Articles Posted in Car Accidents

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

LIABILITY CONTENTIONS

XYZ contends that Plaintiff was the sole cause of this accident.

A bicyclist is subject to all of the same provisions applicable to the driver of a vehicle except for obvious exceptions. Vehicle Code section 21200 (a).

When not otherwise prohibited by the Vehicle Code or local ordinance, bicycles may be ridden on the shoulder of a highway but whether they are operated on the roadway or the shoulder they must travel in the same direction as vehicles. Vehicle Code section 21650.1. A person riding a bicycle on a roadway at a speed less than the normal speed of traffic must keep as near the right side of the curb or edge of the roadway as possible, Vehicle Code section 21202 (a), except when reasonably necessary to avoid conditions that make it unsafe to continue along the right curb or edge. Vehicle Code section 21202(a)(3) [ No person shall ride, operate or use a bicycle, … on a sidewalk, bikeway or boardwalk in a willful or wanton disregard for the safety of persons or property. ].

In this case, Plaintiff admitted, at deposition, that it was his normal custom and practice to ride his with the flow of traffic. However, he would usually ride on the sidewalk. Yet, on this particular occasion, he chose to ride his bicycle on the north side of the street, in a westerly direction against the flow of eastbound traffic. Certainly, this was a willful decision by the plaintiff to disobey the rules of the road. As such, XYZ contends that plaintiff’s willful decision(s) constitutes negligence per se.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

Trial Brief of Defendant-in-Intervention, XYZ Insurance Company
ESTIMATED LENGTH OF TRIAL

Two to three days.

STATUS OF PLEADINGS

This case arises out of an auto versus bicycle accident that occurred at approximately 3:20 a.m. on October 21, 2005, at the intersection of 42nd Street and J Street, in the City of Sacramento.

Defendant, JANE LEE, was driving her 1998 Mercedes-Benz C230 eastbound on 42nd Street and preparing to make a right turn onto J Street. Plaintiff, JOHN SMITH, was riding a bicycle from the opposite direction on the sidewalk of 42nd Street. Plaintiff SMITH rode his bicycle on the sidewalk and across J Street and then directly into the vehicle driven by JANE LEE as Ms. LEE was making her right turn.

Plaintiff, JOHN SMITH, claims that defendant, JANE LEE, negligently operated her vehicle to cause the subject accident and resulted in Mr. Smith’s alleged injuries and damages. Defendant, BOB LEE, is the husband of defendant, JANE LEE. Mr. Lee was the registered owner of the vehicle and has been sued accordingly.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

SECOND CAUSE OF ACTION cont.

33. The acts of Defendants as alleged herein and above was intended to cause injury to Plaintiffs in that Defendants arbitrarily adjusted the claim in an amount less than what the Policy allowed for without any basis for doing so and without any investigation thereon. Defendants’ conduct in this regard was carried on with a conscious disregard of the rights of Plaintiffs.

34. As a direct and proximate result of said unlawful conduct of Defendants, Plaintiffs have suffered and will continue to suffer economic and non-economic damages including, but not limited to, substantial losses of past and future earnings, bonuses, other compensation, and other employment, and unemployment, benefits and job opportunities, plus expenses in an amount according to proof at time of trial.

35. As a direct and proximate result of said unlawful conduct of Defendants, Plaintiffs have suffered, and continue to suffer, mental and emotional distress, including but not limited to, frustration, depression, nervousness and anxiety, and have thereby incurred general damages in a sum in excess of the jurisdiction of this Court, all in an amount according to proof time of trial.

36. As a further direct and proximate result of Defendants’ breach of the duty of good faith and fair dealing, Plaintiffs have suffered special, as well as, other damages, in a sum in excess of the jurisdiction of this Court, plus interest, including prejudgment interest, all in an amount according to proof at time of trial.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

SECOND CAUSE OF ACTION
Breach of Implied Covenant of Good Faith and Fair Dealing

(Plaintiffs against Defendants XYZ and DOES 1-20)

29. Plaintiffs incorporate by reference each and every allegation of this Complaint as though fully set forth in this cause of action.

30. At all times relevant herein, Defendants, and each of them, agreed to act in good faith and deal fairly with Plaintiffs in all matters related to the Policy, and insurance claims arising from losses covered thereunder, including the uninsured motorist and medical expense claims.

31. Said Defendants assumed a special relationship with, and fiduciary obligations to, and agreed to abide by the duties commensurate with these obligations. Nevertheless, Defendants refused and failed to act in good faith and deal fairly with Plaintiffs, and breached said obligations, as set forth more particularly herein.

32. Defendants engaged and continue to engage in an unreasonable course of conduct to further their own economic interests in violation of their contractual and fiduciary obligation to Plaintiffs, including but not limited to:

a) Unreasonable and bad faith failure to make a full and fair settlement of Plaintiffs’ medical expense claims;
b) Unreasonable delay and/or denial of payment of policy benefits without proper cause;

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

FIRST CAUSE OF ACTION
Breach of Contract

(Plaintiffs against Defendants XYZ and DOES 1-20)

23. Plaintiffs incorporate by reference each and every allegation of this Complaint as though fully set forth in this cause of action.

24. On or about December 16, 2008, Plaintiffs made a claim for insurance benefits under the Policy, for personal injuries sustained as a result of the automobile accident described in this Complaint.

25. Under the Policy, Defendant owed duties and obligations to Plaintiffs, including but not limited to, payment of claims for insurance benefits covered under the Policy.

26. Defendant has unreasonably denied and/or delayed settlement and payment of Plaintiffs’ rightfully demanded claims. In failing and refusing to provide the benefits under the Policy, Defendant has breached the terms and provisions of the Policy.

