VERDICT SEARCH REPORTS A $1,400,000 SETTLEMENT BY THE TYLER, TEXAS FIRM OF DERRYBERRY ZIPS WADE LAWHORN, PLLC IN AN 18 WHEELER CRASH

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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 Feb. 17, 2016, plaintiff Wanda Huddleston, 79 and retired, was northbound in a Chevrolet Silverado pickup truck on U.S. Highway 69 near Lindale, Texas. Handrijono Oetomo (“Oetomo”), an employee of DAT Truck Lines Inc. (DAT”), was southbound in an 18-wheeler owned or leased by HNL Truck Lines Inc (“HNL”). It was early morning and dark, and traffic was heavy. Oetomo attempted a U-turn in an open intersection, and Huddleston struck the 18-wheeler. She sustained multiple injuries and later had multiple strokes, which caused her to become mentally incapacitated. The investigating officer gave Oetomo a ticket for failing to yield the right of way.

Huddleston’s son, on her behalf, sued Oetomo, DAT and HNL for Oetomo’s actions in negligently making an unsafe U-turn, failing to yield the right of way and failing to keep a proper lookout. He also sued DAT for violating numerous policies and procedures and Federal Motor Carrier Safety Administration (FMCSA) regulations by not giving Oetomo any driver training, not disciplining him for driver log violations, not suspending him after he was given a citation, and not making a determination of whether the accident was preventable. The plaintiff sued HNL on theories of vicarious liability, alleging that Oetomo was a statutory employee of HNL.

Oetomo took no responsibility for the wreck and blamed Huddleston, in part, because women have slower reflexes.

Plaintiff’s counsel argued that Oetomo was lost and unfamiliar with the area and that he was in a rush, and that he falsified his logs. The truck’s data recorder said the truck had been operating for more than 13 hours, but Oetomo’s handwritten logs said he had been driving for only 7.25 hours.

Plaintiff’s counsel further argued that, under FMCSA regulations, because Oetomo did not understand English well enough, he should not have been driving the vehicle at all.

The defense argued that Huddleston was contributorily negligent for driving too fast, not keeping a proper lookout, not controlling her speed, and not braking or turning in time to avoid the collision. The defense accident reconstruction expert opined that Huddleston should have been able to see the truck and stop before the impact. An eyewitness who was behind Huddleston was able to stop, the defense noted.

HNL further argued that the truck was not a listed vehicle under its insurance policy and that it therefore had no insurance coverage. (Plaintiff’s counsel argued that, because the policy had a particular endorsement, known as an MCS-90 endorsement, the carrier would have to pay any eventual judgment against  Oetomo and HNL.)

Huddleston sustained a leg fracture and a subdural hematoma. She claimed that the accident caused two to three debilitating strokes, as well.

She underwent open reduction and internal fixation (“ORIF”) of the fracture, with placement of pins and screws. For the subdural hematoma, she underwent a craniotomy.

As a result of the strokes, she required 24-hour care and had to move into a nursing home. Plaintiffs’ neurology expert opined that the strokes were related to the accident.

Huddleston sought past medical bills of about $315,000, as well as $918,000 for the present value of her life-care plan. She also claimed past and future physical pain, mental anguish, physical impairment and disfigurement.

The defense neurology expert opined that strokes resulted from pre-existing conditions, not from the accident.

 The case settled for a total of $1,400,000. DAT and Oetemo settled on Sept. 16, 2016, for their policy limit of $1 million, paid by their carrier. HNL settled at mediation on March 6, 2017, for $400,000, paid by HNL’s carrier. HNL’s policy limit under the MCS-90 endorsement was $750,000.

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DERRYBERRY ZIPS WADE LAWHORN, PLLC

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

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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

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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

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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