This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 09:35:40 (UTC).

THOMAS BRAD BENSON VS MILLIE AND SEVERSON, INCORPORATED

Case Summary

On 10/26/2016 THOMAS BRAD BENSON filed a Personal Injury - Other Personal Injury lawsuit against MILLIE AND SEVERSON, INCORPORATED. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8719

  • Filing Date:

    10/26/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs and Petitioners

BENSON THOMAS BRAD

BENSON ZACHARY

HUGHES BILLIE B. III

FEDERAL INSURANCE COMPANY BC665962

Defendants, Respondents and Cross Plaintiffs

MILLIE AND SEVERSON INCORPORATED

DOES 1 TO 20

COAN CONSTRUCTION CO. INC. DOE 4

CMC STEEL FABRICATORS INC. D/B/A CMC DBA CMC REBAR

COMMERCIAL METALS COMPANY DOE 3

ENGLEKIRK STRUCTURAL ENGINEERS INC.

MALCOMB WARE DOE 8-IN THE COMPLAINT OF

BAPKO METAL INC. ROE 1

ENGLEKIRK PARTNERS CONSULTING STRUCTURAL

BAPKO METAL INC.

Cross Defendants

MILLIE AND SEVERSON INC. ROE 3

NEW ENGLAND LEAD BURNING COMPANY INC.

MILLIE AND SEVERSON ESA ROE 3

BAPKO METAL INC.

MOES 1 THROUGH 20 INCLUSIVE

ENGLEKIRK TRUCTURAL ENGINEERS INC.

COAN CONSTRUCTION CO. INC. ROE 1

7 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

KRISSMAN JOEL

SUTHERLAND JOHN M.

STOLL RICHARD M.

SUTHERLAND JOHN M

Defendant and Cross Plaintiff Attorneys

LARIN MICHAEL J.

ARMSTRONG MARK

TARLE CYNTHIA PERTILE

HIRSCH MICHAEL D.

MURTAUGH MICHAEL J.

RODDY JOHN W.

HAMID WEISS B.

 

Court Documents

Opposition

6/21/2019: Opposition

Opposition

7/2/2019: Opposition

Opposition

7/10/2019: Opposition

Objection

7/11/2019: Objection

Objection

7/18/2019: Objection

Reply

7/25/2019: Reply

PROOF OF SERVICE BY MAIL UPON COUNSEL FOR CROSS-DEFENDANT ENGLEKIRK STRUCTURAL ENGINEERS, INC. (ROE 6) OF : CROSS-COMPLAINT BY MILLIE AND SEVERSON IN CORPORATED IN BENSON ; ETC

7/6/2018: PROOF OF SERVICE BY MAIL UPON COUNSEL FOR CROSS-DEFENDANT ENGLEKIRK STRUCTURAL ENGINEERS, INC. (ROE 6) OF : CROSS-COMPLAINT BY MILLIE AND SEVERSON IN CORPORATED IN BENSON ; ETC

Minute Order

7/23/2018: Minute Order

Opposition

11/30/2018: Opposition

Proof of Service (not Summons and Complaint)

12/31/2018: Proof of Service (not Summons and Complaint)

Separate Statement

4/26/2019: Separate Statement

Declaration

4/26/2019: Declaration

SUMMONS

10/26/2016: SUMMONS

AMENDMENT TO COMPLAINT

7/13/2017: AMENDMENT TO COMPLAINT

AMENDMENT TO COMPLAINT

7/18/2017: AMENDMENT TO COMPLAINT

CROSS-COMPLAINT OF DEFENDANT, ENGLEKIRK & SABOL CONSULTING STRUCTURAL ENGINEERS INC, TO PLAINTIFFS THOMAS BRAD BENSON AND ZACHARY BENSON'S COMPLAINT

8/23/2017: CROSS-COMPLAINT OF DEFENDANT, ENGLEKIRK & SABOL CONSULTING STRUCTURAL ENGINEERS INC, TO PLAINTIFFS THOMAS BRAD BENSON AND ZACHARY BENSON'S COMPLAINT

Notice of Related Cases

8/28/2017: Notice of Related Cases

ANSWER OF DEFENDANT, ENGLEKIRK STRUCTURAL ENGINEERS INC, TO PLAINTIFFS THOMAS BRAD BENSON AND ZACHARY BENSON'S COMPLAINT

10/6/2017: ANSWER OF DEFENDANT, ENGLEKIRK STRUCTURAL ENGINEERS INC, TO PLAINTIFFS THOMAS BRAD BENSON AND ZACHARY BENSON'S COMPLAINT

247 More Documents Available

 

Docket Entries

  • 11/04/2019
  • Hearingat 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 10/25/2019
  • Hearingat 09:00 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/28/2019
  • Hearingat 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other (name extension)

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  • 08/28/2019
  • Hearingat 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other (name extension)

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  • 08/12/2019
  • Docketat 08:35 AM in Department 34; Jury Trial - Not Held - Continued - Stipulation

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  • 08/12/2019
  • DocketNotice of Ruling; Filed by Thomas Brad Benson (Plaintiff); Zachary Benson (Plaintiff)

