Marc Tosca v. Rick Mayfield and R&M Backhoe Service, Inc.
Published: Aug. 21, 1999 | Result Date: Apr. 30, 1999 | Filing Date: Jan. 1, 1900 |Case number: 75806 Verdict – $1,106
Judge
Court
Mendocino Superior
Attorneys
Plaintiff
Defendant
Experts
Plaintiff
John Tilley
(technical)
Rick Thill
(technical)
Terry McGillivray
(technical)
Defendant
Neal Carnam
(technical)
Facts
In October 1996, plaintiff Marc Tosca hired defendant R & M Backhoe to perform earth-moving and related work at Tosca's property in Ukiah, California. The work included dredging out a lake and two smaller ponds on Tosca's property, performing road grading and repairs, and repairing damage done during prior storms by re-installing some culverts and filling a ravine. R & M Backhoe performed its work on a "time and materials" basis. After R& M Backhoe stopped working, Tosca closed the lake's overflow valve in order to raise the water level of the lake. In early December, Tosca took a one-week trip to the east coast, during which Ukiah experienced heavy rains. When he returned from his trip, Tosca discovered that the lake was completely full and overflowing its banks. He also found that the ravine and culvert system repaired by R & M Backhoe had washed out again. Tosca refused to pay R & M Backhoe's final invoice of $4,578.86. Plaintiff Marc Tosca brought this action against the defendants, R & M Backhoe and its sole proprietor, Rick Mayfield, based on property damage and emotional distress. The defendants cross-complained against the plaintiff based on breach of contract.
Settlement Discussions
The plaintiff's initial settlement demand was $60,000 plus an unspecified amount for personal injury damages, lowered to $25,000, and further lowered to mutual cost waivers. The defendants/cross-complainants made a C.C.P. º 998 offer of compromise for $5,001 to settle the complaint only, lowered to a C.C.P. º 998 offer of compromise to settle the entire action.
Damages
The plaintiff asked the jury to award damages of approximately $25,000 plus general damages of an unspecified amount. The defendants/cross-complainants asked the jury to award the plaintiff nothing and award the defendants/cross-complainants damages of $4,578.80.
Other Information
Before trial, the judge granted the defendants' motion for summary adjudication on the plaintiff's infliction of emotional distress claim. EXPERT TESTIMONY: Defense expert Neal Carnam testified that the plaintiff sustained no damage because the ravine was placed back in the same condition as before the defendants performed their work, and because the plaintiff was informed that the repair was merely temporary and that a proper repair would require compacting the fill and placing the culvert system in a proper manner.
Deliberation
three hours
Poll
12-0 (in favor of the defendants/cross-complainants on the breach of contract claim), 9-3 (in favor of the plaintiff on the negligence claim)
Length
five days
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390