Metropolitan News-Enterprise


Thursday, June 3, 2010


Page 3


C.A.: Check Issuer Had No Duty in Mix-Up Between Payee and Bank


By STEVEN M. ELLIS, Staff Writer


A Los Angeles man who suffered a seizure while jailed for several days after his bank thought the disability compensation check he was trying to cash was stolen cannot sue the check’s issuer for failing to contact the bank upon learning of the mix-up, this district’s Court of Appeal ruled yesterday.

Div. Three in an unpublished opinion said that the issuer, Truck Insurance Exchange, had no duty to Rolando Polanco after receiving a call about the incident from his girlfriend, and affirmed an order dismissing Polanco’s claims for negligence and negligent infliction of emotional distress.

Truck Insurance was the workers’ compensation insurance carrier for Polanco’s employer, and issued Polanco a check for disability compensation which Polanco attempted to cash May 3, 2006, at a Bank of America branch.

Taken to Jail

When Polanco failed to show to the bank’s satisfaction that he was the true payee, police were summoned, and Polanco was arrested, handcuffed and taken to jail. Polanco suffered from a neurological seizure disorder caused by previous trauma, and the incident triggered a seizure, he alleged.

Meanwhile, Polanco’s girlfriend contacted one of Truck Insurance’s agents and employees, Kathleen M. Quinn, that day to advise about Polanco’s problem. However, Polanco alleged, Quinn made no effort to contact the bank to verify the check’s authenticity.

Polanco was eventually released, he said, after Truck Insurance “belatedly provided information about the genuineness of the check to the Los Angeles Police Department which [it] could easily have provided to the bank when Plaintiff’s friend called Kathleen Quinn on May 3, 2006.”

Polanco sued Truck Insurance, contending that he incurred medical bills and severe emotional distress as a result of Truck Insurance’s negligence and failure to timely provide information to the bank, but Los Angeles Superior Court Judge Ronald M. Sohigian sustained a demurrer and dismissed the action.

No Special Relationship

On appeal, Justice Patti S. Kitching said that Sohigian acted correctly because Truck Insurance had no duty to take affirmative action where it had no special relationship with Polanco.

Drawing a distinction between misfeasance—which Kitching indicated exists when the defendant is responsible for making the plaintiff’s position worse—and nonfeasance, which she said is found when a defendant fails to aid the plaintiff through beneficial intervention, the justice said that liability for nonfeasance was limited to situations involving a special relationship creating a duty to act.

She also wrote that there was no such relationship between Polanco and Truck Insurance. Polanco claimed that the defendant had a statutory duty to call the bank under Labor Code Sec. 4651(a), giving rise to a special relationship, but Kitching rebuffed him, writing: “This statute…says nothing about an insurance carrier’s obligation to call a bank. Rather, it deals with the manner of payment.”

Kitching opined that the court need not address seven traditional factors for finding a duty set forth in Rowland v. Christian (1968) 69 Cal.2d 108—foreseeability of harm, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved—but she did so anyway, and similarly concluded that Truck Insurance had no duty to Polanco.

Direct Inquiry

She also noted that the court was not deciding whether Truck Insurance would have had a duty if the bank had called Truck Insurance directly to inquire about the genuineness of the check.

Presiding Justice Joan D. Klein and Justice Richard D. Aldrich joined Kitching in her opinion.

Polanco was represented on appeal by Pasadena attorney Anthony Telleria, while Truck Insurance was represented by Johnna Hansen and Calvin Rose of the Law Offices of Tharpe & Howell in Sherman Oaks.

The case is Polanco v. Truck Insurance Exchange, B216128.


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