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All California trials suspended for 60 days

All California trials suspended for 60 days JUDICIAL COUNCIL OF CALIFORNIA STATEWIDE ORDER BY HON. TANI G. CANTIL-SAKAUYE, CHIEF JUSTICE OF CALIFORNIA AND CHAIR OF THE JUDICIAL COUNCIL MARCH 23, 2020 The World Health Organization, the United States Centers for Disease Control and Prevention (CDC), and the State of California have recognized that the world, country, and state face a life threatening pandemic caused by the COVID-19 virus. As of March 23, 2020, the CDC reported that there are more than 40,000 confirmed COVID-19 cases in the United States, and more than 500 deaths. In California, the Department of Public Health reports more than 1,700 confirmed cases and more than 30 deaths. Health officials expect these figures to rise dramatically unless the population adheres to shelter-in-place guidelines and appropriate social distancing. As of this date, there is no known cure or vaccination. In response to the spread of COVID-19, Governor Newsom on March 4, 2020, declared a state of emergency in California, which was followed on March 13, 2020, by President Trump declaring a national emergency. Beginning on March 16, 2020, California counties began issuing shelter-in-place or stay-at-home orders. On March 19, 2020, Governor Newsom issued Executive Order N-33 20, requiring all Californians to stay home, subject to certain limited exemptions. Courts are included in this exemption. Schools have been closed statewide. The CDC, the California Department of Public Health, and local county health departments have recommended increasingly stringent social distancing measures of at least six feet between people, and encouraged vulnerable individuals to avoid public spaces. Courts cannot comply with these health restrictions and continue to operate as they have in the past. Court proceedings require gatherings of court staff, litigants, attorneys, witnesses, and juries, well in excess of the numbers allowed for gathering under current executive and health orders. Many court facilities in California are ill-equipped to effectively allow the social distancing and other public health requirements required to protect people involved in court proceedings and prevent the further spread of COVID-19. Even if court facilities could allow for sufficient social distancing, the closure of schools means that many court employees, litigants, witnesses, and potential jurors cannot leave their homes to attend court proceedings because they must stay home to supervise their children. These restrictions have also made it nearly impossible for courts to assemble juries. Pursuant to my authority under the California Constitution, article VI, section 6 and Government Code section 68115, and after careful consideration, balancing the constitutional due process rights of parties in both criminal and civil proceedings with the health and safety of these parties, the public, court staff, judicial officers, attorneys, witnesses, jurors, and others present at these proceedings, among other considerations, I find good cause to order that: 1. All jury trials are suspended and continued for a period of sixty (60) days from the date of this order. Courts may conduct such a trial at an earlier date, upon a finding of good cause shown or through the use of remote technology, when appropriate. 2. The time period provided in Penal Code section 1382 for the holding of a criminal trial is extended for a period of sixty (60) days from the date of this order. Courts may conduct such a trial at an earlier date, upon a finding of good cause shown or through the use of remote technology, when appropriate. 3. The time period provided in Code of Civil Procedure sections 583.310 and 583.320 for the holding of a civil trial is extended for a period of sixty (60) days from the date of this order. Courts may conduct such a trial at an earlier date, upon a finding of good cause shown or through the use of remote technology, when appropriate. 4. All superior courts are authorized under rule 10.613(i) of the California Rules of Court to adopt any proposed rules or rule amendment that is intended to address the impact of the COVID-19 pandemic to take effect immediately, without advance circulation for 45 days of public comment. A court adopting any such rule change must provide a copy to Judicial Council staff and post notice of the change prominently on the court’s website, along with the effective date of the new or amended rule. Additionally, the court must immediately distribute the new or amended rule as set forth in rule 10.613(g)(2). No litigant’s substantive rights shall be prejudiced for failing to comply with the requirements of a new or amended rule until at least 20 days after the rule change has been distributed. Courts are urged to timely communicate with attorneys and self-represented litigants regarding the status of pending proceedings. I reserve the authority to rescind or modify this order, as appropriate, to address changing circumstances. This order may be deemed part of the record in affected cases for purposes of appeal without the need to file the order in each case. Date: March 23, 2020Hon. Tani G. Cantil-Sakauye Chief Justice of California and Chair of the Judicial Council Search for: Search Archives Archives Select Month March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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Statutes of limitations: what you need to know