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  • 08/08/2019
  • DocketNotice of Ruling; Filed by Millie and Severson, Inc. (ROE 3) (Cross-Defendant); Millie and Severson, Incorporated (Defendant)

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  • 08/06/2019
  • DocketNotice of Ruling; Filed by Millie and Severson, Incorporated (Cross-Complainant); Millie and Severson, Incorporated (Defendant)

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  • 08/02/2019
  • Docketat 08:30 AM in Department 34; Hearing on Ex Parte Application (for 10 Day Extension to File Petition for Writ of Mandate) - Held - Motion Granted

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  • 08/02/2019
  • Docketat 08:30 AM in Department 34; Hearing on Ex Parte Application (For 10 Day Extension To File Petition For Writ Of Mandate) - Held - Motion Granted

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407 More Docket Entries
  • 01/06/2017
  • DocketSUMMONS CROSS-COMPLAINT

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  • 01/06/2017
  • DocketCross-Complaint; Filed by Millie and Severson, Incorporated (Cross-Complainant)

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  • 01/06/2017
  • DocketAnswer; Filed by Millie and Severson, Incorporated (Defendant)

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  • 11/10/2016
  • DocketPROOF OF SERVICE SUMMONS & COMPLAINT

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  • 11/10/2016
  • DocketProof-Service/Summons; Filed by Thomas Brad Benson (Plaintiff)

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  • 11/08/2016
  • DocketReceipt; Filed by Thomas Brad Benson (Plaintiff); Zachary Benson (Plaintiff)

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  • 11/08/2016
  • DocketCIVIL DEPOSIT

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  • 10/26/2016
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 10/26/2016
  • DocketComplaint; Filed by Thomas Brad Benson (Plaintiff); Zachary Benson (Plaintiff); Federal Insurance Company (BC665962) (Plaintiff)

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  • 10/26/2016
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC638719    Hearing Date: November 12, 2019    Dept: 34

SUBJECT: Motion for Determination of Good Faith Settlement

Moving Party: Coan Construction Co., Inc.

Resp. Party: None

Coan Construction Co., Inc.’s motion for determination of good faith settlement is GRANTED.

PRELIMINARY COMMENTS:

This motion was originally scheduled to be heard on October 28, 2019. Prior to the hearing, this motion was continued to today. On October 24, 2019, the parties notified the Court that the entire case had been settled. Therefore, it is not clear to the Court whether or not this motion has been mooted. However, since the motion is unopposed, the Court will rule as indicated below.

PROCEDURAL BACKGROUND:

The instant action arises from the injury of several plaintiffs on a hospital construction site, when a portion of the construction collapsed. Three actions were ultimately filed, before being consolidated by the Court on December 12, 2017.

I. Pre-Consolidation Filings

A. Case No. BC638719

1. Complaint

Plaintiffs Thomas Brad Benson and Zachary Benson (the “Bensons”) filed their complaint on October 26, 2016, against Defendant Millie and Severson, Inc. (“MSI”), and Does 1-20, for general negligence and premises liability. On June 30, 2017, the Bensons filed amendments to the complaint, substituting Englekirk Structural Engineers, Inc., and Englekirk Partners Consulting Structural Engineers, Inc., for Does 1 and 2. On the same date, the Bensons filed a Certificate of Merit as to these two defendants, as required by Code of Civil Procedure section 411.35.

On June 13, 2017, the Bensons filed amendments to the complaint, substituting Commercial Metals Company, Coan Construction Co., Inc., Bapko Metal, Inc., and CMC Steel Fabricators, Inc. dba CMC Rebar for Does 3, 4, 5, and 6. On July 17, 2017, the Bensons filed an amendment to the complaint, substituting Englekirk Institutional, Inc., for Doe 7.

On October 6, 2017, the Bensons stipulated to dismiss all of the Englekirk parties except Englekirk Structural Engineers, Inc., which in turn stipulated to assume the defense and liabilities of all of the other Englekirk parties.

2. Cross-Complaints

 

On January 6, 2017, Millie and Severson, Inc., filed a cross-complaint against New England Lead Burning Company, Inc., and Roes 1-10, asserting claims for (1) breach of contract; (2) express indemnity; (3) equitable indemnity; (4) equitable apportionment; (5) implied contractual indemnity; and (6) declaratory relief. On August 29, 2017, Millie and Severson dismissed the cross-complaint as to New England Lead Burning Co., only. On October 2, 2017, Millie and Severson filed amendments to the cross-complaint, substituting Bapko Metal, Inc., CMC Steel Fabricators, Inc. dba CMC Rebar, and Coan Construction Co., Inc., for Roes 1, 2, and 3.

On August 16, 2017, Bapko Metal, Inc., filed a cross-complaint against Moes 1-20, asserting claims for (1) implied equitable indemnity; (2) equitable contribution; and (3) declaratory relief. A first amended cross-complaint, against the same cross-defendants and asserting the same claims, was filed on September 28, 2017.

