The Veen Firm, P.C.

Newsletter

For the Public Good

Pro bono publico (often shortened to ‘pro bono’) is a phrase derived from Latin meaning ‘for the public good.’ The phrase refers primarily to a lawyer’s services performed for the public good free of charge. “In a time when the need for legal services among the poor is growing and public funding for such services has not kept pace, lawyers’ ethical obligation to volunteer their time and skills pro bono publico is manifest.”
—Mallard v. U.S. Dist. Court for Southern Dist. of Iowa (1989) 490 U.S. 296, 310.

Clients, Colleagues and Friends,

Since our founding more than 32 years ago, The Veen Firm has worked hard for the public good. This holds true for all the cases we take on, but it is especially notable in our long-standing commitment to pro bono work.

In September, the firm solidified this commitment by instituting a formal pro bono program. While members of our firm are free to choose any program they want, we have selected two projects that meet a firm objective: aggressively pursuing social justice for the under-privileged in court. La Casa de las Madres Advocacy Project helps victims of violence obtain and modify restraining orders against their abusers. The Volunteer Legal Services Program’s (VLSP) Courthouse Project provides attorneys for low-income tenants faced with eviction. The resulting jury trials have the additional benefit of keeping our attorneys’ skills honed.

As you can imagine, we are extremely proud of this program. We do not know of any other plaintiffs’ firm of our size that has developed a formal pro bono program. Through these efforts, The Veen Firm is giving back to the community.

A business does not survive on pro bono work alone. In addition to focusing on our pro bono program, this issue highlights some of the recent cases and legal hurdles we have taken on.

All the best to you and yours for happy holidays,
The attorneys and staff at The Veen Firm, PC

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Double Parking Dangers

Driver’s Negligence Leads to Severe Injury—and a $25-Million Verdict

Barger-Carey v. Estate of Sharon J. Shipley

FACTS

On March 14, 2005, Colleen Barger-Carey, 39, was helping Sharon Shipley back her Lincoln Navigator out of a partially blocked driveway in Sunnyvale. Barger-Carey stood behind the vehicle and guided Shipley because an International Moving Co. delivery truck had double-parked on the street and was partially blocking the driveway.

Shipley’s foot slid off the brake pedal and onto the gas, causing her SUV to suddenly accelerate in reverse. The vehicle crushed Barger-Carey’s forearm against the truck, nearly severing it.

In addition to Shipley’s responsibility for her negligence, International Moving Co. was responsible for parking the truck that partially blocked the driveway. Had the truck been safely parked, Barger-Carey would not have had to direct Shipley out of the driveway.

Defendant Yamato Transport is a global delivery company that contracted with International Moving Co. to assist with deliveries.

LEGAL THEORIES

Yamato Transport argued that it could not be held responsible since it had hired an independent contractor for deliveries and was not responsible for the contractor’s negligent acts.

The plaintiff argued Restatement of Torts § 428 to place liability on Yamato Transport:

An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.

Yamato’s business, regulated by the State of California, constituted an activity which, if negligently performed, could lead to serious injury or death. Therefore, as the hirer of the contractor, Yamato Transport was liable for the negligent acts of International Moving Co. that caused injury to Barger-Carey.

CASE RESULT

Total damages awarded at trial were $25,750,666, almost 10 times the defendant’s pre-trial settlement offer of $2,750,000. The jury assigned 90 percent fault to Shipley, and 5 percent each to defendants Yamato Transport and International Moving Co.

In addition, costs were awarded to plaintiff.

This case was tried by William L. Veen and Eustace de Saint Phalle of the de Saint Phalle Trial Team.

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Defective Gate Crushes Child—an update

Creative Ways to Obtain Compensation for a Client After the Product-Line Successor Declares Bankruptcy

Doe Minor v. Roe Gate Manufacturer

FACTS

In January 2000, an automatic gate closed on a four-year-old boy’s neck. The boy sustained severe brain damage. The accident occurred at a public storage facility, where the boy’s grandmother had been inquiring about renting space.

