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Posts on Jan 1970

AXIOMS OF INVESTIGATION

1.   Understand the claimed "mechanism of injury."

 

2.   Understand the "insured's role” in the incident.

 

3.   Focus the investigation on the likely issues.

 

4.   Ascertain who the witnesses and parties are, and what they know.  But also determine    what they don't know.

 

5.   Preserve evidence.

 

6.   Remember that the claimant's task at trial is three-fold:

 

    First –   Prove negligence and/or other legal responsibility.

 

    Second –   Establish legal or "proximate cause" and

 

     Third –     Prove damages.

 

MECHANISM OF INJURY

 

    Ask yourself first, what is the claimant's version of the mechanism of the claimed injury?

 

    Suppose for example a workman who falls from a temporary scaffold and impales himself on a wooden stake embedded in the earth below.  We will need to ask focused and directed questions about 1) the scaffold, 2) the wooden stake, 3) the claimant's activities before, during and after the fall and 4) others who may have contributed to or caused the incident.

 

    E.g., with regard to the scaffold, we must know who erected it.  Why was it placed there?  When was it installed?  Why was a temporary scaffold being used instead of a scaffold built for the purpose or a man-lift?  Who supplied it?  Who directed the claimant to use it?  What safety instructions was he given?  What warnings?  Did he see any evidence that it was unstable/unsafe?  Exactly how was it constructed and of what materials?  Were there any marking labels, etc.?

 

    Many similar questions should be asked about the wooden stake.  Did he see it prior to the accident?  What was its purpose?  Were there any caps or covers on it?  What about warning flags or signs?  Who installed it and when?  What exactly did it look like?  Exactly where was it located, relative to other known and determinable geographical reference points?

 

    What was the claimant attempting to do?  Why?  How exactly did he go about it?  What, in his opinion, precipitated or set in motion the fall?  How exactly did the claimant/’s body move in the fall and how did he land and where exactly did he come to rest?

 

    In one such case based upon just these facts, we were brought in as a cross-defendant three years after the fact.  Plaintiff's deposition had been taken prior to our entry into the case and the facts established to that time gave every appearance that our concrete subcontractor would be a target for allegedly having placed the wooden stake and for having failed to remove it at the conclusion of his work.

 

    But after we re-questioned the claimant more precisely in deposition about the mechanism of his injury, we were able to clearly establish that the accident actually occurred at a building which was adjacent to the building worked on by our client and that the concrete form staking was done by someone else entirely.  Moreover, the wooden stake did not in any way match those used by our client and, in fact, the precipitating factor that set the accident in motion was the fact that the wooden plank the claimant was using for a work platform had a large knot, which allowed the plank to break. Focused questioning thus established a foundation for a Motion for Summary Judgment.

 

Donald D. Wilson

dwilson@carnaclaw.com

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The Door-to-Door Sales Rule and Off-Site Automobile Sales

    Dealers should proceed with caution in blindly relying on the common assumption that there is no cooling-off period for automobile sales.  Under federal law, vehicle sales are not expressly exempted from what is commonly referred to as the Door-to-Door Sales Rule.  The law requires that sellers provide buyers with a limited right to cancel where the transaction amounts to a door-to-door sale.  A door-to-door sale is defined as “[a] sale, lease, or rental of consumer goods or services with a purchase price of $25 or more, whether under single or multiple contracts, in which the seller or his representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer’s agreement or offer to purchase is made at a place other than the place of business of the seller (e.g., sales at the buyer’s residence or at facilities rented on a temporary or short-term basis, such as hotel or motel rooms, convention centers, fairgrounds and restaurants, or sales at the buyer’s workplace or in dormitory lounges)” (emphasis added).  16 C.F.R. 429.0 (2010).

    As discussed in the California New Car Dealers Association’s (CNCDA) May 2010 Bulletin, dealers must be wary when engaging in off-site sales.  While the Rule exempts “sellers of automobiles, vans, trucks or other motor vehicles sold at auctions, tent sales or other temporary places of business, provided that the seller is a seller of vehicles with a permanent place of business,” it does not categorically exempt all off-site sales.  16 C.F.R. 429.3 (2010).  In an effort to determine which common dealer activities may fall within the Door-to-Door Sales Rule, the CNCDA recently obtained clarification from the Federal Trade Commission (“FTC”).  The FTC advised the CNCDA that the Door-to-Door Sales Rule is inapplicable where off-site deliveries and brokered transactions are concerned but may be applicable in circumstances involving ongoing negotiations or co-buyer signatures.  More specifically, the Rule may apply where the dealer has a general agreement to sell the vehicle but completes the negotiations and contract off-site and/or when the dealer must have a second co-buyer sign the contract off-site.

