The Top 50 Verdicts & Settlements of 2019

Each year, North Carolina Lawyers Weekly publishes our list of the largest Verdicts & Settlements of the previous year. This year, we’re publishing what might be the largest list we’ve ever compiled: There are 50 verdicts and settlements in our list this year, all of them of in excess of $1 million.

The growth in our reporting is likely not because our state has become any more litigious this year, or juries necessarily any more generous. Rather, we have made a concerted effort as a paper to increase both the number and diversity of verdicts and settlements we report on our pages.

It is important to us that our paper covers the state’s legal community as broadly as possible, and our list this year reflects that mission: our top fifteen alone contains cases involving breach of contract, antitrust violations, construction defects, class action lawsuits, medical malpractice, ERISA violations, wrongful death, negligence, and police misconduct.

We have a dedicated team of newsgatherers working to make our coverage as comprehensive as possible, but to a large degree we remain dependent on the legal community itself to keep us abreast of outcomes in cases. Any time an attorney or a firm has a verdict or settlement that they think might be of interest to some segment of our readership, we strongly encourage them to let Lawyers Weekly know about it.

There’s one way in which we realize that our list doesn’t reflect the full spectrum of litigation outcomes, however: Almost every verdict report we receive comes in a case where the jury has awarded at least some recovery to the plaintiff. Juries, of course, quite often return verdicts for the defense, but for obvious reasons we are much less likely to ever discover those verdicts.

Addressing that imbalance is one of our top goals for 2020. Defense attorneys and plaintiffs’ attorneys alike do exceptional work, and we want to ensure that we recognize as much of that work as possible. Where juries have returned verdicts for the defense, we would encourage attorneys to reach out to us to tell us about those verdicts, in the hopes that we might be able to report those verdicts in a manner that informs our readerships while also respecting the client’s understandable desire for privacy.

Settlements are trickier still—settling a case that could have exposed a client to a large verdict is often an exceedingly very favorable outcome for that client, but one about which their attorneys are likely to be even more reticent to speak.

We understand these challenges. But we are committed, going forward, to do as much as we possibly can to ensure that our reporting reflects the full breadth and diversity of the great work being done within our legal community, and we are deeply indebted to all of the attorneys who aided us in advancing that mission in 2019 and beyond.

David Donovan

Editor in Chief

1. Chemical dispute leads to $75.4M verdict

A federal jury has ordered a High Point chemical distributor to pay a Chinese chemical manufacturer $75.4 million after the jury found that the distributor and its owners had breached its contract with the manufacturer and engaged in unfair and deceptive trade practices.

In 2011, Hongda Chem of High Point agreed to be the exclusive U.S. distributor of Shangyu Sunfit’s N-(n-Butyl) thiophosphoric Triamide (NBPT), a chemical used in fertilizers. Not long after, Hongda began improperly retaining all of the proceeds from sales of NBPT, Sunfit alleged. Hongda claimed that it had never been paid by the end consumer, but Sunfit called the buyer and learned that Hongda had in fact, been paid. Hongda alleged that this contact with the end consumer was an effort by Sunfit to sell its NBPT directly and thus a breach of the contract that made Hongda the sole distributor.

Hongda sued Sunfit, and Sunfit countersued against Hongda and its three principal owners, whom they claimed had further breached the contract by secretly importing the chemical from other suppliers and creating another company to sell it in North America.

U.S. District Court Judge N. Carlton Tilley Jr. ruled that Hongda Chem had breached its contract with Sunfit, but left the question of damages for the jury. In October, the jury found that Hongda had entered the deal with Sunfit with the intent of breaching the contract, and that the three individual defendants had engaged in deceptive behavior. It awarded $9.8 million in breach of contract damages and found Sunfit had suffered $6 million in damages because of Hongda’s unfair and deceptive conduct, which was trebled to $18 million, for a total of $27.8 million.

The jury also found that the three principal owners’ conduct was unfair and deceptive and awarded Sunfit another $15.87 million. Eagles trebled the damages, bringing the verdict against the owners to $47.6 million, and the total recovery for Sunfit to $75.4 million.

Beth Langley and Kim Martson of Brooks Pierce in Greensboro represented Sunfit.

Peter Santos of Nexsen Pruitt in Charlotte represented Hongda Chem. He said the company is filing post-trial motions and declined to comment on the verdict.

VERDICT REPORT — BREACH OF CONTRACT/UDTP

Amount: $75.4 million

Injuries alleged: Breach of contract; and unfair and deceptive trade practices

Case name: Hongda Chem USA v. Shangyu Sunvil Chemical Co. and YMS Agriculture International Corp.

Court: U.S. District Court for the Middle District of North Carolina

Case No.: 1:12-cv-1146

Judge: Catherine Eagles

Date of verdict: Oct. 15, 2019

Attorneys for plaintiff: Beth Langley and Kim Martson of Brooks Pierce in Greensboro

Attorney for defendant: Peter Santos of Nexsen Pruitt in Charlotte

2. UNC, Duke med school faculty receive $54.5M in no-poaching case

[Editor’s note: This story originally appeared under the headline “Attorneys awarded $18M in Duke med school no-poaching case.” The headline has been edited to clarify the order in which it appears in our list.]

Attorneys for faculty members at medical schools at Duke University and the University of North Carolina will receive $18.16 million in legal fees as part of $54.5 million class action settlement that was agreed to in May and officially approved by U.S. District Court Judge Catherine Eagles on Sept. 25.

Duke University agreed to pay $54.5 million to settle a class action antitrust lawsuit that alleged that it had an agreement with UNC not to poach the other’s medical school faculty. The class included roughly 5,500 employees at Duke Medical School, Duke University Health System, UNC School of Medicine, and the University of North Carolina Health Care System, so the gross amount for each class member will be about $10,000.

“The average check will be lower than that [after taxes and lawyer fees], but it will still be into the thousands of dollars,” said Dean Harvey, an attorney with Lieff, Cabraser, Heimann & Bernstein in San Francisco, which represented the plaintiffs along with Robert “Hoppy” Elliot of Elliot Morgan Parsonage in Winston-Salem.

The lead plaintiff in the case, Danielle Seaman, was an assistant professor of Radiology at Duke who wanted to work at UNC. She applied for a position there, but, she contended, was quickly shut down via an email.

“Someone on the UNC side told her she would be a great fit, but they won’t consider her because there was an agreement between the medical schools not to hire each other’s faculty,” Harvey said.

That email was the crucial piece of evidence in the case.

“That was, in our view, as close to a smoking gun as you can get,” Harvey said.

The initial lawsuit named UNC, but the university settled last year. Harvey said that because UNC is a public university, it was shielded from any monetary liability. As part of the settlement, UNC agreed to assist Seaman’s attorneys with its case against Duke

“If you are Duke, and want to keep the best faculty, and UNC wants to hire them away, the only way to keep them is to pay them more, or you can call the school and agree not to compete with each other,” Harvey said.

“We argued that the purpose was to save money and pay the faculty less. One of the misconceptions about quid pro quo is that it has to be in writing, but that is not the law. The test is if there is a meeting of the minds, and that can occur without exchanging a word. It can be a wink or a nudge or any way that humans communicate with each other.”

Duke University denied any wrongdoing or that it had such an agreement with UNC.

Harvey said that he and his team were very close to taking the case to trial, even conducting jury focus groups, but both sides were able to agree to a settlement after a day of mediation.

Eagles noted that discovery in the case was “thorough and costly,” with Duke producing more than 430,000 pages of documents and more than 28,000 data files related to employee compensation. Additionally, the plaintiffs’ attorneys risked not only their time, but also substantial out-of-pocket expenses by taking on the case.

“Class counsel advanced nearly $3 million—the vast majority of the approximately $3.3 million in out-of-pocket costs for which they seek reimbursement—to cover the cost of the expert work and analysis,” Eagles wrote. “These significant risks—and Class counsel’s agreement to take the case on contingency—also weigh in favor of the award. The attorneys and staff have worked over 12,500 hours since it began.”

Just before the case settled, the U.S. Department of Justice had filed a motion to intervene in the case.

“While there is no direct evidence to suggest this case was undesirable, the number of firms willing to take-on a complex and time-consuming case such as this which posed significant risks—and on a contingent basis no less—is no doubt small,” Eagles wrote. “This is particularly likely to be true here, where the suit was initiated before a government investigation into the antitrust allegations.”

Seaman will receive a service award of $125,000.

Attorneys for Duke University could not be reached for comment.

SETTLEMENT REPORT — ANTITRUST VIOLATIONS

Amount: $54.5 million

Injuries alleged: Suppression of wages

Case name: Danielle Seaman, individually and on behalf of all others similarly, v. Duke University and Duke University Health System

Court: U.S. District Court for the Middle District of North Carolina

Case No.: 1:15-cv-462

Judge: Catherine Eagles

Date of settlement: May 20, 2019

Attorneys for plaintiff: Kelly Dermody, Brendan Glackin, Dean Harvey, Anne Shaver, Lin Chan, and Yaman Salahi of Lieff, Cabraser, Heimann & Bernstein in San Francisco and Robert “Hoppy” Elliot of Elliot Morgan Parsonage in Winston-Salem

3. Fake moos: Cash-cow scheme ends at $30M tipping point

It was a baffling case of the vanishing bovines.

In 2012, the father-and-son duo that owned Franklin Livestock in Franklin County agreed to raise more than 2,000 heads of cattle for the owner of a South Dakota cattle feedlot, who would then fatten them up before sending them to their fate.

But the cows never made it that far. Franklin Livestock admitted that thousands of them had died under the company’s watch, but insisted that it wasn’t at fault, laying the blame on tainted vaccines.

But that was a bunch of bull, court documents show, and now, a Franklin County Superior Court judge has ordered Franklin Livestock to pay the South Dakota company, J&K Cattle, more than $30 million.

“This case had had more twists and turns in any case that I have ever experienced,” said Scott Harris of Whitfield Bryson & Mason in Raleigh, who represented J&K.

“This case involves millions of dollars lost, a confession of judgment that Franklin owes J&K 2,106 head of cattle, and an egregious fraud already perpetrated in federal court, resulting in the most severe discovery sanction possible in civil litigation: dismissal of defendants’ fraudulent claims that vaccines caused exceedingly high death rate in their cattle farming business.”

In 2013, Franklin Livestock’s owners, Dennis and Grant Boone, told J&K that thousands of cattle that J&K had paid for had either gotten sick or died due to a reaction to a tainted vaccine. They suggested that J&K should join a lawsuit against the vaccine maker, which J&K did.

But during those legal proceedings, it was discovered that the Boones had fabricated thousands of documents to make it look like the vaccine had killed the cows. J&K then sued Franklin Livestock, alleging that the Boones were running a scam–the company had charged J&K for cattle that had never existed, had been sold to other clients, or had died under its poor care, the lawsuit alleged.

“They would buy cattle from a place in South Carolina and send a ticket with an invoice to my client, and then use the same invoice and send it to other clients,” Harris said. He and his colleagues, Andrew Hathaway and Jeremy Williams, discovered that Franklin Livestock used their customers’ money to pay personal income taxes and buy a home.

Boone testified during a summary judgment hearing that he “was simply a poor businessman who didn’t have a handle on his finances and didn’t manage things very well,” Harris said.

On Nov. 4, Franklin County Superior Court Judge Alma Hinton issued an order for summary judgment, ordering Franklin Livestock to pay J&K $1,400 for each of the 2,106 cattle heads that J&K had paid Franklin Livestock, plus J&K’s lost profits, which she then trebled under the state’s unfair and deceptive trade practices law. With interest, the total award came to $30,941,939.

“It is unlikely that we will ever be able to collect a small fraction of this, [but] we will do all that we can since my clients owe approximately $2 million to various banks in South Dakota due to the Boones’ and Franklin Livestock’s actions,” Harris said.

James Jorgenson in Raleigh represented Franklin Livestock. He could not be reached for comment prior to publication of this story.

VERDICT REPORT — BREACH OF CONTRACT & FRAUD

Amount: $30,941,939

Injuries alleged: Lost assets, lost profits

Case name: J&K Cattle, Kevin Van Beek and Jay Leloux v. Franklin Livestock, Dennis Boone and Raymond Grant Boone

Court: Franklin County Superior Court

Case No.: 17-CVS-447

Judge: Alma Hinton

Date of verdict: Nov. 4, 2019

Highest offer: $100,000

Attorneys for plaintiff: Scott Harris, Andrew Hathaway, and Jeremy Williams of Whitfield Bryson & Mason in Raleigh

Attorney for defendant: James Jorgenson in Raleigh

4. After much finger-pointing, developer wins $21M settlement

A residential development company has settled a lawsuit against more than two dozen other companies that it accused of shoddy work on a New Bern condominium project for $21 million, the development company’s attorneys report.

Daniel Bryson, Matthew Lee and Jeremy Williams of Whitfield, Bryson & Mason in Raleigh report that the dispute dates back to 2009, when their client, New Bern Riverfront Development, discovered multiple defects in a 121-unit condominium project at the mouth of the Neuse River that was built by Weaver Cooke Construction.

These defects were “wide-ranging” and consisted of issues with the project’s post-tensioned concrete system, the attorneys said. These included water from the swimming pool leaking into the parking area below, and water seeping through doors, walls, and window frames.

Almost 80 of the units sat unsold as a result, Williams said. NBRD filed for Chapter 11 bankruptcy protection in 2009, and the lawsuit was removed from Wake County Superior Court to the U.S. Bankruptcy Court for the Eastern District of North Carolina.

“It was poor timing for it to have happened in 2008, as it is,” Williams said.

NBRD initially filed suit against nine defendants, but the lawsuit ultimately expanded to include 29 defendants as NBRD filed suit against subcontractors, and those subcontractors filed lawsuits against other subcontractors.

“It just kept on growing, and everyone kept trying to point the finger at someone else,” Williams said.

The estimated cost to repair the defective conditions was approximately $18.72 million. A trial had been set for March, but the parties went into mediation and settled the case in December. Pat Coughlan and Devon Coughlan of Conflict Solutions of West Palm Beach, Florida, mediated the settlement.

“The biggest challenge to getting this resolved was just getting all of the parties together to hammer something out that would cut off liability for all the defendants and put my client in the best position we could,” Williams said.

Joseph Gram of Conner Gwyn Schenck in Greensboro represented Weaver Cooke Construction. He declined to comment on the settlement.

SETTLEMENT REPORT — CONSTRUCTION DEFECTS

Amount: $21 million

Injuries alleged: Loss of real estate sales

Case name: New Bern Riverfront Development, LLC v. Weaver Cooke Construction, LLC, et al.

