Judicial Council of California Issues Opinion in Vince Moreci Vs. Scaffold Solutions Case
Targeted News Service
SACRAMENTO, California, Oct. 19 (TNSsro) -- The Judicial Council of California issued the following opinion (No. A161193):
VINCE MORECI, Plaintiff, v. SCAFFOLD SOLUTIONS, INC., Defendant and Respondent; STARSTONE NATIONAL INSURANCE COMPANY, Intervener and Appellant.
Vince Moreci sustained work-related injuries assertedly caused by his use of a scaffolding stairwell constructed by Scaffold Solutions, Inc. (Scaffold). Moreci received workers' compensation benefits that were paid by Starstone National Insurance Company (Starstone). Moreci, while represented by Boxer and Gerson, LLP (Boxer Gerson), filed a personal injury action against third party defendants, including Scaffold. Moreci settled the case. As part of the settlement, Moreci agreed to assume the defense of Scaffold for claims arising from Moreci's accident and pay any resulting judgment.
Prior to the dismissal of Moreci's action, Starstone intervened, seeking reimbursement from the defendants for the amount of benefits it had paid to Moreci. Boxer Gerson became associated co-counsel for Scaffold, who then filed an answer to Starstone's complaint in intervention. Starstone moved to disqualify Scaffold's attorneys on the ground they created a conflict of interest by representing Moreci in the underlying action against Scaffold, obtaining a settlement of that action, and then assuming the defense of Scaffold to Starstone's claims in intervention. The trial court held Starstone had no standing to seek the disqualification of counsel and denied the motion. Starstone appeals, asserting essentially the same arguments in support of standing it had raised below. We reject its claims of error, and we affirm.
The Parties and the Pleadings
In June 2015, Moreci, while employed by Hydra Ventures, Inc. as a plumber, fell and injured himself at a construction project site when he descended a scaffolding staircase with uneven stair risers. Fulton Street Construction, Inc. (Fulton) and Erik Liu were the general contractor of the construction project and an executive of Fulton, respectively. Fulton subcontracted with Stockham Construction, Inc. (Stockham) to install exterior framing for the project. Stockham, in turn, subcontracted with Scaffold to construct sets of temporary scaffolding stairs for the project.
Starstone was the workers' compensation carrier for Moreci's employer and paid Moreci $236,945.97 in benefits.
In May 2017, Moreci, represented by Boxer Gerson and Gary Roth, a member of the law firm, filed a personal injury complaint against Fulton and Liu. Fulton and Liu filed a cross-complaint for indemnification and contribution, eventually amending the cross-complaint to add Scaffold as a cross-defendant. Scaffold, in turn, filed a cross-complaint against Stockham for indemnification and contribution. Moreci did not immediately serve Starstone with a copy of the complaint.
In October 2019, Boxer Gerson gave Starstone notice of the November mediation date and copies of the underlying pleadings in the case, along with a request for further information concerning the workers' compensation benefits it had paid to Moreci. Starstone's attorneys attended the mediation on November 19.
On November 21, a notice of settlement of the entire case was filed.
In January 2020, Starstone filed a complaint in intervention against Scaffold and Stockham seeking reimbursement for workers' compensation benefits it had paid to Moreci.
On February 25 and March 11, the trial court entered the dismissals of the complaint and cross-complaints.
On June 2, Scaffold filed a notice that its attorneys, Wolfe and Wyman, LLP, were associating attorneys Gary Roth and Eric Ritigstein of Boxer Gerson as co-counsel. Scaffold then filed an answer to Starstone's complaint in intervention, asserting numerous affirmative defenses including the contributory negligence of Moreci's employer.
On June 29, Stockham filed a cross-complaint against Moreci for breach of written contract, express indemnity, and declaratory relief. The claims were based on a term in the settlement agreement, whereby Moreci agreed he "will fully satisfy and obtain the release of, and indemnify, defend and hold harmless Defendants [CROSS-COMPLAINANT] from, any lien, claim, loss, demand or cause of action, by any parties, agencies, insurers (including but not limited to medical insurers and workers' compensation insurers such as Starstone), governmental entities, or others claiming to have suffered damage, loss or expense by reason of the matters at issue in the Subject Action . . ." (usually referred to herein as "indemnification provision")./1
Moreci, through his counsel Boxer Gerson, filed an answer to Stockham's cross-complaint.
The Disqualification Motion
On July 16, Starstone filed a motion to disqualify all of Scaffold's attorneys of record. The motion was based on the indemnification provision. Specifically, Starstone argued Moreci and Boxer Gerson "switch[ed] sides" in the same lawsuit by "alleg[ing] fault and liability against [Scaffold] to obtain settlement," and then, once Starstone filed its complaint-in-intervention, aligned themselves with Scaffold to use "intimate . . . case knowledge and possibly privileged information" gained by counsel in an "attempt to defeat [Starstone's] recovery claim (and thus keep settlement funds and achieve a double recovery specifically denounced by the Legislature) . . . ." Starstone asserted counsel's "switching sides attempt has infected . . the litigation," which Starstone claimed was sufficient to give it standing as a non-client, pursuant to a Federal District Court case, Colyer v. Smith (1999) 50 F.Supp.2d 966 (Colyer).
Moreci and Scaffold separately opposed the motion. Moreci argued Starstone lacked standing because Starstone had no "attorney-client, confidential, or fiduciary relationship with counsel." Moreci and Scaffold each maintained Starstone also failed to establish the standing requirements under the exception in Colyer.
Starstone replied to the opposition, refuting the contention it lacked standing based on its right under the workers' compensation statutes (Lab. Code, Sec. 3850 et seq.) to seek reimbursement for compensation benefits it had paid to Moreci. According to Starstone, it had standing because its reimbursement right constitutes "a clear, concrete and particularized interest" that would be invaded by Boxer Gerson's continued participation.
After conducting a hearing on August 11, the trial court denied Starstone's motion to disqualify opposing counsel for lack of standing. The trial court explained Starstone had failed to show it had an attorney-client relationship with Scaffold's attorneys. It further found Starstone had no standing even under the "minority view" recognized in Colyer and cited by Starstone, because Starstone failed to show an "invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." At most, Starstone alleged merely a generalized interest in "the court's obligation to ensure the fair administration of justice," an interest insufficient "to give a non-client standing."
* * *
1/ Stockham's cross-complaint is the only document in the record in which the terms of the indemnification provision appear; a copy of the settlement agreement is not included. Also, the indemnification provision as alleged refers to Moreci's agreement to defend and indemnify as to "Cross-Complainant" Stockham only, and not any other defendants. However, we will assume, as the parties do, that Scaffold was a party to the settlement agreement and Moreci agreed to defend and indemnify Scaffold. Furthermore, we note that our resolution of this appeal does not require us to interpret the indemnification provision or address whether it is enforceable, and we decline Starstone's invitation for us to do so.