Summary Judgment (Partial Summary Judgment, Summary Adjudication)
A summary judgment is a full, complete and final judgment that terminates a case just like a judgment on a jury verdict would terminate it. A summary adjudication of an issue, also known as a “partial summary judgment,” is a binding, final determination of an issue in a case, removing it from the province of the jury at the time of trial.
Both the plaintiff and defendant can move for summary judgment and/or summary adjudication. In a dog bite case, however, the plaintiff is limited to summary adjudication of one or more issues. This is because the amount of damages is always is an issue for a jury. The only exception would be when the defendant defaults in some manner, in which event the court can issue a default judgment (still not a summary judgment).
It is very advantageous for a plaintiff to move for partial summary judgment on the issue of liability — meaning proving the plaintiff’s case and disproving the defenses to it. No matter how obvious, liability still has to be proved at trial. A jury makes the decision most of the time. When there is a jury, there is risk of an adverse decision. No matter how certain the truth is, a jury can see it another way. Remember O. J.?
To obtain summary judgment or summary adjudication, the moving party has to prove that his position is supported by evidence, and that there is no evidence to controvert his position. You can show all kinds of evidence proving that the other side is liable, but you cannot win the motion if they can produce evidence upon which a jury might rule against you.
To get what you need, you must serve the opposing party with interrogatories, requests for admissions, and possibly requests for production of documents. Whether he is the plaintiff or the defendant, his responses can be used to support your motion. For example, if he is denying liability on the ground that the victim provoked the dog, he might not be able to come up with any proof if you ask him the correct questions through interrogatories. Furthermore, he might be forced to admit that there were no witnesses other than the victim, if you serve upon him the correct requests for admissions.
Depositions are usually necessary for summary judgment motions. It is unfortunately common for defense attorneys to attempt to defeat the purpose of interrogatories and requests for admissions by submitting vague references to evidence and denying even the most obvious requests for admissions. In such cases, the plaintiffs are required to take depositions. In “Taking the Dog Owner’s Deposition,” which is part of Dog Bite Lawsuit Forms for Plaintiffs’ Attorneys, attorney Kenneth Phillips has stated that dog owners frequently sympathize with the victim and take full responsibility. Unfortunately their attorneys work for the insurance industry and often will employ the unethical tactic of covering up the truth so that their insurance clients can avoid paying valid claims. For that reason, the attorney for the victim has to sit down with the dog owners and take their depositions. When the dog owners admit that they have no reason to believe that the victim caused the accident by provoking the dog, this sets the stage for a successful motion for summary adjudication.
By the same token, a victim might be attempting to bring a claim against somebody like a landlord who might not be responsible for a dog bite injury. The attorney for the landlord should submit interrogatories, requests for admissions, and requests for the production of documents which would establish facts such as the defendant is being sued only because of owning the land, the defendant had no duty to discover the presence of a dog on the property, and/or the dog had never bitten anybody before or behaved in a dangerous manner. In most states, these facts are fatal to the claim of a dog bite victim who is suing a landowner. And just like defense lawyers, overly zealous plaintiffs’ attorneys have been known to skip the necessary legal research, file suit against the wrong people, and then evade making honest answers to interrogatories and straightforward admissions of the inability to prove necessary elements of their cases. Depositions of plaintiffs and other witnesses can be necessary for the defense also.
A generic motion for summary adjudication on behalf of the plaintiff is included in the Dog Bite Lawsuit Forms for Plaintiffs’ Attorneys. This particular motion is based upon liability under a typical dog bite statute.
An interesting issue arises in many cases when the plaintiff’s attorney threatens to move for summary judgment against the defendants in a dog bite case. The defense attorney might respond informally by offering to admit liability in exchange for of an excess judgment. In other words, the insurance company indicates its willingness to admit liability provided that the victim agrees to take no more than the available insurance. This offer by the defense requires a tactical decision which attorney Phillips had to explain in the following e-mail message to a client:
We have to make an important tactical decision. This involves how the case is prosecuted. There is an up side and down side that have to be balanced against each other. I have a definite recommendation but this is the kind of thing that requires your approval.
As you know, the two basic issues in any kind of a tort case are liability and damages. A defendant might be liable, but the damages might be low. They might be even impossible to prove. On the other hand, one could have extremely high damages, without the defendant being liable. For example, a dog bite victim might be suing the owner of the property where the accident occurred, under circumstances where the landowner could not possibly be held liable.
Like any other case, yours presents a liability issue. As you know, the defense has technically denied that you are liable. By this I mean that they have preserved their right to contest liability. Whether they could prove that they are not liable is an entirely separate issue. They can contest it without being able to prove otherwise.
They have kept the door open on a variety of defenses. I hesitate to even describe these to you because they are from a form book and are mostly absurd. Their basic, technical defense was that the accident did not happen the way we said it did, implying that either there was no accident or for some other reason they are not responsible for it. This is a normal defense and they are allowed to say it even though it is not true. They alleged that you acted negligently and carelessly. They alleged that you provoked the dog and therefore assumed the risk of injury.
The rest of the defenses are things that they are allowed to say but which range from the inapplicable to the downright laughable. They allege that you sued them under fictitious names. The allege that your complaint was not worded correctly. They allege that you did not file your complaint on time. They allege that the law of old England applies and that under that law they are not liable. They allege that you were involved in a sport which had a known danger which you accepted. They allege that you yourself actually inflicted the wounds upon your face. And they allege that you did not need some or all of the medical treatment.
