Facts

On May 31, 2003, plaintiff Gonzalo Hernandez, a laborer, was working at a construction site in Napa. The foreman instructed plaintiff and other laborers to repair facia on the roofline of a two-story single-family home that was under construction.

The foreman knew that plaintiff and the other laborers would have to construct a make shift scaffolding from wood planks and access the facia from the make shift scaffolding and a 24-foot extension ladder placed next to the make shift scaffold. The ladder and the wood planks were used as a work platform to access the facia.

The foreman observed plaintiff and his co-workers working from a height of approximately 20 feet up on his work platform that lacked fall protection. The only way that plaintiff could reach the facia was to have one foot on the ladder and one foot on the make shift scaffolding while reaching up with both hands. Although the foreman knew that there was a risk of serious injury or death by doing the facia repair in this dangerous manner, the foreman instructed plaintiff and his co-workers to "hurry up and get the job done." The foreman knew that make shift scaffolding was not legal for somebody to be working on. Plaintiff fell and sustained severe and permanent injuries including paraplegia.

Plaintiff hired a workers' compensation lawyer to represent him in the workers' compensation case, as well as a Serious and Willful Claim. His second workers' compensation lawyer then took over the claim. This second lawyer failed to advise plaintiff that the first workers' compensation lawyer had blown the statute on filing the Serious & Willful Claim. The second workers' compensation lawyer was friends with and had a business relationship with the first workers' compensation lawyer.

Neither the first nor the second workers' compensation lawyer advised plaintiff that a Serious & Willful Claim had not been filed. Plaintiff ultimately hired a third workers' compensation lawyer who, after reviewing the file, learned that a Serious & Willful Claim had not been filed.

Plaintiff sued the first and second workers' compensation lawyers for legal malpractice, fraud, and breach of fiduciary duty for failing to file the Serious & Willful Claim and for failing to notify plaintiff of this failure.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that the first workers' compensation lawyer was negligent in failing to file a Serious & Willful Claim before the statute of limitations expired, and failed to advise plaintiff of his legal malpractice claim against him, and advise plaintiff of his need to retain other counsel.

Plaintiff also contended that the second worker's compensation lawyer also failed to advise plaintiff of the fact that the first workers' compensation lawyer failed to file a timely Serious & Willful Claim and failed to advise plaintiff of his potential claim of legal malpractice against the first worker's compensation lawyer.

DEFENDANT'S CONTENTIONS:
Defendants contended that plaintiff's claim was no merit to the underlying Serious & Willful Claim.

Damages

Loss of potential damages as a result of workers' compensation lawyer's failure to file a Serious & Willful Misconduct Claim.

Result

The case settled for $457,500 after mediation with Judge Leonard Sprinkles, retired.