COVID-19 / admin

Statutes of limitations: what you need to know Currently, the courts in California are, shall we say, a little in disarray because of the coronavirus. Most jurisdictions are closed in some fashion or another, some are sort of open, to differing degrees of effectiveness (See Orange County, Headline: “Complete Chaos“). The declaration yesterday from Governor Newsom has only further muddied the waters, though we anticipate that in the coming days, as presiding judges from each Superior Court discuss, we will be getting clarification. So what do we do in order to meet our statues of limitations for our incoming cases? It depends. Government Claim Statutes For any case involving a government entity, the governmental claim form has to be filed with and pursuant to each individual entity’s guidelines within 6 months of the date of loss for state and local claims within California. To meet the governmental claims form statute, the claim form must be sent in a sealed envelope postmarked within the statute to ensure delivery to the entity no later than the 6 month deadline. We have heard accounts of firms shoving the forms under the locked doors of their respective jurisdictions! We don’t need to go to that extreme. We do, however, have to make sure that, as long as the USPS is operating, we ensure that claim form deadlines are complied with in regular due course. Statute of Limitations Filing in State Courts For non-government cases, we need to file our suits though the courts directly. In California, most of them are for all intents and purposes closed. Here is our plan of action for statutes. First, we will work with our vendor partners to determine what the current situation is on the ground at the Clerk’s Office of the relevant jurisdiction to see if filing is even possible. If it is possible, we will file the pleading as we normally would to protect the statute. If the Clerk’s Office is not accepting new filings and is closed we are currently researching a plan to defer to the code on court holidays, which follows: THE STATUTE IS TOLLED (paused) UNTIL “THE NEXT DAY THE COURT IS OPEN FOR BUSINESS.” – The suit must be filed on the very first day the court is open. In due diligence, we will be including in our pleadings that the statute of limitations was not met due to coronavirus. We, along with our process servers, will be keeping a very watchful eye on all jurisdictions and their decisions as to when they will reopen, or cancel their “holiday.” THE STATUTE OF LIMITATIONS IS TOLLED UNTIL THE FIRST DAY THE COURT IS OPEN IF THE LAST DAY TO FILE IS A WEEKEND, HOLIDAY, OR DURING AN EMERGENCY COURT CLOSURE: See: Code of Civil Procedure Sections 10, 12, 12a, 12b, and 135; Government Code Section 6700. See also Mink v. Superior Court (1992) 2 Cal. App. 4th 1338, 1342; Tran v. Fountain Valley Community Hospital (1997) 51 Cal. App. 4th 1464, 1466. “If any city, county, state, or public office, other than a branch office, is closed for the whole of any day, insofar as the business of that office is concerned, that day shall be considered as a holiday for the purposes of computing time under Sections 12 and 12a.” Code of Civil Procedure Section 12b. [For a discussion of the term “other than a branch office”, see Bennett v. Suncloud (1997) 56 Cal.App.4th 91,98-99 where an earthquake closed the branch court but not the main court where the lawsuit could have been filed on time – thus, no extension of time was granted. PLEADING STATUTE OF LIMITATIONS EXCEPTIONS IN THE COMPLAINT: Where the complaint’s allegations or judicially noticeable facts reveal the existence of an affirmative defense [e.g. statute of limitations], the “plaintiff must plead around’ the defense, by alleging specific facts that would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action ….” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) ¶ 6:179, p. 6-39, citing Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, 917, 921-922, 259 Cal. Rptr. 117, and Spray, Gould & Bowers v. Associated Int’l Ins. Co. (1999) 71 Cal. App.4th 1260, 1266, fn. 4, 84 Cal.Rptr.2d 552. (“[W]hen a complaint shows on its face (or with the help of judicially noticed facts) that a pleaded cause of action is apparently barred by the statute of limitations, plaintiff must plead facts which show an excuse, tolling, or other basis for avoiding the statutory bar. Of course, this is a first impression situation and we are being fluid and hope, in coming days, the courts will give us specific guidelines that govern this situation. We will be monitoring the situation and will post updates here as they come in. Be Safe! Search for: Search Archives Archives Select Month March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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Find out how our firm is navigating this difficult time

