Consumer Attorney of the Year Finalists Wylie Aitken and Megan Demshki


Wylie Aitken and Megan Demshki are in the running for the Consumer Attorney of the Year award for their successful appeal of a complicated motorcycle accident case. The winner, announced this weekend at the CAOC Annual Convention, will be the case that “has significantly advanced the rights of safety of California consumers by achieving a noteworthy result”. The details of Sumrall v. Modern Alloys are as follows:

On October 7th, 2010, Juan Campos, a cement finisher, commuted from his home to the yard of his employer, as he did every workday along with other members of the Modern Alloys workforce. He collided with Michael Sumrall, who was riding a motorcycle on a public street parallel to the parking lot at the Modern Alloys yard. Modern Alloys, Campos, and their attorneys claimed the incident was not within the scope of Campos’ employment. Discovery led to the fact that the employee would drive fellow workers from the company yard to a worksite on a major freeway in a company truck with company tools. The truck itself would be used on the freeway and the employee would be paid once their arrived at the company “jobsite”.

The victim, Michael Sumrall and his wife of many years, Rosanna, could not have afforded the help they needed to sue the perpetrators: the employee and the employer: a major paving contractor and the only financially responsible defendant.

Wylie Aitken of Aitken Aitken Cohn agreed to accept the case along with the continued commitment of John Adams and enlisted the support of Megan Demshki, and associate of the firm.

Initially, Aitken prepared and took a detailed deposition of the defendant driver to explore the business plan of Modern Alloys and all the circumstances surrounding the incident. The team was determined to define the details and scope of Mr. Campos’ employment. Under the “going and coming” rule, employers are generally not liable for their employees during their commute to the workplace. Aitken, finding no evidence of a “special errand” focused in on the detailed operations of Modern Alloys’ business.

The first breakthrough occurred when the defendant driver disclosed to Aitken that he started “work”, as he viewed it, on a freeway project located miles from the yard and didn’t go “on-the-clock” until 9 p.m., almost 2 hours after he arrived at the yard.

Aitken’s experience, informal and formal discovery, ultimately led the team on a Sherlock Holmes style journey, which included review of Cal Trans agreements, union contracts, and discussions with union representatives. Was the requirement that the employee go to the yard a diversion? Was it a plot to get free additional labor? Were there alternative methods to get to the worksite? What was the union bargaining agreement? What details were hidden in the Cal Trans agreements? It seemed that after extensive effort, Aitken and his team’s “turn every stone” approach had uncovered enough to at least raise a triable issue of fact regarding the course and scope of employment issue. (or so they thought…)

However, “all the king’s horses and all the king’s men” could not overcome the defendant’s argument and the trial judge’s viewpoint that because this was an everyday occurrence performed by every other employee, combined with the fact that each employee’s method of getting to the yard was at their own discretion, there was no “special errand”, just a regular commute. The motion for summary judgement was granted!

In response, Aitken, who has handled a number of appeals during his career, partnered with Bill Kopeny, a creative and passionate appellate lawyer whose work made major contributions to the briefs.

The case had a series of twists and turns. Modern Alloys argued that “Whether or not a jury could have discovered some hypothesis to find that Mr. Campos was acting within the scope of his employment is irrelevant.” Plaintiff’s evidence was speculation. Unions feared retaliation and potential loss of jobs despite the abuses. Witnesses were reluctant to come forward.

The most significant impact of this case, beyond individual justice for the Sumralls, is the appellate opinion, and some very interesting twists and turns. Often incredible results have major impact on the parties themselves but more limited application to a greater universe. The “in trench” trial work both before and after the appellate opinion was the deciding factor and foundation for the appellate opinion.

Sumrall v. Modern Alloys, Inc. resulted in a published opinion which had, and will continue to have, a significant impact on the law of agency. It will increase the successful handling of cases on behalf of our clients in their most desperate times and will be of assistance to consumers statewide and their lawyers to establish liability in what have been seemingly hopeless situations in the past.

In a unanimous opinion written by Justice Eileen Moore, the motion for summary judgement was reversed and the opinion dramatically widened the door for potentially thousands of consumers.