidence from which Plaintiff established the prima facie elements of any of her causes of actions.

Defense Win for Our Security Contractor Client - 2012

This past Monday, a jury came back with another defense win for a Jampol Zimet client, following a two and a half week trial in San Diego.   Plaintiff is a victim of a vicious stabbing at the University Town Center mall in La Jolla.  She claimed that with better security, it was more likely than not that the attack would not have occurred.  Specifically, plaintiff claimed that had our client advised the mall to implement additional security measures such as better surveillance cameras and signs warning of security in or around the parking structure where plaintiff was attacked, her attacker (who was never caught) would have been deterred from attacking her.  Although it was undisputed that Plaintiff was attacked and suffered physical injury and emotional trauma, it was equally true that the security contractor performed the work which it contracted to perform for the mall and that it was speculative as to whether anything the security contractor did or failed to do played any role in causing Plaintiff's injuries. 
 
Plaintiff 'black-boarded' $2.4 million in special and general damages.   The mall had already settled with plaintiff, paying her a substantial amount.  We defensed the case with a 10-2 jury verdict and will now seek back costs and expert fees (pursuant to a statutory offer rejected by plaintiff).   In short, Plaintiff's counsel, from a respected firm in San Diego with a history of large awards, refused to discuss settlement on reasonable terms and they put too much weight in the hopes that a jury would be swayed by sympathy for this young woman.   By focusing on the legal issues and not disputing that plaintiff was a victim of a terrible crime, we persuaded the jury that our client did nothing wrong and even if somehow they found that the security contractor could have done more, there was no credible evidence from which to find that any additional security would have stopped this attacker.

12-0 Defense Win for Our General Contractor Client - 2011
 
Last week, Jampol Zimet obtained another defense verdict in a two-week jury trial.  It was a claim by an adjacent commercial building owner of property damage allegedly caused by the construction of an apartment building by our  client.  Specifically, plaintiff claimed that the excavation and lack of shoring, caused extensive property damage to the foundation and structure of his 50-year old apartment building.  While liability was questionable, there was, as we saw it, no more than $100,000 in property damage.  Plaintiff remained at a demand of $1 million.  We defensed the case with a 12-0 jury verdict and will now seek back all costs and expert fees (pursuant to the statutory offer).  While winning at trial is often viewed as counsel’s inability to resolve a claim short of trial, this one was simply not viewed reasonably by plaintiff’s counsel and required trial to set him straight.  And, while trial is not usually the best course of action to resolve a claim, winning at trial keeps other plaintiff’s counsel apprised that we are not afraid to try construction cases and we routinely defend such claims.

Court of Appeal Affirms that Broker has no Duty to Known Third-Party Beneficiary – 2011
 
Last week, Jampol Zimet obtained affirmation from the California Court of Appeal, Sixth Appellate District, on an issue which has been simmering in California for a while; whether an insurance agent/broker owes a duty of care to known third-party beneficiaries.  In our case, the claim was from the additional insured general contractor against our client, an insurance broker, which sold a GL policy to its subcontractor client.  The GL policy contained an Independent Contractor exclusion.  An employee of another subcontractor was severely injured when he fell from a scaffold and later sued the general contractor and the broker’s subcontractor client. 
 
The Court of Appeal held that there was no duty owed by the broker to the general contractor to procure for the broker’s client (a subcontractor), a GL policy which insured against claims against the subcontractor’s independent contractors.  This was so because the subcontractor client stated in its application for the GL policy that it used no subcontractors.  The Independent Contractor exclusion was relied upon by Admiral Insurance to deny the subcontractor’s claim and the general’s AI tender (even though the general contractor obviously used subcontractors).  The issue of whether a broker owes a duty to known additional insureds has not been fully fleshed out in California and recent case law has been expanding brokers’ duties and to whom such duties are owed.  While the decision is not presently published, the opinion offers guidance to defense counsel as how to defeat claims such as these, which are on the upswing.  If you would like a copy of the unpublished decision, it may be found here

Judgment by Nonsuit - 2010
 
Alan obtained a judgment by nonsuit after a jury trial in the Orange County Superior Court for a lawyer accused of slander and intentional infliction of emotional distress.  After plaintiff completed his case, Alan moved for nonsuit on the ground that the plaintiff had not submitted sufficient evidence to prove every required element of his case.  After extensive argument, the trial judge granted the motion and entered judgment for the insured lawyer. Plaintiff’s motion for new trial was denied.
 