On August 23, 2017, Englekirk & Sabol Consulting Structural Engineers, Inc. filed a cross-complaint against Bapko Metal, Inc., and Roes 1-100.

B. Case No. BC642315

1. Complaint

Plaintiff Billie B. Hughes, III, (“Hughes”) filed his complaint on December 9, 2016, against Defendant Millie and Severson, Inc., and Does 1-100, for general negligence and premises liability. On July 17, 2017, Hughes filed amendments to the complaint, substituting Englekirk Structural Engineers, Inc., Englekirk Partners Consulting Structural Engineers, Inc., Commercial Metals Company, Coan Construction Co., Inc., Bapko Metal, Inc., CMC Steel Fabricators, Inc. dba CMC Rebar, and Englekirk Institutional, Inc. for Does 1, 2, 3, 4, 5, 6, and 7. On the same date, Hughes filed a Certificate of Merit as to the three Englekirk defendants, as required by CCP § 411.35.

On October 4, 2017, Hughes stipulated to dismiss all of the Englekirk parties except Englekirk Structural Engineers, Inc., which in turn stipulated to assume the defense and liabilities of all of the other Englekirk parties.

2. Cross-Complaints

On February 1, 2017, Millie and Severson, Inc., filed a cross-complaint against New England Lead Burning Company, Inc., and Roes 1-10, asserting claims for (1) breach of contract; (2) express indemnity; (3) equitable indemnity; (4) equitable apportionment; (5) implied contractual indemnity; and (6) declaratory relief. On August 31, 2017, Millie and Severson dismissed the cross-complaint as to New England Lead Burning Co., only. On October 2, 2017, Millie and Severson filed amendments to the cross-complaint, substituting Bapko Metal, Inc., CMC Steel Fabricators, Inc. dba CMC Rebar, and Coan Construction Co., Inc., for Roes 1, 2, and 3.

On August 23, 2017, Englekirk & Sabol Consulting Structural Engineers, Inc. filed a cross-complaint against Bapko Metal, Inc., and Roes 1-100.

On September 28, 2017, Bapko Metal, Inc., filed a cross-complaint against Moes 1-20, asserting claims for (1) implied equitable indemnity; (2) equitable contribution; and (3) declaratory relief.

C. Case No. BC665962

1. Complaint

Plaintiff Federal Insurance Company (“FIC”) filed its complaint on June 21, 2017, against Defendant Englekirk Structural Engineers, Inc., and Does 1-20, for general negligence, pursuant to a worker’s compensation subrogation theory. On the same date, FIC filed a Certificate of Merit as to the defendant, as required by CCP § 411.35.

On July 17, 2017, FIC filed amendments to the complaint, substituting Englekirk Institutional, Inc., Englekirk Partners Consulting Structural Engineers, Inc., Commercial Metals Company, Coan Construction Co., Inc., Bapko Metal, Inc., and CMC Steel Fabricators, Inc. dba CMC Rebar, for Does 1, 2, 3, 4, 5, and 6.

On October 13, 2017, FIC stipulated to dismiss all of the Englekirk parties except Englekirk Structural Engineers, Inc., which in turn stipulated to assume the defense and liabilities of all of the other Englekirk parties.

2. Cross-Complaints

No cross-complaints were filed in this action.

II. Post-Consolidation Filings

1. Complaints

On September 13, 2018, the Bensons filed an amendment to their complaint, substituting Ware Malcomb for Doe 8. On the same date, the Bensons filed a Certificate of Merit as to this defendant, as required by CCP § 411.35.

On September 14, 2018, Hughes also filed an amendment to his complaint, substituting Ware Malcomb for Doe 8. On the same date, Hughes filed a Certificate of Merit as to this defendant, as required by CCP § 411.35.

On August 31, 2018, FIC dismissed Commercial Metals Company (Doe 3) from their complaint. On October 26, 2018, FIC filed an amendment to the complaint, substituting Ware Malcomb for Doe 7. On the same date, FIC filed a Certificate of Merit as to this defendant, as required by CCP § 411.35.

 

2. Cross-Complaints

On February 16, 2018, Bapko Metal filed an amendment to the cross-complaint, substituting Englekirk Structural Engineers, Inc. for Moe 1. On the same date, Bapko Metal filed a Certificate of Merit as to this cross-defendant, as required by CCP § 411.35.

On July 6, 2018, Millie and Severson filed an amendment to the cross-complaint, substituting Englekirk Structural Engineers, Inc. for Roe 6. On the same date, Millie and Severson filed a Certificate of Merit as to this cross-defendant, as required by CCP § 411.35.

On September 24, 2018, Englekirk Structural Engineers, Inc., filed amendments to the cross-complaint, substituting Coan Construction Co., Inc., CMC Steel Fabricators, Inc. dba CMC Rebar, and Millie and Severson (“MSI” for Roes 1, 2, and 3. These substitutions are somewhat confusing, given that it does not appear Englekirk Structural Engineers ever filed a cross-complaint. Presumably, Englekirk Structural Engineers has taken over the cross-complaint of Englekirk & Sabol Consulting Structural Engineers, Inc., but the status of the cross-complaint was not addressed in the stipulation regarding the Englekirk parties. It also appears another amendment as to this cross-complaint was filed on October 24, adding Bapko Metal as a cross-defendant, but the document has not been scanned.

