SEPTEMBER 22, 2016
A year after the ice cream company Blue Bell recalled all of its products for listeria contamination, select flavors of its ice cream were again recalled for a similar problem. The creamery blames its vendor, Aspen Hills, that supplied Blue Bell with cookie dough; however, a statement by Aspen Hills noted that “the positive listeria results were obtained by Blue Bell only after our product has been in their control for almost two months.” Blue Bell, in turn, stated that its testing identified listeria in the supplier’s unopened containers.
U.S. News & World Report turned to food safety attorney Steven Kronenberg to discuss the issue. Mr. Kronenberg explained that recalls are usually Plan B, but that it was difficult to identify anything else that Blue Bell could have done differently in this situation.
Read full article
]]>SEPTEMBER 21, 2016
spoke to nearly 250 residential landlords at the Small Property Owners of San Francisco Institute discussing pertinent duties as landlords and property owners, including unsafe conditions and how to avoid premises liability claims. Landlords also learned how to take preventative measures to reduce the risk of injury on their property.
The SPOSF Institute is comprised of small rental property owners in the local area, and provides members a better understanding of their rights and obligations, how to effectively work with city and state officials, and how to better communicate with tenants.
]]>On November 8, Elinor Leary will lead a seminar for the USF School of Law’s Criminal and Juvenile Justice Clinic. The Clinic provides a select group of advanced law students the opportunity to represent clients in ongoing adult and juvenile criminal matters.
Leary will lecture and demonstrate winning jury selection techniques, advise students on how to select jurors for each of their unique current cases, and help them develop a better courtroom presence.
Students selected for participation in the CJJC represent indigent defendants in all phases of criminal proceedings, from arraignment through trial and appeal in the San Francisco Superior Courts. They attend a two hour weekly trial skills seminar. They also work closely with practicing attorneys and judges at the Hall of Justice.
]]>David L. Winnett speaks at the Marin County Bar Association’s (MCBA) lunch session titled “The Realities of Working with a Trial Consultant…No ‘Bull’” on November 16, discussing best practices for jury selection. He also outlines the pros and cons of using professional trial consultants and their impact on the presentation of a case.
The MCBA is comprised of more than 700 members, including attorneys, non-attorney legal personnel and professionals serving the legal community. The Association educates the community and enhances access to legal services by offering MCLE events, providing legal updates and more.
]]>Underscoring their commitment to one of the largest plaintiff’s organizations in California, five attorneys with The Veen Firm have been elected for 2017 leadership positions with Consumer Attorneys of California (CAOC). Craig Peters will serve as CAOC’s 2017 Vice President 4; Anthony Label as the Board of Governors; and Steven Kronenberg, Elinor Leary and Andje Medina as Board of Governors at Large for the Northern District. They were sworn in at the November 12, 2016 ceremony.
“As CAOC members, we proudly fight for our clients seeking accountability from wrongdoers. This fight doesn’t stop in the courtroom; we are dedicated to passing legislation that protects the interests of 39 million Californians, as well as fighting against legislation that would strip average citizens of a level playing field when going up against corporate interests,” said Craig.
Prior to Craig’s Vice President 4 position, he served on the Executive Committee of CAOC as Treasurer and Secretary. This is Anthony and Elinor’s second consecutive year serving on the CAOC’s Board of Governors.
CAOC is a professional organization comprised of more than 3,000 plaintiff attorneys who represent the interests of California consumers and ensure the court system is accessible to all citizens. The organization continuously seeks accountability on behalf of those who have been negatively affected by defective products, had their civil rights violated, faced discrimination and more.
]]>SEPTEMBER 19, 2016
San Francisco, CA– The Veen Firm, a San Francisco-based law firm focusing on personal injury matters, filed a claim on behalf of the Zhou family against the City and County of San Francisco. The claim states that the City negligently pruned pine trees in Washington Square Park causing a 100-pound tree branch to break off and fall on 36-year-old Emma Zhou, resulting in a severed spinal cord, brain damage and permanent paralysis below the waist.
The nearly 50-foot-tall pine tree was improperly pruned using an illegal practice called “tree topping”, during which the upper trunk of trees are removed, allowing stubs or lateral branches to grow quicker and larger. The branches then break off due to their excessive size and weight, turning trees into dangerous hazards. The claim alleges that tree topping violates San Francisco law and accepted pruning standards. The City also knowingly failed to warn of, eliminate, or protect the public from these known risks. While the City has reported that the trees are healthy, and described this particular incident as a “freak accident”, it is unknown whether the City has looked for and eliminated other hazardous branches created by the topping.