Plaintiff’s case failed because it depended in large part upon a series of documents from the files of the Boeing Company (not a party to the action).  Despite submitting a declaration by the custodian of records of Boeing Company and calling a Boeing employee to authenticate the documents, Alan successfully argues that why Plaintiff must be precluded from introducing Boeing documents into evidence.  In connection with that effort, an onlooker in the court (who was a lawyer) recorded that Alan made 159 objections to the proffered documentary evidence, of which 152 were sustained by the judge.

Court of Appeal Affirms Trial Victory - 2010
 
Marc’s trial victory in a construction defect case was recently affirmed by the Court of Appeals.  Appellant was the general contractor which was party to an arbitration with the homeowner based upon a litany of alleged defects.  Appellants attempted to drag our client (an HVAC subcontractor), into the arbitration pursuant to an unsigned subcontract agreement which Appellant alleged bound our client.
 
Although our client initially participated in the arbitration, once our office was retained to represent the client, we immediately filed an action for declaratory relief in superior court based upon the lack of any signed contract between the insured and Appellant.  In the absence of any signed agreement between the parties, the trial court ruled that the only operative agreement between the parties was the insured’s written proposal, which did not include an arbitration provision (or, perhaps more importantly, an indemnity or attorneys’ fee provision).
 
The Court of Appeals agreed, stating that our client’s early participation in the arbitration did not serve to deny it the right to a jury and an appeal (both of which would be waived in arbitration).  Moreover, the Court of Appeals was not persuaded by Appellant’s contention that the insured’s performance of work consistent with the terms of the proposed (but unsigned) subcontract proved that our client agreed to the terms of such proposed subcontract.

Demurrer Sustained without Leave to Amend - 2009

In a malpractice case, Jampol Zimet’s client, an insurance broker, was sued by a client for alleged errors in negligently preparing an insurance application. The insurer based its coverage decision on these purported errors.

When the insurer cross-complained against Jampol Zimet’s client for various tort and indemnity claims, Jampol Zimet demurred to the cross-complaint asserting novel, creative arguments based on obscure references in pre-existing case law and a recent decision.

The court sustained Jampol Zimet’s client’s demurrer without leave to amend, thereby forcing plaintiff, the insurer and all other parties to re-evaluate their respective positions against our client. The parties ultimately reached a nuisance settlement highly favorable to Jampol Zimet’s client.

Plaintiff Too Cheap to Pay Premium - 2009

Marc Zimet secured a defense verdict in an action where plaintiffs alleged our client, an insurance broker, failed to place a requested Builder's Risk Policy. Plaintiffs purchased an older commercial office building which was in need of repairs and remodel work. As a condition for the close of escrow plaintiffs contacted our client and obtained a quote of $595 for a policy which provided coverage limits up to the anticipated amount of repairs to be made after the close of escrow.

Proof of insurance was provided to the lender and escrow closed. The purchase price of the building was $925,000.  Within days of the close of escrow substantial rains occurred which caused significant additional damage to the subject property. During this same period of time our client discovered he could not place the policy based on the original limits as the insurer would only issue a policy based on the total value of the building and the anticipated costs of the post purchase improvements.

The broker recalculated the premium at $1,700, but plaintiffs refused to pay the new amount. As a result, the broker refunded the original $595 premium to plaintiffs.  Approximately 45 days later, plaintiffs tendered a claim for damages due to the rains to the insurer identified on the proof of insurance provided by our client, the broker, to the lender prior to the close of escrow. The instant litigation followed after the insurer denied the tender.

The matter proceeded to trial on the bifurcated issue of coverage afforded under the policy and, in particular, the effect of an endorsement which extended coverage to the pre-existing structures on the property, which would otherwise have been excluded under the standard Builder's Risk Policy. Plaintiffs claimed the endorsement should be given effect; however, the court disagreed and entered judgment for our client.

The parties submitted the matter based on stipulated facts which included that no work of improvement had begun by the time the rains began and that Plaintiffs had declined to pay the greater premium amount, which had been calculated based on the total value of the property. In rendering its judgment the court found that the endorsement only had effect, based on the language endorsement itself, "when it is attached to the policy and a fee has been paid."

Because Plaintiffs had admitted they refused to pay the premium which was based on the inclusion of the value of the existing structure, no "fee" had been paid for the endorsement. Further, since no work of improvement had begun after the close of escrow, any structures damaged must have been "pre-existing" so there was no potential for coverage at the times of the rains.

Judgment was entered in favor of the defendant broker and a cost bill is currently being pursued based on a CCP 998 offer early in the case where defendant offered to resolve the case for $10,000.

No Damages for Lost Cell Phones – 2008

Alan Jampol secured a complete victory at trial for an insurance broker accused of negligence. The jury verdict was unanimous after only eighteen minutes of deliberation, following a seven-day trial. The case involved a claim by three related companies that sell cell phones and related air time contracts.