III. Post-Consolidation Court Orders and Filings

On January 28, 2019, the Court overruled Defendant Ware Malcomb’s demurrers to the complaints of Thomas Brad Benson and Zachary Benson, Billie B. Hughes, III, and Federal Insurance Company.

On June 14, 2019, the Court granted MSI’s motions to compel further responses to form and special interrogatories.

On July 16, 2019, the Court denied MSI’s motions for summary judgment/adjudication.

On July 23, 2019, the Court denied Ware Malcomb’s three motions for summary judgment.

On August 29, 2019, the Court denied Englekirk’s ex parte application for an order shortening time for a hearing on the motion to compel production.

On October 8, 2019, at the hearing on Englekirk’s motion to compel production to CMC Steel Fabricators, Inc. dba CMC Rebar, pursuant to the oral stipulation of the parties, the Court ordered CMC Rebar to facilitate the purchase of rebar at Englekirk’s expense.

On October 16, 2019, Coan Construction Co., Inc. filed the instant motion for determination of good faith settlement.

On October 18, 2019, the Court granted CMC Steel Fabricators, Inc. dba CMC Rebar’s amended motion for protective order and granted Coan’s ex parte application for order shortening time to advance the hearing date on its motion for determination of good faith settlement.

On October 21, 2019, Millie and Severson, Incorporated filed a request for dismissal as to Coan Construction Co., Inc. only.

On October 24, 2019, the parties notified the Court that the entire case had been settled.

ANALYSIS:

A. Relevant Law

"(a)(1)Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. . . .

(b) The issue of good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter-affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.

(c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasors or co-obligor from any further claims against the settling tortfeasors or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.

(d) The party asserting the lack of good faith shall have the burden of proof on the issue.” (Code Civ. Proc., § 877.6(a)(1), (b)-(d).)

The factors considered in determining good faith include: the rough approximation of plaintiff's total recovery and settlor's proportionate liability; the amount paid in settlement; the allocation of settlement proceeds among the plaintiffs; a recognition that a settlor should pay less in settlement than if found liable after a trial; the settlor's financial condition and insurance limits; and evidence of collusion, fraud, or tortious conduct between the settlor and the plaintiffs aimed at making the nonsettling parties pay more than their fair share. (Tech Bilt, Inc. v. Woodward Clyde & Associates (1985) 38 Cal.3d 488, 499.) "[T]he determination whether the settlement was in good faith must be based on competent, admissible evidence." (Brehm Communities v. Sup. Ct. (2001) 88 Cal.App.4th 730, 736.)

“[O]nly when the good faith nature of a settlement is disputed, it is incumbent upon the trial court to consider and weigh the Tech-Bilt factors. That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.” (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.)

B. Discussion

Coan Construction Company (“Coan”) “moves this Court for an order determining that the settlement entered into between Coan and Plaintiffs Thomas Benson, Zachary Benson, Billie Hughes, and Federal Insurance Company (hereinafter ‘Plaintiffs’) was made in good faith.” (Motion, p. 2:3-7.) “Coan requests an order that any pending and future claims for equitable contribution, total indemnity, partial indemnity, and/or comparative indemnity against Coan based on comparative negligence and/or comparative fault hereby be dismissed and forever barred.” (Id. at p. 2:7-10.)

Coan explains that it “and Plaintiff have agreed, in good faith, that all claims against Coan are to be resolved for $40,000.00, contingent upon the following:

1. Plaintiffs' execution of a settlement agreement and release of any and all causes of action, claims, suits, liens, losses, damages, judgments, and demands of every nature, kind, and description whatsoever, in law or in equity, whether known or unknown, fixed or contingent, suspected or unsuspected, which they ever had, now has or hereafter may have against them by reason of any matter whatsoever from the beginning of time to the date of execution of the settlement agreement Plaintiffs may have against Coan and its past, present, and future officers, agents, directors, stockholders, members, owners, partners, employees, attorneys, insurers, successors, predecessors, assigns, and all affiliated, parent, and subsidiary corporations and companies;

2. Delivery by Defendant Coan to the Plaintiffs of $40,000.00 ($10,000 to Plaintiff Zachary Benson, $10,000 to Plaintiff Thomas Benson, $10,000 to Plaintiff Billie Hughes III, and $10,000 to Plaintiff Federal Insurance Company);

3. A stipulation signed by all non-settling Defendants that they will not -present any evidence at trial that the work performed by Coan was a cause of the collapse and or any damages suffered by any of the Plaintiffs; and

4. Plaintiffs' execution of a Request for Dismissal with Prejudice of Coan upon receipt by the Plaintiffs' counsel of the settlement funds.” (Id. at pp. 2:13-3:5.)