“This was a needless tragedy that would have never occurred if the City had simply followed its own pruning standards,” said Attorney Jeremy Cloyd, who represents the Zhou family. “This is a huge public safety risk, as the other pine trees in this park have been pruned the same way.”
“Washington Square Park is highly trafficked by tourists and local families, and we urge the City to inspect every tree to avoid another person being hurt the way Emma was,” said Andje Medina, co-counsel for the Zhou family.
Doctors say Zhou will need another 16 months of hospital rehabilitation and don’t expect her to walk again. Zhou was talking with her two daughters when she was struck by the branch.
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]]>What happens when you have advocated, litigated, and readied your case for mediation only to be told by the mediator that one defendant has a burning limits policy and a significant portion of the policy has been spent on defending the action? It is important to recognize a burning limits policy early in the case, and to devise a strategy to deal with it.
Burning limits policy
Under most liability insurance policies, the insurance carrier has dual duties to defend the claim and indemnify the insured against liability. Under a burning limits policy (also known as an eroding, wasting, defense-within-limits, self-consuming, or exhausting policy), defense costs and expenses reduce the limits of the policy. For each dollar spent defending the action (including hourly fees for attorneys to defend the lawsuit, expert consultants and witnesses, and all other costs and expenses of defending a claim), one less dollar is available for your client. Such a policy caps an insurance company’s total exposure, decreases the amount available for settling or satisfying a judgment, and presents unique strategic and ethical concerns for all parties.
Not only does a burning limits policy impact how much a plaintiff may recover, it may severely impact the defendant, which a plaintiff can use to his or her advantage. A burning limits policy places pressure on the insurer, insured, and defense counsel and creates a potential conflict of interest between the three.
The conflict of interest may arise in litigation and settlement strategy. The insurer and/or defense counsel may want to pursue costly litigation to fight on the merits or to protect their reputation. On the other hand, the insured has an interest in protecting the insured’s assets by settling a claim within the policy limits.
The insured’s concerns are compounded by the fact that, once the policy limits are exhausted by resolving claims or by defending the claim, an insurer’s obligation to provide a defense as well as indemnity may terminate. If the claim exceeds the policy limits left after defense costs have been paid, it will be the insured who will have to cover the remainder. This exposes the insured to litigation costs and any settlement or judgment once the policy has been exhausted. Given the potential conflict of interest, the insurer may be faced with lawsuits from its insured, including allegations of bad faith.
Given the impact that a burning policy may have on a case, courts across the nation have interpreted, upheld, or denied burning limits policies differently. California has upheld defense-within-limits policies when the policy explicitly defines the loss as including the defense costs. (Continental Insurance Company v. Superior Court (Baumgartner) (1995) 37 Cal.App.4th 69 [Loss includes “damages, judgments, settlements and costs, charges and expenses incurred in the defense of actions, suits or proceedings and appeals therefrom.”].)
Although more typical in professional liability, directors’ and officers’ liability, and employment practices liability policies, some insurance companies include defense-within limits provisions in other types of policies. Policies also differ regarding when defense costs start eroding the policy limits (e.g., after a certain expense allowance or deductible is spent). Therefore, it is important to know the full scope of the policy early in the case to prevent learning about a burning limits policy after significant attorneys’ fees have been incurred. Written discovery is the first step.
Discovery to identify the policy
For each policy Form Interrogatory 4.1 requires the responding party address:
a. the kind of coverage;
b. the insurance company;
c. each named insured;
d. the policy number;
e. the limits of coverage for each type of coverage contained in the policy;
f. whether any reservation of rights or controversy or coverage dispute exists between the responding party and the insurance company; and
g. the custodian.
A response to this interrogatory may not specifically reveal that the defendant has a burning limits policy or the full scope of the policy. Most importantly for resolving the case, the defendant’s response to the policy limits subsection will not identify the amount that will be available to settle a claim or to satisfy a judgment since, in a burning limits policy, that number will be decreasing with each hour defense counsel spends on the case. To prevent any surprises late in the litigation, the policy should be flushed out more fully through other discovery.