27. Plaintiffs have performed all of the terms and conditions of the Policy and have performed all obligations under said Policy, and are rightfully owed their benefits under the Policy.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

BRIEF FACT SUMMARY cont.

16. On or about April 13, 2009, Plaintiffs again requested an explanation for Defendant’s denial and unreasonable delay in settling Plaintiffs’ claims. At the same time, Plaintiffs submitted a demand for arbitration.

17. On April 30, 2009, Defendant sent a response to Plaintiffs’ April 13, 2009 demand, by making an unreasonably low settlement offer. Defendant then represented that the matter would be sent to Defendant’s counsel to consider Plaintiffs’ demand for arbitration, and said counsel would contact Plaintiffs shortly.

18. Subsequently, Plaintiffs relied on Defendant’s representations that the matter would be reviewed by its counsel, and communicated to Defendant that they considered compelling arbitration, but would wait for further communication from Defendant.

19. However, on May 13, 2009, Defendant again corresponded with Plaintiffs, not by way of counsel, but only to communicate that a new claims representative was assigned to handle Plaintiffs claim. Instead of forwarding the matter to counsel as Defendant represented, it merely assigned a new representative to the matter.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

BRIEF FACTUAL SUMMARY

Plaintiffs are informed, believe and thereon allege the following facts:

8. On or about June 19, 2007, Plaintiff Anna A. and Defendant XYZ entered into a written contract of motor vehicle bodily liability insurance which included provisions for bodily injury damages incurred by uninsured motorists. Said contract is titled Interinsurance Exchange of the XYZ Insurance Company Policy (hereinafter the “Policy” ).

9. Pursuant to Insurance Code §11580.2(b), as well as the Policy, each and every Plaintiff is an insured and entitled to benefits under the Policy.

10. The Policy provided coverage for a 2004 BMW 328i (hereinafter “Vehicle” ), and provided for uninsured motorist in the amount of $30,000 perperson, $60,000 each occurrence, with medical payment benefits of $5,000 per person.

11. On or about September 3, 2007, Plaintiffs were involved in an automobile accident due to the fault of an uninsured motorist. Each and every Plaintiff suffered bodily injury as a result of the accident. Consequently, Plaintiffs began medical treatment.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

Complaint for Damages: 1) Breach of Contract; and 2) Breach of Implied Covenant of Good Faith and Fair Dealing
GENERAL ALLEGATIONS

1. Plaintiff ANNA A. (hereinafter “Anna” ) is, and at all times mentioned herein, was an individual and a resident of the County of Sacramento, State of California.

2. Plaintiff SUZY B. (hereinafter “Suzy” ) is, and at all times herein, was an individual and a resident of the County of Sacramento, State of California, and is one of Anna’s daughters.

3. Plaintiff VICKIE C. (hereinafter “Vickie” ) is, and at all times mentioned herein, was an individual and a resident of the County of Sacramento, State of California. Vickie is also a daughter of Anna. Unless specifically referred to by name, each of the above mentioned plaintiffs will be collectively referred to herein as Plaintiffs.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Mr. Sunderland sued both Mr. Mazloom and his employer, Lockheed. The appellate court
held Mr. Sunderland was in the course and scope of his employment, noting the following:
1. Mr. Mazloom drove his own vehicle.
2. Lockheed did not pay Mr. Mazloom a mileage allowance while he worked in Lancaster.
3. Mr. Mazloom had already cleared out his office. Thus, his work for Lockheed was finished.
4. Mr. Mazloom made the trip to the fast food restaurant to get food. Thus, it was not a trip that had a mix of personal and business purposes.
5. The trip to In-N-Out Burger had no benefit to Lockheed.
6. Finally, the Court noted that Lockheed had “no control over Mazloom’s choice of
transportation generally, or over his movements at the time he collided with plaintiff’s
vehicle.”
The facts in the present case of Gibbs v.ABC, are critically different and thus require a different

result from the one reached in Sunderland.

1. Unlike Sunderland, Ms. Smythe’s vehicle was provided and paid for by her employer, ABC.
2. Unlike Sunderland, ABC paid for Ms. Smythe’s travel expenses.
3. Unlike Sunderland, Ms. Smythe was in the middle of a multi-day business trip for the benefit of ABC. Mr. Mazloom had already “cleared out his office,” whereas Ms. Smythe was expected by her boss to continue working for ABC in California the day following her collision with plaintiff John Gibbs.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Further, personal acts that are “necessary to the comfort, convenience, health, and welfare of the employee while at work” are minor deviations and do not take the employee out of the course and scope of employment. O’Connor v. McDonald’s Restaurants (1990) 220 Cal. App. 3d 25, 30.
For example, in Lazar v. Thermal Equipment (1983) 148 Cal. App. 3d 458, 466-467, the court held that an employee’s decision to stop at a grocery store on the way home from work, even though the store was in the opposite direction than his normal route home, did not remove him from the course and scope of his employment. The court further held the detour was foreseeable because the employee was using a company vehicle to complete his work.

The Lazar court went on to say:

It is the established rule in this jurisdiction that where the servant is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in when the third person was injured…” (Lazar, supra, at pp. 467-468.)

IV. DEFENDANT’S RELIANCE ON SUNDERLAND v. LOCKHEED IS MISPLACED
In its argument that Nancy Smythe was not in the scope of her employment with
ABC at the time of the collision, defendant relies exclusively on the decision of Sunderland v.
Lockheed (2005) 130 CA4th 1. Defendant’s reliance on Sunderland, supra, is misplaced, and
is easily distinguished from the case at bar.

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