Litigation Practice
Business and Commercial Litigation is distinguished from tort litigation in that insurance proceeds are normally not available to litigants in this kind of dispute, and so the pocketbooks of the actual parties are involved, rather than those of an insurance company.
It is common for this type of litigation to be document intensive and involve analysis of various letters, contracts, invoices, memoranda, etc. The contracts which forms the basis of such disputes can be anything from a contract of employment (suit by an employee) to an order for supplies (suit for defective goods--or for non-payment). Many contracts specify that if litigation arises out of the contract, the "prevailing party" is entitled to recover the attorneys' fees and costs incurred in prosecuting/defending the action. This is a significant difference from tort litigation, in which each party bears there own attoney's fees regardless of who wins.
Business torts include, but are not limited to, actions for fraud, negligent misrepresentation, defamation, trade liable, invasion of privacy, false imprisonment, intentional interference with prospective economic advantage, intentional interference with contractual relations, unfair competition, unfair business practices, civil RICO (Racketeering Influence and Corrupt Organizations act), conversion, anti-trust actions, price fixing, conspiracy, etc. This type of litigations usually involves hard fought battles and often involve both economic and emotional issues. In addition, these claims are usually not covered under any insurance policy, putting the entire economic burden of the litigaiton on the parties.
Another line of cases are those involving disputes between business partners. This includes actions for breach of fiduciary duty, derivative suits, freeze-outs, accounting, declaratory relief actions, and actions for dissolution. These cases often involve personal emotions that outweigh the economic considerations. If not handled properly, these cases can be financially devastating for the parties.
It is important to understand your rights when you are involved in an automobile accident. Before accepting a settlement or signing a release, you should be familiar with the law and know your rights.
Damages
The profession of handling claims for an insurance company is known as a "claims adjuster." In most instances, this means finding a way to reduce the amount of money being claim. Have you ever heard of an insurance company determining that the amount of money you should receive is more than the amount asked for?
Under California Law, the "total amount of plaintiff's damages, economic and non-economic, is the amount that will reasonably compensate plaintiff for each of the following elements of claimed loss or harm, provided that you find that such loss or harm was or will be suffered by plaintiff and was or will be caused by the act or omission upon which you base your finding of negligence of the defendant.
The term economic damages means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities.
The term non-economic damages means subjective, non-monetary losses including, but not limited to pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, humiliation and injury to reputation." See Bar Approved Jury Instructions.
Exchange of Information at Scene
Under Vehicle Code section 16025, "Every driver involved in the accident shall, unless rendered incapable, exchange with any other driver or property owner involved in the accident and present at the scene, all of the following:
(1) Driver's name and current residence address, driver's license number, vehicle identification number, and current residnece address of registered owner.
(2) Evidence of financial responsibiltiy, as specified in Section 16020. If the financial responsibility of a person is a form of insurance, then that person shall supply the name and address of the insurance company.
Any person failing to comply with all of the requirements of this section is guilty of an infraction punishable by a fine not to execeed two hundred fifty dollar ($250)."
Auto litigation is not always as simple as one would assume. Auto personal injury cases can involve complicated issues, for example, whether the vehicle had a defect which contributed to the accident, whether the signals upon which the motorists were relying were coordinated so as to create a dangerous condition, the nature and extent of medical injuries to the plaintiff, or the insurance coverage that might be applicable, etc.
If one of the vehicles is a rental vehicle, then special rules may apply. In California, for example, the coverage maintained by the customer may be primary, and if so, it must be exhausted before the liability coverage of the rental company applies (Insur. Code 11580.9(b)(2)). This is a reversal of the normal rule which states that the coverage on the owner of the vehicle is primary, and the coverage on the driver is excess.
"Personal Injury" law is a general title given to numerous torts (or civil wrongs) which result in bodily injury. The most common legal theory upon which bodily injury cases are based is negligence. Negligence requires the existence of a duty going to the plaintiff, a breach of that duty, and damages proximately resulting from that breach. All of the elements of the cause of action must be present in order to be entitled to a recovery, and if any are missing, no recovery is allowed. Negligence causes of action can arise through auto accidents, professional negligence (malpractice), the condition of premises, the performance of work, the manufacture of a product, and many other activities. Damages for bodily injuries can also be recovered for intentional torts, such as battery.
In California, the breach of the duty to act in good faith has been limited to actions against insurance companies. The courts have held that there is an implied covenant in every contract of insurance that the insurance company will act in good faith in the handling of its insureds' claims. Thus, an insured has the right under every policy of insurance to have its carrier act toward the claim in the same way as if the money at risk was the insurance company's money, not the insureds.
For a few years, this duty on the insurers to act in good faith was extended to persons who were suing the insureds of the insurance company (third parties), but this extension of the concept had been withdrawn by the courts, and only insureds who have a direct contractual relationship with the insurance company had a right to require "good faith" on the part of the insurer. In the Fall of 1999, the California Legislature passed into law a limited type of third party bad faith action, but only for accidents occuring after January 1, 2000.
Because of the relative economic disparity between tenants and landlords, tenants rights are often abused and unscrupulous landlords can take tenants advantage of tenants. Mr. Harter is experienced at handling cases ranging from the wrongful retention of security deposits, to violations of habitability laws, to retaliatory evictions. Mr. Harter has handled cases for single tenants all the way up to large groups of tenants. In most cases, the prevailing party in litigation often will have the right to recover attorney's fee. As a result, in some cases we will handle your representation without requiring any payment up front, and in many cases, no payments until the litigation is completed. This allows the tenants level the playing field and protect their rights, despite the economic disparity between the parties.
Under California Law, A warranty of habitability is implied in all residential rental agreements. Green v. Superior Court (1974) 10 Cal. 3d 616, 629. The implied warranty imposes upon the landlord the obligation to maintain leased dwellings in a habitable condition throughout the term of the lease. Peterson v. Superior Court (1985) 10 Cal 4th 1185, 1204. A tenant's right to "habitable" premises is non-waivable. Civil Code section 1942.1.
When conditions at a rental property deteriorate, there can be severe health and safety concerns. In all cases it is imperative that the landlord be given notice of any substandard conditions and allowed an opportunity to correct the problem. Only after the landlord has failed to correct the problem, should litigation be contemplated.
The field of tenant's rights is not a process of avoiding a clear obligation to pay rent and should not be used to defend unlawful detainer actions as an after thought when it was outside economic pressures that were the basis for the non-payment of rent. In most cases, we recommend that the tenant continue to pay rent and file a seperate action for the damages suffered. The right to retroactive rent abatement is usually included in any action that is filed. This protects the tenant from being evicted in a summary proceeding for unlawful detainer.
Law Offices of David J. Harter
A Professional Corporation
13681 Newport Ave., Suite 8-608, Tustin, California 92780
(714) 731-2550; fax (714) 731-2595
Copyright © 1999, Harter
Last Update 07-11-06