Firm Notifications / admin

Find out how our firm is navigating this difficult time As we continue to monitor the latest updates and information about the global COVID-19 outbreak, we are taking additional measures to ensure the safety of our employees and continued service to our clients. Based on reports we had received last month, Siegel, Moreno & Stettler initiated its business continuity plan to ensure a stable workflow in the event that one or all of our offices had to close or personnel had to work remotely. All SMS Offices Are Now Remote All SMS Offices are now working remotely with a crew in each office to handle essential day to day business to ensure our cases are handled without interruption. Our attorneys and management have had remote applications (HIPAA compliant) for years. We now have remote operational access capabilities for all necessary staff and personnel. For the safety of our employees, we will also be moving primarily to electronic communication to the extent possible. This will help eliminate undue office time. If this presents workflow issues with your office please let us know. About the Courts One of the more fluid situations we face is direction from our state and local courts. Presently most state courts are not allowing jury trials. The DIR has discouraged most personal appearances at local WCAB offices. Both state and administrative courts continue to allow electronic service and telephonic appearances through preferred vendors. SMS has had and remains to have the capabilities to appear either in person or electronically to serve client needs. Obviously, court appearance, depositions, mediations and other case related matters are disrupted in ever evolving ways. As best as possible we will try to keep you in the loop on the developments. If you have any questions about specific cases, please reach out to us and we will be happy to address you concerns immediately. Since the courts will face backlogs, if you have any cases with statute of limitations between now and May 31, 2020, it would be wise to consider making sure they get referred with ample time to file a complaint given anticipated delays at the clerks’ offices. In the past we have been able to handle last-minute filings but the current situation indicates such speed will not be possible within the courts themselves. Communication SMS remains committed to serving all client needs during this critical time. Please do not hesitate to contact us to discuss any concerns. During this time we will continue to provide the very best communication with our clients. SMS has already partnered with Work Comp Central to provide virtual face to face meetings, webinars and video conferencing to maintain the level of communication our client’s have come to know and rely on. We also have a customer services representative, Jen McCaw, who is dedicated to our clients and will provide another layer of communication and support. Going Forward Our firm is committed to keeping our clients appraised of statewide and local changes as they relate to the coronavirus outbreak as well as its impact on our industry. Most importantly, from our family to yours, stay safe! Covid 19 Search for: Search Archives Archives Select Month March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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Tips for Taming Work Comp Subpoenas

Workers' Compenstation / admin

Tips for Taming Work Comp Subpoenas Legal copy services are a fact of life in the legal world. No attorney practicing today can live without them, unless we could dedicate our whole day to the minutiae of document preparation and dissemination. They are an essential service that we rely on. But let’s face it. They run a business and will always try to bolster their bottom line. Since there are strict rules as to which party pays for legal copy services and when, the ledgers get a little muddy. Lawmakers have stepped in to try and streamline the industry, but there are always ways to figure out how to sidestep regulations. Following, I’ve prepared a list of the current tricks employed by copy services and how you can spot them, outmaneuver them, and prevent getting gouged. But first, a little background. A number of years ago, I drafted a two-part article series about the perils of copy services and their subpoena and billing practices and how to mount a successful defense against them. It resulted in one well-known provider in Northern California writing a “white paper” in response to my article, which was filled with some small counter arguments and not much more. In the years subsequent to those articles, a lot has changed in the world of copy services and their practices. The most notable change was the passage in 2012 of California SB 863. SB 863 and its impact on subpoenas SB 863 implemented a fee schedule for copy services. This ended, for the most part, the “wild west” of service fees. In my opinion, SB863 and the implementation of a copy service fee schedule was implemented at least in part, to prevent unnecessary copy service charges that typically occur throughout the life of the claim. Signed in August of 2012 and later codified in Labor Code §5307.9, SB 863 ultimately resulted in a fee schedule that went into effect on 7/1/15 (see also 8 CCR §9980-9983 for more information). The fee schedule did a number of things: Placed a flat fee on copy costs for pages below 500 Added a per page cost above 500 pages Cancelled other subpoena costs Created flat fees for records from certain agencies Gone were the days of $300+ bills for a Certificate of No Records. Useless charges for “base rate”, phone calls, mileage, pagination, bates stamping were ghosts of billing abuses past. And the defense side rejoiced. But not me! I chose to operate on the assumption that like other billing phenomena in the Workers’ Compensation world such as positional MRI’s and re-packaged and compound medications, providers would simply find another way to recoup that lost income. I was right. I’ve compiled a list of tricks I have noticed that copy services are pulling in light of SB 863, which in all seriousness really was a hit to their bottom line. Read: Is the claim contested? Trick #1- Subpoenas issued immediately upon representation SB 863, codified by 8 CCR §9982(d)(1) established a waiting period of 30 days for the defendant to provide records upon request and also discusses “allowable services”. In the event the applicant’s attorney sends a letter of representation and makes a request for records from the defendant, the defendant is not liable for charges associated with records provided during this waiting period by the carrier, claims administrator, or party that is not a professional photocopier. The first “trick” I wish to address is the subpoena immediately upon filing of an Application of Adjudication or simply when applicant’s attorney sends their boilerplate introduction letter and makes a general request for records. I have been told on more than one occasion that it is commonplace for most of the larger copy service companies to have a de facto “desk” at many applicant attorney’s offices, where they come by multiple times a week to inquire about new claims to be filed and immediately proceed with multiple subpoenas to parties such as employer, carrier, known physicians, private treating physicians and others. I would argue that contrary to many copy service providers’ claim that a subpoena issued by them starts this 30 day clock, the Code does not specify this. Further, this would defeat the purpose of the fee schedule. If a subpoena is issued during this timeframe and the defendant provides the records to applicant’s attorney directly, can the copy service cancel their subpoena and hit you with a $75.00 charge? I would argue no! By issuing immediate subpoenas, they anticipate that: The defendant will not comply with a 30-day requirement Parties served with their subpoenas will automatically comply, thus “justifying” their billing and They can establish a pattern of additional subpoenas, which we will discuss below. Trick #2- Ongoing/updated subpoenas Any defense attorney or claims examiner who has worked for longer than a week at an active desk has experienced this. New applicant’s attorney? Here’s your subpoena. New primary treating physician? Here’s your subpoena. The defendant issues a subpoena for a particular location? Here’s a subpoena for the same location. Ongoing medical care? Here’s your updated subpoena. The most common arguments that I hear are four-fold. The first argument I usually hear is that the original request for records in the boilerplate form sent by applicant’s attorney at the start of the claim creates an ongoing requirement for a file and serve. I concede that this argument may have some merit, yet we must jump into the weeds to dissect it. With an ongoing duty, I am not aware of a set “required time” to comply with ongoing file and serves. I recommend every 45 days the claims examiner provide updated reports and upon the receipt of a DOR. However, I always argue upon receipt of an updated subpoena for ANY location in which the defendant has records, that we treat that subpoena as a request for records from the applicant and comply with the request within 30 days. I always make it a point to demonstrate to the WCAB that

