 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Slayton v. Boxer12/29/2004
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Ray Slayton filed a malpractice action against attorneys who represented him in a worker 's compensation claim and related third party case. The jury rendered a special verdict finding the attorneys were negligent but this negligence did not cause the damages Slayton alleged, i.e., loss of potential future medical coverage. The trial court entered judgment in favor of the attorneys and denied Slayton's motions for judgment notwithstanding the verdict and for a new trial. On appeal, Slayton claims the trial court erred in ruling he was precluded from seeking emotional distress damages and in denying his post-trial motion for judgment notwithstanding the verdict. Because these arguments have no merit, we affirm the judgment.
BACKGROUND
Slayton suffered work-related injuries to his back in 1985 and 1987. He filed worker 's compensation claims for these injuries with State Compensation Insurance Fund (State Fund) and New Hampshire Insurance Company (New Hampshire), respectively. As a result of his claims, Slayton received awards from these insurers of lifetime medical benefits for treatment of his lower back. In late 1993, Slayton suffered a third traumatic injury to his back when he fell from scaffolding on the job . After firing his previous lawyer, Slayton retained Stewart Boxer, John Anton and the Boxer, Elkind & Gerson firm (collectively, respondents) to handle his past and future worker 's compensation claims and to file a third party action regarding the 1993 accident.
Fireman's Fund Insurance Company (Fireman's Fund), the worker 's compensation insurer that covered Slayton's third accident, asserted a lien in the third party case for approximately $103,000. On March 22, 1996, at a mediation shortly before the third party action was set to begin trial, respondents negotiated a settlement of the case for $350,000, with an agreement from Fireman's Fund to reduce the amount of its lien to $55,000. Respondents disbursed the $189,500 net recovery from this settlement to Slayton on May 7, 1996.
After the settlement was reached, respondent Anton and Fireman's Fund attorneys conferred on several versions of a draft compromise and release agreement. On one draft, Anton added the following sentence: "Expense incurred by applicant after receipt of settlement funds shall be assumed all by applicant or through prior awards; none by employer or Fireman's Fund Insurance Company. " Anton intended this sentence to alert the worker 's compensation judge who would review the settlement to the existence of prior awards in Slayton's favor. However, the word "or" was omitted during the revision process, such that the final compromise agreement stated future expenses would be assumed "by applicant through prior awards." After the settlement agreement was signed, respondents represented Slayton in seeking compensation from State Fund and New Hampshire for Slayton's upcoming back surgery.
In July 1996, Slayton learned he needed to undergo more extensive surgery than had been anticipated. He advised respondents he was unhappy about the fact that all of his medical expenses would not be covered under the recent settlement, and he hired new counsel, James Kneisler, to challenge approval of the settlement before the Worker's Compensation Appeals Board (WCAB). At the WCAB hearing regarding the settlement, Slayton testified that
Page 1 2 3 4 5 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|