September 2013 - Issue 19

Educational Forum: There’s an app for that risk

2013 California JPIA Liability Attorney Summit

Workers’ Compensation Defense Attorney Symposium

City of Lake Elsinore first to use high-tech road-repair system

S.C.: Police Tactical Errors May Result in Wrongful Death Liability

The Court Report

Jon Shull

News: Worthy

Educational Forum: There’s an app for that risk 

by Jonathan Shull, CEO

The Authority has always considered its business partners to be of strategic importance. This is true with respect to how they jointly work with members in managing risk, and also pertains to the role they play in underwriting a significant portion of the Authority’s Risk Management Educational Forum.

This year is no exception, and these partnerships have allowed us to continue to deliver an exceptional educational experience for members from throughout the State of California. 

Many of these local government agencies are still pulling out of a very deep recession. Coupled with the Executive Committee’s ongoing support of waiving registration fees for members, sponsorships make a difference for those who would not be otherwise be able to attend. 

We deeply appreciate the role of our strategic partners in supporting educational opportunities to members. 

California Level
Carl Warren & Company
Cihigoyenetche, Grossberg & Clouse
York Risk Services Group, Inc.

Catalina Level
Kutak Rock LLP
Markel Corporation

El Capitan Level
Alliant Insurance Services Inc.
AmWINS Insurance Brokerage of California, LLC
Burke, Williams & Sorenson, LLP
Kessel & Associates
Safety National Casualty Corporation
Towers Watson
Wells Fargo of California Insurance Services

Sierra Level
Arthur J. Gallagher / RPS 
Declues, Burkett & Thompson LLP
Hayford & Felchlin, LLP
Law Offices of Michael R. Nebenzahl, APC
Law Offices of Scott C. Haith, APLC
Poms & Associates
RJN Investigations
Robin, Carmack and Gonia, LLP
Wesierski & Zurek LLP

Mojave Level
Daley & Heft
Global Technical Services
Hutchings Litigation Services
Law Offices of Barber & Bauermeister
Law Offices of S. Henslee Smith
McCormick & Mitchell, APC
PFM Asset Management LLC
Pollak, Vida & Fisher
RTW, Inc.
Wisotsky, Procter & Shyer

2013 California JPIA Liability Attorney Summit

News: Worthy

2013 California JPIA Liability Attorney Summit

by Paul Zeglovitch, Liability Program Manager

The California JPIA held its Annual Liability Attorney Summit on August 13, 2013. Over 70 participants representing 28 legal firms attended the Summit held at the California JPIA campus in La Palma. 

Jonathan Shull, CEO of the California JPIA, welcomed the attorneys. Paul Zeglovitch, Liability Program Manager, presented a report on the State of the Liability Program. Zeglovitch stated that liability payments made in 2012 were down from 2011 and legal and expense payments had remained constant. Risk Management Program Manager, Bob May, gave an update on the Authority’s new service risk management service delivery model. As members are aware, the Authority now employs five Regional Risk Managers in an effort to provide more hands on assistance in achieving risk management goals. 

Four key sessions were presented at the Summit. Stan Hopkins, Vice President & Director, Quality Assurance, Carl Warren & Co and James Brady, Senior Vice President, Ringler Associates opened the Summit with an update on Medicare Set Asides. When settling a case with a Medicare eligible claimant or plaintiff, a “set aside” of a portion of the settlement funds must take place to provide for future treatment. The regulations for this program have been very slow moving and Stan and Jim provided the current status. 

John Christensen & Bill Rams, Principals with Cornerstone Communications presented Public Relations in the Civil Liability Arena. John and Bill explained how being proactive in using the media can assist litigators in defending their cases. Interactive scenarios were presented and there was much audience participation. 

Daniel Barer, Partner, Vida, Pollak & Fisher addressed the gathering with an Appellate Update. Dan specializes in appellate law and discussed the following cases: 

Correnbaum v. Lampkin   Update on Howell v. Hamilton Meats
This case involves what damages the plaintiff can argue when presenting their case to a jury. In Correnbaum the court ruled that plaintiffs may not present the full amount of their medical billings, but rather, only the portion that was actually paid. 