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How L.A. traffic changed deposition procedure

Depositions, Law / admin

How L.A. traffic changed deposition procedure A few days ago, I was in a very normal, run-of-the-mill deposition in Los Angeles. Once the opposing counsel had finished squeezing blood out of the rock that was my witness (“Where did you go to preschool?”), I recited the usual deposition-ending stip: “I stipulate that we relieve the court reporter of her duties under the California Code of Civil Procedure and allow the original transcript of this deposition to be sent directly to the witness or witness’ attorney for reading and signature.” As usual, all counsel around the table stipulated. As we started to close up shop, thus beginning the shuffling ritual of getting the hell out of there, the court reporter suddenly got a gleam in her eye. She reached into her briefcase and plopped a document on the table in an action that can only be compared to Julia Roberts walking out of Gucci with several shopping bags shouting “Big mistake! Big!” I picked up the document and gave it a lawyerly glance, and acting like I knew exactly what it was all about, said ‘What’s this all about?” Could it be true? The SoCal Stip was dead! Where did the SoCal Stip come from to begin with? By statute, the court reporter has to retain custody of the original transcript. Back in the day, before computers and Candy Crush, witnesses would have to physically drive, bus or gallop to the court reporter’s office to review the original transcript, make changes and approve it. This process worked just fine until L.A. became the place to be and people started choking the freeways and making getting just about anywhere generally impossible. So, in the 70’s, SoCal lawyers started to realize it was getting ridiculous for witnesses to have to commute for an hour to read their own words. More importantly, witnesses started to realize this as well and stopped showing up. This resulted in a major backlog, missed deadlines and headaches for all. Little by little, lawyers started to introduce this stipulation, the SoCal stip, in order to put themselves in control of managing changes with the witness. It saved a lot of time and a little bit of money. I often have depositions in Northern California and this stipulation is never used there (is traffic is lighter in San Francisco?). Going from North to South, lawyers start using it around Santa Barbara. 40 years later, apparently, we can send certified original transcripts to witnesses in a nanosecond thanks to the internet and computers. And, unless you’re on dialup, there’s no traffic. Court reporters have to follow the law, too! You’ve really got to like typing. It takes about two years to get a degree in court reporting and then there are several certifications and tests. As you progress in your career, you acquire all kinds of skills that allow you to report in progressively more lucrative situations. It’s a great job and worth defending. One of the main things court reporters have to do is, surprising to some, follow the law. If they don’t, they get stripped of their certifications. It makes sense that court reporters would be very hesitant to agree to any stipulation that violates the law. Turns out that every time SoCal lawyers used the SoCal Stip, they were stipulating that the court reporter break the law! The SoCal stip is illegal (since Nov 1) You can understand why witnesses, counsel and reporters, formed a gentleman’s agreement: THE TRAFFIC IS REALLY TERRIBLE IN L.A., GUYS! But, times have changed – thus the gleam in our court reporter’s eye that day. The document in my hand was the SoCal stip’s death certificate. It’s over. Thanks Al Gore… and Steve Jobs. Want to hear this riveting story in person? Give me a call – I’m happy to discuss this or any California subrogation issues you have. ccapalbo@siegelmoreno.com – 619-525-7626 Search for: Search Categories COVID-19 Depositions Firm Announcements Firm Notifications Giving Back Law New Attorneys New Location Property Subrogation Subrogation Workers' Compenstation Archives Archives Select Month August 2026 March 2026 January 2026 July 2025 May 2025 March 2025 January 2025 November 2024 October 2024 July 2024 June 2024 January 2024 December 2023 November 2023 August 2023 May 2023 April 2023 March 2023 February 2023 May 2022 March 2022 February 2022 January 2022 November 2021 October 2020 September 2020 August 2020 June 2020 May 2020 April 2020 March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 January 202 Subscribe To Our Blog First Name Last Name Email * Edit Template

