LITIGATION UPDATES – OCTOBER, 2014

Life Insurance Policy is Community Property

A husband used community funds during a 20 year marriage to purchase an insurance policy on his life.  His wife was named as the policy’s only owner and beneficiary.  When the marriage was in the process of dissolving, the issue arose as to whether the policy was community property or the wife’s separate property.  In a unanimous ruling by the California Supreme Court, the Court concluded that unless the statutory transmutation requirements have been met, the life insurance policy is community property.  (In re the Marriage of Frankie and Randy Valli (Cal. Sup. Ct.; May 15, 2014) 58 Cal.4th 1396.)

Conflicting Appellate Rulings on the Issue of Second Hand Cancer

Two California Courts of Appeal recently decided cases that will significantly impact secondary asbestos exposure claims in California.  The result is that premises owners have no duty to protect family members of workers on their property—including employees—from secondary exposure to asbestos used on their property.  However, product manufacturers have a duty to protect their employees’ families from secondary asbestos exposure resulting from the negligent manufacture of asbestos-containing products on site.

On May 15, 2014, the First District Court of Appeal in California found that the trial court had erred in granting a nonsuit in favor of Pneumo Abex, LLC (Abex) in the asbestos personal injury action of Johnny Blaine Kesner, Jr. v. Superior Court of Alameda County. The Court held that an employer owes a duty of care to a third party for exposure to asbestos through contact with its employee where the foreseeability of harm is substantial.  (Kesner v. Pneumo Abex, LLC (Cal.App. First Dist., Div. 3; May 15, 2014) 226 Cal.App.4th 251.)

A case involving similar allegations was decided a few weeks later, this time with a different result.  In the second case, it was the worker’s wife who was exposed to asbestos which adhered to her husband’s clothing when he worked for a railway during the 1970s.  She sued on a theory of premises liability, contending her husband was exposed to asbestos on defendant’s premises.  BNSF Railway Company demurred to the complaint, arguing that it had no duty to protect Haver from secondary asbestos exposures that occurred off-site.  The trial court agreed and sustained the demurrer, without leave to amend.  The plaintiffs appealed. The trial court sustained her demurrer without leave to amend, and the appellate court affirmed “because absent a duty of care, there is no reasonable possibility that the defect can be cured by amendment.” (Haver v. BNSF Railway Co. (Cal. App. Second Dist., Div. 5; June 3, 2014) (As mod. June 23, 2014) 226 Cal.App.4th 1104.)

Traffic Camera Evidence Properly Admitted

A woman was cited for failing to stop at a red light.  Evidence against her was generated by an automated traffic enforcement system [aka red light traffic camera].  She objected to the admission of the traffic camera photograph and 12-second video on the basis of lack of foundation.  At her infraction trial, a City investigator testified about the red light camera program that was first implemented in 2003, and explained how it worked.  In a unanimous opinion, the California Supreme Court held the evidence was properly authenticated, did not constitute hearsay and that there is no heightened requirement for red light camera traffic cases.  (The People v. Goldsmith (Cal. Sup. Ct.; June 5, 2014) 59 Cal.4th 258.)

 

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