Coan states that “Plaintiffs Thomas Benson, Zachary Benson, Billie Hughes were the alleged workers on a construction site located at Good Samaritan Hospital at 1245 Wilshire Blvd, Los Angeles, CA 90017.” (Id. at p. 4:11-13 [citing Bates Decl., ¶ 3].) Coan explains that “NELCO-National Lead is the company that employed all three plaintiff workers” and “Plaintiff Federal Insurance Company is the workers' compensation carrier for NELCO - National Lead.” (Id. at p. 4:13-15 [citing Bates Decl., ¶ 3].) Coan provides that “Plaintiffs alleged they were working specifically on Oncology Radiation Vault Two in the Good Samaritan medical Pavilion; a medical office building being constructed on the hospital campus.” (Id. at p. 4:15-17 [citing Bates Decl., ¶ 3].) Coan explains that it “is the concrete subcontractor on the project for the vault structure.” (Id. at p. 4:18 [citing Bates Decl., ¶ 3].)

Coan asserts that Plaintiffs alleged the following:

· On July 21, 2015, they were placing lead bricks on a platform above Oncology Radiation Vault Two when the vault collapsed, causing Plaintiffs to fall to the ground. [Bates Decl., ¶ 4.]

· Coan helped contribute to the vault collapsing, and in turn caused damages to the Plaintiffs. [Bates Decl., ¶ 4.]

· Plaintiffs' operative Complaint alleged the following causes of action against all defendants, including Coan: Negligence, Negligence per Se, Strict Liability - Failure to Warn, Strict Liability - Design Defect, and Breach of Implied Warranties. [Bates Decl., ¶ 4.] (Id. at p. 4:19-25.)

Coan maintains that “there is no evidence that it caused damage to Plaintiffs during their employment at NELCO-National Lead on July 21, 2015” and “as a result, the parties reached a settlement in the amount of $10,000.00 per plaintiff in exchange for Plaintiffs' release and dismissal with prejudice of their claims against Coan.” (Id. at pp. 4:26-5:2 [citing Bates Decl., ¶¶5-6].) Coan argues that “this settlement was reached after arms-length negotiations between the parties and does not involve any fraud or collusion.” (Id. at p. 5:2-4 [citing Bates Decl., ¶ 7].) Coan asserts that “all non-settling Defendants have stipulated not to present any evidence at trial that the work performed by Coan was a cause of the collapse and or any damages suffered by any of the Plaintiffs.” (Id. at p. 5:4-6 [citing Bates Decl., ¶ 7].)

Coan argues that “this settlement is justified and is well within its proportionate share of potential liability, as Coan asserts i[t] has no liability” and that “that there has been no evidence offered that the concrete work performed by Coan contributed in any way to the collapse and damages suffered by the Plaintiffs.” (Id. at p. 7:13-21.) Coan maintains that “this settlement is the result of extensive and arms-length negotiations at an all-day mediation where all Defendants attended and does not include any collusive or secretive terms.” (Id. at p. 7:26-27.)

Coan “requests this Court find that the settlement between Plaintiffs and Coan is in good faith, pursuant to California Code of Civil Procedure Section 877.6” because “(1) the settlement does not include any collusive or secretive terms[; (2)] in light of the lack of evidence against Coan, this settlement was negotiated in good faith[;] and [(3) the settlement] complies with the good faith factors pursuant to Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488.” (Motion, p. 5:77-11 [citing Bates Decl., ¶¶8-9].)

This motion is unopposed. The motion itself sets forth the ground of good faith and is accompanied by a declaration which sets forth a brief background of this case. (See City of Grand Terrace, 192 Cal.App. 4d at 1261; see also Bates Decl., ¶¶3-5; see also Motion, pp. 7:13-8:22.)

The Court GRANTS Coan’s motion for determination of good faith settlement.

Case Number: BC638719    Hearing Date: October 28, 2019    Dept: 34

SUBJECT: Motion for Determination of Good Faith Settlement

Moving Party: Coan Construction Co., Inc.

Resp. Party: None

Coan Construction Co., Inc.’s motion for determination of good faith settlement is GRANTED.

PROCEDURAL BACKGROUND:

The instant action arises from the injury of several plaintiffs on a hospital construction site, when a portion of the construction collapsed. Three actions were ultimately filed, before being consolidated by the Court on December 12, 2017.

I. Pre-Consolidation Filings

A. Case No. BC638719

1. Complaint

Plaintiffs Thomas Brad Benson and Zachary Benson (the “Bensons”) filed their complaint on October 26, 2016, against Defendant Millie and Severson, Inc. (“MSI”), and Does 1-20, for general negligence and premises liability. On June 30, 2017, the Bensons filed amendments to the complaint, substituting Englekirk Structural Engineers, Inc., and Englekirk Partners Consulting Structural Engineers, Inc., for Does 1 and 2. On the same date, the Bensons filed a Certificate of Merit as to these two defendants, as required by Code of Civil Procedure section 411.35.

On June 13, 2017, the Bensons filed amendments to the complaint, substituting Commercial Metals Company, Coan Construction Co., Inc., Bapko Metal, Inc., and CMC Steel Fabricators, Inc. dba CMC Rebar for Does 3, 4, 5, and 6. On July 17, 2017, the Bensons filed an amendment to the complaint, substituting Englekirk Institutional, Inc., for Doe 7.

