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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DERRYBERRY ZIPS WADE LAWHORN, PLLC

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

 

 

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$1,000,000.00 SETTLEMENT OF COMMERCIAL TRUCK WRECK AS REPORTED BY VERDICT SEARCH

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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 July 2, 2014, our client, was operating a 10-wheeler truck on Interstate 20 West in Harrison County, Texas. The defendant was operating a Ford F-350 pickup truck, hauling a load of drill pipe on a flatbed trailer for an oilfield service company. The defendant negligently rear-ended our client, whose in-cab video camera recorded the violent jarring of the impact. The defendant’s truck burst into flames and our client pulled the defendant from her burning vehicle. The truck the defendant was operating was owned by or leased to an oilfield service company.

Our client hired our firm to sue the defendant for negligently failing to keep a proper lookout, driving too fast and following too closely. He also sued the oilfield service company under respondeat superior (being responsible for the negligent acts of the defendant) and for violating its policies by failing to conduct a post-accident drug test of the defendant; by failing to investigate the wreck; and by providing the defendant a company truck to drive even though she had five (5) prior convictions for moving violations under Texas law. The oilfield service company’s policy prohibited giving a company vehicle to anyone convicted of more than three (3) moving violations.

Our client also alleged that the defendant was a distracted driver (using her cell phone constantly for 44 minutes before the violent wreck and at the time of the wreck) and that the distracted driving caused the wreck. During that 44 minute period, her cell phone records showed 194 calls or text messages to or from a single number.

The defendant testified that she accepted responsibility for failing to control her speed and rear-ending our client. However, she also testified that she was not using her cell phone in any manner at the time of the wreck. Our client believes the cell phone records unequivocally showed that she was being untruthful in that regard.

Our client’s injuries included herniated discs and facet tears in his neck and back, as well as sustaining other injuries, harms and losses.

The wreck was in the afternoon, and our client sought medical treatment the next morning. He initially treated through workers’ compensation, but he felt that he was not receiving adequate care, and he sought treatment outside of the worker’s compensation system, including seeking treatment from a neurosurgeon. Our client tried physical therapy, but found it too painful.  Our client also underwent lumbar epidural steroid injections (ESIs) and, in April 2015, he had a discogram done as well.

In the summer of 2015, a neurosurgeon performed a posterolateral fusion in his back with placement of hardware (pedicle screws on the left). The neurosurgeon opined that our client’s neck and back injuries were caused by the wreck.

The oilfield service company and the defendant had $1,000,000.00 in liability insurance coverage and the entire policy limits were paid to our client to settle the case.  After payment of attorney’s fees ($400,000.00), expenses ($35,599.34) and medical bills ($160,429.31) the client netted ($403,971.43).

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

 

VERDICT SEARCH REPORTS THAT THE PERSONAL INJURY ATTORNEYS OF DERRYBERRY ZIPS WADE LAWHORN, PLLC OBTAINED A WRONGFUL DEATH SETTLEMENT FOR THE INSURANCE POLICY LIMITS OF $1,000,000.00 WITH THEIR CLIENTS RECEIVING $555,494.39

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On May 21, 2011, seventeen year old Martin Blea, Jr. entered the business premises of The Pussycat Lounge, an after-hours BYOB establishment located in Odessa, Texas.  The Pussycat Lounge was located less than a half mile from an adult cabaret known as Jaguars Gold Club.  The Pussycat Lounge and Jaguars Gold Club essentially had the same owners and operators on May 21, 2011 and in the years leading up to May 21, 2011, such that the owners and operators of The Pussycat Lounge knew that dangerous and violent people were in the area and frequently visited The Pussycat Lounge

Martin Blea, Jr. went to The Pussycat Lounge with his older sister, among other individuals. At some point, his sister went to the restroom.  As she was returning from the ladies’ room, a man, who was unknown to the sister (and has never been fully identified) but who had previously been seen conversing with a man named Steve Uresti and other patrons of the Pussycat Lounge, approached the sister and grabbed her in a sexually provocative manner.  When the sister rejected these advances, the unidentified man punched the sister in the face and knocked her to the ground.  The man then jumped on top of her.  Martin Blea, Jr. was dancing on the dance floor at this time and saw his sister in distress.  He went to pull the unidentified man off of his sister and a fight broke out.  While Martin Blea, Jr. was attempting to aid his sister, Steve Uresti pulled out a 9 millimeter handgun and fired several shots into the air.  Mr. Uresti then fired several more shots, one of which hit Martin Blea, Jr. in the face and killed him.  Mr. Uresti’s gun had made its way into The Pussycat Lounge despite the fact that a policy was in place where patrons entering the premises were required  to be screened with a hand held metal detector wand and patted down as part of an effort to keep dangerous weapons out of the club..

After being shot, Martin Blea, Jr. fell to the floor of The Pussycat Lounge where he struggled to breathe until the paramedics arrived. An ambulance transported Martin Blea, Jr. to a hospital in Odessa, Texas, where he was pronounced dead from his gunshot wound.  On November 29, 2012, a jury in Ector County, Texas, convicted Steve Uresti of manslaughter in connection with the death of Martin Blea, Jr. and sentenced him to 20 years of confinement in the Texas Department of Corrections.