Harris v. Santa Monica   Legitimate v. discriminatory motives (EPL)
The Harris case provided clarification on who, within the workplace, can be considered a Supervisor, despite not having that title. In short, the court ruled that Supervisors are people who have the ability to direct, promote, hire, terminate and control other employees. 

DiCampli-Mintz v. County of Santa Clara   Tort claim presentation
The DiCampli-Mintz case clarified that government tort claims must be presented as provided in the government code, that is, presented to the clerk of the government agency. 

C.A. v. William S. Hart   Negligent hiring, retention, supervision
This C.A. case went to the Supreme Court on the issue of vicarious liability of a school district for the acts of sexual harassment and abuse by one of their guidance counselors. The state and appellate courts favorable rulings on the school districts demurrer were reversed and it was found that C.A’s theory of liability for negligent hiring, retention and supervision was a viable one. 

Jeff Koller, Vice President & General Counsel with Hutchings Court Reporters, wrapped up the Summit when he presented Current Litigation Technology. Koller introduced our panel to a broad spectrum of easy to use technological applications that can be used on a tablet or computer. These applications include remote deposition attendance and others that allow for quick access and use of the voluminous records that are compiled during the litigation process. 

The event was a success and provided a great opportunity for our defense panel members to assemble in one place, share ideas, experience and knowledge and learn from our speakers and staff.

* Photo: Attorney Daniel Barer presenting the Appellate Update.

News: Worthy

Workers’ Compensation Defense Attorney Symposium

by Jeff Rush, Workers’ Compensation Program Manager

On Thursday, August 22, the Authority hosted the 5th Annual Workers’ Compensation Defense Attorney Symposium. The program was attended by Authority members, defense attorneys and representatives from the claims team at York. 

The program kicked off with Mark Pew from PRIUM. Mark travelled all the way from Georgia to provide a very informative presentation on the growing opioid medication epidemic. His presentation was followed by the tandem of Jessica Smythe from Crowe Paradis and James Brady from Ringler Associates. Jessica spoke on the Medicare Set-Aside process while James discussed the structured settlement process that be utilized to resolve a claim while remaining compliant with Medicare regulations. Bob May, the Authority’s Risk Management Program Manager, then provided an update on the Root Cause Analysis pilot program, which is helping to identify some of the specific behaviors that lead to work related injuries.

Following lunch, the group heard from Bob Nagel of RJN Investigations. He provided insight into how investigations are changing with the expanded use of social media. The next presentation included the insights of three of the Authority’s defense attorneys; Elizabeth Gonia, Catherine Casper and Todd Sheehan. They discussed how the claims environment is starting to change with the implementation of SB 863. The final presentation featured Jerry Azevedo from the Workers’ Compensation Action Network. Jerry provided details of California’s workers’ compensation system that led to the passage of SB 863 as well as information on some of the current regulations that will dramatically change the system.

We appreciate all of those that attended and plans are already underway for another great program in 2014!

City of Lake Elsinore

Re: Members

City of Lake Elsinore first to use high-tech road-repair system

Reprinted from the Press Enterprise – July 18, 2013

Lake Elsinore recently became the first public agency in California to purchase a new asphalt-repair system that will be used immediately on city streets.

City leaders got a chance to see the Heatwurx in action Tuesday, July 16. “It’s really, I believe, going to revolutionize the industry, and I’m proud to say we’re one of the first ones at the helm,” said Lake Elsinore Public Works Superintendent Rick De Santiago.

The technology itself consists of a box-shaped infrared heater that is placed over existing cracked or cratered pavement to warm it up to from 350 to 375 degrees. Another mechanism tills and mixes the hot material and recycled aggregate. Oil strips are added as well as a polymer glue if needed for binding. Then a roller is used to flatten the material to road level.

