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On June 8, 1994 the San Francisco Bay area was shocked to learn of the explosion of a 65 pound smoke bomb on the campus of Palo Alto’s Gunn High School which resulted in ambulances being called to the school, treatment for 18 students and serious injuries for two high school women. This sounds like an open and shut case of liablity, but because of decisions by the California Supreme Court which have denied insurance coverage when intentional conduct accidentally results in unintended injury, collecting damages for the injured in this case was a legal challenge.

For the past decade the California Supreme Court has demonstrated a clear commitment to insurance carriers and a drastic reduction of personal rights previously enjoyed by Californians. One of the most serious rollbacks of California law has been to deny insurance coverage for criminal acts and thereby make it impossible for victims of crime to collect against the insurance coverage of those who engaged in criminal acts that were either not intended to cause injury or caused as a result of mental incapacity.

While regaled by the insurance industry, the policies of the California Supreme Court are a travesty for victims of crime as this case almost proved. Because of our substantial experience in representing victims of crime we were able to provide a just result for two innocent victims of mindless misconduct, but as this case shows, for all the talk about recognizing the rights of victims of crime, California’s public policy is intended to treat them as second class citizens. Ask any victim of crime and they will confirm this fact.

In this case the smoke bomb, which had been constructed by three senior men as their graduation signature prank, was a mixture of sugar and fertilizer which had been packed into a concrete container that had formerly housed a water fountain on the Gunn High School Campus. The device failed to function as planned and when it was ignited, instead of smoking, it spewed molten sugar across the high school quad. The culprits had failed to appreciate the lessons of endothermic chemical reactions taught in chemistry classes and did not realize that the proportions for a “small” smoke bomb could not be replicated for a “giant” smoke device because the heat generated by the larger quantity altered the combustion process.

Unfortunately at the time the mixture was ignited, graduating seniors, who had gathered in the quad to autograph yearbooks, were sprayed with hot, burning sugar and fertilizer. Two senior women suffered burns that required significant medical care, Catherine Meyer and Eleanor Lin. Sixteen others were treated and released.

The three seniors responsible for the malfunctioning smoke bomb, Robbie Roberts, Brendan Wheatley and David Chin, were arrested and charged with felonies.

Under California’s court drafted law, willful criminal conduct precludes the availability of general liability insurance coverage to satisfy claims for personal injuries. The charged felonies would increase the probability of a final verdict for the burned women, but unless a judgment is collectible the victory is meaningless. To avoid such an unjust result required a careful legal strategy, which required the victims to do everything in their power to minimize the wrongdoers’ criminal responsibility for their misconduct in the hope of obtaining fair compensation for their injuries.

This was not always the situation under California law. Although virtually every state precludes insurance companies from insuring willful or intentional conduct, many have special legal exceptions designed to avoid the harsh application of such a rule in certain circumstances. For example, prior to the advent of the Malcolm Lucas Court in the early 1980s, California’s law held that when a person lacked the capacity to govern his/her conduct in accordance with reason, the resulting misconduct was not willful and therefore “insured” misconduct. Other states achieve the same result by special rules designed to provide coverage for “accidental” injuries, which in fact are caused by willful conduct, through provisions that a carrier cannot deny coverage for willful acts when a willful act results in an unintended or unexpected injury. The bottom line under these approaches is to honor the rights of innocent people who have been injured, make available coverage that is in place, spread the risk across society and keep victims off welfare.

The conservative majority on California Supreme Court, changed those rules in 1988 by agreeing with insurance industry lawyers and holding that willful criminal conduct, whether or not injury was expected or intended, precluded such acts from being insured. The opinion was written as a “we’re tough on criminals” but the result was to penalize victims, whose injuries often continue for years after a crime. The real winner was the insurance industry. Some might claim the decision helped lower rates, but there was no such empirical evidence presented to this appellate court and the change in law was not tied to reducing premiums or providing rebates.

Representing victims of crime in California and seeking to obtain a recovery, except in cases of crimes committed by the truly wealthy, such as famous sports celebrities or heirs of substantial fortunes, requires pursuing a strategy of reduced cooperation with the police and prosecutor and increased cooperation with the criminal wrongdoers.

The victim’s dilemma is this. The victim can seek maximum criminal sentences, make statements that the criminal deserves substantial imprisonment for heinous misconduct, expect to recover nothing in a civil action for personal injuries and end up on welfare with a lifetime injury or disability.

In the alternative a victim can minimize the financial disaster of such a personal catastrophe by doing everything she/he can to obtain a financial recovery. Either way their memories, wounds, and resulting injuries are unaffected. The choice is being injured and without funds or injured and with funds. With rare exceptions, rational people opt for the latter.

