Wilson v. Compass Vision, Inc. et al

Filing 185

ORDER by Magistrate Judge Bernard Zimmerman in case 3:07-cv-03431-BZ; granting (212) Motion for Summary Judgment in case 3:07-cv-05642-BZ (bzsec, COURT STAFF) (Filed on 8/13/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 All parties have consented to my jurisdiction, including entry of final judgment, pursuant to 28 U.S.C. § 636(c) for all proceedings. 1
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

LAURA FUJISAWA, et al. Plaintiff(s), v. COMPASS VISION, INC., et al., Defendant(s).

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No. C07-5642 BZ Related Cases: C07-3431 BZ C08-4118 BZ C09-2016 BZ ORDER GRANTING MAXIMUS'S MOTION FOR SUMMARY JUDGMENT

Third-Party Defendant and Counterclaimant Maximus, Inc. ("Maximus") moves for summary judgment against Compass Vision, Inc. ("Compass") on its complaint for indemnity.1 Maximus

does not move for summary judgment on its counterclaim against Compass. GRANTED. Maximus and Compass entered into a Consulting Agreement ("the Contract") which required Compass to "assist with the For the following reasons, Maximus's motion is

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development, coordination, and provision of laboratory services for Participants of the California Department of Consumer Affairs Diversion Program," the program in which plaintiff Dr. Fujisawa was a participant.2 Swider Decl. Ex. 4. Doc. No. 226-1,

Maximus's sole obligation under the

Contract was to "pay Compass Vision" according to a fee schedule. Under the indemnification provision of the

Contract, Maximus agreed to defend, indemnify and hold Compass Vision harmless from and against any and all claims, losses, liabilities or expenses (including without limitation attorneys' fees) which may arise, in whole or in part, out of (i) the negligence or willful misconduct of Maximus, its employees or agents, or (ii) a breach by Maximus of its obligations under this agreement. Id. § 13, P. 4. Compass filed a third party complaint against Maximus for (1) breach of contract, (2) contractual indemnity, (3) equitable indemnity and contribution, and (4) declaratory relief. Doc. No. 113. The only breach of which Compass

complains is Maximus's alleged failure to indemnify and defend Compass in the underlying action. Essentially, all four

causes of action seek indemnity from Maximus for any damages and attorney fees which Compass incurs defending plaintiff Dr. Laura Fujisawa's complaint. Dr. Fujisawa did not sue Maximus

and makes no claims against it. The parties agree that Compass is only seeking indemnity for Dr. Fujisawa's claim, to the extent it arises from

A full recitation of the facts underlining their dispute appears in the Order denying Compass's motion for summary judgment. See Doc. No. 184. 2

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Maximus's negligence or willful misconduct. Motion p. 9.

Opp. p. 12:8-9;

By pointing to a lack of evidence, Maximus

shifted the burden to Compass first to present evidence of negligent or willful misconduct by Maximus that resulted in harm to plaintiff for which she seeks to hold Compass responsible. Dr. Fujisawa alleges that her damages in this

case stem from the wrongful promotion and use of ETG testing as a reliable method of detecting intentional alcohol consumption. Maximus can only be required to indemnify

Compass for Dr. Fujisawa's damages if its negligence or willful misconduct contributed to her damages. Several provisions of the Joint Stipulated Statement of Undisputed Material Facts resolve the issue of indemnity. Doc. No. 212-1, "Joint Statement." Compass stipulated that

in its administration of the Program, however, Maximus did not: promote the implementation of ETG testing in the Program, decide to implement ETG testing, decide the cutoff levels used to determine a positive ETG result, determine if a given ETG test result was a positive or a negative, or make decisions to terminate, discipline, or remove a participant from the Program. Joint Statement, No. 9 (emphasis in original). The parties

further agreed that the Board implemented ETG testing, that Compass promoted ETG testing, and that Maximus was a mere middleman responsible for gathering test results from Compass and transmitting them to the Board. 11, 41. Joint Statement Nos. 10,

To the extent the Joint Statement tracks the

provisions of Dr. Fujisawa's complaint, Compass has agreed that Maximus played no role in the damages that Dr. Fujisawa is claiming. It is difficult to conceive how Compass can

attribute any of Dr. Fujisawa's damages to Maximus's 3

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negligence or willful misconduct given the undisputed facts. Compass unsuccessfully attempts to defeat summary judgment by presenting evidence that Maximus failed to perform its obligations under its contract with the Board. Compass

has not presented any evidence that anything Maximus did or did not do under its contract with the Board resulted in the harm for which Dr. Fujisawa is seeking relief. Compass

presented evidence that Maximus failed to fulfill certain contractual obligations, such as appointing a Medical Advisor, but does not establish how that caused the problems with EtG testing for which Dr. Fujisawa seeks to hold Compass liable. Compass further states that "Maximus had the clinical responsibilities for the Program" but fails to explain how that creates a triable issue of fact, given the undisputed facts. Even if Maximus did hold such responsibilities and

failed to discharge them, Compass has not established how that would obligate Maximus to indemnify Compass should Dr. Fujisawa establish the deficiencies in the EtG testing program she claims. At oral argument, Compass reiterated the claim that Maximius's alleged failure to perform certain of its contractual obligations with the Board require Maximus to indemnify Compass. This argument misses the mark. Even if

Maximus failed to appoint a Medical Review Officer or to discharge its clinical responsibilities, Dr. Fujisawa is not seeking damages for such conduct. None of plaintiff's claims

against Compass arise from Maximus's conduct, and Compass is therefore not entitled to indemnity from plaintiff's claims. 4

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The only evidence that Compass submitted was declarations replete with general testimony and legal conclusions. e.g. Doc. No. 226-3, Brown decl. ¶ 6, 10, 14. See

The Brown

declaration does not address Dr. Fujisawa's participation in the Program with any degree of specificity. It is unclear if For

Ms. Brown even offers an opinion on Dr. Fujisawa's case.

example, Ms. Brown states that if Maximus had provided certain resources, "it is likely that the Plaintiff would have successfully completed the program." Id. ¶ 8. Aside from

being entirely speculative, the conclusion offered by Ms. Brown does not establish how the provision of additional resources by Maximus would have altered the discipline that the Board imposed on Dr. Fujisawa. The declaration is written

almost entirely in generalities and does not create a triable issue of fact as to causation. from similar defects. The McKown declaration suffers In that declaration,

Doc. No. 226-2.

the President of Compass simply opines on the legal obligations and shortcomings of Maximus. not address Dr. Fujisawa's case at all. The declaration does Accordingly, the

declaration is entitled to very little weight and does not create a triable issue of fact. Compass cannot prove its entitlement to indemnity from Maximus as a matter of law. The undisputed facts establish

that Maximus had no role in causing the harm of which Dr. Fujisawa's complains. /// /// /// 5 IT IS THEREFORE ORDERED that Maximus's

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motion for summary judgment on Compass's third-party complaint is GRANTED. Dated: August 13, 2010 Bernard Zimmerman United States Magistrate Judge
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