SETTLEMENT: | $500,000.00
|
|
CASE/NO: | Confidential Case No: Confidential - Los Angeles Superior
|
|
DATE: | April 25, 1996 (Judge Mary Ann Murphy, Retired Justice Trotter)
|
ATTORNEYS | Plaintiff - Michael H. Whitehill
Defendants - George V. Genzmer III |
FACTS: On April 22, 1993, plaintiff Rosa Madrigal's husband, Eladio Madrigal, died from severe burns sustained in a February 15, 1993 construction accident occurring during the renovation of the Pasadena Hall of Justice Building housing the old Pasadena City Jail. Mr. Madrigal was working for William Olson Inc. a demolition subcontractor who contracted with Benchmark Construction, the general contractor to demolish the interior of the building. At the time of the accident, Mr. Madrigal had cut into an elevator hydraulic line causing the hydraulic fluid which was under pressure to ignite once it hit his welding torch.
On October 29, 1993 Mrs. Madrigal consulted with Doe attorney, the fourth attorney she had consulted regarding available remedies to herself and the Madrigal's four children stemming from the February 15, 1993 accident. Mrs. Madrigal testified that Doe attorney told her that since six months had elapsed since her husband's death that she could not pursue a third party wrongful death action and that her only remedy was a worker's compensation action.
Doe attorney claimed that he told Mrs. Madrigal he did not handle complex construction accident cases and that Mrs. Madrigal would need to find another attorney to prosecute her case since she had only one year from her husband's death to pursue a claim. Mrs. Madrigal hired Doe attorney to represent her in the worker's compensation case.
Doe attorney settled the worker's compensation action for approximately $115,000.00 with payments to be made over fifteen years. When Mrs. Madrigal stopped receiving payments, due to a deduction for attorneys fees and Doe attorney did not return her calls, she consulted with another attorney. She then learned that she had been given erroneous advise by Doe attorney regarding the statute of limitations date on her wrongful death claims.
In January 1995 a lawsuit was filed against Doe attorney. Shortly after the deposition of Doe attorney, a policy limits demand of $200,000.00 was made. The demand was rejected and a counter offer for $5,000.00 was made.
Several of Mr. Madrigal's co-workers were severely injured in the fire at the Pasadena City Jail and had sued the developer and general contractor for negligence. However, all defendants in the action of Mr. Madrigal's co-workers were granted summary judgment primarily based on the California Supreme Court's decision in Privette. Doe attorney claimed in this action that any timely filed action by plaintiff would have been consolidated with that action of the co-workers and also been dismissed with prejudice.
CONTENTIONS: Plaintiff contended Doe attorney was negligent in failing to properly advise plaintiff regarding the applicable statute of limitations and failing to undertake any investigation regarding the viability of a third party action. Plaintiff contended that the general contractor in the Pasadena City Jail fire was liable under a non-delegable theory for violation of Uniform Fire Code § 49.107(h), failure to separate operations from gas welding operations. Plaintiff also contended that the general contractor should have warned the subcontractor employees of the danger of operating a welder near a hydraulic lines under pressure when the general contractor supervisor saw the subcontractor working in the general area of the hydraulic line approximately thirty minutes before the accident.
The defendant contended that Doe attorney had fully explained the applicable statute of limitations to plaintiff and that the explanation was documented in his file notes.
Defendant also contended that plaintiff could not, and would not, have prevailed in a third party action against the general contractor since responsibility for the accident was solely and exclusively that of the subcontractor and Eladio Madrigal. The subcontractor had removed a similar hydraulic line without incident several weeks earlier and was aware that removing hydraulic line under pressure was extremely dangerous. The only company in the building at the time the hydraulic line was being removed was the subcontractor.
Finally, the insurer for Doe attorney contended Doe attorney was judgment proof and thus plaintiff could recover no more than the diminishing policy limits which by the time of the trial were substantially less than the original $200,000.00 policy benefits.
INJURIES: Death of a 42 year old man. All medical bills were paid by the worker's compensation insurance carrier.
SETTLEMENT DISCUSSIONS: Plaintiffs' initial settlement demand was for the policy limits of $200,000.00. Defendant's initial offer was $5,000.00.
SETTLEMENT CONFERENCE: A settlement conference was held before Retired Justice Trotter and settled in a second settlement conference.
OTHER INFORMATION: The settlement was reached approximately one year and four months after the case was filed and while trailing for trial in Department 62.