Court: U.S. Bankruptcy Court for the Eastern District of North Carolina

Case No.: 09-10340-8-SWH

Mediators: Pat Coughlan and Devon Coughlan of Conflict Solutions of West Palm Beach, Florida

Date of settlement: Dec. 23, 2019

Attorneys for plaintiff: Daniel Bryson, Matthew Lee and Jeremy Williams of Whitfield, Bryson & Mason in Raleigh

Attorney for defendant: Joseph Gram of Conner Gwyn Schenck in Greensboro

5. Town pays developers $15.3M to settle fee dispute

The town of Apex has paid $15.3 million to settle a class action lawsuit with builders in the town who said they were wrongly charged impact fees, the builders’ attorneys report.

Daniel Bryson and Hunter Bryson of Whitfield Bryson & Mason in Raleigh represented roughly 300 builders from whom the town had unlawfully collected water and sewer impact fees for future services and as a precondition to providing those services.

The town of Apex claimed that the fees were properly and lawfully collected, saying that they were for contemporaneous, not future, services, Daniel Bryson said. 

“That becomes the battle, so we dig into audited financial statements and council meeting minutes to trace how they actually have spent the money,” Bryson said.

In 2016’s Quality Built Homes Inc. v. Town of Carthage, the North Carolina Supreme Court ruled that towns had no authority to charge developers upfront fees for water and sewer services. It later ruled that the statute of limitations for lawsuits to recover those fees is three years. Whitfield Bryson & Mason is currently litigating lawsuits across the state regarding the issue.

Former North Carolina Court of Appeals judge Douglas McCullough mediated the settlement, which was agreed to on May 28.

Susan Burkhart of Cranfill Sumner & Hartzog in Raleigh represented the Town of Apex. She could not be reached for comment.

SETTLEMENT REPORT — CLASS ACTION

Amount: $15,356,673

Injuries alleged: Unlawful assessment of impact fees

Case name: Upright Builders, Inc. and Legacy Custom Homes, Inc. v. Town of Apex

Court: Wake County Superior Court

Case No.: 18-CVS-3720

Mediator: Douglas McCullough

Date settlement: May 28, 2019

Attorneys for plaintiffs: Daniel K. Bryson and J. Hunter Bryson of Whitfield Bryson & Mason in Raleigh

Attorney for defendant: Susan Burkhart of Cranfill Sumner & Hartzog in Raleigh

6. Mom of brain-damaged infant settles lawsuit for $15M

A North Carolina mother whose newborn daughter suffered severe respiratory failure and cardiac arrest after a licensed practical nurse failed to replace her breathing tube has confidentially settled a lawsuit against an unnamed medical center for $15 million, her attorneys report.

Wade Byrd of Fayetteville, who represented the mother and child along with Mark Hockman in Fayetteville and John Edwards of Edwards Kirby in Raleigh, reports that the daughter was born prematurely in March 2014. Her windpipe was narrow and she required a tracheostomy (in which a tube is inserted through a hole in the throat to allow breathing) but otherwise, the child was healthy, Byrd said.

On April 29, 2014, a licensed practical nurse believed that the tube was clogged with mucus. She removed it to clean it but didn’t properly replace it, Byrd said. The infant went into respiratory and cardiac arrest, depriving her brain of adequate and adequately oxygenated blood flow.

The girl suffered a severe cognitive impairment, cerebral palsy, dystonia (a disorder in which a person’s muscles contract uncontrollably), abnormal muscle tone with muscle spasm and abnormal posture, quadriparesis (weakness in all four limbs), cortical blindness, and dysphagia (difficulty swallowing).

The child, now five years old, had an estimated life care plan of $20 million to $50 million. The mother sought both compensatory and punitive damages, claiming the health care company failed to properly train the nurse and assess her competency and failed to properly assign the nurse.

“She is devastated,” Byrd said of the young girl. “She will never walk and most likely never talk. She is blind. She will require a lifetime of intensive care because she is ventilator-dependent and tube-fed. She is in terrible shape.”

The identities of the defense attorneys were withheld as part of the settlement agreement, but Byrd said that the defense had argued that the girl had a limited life expectancy even before the incident occurred.

“The defendant wanted to lay the cause of the injuries to her premature birth, but we had great evidence that that was just not true,” Byrd said.

The mother had a full time job and Medicaid would only agree to two shifts of home health care nursing for her daughter.

“This poor lady worked eight, nine, 10 hours a day at her job and then came home and relieved the nurse,” Byrd said. “During that shift, she had to eat, sleep and take care of her daughter. I never heard her complain.”

SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $15 million

Injuries alleged: Profound brain injury with severe cognitive impairment, cerebral palsy, dystonia (a disorder in which a person’s muscles contract uncontrollably), abnormal muscle tone with muscle spasm and abnormal posture, quadriparesis (weakness in all four limbs), cortical blindness, and dysphagia (difficulty swallowing)

Case name: Withheld

Case number: Withheld

Court: Withheld

Date of settlement: Feb. 2, 2019

Attorneys for plaintiffs: Wade Byrd and Mark Hockman of the Law Offices of Wade E. Byrd in Fayetteville and John Edwards of Edwards Kirby in Raleigh

Attorneys for defendant: Withheld

7. Young boy’s dextrose overdose leads to $13M settlement

The family of a child who suffered a brain injury after he was given a massive overdose of dextrose during an intravenous treatment has confidentially settled a lawsuit against the infusion’s provider for just over $13 million, the family’s attorneys report. 

David Kirby of Edwards Kirby in Raleigh said the child required at-home infusions of an intravenous dextrose solution to supplement his nutrition because he suffered from short bowel syndrome, in which the absence of a small intestine makes it difficult for his body to absorb nutrients. A physician order required the 4-year-old to receive a saline solution consisting of 10 percent dextrose.

Instead, in 2013, a saline solution containing between 54 and 61 percent of dextrose, more than five times the amount of dextrose ordered, was injected, resulting in a catastrophic brain injury. The boy will require attending care for the rest of his life as a result.

“The child went into a coma, and he wound up with longer-term issues,” Kirby said. “It’s a very sad situation.”

The overdose was traced to the compounding process at the home infusion provider’s branch. Testimony showed that none of at least seven safety checks were performed as required by policy with regard to the child’s solution, Kirby said.

The family alleged there were staffing issues, training failures, and prior failure to follow safety policies at the provider’s branch, along with errors regarding the solution itself.

Due to a confidentiality agreement, other details about the case, including the name of the defendant and the defendant’s attorney, were not available, but Kirby said that the provided raised defenses related to the issue of causation and the extent of the boy’s injuries.

“There was no debate he had been given an incorrect solution,” Kirby said. “The defense was more in line that this was inadvertent and this was a one-off situation.”

The parties agreed to the settlement on April 29, 2019. Kristen Beightol of Edwards Kirby, Mark Holt and David Sherlin of Holt Sherlin in Raleigh, Laurie Armstrong of Raleigh, and Richard Anderson of Price, Petho & Anderson in Charlotte also represented the family.

SETTLEMENT REPORT – MEDICAL MALPRACTICE

Amount: $13,025,000

Injuries alleged: Catastrophic brain injury

Case name: Withheld

Court: Withheld

Case number: Withheld

Date of settlement: April 29, 2019

Attorneys for plaintiff: David Kirby and Kristen Beightol of Edwards Kirby in Raleigh, C. Mark Holt and David Sherlin of Holt Sherlin in Raleigh, Laurie Armstrong of Durham, and Richard Anderson of Price, Petho & Anderson in Charlotte

Attorney for defendant: Withheld

8. Duke University settles $10.65M ERISA claim

Duke University has agreed to settle a federal Employment Retirement Income Security Act claim brought by employees for $10.65 million, a lawyer for the plaintiffs reports.

Jerry Schlichter of Schlichter Bogard & Denton in St. Louis, Missouri, represented over 40,000 employees and retirees as part of a class action against the private university. He said that while the settlement has not been finalized, a preliminary settlement approval motion has been filed.

Schlichter said the case was one of the first ever filed against a university alleging a breach of fiduciary duty in charging excessive fees for 403(b) plans, which are similar to 401(k) plans but are used by nonprofits. The plaintiffs in the cases filed separately in August 2016 and August 2018 before a federal judge combined their cases.

The employees said in a complaint that the university breached loyalty and prudence duties by causing participants to pay more than they should have for recordkeeping, administrative services and for investment services. Duke denied any breach of fiduciary duties as part of the settlement.

The money has been placed in a settlement fund as affected plaintiffs apply for compensation. Duke also agreed to hire an independent consultant to consider bids for recordkeeping services, ease the ability of participants to transfer investments out of frozen annuity accounts, analyze the cost of offering different share classes of mutual funds being considered for inclusion in the plan, and avoid using plan assets to pay the salaries of Duke employees.

These changes are mandatory for the next three years, according to the terms of the settlement.

“Employees of large non-profit universities have the same right to build their retirement assets as employees of corporations,” Schlichter said.

SETTLEMENT REPORT — ERISA VIOLATIONS

Amount: $10.65 million

Injuries alleged: Overcharged retirement fund fees

Case names: David Clark, et al. v. Duke University, et al.; Kathi Lucas, et al. v. Duke University

Court: U.S. District Court for the Middle District of North Carolina

Case Nos.: 1:16-CV-01044 and 1:18-CV-00722

Judge: Catherine Eagles

Date of settlement: Jan. 16, 2019

Attorneys for plaintiff: Jerry Schlichter, Kurt Struckhoff, Scott Bumb, Troy Doles, Heather Lea, Sean Soyars and Michael Wolff of Schlichter Bogard & Denton in St. Louis, Missouri; David Puryear Jr. of Puryear and Lingle in Greensboro

Attorneys for defendant: Jeremy Blumenfeld, Abbey Glenn, Donald Havermann and Christopher Weals of Morgan, Lewis & Bockius in Philadelphia and Washington D.C.; James Cooney III and Brent Powell of Womble Bond Dickinson in Charlotte

9. Family of woman killed in crash receives $9.85M

The family of a 60-year-old North Carolina woman who was killed after a commercial truck rear-ended her car has settled their claims for $9.85 million, the family’s attorneys report.

The car had minor damage, but the woman died from a head injury, said Tom Comerford and John Kenneth Moser of Comerford, Chilson & Moser in Winston-Salem. The family settled the case in mediation on May 14 before any lawsuit was filed.

Due to a confidentiality agreement, many details about the wreck and the settlement were not disclosed, including the location of the incident and the identities of the defendants and their counsel.

But the attorneys said that the driver of the truck had a history of accidents and traffic violations. The victim was a wife and mother who did not work, and medical damages weren’t substantial.

Peter Mariani of Finger, Roemer, Brown and Mariani in Jonesville also represented the family.

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $9.85 million

Injuries alleged: Head injury

Case name: Confidential

Case number: Confidential

Court: Withheld

Date of settlement: May 14, 2019

Attorney for plaintiff: Tom Comerford and John Kenneth Moser of Comerford, Chilson & Moser in Winston-Salem and Peter Mariani of Finger, Roemer, Brown and Mariani in Jonesville

Attorney for defendant: Withheld

10. Highway crash that killed family results in $9.45M settlement

The surviving relatives of a family of four who were all killed after a tanker truck crashed into the back of their car has reached a $9.45 million confidential settlement with two trucker drivers involved in the crash and the company that was replacing highway reflectors and had allowed highway traffic to back up for more than six miles at the time of the crash, the family’s attorneys report.

Kurt Dixon of Riddle & Brantley in Raleigh and David Kirby and Bill Bystrynski of Edwards Kirby in Raleigh said that many of the details of the 2017 crash were withheld pursuant to a confidentiality agreement, but the victims were a married couple and their two children. The husband and wife were 25 and 31, respectively, and their two daughters were 3 and 1. The driver of the tanker was also killed.

“This is an extremely tragic case,” Kirby said. “A young family was completely wiped out in an instant.”

The reflector replacement work was a “moving operation” in which workers proceeded down Interstate 95 on trucks, trailed by trucks with signage that directed traffic into an open travel lane. The plaintiffs, the husband’s and wife’s respective parents, alleged that North Carolina Department of Transportation regulations required the operation to move forward at no less than 3 mph for safety reasons, but the company’s own records showed that it was moving at less than half the required speed, the attorneys said.

By the time of the wreck, traffic had slowed to a crawl. The tanker’s driver failed to notice the slow-down and crashed into the family’s car from behind, “resulting in a fireball that killed the truck driver and the family,” Bystrynski said. A tractor-trailer, which may have been blocking the tanker driver’s view, had pulled out of the way just before they reached the backup, leaving the tanker driver with no way to avoid the impact.

The settlement was reached with the company replacing the reflectors and from the insurance limits of the two trucks involved in the crash.

If workers could not keep up the necessary speed, DOT regulations required the operation to either vacate the road and allow traffic to clear, or else switch to a lane closure with cones and barrels, but the operators did neither of these things, the plaintiffs’ experts said. Signs posted further back on the highway alerted motorists about the work ahead, but the travel lane where the work was being done remained open.

Traffic information from cell phone data played a crucial role in the settlement, Dixon said. It showed that traffic was backed up, and sometimes stopped, uninterrupted for six miles from the workers’ position to the site of the crash. The company that provided the cell phone data fought subpoenas for its testimony, and the plaintiffs ended up hiring an expert to interpret Google data, the attorneys said.

The company responsible for the road work disputed all of the claims against it and argued that causation hadn’t been established because the tanker driver had an unobstructed view for more than a third of a mile but never slowed down for the slow-moving traffic.

The names of the defendants and their counsel, and the location of the crash, were also withheld pursuant to the confidentiality agreement.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $9,450,000

Injuries alleged: Four deaths

Case name: Confidential

Court: Confidential

Date of settlement: November 2019

Attorneys for plaintiff: Kurt Dixon of Riddle & Brantley in Raleigh and David Kirby and Bill Bystrynski of Edwards Kirby in Raleigh

Attorneys for defendant: Withheld

11. Man burned in plant explosion settles suit for $9.2M

A former manufacturing plant janitor who was severely burned after a machine exploded has confidentially settled a lawsuit against the plant’s owner for $9.2 million after successfully arguing that he was an employee of the temporary employment agency that gave him his assignment, rather than the plant itself, allowing him to both collect a workers’ compensation claim and pursue a third-party lawsuit against the plant’s owner, his attorneys report.

The case hinged on whether the victim, whose name was withheld, was a “borrowed servant”–that is, whether he was an employee of the temp agency or the North Carolina plant where he had worked for several months before the 2017 explosion, said Forest Horne of Martin & Jones in Raleigh, one of his attorneys.

The victim suffered second-and third-degree burns to more than one-third of his body, including his back, his lower extremities, and part of his face and head. He was airlifted to the UNC Burn Center, where he underwent extensive surgery and stayed for more than two months. He also suffered a head injury, post-concussive syndrome, traumatic tinnitus, and shock trauma. He was later diagnosed with post-traumatic stress disorder and depression.