This sad case demonstrates how California case law drafted and imposed on 35,000,000 Californians by conservatives on the California Supreme Court has perverted the rights of victims and how two victims were successful in overcoming impediments to fair and reasonable compensation for their injuries. Most victims are not so fortunate.

Catherine Meyer and Eleanor Lin were successful because they retained a private attorney with experience representing victims of crime immediately following their injuries and obtained much needed advice at theoutset. In large part when victims of crime follow their intuition and do what they think is right they cause themselves financial injury. Most of the legal positioning in this case was counter-intuitive.

First, the District Attorney’s Office was contacted and urged to pursue the lowest level charges, for example, causing a fire in a public place [as opposed to arson or any number of explosive offenses] which even though charged as a felonies eventually could be reduced to a misdemeanors once a sentence had been served.

This was the first step in defusing the liability issues so that an insurance carrier would be more likely to be required to defend the wrongdoers under their homeowner’s insurance coverage and provide indemnity for the losses to the innocent victims.

Homeowners’ insurance coverage combines a number of insurance policies: fire, storm, and general liability for all members of the household, excluding liability coverage for automobiles and boats and liability for injuries caused by an insured through his/her work. A general liability policy provides coverage for negligent acts by members of a household that cause injury no matter where the wrongful act occurs: on a playground, at a neighbor’s home, in a public or at school. It is an all encompassing policy of protection for its owners, protects their assets from judgments for wrongdoing and is a valuable component of homeowner’s coverage.

Our goal in this case was to mold our claims and our case so that the homeowner’s insurance carriers would be legally obligated to pay for the damages caused by their insureds and not be provided with a history of facts which would support a lawful denial of coverage. This action was taken from the outset, even before knowing whether or not the three young men lived in homes that were insured and was based on two assumptions: 1) overwhelming majority of homes are mortgaged and insured under homeowner policies and 2) any inadvertent statement which could be construed by a carrier as denying coverage would be used against the victims. If there was coverage we were not going to take any action or make any statement that might accidentally result in the loss of that coverage for these two young women.

Under California law claim notices must be served on public entities before filing suit. In this case the school district had to be served with a claim to put it on notice of why it should be held responsible before a lawsuit could be filed. In this case, making that claim was easy.

For years Gunn High School’s administrators had promoted an atmosphere where pranks by graduating seniors were allowed to escalate and at no time did school administrator ever hold the senior class responsible collectively for wide ranging senior pranks. Holding the whole class responsible as a group for such misconduct would have discouraged it. The one thing all teenagers understand is peer pressure. Gunn’s administration never cracked down on pranks, even dangerous one, and gave the impression that such behavior was condoned. Several employees of the district who provided information anonymously were more colorful in their assessment of the situation. In their view the “inmates were running the asylum.” School officials had tolerated student pranks for so long that such conduct was common. While pranks resulted in warnings and rebukes by administrators, little other action was taken.

For example, within a month before the explosion, a smoke bomb had been ignited in the school library causing its closure. Smoke bombs had been ignited in other parts of the campus on other occasions. On the morning of the explosion, in the presence of school administrators in the quad, eggs were thrown and no disciplinary action was taken. As it turned out the reports that the principal was ineffectual in dealing with these issues were later confirmed by his public statements during the sentencing of the criminal defendants.

Amazingly everyone, including school administrators, had been forewarned of a potential explosion by Robbie Roberts. In Roberts’s personal yearbook entry, in lieu of a photograph he displayed a cartoon showing a mushroom cloud over the high school, which was dated June 8, 1994.

Roberts had a reputation of being enthralled by pyrotechnics and his yearbook entry was clear evidence that something big was planned on June 8th. The fact that something was planned was clearly announced and recorded in the school yearbook, but nevertheless school administrators failed to discover that 65 pounds of combustible material had been smuggled into the school and planted inside a defunct water fountain. Nobody ever suspected that something would happen on June 8th, despite the announcement that June 8th was the date.

With this rich history of extremely “laid back” school supervision, claims against the school district stressed the absence of any discipline, control or common sense and the “lasting arrogance, stupidity and moral culpability” of the three errant teenagers who caused the blast and the injuries that had been suffered. The responsibility of the school district and its failure to provide a safe school was in fact abdicated by allowing a tradition of smoke bombs and fireworks on campus with little resultant punishment as a result of a pervasive attitude of tolerance toward such misconduct. Any reference to criminal misconduct was carefully avoided to preclude insurance carriers from using this document as a shield to defend their treasury. It was anticipated that the claims would generate substantial press coverage which would begin the process of resolving the criminal cases in a manner that would favor the interests of the burn victims as well as the defendants. What was interesting was the public response.