On October 6, 2017, the Bensons stipulated to dismiss all of the Englekirk parties except Englekirk Structural Engineers, Inc., which in turn stipulated to assume the defense and liabilities of all of the other Englekirk parties.

2. Cross-Complaints

 

On January 6, 2017, Millie and Severson, Inc., filed a cross-complaint against New England Lead Burning Company, Inc., and Roes 1-10, asserting claims for (1) breach of contract; (2) express indemnity; (3) equitable indemnity; (4) equitable apportionment; (5) implied contractual indemnity; and (6) declaratory relief. On August 29, 2017, Millie and Severson dismissed the cross-complaint as to New England Lead Burning Co., only. On October 2, 2017, Millie and Severson filed amendments to the cross-complaint, substituting Bapko Metal, Inc., CMC Steel Fabricators, Inc. dba CMC Rebar, and Coan Construction Co., Inc., for Roes 1, 2, and 3.

On August 16, 2017, Bapko Metal, Inc., filed a cross-complaint against Moes 1-20, asserting claims for (1) implied equitable indemnity; (2) equitable contribution; and (3) declaratory relief. A first amended cross-complaint, against the same cross-defendants and asserting the same claims, was filed on September 28, 2017.

On August 23, 2017, Englekirk & Sabol Consulting Structural Engineers, Inc. filed a cross-complaint against Bapko Metal, Inc., and Roes 1-100.

B. Case No. BC642315

1. Complaint

Plaintiff Billie B. Hughes, III, (“Hughes”) filed his complaint on December 9, 2016, against Defendant Millie and Severson, Inc., and Does 1-100, for general negligence and premises liability. On July 17, 2017, Hughes filed amendments to the complaint, substituting Englekirk Structural Engineers, Inc., Englekirk Partners Consulting Structural Engineers, Inc., Commercial Metals Company, Coan Construction Co., Inc., Bapko Metal, Inc., CMC Steel Fabricators, Inc. dba CMC Rebar, and Englekirk Institutional, Inc. for Does 1, 2, 3, 4, 5, 6, and 7. On the same date, Hughes filed a Certificate of Merit as to the three Englekirk defendants, as required by CCP § 411.35.

On October 4, 2017, Hughes stipulated to dismiss all of the Englekirk parties except Englekirk Structural Engineers, Inc., which in turn stipulated to assume the defense and liabilities of all of the other Englekirk parties.

2. Cross-Complaints

On February 1, 2017, Millie and Severson, Inc., filed a cross-complaint against New England Lead Burning Company, Inc., and Roes 1-10, asserting claims for (1) breach of contract; (2) express indemnity; (3) equitable indemnity; (4) equitable apportionment; (5) implied contractual indemnity; and (6) declaratory relief. On August 31, 2017, Millie and Severson dismissed the cross-complaint as to New England Lead Burning Co., only. On October 2, 2017, Millie and Severson filed amendments to the cross-complaint, substituting Bapko Metal, Inc., CMC Steel Fabricators, Inc. dba CMC Rebar, and Coan Construction Co., Inc., for Roes 1, 2, and 3.

On August 23, 2017, Englekirk & Sabol Consulting Structural Engineers, Inc. filed a cross-complaint against Bapko Metal, Inc., and Roes 1-100.

On September 28, 2017, Bapko Metal, Inc., filed a cross-complaint against Moes 1-20, asserting claims for (1) implied equitable indemnity; (2) equitable contribution; and (3) declaratory relief.

C. Case No. BC665962

1. Complaint

Plaintiff Federal Insurance Company (“FIC”) filed its complaint on June 21, 2017, against Defendant Englekirk Structural Engineers, Inc., and Does 1-20, for general negligence, pursuant to a worker’s compensation subrogation theory. On the same date, FIC filed a Certificate of Merit as to the defendant, as required by CCP § 411.35.

On July 17, 2017, FIC filed amendments to the complaint, substituting Englekirk Institutional, Inc., Englekirk Partners Consulting Structural Engineers, Inc., Commercial Metals Company, Coan Construction Co., Inc., Bapko Metal, Inc., and CMC Steel Fabricators, Inc. dba CMC Rebar, for Does 1, 2, 3, 4, 5, and 6.

On October 13, 2017, FIC stipulated to dismiss all of the Englekirk parties except Englekirk Structural Engineers, Inc., which in turn stipulated to assume the defense and liabilities of all of the other Englekirk parties.

2. Cross-Complaints

No cross-complaints were filed in this action.

II. Post-Consolidation Filings

1. Complaints

On September 13, 2018, the Bensons filed an amendment to their complaint, substituting Ware Malcomb for Doe 8. On the same date, the Bensons filed a Certificate of Merit as to this defendant, as required by CCP § 411.35.

On September 14, 2018, Hughes also filed an amendment to his complaint, substituting Ware Malcomb for Doe 8. On the same date, Hughes filed a Certificate of Merit as to this defendant, as required by CCP § 411.35.