His family initially contacted the firm to handle a workers’ compensation claim. Steven Corriveau, also of Martin & Jones, said that the contracts between the temp agency and the plant would determine whether a third-party claim could also be pursued, depending on whether the agency or the plant was considered his employer.

The defense counsel for the workers’ compensation carrier was “dismissive” about the prospects of a third-party claim, Corriveau said, claiming that no signed contract between the temp agency and the factory owner existed and that a workers’ compensation claim was the victim’s only option.

Horne said that because the defense counsel was “uncooperative,” the client filed a third-party lawsuit against the plant owner.

“We decided to take the borrowed servant issue head-on and filed the third-party lawsuit affirmatively alleging that the plaintiff was not an employee or borrowed servant of the factory owner, the defendant,” he said. “We also alleged that the defendant negligently failed to maintain and monitor its machines, and that this caused the explosion and fire resulting in the plaintiff’s injuries.”

The plaintiff’s attorneys sifted through more than 50,000 pages of discovery documents and found that a signed copy of a contract between the temp agency and the factory did indeed exist.

“That signed contract contained very helpful language that, along with admissions we obtained in depositions from defendant’s witnesses, allowed us to make arguments that would have likely defeated the borrowed servant defense,” Horne said. “The contract between the employer and the business said the injured employee was the employee of his employer. The contract did not, however, state explicitly that the employee was not an employee of the business. The business argued because the contract was silent on that point, that they could still argue the injured party was a joint employee and the borrowed servant doctrine applied.”

The defense also contended that the explosion and fire was caused by an unforeseeable and unpreventable mechanical failure. Engineering experts paid on-site visits to the plant to piece together what happened.

“When you have a case like this, you really need to have experts explain the manufacturing process, then go to the scene, and participate with your experts in determining what happened.” Horne said. “The defense assembled an equally impressive roster of engineering and safety experts who opined that the defendant did all they could, and this was a tragic but unforeseeable event.”

The plant filed a motion for summary judgment on the borrowed servant doctrine defense, but with the motion pending, the parties sides settled resolved the third-party lawsuit for $8 million.

“While we were confident in our case had it proceeded to trial, with the offer that was made at the second mediation, my client decided to accept and settle, as he knew the risk of a bad decision on the employer immunity issue,” Horne said.

The attorneys then filed a motion to dissolve the workers compensation lien, citing the insurance carrier’s insistence that no signed contract existed between the employer and factory owner, the carrier’s refusal to provide assistance with third-party cases expenses, and the carrier’s numerous actions that frustrated the third-party claim, said Hunt Willis, also of Martin and Jones.

The carrier agreed to waive the lien and pay an additional amount which exceeded $1.25 million, so the total settlement was $9.25 million.

Horne said his client continues to undergo laser treatment for scar tissue resourcing. He also lost part of his left ear and wears a stocking cap, long sleeves and long pants wherever he goes.

“He’s actually using the opportunity to go back to school and get some sort of technology degree because he can no longer work outdoors or any environment that is not temperature controlled,” he said. “Frankly, he doesn’t like to go out in public a lot.”

SETTLEMENT REPORT — NEGLIGENCE

Amount: $9.2 million

Injuries alleged: Third-degree burns, head injury and post-concussive syndrome, traumatic tinnitus, shock trauma, PTSD, and depression

Case name: Withheld

Court: Withheld

Date of settlement: May 31, 2019

Attorneys for plaintiff: Forest Horne, Steven Corriveau, and Hunt Willis of Martin & Jones in Raleigh

Attorneys for defendant: Withheld

12. Jury awards $8.32M to man shot by deputy

A federal jury has ordered three Wake County sheriff’s deputies to pay an Apex man $8.32 million after he was stopped and then unlawfully shot while on his property. Robert Zaytoun and Matt Ballew of Zaytoun Ballew & Taylor in Raleigh and Ryan Oxendine and Jim Barnes of Oxendine Barnes & Associates in Raleigh represented the plaintiff, Michael Morgan. The attorneys said they believe the verdict to be the largest police misconduct civil rights verdict ever in North Carolina, and it is the largest such verdict ever reported to Lawyers Weekly.

The incident occurred on July 5, 2013, when Morgan, the owner of a tree service, was using his truck to transport debris to a large field that he owned. He was about to reach the field when he passed Ricky Spivey, a Wake County sheriff’s deputy, who then turned around, according to his complaint. By the time Spivey reached Morgan’s property, Morgan had begun unloading the debris. Spivey rolled down his window and told Morgan to approach his car. Spivey, who claimed that Morgan was driving recklessly, demanded Morgan show him his driver’s license and registration, and Morgan complied.

At the time, deputies Joshua Legan and Casey Miller were more than 20 miles away from the scene. Even though Spivey reported a routine traffic stop and did not request any backup over the radio, Legan and Miller hurried into their separate patrol cars and proceeded to drive at extreme and unsafe speeds, through two-lane residential streets, toward Spivey’s location, according to the complaint.

Legan searched Morgan’s truck without permission and Spivey charged him with reckless driving. Afterwards, Morgan got into his truck and began performing “donuts” and “fishtails” elsewhere on his property.

According to the complaint, Spivey drove his car toward Morgan, and Morgan stopped his truck. Spivey yelled for Morgan to move the truck out of his way, and Morgan told him to go around him. Spivey got out of his vehicle while brandishing a baton, and approached the driver’s side of Morgan’s truck in an “obviously hostile manner.”

Morgan presented evidence at trial showing that, as Spivey jerked him up and out of his seat through the window, he felt an impact on his head, and he was unsure if the impact came from Spivey’s baton or from his head hitting the door frame as he was being pulled out of the window. Legan drew a taser, and Miller drew his pistol and ran to the passenger window of the truck with his pistol loaded and cocked, and pointed at Morgan, the complaint says.

Morgan’s foot came off the brake of the truck and it began idling forward. Spivey began pulling Morgan’s body through the driver’s window, at which point his tee shirt ripped, causing him to drop back into the driver’s seat. (Morgan’s attorneys presented the shirt into evidence at trial.) Immediately after Morgan landed back onto the driver’s seat, he attempted to push the brake of the truck to stop it from rolling forward. At that moment, Miller opened fire, shooting Morgan twice, once in the left knee and once in the right hand.

“Morgan watched as three fingers on his right hand exploded in front of him. He managed to put the truck in park with his left hand, open his driver door, and collapse onto the ground,” the complaint says. “He screamed in excruciating and horrible pain as he lay on the ground bleeding While writhing in pain, Morgan called out, “I need EMS! I need an ambulance!”

The employee witnessed the entire incident. He testified that the deputies ordered him to get on the ground. Miller then placed him in handcuffs and the employee could hear Morgan screaming in pain. The employee called out several times, “Where did you hit him? Where did you hit him?” Spivey walked over and responded, “It don’t matter, that’s what happens when you mess with the big dogs.”

Morgan’s employee watched the three deputies gather together and start talking with one another far enough away where the employee could not hear what they were saying. The evidence showed that the deputies used the opportunity to fabricate a story of what occurred in the field to make their conduct and the shooting appear justified.

Morgan was charged and eventually acquitted of felony assault with a deadly weapon on a law enforcement officer, assault inflicting serious injury on a law enforcement officer, assault on a law enforcement officer, kidnapping a law enforcement officer, and resisting arrest. He was incarcerated for over four months until his family posted a sufficient bond for his pretrial release, after which was released on strict house arrest status for more than 500 days as he awaited his trial date.

Morgan asserted that he received subpar medical care for his gunshot wounds during his incarceration. He was taken from the shooting scene directly to Duke Hospital, where he underwent trauma surgery. Within two days of surgery, Wake County sheriff’s deputies arrested him at the hospital and transported him to the Wake County Detention Center, where he was booked, processed, and had his mugshot taken while still in his hospital gown and wheelchair. The defense showed this mugshot photo to the jury during opening statements and multiple times throughout the trial.

The deputies asserted the affirmative defense of qualified immunity throughout the litigation and repeatedly at the civil trial. In support of their defense, the deputies requested that the jury be required to answer numerous special factual interrogatories. The jury found in Morgan’s favor on each of the defense interrogatories.

After an eight-day trial, the jury awarded Morgan $125,000 for the unlawful search of his truck, $350,000 for unlawful arrest, $1 million for excessive force, $3 million for unjustified use of deadly force, $2 million for criminal prosecution without probable cause, and a total of $1.85 million in punitive damages apportioned among the three officers.

Morgan dropped any claims for economic damages prior to trial, including any claim for medical expenses or past of future lost wages, and proceeded only with claims for noneconomic damages such as pain, suffering, permanent injury, and deprivation of liberty damages.

Oxendine said that the defense offered $25,000 at mediation and filed an offer of judgment for $150,000 prior to the pre-trial conference, and then increased the offer of judgment to $400,000 the week before trial. The defense offered to settle the case for $1.5 million about 15 minutes after the jury started deliberating, he said.

Paul Gessner of the Wake County Sheriff’s Office in Raleigh, Nick Ellis of Poynter Spruill in Raleigh and J. Matthew Little of Teague Campbell in Raleigh represented the deputies. Gessner referred questions to the Wake County Sheriff’s Office spokesman, who did not respond to a request for comment.

VERDICT REPORT — POLICE MISCONDUCT

Amount: $8.325 million

Injuries alleged: Gunshot wounds, deprivations of constitutional rights

Case name: Michael Morgan v. Ricky Spivey, Casey Miller and Joshua Legan in their individual and official capacities as Wake County Sheriff’s Deputies, Donnie Harrison, in his official capacity as Sheriff of Wake County, North Carolina, and The Ohio Casualty Company

Court: U.S. District Court for the Eastern District of North Carolina

Case No.: 5:16-cv-00365

Judge: Louise Flanagan

Date of verdict: Sept. 25, 2019

Highest offer: $400,000

Insurance carrier: National Casualty Company

Attorneys for plaintiff: Robert Zaytoun and Matt Ballew of Zaytoun Ballew & Taylor in Raleigh and Ryan Oxendine and Jim Barnes Oxendine Barnes & Associates in Raleigh

Attorneys for defendant: Paul Gessner of the Wake County Sheriff’s Office in Raleigh, Nick Ellis of Poynter Spruill in Raleigh, and J. Matthew Little of Teague Campbell in Raleigh

13. Town pays developers $7.95M to settle suit

The Town of Holly Springs has paid nearly $8 million to settle a water and sewer impact fee lawsuit filed by developers, the first class-action settlement of its kind in the state since the North Carolina Supreme Court ruled in 2016 that charging impact feels as a precondition for receiving water and sewer services is unlawful, the plaintiffs’ attorneys said.

The town and the builders reached the settlement in February of last year.

Municipalities across the state have made it a practice to charge developers water and sewer impact fees upfront. But in a 2016 decision in Quality Built Homes v. The Town of Carthage, the Supreme Court held that towns and cities aren’t authorized to charge such fees. It later ruled that the statute of limitations to file a suit to recover damages was three years.

“We were very much in uncharted territory,” said Hunter Bryson of Whitfield, Bryson & Mason in Raleigh, who represented the builders with Daniel Bryson. “The law was still changing and the town completely denied liability. We pressed on from the very start. We had to stand behind a community that was being taken advantage of.”

Bryson said that he now knows of at least 20 similar lawsuits across the state, “from Asheville all the way to Bald Head island.”

“These builders are just being shaken down,” he said.

The firm also represented about 300 builders who sued the town of Apex, which agreed to pay $15.3 million to settle a lawsuit with builders in the town who said they, too, had been wrongly charged impact fees.

Former North Carolina Court of Appeals judge Douglas McCullough mediated both settlements.

Susan Burkhart of Cranfill Sumner & Hartzog in Raleigh represented the Town of Apex and Holly Springs in both cases. She could not be reached for comment.

SETTLEMENT REPORT — CLASS ACTION

Amount: $7,957,968

Injuries alleged: Unlawful assessment of impact fees

Case name: Gerald W. Currin Builders, Inc., et al v. Town of Holly Springs

Court: Wake County Superior Court

Case No.: 17-CVS-6244

Mediator: Douglas McCullough

Date of settlement: Feb. 18, 2019

Attorneys for plaintiff: Daniel K. Bryson and John Hunter Bryson of Whitfield Bryson & Mason in Raleigh

Attorney for defendant: Susan K. Burkhart of Cranfill Sumner & Hartzog in Raleigh

14. Highway patrolman awarded $7M for speeding bus crash

A former N.C. Highway Patrolman and his wife have received a $7 million verdict against Greyhound Bus Lines after one of its buses crashed into his car while he was investigating an accident on Christmas Eve.

On Dec. 24, 2014, Chris Justice had responded to a fatal collision on I-85/40 in Mebane near the Alamance and Orange County border. He was in his vehicle helping to control traffic, which was going very slowly because of the wreck and another that had occurred earlier, said Alex Heroy of James, McElroy & Diehl in Charlotte, who represented Justice along with Jennifer Houti and Gary Hemric.

The bus came barreling down the highway at 68 mph–the fastest the bus can go–and “came plowing into him, or as a witness said, ‘creamed him,’” Heroy said.

Justice’s vehicle was dragged 174 feet from where was when he was hit, and he suffered broken ribs, a head contusion, back and neck injuries, and post-traumatic stress disorder. He is no longer working, but he does volunteer for the American Red Cross.

On Jan. 17, a jury in federal court in New Bern awarded Justice $6 million and his wife $1 million for loss of consortium.

Heroy said that bus drivers are allowed to drive 70 hours over an eight-day period, and the driver had driven more than 73 hours. Passengers said that the driver had appeared to be falling asleep.

“He is improving,” Heroy said of his client. “As one witness testified, he is reluctant to be a victim. He continues to get better every day. He and his wife are thankful to the jury and very happy right now.”

Bob deRosset of Young Moore Henderson in Raleigh represented Greyhound and referred questions about the verdict to the company. A spokeswoman for Greyhound declined to comment, saying the company is exploring its legal options.

VERDICT REPORT – MOTOR VEHICLE CRASH

Amount: $7 million

Injuries alleged: Broken ribs, head contusion, back and neck injuries, post-traumatic stress disorder, and loss of consortium

Case name: Chris Justice and Lisa Justice vs. Greyhound Bus Lines Inc. and J.L. Robinson

Court: U.S. District Court for the Eastern District of North Carolina

Case No.: 5:16-cv-00132

Judge: Louise Flanagan

Date of verdict: Jan. 17, 2019

Attorneys for plaintiff: Alex Heroy, Jennifer Houti, and Gary Hemric of James, McElroy & Diehl in Charlotte

Attorney for defendant: Bob deRosset of Young Moore Henderson in Raleigh

15. Family of man crushed by steel beams wins $6M verdict

The family of a man who died six months after a pair of steel beams he was unloading crashed on top of him has won a $6 million verdict against a steel company that failed to properly secure the beams.

