VERDICT SEARCH REPORTS A $1,100,000.00 SETTLEMENT BY THE TYLER, TEXAS FIRM OF DERRYBERRY ZIPS WADE LAWHORN, PLLC IN AN 18 WHEELER CASE

Pictured from left to right: Tab E. Lawhorn, Daryl L. Derryberry, Guy I. Wade, III and Craig D. Zips “Keeping Your Community SAFE One Case At A Time”

On Jan. 13, 2016, plaintiff Demon Savage, early 40s, was driving on State Highway 37 near Mineola. A tractor-trailer was traveling toward him in the oncoming lane with an oversize cargo: a manufactured home. The truck driver was in the course and scope of his employment with GKD Management L.P., and the cargo had been loaded that morning in Bonham at a manufacturing plant owned by CMH Manufacturing Inc. The cargo was being delivered to a destination in Louisiana. As Savage’s vehicle and the 18-wheeler approached each other, one or more boards flew off the trailer of the 18-wheeler, and one lodged itself in Savage’s windshield. Savage lost control and went off the road. Savage claimed lower back injuries.

The type of board that came off the truck is called oriented strand board, or OSB. The parties also referred to it as roof planking. It was being used to secure the plastic wrap that had been wrapped around the manufactured home for transport to Louisiana.

Savage sued GKD Management L.P., operating as A&G Commercial Trucking. GKD filed a third-party claim against CMH Manufacturing Inc., operating as Clayton Homes-Bonham. Savage then added claims of his own against CMH.

Savage alleged negligence against both companies on a theory of respondeat superior, based on their employees’ conduct, and neither of the defendants disputed the issue of course and scope of employment. Against CMH, Savage also alleged direct negligence, for negligent hiring, training and retention.

Against GKD, Savage alleged that its driver violated Federal Motor Carrier Safety Regulations, including CFR section 393.100, which generally requires truck drivers to secure their cargo and keep it from blowing or falling off.

Savage further alleged that GKD’s driver performed only a haphazard inspection of the cargo before starting his trip. He did not use a ladder to inspect the cargo from on top. Even though the top of the cargo was 14 feet above the ground, all he did was walk around it while standing on the ground, plaintiff’s counsel said.

Savage also alleged that GKD’s driver failed to perform an in-transit inspection within the first 25 miles as required by GKD’s policies and procedures and by Federal Motor Carrier Safety Regulations.

Savage further alleged that GKD’s driver failed to perform any in-transit cargo inspection during the trip. If he did perform an in-transit inspection, it was not documented.

After the incident, GKD’s driver kept going. Savage was able to pull back onto the road and follow him. When GKD’s driver eventually stopped for some unrelated reason, Savage told him what had happened, and he provided Savage with all the required information.

Plaintiff’s counsel noted that GKD’s driver never reported the incident to police and that the incident took place off of the route that the Texas Department of Motor Vehicles had prescribed for the trip. That is, the driver had deviated from the route, and plaintiff’s counsel argued that was the reason he did not call the police. Generally, deviating from the route is a crime, for both the driver and his employer.

As to CMH, Savage alleged negligence on the part of the CMH employee in charge of wrapping the cargo with plastic wrap and securing it with OSB on the morning of the trip. He failed to wrap the cargo properly and secure the plastic wrap properly, Savage alleged.

The basis for the direct negligence claims against CMH was that this employee had numerous performance reviews with CMH indicating that his work quality was “poor.”

Both defendants initially questioned whether the board in question came from GKD’s truck or not. However, it became clear during discovery that it did.

Savage claimed lower back injuries. He testified that when his vehicle left the road, it bounced violently over the terrain until it came to a stop.

Savage was seeking about $193,000 for past medical bills; about $530,000 to $585,000 for future medical bills, including future surgeries and a little less than $1 million for lost earning capacity and lost household services. He was also seeking past and future physical pain, mental anguish, physical impairment and disfigurement.

The defense argued that all the complaints and treatment that Savage attributed to the incident, including any future surgeries, were a result of pre-existing conditions. Savage had lower back problems since the early 2000s.

GKD’s insurer agreed to pay Savage $1,100,000 to settle all his claims. In addition, pursuant to an agreement between GKD and CMH, GKD paid all of CMH’s attorney fees and expenses in the case up to $180,000.

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