Case Number: BC534074    Hearing Date: July 15, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

DAVID SOLOMON,
Plaintiff(s),
vs.

SPINAL SOLUTIONS, INC., ET AL.,

Defendant(s).

CASE NO: BC534074

[TENTATIVE] ORDER GRANTING MOTION TO CONSOLIDATE

Dept. 92
1:30 p.m. — #32
July 15, 2014

Plaintiff, David Solomon’s Motion to Consolidate is Granted.

1. UIM Arbitration
Plaintiff, David Solomon is involved in an underinsured motorists’ arbitration action (UIM) with American States Insurance Company (“ASIC”). Plaintiff was insured by ASIC on 11/12/07, when he was involved in an automobile accident with an underinsured motorist. Plaintiff made a claim with ASIC for $600,000, and the amount is in dispute. The arbitration was scheduled to go forward on 6/23/14, but it appears the arbitration did not go forward, as this motion would be moot if it did.

2. Civil Action
Plaintiff, David Solomon decided to undergo lumbar surgery as a result of the injuries sustained during the automobile accident. The surgery was completed by Defendant, Physicians of Midway, Inc. Defendants, Spinal Solutions, Inc., Mary Williams, Crowder Machine and Tool Shop, and William Crowder manufactured the screws that were used in the surgery. Plaintiff alleges the screws were not FDA-approved, and ultimately one of the screws failed, causing Plaintiff additional injury.

3. Motion to Consolidate
At this time, Plaintiff moves to consolidate the civil action with the UIM action. CCP ¿1281.2 provides:
The court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: . . .
(c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.. . .

In other words, courts may refuse arbitration where a party to the arbitration agreement is involved in litigation with a third party, if the litigation arises out of the same transaction or series of transactions as the arbitration; and there is a possibility of conflicting rulings on common issues of law or fact. To avoid inconsistent results and the possibility that each defendant will seek to escape liability by blaming the other, the court can refuse to compel arbitration and order all parties joined in a single action. (See Mercury Ins. Group v. Superior Court (1998)19 Cal.4th 332, 339–340; Prudential Property & Cas. Ins. Co. v. Superior Court (1995) 36 Cal.App.4th 275, 279.) Thus, the court has authority to order an arbitration proceeding consolidated with the pending lawsuit for all purposes, including trial. In such cases, the parties to the arbitration agreement are forced to litigate a dispute that they had agreed to arbitrate. (Mercury Ins. Group v. Superior Court, supra, 19 Cal.4th at pp. 347–350.)

The right to arbitration, created by their agreement, is not absolute: “(I)t may have to yield if there is an issue of law or fact common to the arbitration and a pending action or proceeding with a third party and there is a possibility of conflicting rulings thereon.” (Mercury Ins. Group v. Superior Court, supra, 19 Cal.4th at p. 348.)

As Defendants correctly note in opposition to the motion, this doctrine is typically applied in situations where there are multiple parties involved in the same tortious act, such as the same automobile accident. In this case, the Court is concerned with two separate incidents – an automobile accident and a subsequent back surgery. As Defendants also correctly note in opposition, the back surgery took place four years after the accident. The accident took place in 2007. It is not clear when the UIM action was filed, but it was set for arbitration on 6/23/14. The surgery, on the other hand, was performed in late 2011, and this action was not filed until 1/24/14; trial in this action is not set until 7/24/15.

The Court has reviewed Henry v. Superior Court (2008) 160 Cal.App.4th 440 in connection with this issue. In Henry, the plaintiffs sued the defendant homeowners for premises liability. The plaintiffs sought to recover damages not only for the injury sustained as a result of the incident, but also for the negligent medical treatment they received from Kaiser thereafter. The Court of Appeals made a number of important holdings. First, it noted that the homeowner defendants were solely liable for any of the plaintiff’s damages that were caused by the incident itself, but were jointly and severally liable with Kaiser for any damages due to the ultimate negligent medical care. The court noted, “traditional California tort law holds a tortfeasor liable not only for the victim’s original personal injuries but also for any aggravation caused by subsequent negligent medical treatment, provided the injured party exercised reasonable care in obtaining the medical treatment. The subsequent tortfeasor, in turn, is also liable to the injured party for the enhanced injuries he or she has caused.” Id. at 445.

The court went on to hold that the homeowner defendants would be entitled to indemnification from Kaiser for the amount of fault that the jury apportioned to Kaiser, and that the homeowners could pursue this by way of a cross-complaint against Kaiser or by way of a future action for indemnification. Id. at 449. The court then discussed the application of Prop 51 to such a situation, ultimately holding that the jury must apportion fault for the plaintiff’s non-economic (pain and suffering) damages, and that the homeowner defendants would only be liable for their own proportionate share of the non-economic damages.

Importantly, in Henry, the plaintiff did not actually sue Kaiser. Neither did the homeowner defendants file a cross-complaint against Kaiser. Instead, the court was concerned with whether the jury should be instructed to consider Kaiser’s portion of the liability and to apportion those damages in the verdict; the court held that such instruction would be proper.

In the case at bar, Plaintiff has parallel actions against his insurance company for damages arising out of the automobile accident, and also against his medical providers for damages arising out of subsequent treatment. If the two actions are not consolidated, very complicated results could ensue. Plaintiff could recover damages against his insurance company for both his original damages and also for the damages flowing from the subsequent negligent medical treatment. Plaintiff could also recover damages against the medical providers for their negligent treatment. Meanwhile, the insurance company would be entitled to seek indemnification from the medical provider defendants for the portion of the judgment representing exacerbated injuries. Additionally, arbitrator in the case against the insurance provider would be required to apportion the damages due solely to the accident vs. the damages due to the future negligent care and treatment. There is even a risk that the arbitrator in the first case could apportion substantial damages to the medical care providers, while the jury in the second case could find the medical providers were not negligent at all.

These highly complicated and potentially contrary results can be avoided by having both actions heard together. The jury can consider whether either/both defendant(s) is/are negligent, whether their negligence caused and/or contributed to Plaintiff’s claimed damages, and can ultimately apportion the damages between the two sets of defendants. The Court therefore finds consolidation is in the interest of justice, and the motion to consolidate is granted.

Dated this 15th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court