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How to prevent your California property subrogation case from getting too hot

Property Subrogation / admin

How to prevent your California property subrogation case from getting too hot When I’m not in court, I often spend a majority of my day as a California subrogation attorney in my office peering over stacks of paper – pleadings, discovery, motions, medical records (you get the idea). On some of my favorite days on the job, though, you’ll find me in a hard hat and my trusty steel-toed boots sifting through an accident scene trying to figure out what exactly happened to the site, and why. This is when I’m in what I love to call my “Veronica Mars” mode. I get to put on my investigating attorney hat and sift through the aftermath of a property loss – looking for clues to help me prove what happened, and who is to blame. I happen to handle a lot of property loss cases involving fires that originate from the malfunction of an ordinary household product. Several of these have been the result of a microwave failure – they’re more common than you think – or are probably comfortable thinking about. When I get that call involving a property fire, the first thing I do is ensure the scene is secure and preserved, and then I grab my investigator gear and get to the scene as quickly as I can. Preserving the scene Securing the scene and timing are essential in these situations. This is because any change in the scene can destroy your evidence. Trust me. Don’t let it happen to you. There will be a lot of well meaning people trying to get in to the property to do their jobs as quickly as possible. While this is great, and these people are appreciated, they can inadvertently annihilate any chance you have at subrogation recovery without meaning to. When you control the scene, you control your recovery potential. So many things can happen to a loss site if you’re not proactive in stabilizing and preserving the scene. If you always keep in mind the basic “who, what, why” questions, it can help you better evaluate the best course of action for the scene. This includes the need for estimation for repair, clean up, and liability investigation. You have to make sure you’re aware of who is at the scene, why and what they are doing. Keeping track of this in a quick notes section is also extremely helpful when arguing your subrogation case because you can use that information to show the scene was not altered. Preserving the scene also requires putting all potential liable parties on notice that they may be liable, and giving them the opportunity to inspect the scene themselves. This can be time consuming, and difficult when you are trying to mitigate damages and get all repairs completed as quickly as possible. If you don’t do this, however, those potentially liable parties will use your failure to provide them access to the scene before it is altered as evidence that the scene was not handled properly, and attempt to discredit your subrogation claim against them. Securing the failed product Most importantly, you have to get a hold of that microwave. Physically be in possession of the evidence and your subrogation recovery potential increases exponentially. As the property insurance carrier, our subrogation rights come from standing in the shoes of our insured. In these types of cases our insured is usually the owner of the property. When that is the case, it is a simple task of talking to the insured and our investigators to make sure the product is secured and taken into custody to be stored as evidence. This also makes the product easily available for further inspection and testing later on. If the insured isn’t the owner of the product, obtaining control of the product is more difficult, but can be done with some quick work and investigation into who owns the product. A case study Let’s look at a recent property case involving a microwave I was involved in, and how good old-fashioned investigation helped my client recoup 95% of their total damages. The case involved a fire that started with a microwave in a large two story building. The event caused extensive fire damage, and the bottom floor had to be fully restored. The cause and origin of the damage clearly pointed to the area of the microwave, and since I’ve seen this exact scenario before, I moved to get control of the microwave right away. It was very clear to my expert and cause and origin investigators that the fire must have originated with the microwave. Finding out what caused the microwave to malfunction, however, was a different hurdle to get over. I had my inspector inspect the subject microwave, and we acquired an exemplar unit to compare a new model with the damaged one. We took the damaged microwave apart piece by piece inspecting, xraying and documenting the state of that piece compared to the same piece in the exemplar machine – it took us an entire day. Just when we thought we wouldn’t be able to find the exact issue that caused the malfunction and ultimately the fire: voila! We found a piece in the subject microwave that looked odd, a piece that did not match the exemplar and didn’t fit the specifications outlined in the microwave’s manual. In some cases of microwave failure, the issue stems from a rotator defect in the motor controlling the movement of the fan belt. When power is connected to the unit, and the product is faulty, that motor can “tell” the fan belt to run and run, never fully catching and running properly, until it finally overheats and catches fire. That’s exactly what happened in this case. So, we sued the usual suspects for a product liability case: the designer, manufacturer and the supplier of the product – essentially anyone that benefited from the sale of the microwave. They were put on notice that we believed their product was