To understand the tactical decision involved here, you have to remember that the jury system introduces a certain degree of risk into every case, even the most clear case. We all know what happened in the O.J. Simpson case. A man who was obviously guilty was found not guilty because just about everything that could go wrong went wrong. Trial lawyers and everybody else who is familiar with the court system will always give the defendants a small chance of winning even the most overwhelming case against them. That applies to your case as well as to all the others. So while we are sure that liability is not really an issue in your case, there is always a chance that a jury can come to the wrong conclusion.
Now let me get to the current issue involving the tactics that I was alluding to. I have to tell you how we handle the liability side of a tort case. At this point we are allowed to bring a motion in court for something called “summary adjudication.” The generic term for this is “summary judgment.” You might have heard of it. “Summary” means without a trial or hearing. We are entitled to present the depositions and other court paperwork to the Judge in this case, and ask him to render a judgment of liability immediately because no sane jury would ever be able to reasonably conclude that the defendants are not liable.
I am reasonably sure that a judge would make that decision at this time. The motion involves a good deal of work on my part. But there are many reasons for us to bring this motion, and if it is successful then we will be taking away almost every last ray of hope for the defense. Their case will be limited to saying that we are wrong on the numbers. In other words, all they will be able to do is fight over how much money you are going to get.
So far, I have not described any downside to bringing the motion. However, the defense attorney and I took things a little bit further, and made things a bit more interesting. Instead of bringing the motion right away, I called him and said that I wanted the defense to simply admit that they are liable. The advantage to us is obvious, because we would avoid the risk of a judge denying the motion. The advantage to them of admitting liability is that they would avoid the cost of defending against the motion, and would avoid having to produce every last scrap of evidence in their defense on the liability issues. In other words, they basically save money if they simply admit it.
To make things interesting for us, the defense lawyer made us a counter offer. He said that they would admit liability if we would agree that, if a jury awards you more than the $1 million of available insurance, you will simply accept the insurance in that amount, and not go after the dog owners themselves for the excess judgment.
Now, you might be asking what the problem is. You might have no intention at all of ever proceeding against the dog owners as opposed to their insurance company. Well, that is not the point. This is where we get into the tactics. As I will explain, our ability to go after the dog owners themselves will greatly help us in working out a settlement with the insurance company.
The defense attorney is asking us to give up one of our most powerful tools against the insurance company itself. If we receive a judgment that exceeds the policy limits of $1 million, the insurance company most likely will be held to have violated the law, putting it in the position of possibly having to pay not only the excess judgment but also punitive damages that could range from hundreds of thousands to millions of dollars.
You see, there is another area of law that is floating around here which you might not have known about. It is the law that pertains to the obligations of insurance companies to protect the interests of their customers. What you usually hear about is that insurance companies use their billions of dollars in assets to hire thousands of lawyers to cruelly and unlawfully crush accident victims. Everything you hear is absolutely true. While the insurance companies get away with it 99% of the time, however, there is a body of law that occasionally make the industry’s strongarm tactics blow up in their face.
In the 1950s, the Supreme Court of the State of California led the way in holding that an insurance company can be sued by its customer when the company’s failure to settle a case within the policy limits results in an excess judgment against the customer. The California Supreme Court said that not only was this a breach of contract, but that it was a tort, and because it was a tort it subjected the insurance company to liability to its customer for compensatory damages and punitive damages. In the legal profession, we refer to such a case as being a “bad faith insurance case,” or simply a “bad faith case.” Reference is made to the bad faith of the insurance company in gambling the assets of its customer in order to increase the company’s profits. This legal doctrine is now that law throughout the country.
So let us get back to your case. There is a theoretical chance that a jury could award an excess judgment here. The insurance company has been collecting premiums to justify them paying a total of $1 million, so they want to avoid the possibility that a jury could award you, let’s say, $1.5 million which could make the insurance company liable for not only the $1.5 million but perhaps for another $2 million or $3 million in punitive damages.
Now, you are probably saying that this is all very theoretical, and why don’t we just get the concession about liability right away? The reason is that we are holding a big gun to their head right now. If we tell them that we want to settle for anything less than the policy limit, they will feel the pressure to take us very seriously because, if they fail to settle within the policy limits of $1 million, they stand to lose double or triple that amount.
They too are thinking of the O.J. Simpson case. Juries not only have been known to set the guilty free, but to award a victim too much money (as well as too little). It can go either way. The insurance industry spends a lot of money to convince people that runaway juries are a terrible and dangerous phenomenon, but in fact this is a sword that cuts both ways — against the victims as well as the defendants. Those of us who work in the system feel that it keeps all the players honest and that it promotes amicable settlements.
So, here is the decision that we have to make. Do we accept their offer to admit liability, and give up a good weapon to make them settle the claim for an adequate amount? Or do we decline their offer, and proceed with our motion for summary adjudication?
I recommend that we proceed by summary adjudication, and that we turn down their offer to accept liability in exchange for our waiver of an excess judgment. I feel strongly that this is the correct tactic. I cannot guarantee that we will win our motion for summary adjudication, just like I cannot guarantee that you will win your case. But I feel quite certain and quite hopeful that by turning them down we will be making the right decision for all the reasons mentioned above.