By Anne C. Vitale
A motorist rendered a paraplegic in a rear-end collision with a tractor-trailer has settled his Jackson County personal injury case for $6.5 million.
Just seconds before the plaintiff was hit by the tractor-trailer, he was involved in a collision with an underinsured motorist. The settlement included $6 million from the trucking company and $500,000 from the plaintiff’s underinsurance carrier.
The case involving confidential parties was filed before tort reform, said plaintiff’s attorney Edward J. Hershewe, of Joplin. The trucking company sought a pretrial ruling that Oklahoma law would apply because the collisions occurred there.
Under Oklahoma law, if the plaintiff was found to have any fault, joint and several liability would not apply, and the plaintiff would be barred from recovery if found more than 51 percent at fault, Hershewe said. Because of substantial contacts with Missouri, the court ruled that Missouri law on damages — pure comparative fault and joint and several liability — would apply.
Richard E. McLeod, Kansas City counsel for the trucking company, says Hicks v. Graves Truck Lines, Inc., a1986 case out of the Missouri Court of Appeals Western District, shaped the case.
The Hicks case, which favors application of Missouri comparative fault law when a Missouri resident is hurt in another state but sues in Missouri, “was the product of unique facts and suspect legal analysis,” McLeod said.
“It has been contradicted by other cases since but not yet abrogated,” he said. “I believe this case would have been a good vehicle to reverse Hicks, but I also believe this was a case where good lawyers and a good mediator were able to resolve the matter without the risk and cost of what would have been a brutal trial.”
A few days before Thanksgiving in 2002, the plaintiff, a 28-year-old Missouri resident, was driving his employer’s van near Big Cabin, Okla., about 50 miles from the Missouri. The plaintiff’s employer was a Missouri corporation that operates vending machines.
The plaintiff’s job was to collect revenues from his employer’s vending machines. The van was insured under a Missouri policy with the employer’s insurance company.
As the plaintiff was traveling southbound on U.S. Highway 69, an allegedly intoxicated driver, John Doe, attempted to make a U-turn from the outside lane and collided with the plaintiff. Although the plaintiff did not suffer any life-threatening injuries in this collision, his van was not drivable. He was left stranded in his van on the right lane of the highway.
At the same time, a tractor-trailer that had recently left Joplin was traveling down Highway 69 at an allegedly high rate of speed. The plaintiff’s reconstruction expert opined that although the area was flat and the truck driver had an unobstructed view of the road and plaintiff’s van for at least 1,500 feet, the trucker took no action to slow down, move to the left lane or make any evasive maneuvers to avoid hitting the van, Hershewe said.
Based on forensic evidence found at the scene, plaintiff’s expert concluded that the truck driver crashed into the plaintiff’s van without ever touching the brakes. The forceful impact caused a severe spinal injury that left the plaintiff a paraplegic.
While stopped in Missouri, the truck driver had taken his last federally mandated break pursuant to the Federal Motor Carrier Safety Regulations. Despite the trucker’s deposition testimony that his logs were accurate and truthful, Hershewe said, the trucking company’s corporate representative admitted that their driver had falsified his driving logs in Missouri just hours before the collision.
The trucking company claimed its driver had no time to avoid the collision or take any evasive action given the slope of the highway and the nighttime driving conditions. The company further argued that Doe, the driver that caused the earlier collision, was comparatively at fault for attempting to make a U-turn, and Doe’s judgment was impaired from drinking alcohol before the collision. Similarly, the company argued that plaintiff was a habitual speeder and comparatively at fault for following Doe’s vehicle too closely.
Before filing suit, the plaintiff reached a tentative settlement with Doe for his $25,000 policy limits, Hershewe said. Before settling, the plaintiff notified his employer’s insurance company that he thought an ambiguity in the underinsurance policy provision provided $1 million in underinsured coverage for Doe, even though the trucking company’s insurance policy had not yet been exhausted.
The employer’s insurance company consented to the settlement with Doe and advised the plaintiff that it didn’t object to him filing suit against the trucking company while also naming the insurance company because of the ambiguity. The carrier had a change of heart after suit was filed, and counsel became involved, Hershewe said. The carrier’s attempts to be dismissed from the case on grounds that plaintiff had not yet exhausted the trucking company’s policy were unsuccessful.
The plaintiff, now 34, is paralyzed from below his navel. He was not married at the time of the collision but has since married.
Dr. Terry Winkler, a physiatrist who treated the plaintiff during his initial hospitalization and thereafter, prepared a life-care plan. The plaintiff’s economist opined that the life-care plan, combined with future lost wages, will range between $3 million and $5 million.
In August, about three months before the scheduled trial, the parties agreed to the $6.5 million global settlement.
“This was a very interesting case from a UIM perspective for a couple of reasons,” said Michael B. White, Kansas City attorney for the insurance company. “First, due to allegedly ambiguous policy language in the exhaustion clause, UIM coverage in this case may very well have been triggered after plaintiff’s settlement with the first driver.
“Second, at trial I would have argued that there were actually two separate accidents in this case — given the 10- to 15-second gap between the collisions — and that plaintiff was not entitled to any UIM benefits because he already received full compensation from the first driver for the minor injuries he suffered in the first accident,” White said.
Facts of the Case
Type of Action: Personal Injury
Court: Jackson County Circuit Court
Case Number/Date: Confidential/August 2008
Verdict or Settlement: $6.5 million settlement
Judge: Confidential
Plaintiff's Experts: : Art Atkinson, Phoenix (trucking); John Ward, Overland Park, Kan. (economist); Dr. Terry Winkler, Springfield (life-care planner); Richard Ziernicki, Denver (accident reconstruction)
Defendant's Experts: John E. Dahlberg, Greenwood, Colo. (life-care planner); Hugh Galbreath, Morristown, Tenn. (trucking); James Hrycay, Windsor, Ontario (accident reconstruction); Merrill M. Mitler, Bethesda, Md. (driver fatigue); Paul L. Olson, Ann Arbor, Mich. (human factors); Cline Young, Dallas (accident reconstruction)
Special Damages: $560,171 past medical expenses; $3 million to $5 million future lost wages and life care plan
Insurance Carrier: confidential
Caption: Confidential plaintiff v. confidential trucking company and confidential insurance company
Plaintiff's Attorney: Edward J. Hershewe and Michelle Boehm O’Neal, The Hershewe Law Firm, Joplin; John Cowherd, John Cowherd, Attorney at Law, Mount Vernon; Scott Pettit, Pettit & Pettit, Aurora
Defendant's Attorneys: Richard E. McLeod, McLeod & Heinrichs, Kansas City (for the trucking company); Michael B. White, Harris McCausland, Kansas City (for the insurance company)
September 29, 2008
