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Case Summaries

Workers' Comp

[03/05] Rhine v. Stevedoring Servs. of Am.
In a petition for review of a decision of the Benefits Review Board under 33 U.S.C. section 921(c) of the Longshore and Harbor Workers' Compensation Act, the petition is denied where: 1) a reasonable mind could have concluded that the Pacific Maritime Association Average adequately represented petitioner's annual earning capacity; and 2) the availability of alternative employment was determined by reference to two criteria: the claimant's physical abilities and the economic availability of particular jobs in the market.

[03/03] City of Laguna Beach v. California Ins. Guarantee Ass'n
In a city's action against an insurance company seeking reimbursement for incurring workers' compensation liability that exceeded its self-insured retention, grant of insurance company's motion for summary judgment is affirmed where: 1) the addition of subdivision (c)(13) to Ins. Code section 1063.1 did not abrogate Denny's Inc. v. Workers' Comp. Appeals Bd., 104 Cal.App.4th 1433 (2003); 2) the trial court properly invoked the Denny's rule when it granted summary judgment and concluded that the city cannot obtain reimbursement from defendant under section 1063.1(c)(13) as, although this provision renders the obligation of an insolvent excess workers' compensation insurer a "covered claim" that defendant must ordinarily reimburse, defendant need not reimburse a permissibly self-insured employer for benefits paid to an employee for cumulative injury if the employer's liability is based in part on a period of time when the employer was self-insured and chose not to buy excess insurance for the particular risk.

[02/26] Lara v. Workers' Comp. Appeals Bd.
Workers' Compensation Appeals Board's decision against the petitioner and in favor of the defendant is affirmed as, the petitioner, hired twice in the space of 12 months to prune bushes for a diner, was not an employee of the diner at the time he sustained injury, but rather, he was an independent contractor exempt from workers' compensation coverage.

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Injury & Tort Law

[03/15] Kim v. Carter's Inc.
In plaintiffs' suit against a children's clothing retailer for damages under Illinois contract and consumer protection law, claiming they were victims of deceptive pricing, dismissal of the complaint is affirmed where: 1) with respect to plaintiffs' breach of contract claim, defendant has fulfilled its obligations under the straightforward, everyday sales contract described in the complaint; and 2) plaintiffs' allegations fail to establish the actual damages element of their Illinois Consumer Fraud and Deceptive Business Practice Act (ICFA) claim.

[03/15] N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc.
In an action by a barge operator against an insurer for defense costs associated with Hurricane Katrina-related damages, the district court's order (1) dismissing all causes of action brought against defendant, (2) granting plaintiff the fees and expenses of two of the three law firms it retained to defend Katrina-related actions, and (3) denying plaintiff's motion to transfer and its application for attorneys' fees, is affirmed in part where: 1) the locus of operative facts as well as the interests of efficiency and fairness favored a New York forum; 2) the term "otherwise" in the insurance policy did not include the kind of relationship associated with a shipowner's bailment to a terminal operator, which was at issue in this case; 3) plaintiff did not have a right to pursue independent counsel to defend the Katrina actions whose legal fees would be covered by the primary policy; 4) because summary judgment in favor of defendant was warranted based on the simple non-coverage of the barge under the policy, and because there was no dispute that the primary policy had been exhausted, the excess policy applied to cover expenses in excess of the primary policy's limits. However, the order is vacated in part where coverage for fees earned by both counsel, either as excess to defendant's primary policy or as initial coverage for plaintiff's independent counsel, was intended pursuant to the umbrella coverage provided by the excess policy.

[03/11] Granfield v. CSX Transp., Inc.
In plaintiff's action against his employer in violations of the Federal Employer's Liability Act and the Locomotive Inspection Ac, claiming that he developed "tennis elbow" as a result of having to manipulate defective controls in the cabin of his locomotive, judgment in favor of plaintiff is affirmed where: 1) a reasonable jury could have concluded that plaintiff's claim was not time barred, had defendant chosen to contest this showing by asking the jury instruction and arguing the matter to the jury; 2) the district court did not abuse its discretion in admitting a doctor as an expert on the issue of causation; 3) brief statements by a witness as to the contents of a letter was harmless error; and 4) plaintiff's counsel's statements in closing arguments were adequately dealt with by the district judge's instructions and no plain error occurred.

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