Erica A. Stuckey    

estuckey@carnaclaw.com

 

 

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Questioning Witnesses and Initial Investigation

    The unfortunate reality for defense attorneys is that they get into the fray late.  By the time they receive a file from the insurance carrier, the memories of witnesses are just as faded as the physical evidence.

 

    Whether a case is won or lost at trial, three, four or five years down the line often is determined by the quality of the investigation done immediately after the dust settles from the accident or occurrence.  Admittedly, most cases never get to trial and insurance companies are understandably reluctant to investigate "full bore" on every case.  But, as a law professor of mine once said, if you're going to spend the time, money and effort to investigate at all, do it well and do it thoroughly the first time . . . it may be the only time you'll get to see the witness or photograph the scene before the witness or evidence shows up on the witness stand against you.

 

    Too often witness statements are taken without "focus" and, despite lengthy pages of questions, miss the legal point(s) entirely.  Likewise, physical evidence that could be pivotal to a case at trial is inadequately documented or overlooked altogether. 

 

I recall a quite serious construction site fall case in which the claimant was allegedly knocked from a ladder by an automatically activated receiving dock gate.  One key issue at trial was whether or not the property owner had adequately posted warning signs, which would have provided the claimant notice of a potential hazard in his placing his ladder near the electric gate.  A 20-page(!) statement was obtained by the investigator from the claimant early on in the case.  We knew from the statement where this man had worked for the past three decades and what he had for breakfast that morning.  But . . . the investigator never asked the claimant if he read English.  The evidence did show that there were warning signs posted; unfortunately, Mr. Garcia couldn't read them.

 

    The following three blogs are offered to provide guidelines and suggestions to the law office investigator, paralegal or field claims person on obtaining and preserving information that will be helpful to the trial defense lawyer.

 

Donald D. Wilson

dwilson@carnaclaw.com

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COLAs and the Tax Trade Bureau

While most folks think of brown fizzy drinks when they hear the word “cola”, those in the wine industry think immediately of the Alcohol and Tobacco Tax Trade Bureau (“TTB”). A Certificate of Label Approval, or “COLA” as it is known in the industry, is required by TTB for any wine prior to the wine being released into the stream of commerce.

    The label on a bottle of wine is used by a winery to attract potential buyers, and is used by them as a tool in determining whether to buy that wine. Because wine labels are such an important piece of the wine buying and selling experience, they are very closely regulated by TTB.

    Wine labels must be pre-approved by TTB. This occurs through a process that involves submitting a proposed wine label to TTB, followed by TTB’s detailed review of the proposed label, and ending either with the issuance of a COLA or the return of the proposed label with the basis or bases of TTB’s rejection. TTB realizes that consumers rely heavily on wine labels, and takes very seriously the job of ensuring the public is protected from claims or descriptions on wine labels that mislead the wine-buying public into purchasing a product that does not comport with its label.

    Some information must be included on a wine label, while other information may be included at the winery’s discretion. There are also requirements as to location of certain information on the label. For example, the brand label must include the brand name, the class and type of wine, the alcohol content and possibly the Appellation of Origin. Other required information, which can be anywhere on the bottle (i.e., on the neck, side or back) includes the bottler, the location of the bottler, Health Warning Statement, sulfite declaration and net contents. All bottles must have a brand name and must identify the wine’s class, type or designation. There are nine classes of wine (created by TTB), including grape wine and aperitif. Wine types are those such as red table wine or dessert wine. A designation can be a varietal (e.g., Cabernet) or fanciful (proprietary).

    All wines must have a brand name. There are few restrictions on brand names for wines, though again, TTB looks closely for misleading descriptions. If a brand name is descriptive of the wine itself, it must be accurate – i.e., if the brand name is “Paso Robles Merlot”, the wine must be from grapes grown in Paso Robles and be a merlot. If the brand name includes a specific vineyard or farm, 95 percent of the contents must be from that vineyard or farm. Where there is no actual brand name, the bottler’s name will be used as a brand name.

Jeannie D. Goshgarian

jgoshgarian@carnaclaw.com

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