The broker allegedly failed to secure a policy providing sufficient coverage for lost profits to the three companies. Nonsuits were granted as to two of the plaintiff companies and the jury verdict applied to the third.

Alan presented competent experts and related evidence that established the insurance broker met the applicable standard of care as to the policy he procured and the plaintiffs' own expert had procured a policy that in effect provided substantially no better coverage. Moreover, our client, the broker, and his insurer will recover between $50,000 and $80,000 in experts' charges and related fees as a result of the plaintiffs' failure to accept the broker's statutory settlement offer.

Dismissed for $0 - 2008

In a construction defect case, involving a sewage overflow in a residential property, Jampol Zimet secured a dismissal for their client, paying $0!

The defendant, City of Monterey, hired a consultant, who retained the services of Jampol Zimet’s client to repair the interior of the residence. The case was originally framed as an inverse condemnation action against the City, including negligence, nuisance, and trespass causes of action against our client and the consultant. The City was successful on its demurrer and dismissed from the case. The consultant was preparing his motion for summary judgment, likely to be granted. Jampol Zimet had filed a motion to compel discovery responses and request for sanctions against the plaintiff.

Prior to the decisions from the court on the motions of the consultant and our client, Jampol Zimet successfully brokered a settlement between the City and the plaintiff (after the City was dismissed), whereby the plaintiff received 35% more than originally promised by the City, in exchange for dismissal of the suit (and Jampol Zimet’s client paying nothing!).

Jampol Zimet convinced plaintiff to accept a low offer, and for the City to pay a settlement which it was not legally obligated. And, Jampol Zimet’s client paid nothing!


Plaintiff’s Lawyer Gives up the Ghost – 2008

Alan Jampol persuaded a well-known plaintiffs’ lawyer to accept a settlement for his clients of a million-dollar legal malpractice claim against Jampol Zimet’s law firm client for a small fraction of the claim after mediation was inconclusive.

The plaintiffs contended that a trust lawyer mishandled an estate matter that resulted in a potentially large tax imposition. In the face of a contrary opinion by a reputed legal malpractice expert witness, Alan persuaded plaintiffs and their counsel that they could not prove that the lawyer owed any duty to them. While mediation failed, Alan was able to settle the claim shortly thereafter for less than ten percent of the amount of the claim.

Summary Judgment Win on Alter Ego Theory - 2007

Alan Jampol obtained summary judgment in a state court for an insurance brokerage firm on a professional liability claim. This claim was based primarily upon the contention the brokerage firm was the alter ego of another brokerage firm against which the plaintiff had obtained a large default judgment. After the summary judgment was affirmed on appeal, the plaintiff filed a new and substantially identical action in federal court, which the federal judge allowed to go to trial.

Alan prevailed at trial on the merits of the claim, thereafter securing an abandonment by the plaintiff of any appeal and release of the brokerage firm and its principal from any further related claims.

Swift Investigation Forces Settlement - 2007

Jampol Zimet resolved a multi-million dollar personal injury case where the plaintiff was seriously injured as a result of a head-on collision with another automobile for $5,000. The plaintiff had suffered two broken legs and had already undergone several surgeries, with medical expenses approaching $500,000. The driver of the second vehicle was killed in the accident and uninsured.

Our client was named as a defendant because they were making repairs to the street at the time of the accident and plaintiff had contended that the surface of the roadway had caused the deceased driver to lose control and swerve into the oncoming lane of traffic hitting plaintiff.

The plaintiff had always approached the case with the stated understanding that liability was limited with respect to our client and had sought to resolve the case on the basis of joint and several liability for the medical expenses. However, the plaintiff agreed to resolve the case on the eve of a motion for summary judgment hearing when, after considerable investigation, the medical records of the deceased driver were located. The records disclosed that the driver had suffered a medical condition which had caused him to fall asleep while driving. It was also disclosed he had been involved in three, non-injury accidents in the prior year prior and that his medical condition had been determined to be the cause of the accident.

Broker Defended in Bench Trial - 2007

Following a three day bench trial in an insurance broker malpractice case wherein the plaintiff claimed the client made misrepresentations in the procurement of a construction policy, Marc Zimet obtained a defense verdict.

The judge pointed out that plaintiff had failed to present any credible evidence that any act or omission on the part of the client was the cause of plaintiff’s failure to obtain and maintain construction insurance coverage for the construction of his home.

The court stated the evidence established that plaintiff made a clear decision to decline the coverage and assume the risk of loss during construction himself. Having obtained a defense verdict, the client is entitled to recover his expert fees of approximately $40,000.