Jon Ward of Pinto Coates Kyre & Bowers in Greensboro said that the victim, Robin Colvin, had picked up a load of steel from Lyndon Steel Co. in Winston-Salem in 2014 and was transporting it to Greensboro. As he was unloading, two beams, each weighing almost 400 pounds, fell on him. Colvin suffered severe injuries, and part of his skull was removed because of brain swelling.

“He had tubes coming out from all parts of his body,” Ward said. “His doctors testified at trial that the fact he lived through this incident at all past a day or two was a medical miracle.”

The steel company argued that Colvin was responsible for the load from the time he picked it up until it was unloaded. Ward said that the Lyndon workers who loaded the truck used fabric to secure the beams, even though the steel beams had sharp edges.

“Fabric straps are never to be used with fabricated steel,” Ward said.

Colvin also took precautions before he left Winston-Salem, telling Lyndon workers to move the beams closer together to better secure them, Ward said. He noted that Colvin traveled from Winston-Salem to Greensboro on Interstate 40 with no problems.

Colvin was eventually relocated to a medical facility in Georgia, where he died of sepsis at the age of 46 in June 2015, Ward said.

The two-week trial included testimony from several witnesses and experts who said that the steel company had loaded the steel improperly and unsafely, Ward said.

There were at least two safe ways that the beams could have been loaded, Ward said. They could have been stacked on top of each other, with each beam separated by two-by-fours, but the loaders didn’t use the two-by-fours because that would have stacked the beams so high that it would have taken two trips to deliver them to Greensboro.

Alternatively, the F-shaped beams could have been interlocked, Ward said. Instead, workers stacked them directly on top of each other.

The jury deliberated for four hours before returning with its verdict on May 3, Ward said. The $6 million verdict was more than twice the $2.7 million the family had demanded, and more than ten times the defendants’ highest offer of $550,000.

Ward said he believed that the jury returned a verdict because the attorneys had focused on the severity of Colvin’s injuries, noting that he was in constant pain and got little sleep between the injury and his death. The attorneys also focused on the loss of companionship that his parents suffered.

“By all accounts Mr. Colvin was a very nice man who was very close to his parents,” Ward said.

Colvin was planning to live the rest of his life in Georgia so he could take over the operations of his family farm from his parents, Ward said.

“It was a huge loss for his family to lose him at such a young age,” Ward said. “There was a hope that he may have nowhere close to a full recovery, but some level of recovery where he wouldn’t have to be hospitalized his entire life. Obviously, that didn’t turn out as well as we all had wished.”

Matt Cook and Kate Cook of Cook Law Group in Gainesville, Georgia, and Todd Butler of Cairo, Georgia also represented the family.

Joseph Carruthers and Meg Shipley of Wall Babcock in Winston-Salem represented Lyndon Steel Co. Carruthers declined to comment on the verdict.

VERDICT REPORT — WRONGFUL DEATH

Amount: $6 million

Injuries alleged: Death

Case name: Estate of Colvin v. Lyndon Steel Co.

Case number: 15-CVS-5887

Court: Forsyth County Superior Court

Judge: Richard Gottlieb

Date of verdict: May 3, 2019

Demand: $2.7 million

Highest offer: $550,000

Special damages: $142,514

Most helpful experts: William Kluge of Raleigh (accident reconstruction), David Dorrity of Greenville, South Carolina (trucking safety), and Timothy Parker of North Charleston, South Carolina (professional engineer specializing in rigging and heavy transportation engineering)

Insurance carriers: Travelers and Zurich

Attorney for plaintiff: Jon Ward of Pinto Coates Kyre & Bowers in Greensboro; Matt Cook and Kate Cook of Cook Law Group in Gainesville, Georgia; and Todd Butler of Cairo, Georgia

Attorneys for defendant: Joseph Carruthers and Meg Shipley of Wall Babcock in Winston-Salem

16. N.C. company hit with $5.8M trademark infringement verdict

A federal jury in North Carolina has found that a Monroe-based refrigerator filter manufacturer infringed on Whirlpool and Maytag Properties’ trademarks and owes them over $5.8 million in damages, attorneys for the plaintiffs report.

Whirlpool alleged that Filters Fast LLC used Whirlpool’s brand to advertise and promote the sale of water filters online without its consent and used actual photos of Whirlpool products to link to their own wares, deceiving consumers into visiting their website. It also alleged that Filters Fast deliberately infringed several of its patents.

Paul Osowski of Nelson Mullins Riley & Scarborough in Charlotte represented Whirlpool. He said that while the law merely requires proof that a defendant’s actions have caused a “likelihood of confusion” in order to prove trademark infringement, in this case there was overwhelming evidence of actual consumer confusion caused by Filters Fast.

“The defendants’ internal documents showed that they were aware of the ongoing confusion,” Osowski said. “We were also able to demonstrate through videos how consumers would encounter the various improper advertising and marketing practices.”

Osowski said that the majority of the most important evidence came from Filters Fast’s own documents and the testimony of the company’s own officers and employees.

“Calling those witnesses adverse in our case allowed us to tell the story in a logical fashion to the jury,” he said.

Another factor that aided the plaintiffs was Filters Fast’s failure to maintain copies of their website, Osowski said, which eventually led the court to give a spoliation of evidence instruction to the jury.

Whirlpool alleged Filters Fast violated other trademarks owned by the company, and said that the Filters Fast products were inferior to those that Whirlpool manufactured.

The trial lasted six days, and the jury took four hours before returning its verdict on March 13, Osowski said.

Kenneth Kyre Jr. and Deborah Bowers of Pinto, Coates, Kyre & Bowers in Greensboro;  Benjamin Sidbury of Bryan Cave Leighton Paisner in Charlotte; Rudy Telscher and Steve Holtshouser of Husch Blackwell in St. Louis, Missouri; and Thomas Heneghan of Husch Blackwell in Madison, Wisconsin represented Filters Fast in the case.

Kyre said that had a number of court decisions during trial gone the other way, he believes the jury would have decided differently. As a result, his client intends to challenge a number of rulings in post-trial motions, and, if that fails, request a hearing with the 4th U.S. Circuit Court of Appeals.

“I can say that Filters Fast was disappointed and surprised by the verdict, because we felt that there were strong defenses to Plaintiffs’ claims,” Kyre said. He declined to comment further, citing a firm policy to not comment on pending litigation.

VERDICT REPORT — TRADEMARK INFRINGEMENT

Amount: $5,856,676

Injuries alleged: Trademark and patent infringement, false advertising

Case name: Whirlpool Properties and Maytag Properties v. Filters Fast LLC

Court: U.S. District Court for the Western District of North Carolina

Case No.: 3:17-cv-00601

Judge: Frank Whitney

Date of verdict: March 13, 2019

Most helpful experts: Joseph Gemini of DKG Consulting Group Inc. in Chicago (intellectual property expert)

Attorneys for plaintiffs: Craig Killen and Paul Osowski of Nelson Mullins Riley & Scarborough in Charlotte; Richard Hung of Morrison & Foerster in San Francisco; Jeffrey Harty, Allison Kerndt, David Bower, Matthew McGuire and Ryan Stefani of Nyemaster Goode in Des Moines, Iowa

Attorneys for defendant: Deborah Bowers and Kenneth Kyre Jr. of Pinto, Coates, Kyre & Bowers in Greensboro; Benjamin Sidbury of Bryan Cave Leighton Paisner in Charlotte; Rudy Telscher and Steve Holtshouser of Husch Blackwell in St. Louis, Missouri; and Thomas Heneghan of Husch Blackwell in Madison, Wisconsin

17. Fallen ladder leads to blindness, brain injury, $5M verdict

A 35-year-old man who went blind in his right eye and suffered brain injuries after a ladder fell off a work van on Interstate 40 has won a $5 million jury verdict against the vehicle’s owner, his attorneys report.

Robert Zaytoun of the Zaytoun Law Firm in Raleigh said that his client, Gideon Richardson, was traveling on Interstate 40 near U.S. 70 in June 2017 when the ladder fell off of the top of a van owned by Certified Heating and Air Conditioning. Richardson, who was driving behind the van, swerved to avoid it and hit a concrete barrier.

Initially, Richardson was groggy after the accident but otherwise felt fine, and damages to his vehicle were minimal. But that night he found he was blind in his right eye, and his condition deteriorated as time went on.

That’s because he had “peculiar susceptibility,” in that his skull bones are thinner than normal, Zaytoun said. The wreck caused the frontal lobe of his brain to rest on his optic nerve.

Richardson, who had been the office manager of his father’s car dealership, can no longer work and suffers from memory loss, depression, and post-traumatic stress disorder.

“He is going to need someone to watch him because he can’t take care of himself,” Zaytoun said. “You couldn’t let him off at [the mall] and trust that he wouldn’t walk out into traffic.”

Richardson’s attorneys chose not to ask for medical damages or economic damages, but instead focused on non-economic damages, given that he was 35 years old and had a life expectancy of 79.

The defense admitted negligence three days before the trial began, but contested proximate cause and damages, Zaytoun said. The defense offered $200,000 to settle the case before the trial, and then $500,000 after the first day of the trial. Zaytoun said that the driver of the van admitted that he failed to properly secure the ladder.

Zaytoun said that his client was a classic example of what’s known as an “eggshell plaintiff,” who suffers more serious injuries than a typical person would have suffered in the same circumstances as a result of a pre-existing condition. The rule is that defendants still remain liable for all of the injuries caused by their negligence, even in such cases.

North Carolina has a special “peculiar susceptibility” jury instruction for these situations, and Zaytoun said that the instruction Cumberland County Superior Court Judge Gale Adams gave to the jury was crucial in securing the verdict.

“It’s rare that you have that situation, but when you do, it is a powerful instruction to the jury,” he said. “It tells the jury you have to award full damages for everything that happened.”

Zaytoun said that even though Richardson looked fine, five doctors testified to the extent of the injuries that jurors couldn’t see.

“Don’t be afraid if your client looks normal and you have a low-impact collision,” he said. “Trust in the truth of the medical facts.”

Zaytoun said his firm filed the lawsuit in Cumberland County because Certified Heating and Air Conditioning is based there.

“It used to be you would file on your home court,” Zaytoun said. “We wanted the jury to know that the people who allowed this to happen were local, and it could happen to them. There is something subliminal about that. If there is a strong case of liability, we want the locals to understand that they have to take a pretty strong position to deter that kind of behavior in the future. It could be their children, or their grandmother.”

The trial lasted 10 days, and the jury deliberated for just 32 minutes before returning its verdict on May 7, Zaytoun said. John Taylor and Matthew Ballew, also of the Zaytoun Law Firm, also represented Richardson.

David Coats and Chad Dunn of Bailey & Dixon in Raleigh represented the defendants. They could not be reached for comment.

VERDICT REPORT – MOTOR VEHICLE CRASH

Amount: $5 million

Injuries alleged: Mild traumatic brain injury, blindness, memory loss, depression, and post-traumatic stress disorder

Case name: Gideon Richardson v. Certified Heating and Air Conditioning, et al.

Court: Cumberland County Superior Court

Case No.: 17-CVS-8708

Judge: Gale Adams

Date of verdict: May 7, 2019

Highest offer: $500,000

Insurance carrier: Nationwide

Attorneys for plaintiff: John Taylor, Matthew Ballew, and Robert Zaytoun of the Zaytoun Law Firm in Raleigh

Attorneys for defendants: David Coats and Chad Dunn of Bailey & Dixon in Raleigh

18 (tie). Teen hurt in work-related crash settles for $3.85M

A teen who was permanently and totally disabled in a car wreck while working for his family’s business has settled a workers’ compensation claim for $3.85 million, his attorney reports.

Matthew Sullivan of White and Allen in Kinston represented the teen, whose name was withheld in order to protect his privacy and that of his family. Sullivan said the teen had worked sporadically for the family business the previous summer and he had just returned to work the day that the crash occurred.

While Sullivan was initially retained to work on a third-party liability claim, the family sought his advice when the workers’ compensation carrier, Auto-Owners Insurance Company, denied claims for medical treatment.

The family eventually brought suit over issues concerning the lack of payment for medical treatment, including past and future attendant care, and wage indemnity. Those issues were highly contested throughout the case but resolved at mediation, Sullivan said.

“One of the more intriguing issues was the dispute regarding the wage indemnity and the application of N.C.G.S. 97-2(5) for minor employees,” Sullivan said, referring to “minor” in the sense of being under 18, not being unimportant. While Auto-Owners calculated the teen’s wages based on the prior 52 weeks before the work-related injury, the teen argued that because of his permanent disability, this was a mistake.

The law requires that a permanently disabled minor’s compensation should be calculated “up to the average weekly wage paid to adult employees employed by the same employer at the time of the accident in a similar or like class of work which the injured minor employee would probably have been promoted to if not injured or, second, upon a wage sufficient to yield the maximum weekly compensation benefit,” Sullivan said.

The same statute explains that compensation can be increased in proportion to an employee’s expected earnings when the disability extends more than 52 weeks, Sullivan said.

Because there was evidence suggesting the teen should have been considered permanently and totally disabled from the time of the wreck, Sullivan said the computation method should have been adjusted accordingly. But because the case was resolved at mediation, the issue of how to calculate wage indemnity for a permanently disabled minor will remain unlitigated.

“I spoke to several lawyers who specialize in workers’ compensation regarding this issue and the application of 97-2(5) to this case, and not one of these lawyers had seen or dealt with this particular issue previously,” Sullivan said. “While it would have been interesting to get a ruling on this question and the application of the statute as to minors in cases like this one, the case ultimately resolved to the satisfaction of all parties.”

Kara Glidewell of McAngus Goudelock & Courie represented Auto-Owners Insurance Company in the case. She did not immediately respond to requests for comment.

SETTLEMENT REPORT — WORKERS’ COMPENSATION

Amount: $3.85 million

Injuries alleged: Permanent and total disability including brain trauma

Case name: Confidential

Case number: Confidential

Court: Lenoir County Superior Court

Mediator: Terry Kilbride of Kilbride Mediation in Raleigh

Date of settlement: April 15, 2019

Most helpful experts: Ashley Johnson of Vargas Vocational Consulting in Belmont (rehabilitation and life care planning expert); J.C. Poindexter, professor at North Carolina State University in Raleigh (economics expert)

Insurance carrier: Auto-Owners Insurance Company

Attorney for plaintiff: Matthew Sullivan of White and Allen in Kinston

Attorney for defendant: Kara Glidewell of McAngus Goudelock & Courie in Charlotte

18 (tie). Two Map Act claims settled for $3.85M

A Wake County man has received $3.85 million in a settlement with the North Carolina Department of Transportation for taking a bit less than 8 acres of property–including a tract that included the house where the man had lived for 30 years–for the development of the Southern Wake Expressway, his attorneys report.

