Articles Posted in Personal Injury

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

4. Universal’s Oversight of its Franchises

Universal’s District Managers, Territory Sales Managers and Business Counselors personally visited franchisees on a regular basis to advise the franchisee on how to run a profitable business. In fact, it was important that the franchise tire center and Universal work together so they could make a profit so they can stay in business.

The District Managers and Territory Sales Managers worked with franchisees to ensure that the franchise had a balanced inventory of Universal products. The District Managers and Territory Sales Managers also told the franchisees of upcoming Universal promotions and which Universal products the franchisee needed to support those promotions. Universal’s advertising department was in charge of all promotions for all Universal stores, including franchises. Jimmy Arnold of Unity always participated in Universal’s sales promotions. Indeed, Universal never had a problem with a franchisee participating in Universal’s promotions.

Universal’s Business Counselors acted as business consultants to the franchisee. The Business Counselors oversaw whether the franchise operated like a Universal-owned store and followed Universal’s standards. This includes control of the franchise employee’s behavior and work practices. For example, if a franchise employee was the subject of customer complaints, Universal notified the dealer so in that way, [Universal] would try to control what he was doing, you know, the dealer. [Id.] Further, Business Counselors advised the franchisees to send their employees to Universal-certified classes or schools and receive National Institute for Automotive Service Excellence ( ASE ) certification. Universal-trained mechanics and representatives from brake manufacturers, such as Bendix and Raybestos, instructed franchise service personnel on how to remove and install brakes.

(The discovery issues presented here are common to most personal injury cases.)

Continue Reading ›

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

D. Universal Exercised Complete or Substantial Control Over its Franchises

Universal first started franchising its stores in 1972 to further merchandise its products and increase profits. Universal wanted its franchises to operate along the same lines as Universal’s stores and Universal made sure that its customers cannot tell the difference between whether a particular Universal store was company- or franchisee-owned. Indeed, if a Universal franchisee went out of business, Universal then operated the store as a company-owned store. Universal placed certain mechanisms in its subleases, franchise agreements and Management Manual ( Universal Manual ) to ensure that its franchises operated and appeared the same as Universal-owned stores. Also, Universal employees regularly inspected and advised the franchises to ensure profitability and compliance with Universal’s standards.

3. Universal’s Management Manual
Universal required its franchisees to operate according to the Universal Manual. The Universal Manual outlined good business practices for the franchisee to follow to ensure profitability. Indeed, if a franchisee willfully or negligently deviated from the high quality service and maintenance standards set forth in the Universal Manual, Universal could terminate the franchise agreement. The Universal Manual required the franchisee to:
1. Follow Image Standards that included the maintenance and cleanliness of the facility;
2. Hire the most qualified and competent employees;
3. Train its employees on a daily on-going basis with, among other things, Universal’s complete range of training materials ;
4. Purchase necessary training aids and to make training time available to employees ;

(The discovery issues presented in this personal injury case are common to most civil cases.)

Continue Reading ›

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

B. Universal Exposed Tina Gomez to Asbestos

Decedent Tina Gomez met David Plaza during the summer of 1981. They soon began an 18-month relationship with Mr. Plaza living in Ms. Gomez’s home and working as a mechanic at the West Facility.

Universal admits it owned and operated the West Facility until March 1, 1982. As Universal’s counsel and its person most knowledgeable ( PMK ) candidly admit, if Universal owned and operated a tire and automotive center, such as the West Facility, Universal thus controlled the operative details of the work, conduct, and safety of its employees. After March 1, 1982, Universal subleased the West Facility to Unity. The West Facility had a retail space, store room area and a mechanical space with six repair bays. Mr. Plaza worked five days a week, eight hours a day, at the West Facility during the entire time he lived with Ms. Gomez. Mr. Plaza lived with Ms. Gomez at least five or six months before Universal subleased the West Facility in March 1982.

Universal manufactures and distributes various automotive products. Universal stores removed and installed asbestos-containing automobile brake linings as part of its brake service. The primary brands Universal purchased through suppliers included Wagner, Raybestos, and Bendix. Tina Gomez visited David Plaza at the West Facility at least twice a week. She saw him work on brakes and saw brake boxes on the floor of the West Facility near Mr. Plaza.

When they lived together, Tina Gomez saw David Plaza wear his work clothes every day. He had five uniforms, one for each work day, consisting of a pair of pants and a light-blue shirt that bore the Universal logo. After he came home from work, Mr. Plaza piled his filthy and dusty work clothes either in the bedroom or garage where they remained until Ms. Gomez washed them on Saturday. Ms. Gomez laundered Mr. Plaza’s work clothes every week using the washer and dryer in her home. The washer and dryer were located within two feet of the bedroom. She always washed Mr. Plaza’s work clothes as a separate load because they were really bad and grungy. The dust on the worn work clothes was dark and blackish. She shook the dust off of the work clothes in the garage.