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Governor Newsom signs new bills – Will they affect you?

Law / admin

Governor Newsom signs new bills – Will they affect you? Governor Gavin Newsom closed out the 2019 California legislative session this week by signing a slew of bills into law. He’s signed over 800 this year and vetoed 170. That’s a lot of new laws. The laws, which go into effect on January 1, 2020, create new rules for things from gun purchases to roadkill. We want to look at the laws that have to do with our corner of the world: workers’ compensation. AB 1804 – Requires any serious workplace injury to be reported immediately to CalOSHA. Notification can be given by telephone or by an unseen (so far) online mechanism. We read a lot of OSHA reports and we do notice that there can be a reporting lag. This is often due to the general chaos at a workplace these situations can create. At other times, clear chains of command and/or management structure are not understood or in place. Most simply, people don’t know who is supposed to do it and when. The law will definitely help give us more insight into these types of injuries. Since reporting is done immediately, the incident is more fresh in the mind of the reporter and can help establish facts sooner. AB 1805 – Currently, to define and injury or illness as “serious” for workers’ compensation purposes, the injured worker must have an immediate stay in a hospital for at least 24 hours. This is no longer the case. The new law lifts the minimum hospital stay time. This will lower medical costs for hospitalization, but it also might increase the the size of claims as more and more injuries will qualify for the “serious” designation. The law also changes the definition of “serious exposure” to a hazardous substance to include “a realistic possibility that death or serious physical harm in the future could result from the actual hazard created by the exposure.” We believe this to mean (we’ll see what the courts say) that no physical harm has to be immediately present in order to declare the event a “serious exposure.” SB 542 – Expands workers’ compensation payments for psychiatric injury, including PTSD, for first responders. Currently, “presumptions” (workplace injuries that, for the most part, first responders are expected to suffer from) include heart disease, cancer and hernias. Psychological injury now has a stronger presence on the list of these presumptions because now, the worker does not have to prove that the injury was at leas 50 percent related to their job. Look for a lot more claims for psychological presumptions. AB 5 – One of the most contested bills in 2019 – not just in the work comp world, but in all of the legislation that came out this year, targets the “gig economy.” The law says that if a worker provides an essential function of their employer’s business, they are an employee of that business. No longer will businesses be able to lump these workers into the independent contractor category. These employees will now be entitled to benefits, including workers’ compensation. This far-reaching bill is really aimed at big companies like Uber who have thousands of these independant contractors that (depending on your point of view) perform functions essential to the business i.e.: Uber needs drivers to exist. But the law will also effect the construction, trucking, janitorial service, nail salons, adult entertainment, commercial fishing and media industries. Large tech companies already pledged their time and money to fight this. We’re always keeping an eye on developments with laws that affect our clients. Need more information? Contact us, or Give us a call! 619-525-7626 Search for: Search Archives Archives Select Month October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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SMS Plays Ball in Sacramento

