Archives for Business Litigation

Plaintiff Verdict for Lamborghini Owner

Following his 2017 OC ABOTA Trial Lawyer of the Year award, Thomas Wianecki receives Plaintiff verdict for Lamborghini owner with help from Michelle Prescott.

Wesierski & Zurek LLP represented the plaintiff, the owner of a 2006 Lamborghini. After getting into an accident in August 2014, our client had his car towed to a “high end” repair facility for the needed repairs. Plaintiff’s insurance company paid $44,500 for these repairs in September 2014.  Sixteen months passed and little to no work was done.  Our client demanded return of the vehicle after 1 year. He was told the car could not be located.  He went to the police to file a report, but was told this was a civil matter.  We then filed a complaint on plaintiff’s behalf.  After filing the lawsuit, the car was located and belatedly released. Our client picked up the car with little repair done. The Plaintiff was lied to and treated with disrespect during the whole ordeal by the facility. Following deliberation, the jury awarded $227,431.85 in damages, plus punitives to the plaintiff.  Thomas Wianecki and Michelle Prescott were the trial attorneys. Congratulations!

Dealer’s Rights During These Challenging Times In The Automobile Industry

By Nancy N. Lubrano

The recent sweeping closures of automobile dealerships as a result of termination by the manufacturers may have dealers marching into court.  The Automobile Dealer’s Day in Court Act (“ADDCA”) provides dealers with legal recourse despite contract terms.  Under the ADDCA, dealers may recover damages where manufacturers did not act in good faith when complying with the terms of contracts, terminating contracts, or failing to renew contracts. The ADDCA goes a long way to level the field between dealers and manufacturers.  The federal statute provides broader protection in that “good faith” requires the parties to “act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party: Provided that recommendation, endorsement, exposition, persuasion, urging or argument shall not be deemed to constitute a lack of good faith.”  The parties’ conduct is examined independent of the agreed upon contract terms.  Thus, the federal statute protects against a broader range of conduct than state statutes because generally, state statutes proscribe specific conduct. Dealers may also still bring claims under common law tort and contract claims for unlawful termination.  As manufacturers continue to control losses by terminating relationships with dealerships only to then seek recovery of alleged damages pursuant contracted obligations, they must be mindful of the powerful tools available to dealers who can seek legal recourse for wrongful termination, retaliation, or coercive conduct engaged in by manufacturers which may amount to bad faith under ADDCA.

Extending The Firefighter’s Rule To Off-Duty Peace Officers

If a person negligently starts a fire, they are generally not liable for injuries sustained by firefighters who attempt to put out the fire. 
This longstanding principle, known as the “firefighter’s rule”, bars a firefighter or police officer from recovering from any person for injuries incurred in the line of duty. The presumption is that safety officers are employed, trained, and paid to confront dangerous situations, and they undertake their profession with the knowledge that their personal safety is inherently at risk. This fundamental concept rests on the notion that members of the public, who pay taxes toward the salaries of safety officers, should be able to summon firefighters and police officers to confront certain hazards, without the fear of being exposed to liability. 
 
The fireman’s rule was first recognized in California in Giorgi v. Pacific Gas & Elec. Co. (1968), where it was employed to negate liability for the wrongful death of employees who attempted to put out a forest fire. Despite the fact that the employees were not firemen, the Giorgo court held that the fireman’s rule was still applicable to the case and barred the wrongful death claim. In making its decision, the court recognized the important policy considerations of limiting liability in such cases, and stated that the plaintiffs had undergone training which “specifically included the fighting of fires.”
Despite the sound public policy behind this rule, the distinction between the scope of the rescuer’s inherent duties and non-inherent duties often gets blurred when an off-duty peace officer comes to the aid of a civilian. In the past, California courts have held that the fireman’s rule is of limited scope and officer should be present in their official capacity to bar recovery for unrelated acts of negligence. 
However, Wesierski and Zurek has recently succeeded on reversing this existing rationale. In Olivarez v. Craig Realty Group (2009), attorney Tom Ely argued that the firefighter’s rule applies to off-duty peace officers when they are engaging in activities that are inherently part of their job. The plaintiff in Olivarez was an off-duty police officer who was injured after she came to the aid of a friend who was being assaulted at a shopping center. The plaintiff claimed that the shopping center was liable for negligently maintaining its security. In disputing the defense’s assertion of the fireman’s rule, the plaintiff claimed that the aid she rendered did not occur in the regular course of her duties, and was therefore inapplicable. 
Although the plaintiff was not acting within the scope of her duties per se, Mr. Ely proved that she was carrying out the type of duties required in the ordinary course of the duties of her occupation. The occupation of a police officers entails a public purpose to protect and render aid in emergency situation, which is exactly what the plaintiff was doing. It was irrelevant that her duties were being carried out while she was off-duty. The Olivarez court agreed with Mr. Ely’s rationale, and held that the plaintiff’s activities – apprehending and arresting a criminal suspect with the use of necessary force – was inherently part of her job as a peace officer, and precisely the type of hazard she was trained and employed to confront.
The significance of this ruling is immense. First, it recognizes that some occupations entail inherent duties that can carry over into one’s personal life, even when the time card stops running. Second, a party who engages in an activity that is comparable to the duties imposed upon firemen might be barred from asserting a cause of action if they get injured. This latter circumstance came to light in another recent California case, Benini v. Black Rock City, LLC (2009), where the court barred damages to a concertgoer who knowingly walked into a fire pit. The Benini court stated that the plaintiff “chose to engage in an activity similar to that engaged in by a firefighter as part of the firefighter’s professional duties”, and was therefore voluntarily assuming the risk.
Finally, the ruling in Olivarez works to protect the longstanding public policy derived from the unique relationship between professional safety officers and the public.