Settled on the Cheap Following Demurrer - 2007

In an insurance broker liability action, Jampol Zimet successfully demurred to three of the plaintiffs’ complaints (and amended complaints) and ultimately settled the case for $3,000 in the face of a demand in the amount of $120,000.00. Jampol Zimet strategically produced two documents which the plaintiffs attached as exhibits to their complaint. However, the plaintiffs failed to realize that the documents indicated the plaintiffs were aware of the contract term that became the subject of the litigation before the broker procured the insurance policy. By leading the plaintiffs to believe they needed to attach the exhibits in order to state a claim against the broker insured, Jampol Zimet was able to use the exhibits to derail plaintiffs’ entire theory of the case, forcing a nuisance value settlement.

Marc Zimet Defends Flooring Subcontractor in 3-Month Jury Trial - 2007

After a three month commercial construction defect jury trial, Marc secured a complete defense verdict for its subcontractor client. In regards to the Type 1 express indemnity provision in its client's subcontract agreement with the general contractor, the jury found that no damages arose out of or were in any way related to the insured's work. As the prevailing party, our client recovered $125,000 in costs and attorneys fees from plaintiff and the general contractor.

Infringement Claim Settled for $5k – 2007

In a broker liability action, Marc Zimet settled a potential multimillion dollar lawsuit involving a popular line of troll dolls for only $5,000.

Plaintiff alleged that the broker failed to procure the proper insurance to cover the defense costs of a copyright infringement action involving the plaintiff’s line of troll dolls. In lieu of its shortened defense, the plaintiff was forced to discontinue the sale of its product and cease negotiations with several national retailers willing to put the dolls on their shelves.

Based upon Jampol Zimet’s diligent analysis of the evidence, and some unsung prowess in the field of copyright law, we were able to convince the plaintiff its claims lie not against the broker, but against its former attorneys hired to defend the plaintiff in the copyright infringement action.

Alan Jampol Gets Another Jury Verdict Victory! - 2007

Jampol Zimet represented a law firm sued for legal malpractice in the course of providing advice to an operator of extended care nursing homes regarding the sale of one of the homes.

After a three week jury trial in Orange County, Jampol Zimet secured an 11-1 jury verdict for the defense. This came notwithstanding the trial judge's pronounced opinion that our client was going to lose the case after he permitted the plaintiff's expert to testify for the first time in the middle of trial to an opinion that was not within the designation and to which the expert did not testify in his deposition.

Alan Jampol Defenses Wrongful Employment Practices Claim - 2006

In a wrongful termination action stemming from allegations of physical disability discrimination, harassment and retaliation brought by a former associate attorney, Alan obtained a defense verdict in favor of our client, a lawyer.

The plaintiff presented evidence she was terminated just four days after she presented a doctor’s note indicating she could only work 4 hours a day because of a herniated disk and one day after she was informed by her doctor that she had multiple sclerosis.

Based upon the successful presentation of witnesses and evidence, Alan established that our client could not have known of the multiple sclerosis diagnosis and accommodated the plaintiff’s herniated disk.  As such, the judge found the plaintiff’s claims were without merit.

Jampol Zimet Called in to Repair Wrongful Judgment - 2006

Jampol Zimet was called in to defend a breach of contract and construction defect claim against the insured-subcontractor, arising out of the waterproofing of a concrete roof parking deck after the court had entered judgment against the insured in excess of $450,000.00.

Plaintiff alleged the insured’s work failed to stop the existing water leaks throughout the property causing extensive damage and loss of rents.

Through subpoenas issued to several adjusters who had handled a previous landlord tenant dispute regarding the same property and plaintiff’s deposition testimony, Jampol Zimet was able to show that the majority of the claimed damages occurred prior to the insured’s work. Consequently, Jampol Zimet was able to settle all claims against the insured for $40,000.

Summary Judgment Win for Broker - 2006

In a broker liability action involving a local California aerospace company, Jampol Zimet successfully defeated the plaintiffs’ claims of professional negligence and fraud at the summary judgment stage. Alan Jampol successfully moved to exclude the plaintiffs’ expert witness testimony, which served as the foundation for the entirety of the plaintiffs’ claims. The plaintiffs alleged that the broker “grossed up” premiums with undisclosed fees and commissions to enrich himself at the expense of the plaintiffs.

In review of the documentation, Alan proved that the client indeed disclosed these fees and commissions; however, the proverbial nail in the plaintiff’s coffin was Jampol Zimet’s discovery that the plaintiffs’ expert had not been an insurance broker in over 40 years. Jampol Zimet’s diligent investigation led to the exclusion of the expert before summary judgment was even granted.