On December 16, 2011, a 63-year-old gentleman was riding his bicycle down Figueroa St. in Carson when a large tractor-trailer suddenly made a left turn and collided with him. The bicyclist sustained a major traumatic brain injury.
Shortly thereafter, the injured person’s sister and conservator hired us to pursue a personal injury case against the truck driver and his employer, a medium-sized trucking company. Although the wheels of justice often spin slowly in catastrophic injury cases such as this, and quick settlements are usually bad settlements, our goal was to obtain both a quick and a good recovery for our client, so that he could benefit from the funds before it was too late to do him any good.
We filed and served a lawsuit right away. It soon became apparent that defense counsel were inexperienced and did not appreciate the magnitude of the case or the risk that it posed for the insurance carrier and clients that they represented. In response to interrogatories requesting the amount of liability insurance applicable to this case, defendants responded that they had a single $1 million policy. Our own independent research suggested that there might be more coverage. So we followed up with additional discovery directed at the issue of coverage, including a notice of deposition of the trucking company’s owner. After much hemming and hawing, defendants finally conceded that, in addition to the $1 million policy that they had already identified, there was a $4 million umbrella policy as well.
The next step was to set up the case for either a policy limits settlement or a verdict at trial in excess of policy limits. Here again, defense counsel’s inexperience became apparent when they initially scoffed at the notion that the case was worth anywhere near the policy limits. To remove any doubt about that, we hired several top-notch damages experts and provided defense counsel (long before expert discovery was set to begin) with a life care plan, our economist’s report calculating the present value of the life care plan, a day-in-the-life video and a medical illustration detailing the extent of the plaintiff’s brain injury. We followed this with a CCP 998 offer to compromise for $5 million.
Defense counsel objected to the 998 on the grounds that it was premature because they had not yet had the opportunity to obtain certain information regarding damages. To put that argument to rest, we agreed to depositions of experts and other damages witnesses, as well as several defense medical examinations, on shortened notice.
At this point, defendants’ carrier had an important decision to make. If it rejected or ignored the 998, this would “open up” the policy limits. If we ultimately obtained a verdict at trial in excess of $5 million, the carrier would likely be responsible for the entire award. No insurance adjustor wants to be in a position where he has to tell his boss that the case that they could have settled for $5 million is now going to cost them $10 million.
Although defendants of course had their own take on damages, and their projections of economic damages were clearly going to be much lower than ours, the information that we had provided to them regarding damages (basically a full work-up of the case for trial) made it difficult to avoid the conclusion that a verdict in excess of $5 million was a very real possibility.
In a last ditch effort to avoid this difficult decision, defense counsel requested that we attend a mediation before the expiration of the 998. We declined. Our position was that the case was worth more than the policy limits, and the 998 was merely a necessary step to “open up” the policy. We were kind of hoping they would not pay the 998, so that we could seek the full value of the case at trial. In short, unless the defense wanted to pay more than the policy limits, there was nothing to negotiate.
When the deadline arrived, defendants finally accepted reality and agreed to pay the $5 million policy limits. The settlement was reached less than nine months after the accident.
Our client remains in a skilled nursing facility and is unable to speak or care for himself. However, he now recognizes and responds to his family and caregivers. The settlement has provided him with the funds necessary to pay for all of his future care, including care that goes well beyond what the facility itself provides. This will make his life considerably more comfortable, likely increase his life expectancy and remove any financial burden for his care from his family.
Had we followed the conventional path of getting all our ducks in a row before filing a lawsuit and then waiting until the last couple of months before trial to fully work up damages, the case might still have settled for $5 million, but it would have taken much longer. The plaintiff’s care would have needlessly suffered in the meantime, and his condition likely would have deteriorated.