The parents of Martin Blea, Jr. retained DZWL to investigate the viability of, and potentially prosecute a wrongful death and survival action against persons determined to be potentially civilly liable for the death of Martin Blea, Jr. Our clients asserted that the owners/operators of The Pussycat Lounge controlled the security and safety of The Pussycat Lounge on May 21, 2011, and owed a duty to protect people visiting the club, such as Martin Blea, Jr., from the criminal acts of third parties if they knew or had reason to know of an unreasonable and foreseeable risk of harm to people visiting the club..  In that regard, the evidence revealed that the owners/operators knew or should have known that in the approximately three-year period immediately prior to May 21, 2011: a) the Odessa Police Department had been repeatedly called to the Jaguars Gold Club, a stone’s throw from The Pussycat Lounge, for numerous and repetitive instances of violent criminal conduct at Jaguars Gold Club involving, among other things, armed robbery,  assault, gunshot victims and shots fired; b) the Ector County Sheriff’s Office had been repeatedly called to the premises of The Pussycat Lounge (as well as the business previously operated at those premises which was also owned and/or operated by the same persons) for numerous and repetitive instances of violent criminal conduct at those premises, involving, among other things, assault, aggravated assault, assault with bodily injury, aggravated assault with a deadly weapon, deadly conduct, robbery and a subject with a gun; and, c) the Ector County Sheriff’s Office had been repeatedly called to the Jaguar’s Gold Club for numerous and repetitive instances of violent criminal conduct at Jaguar’s Gold Club involving, among other things, assault, aggravated assault with a deadly weapon, aggravated assault, sexual assault, robbery, aggravated robbery, shots fired, deadly conduct, stab victim, man with a gun and prohibited weapon.  Therefore, our clients asserted that the owners/operators of The Pussycat Lounge knew or should have known of the risk that persons in the immediate vicinity of The Pussycat Lounge who visited  the Defendants’ two business establishments in that locale might foreseeably injure other people visiting the The Pussycat Lounge, such as Martin Blea, Jr., and Defendants had a duty to protect persons, such as Martin Blea, Jr., from the imminent, probable and foreseeable harm posed by other patrons of Defendants’ establishments.  Our clients asserted that their son died as a result of Steve Uresti’s foreseeable act of firing a gun that had been brought into the Pussycat Lounge as a result of the inadequate security measures employed by Defendants at The Pussycat Lounge on May 21, 2011.

The Estate of the deceased, Martin Blea, Jr., incurred funeral and burial expenses of $11,423.06 and medical expenses of $1,193.50. The parents sought to recover damages under the Survival Statute for the alleged conscious pain and suffering endured by Martin Blea, Jr. between the time he was shot and the time he was pronounced dead.  The parents also sought to recover for damages to the parent-child relationship, including loss of affection, solace, comfort, companionship, society, assistance, emotional support and love, loss of pecuniary value of the services of Martin Blea, Jr. and past and future mental anguish, grief and sorrow.

            Despite the various contentions of the owners/operators, their insurance company paid our clients the insurance policy limits of $1,000,000 to settle their claims. The net recovery for our clients, after payment of attorneys’ fees and case expenses, was $555,494.39.

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

 

What do I do if I am injured by a defective product?

Top 10 things to do if you are injured by a product:

by Daryl L. Derryberry, Member of Derryberry Zips Wade Lawhorn, PLLC

Defective tires de tread frequently and can cause serious injuries or death to the occupants of the vehicle.

  1. Contact a lawyer immediately to prevent the product from being destroyed or disposed of.  An attorney can send a spoliation letter to preserve the product for inspection which is crucial to your case.   Do not sign any documents prior to consulting with an attorney. 
  2. Obtain the name of the product manufacturer and the make and model number of the product.
  3. Send all worker’s compensation forms, if any, to your lawyer before signing.
  4. Take photographs of your injuries if possible.
  5. Take photographs of the scene of the incident if possible.
  6. Do not give any written or recorded statements to any insurance company or company representative without consulting with an attorney.
  7. Immediately seek medical attention at a hospital or from a doctor if you are injured.  If you do not seek medical attention, then the insurance company and/or product manufacturer will contend that you delayed in treatment and are not injured.
  8. If you do not have health insurance, contact an attorney.   We may be able to assist you in obtaining medical care.
  9. Prepare a brief summary of the incident.   Our memories fade about the details of an accident as time passes.  This is helpful later in jogging your memory of the details of the incident.
  10. Obtain a police report if one is available.

Daryl L. Derryberry is one of the two founding partners of the firm now known as Derryberry Zips Wade Lawhorn, PLLC (the “Firm”).  Daryl and Craig Zips started the Firm in May, 2002 and have enjoyed great success since the Firm’s inception. Daryl’s legal career spans two decades and includes successfully securing jury verdicts and settlements on behalf of his clients in oil rig accidents, 18 wheeler wrecks, medical negligence, products liability, broker malpractice, breach of fiduciary duty and other cases.

TO STAY UP TO DATE WITH THE LATEST LAW NEWS, BE SURE TO FIND US ON FACEBOOK AT https://www.facebook.com/dzwlaw AND FOLLOW US ON TWITTER AT https://twitter.com/DZWLAW and https://twitter.com/URHURT

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.