George Autry, Stephanie Autry, and Jeremy Hopkins of Cranfill, Sumner & Hartzog in Raleigh said that the settlement involves two pieces of property about a mile apart from each other. It is one of the latest of hundreds that the DOT has paid since 2016, when the North Carolina Supreme Court ruled the Map Act, under which the DOT reserved property for future highway construction without paying for it, unconstitutional. Since then the DOT has been settling with property owners across the state, and payouts of millions of dollars have pinched its coffers.

The client, Raymond Rhodes, lived on one of the properties, a 2.77-acre tract that was taken in its entirety, and for which the DOT had offered Rhodes $422,775. The other property was a 6.94-acre tract, of which the DOT claimed 4.26. It contained an abandoned home and some other buildings, and Hopkins said it would have been ideal for industrial development. The DOT had offered $510,550 for it.

The DOT reserved both properties in 1996. Since then, businesses have popped up all around the area, and Wake Technical Community College has built a campus there.

“While commercial development sprung up around him, Rhodes’ property was ‘frozen in time,’” Hopkins said. “He never had the opportunity to realize the commercial potential and value of his property … you can literally walk on the driveway and be on campus.”

Under the settlement agreed to on Dec. 13, the DOT agreed to pay $1.925 million for each tract.

Rhodes had lived in his home for three decades before he was forced to move.

“It was a real hardship for him,” Hopkins said. “But he understood that the road was coming, and his house was in its path. There’s really nothing you can do.”

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $1.925 million

Injuries alleged: Condemnation of a 2.77-acre tract, plus restrictions on development potential stemming from the Map Act

Case name: Raymond Leonard Rhodes v. North Carolina Department of Transportation

Court: Wake County Superior Court

Case No.: 19-CVS-5997

Date of settlement: Dec. 13, 2019

Initial offer: $422,775

Attorneys for defendant: George Autry, Stephanie Autry, and Jeremy Hopkins of Cranfill, Sumner & Hartzog in Raleigh

SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $1.925 million

Injuries alleged: Condemnation of 4.26 acres from a 6.94-acre tract, plus restrictions on development potential stemming from the Map Act

Case name: Raymond Leonard Rhodes v. North Carolina Department of Transportation

Court: Wake County Superior Court

Case No.: 19-CVS-8860

Date of settlement: Dec. 13, 2019

Initial offer: $510,550

Attorneys for defendant: George Autry, Stephanie Autry, Jeremy Hopkins of Cranfill, Sumner & Hartzog in Raleigh

20. $3.5M settlement for wreck that killed family of 3

The family of a mother, her son, and her daughter-in-law who were all killed after a driver illegally passed a bicyclist and hit their car head-on has reached a $3.5 million pre-suit settlement with the at-fault driver, the family’s attorney reports.

Steven Fox and Mallory Horne of Teague Rotenstreich Stanaland Fox & Holt in Greensboro said Irene Martin, her son, Stephen Martin, and his wife, Mary Martin, were traveling on N.C. 751 in Durham County in April 2019, with Stephen driving. Edgar Brown was traveling in the opposite direction in a no-passing zone at 55 mph, when he swerved into the opposite lane to pass a bicyclist, who had legal possession of the lane, and slammed into the Martins’ car, Horne said.

“He just crossed a double line and hit [the Martins] dead on,” Horne said. “It was reckless driving to the point of willful wanton conduct.”

Horne said the attorneys pushed for the settlement by focusing on three factors: egregious conduct leading up to the accident, multiple fatalities in the same wreck and multiple fatalities within the same family.

“This one accident destroyed two generations of the Martin family and left behind two sons in their 30s who had the responsibility of now becoming the elders of their family,” she said. “We did focus some on suffering, as there was some evidence that Mr. Martin and Irene Martin were not deceased upon arrival of witnesses and EMTs.”

The car that Brown was driving was registered in the name of Southern Finishing Company, a company that Brown owns. Although Brown was not on the job at the time of the accident, the settlement was collected through the company’s commercial insurance policy.

Rebecca Thornton of Teague Campbell Dennis & Gorham in Raleigh represented Brown. She could not be reached for comment, but Horne said that the defense argued against punitive damages, saying it was an accident and the Brown had only a choice of either hitting the cyclist or crossing the double line.

Brown is facing three charges of misdemeanor death by motor vehicle.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $3.5 million

Injuries alleged: Three deaths

Case name: Case settled prior to any suit being filed

Venue: Alamance County

Mediator: Michael McDaniel in Raleigh

Date of settlement: Nov. 21, 2019

Insurance carrier: Pennsylvania Lumberman’s Mutual Company

Attorneys for plaintiffs: Steven B. Fox and Mallory G. Horne of Teague Rotenstreich Stanaland Fox & Holt in Greensboro

Attorneys for defendants: Rebecca Thornton of Teague Campbell Dennis & Gorham in Raleigh

21. Wake Co. eminent domain settlement nets $3.4M

The owners of a Wake County property that the North Carolina Department of Transportation took for the construction of the Southern Wake Expressway have received $3.4 million for the 6.1 acres that were taken, more than four times the amount the state agency offered, the owners’ attorneys report.

George Autry, Stephanie Autry, and Jeremy Hopkins of Cranfill, Sumner & Hartzog in Raleigh report that in 1996 the DOT reserved 58 acres of property owned by Joe and Yvonne Ennis pursuant to the state’s Map Act, under which the DOT could reserve property for future highway construction without paying for it. After the North Carolina Supreme Court ruled the Map Act unconstitutional in 2016, the DOT offered the Ennises $706,400 for six acres.

“Despite the fact that their home was located at the front of the property, the highest and best use of the land was for residential development,” Hopkins said. “This was evidenced by all the high-end neighborhoods built around them. The raised expressway provides no access to the property and drastically reduces the desirability and value of the property for residential development.”

The DOT also took 1.524 acres for a temporary construction easement, .007 acres for a temporary drainage easement, .069 acres for a permanent drainage easement, and .048 acres for a permanent utility easement.

Hopkins said that the DOT never filed a direct condemnation claim for the land, and the Ennises filed an inverse condemnation lawsuit against the DOT.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $3.4 million

Injuries alleged: Condemnation of 6.1 acres, plus easements, from a 58-acre tract, plus restrictions on development potential stemming from the Map Act

Case name: Joe and Yvonne Ennis v. North Carolina Department of Transportation

Court: Wake County Superior Court

Case No.: 18-CVS-8512

Date of settlement: Dec. 13, 2019

Initial offer: $706,400

Attorneys for defendant: George Autry, Stephanie Autry and Jeremy Hopkins of Cranfill, Sumner & Hartzog in Raleigh

22. Botched surgery leads to $3.3M settlement 

A woman whose arteries were severed during a routine outpatient surgical procedure has settled with the healthcare provider for $3.3 million, her attorney reports.

John Chilson of Comerford Chilson & Moser in Winston-Salem said that in 2018, the woman underwent surgery for an overactive thyroid. During the surgery, her common carotid and subclavian arteries, which are located near the throat, were cut, causing her to suffer a stroke. 

She was hospitalized for nine months and underwent multiple surgeries, intensive therapy, and tube feeding, Chilson said. 

The pre-lawsuit settlement included $3 million for the injuries, $300,000 for loss of consortium, and a waiver of the woman’s medical bills.

“She is still recovering, but she is now at home recovering with her family,” he said. 

Other details about the settlement, including the identities of the defendants and its attorneys and the defendant provider’s location, were not available due to a confidentiality agreement.

SETTLEMENT REPORT – MEDICAL MALPRACTICE

Amount: $3,300,000

Injuries alleged: Severed common carotid and subclavian arteries

Case name: Case settled before any lawsuit was filed

Venue: Withheld

Date settlement: Sept. 4, 2019

Attorney for plaintiff: John Chilson of Comerford, Chilson & Moser in Winston-Salem

Attorney for defendant: Withheld

23. Family secures $3.25M for land taken for highway

A Wake County family whose land was seized to make way for construction of the Southern Wake Expressway will receive $3.25 million from the North Carolina Department of Transportation, almost four times as much as the DOT initially offered, the family’s attorneys report.

George Autry, Stephanie Autry and Jeremy Hopkins of Cranfill, Sumner & Hartzog in Raleigh report that Steve and John Atkins owned about 31 acres of “highly desirable” residential development land in Wake County. In 1996 the DOT used the Map Act to restrict the family’s right to develop the property in order to lower the eventual cost of acquiring the land, Hopkins said.

The DOT’s actions froze any development of the property for 20 years until 2016, when the North Carolina Supreme Court ruled the Map Act, under which the DOT reserved property for future highway construction without paying for it, unconstitutional.

The DOT condemned roughly 9.5 acres of the Atkins’ property to build the expressway, plus another 3.8 acres for a temporary construction easement, 1.026 acres for a temporary drainage easement, and 0.36 acres for a permanent drainage easement. As freeways are wont to do, the condemned land sliced the original property in two, and landlocked roughly four acres of the remaining property.

“The taking severs the property into two pieces, prohibits all access to the new expressway, and places a raised superhighway across the property,” Hopkins said. “These changes drastically reduced the desirability of this property for residential use and development and severely impacted the market value of the property.”

The Atkins filed an inverse condemnation action to recover money for the Map Act restrictions, but the DOT denied liability for the claim, and offered just $819,850 for the property itself.

Jamie Kritzer, a DOT spokesman, said that the DOT “settled the Atkins matter as part of its effort to resolve claims brought pursuant to the Map Act and in line with current rulings of the courts.”

The settlement, agreed to on Dec. 13, is one of the latest among hundreds that the DOT has or will pay out after the 2016 Supreme Court ruling, which have put a strain on the agency’s resources.

“Everyone recognized there was harm done, and to the DOT’s credit they recognized the harm and paid, but it’s a matter of funding,” Hopkins said.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $3.25 million

Injuries alleged: Condemnation of 9.5 acres, plus easements, from a 31-acre tract, plus restrictions on development potential stemming from the Map Act

Case name: Steve Atkins and John Atkins v. North Carolina Department of Transportation

Case No.: 19-CVS-2632

Court: Wake County Superior Court

Date of settlement: Dec. 13, 2019

Initial offer: $819,850

Attorneys for defendants: George Autry, Stephanie Autry and Jeremy Hopkins of Cranfill, Sumner & Hartzog in Raleigh

24. “Revenge porn” victim gets $3.21M revenge

A Cumberland County woman has won a $3.2 million verdict against her ex-husband and his girlfriend after a jury found that the girlfriend had broken up their marriage and her former spouse had libeled her by creating a fake personal ad and posted her nude photos online. 

In August 2018, Elizabeth Ann Clark sued her ex-husband, Adam Clark, and his girlfriend, Kimberly Rae Barrett, alleging that after Barrett broke up her marriage, she and Adam coordinated a campaign to harass and humiliate her.

The Clarks moved to Fayetteville in 2010 and had two children. Elizabeth testified that they had a strong marriage and were sexually intimate, except when Adam was travelling, in which case they would exchange nude photographs and texts. In 2016, Adam, a major in the Army, traveled to Fort Belvoir, Virginia, for several months of training. There he met Barrett, an Army lieutenant colonel, and they stayed in the same coed barracks.

Elizabeth said Adam had changed upon his return home, and was distant and showed less affection to his wife and their children and would disappear without saying why. In September 2016, Adam admitted he was having an affair with Barrett and said he wanted a divorce. The couple divorced in 2018.

In the meantime, Adam and Barrett began a campaign against Elizabeth, allegedly because they wanted to pay less in child support. They posted an ad on Craigslist, with Elizabeth’s name and work address, which claimed that Elizabeth had an STD and wanted people to contact her for sex. They also posted her nude photos on social media, called her “white trash” and a “whore,” and said she had an eating disorder, according to her attorneys.

After a five-day trial that concluded Aug. 28, the jury was out for only 55 minutes before coming back with the verdict in Elizabeth’s favor. It ordered Barrett to pay a total of $1.2 million, including $450,000 for alienation of affection, $500,000 for intentional infliction of emotional distress, and $250,000 in punitive damages. It ordered Adam to pay a total of $2 million, including $1 million for libel, $500,000 for intentional infliction of emotional distress, and $500,000 in punitive damages.

Judge Mary Ann Talley also awarded Elizabeth $10,000 in liquidated damages allowed under North Carolina’s so-called “revenge porn” statute for disclosure of private images.

Jonathan Charleston and Jose Coker of the Charleston Group in Fayetteville and Michael Porter of Fayetteville represented Elizabeth. The attorneys presented hundreds of pages of electronic communications and data into evidence that led directly back to Adam and Barrett, they said.

“The egregiousness of their behavior was overwhelming,” Porter said. He said that after the verdict, a juror phoned him and told him that the jury had reached a unanimous verdict after just 10 minutes of deliberations, and the remaining time was spent trying to calculate the damages.

Charleston said that the jury deliberated for only such a short period of time because the evidence was so “compelling and shocking in a sense of what is right and wrong.”

One of the biggest challenges that the attorneys faced was the timing of the trial, which took place just a year after the lawsuit was filed. They filed motions to continue the trial and to extend the discovery deadline, and the trial court administrator agreed to both, but the defense appealed and the senior resident superior court judge agreed to continue trial, but not to extend the discovery deadline.

“At that point, it was a question of whether we move forward,” Charleston said. “We decided we had an effective reservoir of compelling evidence. It made no sense to file a dismissal, but made every sense to try the case.”

Their client agreed and felt confident in proceeding with the case, they said.

“They believed they had all the power,” Charleston said. “One of the defendants is a lieutenant colonel and a medical doctor. The former husband was a major. They are really educated people. Our client was a bartender. They tried to intimidate her and believed they had power over her and that she would just walk away.”

The attorneys said that Adam Clark and Barrett testified that they are under investigation by the military.

Renny Deese of Lewis, Deese, Nance, and Ditmore in Fayetteville represented Adam Clark and Lamar Armstrong in Fayetteville represented Barrett. They could not be reached for comment.

VERDICT REPORT — HEART BALM SUIT/ LIBEL

Amount: $3.21 million

Injuries alleged: Emotional distress, alienation of affection, libel

Case name: Elizabeth Ann Clark v. Adam Clark and Kimberly Rae Barrett

Court: Cumberland County Superior Court

Case No.: 18-CVS-5727

Judge: Mary Ann Talley

Date of verdict: Aug. 28, 2019

Special damages: $1 million for libel; $1 million for intentional infliction of emotional distress; $750,000 in punitive damages; $450,000 for alienation of affection; and $10,000 in liquidated damages for disclosure of private images

Attorney for plaintiff: Jonathan Charleston and Jose Coker of the Charleston Group in Fayetteville and Michael Porter in Fayetteville

Attorneys for defendants: Renny Deese of Lewis, Deese, Nance, and Ditmore in Fayetteville and Lamar Armstrong in Fayetteville

25 (tie). Forsyth Co. family nets $3M in Map Act case

The Map Act may be gone, but it is certainly not forgotten. The North Carolina Department of Transportation has agreed to another big-dollar settlement with a family whose land rights were frozen under the act, this time agreeing to pay $3 million to a family in Forsyth County, the family’s attorneys report.