Continue Reading ›

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

Plaintiffs’ enterprise/market-share liability causes of action allege that the nature of the asbestos-products industry and market were such that decedent Tina Gomez likely used or was exposed to each defendant’s fungible products; defendants, including Universal, cooperated in the manufacture, design and labeling of a uniformly defective product and knowingly adhered to an industry-wide safety standard that failed to warn plaintiffs and others of the disease hazard posed by ordinary uses of their products; defendants delegated research, investigative and other safety functions to various trade associations and industry leaders who failed to adequately investigate the risks caused by the use of asbestos, and actively minimized and suppressed the publication of information showing that asbestos is hazardous; and defendants jointly created and controlled the risk that was the proximate cause of the mesothelioma that killed Ms. Gomez. Nowhere in Universal’s separate statement does it negate, let alone address, that its asbestos-containing products were fungible ; that plaintiffs joined in this lawsuit the makers of a substantial percentage of those products; or that plaintiffs lack evidence in support of any essential element of the complaint’s enterprise/market-share liability causes of action.

Nowhere in its separate statement does Universal reference any purported facts contained in the Declaration of Betty McElroy. Ms. McElroy searched Universal’s employment records for information regarding David Plaza, but she did not search for Mr. Plaza’s true first name, Lawrence. Although she had access to and can search for Mr. Plaza’s employment records using his Social Security Number, she did not do so.

Continue Reading ›

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

STATEMENT OF FACTS
A. The Complaint and Universal’s Separate Statement

Plaintiffs’ complaint filed August 24, 2007, alleges causes of action for personal injuries (survivorship), wrongful death, negligence, breach of implied warranty, strict liability ( consumer expectation and failure-to-warn defects), fraud and conspiracy, alternative-enterprise and concert-of-action liability, and premises liability against several defendants, including Universal. In their complaint, plaintiffs allege, among other things, that decedent Tina Gomez was exposed to asbestos taken from the premises of the West Facility on the person of David Plaza from 1981 through 1983. Universal is a defendant in 26 of the complaint’s causes of action including, among others, fraud, conspiracy-to-defraud and concert-of-action.

Nowhere in Universal’s moving papers does it show that it ever propounded any comprehensive discovery seeking all of plaintiffs’ facts, witnesses and evidence in support of each cause of action. Nor does Universal in its motion show that plaintiffs served factually devoid responses to any such discovery. [Id.]
Plaintiffs’ conspiracy-to-defraud and concert-of-action claims allege that: all products defendants (including Universal) acted as one another’s agents; knew of the health hazards stemming from human exposure to asbestos as early as 1924; suppressed and misstated the information when there was a duty to disclose and warn of those hazards; and, as a result, Tina Gomez was exposed to the asbestos that caused the mesothelioma that killed her. Those causes of action allege liability upon proof of Ms. Gomez’s exposure to asbestos from any source (and not necessarily from a Universal product). [Id.]

Continue Reading ›

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

Plaintiffs’ Memorandum of Points and Authorities in Support of Opposition to the Universal Tire & Rubber Company’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication
I. INTRODUCTION
The Universal Tire Company ( Universal ) in moving for summary judgment or, alternatively, summary adjudication ignores that it has the initial burden to prove that plaintiffs lack and cannot obtain evidence in support of at least one essential element of every cause of action. Universal fails to prove that it propounded comprehensive discovery seeking all information in support of plaintiffs’ claims or that plaintiffs provided factually devoid responses. Also, while Universal asserts an absence of evidence of decedent Tina Gomez’s exposure to asbestos from March 1982 to 1983, it ignores her alleged exposure to asbestos from Universal’s products and negligence between 1981 and March 1982. Plaintiffs allege that Ms. Gomez was exposed to asbestos through live-in boyfriend David Plaza who brought home toxic asbestos dust from a Universal service center on West Avenue in Roseville, California ( West Facility ). Universal admits that it owned and operated the West Avenue facility until March 1982, its company-owned stores removed and installed asbestos-containing brakes and Universal controlled the operative details of the work at its company-owned stores. Mr. Plaza did brake work at the West Facility and he came home to Ms. Gomez in a Universal uniform laden with black dust. She shook the dust off his uniforms and washed them once a week. Universal fails to negate or show any lack of proof that Ms. Gomez’s exposure to asbestos while Universal owned the West Facility between 1981 and March 1982 was a legal cause of the mesothelioma that killed her.Univeral’s motion is fatally flawed in other respects. First, Universal ignores that it is liable under a strict products liability theory because its role as an installer and seller of asbestos-containing brakes places it in the vertical chain of distribution of a defective product. Second, Universal offers no admissible evidence to support its claim that, as a franchisor, it did not control the operative details of the work at the West Facility.

