Confidential
Settlement – $475,000Judge
Court
San Diego Superior
Attorneys
Plaintiff
Defendant
John J. Duffy
(Swanson, Martin and Bell LLP)
Experts
Plaintiff
Harry L. Carter
(technical)
Edward J. McKinnon
(technical)
Defendant
W. Thomas Nothern
(technical)
Thomas L. Carter
(technical)
Facts
Plaintiffs leased property in San Diego from Arthur DeFever starting October, 1988, to operate an automobile dealership. Tower Motors had previously operated a dealership at the same location for 28 years. Tower Motors had installed an underground oil storage and underground gasoline tank on the property, removing one tank and discontinuing the use of the other in 1986. In early 1989, Plaintiffs, pursuant to the lease agreement, removed the gasoline storage tank. At that time pollution was discovered in the ground at the site of both the oil and gasoline storage tank. A clean up of the pollution was ordered by County officials and the property owner, Arthur DeFever, paid $319,000 for the cost of the clean up. He then sued Tower Motors and Plaintiff's to recover the clean-up costs. Defendant, Universal, had insured Tower Motors back to 1960 and the Kijoras for 2 years during this period. Universal denied defense and indemnification to the Kijoras based on an absolute pollution exclusion and proceeded to settle on behalf of Tower Motors for less than one-half of the clean up costs. The Plaintiff Kijoras, without benefit of counsel, were forced to enter into a $200,000 judgment in favor of DeFever. They also incurred several thousand dollars in defense fees prior to discharging private counsel. Tower Motors, with the assistance of Universal's coverage counsel, also obtained a "Good Faith Settlement Determination" in the action by the property owner which cut off the Plaintiffs' rights for indemnification from Tower Motors.
Settlement Discussions
Plaintiffs contend they made a 998 demand of $750,000 and Defendant offered $150,000 increased to $250,000 then $400,000.
Damages
$200,000 judgment plus attorney's fees, Brandt (Brandt v. Superior Court) fees and emotional distress.
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