Tuesday, July 30, 2002
C.A. Overturns Bad Faith Judgment, Says Lawyer’s Comment Improper
By KENNETH OFGANG, Staff Writer/Appellate Courts
An attorney’s comment that alleged misrepresentations by his clients were no different than the trial judge’s practice of allowing jurors to come to court and tell their employers they were on jury duty on days the court was not actually in session was improper and prejudicial, the Court of Appeal for this district ruled yesterday.
The comment by attorney Ian Herzog “crossed the line,” Los Angeles Superior Court Judge Aurelio Munoz—sitting on assignment in Div. Seven—wrote for a divided panel. As a result, a judgment for nearly $10 million against Allstate Insurance Company, the product of a 33-day trial, must be reversed, the jurist said.
Herzog and his Santa Monica-based firm represent Fareed and Rashiba Cassim, whose $174,000 Palmdale was rendered uninhabitable as a result of a 1990 fire and eventually lost to foreclosure. The parties agree that the fire was arson, but the insurer suggested the Cassims were responsible while Herzog claims the perpetrators were neighbors motivated by the fact that the Cassims are Iranian.
Allstate paid the Cassims a $10,000 advance for living expenses shortly after the fire. The Cassims later asked for $88,000 for repairs, $44,000 for replacement of contents, and an additional $30,000 for expenses.
The company said the repair estimate was inflated, and offered $34,500, which the Cassims accepted as foreclosure loomed. The contents claim was rejected for lack of adequate documentation, and the Cassims rejected Allstate’s offer of $7,000 for additional living expenses.
The couple declared bankruptcy in November 1991 and filed their bad-faith suit the following month.
Allstate accused the Cassims of falsifying receipts and claiming to have stayed in motels when they were really staying with relatives. The company also presented evidence that the Cassims were having serious financial difficulties at the time of the fire and were unable to cover their mortgage payments and usual living expenses.
But Herzog told jurors that the Cassims were being unfairly attacked, and analogized to what might happen if any of the jurors were wrongfully discharged and sued:
“And your employer does what Allstate has done here is they look under every rock you were ever under….And they go and they do a check and they say, oh, you were on jury duty in a case called Cassim. Okay. And they say you were supposed to be on jury duty but there’s a couple days in which there wasn’t court, but you said you were on jury duty and we paid you. That’s a misrepresentation.”
Defense counsel’s objection was overruled, and Herzog continued:
“And you say but, but, but Judge Cherness”—retired Los Angeles Municipal Court Judge Harold Cherness, sitting on assignment—“said it was okay. He says what I was doing was appropriate. And he says, no, you intentionally misrepresented. I didn’t misrepresent anything. I thought that was the right thing to do.”
Jurors awarded $9.873 million, including $5 million in punitive damages.
But Munoz said Herzog committed misconduct “by implying to the jury that since the court had sanctioned lying to the jurors’ employers, it was permissible for the Cassims to lie to their insurance company,” and to ask the jury “to use a subjective judgment rather than rule impartially based upon the evidence.”
The misconduct was serious, he added, because the insurer “had the right to have a decision made without having the jury being polluted with snide insinuations that some of them might be committing judicially — approved fraud,” and because Herzog made the comment in rebuttal, leaving Allstate with no way to respond after its objections were overruled.
Justice Fred Woods concurred, but Justice Earl Johnson Jr. dissented.
Even if the argument was improper, the dissenting jurist argued, it is not likely to have affected the verdict.
“In essence, Allstate is asking us to reverse this jury verdict for what is contained on less than 2 pages out of over 15, 000 pages of transcript in this trial,” Johnson wrote. “Worse, the real objection appears to be for only two words, ‘Judge Cherness,’ out of several hundred thousand words uttered during the six weeks the jury was hearing this case.”
The court, he said, should defer to the trial judge’s conclusion that there was no prejudicial error.
The case is Cassim v. Allstate Insurance Company, B139975.
Copyright 2002, Metropolitan News Company