Judge: Mark H. Epstein, Case: SC127208, Date: 2024-11-22 Tentative Ruling

Case Number: SC127208    Hearing Date: November 22, 2024    Dept: I

This is a case about allocating settlement proceeds.  The case was originally brought by Miriam Sharkh (the court will use first names throughout due to similar last names; no disrespect is intended) against defendant, an insurer who Miriam alleged cut off her health care coverage for improper reasons at a time when she had significant medical needs and expenses, including one covered child, Liam, who had a life threatening illness, and her other child, Levi.  After some number of years, Liam succumbed to the illness and has passed away.  Miriam sued on her own behalf as well as on behalf of Liam and Levi.  Liam’s and Levi’s father is Benjamin Holfeld.  Benjamin and Miriam are not married or together at present.  At one point, defendant expressed a concern that Miriam could not enter into settlement discussions because of a potential conflict of interest between her and Liam’s interest and Levi’s interest.  Specifically, there was a concern that defendant would settle but Levi or someone representing Liam’s interest might later sue and claim that the settlement was no bar.  Following a series of hearings, the court found enough of an issue to allow Benjamin, who had custody of Levi, to represent Levi’s interests as well as those of Liam.  (The court wants to thank again minor’s counsel, Arthur Lin, who aided the court in those matters even though minor’s counsel was not compensated for that effort.)  The parties eventually agreed that the plaintiffs (all of them) could settle with the defendant for a sum certain and the court would approve the amount as sufficient, thereby allowing the defendant to buy peace.  However, Miriam, Levi, and Liam (through Benjamin) could not agree on how the sum would be divided.  To move things forward, all parties agreed that if the court found the total to be sufficient, the court could approve the settlement and release the defendant.  The court examined the settlement and concluded that the total sum was sufficient.  The court warned all of the parties, though, that although the total was sufficient, it was possible that all or almost all of the sum could be awarded to Levi or Liam  or Miriam leaving little for Miriam or the other child or both.  Everyone agreed to that.

 

The court was hopeful that the parties would be able to work among themselves to achieve a fair and equitable division of the total amount available.  Alas, such was not to be the case.  Miriam believes that she should receive 95% of the recovery, with 5% going to Levi and nothing to Liam.  Benjamin, on the other hand, believes that 90% should go to Levi, 5% to Liam, and 5% to Miriam.  A sad pattern has developed.

 

The court has read the papers in the case.  The court is not, at this juncture, going to make specific awards.  But what the court will do is set forth its thinking as to the priorities of recovery.  Preliminarily, there is a question of Miriam’s standing.  The court finds that she does have standing.  For the reasons set forth below, she has claims that it is proper for her to bring.  While she is not able to assert Liam’s claim or Levi’s claim now that Benjamin has been designated the GAL, she can still assert her own claims.  She was a named insured under the policy, and both Liam and Levi were minors under her care during the relevant time.  That is more than enough for her to seek a recovery for her own injuries as well as to seek a bad faith recovery against the defendant.  (Hatchwell v. Blue shield of California (1988) 198 Cal.App.3d 1027.)

 

The court believes that the plainest and clearest damages or recovery, and therefore the first priority, would be medical expenses that ought to have been covered for Liam or Levi but were not, and for which Miriam paid out of pocket for treatment for Liam or Levi.  That sum will bear interest from the date it was actually paid until now.  Of equal rank will be any sums that ought to have been covered and for which Miriam or Benjamin remain liable.  In other words, if there is a hospital bill for $5000 and it has not been paid but Miriam or Benjamin can be sued, that also ought to have first call on the proceeds.  Of course, any such sum will not bear interest and will be paid directly to the creditor.

 

The next priority would go to medical bills that ought to have been covered for Miriam but for which Miriam had to pay out of pocket.  This is NOT for medical bills that Miriam incurred because she had to undergo the difficulty of dealing with Liam’s illness or the like.  It is a direct bill for a service that was in fact covered and for which she was in fact billed and that she did in fact pay.  That sum will bear interest from the date of payment.

 

Next would be for medical bills that ought to have been covered for Miriam and that Miriam did not pay but for which she is still liable as a legal matter.  Those sums do not bear interest and would be paid directly to the medical creditor.

 

The court believes that this ought to cover any outstanding medical bills that were directly incurred and for which there was or must be a payment. 

 

The next priority will go to medical expenses that have been or will be incurred for Levi or Miriam directly caused by defendant’s failure to pay at an earlier date.  An example might be a situation where minor covered surgery could have corrected a problem and Miriam was set to have the surgery but had to cancel it due to a lack of funds.  By the time Miriam had the funds, hypothetically, minor surgery was no longer an option and major surgery was required and Miriam had to go out of pocket to have the surgery.  The same is true of Levi.  The court is not sure that there actually are any expenses that fit within this category, but to the extent that there are, they would be next.  The party claiming this recovery would have the burden of proving the causation.