“What we want to achieve is a smooth, seamless joint,” said Heatwurx Vice President of Sales Adrian Jacobs during a demonstration conducted on a segment of West Lakeshore Drive.

“The key is we’re changing the word ‘patch’ to asphalt restoration or rejuvenation,” he said. “It’s not a patch because a patch is temporary.

Heatwurx founder Rich Giles said he founded the company about five years ago to put into practice the process he created to solve problems a Utah ski resort was having in keeping its road in usable condition.

After trying it out at the ski resort, the Utah Department of Transportation began using the system and it has caught the attention of federal agencies, including the Federal Highway Administration. The American Association of State Highway and Transportation Officials recognized Heatwurx as “best in class” among new technologies in 2012.

Lake Elsinore representatives were exposed to the concept through a demonstration hosted by Menifee officials.

De Santiago proposed replacing the company that now provides the city’s street repairs with the Heatwurx technology and a couple of city maintenance workers, with no additional budget expenditures. The equipment itself cost $121,608.

“The beauty of the whole thing is I didn’t even ask them for any money,” he said.
Aging streets and roads require the city to do pot hole and crack repairs on a daily basis. Last year, the city spent $190,000 to repair 31,000 square feet of roadway. De Santiago says the new system, because it is more efficient, should allow the city to nearly triple the amount of work that gets done while providing longer lasting repairs.
“It’s phenomenal,” said City Councilman Steve Manos of the system. “It’s the wave of the future, as far as I’m concerned.”

Lakeshore resident Danny Carter, who said he works in the structural steel industry, liked what he saw as he watched from his front yard. The proof, however, will be to see how the repairs fare in a year’s time, he said.

“It’s a pretty neat process,” he said. “If it makes the (repair) permanent, it’s an excellent idea.”

* Photo: The City of Lake Elsinore gives a demonstration of their two new HEATWURX road paving repair equipment technology.

The Court Report

S.C.: Police Tactical Errors May Result in Wrongful Death Liability

Reprinted from the Metropolitan Enterprise News, August 20, 2013

A court determining whether police were unreasonable in using deadly force may consider the tactical decisions leading up to the use of such force, the California Supreme Court ruled yesterday. 

The justices' response to a certified question from the Ninth U.S. Circuit Court of Appeals points toward possible reversal of a lower court's grant of summary judgment. A judge in the U.S. District Court for the Southern District of California absolved sheriff's deputies of liability for the 2006 death of a suicidal San Diego County man.

Deputies said they shot Shane Hayes when he came toward them with a large knife. Two deputies fired two shots each from two to eight feet away. 

They had gone to Hayes' Santee home in response to reports of screaming, and were told by Hayes' girlfriend that he had tried to kill himself earlier in the evening by inhaling exhaust fumes from his car.

He had attempted to stab himself to death months earlier, a fact the deputies said they were unaware of prior to the fatal incident. 

Guardian Files Suit
The guardian ad litem for Hayes' daughter, 12 years old at the time of the shooting, filed suit, alleging causes of action for civil rights violations and negligence as regards to the handling of the confrontation. The complaint also included a claim against the county for negligent hiring, retention, and supervision of the deputies.

The plaintiff alleged that the deputies made numerous decisions prior to the shooting that were wrong and that led to Hayes' death, including entering the house without contacting a mental health expert and speaking to Hayes when he was in an obviously agitated state. 

The district judge concluded that the deputies' handling of the incident was indisputably reasonable under state and federal law, that their conduct prior to the shooting did not rise to the level of an independent constitutional violation, and that they did not owe Hayes a duty of care under California law with regard to their conduct and decisions leading up to the shooting. 

Decision Affirmed
A Ninth Circuit panel, in a 2011 decision, affirmed in part and reversed in part, but later withdrew that decision and certified the following question to the California Supreme Court:

"Whether under California negligence law, sheriff's deputies owe a duty of care to a suicidal person when preparing, approaching, and performing a welfare check on him." 
The Supreme Court agreed to consider the issue, which it restated as "[w]hether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force." 