On August 31, 2018, FIC dismissed Commercial Metals Company (Doe 3) from their complaint. On October 26, 2018, FIC filed an amendment to the complaint, substituting Ware Malcomb for Doe 7. On the same date, FIC filed a Certificate of Merit as to this defendant, as required by CCP § 411.35.

 

2. Cross-Complaints

On February 16, 2018, Bapko Metal filed an amendment to the cross-complaint, substituting Englekirk Structural Engineers, Inc. for Moe 1. On the same date, Bapko Metal filed a Certificate of Merit as to this cross-defendant, as required by CCP § 411.35.

On July 6, 2018, Millie and Severson filed an amendment to the cross-complaint, substituting Englekirk Structural Engineers, Inc. for Roe 6. On the same date, Millie and Severson filed a Certificate of Merit as to this cross-defendant, as required by CCP § 411.35.

On September 24, 2018, Englekirk Structural Engineers, Inc., filed amendments to the cross-complaint, substituting Coan Construction Co., Inc., CMC Steel Fabricators, Inc. dba CMC Rebar, and Millie and Severson (“MSI” for Roes 1, 2, and 3. These substitutions are somewhat confusing, given that it does not appear Englekirk Structural Engineers ever filed a cross-complaint. Presumably, Englekirk Structural Engineers has taken over the cross-complaint of Englekirk & Sabol Consulting Structural Engineers, Inc., but the status of the cross-complaint was not addressed in the stipulation regarding the Englekirk parties. It also appears another amendment as to this cross-complaint was filed on October 24, adding Bapko Metal as a cross-defendant, but the document has not been scanned.

III. Post-Consolidation Court Orders and Filings

On January 28, 2019, the Court overruled Defendant Ware Malcomb’s demurrers to the complaints of Thomas Brad Benson and Zachary Benson, Billie B. Hughes, III, and Federal Insurance Company.

On June 14, 2019, the Court granted MSI’s motions to compel further responses to form and special interrogatories.

On July 16, 2019, the Court denied MSI’s motions for summary judgment/adjudication.

On July 23, 2019, the Court denied Ware Malcomb’s three motions for summary judgment.

On August 29, 2019, the Court denied Englekirk’s ex parte application for an order shortening time for a hearing on the motion to compel production.

On October 8, 2019, at the hearing on Englekirk’s motion to compel production to CMC Steel Fabricators, Inc. dba CMC Rebar, pursuant to the oral stipulation of the parties, the Court ordered CMC Rebar to facilitate the purchase of rebar at Englekirk’s expense.

On October 16, 2019, Coan Construction Co., Inc. filed the instant motion for determination of good faith settlement.

On October 18, 2019, the Court granted CMC Steel Fabricators, Inc. dba CMC Rebar’s amended motion for protective order and granted Coan’s ex parte application for order shortening time to advance the hearing date on its motion for determination of good faith settlement.

On October 21, 2019, Millie and Severson, Incorporated filed a request for dismissal as to Coan Construction Co., Inc. only.

ANALYSIS:

A. Relevant Law

"(a)(1)Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. . . .

(b) The issue of good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter-affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.

(c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasors or co-obligor from any further claims against the settling tortfeasors or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.

(d) The party asserting the lack of good faith shall have the burden of proof on the issue.” (Code Civ. Proc., § 877.6(a)(1), (b)-(d).)

The factors considered in determining good faith include: the rough approximation of plaintiff's total recovery and settlor's proportionate liability; the amount paid in settlement; the allocation of settlement proceeds among the plaintiffs; a recognition that a settlor should pay less in settlement than if found liable after a trial; the settlor's financial condition and insurance limits; and evidence of collusion, fraud, or tortious conduct between the settlor and the plaintiffs aimed at making the nonsettling parties pay more than their fair share. (Tech Bilt, Inc. v. Woodward Clyde & Associates (1985) 38 Cal.3d 488, 499.) "[T]he determination whether the settlement was in good faith must be based on competent, admissible evidence." (Brehm Communities v. Sup. Ct. (2001) 88 Cal.App.4th 730, 736.)

“[O]nly when the good faith nature of a settlement is disputed, it is incumbent upon the trial court to consider and weigh the Tech-Bilt factors. That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.” (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.)

B. Discussion

Coan Construction Company (“Coan”) “moves this Court for an order determining that the settlement entered into between Coan and Plaintiffs Thomas Benson, Zachary Benson, Billie Hughes, and Federal Insurance Company (hereinafter ‘Plaintiffs’) was made in good faith.” (Motion, p. 2:3-7.) “Coan requests an order that any pending and future claims for equitable contribution, total indemnity, partial indemnity, and/or comparative indemnity against Coan based on comparative negligence and/or comparative fault hereby be dismissed and forever barred.” (Id. at p. 2:7-10.)

