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It was the duty of__________ (indemnitor) to use reasonable care in the performance of the agreement. If you find that any failure of __________ (indemnitor) to use reasonable care was a cause of plaintiff's injuries for which you find both __________ (indemnitee) and __________ (indemnitor) liable, then __________ (indemnitee) is entitled to be indemnified by __________ (indemnitor) for any amount which __________ (indemnitee), [has paid] [has become liable to pay] in excess of __________ (indemnitee's) proportionate fault.
You will make this determination by finding the percentage of fault of all persons which contributed as a cause of plaintiff's damages and award to __________ (indemnitee) a verdict against __________ (indemnitor(s)) for any amount of such damages in excess of the proportionate fault of __________ (indemnitee). | TOP |
____________________ (indemnitee) has filed a [complaint] [cross-complaint] against __________________ (indemnitor(s))
for comparative indemnity.
Comparative indemnity is the right of a person, whose fault concurrently with the fault of [another] [others] contributes as a cause of economic damages, to recover from the other person(s) any amount [he] [she] [has paid] [has become liable to pay] in excess of [his] [her] proportionate fault.
If you find that ____________________ (indemnitee) [has paid] [has become liable to pay] economic damages to ____________________ (injured person) and you further find that a cause of such damages was the concurrent fault of ____________________ (indemnitee) and ____________________, (indemnitor(s)) you will determine the percentage of fault of all persons which contributed as a cause of such damages and award to ____________________ (indemnitee) a verdict against ____________________ (indemnitor(s)) for any amount of such damages in excess of the proportionate fault of _________________. (indemnitee) | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of intentional infliction of emotional distress.
The essential elements of such a claim are:
1. The defendant engaged in outrageous, [unprivileged] conduct;
2. [a.] [The defendant intended to cause plaintiff to suffer emotional distress;] [or]
[b.] [(1) The defendant engaged in the conduct with reckless disregard of the probability of causing plaintiff to suffer emotional distress;
(2) The plaintiff was present at the time the outrageous conduct occurred; and
(3) The defendant knew that the plaintiff was present;]
3. The plaintiff suffered severe emotional distress; and
4. Such outrageous, [unprivileged] conduct of the defendant was a cause of the emotional distress suffered by the plaintiff. | TOP |
The plaintiff ____________________ [also] seeks to recover damages based upon a claim of intentional infliction of emotional distress arising out of exposure to [carcinogens] [and] [other] [toxic substances] [HIV or AIDS].
The essential elements of such a claim [in this case] are:
1. The defendant engaged in outrageous [unprivileged] conduct;
2. Such conduct caused plaintiff to be exposed to [a toxic substance which threatened cancer] [HIV or AIDS];
3. [a.] [The defendant intended to cause plaintiff to suffer emotional distress;] [or]
[b.] [(1) The defendant engaged in the conduct with reckless disregard of the probability of causing emotional distress;
(2) The plaintiff was present at the time the outrageous conduct occurred; and
(3) The defendant knew that the plaintiff was present;]
4. Plaintiff suffers a severe and genuine emotional distress, including but not limited to a reasonable fear of developing [cancer] [HIV or AIDS].
A fear of developing [cancer] [HIV or AIDS] is reasonable if it is based upon knowledge, corroborated by reliable medical or scientific opinion, that the [toxic] exposure caused by defendant's conduct has significantly increased the plaintiff's risk of [cancer] [HIV or AIDS] and has resulted in an actual risk of [cancer] [HIV or AIDS] that is significant. | TOP |
The term "emotional distress" means mental distress, mental suffering or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain. | TOP |
The word "severe," in the phrase "severe emotional distress," means substantial or enduring as distinguished from trivial or transitory. Severe emotional distress is emotional distress of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it.
In determining the severity of emotional distress you should consider its intensity and duration. | TOP |
Extreme and outrageous conduct is conduct which goes beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community.
Extreme and outrageous conduct is not mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. All persons must necessarily be expected and required to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind.
Extreme and outrageous conduct, however, is conduct which would cause an average member of the community to immediately react in outrage. | TOP |
The extreme and outrageous character of the conduct of a defendant may arise from an abuse of a position, or relationship to a plaintiff, which gives such a defendant actual or apparent authority over a plaintiff, or power to affect a plaintiff's interests. | TOP |
The extreme and outrageous character of a defendant's conduct may arise from defendant's knowledge that a plaintiff is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. Conduct may become extreme and outrageous when a defendant proceeds in the face of such knowledge, where it would not be so if defendant did not know. | TOP |
[A defendant intended to inflict emotional distress if it is established that [he] [she] desired to cause such distress or knew that such distress was substantially certain to result from [his] [her] conduct.]
