Confidential
Settlement – $2,000Judge
Court
San Francisco Superior
Attorneys
Plaintiff
Defendant
John W. Myers IV
(Beatty & Myers LLP)
Experts
Defendant
David Jacobs
(Epstein, Becker & Green)
(technical)
Facts
On May 8, 2000, the defendant Eugenio Coloma ran into the plaintiff, Andrew Smith's parked and unoccupied 1971 Chevy half-ton pick up truck. The vehicle was plaintiff's work truck being self-employed in the landscaping business. After the accident, the plaintiff's truck was towed to the plaintiff's chosen repair facility - Santiago's Auto Body. The defendant's insurer, 21st Century, determined that the truck was worth less than the estimated repair costs of $3,600, therefore it was a total loss. 21st Century then removed the truck from the body shop on May 25 which the plaintiff claimed was done without his permission. 21st Century made a total loss offer of $1,262 to the plaintiff, which was rejected because the plaintiff contended that he was also owed additional money for loss of use and loss of business income. 21st Century then offered $255 for loss of use, and $814 for loss of income (based on a two-year-old tax return and proof of recent job estimates). Five months after the accident, the plaintiff retained an attorney who demanded the repair cost ($3,600) plus return of the truck. The company rejected the $3,600 demand. Nearly a year after the accident, the company agreed to return the truck if the plaintiff provided an address (which had never changed, and which the company already had in their possession). The company at that time paid the plaintiff $1,262 as the undisputed amount of property damage. The plaintiff then sued the defendant for negligence, seeking to recover property damage and nearly one year's loss of use and or business income from the date of the accident until 21st Century tendered payment of the undisputed amount of property damage. The plaintiff also sued 21st Century directly, for conversion alleging that he did not give consent for the company to remove his vehicle from the repair shop and for unfair business practices in violation of Business and Professions Code Section 17200 (based on the alleged conversion and other claims handling improprieties). At arbitration, the plaintiff was awarded $34,159 against the defendant Coloma (which included $2,500 for the value of his truck, $7,750 for lost business income, $17,003 for nearly one year's loss of use and $6,906 for interest). The defendant requested trial de novo. The case proceeded to trial against 21st Century based on the conversion claim for loss of use. The defense argued that the plaintiff could only recover for the reasonable time necessary to repair or replace his truck (regardless of when the insurance company made any payment) which logically should not have been more than a month or so (not the one year claimed by the plaintiff). For loss of business income, the defendant argued that the plaintiff had never documented any, despite very specific recovery requests. Moreover, the records he did produce showed that he completed several big jobs in the months after the accident.
Settlement Discussions
Defense counsel stated that right up until the beginning of trial, the plaintiff refused to discuss settlement for anything less than the arbitration award. On the day that the case was sent out for trial, the plaintiff demanded $8,000 from Coloma. The defendant Coloma offered (C.C.P. Section 998) before trial and then offered $2,000 on the first day of trial.
Damages
The plaintiff contended that he did not have money to repair or replace his truck and thus sought loss of use from the date of the accident until 21st Century paid him the undisputed amount of property damage. He also sought $8,000 for loss of business income, since he used the truck in his gardening/landscaping business.
Result
The case ultimately went to trial on the claims against 21st Century and the jury returned a defense verdict, finding that no conversion of the truck had been done (9-3).
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