Coan explains that it “and Plaintiff have agreed, in good faith, that all claims against Coan are to be resolved for $40,000.00, contingent upon the following:

1. Plaintiffs' execution of a settlement agreement and release of any and all causes of action, claims, suits, liens, losses, damages, judgments, and demands of every nature, kind, and description whatsoever, in law or in equity, whether known or unknown, fixed or contingent, suspected or unsuspected, which they ever had, now has or hereafter may have against them by reason of any matter whatsoever from the beginning of time to the date of execution of the settlement agreement Plaintiffs may have against Coan and its past, present, and future officers, agents, directors, stockholders, members, owners, partners, employees, attorneys, insurers, successors, predecessors, assigns, and all affiliated, parent, and subsidiary corporations and companies;

2. Delivery by Defendant Coan to the Plaintiffs of $40,000.00 ($10,000 to Plaintiff Zachary Benson, $10,000 to Plaintiff Thomas Benson, $10,000 to Plaintiff Billie Hughes III, and $10,000 to Plaintiff Federal Insurance Company);

3. A stipulation signed by all non-settling Defendants that they will not -present any evidence at trial that the work performed by Coan was a cause of the collapse and or any damages suffered by any of the Plaintiffs; and

4. Plaintiffs' execution of a Request for Dismissal with Prejudice of Coan upon receipt by the Plaintiffs' counsel of the settlement funds.” (Id. at pp. 2:13-3:5.)

Coan states that “Plaintiffs Thomas Benson, Zachary Benson, Billie Hughes were the alleged workers on a construction site located at Good Samaritan Hospital at 1245 Wilshire Blvd, Los Angeles, CA 90017.” (Id. at p. 4:11-13 [citing Bates Decl., ¶ 3].) Coan explains that “NELCO-National Lead is the company that employed all three plaintiff workers” and “Plaintiff Federal Insurance Company is the workers' compensation carrier for NELCO - National Lead.” (Id. at p. 4:13-15 [citing Bates Decl., ¶ 3].) Coan provides that “Plaintiffs alleged they were working specifically on Oncology Radiation Vault Two in the Good Samaritan medical Pavilion; a medical office building being constructed on the hospital campus.” (Id. at p. 4:15-17 [citing Bates Decl., ¶ 3].) Coan explains that it “is the concrete subcontractor on the project for the vault structure.” (Id. at p. 4:18 [citing Bates Decl., ¶ 3].)

Coan asserts that Plaintiffs alleged the following:

· On July 21, 2015, they were placing lead bricks on a platform above Oncology Radiation Vault Two when the vault collapsed, causing Plaintiffs to fall to the ground. [Bates Decl., ¶ 4.]

· Coan helped contribute to the vault collapsing, and in turn caused damages to the Plaintiffs. [Bates Decl., ¶ 4.]

· Plaintiffs' operative Complaint alleged the following causes of action against all defendants, including Coan: Negligence, Negligence per Se, Strict Liability - Failure to Warn, Strict Liability - Design Defect, and Breach of Implied Warranties. [Bates Decl., ¶ 4.] (Id. at p. 4:19-25.)

Coan maintains that “there is no evidence that it caused damage to Plaintiffs during their employment at NELCO-National Lead on July 21, 2015” and “as a result, the parties reached a settlement in the amount of $10,000.00 per plaintiff in exchange for Plaintiffs' release and dismissal with prejudice of their claims against Coan.” (Id. at pp. 4:26-5:2 [citing Bates Decl., ¶¶5-6].) Coan argues that “this settlement was reached after arms-length negotiations between the parties and does not involve any fraud or collusion.” (Id. at p. 5:2-4 [citing Bates Decl., ¶ 7].) Coan asserts that “all non-settling Defendants have stipulated not to present any evidence at trial that the work performed by Coan was a cause of the collapse and or any damages suffered by any of the Plaintiffs.” (Id. at p. 5:4-6 [citing Bates Decl., ¶ 7].)

Coan argues that “this settlement is justified and is well within its proportionate share of potential liability, as Coan asserts i[t] has no liability” and that “that there has been no evidence offered that the concrete work performed by Coan contributed in any way to the collapse and damages suffered by the Plaintiffs.” (Id. at p. 7:13-21.) Coan maintains that “this settlement is the result of extensive and arms-length negotiations at an all-day mediation where all Defendants attended and does not include any collusive or secretive terms.” (Id. at p. 7:26-27.)

Coan “requests this Court find that the settlement between Plaintiffs and Coan is in good faith, pursuant to California Code of Civil Procedure Section 877.6” because “(1) the settlement does not include any collusive or secretive terms[; (2)] in light of the lack of evidence against Coan, this settlement was negotiated in good faith[;] and [(3) the settlement] complies with the good faith factors pursuant to Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488.” (Motion, p. 5:77-11 [citing Bates Decl., ¶¶8-9].)

This motion is unopposed. The motion itself sets forth the ground of good faith and is accompanied by a declaration which sets forth a brief background of this case. (See City of Grand Terrace, 192 Cal.App. 4d at 1261; see also Bates Decl., ¶¶3-5; see also Motion, pp. 7:13-8:22.)

The Court GRANTS Coan’s motion for determination of good faith settlement.