Facts

On Feb. 6, 2010, plaintiffs Flavia Ocampo Roche and Benito Ocampo Bahena were driving southbound on State Route 99 in Merced County, when the right rear tire of their Cadillac Escalade EXL blew out. Plaintiffs pulled the vehicle over to the side of the road and exited the vehicle to inspect the damage. Roche was assisting her husband change the tire when she was struck by a vehicle being driven by defendant Joshua Ramirez. Ramirez, who was traveling behind plaintiffs, swerved to avoid the resulting tire debris in the road and lost control of his vehicle striking Roche.

The blowout was caused by tread separation of a tire that was on plaintiffs' vehicle.

Plaintiffs sued Ramirez, Susan Rodriguez and Pedro Oregel, the owners of the car, and Legend Auto Sales. Thereafter, plaintiffs brought a separate action for products liability against the tire manufacturer Sumitomo Tire and Legend Auto. These two actions were consolidated. Sumitomo Tire was dismissed for a waiver of costs following a motion for summary judgment, which was granted.

Legend Auto Sales cross-complained against Brasher's Auto Auction for indemnity.

PLAINTIFFS' CONTENTIONS:
Plaintiffs had purchased the vehicle from defendant Legend Auto Sales, a used car dealership in Sacramento, less than two months before the accident.

Legend Auto Sales was in possession of a detailed "Vehicle Condition Report" that plaintiffs received after they purchased the vehicle from Brasher's Auto Auction. The report identified multiple serious problems with the tires on the vehicle, including balding and uneven tread wear and mismatched tire sizes and manufacturers, none of which were disclosed to plaintiffs prior to purchase.

These tire defects including the beginning of the separation could have been easily discovered with a reasonable and simple vehicle inspection which is mandatory in the used car industry prior to selling a vehicle. Plaintiffs claimed that in an effort to rush this sale, which plaintiffs had put $17,000 in cash as a down payment, Legend Auto Sales did not perform a vehicle safety inspection and purposely concealed from plaintiffs the defective and unsafe nature of its tires had no obvious defects at the time of the sale.

Further, Import Specialists testified that they had no recollection of such an inspection, and had no documentation that the inspection ever occurred.

Plaintiffs asserted causes of action for negligence, motor vehicle negligence, and negligent infliction of emotional distress. In December 2015, plaintiffs moved to amend their complaint to include punitive damages against Legend Auto Sales for fraud and concealment based on the deposition testimony of Legend Auto Sales' owner regarding the transaction. The motion was granted and trial was set to commence in June 2016.

DEFENDANTS' CONTENTIONS:
Legend contended it had the vehicle inspected by a third party, Import Specialists, who certified the tires as safe prior to sale. Legend argued that it was not liable since all of plaintiffs' damages were the result of an intervening superseding cause, the negligence of Rodriguez the oncoming driver. Further, Legend claimed that Brasher's Auto Auction was liable because they knew of the defects and it was their obligation to change the tires prior to the sale of the vehicle.

Sumitomo Tire produced evidence at the MSJ that the tire was damaged at the time of sale to plaintiffs and that the damage would have been visible to Legend Auto Sales had a reasonable inspection been made at the time of sale.

Specials in Evidence

$33,709 (paid by Medi-Cal) for Flavia

Injuries

Flavia sustained a fractured left clavicle, a fractured left scapula, right pelvic fracture, right proximal tibia-fibular fracture and right distal fibular fracture, right foot metatarsal fracture, left ankle injury, head lacerations, and multiple lacerations to the right elbow. She was hospitalized at Memorial Hospital in Modesto for 19 days. Thereafter, she was followed by her various treating physicians with limited treatment following discharge. She was employed as a nurse's aid at the time and never returned to work following the incident. Benito claimed a leg injury. Plaintiffs' son, Michael, claimed an arm injury. Plaintiffs' daughter, Evelyn, claimed minor injuries and emotional distress.

Result

The case against Legend Auto Sales settled for a global amount of $1,640,000. Flavia obtained $1.6 million from Legend Auto and $10,000 from Brasher's. The parties settlement included $10,000 for Benito, $10,000 for Evelyn, and $10,000 for Michael. The good faith settlement with Farmers Insurance was for $50,000 policy limits, which included $25,000 for Flavia, $10,000 for Benito, $4,999 for Evelyn, and $12,001 for Michael.

Other Information

In August 2012, plaintiffs reached a good faith settlement with Ramirez, Rodriguez, and Oregel for policy limits. Sumitomo Tire allowed plaintiff's counsel access to their expert for trial. INSURERS: Zurich Insurance for Legend Auto Sales, Mitsui Sumitomo Insurance Co. Ltd., for Sumitomo Tire, Farmers Insurance for Joshua Ramirez, Susan Rodriguez and Pedro Oregel/Madrigal, Acceptance Indemnity Insurance Co. for Brasher's Sacramento Auction Inc. FILING DATE: March 9, 2011.