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Miller v. Pisano10/31/2002
. . with respect to their handling of the undersigned's personal injury and worker's compensation actions."
In connection with the settlement of the malpractice action, Miller incurred $13,742.78 in attorney's fees and costs. Of this amount Miller paid only his deductible in the amount of $5,000, while the insurance carrier paid the $8,742.78 remainder. Prior to the settlement of the malpractice action, Miller never advised Ellis or Pisano that he intended to pursue an action for equitable indemnity against them.
On March 2, 2000, Miller filed the instant action against Pisano, Ellis, and the alleged firm of "Pisano & Ellis" for "implied equitable indemnity." At the conclusion of a two-day court trial, the trial court ruled in favor of Miller in his action against Ellis. The trial court found that Miller and Ellis were each 50 percent responsible for their legal malpractice in representing Fay, and should share the resulting damages equally. Based on its understanding and application of the collateral source rule, the trial court concluded that Miller was entitled to recover $40,000 from Ellis, or 50 percent of Miller's alleged damages of $75,000 plus the $5,000 deductible. However, the trial court ruled in favor of Pisano, finding that he was not involved in representing Fay in any way, and was not in either a partnership or an unincorporated association with Ellis. The trial court concluded that it would be neither equitable nor legally correct to impose liability on Pisano for Ellis's malpractice, and entered judgment in Pisano's favor.
From this judgment, Ellis and Miller filed separate appeals. In this appeal, we address Miller's appeal of the trial court's judgment for Pisano.
Discussion
The sole issue on this appeal is whether the trial court erred in its determination that Pisano was not liable for the negligence and malpractice of attorney Ellis. Asserting that there is no conflicting or disputed evidence concerning Pisano's relationship with Ellis, appellant Miller argues as a matter of law that Pisano must be found vicariously liable for Ellis's malpractice as a direct consequence of that relationship.
Normally, an appellate court will review a trial court's apportionment of fault under the substantial evidence standard, giving as great deference to the fact finder's determination of negligence as to its resolution of any other conflicts in the evidence. (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1233-1234.) By asserting that de novo review is appropriate, Miller has conceded that the trial court's factual findings are conclusively supported by substantial evidence. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60; Board of Education v. Jack M. (1977) 19 Cal.3d 691, 697; Estate of Teel (1944) 25 Cal.2d 520, 526-527; Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631; Estate of Beard (1999) 71 Cal.App.4th 753, 778-779; County of Mariposa v. Yosemite West Associates (1988) 202 Cal.App.3d 791, 807; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873- 874; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, ยงยง 359-364, pp. 408-415.)
Based on the concededly undisputed evidence in the record, the trial court found that Pisano "personally and individually had no actual, legal or economic participation" in the original underlying personal injury lawsuit brought by Ellis on behalf of Fay. Although the trial court also found that " he entity under the name of `Pisano and Ellis' might have been legally responsible to . . . Fay for any professional negligence in the litigation process of that case because that entity was named in
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