Continue Reading ›

As it prepares to celebrate the 50th anniversary of hosting the Winter Olympics, a tight-knit Sierra Nevada ski community is mourning another loss in an unusual string of tragedies this season.

A skier’s deadly collision with a tree Thursday at California’s Squaw Valley USA resort is the latest in the series that involves two other skiers killed in avalanches and nine deaths in all.

Off the slopes, a shuttle bus crash killed a resort employee in April, and three young women hoping to get seasonal jobs died of carbon monoxide poisoning in December while sleeping in a car just outside the resort.

Extreme skier Shane McConkey of Squaw Valley died in March while jumping off a cliff with a parachute in Italy. And Dave Pedersen, the resort’s race services director, died of cancer in February.

“To say this has been a year of tragedy is an understatement,” said Savannah Cowley, a resort spokeswoman. “It has been tragedies that have really, really struck our community. This is unprecedented as far as the grief this mountain has gone through.”

Pete Bansen, Squaw Valley’s fire chief, said he can’t recall as many different kinds of fatalities in his 30 years in the resort community.

The avalanches – one killing ski patrol member Andrew Entin, 41, in March, and the other killing Randall Davis, 21, of Tahoe City, in December – were especially rare for Squaw Valley, he said. They were the first inbounds avalanche fatalities at the resort since 1963.

Continue Reading ›

On April 9, a federal jury in Sacramento has ordered West Sacramento to pay damages to two sisters from Ghana who were handcuffed during a traffic stop.

Jurors declined to order punitive damages, The Sacramento Bee reported. They ordered $11,700 in compensatory damages to Karene Beecham, who was driving the car, and $21,700 to her sister, Karena Crankson. Because U.S. District Judge John A. Mendez, in an unusual move, found that the sisters’ constitutional rights were violated, the jury only had to consider whether they were entitled to damages and how much.

The sisters, with their two young children in the car, were on a sightseeing trip when they were pulled over in 2006 for making a lane change without signaling. Officer Timothy Twardosz, who made the stop, sent a radio message suggesting that the sisters were high-risk, resulting in the arrival of three other officers.

Thethree other officers arrived at the scene in separate cars. With guns drawn, all four officers ordered the women out of their car. One officer had an assault rifle. Another had a pistol in one hand and a leashed police dog in the other. The two women were ordered to lift their shirts to show they were not armed, then handcuffed and placed in the back of separate police vehicles for about 30 minutes.

Beecham and Crankson were detained in the backs of police cars for about half an hour before Beecham was given a ticket and they were allowed to drive off.

Continue Reading ›

On Thursday night a man sitting a bus stop in Sacramento was struck and killed by a 17-year-old motorcyclist. The cyclist will be charged with felony gross vehicular manslaughter, evading arrest and driving without a license, authorities said today.

The cyclist, whose name has not been released because he is a minor, remains in Mercy San Juan Hospital, where he is being treated for injuries suffered after leading the CHP on a high-speed chase and crashing into a Sacramento County sheriff’s patrol car.

The incident began about 7:40 p.m., when a California Highway Patrol officer writing reports in the parking lot of a Target at Madison Avenue and College Oak Drive saw the motorcyclist speeding along Madison Avenue, CHP spokeswoman Liz Dutton said. The officer engaged in a pursuit heading west on Madison across the Highway 80 overpass. The cyclist was traveling an estimated 90 mph on a street with a 45 mph limit.

Near Hillsdale Boulevard, the motorcyclist signaled to the pursuing officer that he was going to stop but then sped up and ran a red light at the intersection with Jackson Street, Dutton said. There the cyclist collided with the sheriff’s car.

Continue Reading ›

There was an interesting piece in the New York Times last week about the business of independent medical exams (IMEs) of injured workers who had filed claims against their employers. The story detailed the pressure often placed on the physicians conducting the exams to produce a report that is favorable to the insurance company, who also happens to be paying the physician’s fee. Not everybody believes the system is broken, but the apparent conflict of interest does raise several red flags.

The obvious victim in this situation is the injured worker. The Times piece focused on New York state’s workers’ compensation system And that system’s deficiencies is no different here in the Sacramento area, and throughout California.

The independent exams are designed to flush out workers who exaggerate injuries or get unnecessary care, and there is no question that some of that goes on. As a check on what a worker’s doctor determines, insurers are allowed to order an ostensibly neutral exam by a doctor they select and pay for. They do so regularly, with more than 100,000 exams conducted in New York state each year. The numbers are just as high in California.

Continue Reading ›