VERDICT SEARCH REPORTS THAT DERRYBERRY ZIPS WADE, PLLC SETTLES A COMMERCIAL MOTOR VEHICLE CRASH FOR $750,000.00

On March 5, 2018, Shauna Ferguson, 36, an area sales manager, was driving a full-size pickup truck on Interstate 20, in Smith County. Ferguson slowed for traffic, and a sedan rear-ended her. The investigating police officer faulted the sedan’s driver for failing to control his speed and cited him for driving without a license. Ferguson claimed that she suffered a neck injury, and she filed a claim with the sedan driver’s insurer, Cainsco. That claim settled for the policy limit of $30,000. Ferguson was driving a company vehicle, which had $1 million in underinsured motorist coverage through St. Paul Fire & Marine Insurance Co.

Ferguson filed a UIM claim with St. Paul. She alleged that the sedan driver was negligent in the operation of his vehicle.

St. Paul did not contest the sedan driver’s negligence.

On the day after the accident, Ferguson went to an emergency room. She was treated and released.

Ferguson claimed that she suffered a large herniation of the C5-6 intervertebral disc, a moderate herniation of the C4-5 disc, chronic pain syndrome and cervical spondylosis.

Soon after the emergency room visit, Ferguson followed up with a neurosurgeon and underwent three cervical epidural steroid injections. The injections were on Aug. 13, Aug. 27 and Nov. 19, 2018. On April 11, 2019, she underwent a two-level anterior cervical discectomy and fusion (“ACDF”).

Ferguson claimed that her injuries affected her entire life, including her job, driving and the activities of daily living.

Ferguson’s paid medical expenses were about $230,000. The neurosurgeon opined that Ferguson would probably develop adjacent segment disease and require another fusion, which he opined would cost about $120,000.

Ferguson was also seeking compensation for past and future physical pain, past and future mental anguish, past and future physical impairment, and past and future disfigurement,

St. Paul contended that Ferguson failed to mitigate her damages in that she had health insurance and worker’s compensation insurance and did not use either one. She was on the job at the time of the crash.

St. Paul agreed to pay $750,000 to settle Ferguson’s claim.

 

VERDICT SEARCH REPORTS A $1,100,000.00 SETTLEMENT BY THE TYLER, TEXAS FIRM OF DERRYBERRY ZIPS WADE, PLLC IN A COMMERCIAL MOTOR VEHICLE REAR END DRUNK DRIVING CRASH

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

On Sept. 16, 2016, plaintiff Clarissa Hill, 31, and her husband, plaintiff Mike Hill, 45, were occupants of a sport utility vehicle that was traveling on Mineola Highway, in Smith County. Their SUV’s rear end was struck by a trailing pickup truck that was being driven Teodoro Ortega.  Mr. Hill claimed injuries to his neck. Ms. Hill claimed that she suffered injuries of her low back and right hip.

Ortega told police he had consumed only a single beer, but he failed field sobriety tests and was arrested for DWI. A breath test about two hours after the accident showed a blood alcohol concentration of 0.176, and he was arrested and convicted.

The Hills sued Ortega and Ortega’s employer, Dryce Inc. The Hills alleged that Ortega was negligent and grossly negligent in the operation of his employer’s vehicle. The Hills further alleged that Dryce was negligent and grossly negligent in its hiring of Ortega and in its entrustment of its vehicle.

The defendants acknowledged that Ortega was in the course and scope of his employment at the time of the accident and he alone was responsible for the accident. Dryce had hired Ortega in the late 1980s. Ortega did not disclose a 1985 DWI conviction to Dryce. After a 2010 DWI arrest, he told Dryce’s general manager he was not driving but sitting in his truck in his driveway listening to music. Ortega claimed the same thing in his deposition. However, plaintiffs’ counsel obtained records from the Tyler PD indicating a witness had followed Ortega several miles home at 2 a.m. and called police. The witness told police Ortega had been weaving and driving on the wrong side of the freeway.

Dryce’s general manager acknowledged that she was unaware whether Ortega was convicted in the 2010 incident, and she did not request Ortega’s driving record or try to verify his version of the charges. Also, Ortega’s personnel file contained no criminal background check or driving record.  Plaintiffs’ counsel argued that Dryce failed to request Ortega’s driving record or verify what he told the general manager.

In addition, a Dryce corporate representative acknowledged that if the company had been aware of the 2010 conviction, it would have revoked Ortega’s driving privileges. Also, the company, president and owner, Mr. George Wrappe acknowledged he would not want anyone with even one DWI conviction to operate a Dryce vehicle. However, another Dryce corporate representative testified that a single DWI would be acceptable under company policy.  The defense argued the prior DWI convictions were too remote to show negligent hiring or negligent entrustment at the time of this accident.

INJURIES/DAMAGES arm; chiropractic; discectomy; epidural injections; fusion, cervical; hand; herniated disc at C3-4; herniated disc at C4-5; herniated disc at CS-6; herniated disc at L3-4; hip; radicular pain / radiculitis

The plaintiffs did not seek immediate treatment.

Mr. Hill claimed that he suffered disc herniations at C3-4, C4-5 and C5-6. He also complained of neck pain and radicular pain in his right (dominant) arm and hand.

Hill underwent chiropractic care from October 2016 to December 2016. He also underwent two epidural steroid injections, which provided temporary relief, but he claimed that he was still unable to lift anything more than 15 pounds or engage in normal activities without pain. He then underwent an anterior cervical discectomy and fusion on Jan. 22, 2019. He testified that he is doing much better since the surgery.

Hill’s paid or incurred medical expenses were about $190,000. He was also seeking damages for future medical expenses, past and future physical pain and mental anguish, past and future physical impairment, and past and future disfigurement.

Ms. Hill claimed that she suffered a herniated disc at L3-4. She also claimed that she suffered right hip pain. A lumbar epidural steroid injection and a hip injection provided some relief. Her neurosurgeon has recommended lumbar surgery.  Hill testified that she was unable to sit for long periods and pain with normal activities, including walking.

Hill’s paid or incurred medical expenses were about $24,000. She was also seeking damages for future medical expenses, past and future physical pain and mental anguish, past and future physical impairment, and past and future disfigurement.

The defense argued that, based on the medical records, the Hills’ injuries were almost completely resolved within a few weeks of the accident. Also, Mr. Hill had right arm and hand issues that were pre-existing and unrelated to the accident, the defense argued.

The defense also argued that Ms. Hill’s medical records described her lumbar and right hip pain as a pre-existing condition.

The case settled in mediation for $1,100,000.00 million. After payment of attorneys’ fees ($360,000.00), expenses ($14,364.73) and paying back his medical providers ($107,044.22), one of our clientS received $410,686.05. Our other client received $94,328.02 after payment of attorneys’ fees ($80,000.00), expenses ($14,364.73) and paying back her medical providers ($11,307.25).

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DERRYBERRY ZIPS WADE, PLLC

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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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DERRYBERRY ZIPS WADE LAWHORN, PLLC

http://www.dzwlaw.com and http://www.urhurt.com