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Procedural Posture

Procedural Posture

By: SMITH THOMPSON

Plaintiff downslope property owner sued defendant upslope property owner for damage from a rainstorm that flooded the downslope property with water, mud and debris, allegedly originating from a lemon grove on the upslope property. A jury of the Superior Court of San Diego County, California, awarded plaintiff $350,000 in damages, but found applicable the Right to Farm Act, Civ. Code, § 3482.5, nullifying the damage award. Plaintiff appealed.

Overview

The court of appeal held that the trial court did not abuse its discretion when it allowed defendant to amend her answer, on the date trial was to start, to allege a defense under Civ. Code, § 3482.5, because there was no prejudice; plaintiff filed a written opposition, and the trial court continued the trial date for more than 90 days and reopened discovery. The court also concluded a new trial was required because the verdict was inconsistent in finding that defendant was unreasonable in the ownership and control of the lemon grove but that § 3482.5 applied. That unreasonableness finding suggested that defendant did not operate the lemon grove in a manner consistent with proper and accepted customs and standards, as required for immunity under § 3482.5, subd. (a)(1). The court directed that on remand the issue of whether § 3482.5 applied should be teed-up first before the issue of negligence/comparative fault, and that the activity and/or operations alleged to be the nuisance and the nuisance itself should be defined for the jury. Parties’ litigation attorney appeal.

Outcome

The court reversed the judgment in favor of defendant and remanded the matter for a new trial.

Procedural Posture

Appellant, an insured employee, sought review of a summary judgment from the Superior Court of Los Angeles County (California), which dismissed her class action complaint against respondent insurer alleging that the insurer had violated its statutory duty under Health & Saf. Code, § 1374.55, to offer coverage for treatment of infertility in a group health plan it provided to the insured’s employer.

Overview

The insurer provided the employer with an annual renewal package that included an offer to pay a portion of the cost of infertility treatment up to a specified amount. The employer declined to buy coverage for infertility treatment. The insured employee presented evidence that the amount of coverage offered was not enough to address a typical plan member’s infertility and that different terms and conditions applied to other medical conditions covered by the plan. The court held that the insurer complied with § 1374.55 by offering coverage. The statute did not dictate the amount and cost of the coverage; rather, it left to mutual agreement between the insurer and the employer the amount and cost of the coverage, as indicated in § 1374.55, subd. (a). There was no requirement that an insurer provide full coverage for all expenses incurred in the course of infertility treatment. Although the preamble to § 1374.55 declared that infertility should be treated the same as other conditions, the court observed that because coverage for other conditions was not uniform, equating infertility with other conditions did not imply that a specific amount of insurance had to be offered to treat it.

Outcome

The court affirmed the trial court’s judgment.

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