Tuesday, November 7, 2006
Attorney for Woman Widowed at Municipal Air Show Calls Demand for Litigation Costs ‘Mean’, ‘Vile’
By TINA BAY, Staff Writer
The attorney for a widow whose husband was killed in an air show at Livermore Municipal Airport expressed outrage yesterday at the city’s recent demand for litigation costs.
San Mateo lawyer Terry O’Reilly told the MetNews he was “shining a little light” on a “vile” move by Los Angeles attorney Ralph LaMontagne Jr. to recover $41,305.72 in costs for Livermore’s insurer, AIG Aviation, Inc.
“This guy loves to work in the dark,” O’Reilly said “I told him I wasn’t going to let him do this behind closed doors.”
AIG had wholly funded the city’s defense against claims by Ellen Dixon that it was partly responsible for the 1995 helicopter crash that killed her husband and left her crippled. After losing at trial and again on retrial, the city had its liability judgment reversed by the First District Court of Appeal last February, the court ruling that the city had not breached any duty in tort.
In a succinct letter dated Oct. 26, LaMontagne, of Shaw, Terhar & LaMontagne, told O’Reilly that Alameda Superior Court Judge Ronald M. Sabraw filed an amended judgment in the case on Oct. 23 to reflect the appellate ruling. The defense lawyer requested that a check promptly be made payable to his client.
Calling the demand “mean,” O’Reilly said LaMontagne had “no reason” for taking money from Dixon.
“I’ve probably handled over 5,000 cases in my career and I’ve never, ever heard of a defendant doing this,” O’Reilly said. “We always waive the costs. I don’t know who it is in the city who makes the decisions, but there’s some jerk who’s made this call.”
Clarifying that the city had nothing to do with the demand, LaMontagne retorted that his client was simply trying to recover a very small fraction of the large amount it spent defending what it considered to be a frivolous claim.
“There’s nothing personal at all,” he said. “The bottom line is that we have rules in this state that the prevailing party is entitled to costs, and those rules don’t state that only a prevailing plaintiff is entitled to costs. They say that the prevailing party is entitled to costs.”
But O’Reilly pointed out his own client had waived costs from the helicopter’s uninsured pilot because the amount would have bankrupted him.
LaMontagne remarked that waiver or enforcement of a cost bill were both equally legitimate, and entirely the client’s prerogative.
“We were simply attempting to deal with this cooperatively,” he explained, noting that no formal collection proceedings have been initiated yet. “Mr. O’Reilly made it abundantly clear that cooperatively was not the way he wanted to proceed.”
O’Reilly said Dixon, whose only asset is her house in the San Mateo County community of Brentwood, would be “out on the street” if forced to pay AIG’s costs. While he would not disclose Dixon’s total recovery from all defendants, he said that after squaring away legal fees, she walked away from the suit with just enough money—“a few hundred thousand”—to make the down payment on her current residence.
In her 1995 action, Dixon sued numerous defendants including the city, the helicopter’s pilot, the company that supplied the helicopter, and Wings for Charity, the nonprofit company created by the city to manage the air show. She presented evidence at trial that she and her husband were aboard the helicopter taking a paid five-minute sightseeing tour when it crashed, that the helicopter crash was caused by a lack of fuel, that the pilot was inexperienced with that particular type of aircraft, and that the crash occurred over difficult terrain.
After losing at trial, all defendants except the city settled with Dixon. Upon retrial as to the city, the plaintiff recovered $6.1 million in damages.
Div. Four of the First District Court of Appeal ruled that the city was not liable because Wings was not responsible for fueling the plane or for deficiency in the pilot’s training.
The case is Dixon v. City of Livermore, Alameda Superior Court case number C771269.
Copyright 2006, Metropolitan News Company