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Cases of Note

Ayala Boring, Inc.  v. HPS Mechanical, Inc.

San Diego County Superior Court Case No: 37-2011-00092049-CU-CO-CTL

Tried: 2015 (10 days) – Timothy D. Lucas

Retained By: Travelers Indemnity Company of Connecticut to defend Ayala Boring, Inc. against the Cross-Complaint for damages by HPS Mechanical, Inc.

Facts: Ayala Boring, Inc., a specialty horizontal tunneling contractor, was hired by HPS Mechanical, Inc. to bore under the Interstate 8 freeway in the Mission Valley area of San Diego and to install an encased 36” sewer line as part of an $11.5 million public works project. Ayala Boring initiated the lawsuit through its personal counsel seeking to recover sums allegedly due to it for extra work required as a result of differing/unanticipated site conditions. HPS Cross-Complained against Ayala Boring (Breach of Contract; Express Indemnity and Negligence) seeks to recover approximately $200,000 in damages plus attorney fees for the cost of repairing damage to the westbound lanes of Interstate 8 resulting from Ayala Boring’s work.  HPS claimed it was entitled to withhold payment for the extra work due to damages caused by Ayala Boring.  Ayala denied that it was at fault in connection with the damage to the I-8 freeway and denied any liability to HPS.

Outcome: Ayala Boring received a defense verdict on all causes of action in HPS’ Cross-Complaint. Ayala Boring is entitled to recover its attorney fees and expert witness fees as the prevailing party.  The determination of the amount of the fees and costs to be awarded to Ayala Boring is pending a final determination by the Court. Ayala Boring was also awarded $249,470 on its Common Count cause of action for Money Had and Received under its Complaint.


Gabor Kadas et al. v. Mulvey Custom Builders, Inc.

San Diego County Superior Court, Case No. 37-2008-00091412-CU-BC-CTL

Tried: 2010 (7 days) – Timothy D. Lucas

Retained By: Allied Insurance to represent Defendant Mulvey Custom Builders

Facts: Contract dispute / Mechanics lien dispute involving a $1.67 million dollar custom home built for the Plaintiffs by Mulvey Custom Builders.

Outcome: Judgment for Client (Mulvey Custom Builders). Mulvey was awarded over 2 million dollars in costs of suit, expert witness fees and attorney fees. Mulvey was originally given a defense verdict on the warranty and breach of contract causes of action but was found to be negligent with regard to some damage claims. The negligence verdict was overturned by the Trial Court pursuant to Mr. Lucas’s Motion For Judgment Notwithstanding The Verdict.

Gary Green, et al. v. Jim Henry Construction, Inc.

San Diego County Superior Court, Case No. 37-2008-00052469-CU-BC-NC

Tried: 2010 (7 days) – Timothy D. Lucas

Retained By: National Fire & Marine Ins. Co. to represent Defendant Jim Henry Construction, Inc.

Facts: Construction defect action involving a commercial building and retaining wall. Alleged damages in excess of 2 million dollars. Jim Henry Construction, Inc. provided engineering services and stability calculations for a crib lock retaining wall that failed. The Plaintiffs settled with all Defendants except for Jim Henry Construction. The lowest settlement demand to Jim Henry Construction prior to trial / verdict was 1 million dollars.

Outcome: Defense verdict / judgment in favor of Client (Jim Henry Construction, Inc.). Client was awarded costs of suit and expert witness fees of over $35,000.

Kim Melanie Morton, et al. v. Dana Spotts, et al.

San Diego County Superior Court, Case No. 37-2008-00099933-CU-OR-EC

Tried: 2010 (8 days) – Timothy D. Lucas

Retained By: Nationwide Insurance to represent Defendant Dana Spotts

Facts: Neighboring landowner dispute involving claims against Client for Quiet Title; Ejectment; Trespass; Slander of Title; Private Nuisance; Intentional Infliction of Emotional Distress and Tortious Interference with Contract. Plaintiff alleged, among other things, that Client had threatened her pets, had shot out porch lamps, thrown rocks through her window, driven her car toward Plaintiff in a threatening manner, had poisoned her plants, had moved property line monuments and markers, had built a fence on Plaintiff’s property and had claimed portions of Plaintiff’s property as her own and had repeatedly harassed Plaintiff. Plaintiff’s initial settlement demand was for $500,000.00. That demand was lowered incrementally to $425,000 and then to $200,000 at the commencement of trial. During trial, Plaintiff lowered the demand to $180,000. Pursuant to Nationwide’s authority, Plaintiff was offered $15,001 prior to trial. That offer was raised to $25,000 during trial in response to Plaintiff’s demand for $180,000.

