Miceli Unpublished - Now Where are We?

Saturday, October 22, 2005 | 0

by Jake Jacobsmeyer

The California Supreme Court issued its order denying the petition for hearing filed by the California Insurance Guarantee Association (CIGA) in the so called Remedy Temp cases, thereby rendering the Court of Appeal decision final in this matter.

However, the Court also ordered the decision of the Court of Appeals not be published. The court does not explain its decision to depublish a decision and therefore we do not know if the court disagreed with some specific portion of the lower court decision or the entire rational. We do know that the request for depublication came from CIGA undoubtedly in the hope that in such a move, that entity could bring the same issue up in a different line of cases to obtain a more favorable decision.

While the finality of the decision is helpful in the specific cases involved, by depublishing the Court of Appeal opinion, the Supreme Court has left the industry without guidance in this complex issue. The parties had identified this case as a test case to determine the rights of the parties in a series of cases with virtually identical issues, in the hope that a final decision would provide a basis for defining the rights for the industry. However by depublication the Supreme Court has taken away the ability of parties, other than those specifically involved in these cases, to rely on the Appellate Court's reasoning.

The net effect is that CIGA will now get to re-litigate this issue over again in a different case with the hope of a more favorable result. CIGA has certainly shown that it is willing to repeatedly take the same issue to the appellate courts even in the fact of unfavorable decisions as it did in the Weitzman and Hooten cases involving joint and several liability awards. Weitzman and Hooten represented the 3rd and 4th appeals on the same issue, with CIGA having lost the first two including a WCAB en banc decision (Gomez v Casa Sandoval et al).

It is unfortunate that the Supreme Court could not simply let the well reasoned decision of the Court of Appeals stand or in the alternative, accept the case for hearing and issue a decision. By removing the ability to cite the existing decision as authoritative law, the Court has left the industry in a quandary that will have to wait for another round of litigation on this issue. Some other case will have to serve as the defining decision for the rights of the parties in this situation.

We are nowhere. It's back to square one.

The Supreme Court order can be located at: http://appellatecases.courtinfo.ca.gov/search/dockets.cfm?dist=0&doc_id=389714.

By attorney Richard "Jake" Jacobsmeyer, managing partner of the Concorde office of Adelson, Testan, Brundo & Popolardo. Jake can be reached at richardjacobsmeyer@atblaw.net.

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