[A defendant's conduct is in reckless disregard of the probability of causing emotional distress if [he] [she] has knowledge of a high degree of probability that emotional distress will result and acts with deliberate disregard of that probability or with a conscious disregard of the probable results.] | TOP |
Conduct, which under other conditions would be extreme and outrageous, may be privileged and a defendant is not liable:
[When a defendant has done no more than to insist upon [his] [her] legal rights in a permissible way, even though [he] [she] is well aware that such insistence is certain to cause emotional distress. [If you find that defendant in good faith believed that [he] [she] was acting under a legal right, [he] [she] shall be considered as having been acting under such right even though, in fact, [he] [she] had no such right.]]
[When a defendant makes statements in the course of an official proceeding.] | TOP |
The plaintiff ____________________ [also] seeks to recover damages based upon a claim of negligent infliction of emotional distress arising out of exposure to [carcinogens] [and] [other] [toxic substances] [HIV or AIDS].
The elements of such a claim are:
1. The defendant engaged in negligent conduct;
2. The defendant's negligence caused plaintiff ____________________ to be exposed to [a toxic substance which threatened cancer] [HIV or AIDS];
3. The plaintiff ___________________ suffers serious and genuine emotional distress, including but not limited to a serious fear that the [toxic ingestion or] exposure was of such magnitude and proportion to likely result in the feared [cancer] [HIV or AIDS];
4. The plaintiff's fear [and emotional distress] stems from a knowledge corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the [cancer] [HIV or AIDS] in the future due to the [toxic] exposure.
Serious emotional distress is an emotional reaction which is not an abnormal response to the circumstances. It is found where a reasonable person would be unable to cope with the mental distress caused by the circumstances.
The plaintiff ____________________ [also] seeks to recover damages based upon a claim of negligent infliction of emotional distress arising out of exposure to [carcinogens] [and] [other] [toxic substances] [HIV or AIDS] due to [malice] [,] [oppression] [or] [fraud].
The essential elements of such a claim are:
1. The defendant engaged in negligent conduct;
2. The defendant's negligence caused plaintiff to be exposed to [a toxic substance which threatens cancer] [HIV or AIDS];
3. As a result of this exposure, the plaintiff suffers from serious and genuine emotional distress, including but not limited to a reasonable fear of developing [cancer] [HIV or AIDS];
4. The defendant, in breaching [his] [her] [its] duty of care to plaintiff, acted with [oppression] [fraud] [or] [malice];
Serious emotional distress is an emotional reaction which is not an abnormal response to the circumstances. It is found where a reasonable person would be unable to cope with the mental distress caused by the circumstances.
A fear of developing [cancer] [HIV or AIDS] is reasonable if it is based upon knowledge, corroborated by reliable medical or scientific opinion, that the [toxic] exposure caused by the defendant's breach of duty has significantly increased the plaintiff's risk of [cancer] [HIV or AIDS] and has resulted in an actual risk of [cancer] [HIV or AIDS] that is significant.
["Malice" means conduct which is [intended by the defendant to cause injury to the plaintiff] [or] [despicable conduct which is carried on by the defendant with a willful and conscious disregard for the [rights] [or] [safety] of others.]] [A person acts with conscious disregard of the rights or safety of others when [he] [she] is aware of the probable dangerous consequences of [his] [her] conduct and willfully and deliberately fails to avoid those consequences.]["Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.]
["Despicable conduct" is conduct which is so [vile,] [base,] [contemptible,] [miserable,] [wretched,] [or] [loathsome] that it would be looked down upon and despised by ordinary decent people.]
["Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.] | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of [negligent infliction of emotional distress.] [willful violation of statutory standards].
The elements of such a claim are:
1. The defendant engaged in [negligent conduct] [a willful violation of a statutory standard];
2. The plaintiff suffered serious emotional distress;
3. The defendant's [negligent conduct] [willful violation of statutory standards] was a cause of the serious emotional distress.
