Julio Simoes v. Safeco Insurance Company of America
Published: Jan. 7, 2003 | Result Date: Oct. 28, 2002 | Filing Date: Jan. 1, 1900 |Case number: GIC769574 Verdict – $16,650
Judge
Court
San Diego Superior
Attorneys
Plaintiff
Douglas A. Cleary
(Law Offices of Douglas A. Cleary)
Jack B. Winters Jr.
(Winters & Associates)
Defendant
Experts
Plaintiff
Frank A. Orma
(technical)
Defendant
Andre E. Jardini
(Knapp, Petersen & Clarke)
(technical)
Alan Hamilton
(technical)
Facts
On Sep. 22, 1997, the plaintiff, a retired commercial tuna fisherman, observed from his open garage a heated argument at the end of his driveway between his wife and next door neighbor regarding the placement of trash cans. During the argument, the neighbor allegedly picked up a garden tool and held it in a threatening manner towards the plaintiff's wife. According to the plaintiff, he feared for his wife's safety. He then ran upstairs to their bedroom, retrieved a loaded .40 caliber handgun, and came back into the garage. The plaintiff then brandished the handgun and told the neighbor to move away from his wife. The neighbor complied, and the plaintiff's wife ran inside the house to call the police. While speaking with the plaintiff's wife, the police dispatcher overheard the plaintiff yelling and threatening to kill the neighbor. The police subsequently arrived and arrested the plaintiff for violation of Penal Code Section 417 (a) (2) (brandishing firearm not in self defense). The charges against the plaintiff were later dismissed. About one year later, the neighbor sued the plaintiff for assault and negligence over the Sep. 22, 1997 incident. In his form complaint, the neighbor alleged that he had sustained emotional distress and general damages. The neighbor did not allege that he had sought any medical treatment. On Dec. 4, 1998, the plaintiff tendered his defense of the neighbor's suit to the defendant, the plaintiff's homeowner's insurer. In acknowledging the tender on Dec. 14, 1998, the defendant stated that it needed to conduct a coverage investigation, including the taking of the plaintiff's statement, before it could either accept or deny the tender of defense. The defendant told the plaintiff that he should take necessary steps, including hiring an attorney, to protect himself in the neighbor's suit, and that the defendant would reimburse his reasonable attorney's fees and costs should it determine that coverage was owed. A few days later, the plaintiff informed the defendant that he had retained an attorney. After learning of the plaintiff's representation, the defendant attempted to contact his counsel to arrange the plaintiff's statement. On Jan. 19, 1999, the plaintiff's counsel told the defendant that it could not have the plaintiff's statement. The plaintiff's counsel continued to refuse to permit the plaintiff's statement until May 28, 1999. In the interim, the defendant obtained a copy of the police report from the Sep. 22, 1997 incident. According to the police report, the plaintiff's neighbor sustained no physical injuries and no property damage. On May 28, 1999, the defendant took the recorded claims statements of the plaintiff and his wife with the plaintiff's counsel present. In those statements, they both confirmed that the neighbor had not been injured in the incident. The plaintiff's counsel also reported to the defendant during one of those statements that he was unaware of any injuries being claimed by the neighbor. The defendant denied the tender on June 25, 1999. The plaintiff subsequently settled the suit with the neighbor for $8,000 after incurring approximately $12,000 in attorney's fees and costs.
Settlement Discussions
Prior to filing suit, the plaintiff made a demand of $95,000, and the defendant submitted an offer of $21,844. After filing the lawsuit, the plaintiff made a C.C.P. Section 998 demand of $99,999 and the defendant made C.C.P. Section 998 offer of $50,001. During trial, the plaintiff made a demand of $600,000, which was later increased to $750,000, and the defendant countered with an offer of $75,000.
Damages
At trial, the plaintiff sought economic damages of $78,000 and non-economic damages (emotional distress) of $200,000. The plaintiff also sought punitive damages.
Other Information
The plaintiff's cause of action for unfair competition was resolved by summary adjudication motion. The question of whether the defendant owed a duty to defend was concurrently tried to the court. At the close of evidence, the court found that the defendant owed a duty to defend, and the jury was instructed as to that determination.
Deliberation
three days
Poll
9-3 (breach of contract damages), 9-3 (no bad faith)
Length
11 days
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