 

The next priority would be therapy, if any, that can be tied directly to additional emotional trauma that Miriam or Levi had to go through due to the failure to pay insurance proceeds.  Miriam notes that Levi was very young when all of this happened, suggesting that he has little or no trauma related directly to the insurer’s conduct (as opposed to Liam’s underlying condition).  As to trauma that Miriam has, the court views amounts with some skepticism.  The court would want to see actual past therapy bills—not bills for therapy that is soon to start—as well as evidence directly from the therapist that the therapy relates to the insurer’s conduct and not underlying problems, such as losing work, Miriam’s other medical issues, or the general trauma from Liam’s or Levi’s condition.

 

That should deal with medical issues writ large.  The next topic is other damages.  Miriam claims damages for emotional distress and lost income.  Levi claims damages for emotional distress.  The court puts aside for a moment punitive damages.

 

Miriam claims a whole lot of lost wages.  The court is not fully convinced.  The court agrees that Miriam likely had to give up some work to be able to care for Liam.  The court would be inclined to award her the lost income related to Stanford for the time that she lost the income through the time of Liam’s death plus one year or the time she no longer had custody of him, whichever is first.  The notion of Liam’s death plus one year is to recognize the fact that her time to work was limited due to Liam’s condition, and that it would take some time to find new employment after he passed.  Miriam apparently continued work at the London School of Economics.  The “extra classes” that Miriam might have taught would require more proof than is currently before the court.  And the film income is likely speculative at best.  The court has some experience in the industry, and profits from documentaries are scarce to put it nicely.  While the court recognizes that Miriam’s film claims are not profit-related but rather go to payments that she would have received from funders who wanted to make the film, even that is speculative.  The court does not see strong evidence that supports her claim that she would have made $250,000 directing these works.  Miriam also seeks a significant amount of money for lost future earnings because she will never be able to work fully again.  The court is not convinced that these future lost earnings—long past the date of Liam’s death—can be attributable directly to the carrier’s failure to pay benefits.  The court is not saying that were the matter to go to trial Miriam could not prove this up, but it is to say that the proof as it stands is inadequate and the court would need to be convinced about what appears to be speculative damages.

 

As to emotional distress damages (which are next in the waterfall), the court is not overwhelmed.  Liam is not entitled to any under the law.  As such, any emotional distress would be recoverable only by Miriam and Levi.  The court agrees with Miriam that Levi was young and that the bulk of the burden would fall on Miriam during the period in question.  Thus, the court would be inclined to award them 2:1 in favor of Miriam, but capped at an amount equal to the other recoveries.  That ratio, though, is not set in stone.  The court would need to see and hear the expert testimony on the subject.  This is just a rough approximation given the rather thin state of the record at the moment.  It might change (a lot) following an evidentiary hearing.

 

If there is any money left after that, the court would be inclined to award it in the same ratio between Miriam and Levi. 

 

The court would not award punitive damages here.  Punitive damages are designed to punish the wrongdoer, not compensate the injured party.  Here, the wrongdoer is gone.  Awarding or dividing punitive damages per se does nothing.  Further, the court has no idea where the punitive damages would go to the extent they went to Liam’s estate.  Would they go to Miriam?  Benjamin?  Levi?  The court has no idea.  Without such knowledge, that makes little sense.  Nor does the court believe that awarding them to Miriam makes sense.  But it is probably of no moment.  The court suspects that there will be a shortfall somewhere, and if that is the case, the court is inclined to view a punitive damage allocation as one that is less important than the other recoveries.  The court would, though, be willing to at least consider a different outcome if there turns out to be a surplus.

 

The foregoing discusses the settlement proceeds, but not costs of suit or fees.  Costs of suit should be paid off the top.  As to fees, it is a bit harder.  Miriam’s counsel represents Miriam alone, but for many years represented Miriam’s interest as well as the interests of Levi and Liam.  Through Miriam’s counsel’s efforts the case was litigated through the jurisdiction phase and the FNC phase—and successfully, too, including appellate proceedings that resulted in a reversal of the trial court’s judgment.  The court would think that Miriam’s counsel ought to be compensated for that effort and time, and not out of Miriam’s share alone.  Rather, the court believes that because the vast bulk of that effort occurred before others got involved, at least until the time that defendant brought its motion concerning whether it could settle, Miriam’s counsel ought to get at least a lodestar type of recovery and off the top for the period up until that point.  After that, all counsel will have to fend for themselves out of the share awarded to their respective client or clients.

 

The court has deliberately not done a deep dive into the supporting papers detailing the precise calculations.  The court notes that in many respects, if push came to shove, experts would need to be retained as to many of the issues raised by this case, most especially things like lost income, tracing future medical payments (if any) and tying them directly to defendant’s conduct, and even emotional distress, and the court would likely need to hear live testimony.  The court very strongly suspects that at some point in the future (or the past) the parties will have come to a point of diminishing returns.  The court is hoping that with the foregoing thoughts, the parties will be able to reach an accord.  The court will say right off the top that it would be surprised if either Miriam or Levi wound up with 90% or 95% of the income.  (The court does agree that to the extent that Levi recovers, at least much of the money ought to go into a blocked account.)  Now would be a good moment to settle.

 

In the meantime, the court will set a status conference for some months out to see if the parties are making progress.