George Autry, Stephanie Autry, and Jeremy Hopkins of Cranfill Sumner & Hartzog in Raleigh report that their clients’ land was reserved under the Map Act in 2008 in preparation to build the Winston-Salem Northern Beltway through the property. The clients, the Westmoreland family, owned 77 acres. After the North Carolina Supreme Court declared the Map Act, under which the DOT reserved property for future highway construction without paying for it, unconstitutional in 2016, the DOT ultimately took roughly 22.57 acres of the property for the beltway, .339 acres for a temporary construction easement, and .044 acres for a permanent utility easement.

The DOT initially offered the family $1,268,200, less than half of the ultimate settlement amount.

The taking cuts the property into two pieces and prohibits access to the new, raised highway, which cuts through the property, Hopkins said. About 11 acres of the Westmorelands’ property is landlocked and the remaining land sits next to the highway, with no ability to buffer its noise or visual impact.

“These changes drastically reduced the desirability of this property for residential use and development and severely impacted the market value of the property,” Hopkins said.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $3 million

Injuries alleged: Condemnation of 22.57 acres, plus easements, from a 77-acre tract, plus restrictions on development potential stemming from the Map Act

Case name: Michael Wade Westmoreland, Alice Westmoreland, Ryan Westmoreland, and Neil Westmoreland v. North Carolina Department of Transportation

Court: Wake County Superior Court

Case No.: 16-CVS-3610

Date of settlement: Dec. 13, 2019

Initial offer: $1,268,200

Attorneys for defendants: George Autry, Stephanie Autry, and Jeremy Hopkins of Cranfill Sumner & Hartzog in Raleigh

25 (tie). Family of man killed on country road settles suit for $3M

The wife and children of a North Carolina man killed after a commercial truck hit his car on a country road has confidentially settled a wrongful death lawsuit for $3 million, the family’s attorneys reported.

The man was driving on a rural road in November 2017. A truck driver working for a small company ran a stop sign and slammed into the passenger side of the 60-year-old man’s car, said Hunt Willis, an attorney with Martin & Jones in Raleigh. (Many of the details of the case, including the identities of the parties and the precise location of the wreck, were withheld pursuant to a confidentiality agreement.)

The man suffered catastrophic injuries. Four days later, when it became clear that he wouldn’t regain consciousness, his wife instructed doctors to end life-saving treatment.

“This is a very sad case,” Willis said. “She had to make that decision on their 30th anniversary.”

Forest Horne of Martin & Jones in Raleigh and Bob Whitley in Raleigh also represented the family. Rather than pursuing funeral expenses, lost wages, or other economic damages, the attorneys focused on the relationships the victim had with his family. The defense contended that the victim wasn’t especially close to his children, particularly the ones from his first marriage.

But that was not so, the family’s attorney said. Their team filmed interviews with the family, and during settlement negotiations the attorneys showed videos of when the victim was alive and spending time with his young grandson, images that Horne called compelling.

The defense also contended that the man should have seen the truck and that it wasn’t slowing down, Willis said. Another issue of contention was whether the man suffered after the crash.

Willis said that the treating surgeon’s testimony regarding the aftermath of the wreck was key in the settlement negotiations.

The identities of the attorneys for the defendants were also withheld due to the confidentiality agreement. The two sides agreed to the settlement on Feb. 7.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $3 million

Injuries alleged: Death

Case name: Withheld

Court: Withheld

Date of settlement: Feb. 7, 2019

Attorneys for plaintiff: Hunt Willis and Forest Horne of Martin & Jones in Raleigh and Bob Whitley in Raleigh

Attorney for defendant: Withheld

27. Hot market: Charlotte pays $2.825M for land for fire station

A landowner in Charlotte has reached a $2.825 million settlement with the city of Charlotte after it took 2.2 acres of land in one of the city’s trendiest and fastest-growing neighborhoods to build a new fire station, his attorneys report.

Tommy Odom and David Murray of The Odom Firm in Charlotte report that the city condemned property owned by Robert Alexander for a new fire station near the South End district, immediately south of the 277 inner beltway around center city Charlotte.

When the city took possession of Alexander’s land, it was being used for a three-bay car wash and car cleaning business, Odom said. The city initially deposited $820,000 as just compensation for the property after concluding that the highest and best use of the land was for industrial use.

But using a team of land use and valuation experts, Alexander and his attorneys showed that the best use for the property in the rapidly-changing area would be for use as a transit-oriented development district (TODD) use or mixed use development district (MUDD) that could have allowed for a density of about 172 units on the property.

Two land use and zoning experts, Walter Fields and Lee McLaren, “had solid opinions on the high likelihood (the land) could have been rezoned to either use, “and a city spreadsheet showing no TODD or MUDD rezoning had been denied by the city council in the last two years,” Odom said.

“We developed the highest and best use analysis just as if Mr. Alexander was going to market the property for sale,” Odom said. “The density study drawings by Tom Wright, the architect, were key in being able to visualize what could have been developed. This is the same information that buyers and sellers use in the market.”

The case was settled at mediation on Jan. 28, 2019, Odom said.

SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $2.825 million

Injuries alleged: Taking of a 2.2-acre property in the South End district of Charlotte used for a three-bay car wash and car cleaning business

Case name: City of Charlotte v. Robert Alexander

Court: Mecklenburg County Superior Court

Case number: 18-CVS-4799

Date of settlement: Jan. 28, 2019

Initial deposit: $820,000

Most helpful experts: Tom Wright (architect); Walter Fields and Lee McLaren (land use and zoning); Deborah Haskell, Rocky Shiplett and Kevin Shiplett (appraisers); and Emma Littlejohn (real estate broker)

Attorneys for defendant: Tommy Odom and David Murray of The Odom Firm in Charlotte

Attorney for plaintiff: Benjamin Sullivan for the City of Charlotte

28. City of Belmont pays $2.7M after officer’s pet project causes fatal crash

The widow of a man who was killed after he was hit by a city of Belmont employee who was hauling utility poles has settled a lawsuit against the city for $2.7 million, her attorneys report.

Ben Chesson, David Allen, Tracy Tomlin, and Anna Majestro of Nelson Mullins in Charlotte report that the victim, Eddie Pullen, was driving his truck in Belmont in October 2015. The city employee, Jacob Kanburoblu, was hauling the large wooden poles in a city-owned truck when he took a right turn. 

The poles were hanging almost 20 feet off of the truck’s bed and swung into Pullen’s lane of traffic. They went through Pullen’s truck and into his chest, neck, head, and face. His truck then rolled uncontrolled down the road, crossing through oncoming traffic, jumping the curb and crashing into a tree. Pullen died at the scene. 

Pullen’s death subsequently unveiled what Chesson called a “really weird” situation. The poles were destined for a bike lane that was under construction, but it turned out that construction of bike trail hadn’t been approved by the city. Instead, Doug Huffstetler, a Belmont police officer who’d been taken off patrol duty and placed on community outreach, had started building the bike trail on city property and on city time.

“While this did not serve any legitimate police function, it did serve Huffstetler’s own interest as ‘an avid mountain biker,’” Chesson said.

At first, the police department had given Huffstetler permission to work on the trail, but in 2014 his superiors ordered him to stop work on the project.

“They took away his Belmont truck,” Chesson said. “They took away his keys to the Belmont maintenance shed. They instructed him to return all of his tools. Huffstetler’s bike path switched from a Belmont Police community project to a personal pet project for Huffstetler. From that moment forward, Belmont had absolutely no role in designing or constructing Huffstetler’s bike path. There is not a shred of evidence that Huffstetler had authority from anyone at Belmont to work on the bike trail from 2014 through the wreck.”

Despite the orders, Huffstetler continued to use city resources to build the trail, Chesson said, including the truck involved in the wreck and its driver. On that morning, Huffstetler had gone to the city’s public works department to ask to borrow a truck “one last time” to haul the poles. A public works supervisor instructed his subordinate, Kanburoblu, to help Huffstetler. They loaded the poles and set off, with Huffstetler following Kanburoblu. The crash happened shortly thereafter.

Chesson said that the truck was designed to carry brush, not long wooden utility poles, and Kanburoblu would later say that he learned more about driving a truck from his deposition than he had from the city.

The city of Belmont didn’t dispute the facts of the wreck and admitted the driver was in the course and scope of his employment, Chesson said, but initially denied the city or Kanburoblu had been negligent.

Pat Flanagan of Cranfill, Sumner & Hartzog in Charlotte represented the City of Belmont. He declined to comment on the settlement. 

A separate lawsuit is pending against Huffstetler.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $2,900,000

Injuries alleged: Death

Case name: Estate of Eddie Pullen v. City of Belmont and Doug Huffstetler

Court: Gaston County Superior Court

Case No.: 17-CVS-3786

Judge: Robert Ervin

Date of settlement: Aug. 14, 2019

Insurance Carrier: Interlocal Risk Financing Fund of North Carolina

Attorney for plaintiff: Ben Chesson, David Allen, Tracy Tomlin, and Anna Majestro of Nelson Mullins 

Attorneys for defendant: Pat Flanagan of Cranfill, Sumner & Hartzog in Charlotte

29. Family to get $2.69M after dad dies saving daughter’s life

The family of a Florida man who died after saving his daughter from a burning van that had been rear-ended by a tractor-trailer will receive nearly $2.7 million from underinsured motorist insurance and a settlement with the at-fault driver’s company’s insurer, the family’s attorneys report.

David Kirby, Winston Kirby, and Bill Bystrynski of Edwards Kirby in Raleigh report that William Myles was traveling with his daughter Katie from Pennsylvania to Florida in June 2018 when traffic slowed for work along Interstate 95 in North Carolina. A tractor-trailer driver failed to slow and struck the Myles’ van at about 65 mph. A chain-reaction wreck ensued, ensnaring five vehicles. 

The Myles’ van caught fire, and Katie was trapped inside. Myles, who had been severely injured in the crash himself, dragged his daughter from the vehicle to safety.

Myles died later that day. The medical examiner found that his spinal cord had been severed in the crash. His daughter suffered burns to her hands and nose and the psychological trauma of the crash.

Four other people were injured in the crash. The trucking company had only $1 million in insurance, and its insurer, Stonewood Insurance Company, filed an interpleader because of the number of other drivers who were injured in the crash and the limited amount of insurance available. David Kirby said one of the biggest challenges was thus making sure that everyone injured in the wreck was fairly compensated.

“I tip my hat to my colleagues in the legal profession for looking at their clients’ own uninsured motorist coverage to see if they could receive full compensation for their clients,” Kirby said. “Everyone worked to make sure that everyone who was injured got compensated and worked hard to make sure the Myles family was treated fairly.”

Stonewood ultimately settled the Myles estate’s claim for $900,000. Because the family had an uninsured motorist policy that was written in Florida, the estate was able to collect an additional $1 million, and Katie received an additional $750,000. If the same policy had been written in North Carolina, the estate would have only been able to collect an additional $100,000, Bystrynski said.

“This is just a wonderful family,” Kirby said. “He was severely injured and his last act as a father was to kick the door open and drag his daughter out of the burning van. She saw her father brutally injured, and she had terrible emotional trauma that she still lives with today. In talking to the firemen, talking to the highway patrolmen, I’ve never had a case where the first words out of every witness’s mouths were, ‘You realize that this man saved his daughter’s life.’”

Mark Michael of Hedrick Gardner Kincheloe & Garofalo in Charlotte represented Stonewood. He could not be reached for comment.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $2,697,300

Injures alleged: Death, burns

Case name: Stonewood Insurance Company v. Hawkins, et. al

Case number: 4:18-cv-00183-FL

Court: U.S. District Court for the Eastern District of North Carolina

Date of settlement: September 2019

Attorneys for plaintiff: David Kirby, Winston Kirby, and Bill Bystrynski of Edwards Kirby in Raleigh

Attorney for defendant: Mark Michael of Hedrick Gardner Kincheloe & Garofalo in Charlotte 

30. Teen who was injured in utero settles lawsuit for $2.5M

A 14-year-old who was born with cerebral palsy after he was injured in a car crash when his mother was seven months pregnant has reached a $2.5 million confidential settlement with the at-fault driver and his employer, his attorneys report.

Lynwood Evans of Ward and Smith in Greenville reports that the mother was involved in a car wreck in Sampson County in 2005 when the other driver pulled out in front of her, causing her to hit his vehicle. She went to the hospital complaining of abdominal pain and bruising, but testing on the fetus didn’t detect any injury, and the mother was released.

Her son was born in December 2005 and began having problems with his physical development and motor function. He was ultimately diagnosed with spastic tetraplegic cerebral palsy. Today he requires the aid of a wheelchair and needs assistance with most facets of daily living, including bathing and going to the bathroom.

His family didn’t retain legal counsel until long after the expiration of the statute of limitations for recovering the cost of any medical expenses that he incurs before he turns 18. His attorneys pursued recovery for other damages, however, including his future medical expenses, diminished earning capacity, and pain and suffering.

“The case had been reviewed and declined to a number of lawyers prior to us being retained,” Evans said. “We did not actually file for a long time after we were retained, because we wanted to make sure we were on solid footing. We retained experts, and after the investigation and communication with the insurance carriers for the corporate entities who denied the claim, we went ahead and proceeded with litigation.”

Evans called the lawsuit a “novel case” in North Carolina, as he and his co-counsel are not aware of any other North Carolina lawsuits dealing with in utero trauma from a car wreck causing cerebral palsy.

Two pediatric neurologists and a neonatologist posited that the car wreck was more likely than not the cause of the cerebral palsy and that there was no evidence of any other potential cause. Evans said the mother had a normal labor with no documented trauma during the birthing process, and the attorneys could cite medical literature to support the causal link between in utero trauma and cerebral palsy.

The defense contended that his cerebral palsy was not caused by the car wreck, pointing to the lack of any documented injury to the fetus when the mother was treated at the hospital following the car wreck, the fact that the diagnosis was made well after birth, the possibility of other causes, and the fact that in many cases, the cause of cerebral palsy is simply unknown.

Prior to the settlement, the teen’s family had lived in a home that wasn’t wheelchair accessible and did not have reliable transportation for him.

“They now live in a fully handicap accessible home with improvements such as a track system,” Evans said. “They have a new handicap equipped van, and have a guaranteed stream of income to provide resources that will make a significant difference in the minor’s life and help care for him in adulthood.”

Charles Ellis and Jeremy Wilson of Ward and Smith in Greenville and Wilmington, respectively, and Dewey Hudson in Clinton also represented the family.