LEGAL THEORY

The boy and grandmother sued the storage facility under the theory of premises liability. They also sued the gate manufacturer for products liability. But the gate manufacturer had no assets and was virtually defunct since another corporation had taken over the company. Thus, the plaintiffs sued the successor corporation under Ray v. Alad Corp. (1977) 19 Cal.3d 22, 28.

CASE RESULT

Just before trial, the plaintiffs settled with the storage facility and the successor corporation for $1,125,000. The firm then helped establish a special-needs trust for the boy.

On the eve of trial, the manufacturer’s attorney moved to withdraw because he wasn’t being paid. The court denied the motion, and the manufacturer’s attorney failed to appear for trial. A trial proceeded against the manufacturer to a $20.5 million judgment.

The plaintiffs executed the judgment against the manufacturer. The manufacturer went into bankruptcy, but agreed to assign its legal-malpractice claim against the insurance-defense attorney to the plaintiffs.

In 2005, the legal-malpractice action settled for $800,000. This year, the bankruptcy was resolved with a $300,000 payout to the boy. These funds have been deposited in the boy’s special-needs trust. In the end, more than $2 million was collected for the child. Using funds from the special-needs trust, this inner-city child and his mother have since moved to a new home in a good school district.

This case was prosecuted by Kevin Lancaster and Oliver Vallejo of the Lancaster Trial Team.

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Cramped Quarters

Small Work Space Leads to Herniated Cervical Disk

Merle Joseph Finnerty v. Skanska USA Building, Inc., RQ Construction, Inc. and Southwest Air Conditioning, Inc.

FACTS

Joe Finnerty, a 38-year-old, first-level union-apprentice pipe fitter, was injured while installing air-conditioning fittings in the new Visiting Airmen’s Quarters at Travis Air Force Base in California. At the time of the incident, he was on a ladder working within a drop-ceiling space while extending a 15-pound tool away from his body. Because of the configuration of the drop ceiling, he had to contort his body to reach his work area.

Finnerty claimed that the combination of the tool’s weight and his awkward position caused him to herniate a cervical disk. He underwent cervical fusion surgery and was off work for eight months.

Defendant Skanska/RQ was the general contractor on the project. Finnerty’s employer was defendant Southwest Air Conditioning, Inc., a large Nevada-based air-conditioning subcontractor.

LEGAL THEORIES

Though Southwest had workers’ compensation insurance in Nevada, it had neglected to obtain California coverage before this project. Because Southwest Air Conditioning had no workers’ compensation insurance in California, Finnerty claimed he was not barred by the exclusive-remedy provisions of the Labor Code and that he was entitled to sue his own employer in tort. Further, Finnerty claimed Southwest should not have required him to work with a heavy tool in such an awkward position in the ceiling space.

Finnerty also sued defendant Skanska/RQ on the grounds that it had negligently exercised control over aspects of safety on the project. Specifically, the plaintiff claimed that, as general contractor, Skanska/RQ retained control over sequencing the work of subcontractors. The plaintiff claimed that Southwest should have been permitted to install all the air-conditioning equipment before another subcontractor installed the drop ceiling in order to allow safe access to his work area.

CASE RESULT

The case was settled for $1,225,000, with Skanska/RQ paying $975,000 and Southwest Air Conditioning the balance.

James Butler, Jr. and Christopher Viadro of The Butler|Viadro Trial Team represented Finnerty.

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A Rescue Gone Awry

A Fall During a Confined-Space Rescue Leads to Fractured Skull

James Black v. Green Manufacturing Co.

FACTS

In January 2003, James Black was working as a millwright for a company that performed specialized tank-remediation services. His employer had signed a contract with Green Manufacturing Co. to supply a team of workers to perform those services at Green’s manufacturing facility.

On the day of his accident, Black was observing two of Green’s employees performing a confined-space entry into a 25-foot-tall steel water tank. A confined-space entry—where a worker is totally enclosed in a potentially hazardous space—is a technical procedure that requires strict adherence to OSHA regulations. Green’s employees had failed to comply with many of these regulations before one of them descended a rope ladder into the tank.

