Confidential
Settlement – $325,000Court
San Francisco Superior
Attorneys
Plaintiff
Boris E. Efron
(Law Offices of Boris Efron)
Karen M. Platt
(Law Offices of Boris E. Efron)
Defendant
Facts
On Nov. 12, 1992, the decedent, a 77-year-old retired railroad engineer, went out for a walk in a city park. At approximately 6 p.m., he was in the process of crossing a major street near the park within a poorly marked crosswalk. It was almost completely dark. The decedent had crossed approximately 50 feet when he was struck by a Toyota pick-up truck driven by the defendant driver. The decedent died from multiple trauma three days later in thedefendant county's hospital. The decedent was survived only by his sister. The plaintiff, the decedent's estate, brought this action against the driver, the city and the county based on survivorship (Probate Code º573), negligence and dangerous condition theories of recovery.
Settlement Discussions
The defendant driver's insurance carrier made an initial settlement offer of $70,000. The defendants city and county made no initial settlement offers.
Specials in Evidence
$40,000 (disputed)
Injuries
Death of a 77-year-old brother.
Other Information
The settlement was reached approximately 10 months after the case was filed. MEDIATION: A mediation was held on Aug. 11, 1994 before Bruce A Edwards of JAMS/Endisput resulting in the reported settlement. After agreeing to settle the case for a $40,000 settlement contribution based on the liability of its department of public works, represented by the City Attorney's Office, the city and county asserted a $39,865.55 lien through its bureau of delinquent revenue for the decedent's medical expenses at the city's hospital. The plaintiff disputed the lien, alleging that it was invalid since the $40,000 settlement from the defendant city was in essence "new money" over and above all liens, offsets and claims any city agency or department might have. The plaintiff argued that the defendant city's lien must be reduced based on common fund principles. The plaintiff claimed that the reduction would be based on the decedent's comparative fault and "grossly excessive" billing at the hospital. The plaintiff further contended that the lien should be reduced to reflect the plaintiff's attorney's fees and pro rata costs of litigation. This issue was at that time before the California Supreme Court in the case of City and County of San Francisco v. Sweet. The California Supreme Court ultimately denied reduction of a municipal hospital's lien based on common fund principles. Following a contested administrative offset hearing before the assistant city controller, the controller ruled, in view of the probability that had the city attorney known of the hospital charges and included them in the settlement discussions, that the charges were waived.
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