The parties agreed to the settlement on Sept. 20. Due to a confidentiality clause, many details about the case, including the identities of the plaintiffs, the defendants, and the defendant’s counsel, were not available.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $2.5 million

Injuries alleged: Spastic tetraplegic cerebral palsy

Case name: Confidential

Court: Confidential

Date of settlement: Sept. 20, 2019

Attorneys for plaintiff: Lynwood Evans, Charles Ellis, and Jeremy Wilson of Ward and Smith in Greenville and Wilmington and Dewey Hudson in Clinton

Attorney for defendants: Withheld

31. Injured trucker settles suit for $2.37M

A former truck driver who was injured in a work-related accident will receive $2.37 million after he settled a lawsuit against his former employer and its insurance company, his attorneys report.

Michael Greer and John Hensley of Hensley Cloninger in Asheville report that their client, Kenneth Nightingale was hurt in a tractor trailer collision. His injuries included a traumatic brain injury and multiple fractures resulting in limited use of all four extremities.

Nightingale’s brain injury caused changes in mood and personality. His employer, T&D Trucking, initially accepted the case, providing indemnity benefits and medical treatment, but issues arose over the company’s obligation to provide prescribed attendant care, including the number of hours of care needed, whether care was necessary while he slept, who was suitable to provide the care, and the appropriate rate of pay.

Nightingale refused several attempts by his employer to place an attendant for his care because he felt uncomfortable with the particular provider or did not trust them to be in his home, particularly while he slept, Greer said. Nightingale argued that the company remained obligated to provide the prescribed care and that his refusals were excused by the neuropsychological effects of his brain injury.

Greer said Nightingale lives in a very small town with limited care options. A close friend of his agreed to provide attendant care and had cared for Nightingale around the clock for more than a year. Nightingale argued that since the friend was providing the prescribed attendant care, the defendants were obligated to provide compensation at the prevailing market rate.

Ashley Johnson of Vargas Vocational Counseling in Belmont provided analysis of pay rates for various providers of attendant care, numbers that were “intensely litigated,” Greer said.

Despite several near impasses, the case settled on Sept. 12. T&D Trucking and its insurer, American Interstate Insurance Company, paid the claim and funded the Medicare set-aside arrangement within days of the Industrial Commission’s approval of the settlement.

“He is still profoundly disabled,” Greer said of his client. “But I think that having settled the case and having gotten compensation for the person who is providing attendant care has helped him and the attendant care provider.”

Ryan Keevan of Hedrick Gardner in Charlotte represented the defendants. He declined to comment on the settlement.

SETTLEMENT REPORT — WORKERS’ COMPENSATION

Amount: $2.37 million

Injuries alleged: Traumatic brain injury, multiple fractures, limited use of all extremities

Case name: Kenneth Nightingale v. T&D Trucking, Inc. and American Interstate Insurance Company, Inc.

Court: North Carolina Industrial Commission

Case No.: 15-035781

Mediator: Steve Sizemore of Sizemore McGee in Asheville

Date of settlement: Sept. 12, 2019

Most helpful experts: Ashley Johnson of Vargas Vocational Counseling in Belmont

Insurance carrier: American Interstate Insurance Company

Attorney for plaintiff: Michael Greer and John Hensley of Hensley Cloninger in Asheville

Attorney for defendants: Ryan Keevan of Hedrick Gardner in Charlotte

32. Dash cam video leads to $2.3M settlement in truck driver’s death

A dash cam video was the key piece of evidence that resulted in a $2.3 million confidential settlement for the widow of a truck driver who was killed by another truck after he had pulled onto the shoulder of a Charlotte highway to check his rig’s engine, his widow’s attorneys report.

In May 2018, the victim had pulled over onto the shoulder of I-485 in Charlotte near the off ramp at Westinghouse Road, presumably because of problems with the truck’s engine or another mechanical failure, said Charles Hinnant of Ted Greve & Associates of Charlotte, who represented the widow along with Ted Greve.

The victim, whose name was withheld, turned on his rear hazard lights and opened the hood of his truck, Hinnant said. He was standing between his truck and the white line separating the road, leaning in towards his engine to inspect it. At the same time, the defendant, who was driving a large box truck, exited the off ramp and drove about 1,000 feet before side-swiping the truck and propelling the victim into a grassy area.

The victim was still responsive in the moments immediately after the impact, and when the driver approached him, he asked the driver to help him up. He died about 13 minutes later in an ambulance, Hinnant said.

The defense argued contributory negligence, contending that the victim had failed to pull over his truck in a well-lit area a safe distance away from the road and wasn’t wearing a reflective vest. But through discovery, Hinnant and Greve obtained dash cam video from the at-fault driver. They said it showed that the driver should have seen the rig.

“The entire event was on video, and that is evidence your seldom ever have,” Hinnant said. “In this case the video evidence was really critical because it helped to deal with the contributory negligence defense.”

The defense also argued that the man had not placed cones around his truck, which is required by law if a truck driver pulls a rig over for more than 10 minutes, but Hinnant contended that there was no way to tell how long the man had been pulled over.

“We have no idea how long he was actually there for,” Hinnant said. “For all we know, he had just literally pulled over three minutes before.”

The man was 60 years old and supported his family.

“He had many years’ worth of time that he could have continued to provide income and his support for his family,” Hinnant said. “Ultimately, it was a challenging case, and we were very happy to obtain a favorable result for the family.”

Other details about the case, including the names of the defendant and defense attorneys, were withheld due to a confidentiality agreement.

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $2.3 million

Injuries: Death

Case name: Confidential

Court: Withheld

Date of settlement: July 12, 2019

Attorneys for plaintiff: Charles Hinnant and Ted Greve of Ted Greve & Associates in Charlotte

Attorney for defendant: Withheld

33. Jury slaps oral surgeon with $2.29M alienation of affection verdict

A Rowan County jury took a $2.29 million bite out of an oral surgeon’s wallet after finding that he splintered the marriage between his surgical assistant and her husband.

In a verdict handed down on June 25, the jury ordered Matthew Johnson to pay Gerald Sprinkle Jr. $250,000 for alienation of affection, $544,000 for criminal conversation, and $1.5 million in punitive damages.

James Davis of Davis & Davis in Salisbury, who represented Sprinkle, described his client as a police officer who had a loving, eight-year marriage with his wife, who had worked as a surgical technician for Johnson for 17 years.

The three were friends and often hung out together, Davis said. But in October 2017 Johnson made “unwanted advances” against Sprinkle’s wife during her yearly performance evaluation. That soon progressed into a sexual relationship, and later Johnson also began giving her unprescribed narcotics, according to testimony.

“She felt pressured by the doctor,” Davis said. “This was her job and her livelihood. He drugged her, dominated her, and discarded her.”

The sexual relations took place at Johnson’s home, a hotel, and at the office and ended in January 2018 after Sprinkle’s wife told him about the affair. He called the affair “devastating” to Sprinkle and his marriage.

“There were a lot of tears in this trial,” Davis said. “It was very emotional and gut-wrenching.”

Johnson was a no-show at the trial, although the attorney representing him at the time denied most of the allegations in the lawsuit.

“The truth of the matter is that it was much harder than the normal trial,” Davis said. “It was like having a ghost defendant. I had to literally give an explanation of the trial and what we were doing and outline it for them, as opposed to using the art of examination. You don’t have anybody to argue against. People may think it’s easy, but wait until you do that in a quiet courtroom when you have such a controversial subject.”

The attorney who had been representing Johnson withdrew from the case in April, and Johnson did not retain new counsel.

Davis said that Sprinkle and his wife remain married.

VERDICT REPORT — HEART BALM SUIT

Amount: $2.2 million

Injuries alleged: Alienation of affection, criminal conversation

Case name: Gerald Sprinkle Jr. v. Matthew Johnson

Court: Rowan County Superior Court

Case No.: 18-CVS-699

Judge: Anna Mills Wagoner

Date of verdict: June 25, 2019

Special damages: $1.5 million in punitive damages

Attorney for plaintiff: James Davis of Davis & Davis in Salisbury

Attorney for defendant: Withdrew before trial

34. Caught steel-ing: Jury awards biz owner $2.21M in fraud suit

An Iredell County jury has awarded the owner of a steel tubing manufacturer $2.1 million after his former business partner used the company’s money to buy stock shares that gave him ownership of half of the business and boost his own bank account, court documents show.

Leon Rives owned the accounting firm that handled the books for Statesville-based Steel Tube Inc., which markets itself as one of the largest carbon steel and galvanized steel tubing makers in the Southeast. In 2014, Rives approached the company’s two co-owners about buying the company. That deal never materialized, but one of the two co-owners, Walter Lazenby, agreed to sell his half of the shares to Rives, with Rives making his payments in installments.

But unbeknownst to either Lazenby or STI’s remaining co-owner, W. Avalon Potts, Rives used money from a line of credit on STI’s behalf and other accounts to pay off his personal debt to Lazenby for his stake in the company.

Three days later, Rives’ wife formed a new company, Elite Tube. The next month, Rives wired $120,000 from STI’s bank account to Elite Tube, ostensibly for its share of a piece of equipment the two companies would share. Potts sued Rives and his accounting firm for fraud after learning about the transfers. Potts alleged that Rives made similar purchases and transfers that Potts knew nothing about, despite their having an agreement that all of STI’s purchases over $25,000 required both Potts’ and Rives’ joint approval.

Moreover, Potts said that Rives was withdrawing $7,500 per month from STI’s bank account to pay himself an “officer’s salary” and presented Potts with a ‘sham agreement’ that named him as CEO of STI, giving him complete control of the business.

The case was designated as a complex business case, and North Carolina Business Court Judge Adam Conrad was assigned to preside over the trial. After a two-day trial, a jury awarded Potts just over $2.21 million on Dec. 11. The jury’s verdict included $1,675,846 for breach of fiduciary duty, constructive fraud, conversion, and fraud; $500,000 in punitive damages; and $40,000 for professional negligence.

Mark Nebrig and John Floyd of Moore & Van Allen in Charlotte represented Potts. Nebrig said that Potts now owns 100 percent of STI.

“It wasn’t some kind of forced marriage, where [Rives] jumped out of the cake and said, “I’m an owner now,” Nebrig said. “It was his conduct after he purchased the shares that was really the crux of this case.”

Nebrig said that having a Business Court judge who understood its complexities gave attorneys on both sides the ability to “develop the right path toward presentation to the jury.”

Frederick Sharpless and Pamela Duffy of Sharpless McClearn Lester Duffy in Greensboro represented Rives. Sharpless declined to comment on the verdict, but has filed a motion for a new trial.

VERDICT REPORT — FRAUD

Amount: $2.21 million

Injuries alleged: Breach of fiduciary duty, constructive fraud, conversion, and fraud

Case name: W. Avalon Potts, derivatively on behalf of Steel Tube, Inc. v. Rives & Associates and Steel Tube and Leon Rives

Court: Iredell County Superior Court

Case No.: 16-CVS-2877

Judge: Adam Conrad

Date of verdict: Dec. 11, 2019

Special damages: $1,675,846 for breach of fiduciary duty, constructive fraud, conversion, and fraud; $500,000 in punitive damages; and $40,000 for professional negligence

Attorneys for plaintiff: Mark Nebrig and John Floyd of Moore & Van Allen in Charlotte

Attorneys for defendant: Frederick Sharpless and Pamela Duffy of Sharpless McClearn Lester Duffy in Greensboro

35. Teacher injured in head-on car crash wins $2.1M jury verdict

A woman who had to end her teaching career after she was hit head-on by an elderly driver has won a $2.1 million jury verdict against the driver’s estate.

Tomasine McAllister, 62, was driving on a rural road in Hoke County in May 2015 when a car traveling in the opposite direction crossed the center line and hit her “as square as you possibly could,” said Hoyt Tessener of the Law Offices of James Scott Farrin in Durham, who represented McAllister along with Coleman Cowan of the same firm.

The driver of the other car died within four hours, and his wife, who was a passenger, died two weeks later. McAllister suffered broken bones in all four extremities and broken ribs, Tessener said. She was hospitalized for three weeks and had three surgeries.

The biggest challenge she faced was that since she had broken arms and broken legs, she could not begin rehabilitation until several months after the accident. By that time her bones had weakened, and she later shattered her ankle.

“She couldn’t do anything but sit or lay down,” Tessener said.

McAllister was a well-respected high school English teacher who formed a club called “Ladies of Distinction” that met at her home and helped primarily African-American teens apply for college, and her injuries prevented her from returning to the classroom, Tessener said.

“She carried herself in a way that was inspiring to students, but when teaching high school, you have to be able to be in physical control of your classroom,” Tessener said. “She walks with a cane now. She’s not the same person. It was too dangerous for her to return to teaching.”

The trial lasted five days, and the jury was out for 53 minutes before returning its verdict on June 14, Tessener said.

Daniel Gaylord of Gaylord & Rodgers in Durham represented the estate. He said that the insurance policy limits were $3.3 million, and McAllister asked for $5.5 million, so “we had no choice but to try” the case.

“We are satisfied, and respect the jury’s decision,” he said. “She was a very nice lady, and she was very hurt.”

VERDICT REPORT — MOTOR VEHICLE CRASH

Amount: $2.1 million

Injuries alleged: Broken bones in all four extremities; broken ribs

Case name: Tomasine B. McAllister v. Jesse Coyle as the Administrator of the Estate of John A. Alphin Jr.

Court: Hoke County Superior Court

Case No.: 17-CVS-621

Judge: Mary Ann Talley

Date of verdict: June 14, 2019

Highest offer: $1.1 million

Special damages: $245,188

Most helpful experts: Michael Faigenbaum, M.D. (orthopedic surgeon)

Insurance carrier: State Farm

Attorney for plaintiff: Hoyt Tessener and Coleman Cowan of the Law Offices of James Scott Farrin in Durham

Attorney for defendant: Daniel Gaylord of Gaylord & Rodgers in Durham

36 (tie). County pays $2M over jail overdose death

Buncombe County will pay $2 million to settle a lawsuit with the family of a woman who died of a methamphetamine overdose while in the county jail, the family’s attorneys report.

Steve Agan and George Hyler of Hyler & Lopez in Asheville and Todd Lentz and John Olesiuk of DeVere Lentz & Associates in Asheville said that Michele Smiley was pronounced dead at a hospital barely an hour after she was booked at the Buncombe County jail on a probation violation in October 2017. They contended that her death could have been prevented if the jail’s guards, staff, and nurse had been properly trained about how to handle a drug overdose.

Moments after she was booked, Smiley began behaving erratically, according to the complaint the family filed in U.S. District Court. She told a guard that she had swallowed some methamphetamine so her probation officer wouldn’t find it. At one point, one of the guards allegedly told her, “Don’t worry, you are not going to die. You are just going to get really high.” Once in a cell, she started pulling up her shirt, rolling around, fanning herself, taking her clothes off, and moving rapidly and erratically around the cell, the family alleged.