As Black watched, the entrant fell off the ladder. His fall- protection line engaged, and he dangled in the tank. Black and the other employee, believing the entrant to be in medical distress, called down to him. Because Green had failed to equip its employees with radios, the men could not communicate.

Black tried to use a fall-protection winch to extract the entrant, but the handle broke off in his hand. The other Green employee became hysterical, begging Black to “go get him.”

Black started down the ladder to check on the entrant, but lost consciousness shortly after entering the tank and plunged to the bottom, fracturing his skull.

It turned out that the entrant had merely slipped, but he couldn’t hear the shouts from above because of echoes in the steel tank. Our investigation also revealed that nitrogen lines servicing the tank had not been properly disconnected before the entry. Nitrogen is a colorless, odorless gas that can displace oxygen and render air unbreathable.

Black’s skull fracture healed, but hearing loss, vertigo and physical and psychological consequences of the fall prevented him from returning to work.

LEGAL THEORIES

Because Green and its employees had ignored OSHA regulations when performing the confined-space entry, Black sued them for negligence. Green Manufacturing Co. claimed that Black’s only remedy was workers’ compensation. Even though the contract it signed with Black’s employer expressly stated that he was not Green’s employee, Green claimed that because Black was a “special employee,” he was barred from suing Green. (See Practice Note on page 5.)

CASE RESULT

At the commencement of trial, the judge bifurcated the case, ruling that a mini-trial on the special-employment issue be conducted before the negligence case was heard. During this mini-trial, the parties settled the case for $2.95 million.

Cynthia McGuinn, Miles Cooper and Anthony Label of The McGuinn|Cooper Trial Team represented Black.

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Feature - A Peek Inside Our Pro Bono Program

Our program is managed by Elinor Leary, who serves as the Pro Bono Program Coordinator. She monitors work performed by attorneys, screens pro bono cases for conflicts and develops relationships with community groups involved with public-interest issues. To keep things running smoothly, team leaders provide the appropriate cues to individual attorneys, who are realistic about the demands of both their caseloads and their team trial calendar when choosing pro bono projects.

All firm attorneys are required to complete a a minimum of 15 hours per year on pro bono projects.

As mentioned, we are very proud of our commitment to our community and our pro bono program. We hope to set an example for other firms of our size to follow suit with similar programs.

Pro Bono In Action

Veen Firm Saves a Tenant from Eviction

Boardwalk Investments v. Connie Valdes

FACTS

In July, The Veen Firm took a case from the Volunteer Legal Services Program (VLSP), a nonprofit provider of free legal and social services to low-income individuals and families. Miles Cooper defended Connie Valdes against Boardwalk Investments, which was trying to evict her on an unlawful-detainer claim.

Valdes, a low-income elder-care worker, had lived in her rent-controlled apartment in San Francisco at the same address for over 20 years. She resided there without incident until the late 1990s, when property management was taken over by plaintiff Boardwalk Investments. Boardwalk attempted to evict Valdes for failure to pay rent, despite the fact that they were aware of a number of habitability issues throughout the building and in Valdes’ apartment. The habitability issues within Valdes’ apartment included peeling lead paint, a leaking roof in her bathroom and mold on her bathroom floors.

CASE RESULT

The day before trial, The Veen Firm substituted into the case for Valdes, who had been representing herself. The matter settled on the second day of trial, with Valdes keeping her apartment. While this is not a typical case for The Veen Firm, it reflects one of our strengths—associating into a case at the last moment and maximizing the result for the client.

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Practice Notes

The Special-Employment Doctrine:

When Defendants Try to Hide Behind Workers’ Compensation Protections

In the past couple of years, we at The Veen Firm have noticed a new trend—defendants are trying to portray independent contractors’ employees as “special employees” to evade responsibility and hide behind the independent contractor’s workers’ compensation protection. A special-employment relationship legitimately arises, for example, where an employer has supervision and control over the job duties of a temporary employee provided by a labor broker. Thus, the exclusive remedy for the employee’s job-related injuries is workers’ compensation.

