Wasserman's Appellate Summaries
October 10, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes back attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.
Norcal Mutual Insurance v. Newton
Case No. A086152
California Court of Appeal, First District, Division Two
INSURANCE-COMPELLING ARBITRATION OF DISPUTE BY NON POLICY SIGNATORY
Newton, a psychiatrist, was covered under a medical malpractice insurance policy extended by appellant Norcal Mutual Insurance. He and his wife, were sued in a malpractice action by a husband and wife who had each been in individual therapy with Dr. Newton and had been in couples’ therapy with Dr. and Mrs. Newton. The complaint alleged sexual misconduct by Dr. Newton and unauthorized treatment by Mrs. Newton. Norcal agreed to defend Dr. Newton and Mrs. Newton under a reservation of rights and denied indemnity for Mrs. Newton. It also refused indemnity for sexual misconduct. The insurance policy covered "an occurrence involving direct patient treatment" by Dr. Newton and by "health care extenders, provided the extender had been approved by Norcal. Mrs. Newton had not been endorsed as a health care extender under Dr. Newton’s insurance policy. The Newton's ultimately granted Norcal permission to settle. Norcal settled and then a dispute arose about the language to be used by Norcal in reporting the settlement to the national data bank. Dr. Newton demanded arbitration of the dispute and filed suit for a preliminary injunction. The preliminary injunction was denied. The Dr. Newton withdrew his demand for arbitration and prepared petition to compel arbitration of the report to the data bank. Before serving the petition Dr. Newton died. The trial court denied arbitration of Norcal's claims against Mrs. Newton, concluding she was not a party to the insurance policy.
HELD: The issues in this case are actually legal ones, and are reviewed under a de novo standard. The policy does provide that any dispute arising out of the policy will be submitted to and settled by arbitration in San Francisco, California. In the absence of an agency or similar relationship between the nonsignatory and one of the parties to the arbitration agreement the courts have refused to hold nonsignatories to arbitration agreements. Mrs. Newton was informed of the demand on Norcal to provide a defense for her and Dr. Newton. Her failure to promptly disaffirm her agent’s assertion of her agreement to arbitrate constituted a ratification. Having sought and accepted the benefit of the insurance policy in handling the underlying malpractice suit, respondent was required to abide by the policy’s requirement of arbitration of disputes. Reversed.
Khajavi v. Feather River Anesthesia Medical Group
Case Nos. C029159/C029276
California Court of Appeal, Third District
EMPLOYMENT-TERMINATION OF DOCTOR AFTER DISPUTE OVER MEDICAL PROCEDURE-PUBLIC POLICY AGAINST TERMINATION OF DOCTOR FOR ADVOCATING HEALTH CARE PROCEDURE
After Khajavi, an anesthesiologist had a confrontation with a surgeon over the wisdom of proceeding with a particular surgery Feather River Anesthesia Medical Group terminated Khajavi’s employment. Khajavi sued. The trial court nonsuited his claim for wrongful termination, but the jury allowed recovery for breach of an oral contract.
HELD: The statutory law of California provides that provides that the rendering by any person of a decision to terminate an employment or other contractual relationship with or otherwise penalize, a physician and surgeon principally for advocating for medically appropriate health care violates the public policy of this state. The trial court erroneously concluded that this section only applies to a dispute between a doctor and a patient. Nonsuit was nonetheless properly granted in favor of defendant surgeon. He could not be liable for wrongfully terminating, or conspiring to terminate, Khajavi’s employment because he had no employment relationship with Khajavi. Relating to the award for breach of the oral contract it was held that unlike a wrongful discharge based on an implied-in-fact contract, an employee who has a contract for a specified term may not be terminated prior to the term's expiration based on an honest but mistaken belief that the employee breached the contract. Khajavi's application for attorney fees was properly denied. Affirmed and reversed in part and remanded.
People/Cheek v. Superior Court/Butler/People
Case Nos. H021486/H021543
California Court of Appeal, Sixth District
ORDER
Modification of the opinion filed herein on September 18, 2000, not effecting the judgment.
Zywiciel v. Zywiciel
Case No. G022117
California Court of Appeal, Fourth District, Division Three
ORDER
Modification of the opinion filed on September 26, 2000, not effecting the judgment.
United States v. Holmes
Case No. 99-10427
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-FAILURE OF THE PROSECUTION TO DISCLOSE IMPEACHMENT EVIDENCE RELATING TO KEY WITNESS-HARMLESS ERROR
Holmes was convicted of armed bank robbery. At trial several witnesses identified Holmes from a photographic lineup and surveillance camera photographs of the robbers. After trial impeachment evidence, in possession of the government at the time of trial, showed that a key witness, Johnson admitted that she had a prior felony conviction for forgery, three prior juvenile adjudications for arson, forgery and battery, and had undergone psychiatric treatment. Johnson also admitted to a history of alcohol and crack cocaine addiction, and told the investigator that she may have been intoxicated when she testified at the trial. The district court denied Holmes new trial motion, concluding that, even if the government had failed to disclose any of the impeachment evidence a different verdict was not likely. A requested credibility instruction relating to payments made to Johnson for her testimony was also refused.
HELD: The requested credibility instruction is not limited to those witnesses who receive benefits in return for testimony. The instruction includes in its definition of an informant one who receives benefits in return for information. The court did instruct that the jury could consider the extent to which a witness's testimony may have been influenced by the receipt of benefits from the government. There was no prejudice to Holmes from failure to give the requested instruction. There was no abuse of discretion by allowing Johnson to identify Holmes as the robber depicted in the bank surveillance photographs. Failure of the government to disclose the impeachment evidence relating to Johnson was harmless error. Affirmed.
*Change in law, interesting case, or just watch out!
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