SETTLEMENT: | $2,715,000. Doe Moving Company & Doe Truck Driver, $2,550,000. Doe Auto Driver, $15,000. Workers Compensation Carrier, $150,000 plus waiver of lien and full lifetime medical. | |
CASE/NO: | Confidential - April 15, 2003 | |
JUDGE: | Hon. Peter J. Meeka | |
ATTORNEYS: | Plaintiff - Michael H. Whitehill, Tracy K. Smith (Kussman & Whitehill) Defendants - E. A. Tharpe, III (Tharpe & Howell); Jeff Bonelli (Bonelli & Bonelli); Plaintiff-in- Intervention - Malcom Schick (Gray & Prouty)
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TECHNICAL EXPERTS: |
Plaintiff - Joyce Pickersgill, Ph.D., economist; Peter Philbrick, Sr. CDS, CDT, truck driver compliance and safety specialist. Defendants - V. Paul Herbert, commercial vehicle expert; Ted Vavoulis, economist; Charles Cacha, Ph.D., ergonomist; Alan Miller, M.S., accident reconstruction. |
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MEDICAL EXPERTS: |
Plaintiff - Donna Barras, vocational rehabilitation; Chester Hasday, M.D., orthopedics; Mark Gerard, M.D., internist. Defendants - David Toppino, vocational rehabilitation. |
FACTS: Plaintiff was hired by Defendant truck driver to work for the day unloading a tractor/trailer filled with furniture. Plaintiff assisted in directing the vehicle driven by Defendant truck driver out of a long driveway and onto a residential street. Plaintiff had stopped traffic and the vehicle was in a position across two lanes of travel when Defendant auto driver drove his vehicle around the back of the truck in an attempt to enter the driveway from which truck driver was exiting. Plaintiff signaled truck driver to stop his vehicle so that it would not hit auto driver and then directed auto driver to move out of the area. The truck driver stopped but the auto driver did not move and continued in his intent to enter the driveway. As Plaintiff continued to motion the auto driver to move on, the truck driver resumed backing the truck out of the driveway despite receiving no signal from Plaintiff that it was safe to do so. The truck was not equipped with a back up warning alarm that would have alerted Plaintiff to the movement of the vehicle. The tires on the truck grabbed Plaintiff's foot pulling him under the vehicle until it rested on top of his pelvic and lower abdomen area. The truck driver stopped the vehicle when finally alerted by the auto driver's horn, exited the vehicle to find Plaintiff pinned under the wheels.
INJURIES: Plaintiff sustained severe injuries primarily to the right side of his body and his perineum. His right foot suffered a complete fracture dislocation of the tarsometatarsal joints from the first through the fifth metatarsal rays. He had a Lisfranc injury between the first and second metatarsal rays and multiple osteochondral fragments and dysvascular forefoot and midfoot and soft compartments. He incurred soft tissue damage to his right leg and thigh as well as Morel lesions to the right thigh. The perineal sustained a large laceration and the anal sphincter was destroyed. This required a permanent diverting colostomy and multiple debridement procedures of his lower back, gluteal, perineal soft tissue, right foot and lower leg. He underwent a right elbow subcutaneous ulnar nerve transposition with heterotopic bone resection and operations for necrosis of the foot bones. Plaintiff still faces possible below the knee amputation. He has edema and an open wound on his right foot leaving him vulnerable to possible infections. He suffered the loss of most of the muscle from his lower back and buttocks area and is severely scarred. He is confined to a wheelchair and unable to return to work.
PLAINTIFF'S CONTENTIONS: PPlaintiff contended that he was an independent contractor hired for the day by defendants. Plaintiff asserted that the truck driver was negligent in his operation of the truck by backing up his vehicle without receiving a signal and without knowing Plaintiff's whereabouts. Plaintiff contended the Doe Moving Company was the owner/lessor of the tractor- trailer and that the vehicle was not equipped with the proper safety equipment, i.e., a back-up alarm which would have alerted Plaintiff to the fact the vehicle was moving again in time to avoid the accident. Additionally, by permitting Plaintiff to ride in the vehicle without written authorization, Defendants breached 49 C.F.R. §392.60(a) of the Federal Motor Carrier Safety Regulations. Although Defendant claimed Plaintiff was the employee of the truck driver, Plaintiff challenged this by contending that unilaterally "hiring" Plaintiff while he was lying in his hospital bed did not create an employee/employer relationship for purposes of invoking the Workers Compensation exclusivity provision. Furthermore, there was a question of whether Defendant truck driver was even insured under a workers compensation policy on the date of the accident although Plaintiff received workers compensation benefits in excess of $750,000.
DEFENDANTS' CONTENTIONS: Defendants contented that Plaintiff was the truck driver's employee and therefore, Plaintiff's sole remedy was Workers Compensation. Doe Moving Company contended the truck driver was not its employee and that the truck was the sole responsibility of the driver. Further, a back-up alarm was a rare exception and not the custom in the moving industry. Plaintiff was solely negligent in placing himself in a position to be run over by a 40 ton tractor-trailer which should have been clearly audible as it slowly approached Plaintiff from the rear.
DAMAGES: Past/future medicals: $2.5 million dollars, Past/future LOE: $300,000+, Workers Compensation lien $750,000.
SETTLEMENT DISCUSSIONS: Plaintiff, Defendants and Plaintiff-In-Intervention mediated the case in two sessions before ret. Judge Enrique Romero of ADR Services. The mediations resulted in resolution of the case between Plaintiff and Defendants. Prior to the mediations, Plaintiff made an offer of $5 million dollars to settle the case against all defendants. No response or counteroffer was received from these Defendants. Plaintiff independently settled with Defendant auto driver for his policy limits prior to the mediations and settled with Plaintiff-In-Intervention subsequent to the mediations.