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Watson v. Department of Transportation12/18/1998
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Sutter County. Perry Parker, Judge. Reversed.
After an automobile collision between her car and one driven by Charles Watson at a traffic intersection, arising from the resetting of the traffic signals by a California Department of Transportation (Caltrans) employee, Patty Huffman sued Caltrans and Watson for personal injury . The jury found Huffman and Caltrans at fault and Watson not at fault. Watson thereafter recovered a judgment on a cross-complaint against Caltrans awarding him the attorney's fees incurred in the defense.
Caltrans appeals from the judgment contending the trial court erred in awarding attorney's fees under Code of Civil Procedure section 1021.6 in these circumstances. We agree.
Section 1021.6 does not provide a way around the American rule that each party to a lawsuit must pay his or her own attorney's fees in the commonplace case of a multiparty tort action.
We will reverse the judgment.
FACTS AND PROCEDURAL BACKGROUND
On June 5, 1995, a power outage affected traffic control signals at the intersection of Bridge Street and Highway 99 in Yuba City. The traffic lights were flashing red in all directions. Watson drove into the intersection and stopped because his vision of the southbound lanes of Highway 99 was obstructed by traffic in the turning lane.
In the interim, a Caltrans signal maintenance crew member reset the traffic control signal box which resulted in the lights turning to green for the Highway 99 through lanes. Patty Huffman, talking on her cell phone while driving south on Highway 99, drove into the intersection and her vehicle collided with Watson's.
Huffman sued Caltrans and Watson to recover damages for personal injury , alleging that both had been negligent. Watson cross-complained against Caltrans on a theory of equitable indemnity or, in the alternative, indemnity for comparative fault.
After trial on Huffman's complaint, the jury returned a special verdict with findings that Caltrans was negligent and bore 90 percent of the fault, Watson was not negligent, and Huffman was negligent and bore 10 percent of the fault.
Watson then filed a motion for recovery of his attorney's fees from Caltrans under section 1021.6. As to tender of his defense of the Huffman action to Caltrans, Watson relied on his government tort claim which requested damages in the nature of "equitable indemnity subrogation and comparative fault," not yet ascertained because "[Watson's] damages are contingent on the amount of Huffman's damages" and his ensuing cross-complaint.
Caltrans opposed the motion on the ground Watson failed to tender the defense of Huffman's action to Caltrans. Caltrans argued the government tort claim was not a tender of the defense. Caltrans also argued that if the defense had been tendered it would have been "graciously accepted," as evidenced by its counsel's averment that he had offered to defend Watson when the cross-complaint had been filed, but that offer had been rejected.
Watson's rejoinder included a declaration of his former counsel that no such offer had been made.
The trial court granted Watson's motion. Caltrans appeals from the ensuing judgment for $21,564.12 in attorney's fees and costs on Watson's cross-complaint.
DISCUSSION
I.
Theory of Trial
Caltrans claims the trial court erred in granting a judgment for attorney's fees in favor of Watson on his cross-complaint under section 1021.6 because he did not "prevail on a claim of implied indemni
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