Giving Back / admin

SMS Plays Ball in Sacramento We’re big baseball fans here at SMS. Our favorite team, of course, is the San Diego Padres because San Diego is where we started. But, we also have a favorite baseball team in Sacramento: The Rancho Cordova Little League Pirates. To show our support, we donated new practice jerseys and hats to the team this season. Because anything worth doing is made better when you look sharp. Says Sacramento workers’ compensation defense attorney Tim Rose (also the head of the SMS Sacramento office): “The jerseys arrived a few weeks ago and are the envy of the league. The team likes them better than their game jerseys and we have petitioned the league to allow for a few games to be played in them.” The athlete in the pictures is Ethan, the team’s starting first baseman and #3 slot hitter. The team also had three representatives at the district skills competition a few weeks ago and they all showed up in the jerseys and some of coaches were asking about them. Ethan and his teammate took first and second in the hitting skills competition! Here’s to a great season. Go Pirates! Search for: Search Archives Archives Select Month September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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What you need to know about premises liability

Subrogation, Workers' Compenstation / admin

What you need to know about premises liability The 21st century’s new “gig economy” has opened endless new opportunities for individuals to market and profit from their personal skills and assets. Firms like Uber, TaskRabbit, Airbnb*, to name a few, leverage emerging technology to connect customers to products and service providers on a microscale. This results in increased convenience for customers, lower prices and a share in what has become the future of commerce. But with these advances come questions about insurance coverage and liability. Here, we’ll look at Airbnb and discover what the company’s liabilities are when they broker short-term rentals between homeowners and guests. Consider this hypothetical: Your insured retails high-end pots and pans. Most of their business comes from large hotels and restaurant chains. Your insured has no brick-and-mortar store, per se, so most sales are done in the field. Employees of your ensured regularly travel to other cities to meet with buyers in person. Generally, these employees stay in national chain hotels. But recently, your insured has noticed that they can save considerable amounts on lodging expenses by housing multiple employees in Airbnbs at the same time. Your insured sends a group of employees to Palm Springs and books a three bedroom house they found on Airbnb. While in residence at the Airbnb, one of the employees (we’ll call her Belinda) slips on loose, improperly secured tile in the bathroom and suffers serious injuries. Assume for the purposes of this scenario that Belinda was in the course and scope of employment at the time of the injury and her workers’ compensation claim is accepted. Your options for subrogation here are murky at best. Do you try to collect from the homeowners insurance? Does Airbnb have any liability? Let’s untangle this subrogation journey. California Law of Negligence Our first stop is to see if there was negligence involved in the cause of the accident. To help determine this, let’s look at the California law of negligence. Most simply, the subrogating carrier is required to show: A duty of care (see below) was owed ✔ There was a breach of that duty ✔ The breach of that duty caused the claimant’s injuries ✔ The claimant suffered legally recognized damages ✔ Check! All of the negligence requirements are met, but by whom? Understanding Duty of Care Property owners owe guests a duty of care to maintain premises in a reasonably safe manner. Additionally, they must warn anyone who enters their property or is staying in their home of any known hazards. When a person lawfully on the premises is injured by an unsafe condition that they were not made aware of, or that the owner should have fixed, the owner could be liable for the injury. These unsafe conditions can include, but are not limited to: Slippery surfaces Defective locks Dog bites Here the property owner owed a duty of care to make sure the bathroom tiles were properly secured and not a hazard. Their breach of duty could be actual or constructive knowledge of the loose bathroom tile. If they knew about the loose tile, or should have known about it with exercise of due care, and failed to remedy it, then they breached their duty to Belinda. That loose tile caused her to fall and the fall resulted in her injuries and thus the carrier’s subrogation damages. Liability looks pretty solid on the homeowner. However, in each particular case you are going to want to make sure there aren’t any contracts that affect the liability of the parties, especially with the added complication of involvement of Airbnb. When looking at premises liability in California, consider: Who owned the property? Who possessed it? Who controlled it? Who had a duty to maintain it? The homeowner obviously answers “me!” to all those questions. Control is interesting, though, because you could make the reasonable leap in thinking that Airbnb was in control of the premises at the time of the accident. The home was part of their inventory and they do market the property and make a profit from its rental. But did Airbnb control the premises at the time of Belinda’s unfortunate accident? Airbnb’s premises liability policy Airbnb acts as an agent to secure bookings for rental properties, but is not the owner or operator of the premises and therefore does not “control” it. When guests are at the premises, they are covered under the homeowners’ insurance policy. However, to be a good partner to their hosts, Airbnb offers “Host Protection Insurance.” This is an insurance policy that is in effect whenever a host is renting their home to guests. It’s free to hosts and provides a million dollars per occurrence for injury to guests or damage to the host’s property. Airbnb has this great insurance plan, so you can just recover your subrogation claim from them? Not so fast. There are a number of scenarios for recovery: In California, homeowners don’t have to carry homeowners insurance unless the property has a mortgage. So, if there is no homeowner’s insurance policy in effect, the injury coverage would default to the Airbnb Host Protection Insurance. This is the tidiest scenario, but uncommon. If the Airbnb does have homeowners insurance, there could be varying levels of coverage from property to property. If the homeowner only has earthquake insurance, for example, the claim would again fall on Airbnb’s insurance. If the host has homeowner’s insurance that covers guests’ injuries, Airbnb’s Insurance plan stipulates that the homeowner’s insurance be tapped first and completely before it kicks in. It’s important to note, too, that Airbnb’s insurance does not cover intentional injuries or damage to the premises. How do you collect? Collecting on a case involving an Airbnb can be complicated since there are so many factors and overlapping coverage issues and scenarios involved. The first step to determining where to look for collection would be to determine the amount and type of homeowner’s insurance existed in effect during the rental period. If you’re lucky and the homeowner