Serious emotional distress is an emotional reaction which is not an abnormal response to the circumstances. It is found where a reasonable person would be unable to cope with the mental distress caused by the circumstances. | TOP |
A shock to the nervous system may be caused either by some physical impact or by fright caused by exposure to imminent peril. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of wrongful infliction of emotional distress upon a bystander.
The essential elements of such a claim are:
1. [The defendant was negligent;] [or] [The defendant __________ (manufactured, supplied, etc.) a defective product;]
2. Defendant's [negligence] [defective product] was a cause of [injury to] [the death of] __________ (victim's name);
[3. Plaintiff was the __________ (spouse, parent, child, etc.) of __________ (victim's name);]
[4.] [3.] Plaintiff was present at the scene of the [injury-producing event] [accident] at the time it occurred;
[5.] [4.] Plaintiff was then aware that such [event] [accident] caused the injury to __________ (victim's name);
[6.] [5.] As a result, plaintiff suffered serious emotional distress.
Serious emotional distress is an emotional reaction beyond that which would be anticipated in a witness not related to the injured person and which is not an abnormal response to the circumstances. It is found when a reasonable person would be unable to cope with the mental distress caused by the circumstances of the accident and injury to the near relative. | TOP |
A plaintiff who has suffered a substantial financial injury which was caused by a defendant's intentional or reckless wrongful conduct, is entitled to recover damages from that defendant for any mental or emotional distress resulting from such financial injury. | TOP |
If you find that plaintiff is entitled to a verdict against defendant, you must then award plaintiff damages in an amount that will reasonably compensate plaintiff for all loss or harm, provided that you find it was [or will be] suffered by plaintiff and was caused by the defendant's conduct. The amount of such award shall include:
Reasonable compensation for any fears, anxiety and other emotional distress suffered by the plaintiff [and for similar suffering reasonably certain to be experienced in the future from the same cause]. [This is a non-economic damage.]
No definite standard [or method of calculation] is prescribed by law by which to fix reasonable compensation for emotional distress. Nor is the opinion of any witness required as to the amount of such reasonable compensation. [Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation.] In making an award for emotional distress you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in the light of the evidence.
[Reasonable compensation for any financial loss suffered by the plaintiff which was caused by emotional distress.] [This is an economic damage.] | TOP |
In every insurance policy there is an implied obligation of good faith and fair dealing on the part of both parties. | TOP |
An insurance company which fails to deal fairly and in good faith with its insured by refusing unreasonably to pay the insured for a valid claim covered by the policy is liable for all damages resulting from such conduct. | TOP |
The implied obligation of good faith and fair dealing in an insurance policy imposes a duty on an insurance company to accept a reasonable offer to settle a claim against the person insured if the offer is within the limits of the insurance coverage and if there is a substantial likelihood of recovery against the person insured for an amount in excess of the insurance coverage.
An insurance company that fails to fulfill such duty is liable for all damages caused by such failure. | TOP |
The obligation of good faith in an insurance policy requires that in considering settlement offers within the limits of the insurance coverage, an insurance company must take into account and give at least as much consideration to the interests of the person insured as it gives to its own interests.
A test that may be used in determining whether an insurance company has given proper consideration to the interests of the person insured, is whether a prudent insurance company under the same facts with unlimited liability would have accepted the offer of settlement. | TOP |
An insurance company's obligation of good faith requires that before rejecting an offer of settlement, it make an honest, intelligent and knowledgeable evaluation of the claim on its merits.
However, an insurance company is not liable for failure to accept an offer of settlement within the policy limits of coverage when that failure is based solely on an honest mistake in judgment or on its failure to predict correctly the outcome of a lawsuit arising out of such claim. | TOP |
In considering whether defendant insurance company acted in good faith or in bad faith in rejecting an offer of settlement, you should consider all the evidence which tends to establish either good faith or bad faith, including, but not limited to, evidence on the following factors:
[The strength or weakness of the third party's claim on the issues of liability and damages;]
[Whether the insurance company did or did not properly investigate the claim so as to discover any evidence unfavorable to the insured person;]
[Whether the insurance company did or did not reject advice of its own attorney or agent;]
[Whether the insurance company did or did not inform the insured person of the opportunities for settlement;]
[The extent of the financial risk to which the insurance company and the insured person were exposed in the event of a refusal to settle;]
[Whether the insured person did or did not cause the insurance company's rejection of a compromise offer by misleading the company as to the facts]. | TOP |