Joe Smith is employed at Everyman’s Automobile Mechanics in Hayward, California two
blocks from the campus of Cal State East Bay. Joe rides his beloved Harley Davidson
motorcycle to work every day.
Joe maintains liability insurance coverage on the motorcycle, as required under California
law, through ACME Insurance. The insurance premiums are due on the first day of the month.
For the month of June, 2011, Joe erroneously believes that his wife, Mary Smith, has paid the
insurance premiums on his motorcycle. In Fact, Mary has overlooked the June monthly
insurance premium in the mountain of bills at the Smith household. If payments are not received
by the tenth day of every month, ACME automatically cancels the insurance policy.
On June 11, 2011, Joe parks his motorcycle one block away from Everyman’s
Automobile when he arrived for work at approximately 7:30 a.m. The motorcycle is parked next
to a utility pole on a sidewalk. At approximately 12:30 p.m., Joe takes his lunch break. Joe
walks to his motorcycle. Joe starts to walk his motorcycle towards the curb of the sidewalk by
“straddling” it on both sides. Joe had not yet turned on the engine of the motorcycle.
Joe is unaware that there is a “utility pole anchor” positioned next to the utility pole. The
anchor is connected to the sidewalk through screws and rivets. The anchor connects a cable
television line running to the top of the pole. The cable television line was removed on May 15,
2010, because it had become obsolete. Due to inadvertence on part of the cable television
company, the utility pole anchor had not yet been removed, even though it no longer served any
useful purpose and its continued presence constituted a serious tripping hazard. Joe’s left foot
tripped over the utility pole anchor and, as a result, he fell to the sidewalk and suffered a severe
injury to his left knee.
After the accident, Joe is horrified to learn that his policy had lapsed for non-payment of
premiums. He paid the June premium on June 12, 2011 and ACME reinstated his insurance
coverage for the motorcycle on this date.
Joe brings suit against the cable television company which negligently failed to remove
the utility pole anchor. The cable television company, Hayward Cable Television, discovers
that Joe’s insurance coverage had officially lapsed for non-payment of premiums on June 11,
2011. Hayward Cable Television, therefore, brings a Motion for Summary Adjudication of
Issues in which it argues the following: “There is no merit to plaintiff’s claims for general non-
economic damages because his lawsuit arises from the operation and/or use of an owned
uninsured vehicle, in violation of Civil Code §3333.4.”
Civil Code §3333.4 states:
(a) Except as provided in subdivision (c), in any action to recover damages arising out of the
operation or use of a motor vehicle, a person shall not recover non-economic losses to
compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other
nonpecuniary damages if any of the following applies:
(1) The injured person was at the time of the accident operating the vehicle in violation of
Section 23152 or 23153 of the Vehicle Code, and was convicted of that offense.
(2) The injured person was the owner of a vehicle involved in the accident and the vehicle was
not insured as required by the financial responsibility laws of this state.
(3) The injured person was the operator of a vehicle involved in the accident and the operator can
not establish his or her financial responsibility as required by the financial responsibility laws of
this state.
(b) Except as provided in subdivision (c), an insurer shall not be liable, directly or indirectly,
under a policy of liability or uninsured motorist insurance to indemnify for non-economic losses
of a person injured as described in subdivision (a).
(c) In the event a person described in paragraph (2) of subdivision (a) was injured by a motorist
who at the time of the accident was operating his or her vehicle in violation of Section 23152 or
23153 of the Vehicle Code, and was convicted of that offense, the injured person shall not be
barred from recovering non-economic losses to compensate for pain, suffering, inconvenience,
physical impairment, disfigurement, and other nonpecuniary damages.
Joe argues that he was not operating and/or using his motorcycle, as required under Civil
Code Section 3333.4 because (1) he was walking the motorcycle and (2) had not yet turned on
the engine when he was injured. As a fallback position, Joe argues that excusable neglect
justified the lapse of his insurance coverage.
You represent Defendant Hayward Cable Television. Write a Memorandum of
Points and Authorities in support of a Motion for Summary Adjudication of Issues. In the
Memorandum, you argue that Joe’s claims for general damages are barred under Civil Code
Section 3333.4 because he was “operating” and/or “using” his motorcycle at the time of the
accident. You also argue that Joe’s arguments regarding excusable neglect are irrelevant to the
application Civil Code Section 3333.4 since he was uninsured at the time of the accident.
The Memorandum of Points and Authorities should be between three to five pages in
length. The Memorandum of Points and Authorities should consist of the following: (a) a brief
introduction setting forth the position of your client, (b) a Statement of the Facts, (c) the legal
arguments supporting your position (with appropriate headnote(s)) and a brief conclusion.
For purposes of this problem, you are not required to discuss the requirements of a
Motion for Summary Adjudication of Issues. A Motion for Summary Adjudication of Issus is
brought because the moving party contends that a cause of action, or a claim for damages is
without merit. A Motion for Summary Adjudication of Issues must be granted if no reasonable
jury could find in favor of the plaintiff regarding the issues being summarily adjudicated.
myassignmentwriters.org Plagiarism Free Papers
Are you looking for custom essay writing service or even dissertation writing services? Just request for our write my paper service, and we\’ll match you with the best essay writer in your subject! With an exceptional team of professional academic experts in a wide range of subjects, we can guarantee you an unrivaled quality of custom-written papers.
Why Hire myassignmentwriters.org writers to do your paper?
Quality- We are experienced and have access to ample research materials.
We write plagiarism Free Content
Confidential- We never share or sell your personal information to third parties.
Support-Chat with us today! We are always waiting to answer all your questions.
Joe Smith is employed at Everyman’s Automobile Mechanics in Hayward, California two blocks from the campus of Cal State East Bay.
"Do you need a similar assignment done for you from scratch? We have qualified writers to help you with a guaranteed plagiarism-free A+ quality paper. Discount Code: SUPER50!"