Surprisingly, not one person recognized that under a statewide initiative, Proposition 51, adopted in 1988, victims of personal injuries inflicted by others must sue everyone who in any possible way caused or contributed to bringing about an injury. Even if these victims had not wanted to take action against the school, all competent attorneys would have counseled naming the school district as a defendant light of the mandates of Proposition 51. In fact Proposition 51 was strongly supported by cities, counties and all governmental entities when it was on the ballot in 1988. The failure to include every potentially responsible party in a lawsuit today leaves an empty chair at trial and gives the other defendants a chance to lay all blame on the absentee. It is far better to have all parties in court defending their own interests since under Proposition 51 the jury must place a percentage of liability on each and every potential party, whether or not they are a defendant in a case and wether or not they are present in court.

Suing a school, even one that has a history of questionable responses to dangerous pranks, is akin to attacking motherhood. Schools are sacred cows in America, places that are supposed to be inherently good and institutions that clearly most believe would never do anything to cause injury, even when school administrators are oblivious to clear warning signs. Parents of school children reacted to the news of legal action against the school by statements of concern that Palo Alto schools had again had children injured by explosives at school. In an earlier case in which we had been the attorneys for plaintiff, Vagshenian v. Palo Alto Unified School District, the school district was responsible for burns caused to a young boy when a model rocket motor was ignited during an elementary school science fair, notwithstanding the unenforced written policy against fireworks on school property. The Gunn explosion was a reminder that once again the school district’s policies on explosives had not prevented serious injuries.

Others, notably the lawyer haters who have never read all of Shakespeare’s Henry VI, Act 4, Scene 2 except the plan of deranged rebels to kill anyone who could write their name [“Let’s kill all the lawyers”] and who blame lawyers for everything, complained that the actions we had taken were due to lawyer greed, as if the attorneys for Meyer and Lin had somehow created the conflagration on campus. These people complain when anyone forces others to be legally responsible for wrongful acts, except when they, or a member of their family, is injured.

From years of experience and many visits to burn wards, there truly is no more painful injury than a burn. Anyone who could not sympathize with two young women, who lost the enjoyment of their graduation from high school and summer before college, is socially maladjusted, mean and depraved. The standing policies of the State of California demand that whenever it is foreseeable that someone’s action “might” cause an injury, the failure to act responsibly is negligent conduct for which they will be held responsible. Naysayers who oppose this policy of holding individuals civilly responsible for their wrongful acts are a decided minority, but nonetheless vocal.

As part of the litigation plan in this case, the attorneys for the criminal defendants immediately were advised that the victims would be seeking a favorable resolution of the criminal cases for the wrongdoers in order to maximize the opportunity to obtain the available insurance coverage. This advice was obviously welcomed by the criminal defendants.

The Superior Court complaint that was filed for Catherine Meyer and Eleanor Lin stressed “tragically stupid” and “drastically wrong” conduct by the three senior men, not the defendants’ criminal acts and avoided any reference to willful misconduct, realizing that any claim for willfully caused injuries would defeat efforts to secure coverage.

After “no contest” pleas by the three defendants to the criminal charges, letters to the Court commenting on the sentence to be imposed were requested by the county’s department of adult probation, which normally prepares the pre-sentencing report. In many cases where victims hire lawyers well after the criminal proceedings, insurance company lawyers will conduct a detailed investigation of testimony in a criminal trial and from sentencing requests to the court. Any statement made by a victim that hints at the wrongdoer’s malevolent intent will be used against the victim in any later civil proceeding to deny insurance coverage. This is a trap to be avoided. In this case letters were carefully drafted for both Catherine Meyer and Eleanor Lin which urged the judge not to send the defendants to prison “for a foolish prank that did not go as planned” and instead urged that they be required to speak at the school and explain why schools should be kept safe for everyone, how dangerous pranks can ruin many lives, and “why no one should ever risk causing injuries to anyone.”

The plan in asking for the criminal defendants to speak to a student assembly was to keep the focus on the fact that both the three young men and school administrators had acted stupidly. While the stupidity of the three young men far exceeded that of the school, this school’s administrators were striking in their refusal to heed bona fide advance notice of the smoke bomb in the school year book as a credible threat. Any school administrator who underestimates the zeal of a high school senior needs re-assignment to less challenging work.

Both letters received substantial press coverage, as anticipated, and were reported verbatim in the San Jose Mercury News. The sentencing judge, Superior Court Judge Charles Gordon, agreed with our recommendations. In his wisdom he took the recommendations one step further. The Court ordered the defendants to each speak at six separate high schools, including Gunn High School. In addition Judge Gordon withheld final sentencing until all public service requirements had been met by the three, indicating at that time he would dismiss the felonies and treat the offenses as misdemeanors.

Clearly this judge recognized that these three young men had been ultimately stupid in what they had done and concluded they did not deserve to be labeled as felons for life. By structuring the punishment in this fashion the actual findings on the public record would only show misdemeanor convictions. By this decision, Judge Gordon demonstrated why he is held in high regard all.