Requesting a copy of the full policy – not just the declaration page – is important to knowing the ins and outs of the defendant’s insurance coverage. If defendant refuses or delays in producing the full policy, move to compel. Under California Code of Civil Procedure section 2017.210, a party is entitled to discover the “existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. This discovery may include the identity of the carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that insurance carrier is disputing the agreement’s coverage of the claim involved in the action, but not as to the nature and substance of that dispute.” The available policy limits and the costs spent defending the action to date are justifiably also encompassed by section 2017.210 since it impacts the “nature and limits of the coverage.”
California courts have ruled that section 2017.210 allows discovery by any method of discovery. (See Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 739 [“Had the Legislature intended to limit discovery of insurance information to particular methods of discovery, it would have done so by adding such a provision to the code section or sections which deal specifically with a particular method or methods of discovery.”].) So all forms of discovery, including requests for production, special interrogatories, and depositions are fair game to discover the type, content, and limits of the policy.
Once you have received the policy, read it carefully. To be enforceable, the policy must expressly state that the defense costs reduce the limits of the policy. (Haynes v. Farmers Ins. Exchange (2004) 32 Cal.4th 1198 [“[T]o be enforceable, any provision that takes away or limits coverage reasonably expected by an insured must be conspicuous, plain and clear. Thus, any such limitation must be placed and printed so that it will attract the reader’s attention.”]) Look for how losses are defined or any clause that states that the limits of liability are reduced by the costs of legal defense. Consult with coverage counsel if you have any questions.
So defendant has a burning limits policy
If you have determined that defendant has a viable burning limits policy, think strategically. Protect your client’s interests by litigating judiciously while minimizing defense fees and costs. Engage in early resolution of the case to maximize the money to your client but be cognizant when making a policy limits demand since the available limits are constantly changing.
Overall recognizing a burning limits policy early is crucial. If you are faced with an insured with a low policy limit, minimal assets, and a burning limits policy, it is important to engage in settlement talks early before the insurer and defense counsel have spent the policy, or a significant portion of it, defending the action.
]]>Anthony Label was selected for inclusion on the 2016 Northern California Super Lawyers Top 100 list for his work in personal injury litigation. This marks the second year Label has been selected for inclusion on the “Top 100” list after being named a Super Lawyer for the past five years.
Super Lawyers is a rating service of the top five percent of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. The Top Lists take exclusivity one step further by featuring selected Super Lawyers attorneys with the most total points earned.
]]>The Veen Firm, known for trying cases and taking on plaintiffs’ work, has been profiled in Daily Journal for its creativity and persistence in handling large personal injury, wrongful death and product liability cases that other firms turn down for being too complex.
Founded 40 years ago, the firm has transformed from a one-man team to a 12-attorney office split into three trial teams. Founder William L. Veen initially had no intention of forming a partnership, but his perspective began to change after seeing the commonalities of his group of attorneys and their affinity for trying cases. This winning dynamic led to the growth of the firm, and the addition of other highly skilled attorneys, which has brought cases in from sole practitioners and other plaintiffs’ firms looking for additional firepower.
Having had a background as deputy public defenders, Trial Team Leaders Elinor Leary and Craig Peters were able to easily transition into their new roles as plaintiff litigators against insurance companies and large corporations. “If you’re not taking cases to trial, then you’re allowing some other entity to decide what the value of your loss is and the same is true if you’re a criminal defendant,” said Leary.
Peters attributes his prior career as the catalyst that helped him get over the fear of losing. “There becomes this fear that, ‘Well if I lose a case, that says something about me as an attorney,’” added Peters. “It actually says more about you as an attorney if you’re not going to trial.”
Trial Team Leader Anthony Label came from a different background, as an attorney for a corporate defense firm which was known for its strong construction law practice. Unfulfilled by the work, Label changed his trajectory, which eventually led him to plaintiff work at The Veen Firm. “At the end of a case, if you’ve done a good job, you have a client that is hugging you in tears,” says Label. “That is the highest and best place to be in our profession.”
Daily Journal also points out that opponents know the firm comes up with creative legal theories that make defendants uneasy, driving up the value of settlements. Unlike a lot of firms that are only interested in getting a settlement without doing a lot of work, The Veen Firm takes on cases others would not take on and is known for being trustworthy, an important quality that aids them in making deals with their opponents.
The firm has been involved in a variety of lawsuits that have made headlines in the Bay Area, including balcony collapses, litigation about relationships between Uber Technologies Inc. and its drivers, a case about the negligent transmission of herpes and a case against the city of San Francisco, after a mother was struck and paralyzed by a falling tree branch. As the firm continues to grow, Veen notes that all the attorneys he has hired have continued to impress him and the nature of the organization will continue to change.
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