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Davila v. Derby (2018)

May 9, 2018

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Horvitz & Levy successfully convinced the Court of Appeal to reverse a $4.2 million jury verdict against our client, a contractor, because the plaintiff and a co-defendant subcontractor prejudiced the jury with repeated references to an indemnity agreement in the construction subcontract.

Short summary of case: DeSilva Gates Construction, L.P. was the general contractor for a road-widening project and Navajo Pipelines, Inc. was a project subcontractor. During construction, a DeSilva Gates employee driving a skip loader at 3-5 miles per hour rear-ended a pick-up truck manned by Navajo employees. Plaintiff Roberto Davila was seriously injured because he was riding on the back bumper of the truck, in violation of Navajo’s safety rules. Navajo’s project foreman, whose job it was to enforce those rules, was also riding on the back bumper with him. The truck’s driver, who was seated inside the cab, was uninjured. The subcontract between DeSilva Gates and Navajo provided that unless DeSilva Gates was solely at fault, Navajo would indemnify it in full for personal injuries to Navajo employees arising from the project. At trial, DeSilva Gates accepted vicarious liability for its driver and admitted fault, but claimed both Davila and Navajo were also at fault. Throughout the trial, both Davila and Navajo made it their mission to inform the jury that if it found either Davila or Navajo even 1 percent at fault, then under the indemnity agreement Navajo would ultimately have to pay for all of Davila’s damages and DeSilva Gates, which admitted liability, would ultimately pay nothing. This information was improperly communicated to the jury during voir dire, opening statements, improper witness questions in violation of a motion in limine, misleading and prejudicial jury instructions, and inflammatory closing arguments. As a result, the jury found DeSilva Gates solely at fault and allocated no fault to either Davila or Navajo. The Court of Appeal reversed and ordered a new trial on both fault allocation and damages, holding that information about the scope and operation of the indemnity agreement was both irrelevant to any issue the jury would decide in Davila’s tort action and highly prejudicial to DeSilva Gates.

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