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SMS Joined Kids’ Chance at PARMA

Giving Back / admin

SMS Joined Kids’ Chance at PARMA (left) Jennifer McCaw, Steven Siegel & Minnie, (right) Jennifer McCaw, Kristen Chavez PARMA, the Public Agency Risk Management Association, recently held its 45th Annual Conference and Siegel, Moreno & Stettler was there in full support of Kids’ Chance of California. A Bit About PARMA The association “provides a forum for California public sector risk managers to share ideas on how to perform their duties in this emerging field.” And what better setting for it than the happiest place on earth – the Disneyland Hotel in Anaheim, California, which is where The 2019 PARMA Conference took place on February 10-13th. Having “grown from [a] tiny band of risk managers, to an organization that spans the entire State of California,” with 600+ members from six local chapters, this gathering provides an opportunity for members to network, while sharing experiences and risk management techniques. And it’s also a place for complementary nonprofits, like Kids’ Chance, to connect with potential sponsors. Kids’ Chance Kids’ Chance of California is a non-profit organization “whose mission is to provide need-based educational scholarships to the children of California workers who have been fatally or seriously injured on the job.” The PARMA Conference provided a great opportunity to reach out the public entity communities who really support and believe in the Kid’s Chance mission. Thank you, Steve Siegel, with Siegel, Moreno & Stettler for being the first donation at the conference.And, for my part, I was able to connect with an amazing group of fellow volunteers and supporters running the Kids’ Chance booth, which included: Edward Canavan of Sedgwick, who spoke on behalf of Kid’s Chance at the conference; Larry Costello, with Padre Dam, a PARMA board member who supported Kids’ Chance immensely at the conference; and, Kristen Chavez, CEO of Work Comp Central who is always ready to offer her time and resources to help Kids’ Chance. Overall, the conference was a success for PARMA participants and for Kids’ Chance – a win-win all around! What’s Next? We look forward to continuing our work with Kids’ Chance at future events which will be the CIA conference April 8-9. Siegel, Moreno & Stettler’s will also be attending PARMA’s next event – the upcoming San Diego/Imperial Valley Chapter Liability Half-day. The event takes place on March 27th and will include a presentation by two members from our Subrogation Litigation Team, SMS attorneys Kelsey Daniel and Chalsie Keller. Their training will focus on How to Win at The Subrogation Game. Be sure to click through to learn more and to register to attend! Search for: Search Categories COVID-19 Depositions Firm Announcements Firm Notifications Giving Back Law New Attorneys New Location Property Subrogation Subrogation Workers' Compenstation Archives Archives Select Month August 2026 March 2026 January 2026 July 2025 May 2025 March 2025 January 2025 November 2024 October 2024 July 2024 June 2024 January 2024 December 2023 November 2023 August 2023 May 2023 April 2023 March 2023 February 2023 May 2022 March 2022 February 2022 January 2022 November 2021 October 2020 September 2020 August 2020 June 2020 May 2020 April 2020 March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 January 202 Subscribe To Our Blog First Name Last Name Email * Edit Template

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