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

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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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VERDICT SEARCH REPORTS THAT THE PERSONAL INJURY ATTORNEYS OF DERRYBERRY ZIPS WADE LAWHORN, PLLC OBTAINED A $550,000 SETTLEMENT FOR THEIR CLIENT IN AN 18 WHEELER CRASH

Accidents involving 18 wheelers can cause serious injuries because of the size and weight of the tractor and trailer.

On May 18, 2014, plaintiff Lisa M. Brewer (“Brewer”),52, was driving a 2005 Chevrolet 1500 pickup north on State Highway 80 in Luling, Texas. Gerardo Sandoval (“Sandoval”) was southbound in a 2007 Freightliner owned by Downing Transportation Inc. Sandoval suddenly and unexpectedly attempted a left turn in front of Brewer, and the vehicles collided. Sandoval was cited for failing to yield the right of way in connection with the wreck. Brewer was not issued any citations.

Sandoval’s employer was Downing Transportation, Inc. (“Downing”) and he was driving the truck in the course and scope of his employment for Downing or its subsidiary, G&D Trucking Inc.(“G&D”).

Brewer sued Sandoval for failure to yield the right of way and making an unsafe left turn. She sued Downing and G&D on a theory of respondeat superior because Sandoval was employed by one or both of the Defendants and was driving the truck in the course and scope of his employment.

The electronic control module (ECM) download from Brewer’s vehicle showed that she was traveling at an appropriate speed at the time of the wreck.  The Defendants did not contest that the wreck was Sandoval’s fault.

Ms. Brewer’s injuries included herniated discs at C5-6, C6-7, L4-5 and L5-S1.  Ms. Brewer also sustained injuries to her head, arm and shoulder. Ms. Brewer was transported by ambulance to Brackenridge Hospital in Austin, Texas where she underwent extensive testing and treatment on the date of the wreck.

Ms. Brewer underwent conservative treatment for her injuries, including attempting physical therapy.  However, the physical therapy caused her pain and her pain management doctor ordered her to stop it.  She underwent a series of  epidural steroid injections (“ESIs”) and follow up MRIs of her cervical and lumbar spine were performed at Brio MRI in San Antonio.  Her pain management doctor, Dr. Gutierrez, then referred her for a surgical consult with noted neurosurgeon Karl Swann, M.D. in San Antonio. Dr. Swann recommended she undergo an anterior cervical discectomy and cage interbody fusion with allograft and anterior plating at C5-6 and C6-7.  This surgery was performed by Dr. Swann on May 13, 2015.

Ultimately, at the request of Defendants, an informal settlement conference was held at Defendants’ attorneys’ office in San Antonio, Texas and the case was resolved.

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DERRYBERRY ZIPS WADE LAWHORN, PLLC  http://www.dzwlaw.com and http://www.urhurt.com 

What to do if you are involved in an accident, including car accidents and 18 wheeler accidents

Top 10 things to do if you are injured in an accident, including a car accident or 18 wheeler accident.

By Craig Zips, Member of Derryberry Zips Wade Lawhorn, PLLC

Accidents involving 18 wheelers can cause serious injuries because of the size and weight of the tractor and trailer.

  1. Immediately call the police or 911 to report the accident, do not leave the scene of the accident and attempt to ensure the other party also stays at the scene.
  2. Contact a lawyer immediately.   The insurance company for the at fault driver and your insurance company will act only to protect their respective financial interests.   The insurance companies only care about saving their money.  Do not sign any documents prior to consulting with an attorney.
  3. Attempt to identify any witnesses to the accident and write down their names, addresses and telephone numbers.  If possible, also write down their license plate numbers.
  4. Exchange the following information with the other driver; name, address and telephone number, make and model of the car or 18 wheeler, license plate number, the other driver’s employer, if applicable, if the driver does not own the car then obtain the name, address and telephone number of the owner of the car or 18 wheeler, obtain all insurance information, including the name of the insurance agent for the other driver.  Also, if the accident involves and 18 wheeler then write down the Unites States Department of Transportation (“US DOT”) number that is typically located somewhere on the tractor or trailer.
  5. Write down any statements that are made by the other driver that indicate the other driver is at fault.  These statements may be used against the other driver and/or their employer in settlement negotiations or   if a lawsuit is filed.  Conversely, do not make any statements to the other driver or witnesses in connection with the accident.  Please remember to make sure that any statements made to the police are truthful and accurate.  Do not guess or speculate about any answer to any question asked by the investigating officer.
  6. Take photographs of the property damage to your car and the other car(s) or 18 wheeler while you are at the scene of the accident.  Also take photos of the accident scene, including any visual obstructions, road signs, speed limits signs, and any skid marks made by any vehicle involved in the accident.
  7. Immediately seek medical treatment if you are even slightly injured.  Sometimes accident victims can sustain internal injuries without realizing he/she is injured.  Internal injuries can be fatal if not treated.    Do not be embarrassed to ask for an ambulance if you have been injured in any manner.  Please also make sure you attend all doctor and physical therapy appointments.  If you miss these appointments, then the insurance company will argue these missed appointments mean you are not really hurt.
  8. Do not give any written or recorded statements to any insurance company or insurance company representative without consulting with an attorney.
  9. Prepare a brief summary of the accident.   Our memories fade about the details of an accident as time passes.  These notes about the accident will be  helpful later in jogging your memory of the details of the accident.   Also, keep a daily diary of your medical visits, as well as a daily diary of the pain you are experiencing after the accident.
  10. Obtain a police report if one is available.

Craig Zips is one of the two founding members of the firm now known as Derryberry Zips Wade Lawhorn, PLLC. He is board certified in personal injury trial law by the Texas Board of Legal Specialization, and has been given the premier AV rating by Martindale Hubbell. Craig has represented numerous clients for over 15 years in a variety of litigation matters, from complex commercial matters, including business disputes and securities fraud, as well as the  representation of plaintiffs in serious injury cases.