News and Cases

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.

[02/26] Elliott v. Workers' Comp. Appeals Bd.
Decision of the WCAB that plaintiff's employer was not obligated to provide the requested spinal surgery is reversed and remanded as, in light of its en banc decision in Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal.Comp.Cases 1336 explicitly denouncing the Brasher holding relied on by the WCAB in this case, the employer is ordered to authorize the requested surgery or object to the treating physician's recommendation under 4062(b) within 10 days of receipt of this order, thereby commencing the spinal surgery second opinion process.

[02/12] Conley v. Nat'l Mines Corp.
Order of the Benefits Review Board reversing an Administrative Law Judge's award of black lung benefits on a widow's claim filed by petitioner under the Black Lung Benefits Act after her husband died of metastatic lung cancer is affirmed as the Board did not err in concluding that the decedent's treating physician's opinion was insufficient to carry the widow's burden of proof, based on the standard previously articulated in Eastover Mining Co. v. Williams, 338 F.3d 501 (6th Cir. 2003).

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Injury & Tort Law

[03/11] Griswold v. Cty. of Hillsborough
In an action by plaintiff, a disabled veteran, claiming that defendants violated his rights under the Veterans Benefits Act of 2003 by interfering with plaintiff's businesses' ability to obtain certain government contracts, dismissal of the complaint is affirmed where plaintiff's claims were barred under the doctrine of res judicata due to earlier litigation brought by plaintiff's companies arising from the same facts.

[03/11] Rehberg v. Paulk
In an action for malicious prosecution, retaliatory investigation and prosecution, and evidence fabrication, a denial of defendants' motion to dismiss based on absolute and qualified immunity is affirmed in part where plaintiff sufficiently alleged the requisite retaliatory motive, absence of probable cause, and but-for causation to state a retaliatory prosecution claim. However, the order is reversed in part where: 1) even if defendants knew one defendant's testimony before a grand jury was false, they still received absolute immunity for the act of testifying to the grand jury; and 2) plaintiff's voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information.

[03/10] Primiano v. Cook
In an action against the manufacturer of an artificial elbow, summary judgment for defendant is reversed where the exclusion of plaintiff's expert's evidence was error as plaintiff's expert, with a sufficient basis in education and experience, testified that the artificial joint "failed to perform in the manner reasonably to be expected in light of its nature and intended function," which was enough to assist a trier of fact.

[03/10] Fortis Corp. Ins. SA. v. Viken Ship Mgmt. AS
In a maritime shipping case involving a claim for rust damage to steel coils caused by exposure to seawater during a journey from Poland to Ohio, judgment of the district court is affirmed where: 1) a ship manager charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel does not qualify as a "carrier" under the Carriage of Goods by Sea Act (COGSA), and thus the COGSA's one year-statute of limitations does not bar the underlying suit; and 2) defendant's claim that the district court's finding of negligence was based on clearly erroneous factual findings is rejected.

[03/10] Cameron v. N.Y.
In an action for false arrest and malicious prosecution, judgment for defendant-officers is reversed where: 1) prosecutors' opinions as to probable cause and complaining officers' credibility are irrelevant in virtually all cases involving claims of malicious prosecution; and 2) the introduction of such evidence was not harmless because it provided strong external validation for propositions that otherwise would have come in only from the defendants' mouths.

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