However, corporate defendants are trying to use an expansive interpretation of this doctrine to shield themselves from liability for their own negligence. Construction-site accidents and premises accidents—in particular, accidents at manufacturing facilities—are where this unpleasant defense frequently raises its ugly head, often in a motion for summary judgment brought after critical depositions or statements have been taken. The manufacturer has engaged the services of an independent contractor and has often specified in writing that the contractor’s employees are not the manufacturer’s employees; after all, the manufacturer wouldn’t want to be responsible for making sure labor laws were complied with, or for damages if the employee accidentally injured someone. But when the manufacturer’s negligence causes an accident that injures the employee, there is a new tune: notwithstanding the contract, the manufacturer claims the injured employee as its own so it can cloak itself in the workers’ compensation-exclusivity bar.

According to the California Supreme Court, “special em-ployment is most often resolved on the basis of reasonable inferences to be drawn from the circumstances shown. Where the evidence, though not in conflict, permits conflicting inferences, the existence or nonexistence of the special employment relationship barring the injured employee’s action at law is generally a question reserved for the trier of fact.” (March v. Tilley Steel Corp. (1980) 26 Cal.3d 486, 493.)

The right to control and direct the activities of the alleged employee or the manner in which the work is performed, whether exercised or not, is the primary factor in determining whether an employment relationship—special or otherwise—exists. (See Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 175.) The special-employment relationship must be supported by evidence that the general employer relinquished full control of the employee at the time of the injury. It is not sufficient that the employee was partially under the control of the alleged special employer. (See Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1488.)

But neither right to control nor exercise of control is the exclusive consideration. The existence of certain circumstances identified by the California Supreme Court tends to negate the existence of a special-employment relationship:

• The alleged special employer did not pay wages to the employee.
• The alleged special employer did not have the power to discharge the employee.
• The work performed by the employee was skilled.
• The work tools were not provided by the alleged special employer.
• The work was not part of the alleged special employer’s regular business.
• The employee did not expressly or impliedly consent to a special-employment relationship.
• The parties did not believe they were creating a special-employment relationship.
• The alleged special-employment period was not lengthy.

(See Kowalski, supra, 23 Cal.3d at pp. 176-177.)

As you can see, the special-employment issue is fact intensive. When facing this defense, it helps to have a law firm at your side with experience in dealing with defendants who employ this tactic.

If you are involved in a situation where you feel special employment may be an issue and want to discuss it or obtain further briefing, please feel free to contact us.

By James Butler, Jr., Chris Viadro, and Dan Pleasant

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Staff Spotlight

William L. Veen Selected by Daily Journal as One of California’s Top 100 Lawyers

In September, Bill was selected as one of the top 100 lawyers in California by the Daily Journal. The annual list reflects “the people at the top of the profession and the work they do.” This year’s list focused on “the power of individual attorneys to transform not only the legal community but also the community at large.”

Bill founded The Veen Firm, PC in 1975 and developed it from a one-man operation to a firm with over 40 members today. He oversees the operation of The Veen Firm and focuses his energy on mediations and trials of complex cases.

Cynthia B. McGuinn Invited to Become a Fellow of the International Society of Barristers

In July, Cynthia McGuinn was invited to become a Fellow of the International Society of Barristers. With a limited membership of lawyers who are “outstanding in the field of advocacy,” the Society seeks to honor the role of the trial lawyer in our system of justice and focuses on the preservation of the right to trial by jury. Fellowship in the International Society of Barristers, combined with her Fellowship in the International Academy of Trial Lawyers (2004) and American College of Trial Lawyers (2006), plus her Associate status in the American Board of Trial Advocates (1997), makes Cynthia one of the few women in California to hold all of these honorary memberships.

Cynthia, with The Veen Firm since 1989, has represented injured people, consumers, and children in personal-injury, wrongful-death, professional-negligence and product-liability matters for 25 years.

Kevin Lancaster to join Strategic Planning Committee for Oakland Cathedral Ministries

Bishop Allen Vigneron for the Diocese of Oakland invited Kevin Lancaster to be a member of the Strategic Planning Committee for Cathedral Ministries, a group responsible for the newest cathedral to be built in the United States—the Cathedral of Christ the Light in Oakland. The Committee will plan for how the Catholic Church in Oakland will provide social justice to the entire community, especially the downtown poor. Kevin is excited to be a part of this important planning function because it combines his interests in the plight of the homeless, powerless and disenfranchised. The cathedral, currently under construction at the corner of Grand and Harrison in Oakland, is expected to open in the 2008.