Outcome: Prior to trial, Client’s Motion for Summary Adjudication was granted as to Plaintiff’s Quiet Title cause of action. During trial, the Court granted Mr. Lucas’s Motions for Partial Nonsuit as to Plaintiff’s causes of action for Ejectment, Slander of Title and Tortious Interference with Contract.

Client was given a defense verdict on the Intentional Infliction of Emotional Distress cause of action but Plaintiff was awarded $5,519 in economic damages on her Trespass cause of action and $7,500 in non-economic damages on her Nuisance cause of action (Total of $13,519 in compensatory damages). In a second bifurcated punitive damages phase, Plaintiff as awarded an additional $15,000 in punitive damages against Client. The total damage award against Client was $28,519, compared to the lowest settlement demand of $180,000.

Plaintiff also moved for a permanent injunction against Client based on the jury’s verdict. The Court denied that motion.

The Plaintiff filed an appeal but the Court of Appeal affirmed the judgment.  Mr. Lucas handled the case through the appeal.

Bar-J.P., Inc. v. Morris Derey

San Diego County Superior Court, Case No. 37-2007-00052678-CU-CO-NC

Tried: 2010 (4 days) – Timothy D. Lucas

Retained By: Plaintiff Bar-J.P., Inc.

Facts: Breach of Contract action involving the purchase of a recreational vehicle for $67,000. Defendant alleged that he had been fraudulently induced into entering into the contract, that Plaintiff had lied to him about the terms of the contract and that the contract was unenforceable. Defendant stopped making payments after a few months and offered to return the RV.

Outcome: The jury awarded Client damages of $59,100.00 (full amount of the claim) and the Court also later awarded Client $25,247.50 in attorney fees and $4,279.41 for ordinary costs of suit and $8,095.85 for pre-judgment interest. Client’s total judgment is for $96,722.76.

Great American Insurance Company v. ACE American Insurance Company et al.

Alameda County Superior Court, Case No. RG 06-268293

Kevin J. McConville

Retained By: Great American Insurance

Facts: Declaratory Relief/Equitable Contribution action against additional insured carrier ACE American involving the bodily injury obligations under Cingular Wireless’s national general liability policy with a 5 million dollar deductible endorsement (fronting policy).

Outcome: Obtained both defense and indemnity participation through ADR case resolution.

PMA Capital Insurance Company v. Aluminum Technology, Inc.

U.S. District Court for the Central District of California, Case No. ED CV 05-00653

Kevin J. McConville

Retained By: Intervenor Plaintiff Great American Insurance Company

Facts: A multi-insurer claim involving deductible recoveries on 103 underlying construction defect cases.

Outcome: Obtained full deductible recovery on all Great American claim files following successful Malone dismissal motion.

Rancho Valencia Resort v. Red Tail Associates, et al.

San Diego County Superior Court, Case No. GIN 023774

Kevin J. McConville

Retained By: Rancho Santa Fe Farms Golf Club

Facts: A 20 million dollar adjoining landowner nuisance claim involving surface water and subterranean water issues.

Outcome: Obtained a successful ADR resolution.

USF Insurance Company v. Michael Barry Evans, et al.

Riverside County Superior Court (Indio), Case No. INC 054406

Kevin J. McConville

Retained By: USF Insurance Company

Facts: A Declaratory Relief/Equitable Contribution action involving a 2 million dollar fire loss.

Outcome: Obtained a successful ADR resolution.

Liberty Mutual Insurance Company v. Hendrickson Roofing, et al.

Orange County Superior Court, Case No.817342.

Kevin J. McConville

Retained By: Beven-Herron, Inc. (framer/trusses)

Facts: 1 million dollar commercial property damage/subrogation claim.

Outcome: Negotiated a dismissal with prejudice in return for a waiver of costs.