Justice Joyce L. Kennard, writing for a unanimous court, supplied the answer:

"Our response, which is based on long-established state law, is that such liability can arise if the tactical conduct and decisions leading up to the use of deadly force show, as part of the totality of circumstances, that the use of deadly force was unreasonable. Our task here is limited to deciding a purely legal question; the federal courts will resolve, as a factual matter, whether a finding of liability is appropriate on the facts presented."
The justice explained that because there was a single injury, the shooting death, the officers' pre-shooting conduct "should not be considered in isolation," but as part of the totality of circumstances.

Court's Holding
In a footnote, Kennard acknowledged that Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, could be read as inconsistent with the court's holding, and said that case was disapproved to that extent. In Munoz, the court said that the defendant police officers could not be held liable for their conduct leading up to a fatal shooting, although the panel upheld the jury's determination that the shooting itself constituted unnecessary use of deadly force. 

Kennard cautioned that because the case was before the court on a certified question, the court was only clarifying the law and was expressing no view as to whether the officers are liable on the facts. 

The case is Hayes v. County of San Diego, 13 S.O.S. 4291
Copyright 2013, Metropolitan News Company

Legislative Update

The Court Report

Supervisor’s Failure to Engage in Interactive Process with Disabled Employee May Convert Employee’s Resignation into Constructive Discharge

Reprinted from Franczek Radelet, October 1, 2013

In a case recently decided under the Americans with Disabilities Act (ADA)—Suvada v. Gordon Flesch Company, Inc.—a federal district court in Chicago allowed a production clerk’s claim for constructive discharge against her former employer, an office services company, to proceed to trial. The day following the clerk’s diagnosis with stage-four cervical cancer, she called to inform her supervisor. She provided no specifics about her condition and did not advise the supervisor of any medical restrictions or treatment plan, as she did not yet have any. However, the employee did express concern about her ability to meet her job responsibilities in the future and asked whether any easier jobs were available. According to the employee, the supervisor responded that she needed someone who could perform the job during their upcoming busy season, pressed the employee to tell her whether she would be able to carry out her duties, and told her that she did not know of any easier jobs in the division in which they worked. When the employee continued to express anxiety about managing her workload, the supervisor asked her if she was giving a two-week notice. The employee responded that she did not wish to stop working. The supervisor told her that if she was going to resign, she had to do so in writing. The supervisor’s version of the conversation was different than the clerk’s, but both agreed that termination was not mentioned as a possibility.

Twenty minutes following this conversation, the employee sent an email to her supervisor, resigning her employment. In the email, she explained that due to her medical issues, she would not be capable of fulfilling her job duties. Later, she testified that she resigned because she thought she would be terminated if she did not and in any event, she did not want to “screw over” her co-workers by failing to fulfill her job responsibilities.

Denying the employer’s motion for summary judgment, the court found that the clerk’s notification to her supervisor that she had cancer was, in and of itself, sufficient to trigger the employer’s duty to engage in the interactive process required by the ADA. Among other things, the court found the supervisor should have asked follow-up questions to determine whether an accommodation was needed, and should have referred the employee to human resources or the employer’s website when the employee asked about the availability of easier jobs. Because the employee testified that the supervisor failed to do so, the court allowed her constructive discharge claim to proceed to trial. 

The court acknowledged that under Title VII, the facts as alleged by the employee would have fallen short of what is necessary to maintain a claim for constructive discharge under that and similar non-discrimination statutes. The bar is lower under the ADA, the court held, because under that statute, employers have an affirmative duty to provide accommodations, not merely a duty to refrain from discrimination. Because the supervisor failed to engage in the interactive process immediately upon learning of the clerk’s cancer diagnosis, the employee’s belief that she would be terminated if she did not resign was reasonable, according to the court.

This case underscores the importance to employers of training all supervisors in the basics of the ADA. It is not enough to train only human resources personnel, as any supervisor’s misstep could result in employer liability.

Members are encouraged to contact their Regional Risk Manager should they have questions or need additional assistance.