Kevin, who joined the firm in 1984 and leads the Lancaster Trial Team, focuses on prosecuting complex cases involving products liability, professional negligence, catastrophic personal injury and wrongful death. He has litigated more than 30 different kinds of both simple and highly technical product-liability cases, involving consumer products, industrial products, tools and machines. Kevin typically represents individuals who have suffered catastrophic injuries, including union, non-union, construction and agricultural workers.

Christopher Viadro Elevated to Trial Team Leader

Christopher Viadro has been elevated to Trial Team Leader. Previously a member of the James Butler Trial Team, he now joins Butler as a Co-Trial Team Leader. The Butler|Viadro Trial Team, consisting of four attorneys and five staff members, prosecutes wrongful-death, catastrophic and career-ending injury cases.

Chris is deserving of this elevation as he has consistently demonstrated his commitment to his clients in the courtroom and excelled in the litigation skills and administrative operations needed to prepare his team for and through trial. His unwavering sense of duty to his clients, combined with this litigation prowess, furthers the firm’s goal of providing outstanding service, both legally and personally, when people have been injured, wronged or denied their rights.

Miles Cooper Elevated to Managing Attorney

Miles Cooper has been elevated to Managing Attorney, overseeing mar-keting, publicity and technology for The Veen Firm. Miles will continue to work with Cynthia McGuinn and manage day-to-day operations for the McGuinn|Cooper Trial Team.

The McGuinn|Cooper Trial Team, consisting of four attorneys and six staff members, will remain focused on prosecuting large exposure cases, complex civil jury trials and providing last-minute assistance to other lawyers and clients who want added depth and skilled trial counsel.

Elinor Leary Named Pro Bono Program Coordinator

Elinor Leary has been named The Veen Firm’s Pro Bono Program Coordinator. Elinor will oversee the firm’s involvement in outreach and volunteer efforts and develop relationships with community leaders who share our commitment to pro bono work.

Elinor joined The Veen Firm in 2006.

Anthony L. Label Selected to Serve as At-Large Member of the Board of Directors of the San Francisco Trial Lawyers Association

In July, Anthony Label was invited to become an At-Large member of the Board of Directors of the San Francisco Trial Lawyers Association. One of the oldest trial lawyers’ associations in the country, SFTLA seeks to educate and support fellow trial lawyers and advance legislation protecting consumers and preserving the right to trial by jury. Before becoming a board member, Anthony served on the SFTLA Education, Mock Trial and Diversity committees.

Anthony, with The Veen Firm since 2003, represents injured people, consumers and children in personal-injury, wrongful-death, professional-negligence and government-liability matters.

James Butler, Jr. Honored for Two Decades of Service to the Firm and Community

James Butler, Jr. was recently honored by The Veen Firm for two decades of dedicated service to consumer protection, our community and our firm.

Jim focuses on prosecuting catastrophic- injury cases involving union workers (e.g., cement masons, boilermakers, elevator constructors and mechanics, and operating engineers). He leads a team of three attorneys focused on the simultaneous litigation of benefit systems. In other words, his team prosecutes Workers’ Compensation, Longshore and Harborworkers, Social Security and AFL-CIO pension cases, in addition to the civil lawsuit, so that the client receives the full benefit of all available remedies instead of just one.

Jim has served with distinction in his role as a trial team leader, and The Veen Firm is proud of his accomplishments as a trial attorney, educator and author, as well as his tenacity in fighting for workers and consumers.

Longtime Receptionist Dietlind Vander Schaaf Promoted to Office Manager

Dietlind Vander Schaaf, who joined the firm in 2003 as a receptionist, was recently promoted to office manager. In this new role, Dietlind will handle all administrative tasks for the office. The Veen Firm congratulates Dietlind on her new role and anticipates that she will continue to be a key figure in providing our clients with outstanding service./p>

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