Incredibly, the Palo Alto Unified School District and Gunn Principal Chris Rich objected to the public speaking component of the sentences and wrote the Court asking for the ordered speaking engagements at Gunn High School to be vacated. Rich was of the view that by having the three young men speak to a school assembly they would become heroes. It is hard to believe that three men who caused so much damage to others and to themselves, with resulting felony prosecutions, would be lionized by Gunn High School students when ordered by a judge to explain how stupid they had been, but by this one act, Mr. Rich proved that a college education does not confer common sense. Additionally, he gave credence to the doubts raised by others concerning his administrative style. This was the most surprising and unexpected event in a truly unusual case.

As lawyers for Catherine and Eleanor, we argued that not only should the three defendants speak, but the school should have discussion groups afterwards to assure a positive experience for the student body. Judge Gordon agreed in seconds and sent the principal and the school district packing. He did not alter his order and the three defendants eventually spoke before Gunn High School students, with extensive newspaper coverage of the event. According to news reports, student comments after the speeches indicated that the speakers were taken seriously and that their presentations had provoked responsible thinking about the dangers and long-term aftermath of pranks.

To prepare for trial, we retained a plastic surgeon previously hired as a consultant for the School District in the Vagshenian burn injury case. The goal was to strengthen our proof at trial by having the testimony of a plastic surgeon and burn specialist who had the “imprimatur” of the District. Whatever medical testimony was provided by this expert witness, the District could not refute his qualifications or conclusions since it had previously selected him itself. Surprisingly the attorneys representing the District in this second case had not moved to retain their earlier used expert and we capitalized on this mistake.

The personal injury suit against the three defendants and the school district was prosecuted and simultaneously we defended a declaratory relief action [DRA] brough by one homeowner’s insurance carrier to avoid its financial responsibility for the injuries the smoke bomb had caused.

A DRA is a lawsuit in which a party can have its rights or obligations clarified, or declared, by a court. Such actions are often brought by insurance companies when they wish to be discharged from their duty to defend and indemnify under a policy. Many victims are insulted to learn that because they take legal action against a wrongdoer they can be named as a defendant in a civil suit by an insurance company that does not want to defend or pay. In this case, one homeowner’s insurance carrier claimed it had no responsibility for the injuries caused by the malfunctioning smoke bomb because the acts involving in making and igniting the device were willful and the resulting injury was therefore a result of willful, criminal acts and was not accidental.

After depositions of the three young men, police and others were completed, when it was clear that the record supported our claim of stupid, negligent misconduct by these three young men, as opposed to willful criminal activity, the Superior Court refused to grant the insurance company’s motion for an immediate judgment in its favor and cleared the way for the declaratory relief action to go to trial.

At this point eighteen months after this sad event, we arranged a day long mediation/settlement conference which was attended by all parties, including school district officials. Two insurance carriers [one of the three young men was uninsured] agreed to contribute $137,500 and the school district reluctantly accepting its partial responsiblity for what happened, but still denying all legal liability any suggestions that it was at fault, paid $12,500 towards final settlements of $100,000 for Catherine Meyer and $50,000 for Eleanor Lin.

In light of their injuries and all the circumstances in this case, this settlement was a fair, reasonable and just result, especially in light of California’s hostile legal climate towards innocent victims of crime and the risk of losing the DRA at trial. But if these high school seniors and their parents had followed their instincts and had not obtained experienced legal advice, this civil action could well have been resulted in an uncollectible verdict against three teenagers. $150,000 will never fully compensate these young women for the fear, pain, memories and injuries they have suffered, but it is far better that they should enjoy this recovery as opposed to suffering this terrible insult and have nothing.

What would you want for your daughter or son?

Catherine Meyer and Eleanor Lin v. Palo Alto Unified School District, Santa Clara County Superior Court Civil Action No. 746309 and Catherine Meyer and Eleanor Lin v Robert Roberts, Brendan Wheatley, David Chin, Santa Clara County Superior Court Civil Action No. 742428, Fire Insurance Exchange [Farmers Insurance Company] v. Brendan Wheatley, Catherine Meyer and Eleanor Lin, Robbie Roberts, David Chin, Santa Clara County Superior Court Civil Action No. 745540.

For further information see Time Magazine May 8, 1995 [photo, page 56]; San Jose Mercury News, June 10, June 11, June 18, June 23, July 1, July 7, August 15, November 18, 1994; January 7, February 4, 1995; January 3, 1996; San Francisco Chronicle, June 18, July 7, July 23, 1994; Palo Alto Weekly, June 22, December 2, 1994; February 8, February 28, 1995; January 5, 1996.