Eventually, Smiley lost consciousness. At one point, a guard tried to revive her with Narcan, which is used to treat overdoses from opioids, not methamphetamine. Forty minutes after she was booked, a guard called an ambulance. Smiley died less than half an hour later.

Smiley’s family alleged that the jail failed to provide her appropriate treatment and keep her under special watch and failed to contact emergency medical services or take her to the hospital, despite her showing obvious signs of a drug overdose. They reached a settlement with the county on Dec. 17.

The biggest challenge in reaching the settlement was organizing the evidence, the attorneys said. The key piece of evidence was a video that showed the incident from start to finish–except a four-minute period during which Smiley told the guards she had swallowed the methamphetamine. Someone had deleted that part from the master tape, the attorneys said.

“You don’t really get the full picture until you get the case filed, you get the discovery and you get all the statements and videos,” Agan said. Hyler agreed, saying that the videotape was “very compelling.”

The attorneys said that a jury focus group wasn’t as unsympathetic to Smiley, who was a mother to six children, as it might have been, given that she had taken methamphetamine.

“That wasn’t much of a challenge, as we had feared,” Olesiuk said.

The attorneys said that the key question was whether Smiley would have lived had guards, staff, and the nurse immediately taken action to get her to the emergency room.

“A medical doctor unequivocally said that it was much more likely than not,” Agan said.

Lentz said that one of the most important things for the family was that the lawsuit helped prompt changes in procedures the jail followed in handling overdoses.

“The jail has modified its procedures and modified its training so this kind of thing hopefully doesn’t happen again in our community,” he said.

Sean Perrin of Womble Bond Dickinson represented the sheriff and jailers. He could not be reached for comment.

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $2 million

Injuries alleged: Death

Case name: Irene Warren Kent, administrator of the Estate of Michele Quantele Smiley v. Van Duncan, in his official capacity as Sheriff of Buncombe County, et al.

Court: U.S. District Court for the Western District of North Carolina

Case No.: 18-cv-322

Judge: Martin Reidinger

Date of settlement: Dec. 18, 2019

Most helpful experts: David H. Goldstein, M.D. of Sarasota, Florida (medical expert), John G. Peters Jr. of Henderson, Nevada (jail conditions), James E. Aiken of Brevard (jail conditions), and Douglas Keene of Austin, Texas, (jury focus groups)

Attorneys for plaintiff: Steve Agan and George Hyler of Hyler & Lopez in Asheville and Todd Lentz and John Olesiuk of DeVere Lentz & Associates in Asheville

Attorney for defendants: Sean Perrin of Womble Bond Dickinson in Charlotte

36. (tie) Family of scalded toddler settles suit for $2M

The family of a toddler who suffered severe burns from scalding hot water in a hotel bathtub has confidentially settled a lawsuit against the hotel for $2 million, his attorney reports.

J.D. Hensarling of Vann Attorneys in Raleigh reported that the two-year-old boy and his family were at the hotel in 2015 when he was burned by water that was “well above the legal temperature.” The family filed a lawsuit in Wake County Superior Court, alleging negligence and negligence per se, claiming that the hotel did not properly maintain its water temperature control system.It is not clear how the boy got into the tub.

“How the child ended up in the tub was a big part of the dispute,” Hensarling said. “What’s not in dispute is that the child ended up in the tub and the water caused third-degree burns.”

The boy continues to undergo medical treatment.

The settlement, mediated by Jacqueline Clare of Raleigh, was reached on July 26. The identities of the defendants and their attorneys were withheld pursuant to the confidentiality agreement.

SETTLEMENT REPORT – NEGLIGENCE

Amount: $2 million

Injuries alleged: Third-degree burns

Case name: Confidential

Court: Wake County Superior Court

Case No.: Confidential

Mediator: Jacqueline Clare of Raleigh

Date of settlement: July 26, 2019

Attorney for plaintiff: J.D. Hensarling of Vann Attorneys in Raleigh

Attorney for defendant: Confidential

38 (tie). Jury awards $1.95M in breach of contract case

A federal jury has awarded $1.95 million to a Charlotte financial advising firm that helped secure financing for a company that later refused to pay the firm’s full financing fee, the firm’s attorneys report.

In 2014, Prassas Capital found financing for Blue Sphere Corp. for two waste-to-energy projects–one in Charlotte and another in Rhode Island, attorneys James Gatehouse and Benjamin Shook of Rayburn Cooper & Durham in Charlotte report.

The financing closed in early 2015, and approximately $47 million was contributed to projects as a result of Prassas’s efforts to locate a suitable investor, Gatehouse said, entitling Prassas to a financing fee of more than $2.7 million. Over the next two years, Blue Sphere paid Prassas $833,333, but did not pay the full amount of the fee, and Prassas brought a breach of contract action against the company in the U.S. District Court for the Western District of North Carolina.

Gatehouse said that Blue Sphere claimed that Prassas, while it did secure the financing, didn’t perform other duties required under the contract, akin to a real estate broker who sells a house but doesn’t perform other duties in the meantime, such as holding an open house. Blue Sphere also argued that Prassas was barred from recovering under the contract because the firm was acting as an unregistered broker-dealer in violation of the Securities Exchange Act.

All of Blue Sphere’s counterclaims were dismissed, and its “broker-dealer” defense was dismissed on summary judgment, Gatehouse said.

The primary issue for the jury was whether Prassas had substantially performed under the contract and whether the parties had, through various email communications, agreed to a substantial reduction of the financing fee sufficient to satisfy governing Arizona law, including the Arizona statute of frauds.

The trial lasted two and a half days, and the jury deliberated for approximately two hours before returning a verdict on July 31 finding that Prassas had substantially performed its obligations under the contract and awarding Prassas the full amount it had sought. U.S. District Judge Robert Conrad presided over the trial.

Erik Norton and Ben Chesson of Nelson Mullins in Columbia, South Carolina, and Charlotte, respectively, represented Blue Sphere. They could not be reached for comment.

VERDICT REPORT — BREACH OF CONTRACT

Amount: $1.95 million

Injuries alleged: Failure to pay earned fees

Case name: Prassas Capital, LLC v. Blue Sphere Corporation

Case No.: 3:17-cv-131

Court: U.S. District Court for the Western District of North Carolina

Judge: Robert Conrad

Date of verdict: July 31, 2019

Attorney for plaintiff: James Gatehouse and Benjamin Shook of Rayburn Cooper & Durham in Charlotte

Attorneys for defendant: Erik Norton and Ben Chesson of Nelson Mullins in Columbia, South Carolina, and Charlotte, respectively

38 (tie). Plant nursery gets $1.95M from DOT

The North Carolina Department of Transportation is paying the owners of a plant nursery $1.95 million for property to make room for the Southern Wake Expressway, their attorneys report.

George Autry, Stephanie Autry and Jeremy Hopkins of Cranfill, Sumner & Hartzog in Raleigh report that Ennis and Atkins Nursery owned 12.3 acres in Wake County.

“While the property contained five greenhouses, a shed, and other outbuildings used for a nursery business, the undisputed highest and best use of the land was high-end residential development,” Hopkins said.

The DOT reserved the property in 1996 without paying for it under the state’s Map Act, which the North Carolina Supreme Court struck down in 2016. The DOT then offered $590,675 for 3.5 acres to build the Southern Wake Expressway, plus just under a half-acre for easements.

“The taking severs the property into two pieces, leaving approximately [a half acre] landlocked, prohibits all access to the new expressway, and places a raised superhighway across the property,” Hopkins said. “These changes drastically reduced the desirability of this property for residential use and development and severely impacted the market value of the property.”

The owners refused the DOT’s offer and filed an inverse condemnation action against the DOT. After mediation, the DOT agreed to pay $1.95 million for the property.

SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $1,950,000

Injuries alleged: Condemnation of 3.5 acres, plus easements, from a 12.3 acre tract, plus restrictions on development potential stemming from the Map Act

Case name: Ennis and Atkins Nursery v. North Carolina Department of Transportation

Case No.: 19-CVS-4280

Court: Wake County Superior Court

Date of settlement: Dec. 13, 2019

Initial offer: $590,675

Attorneys for defendants: George Autry, Stephanie Autry and Jeremy Hopkins of Cranfill, Sumner & Hartzog in Raleigh

40. Deadly dental procedure leads to $1.9M settlement

The widower of a woman who died after a routine dental procedure has confidentially settled a lawsuit against the dentist who performed the procedure for $1.9 million, his attorneys report.

Tom Comerford and Aindrea M. Pledger of Comerford, Chilson & Moser in Winston-Salem said the North Carolina woman, whose name was withheld pursuant to a confidentiality agreement, went to the dentist to have several teeth pulled, which would require her to undergo general anesthesia. 

On the day of her appointment, her vital signs were “alarming,” Pledger said, but the dentist didn’t postpone the procedure and administered anesthesia despite “obvious warning signs.” Her vital signs plummeted, Pledger said, and she went into cardiac arrest.

EMS was called to the dental office, and EMS workers found the woman unresponsive. She had difficulty breathing and had flatlined. EMS was able to regain her pulse and rushed her to a nearby hospital, but the 42-year-old woman never regained consciousness and died.

The woman’s husband obtained an affidavit from a “highly regarded expert that supported the case due to several breaches of the standard of care,” Pledger said. 

Besides her husband, the woman is survived by three children, including a daughter who is severely autistic, Pledger said.

“The mother was the primary caregiver,” Pledger said. “The mother and daughter had a really special relationship, and it’s been really hard on the family.”

Other details about the settlement, including the identities of the defendants and their counsel, were not available due to the confidentiality agreement.

SETTLEMENT REPORT – WRONGFUL DEATH

Amount: $1,900,000

Injuries alleged: Death

Case name: Withheld

Court: Withheld

Date of settlement: July 2019

Attorney for plaintiff: Tom Comerford and Aindrea M. Pledger of Comerford, Chilson & Moser in Winston-Salem

Attorney for defendant: Withheld

41. Jury awards whistleblower $1.8M in DA scheme case

A Wake County jury has awarded $1.8 million to a former legal assistant who blew the whistle on the former Caswell and Rockingham counties district attorneys who hired each other’s wives to work in their respective offices, a scheme that destroyed their legal careers.

The jury ordered the state of North Carolina to pay Debra Halbrook, who worked in the 9A Prosecutorial District in Caswell and Person counties under former District Attorney Wallace Bradsher, because it failed to protect her during an investigation into Bradsher and former Rockingham County District Attorney Craig Blitzer.

Halbrook had worked for the district attorney’s office in Caswell County for more than 20 years and was months away from retirement before discovering the agreement between Bradsher and Blitzer. She alleged that each of the district attorneys had initially hired their wives to work in their own offices, but the Administrative Office of the Courts told them the hires were a violation of AOC rules.

Halbrook said that in 2016, she found out that the district attorneys had concocted a scheme in which they would hire each other’s wives as full-time staff members, allowing them to “work” a few days each year, have staff falsify time records in the judicial branch’s electronic payroll system to indicate that they were working full-time, and collect a combined total of nearly $100,000 per year in salaries.

When Halbrook discovered what was happening, she informed the SBI, which immediately initiated a criminal investigation. The SBI told Halbrook that it would protect her and that Bradsher would not discover she was an informant until after he was indicted.

Six months later, however, Bradsher was still district attorney, knew he was under investigation, and began to suspect Halbrook. In January 2017, he fired her “in a fit of rage.”

“On the day she was fired, Ms. Halbrook was only a few months away from vesting as a 20-year employee of the Judicial Branch, which would have entitled her to a retirement pension and health care benefits for the rest of her life,” the complaint said. “Now, Ms. Halbrook has no retirement, no health insurance, no job, and no prospects for employment in Caswell County. The State is required by law to protect whistleblowers like Ms. Halbrook, who have the courage to speak up about fraud in state government. Here, instead, the State took away her job, her health insurance, and her retirement.”

The complaint said that after Blitzer’s wife was hired as an investigator, she came to the office only a few times and she would stay for only a few hours.

Blitzer’s wife was never issued a security card or security credentials, the complaint said. “Most employees in Defendant Bradsher’s office, as well as the members of the local bar and local law enforcement community, had never even met Cindy Blitzer.”

Halbrook described Bradsher as unlike any other district attorney she had ever worked under.  He would employ Christian doctrine to enforce an “unnatural hierarchy” with his staff.

“While Ms. Halbrook is a devout Christian, she felt that twisting these messages lacked any foundation in the Bible and was inappropriate,” the complaint says. “Bradsher referred to himself as “The Lion” and his staff as his “flock of sheep.” To remind the staff that they were subordinate to him, he would frequently tell them, ‘I am the lion, you are my sheep.’”

Bradsher also kept a sculpture in his office of a lion with a flock of sheep. He mounted a lion’s head on his office door and created a seal for his office that featured an image of a lion, and the words: “Justice. Faith. Loyalty.”

The trial lasted five days, and the jury deliberated for an hour before returning its verdict on Nov. 13. Drew Erteschik, Emily Meeker, David Long, Colin McGrath, Stephanie Gumm, and J.M. Durnovich of Poyner Spruill in Raleigh and Lee Farmer of Yanceyville represented Halbrook.

The attorneys said in a statement that North Carolina’s whistleblower law protects public servants who come forward and report government wrongdoing, and that the verdict sends a message that the whistleblowers will be protected.

“More than three years ago, Debbie Halbrook stood up for all of us when she reported Wallace Bradsher’s crimes,” the statement reads. “He fired her for reporting those crimes, and it has been a long, hard road to get justice. The jury delivered that justice for Debbie. She is gratified by the jury’s verdict, but she is most gratified by the fact that the justice system worked.”

After the news of the scheme broke, Blitzer resigned as Rockingham County’s district attorney and paid $48,000 back to the state. He pleaded guilty to misdemeanor failure to discharge the duties of his office, although the entry of that judgment has thus far been postponed.

Bradsher served four months in prison after he was convicted of three felonies and two misdemeanors.

VERDICT REPORT — WHISTLEBLOWER ACTION

Amount: $1.8 million

Injuries alleged: Lost wages, pain and suffering

Case name: Debra Halbrook v. State of North Carolina

Court: Wake County Superior Court

Case No.: 17-CVS-2250

Date of verdict: Nov. 13, 2019

Special damages: $600,000 for lost wages and retirement, $1.2 million for pain and suffering

Attorneys for plaintiff: Drew Erteschik, Emily Meeker, David Long, Colin McGrath, Stephanie Gumm, and J.M. Durnovich of Poyner Spruill in Raleigh and Lee Farmer of Yanceyville

42. Jury awards $1.76M in bad faith case

A Guilford County jury has awarded $1.76 million to an insurance company which alleged that another insurer bungled a personal injury lawsuit in South Carolina federal court, leading to a $3.76 million mid-trial settlement.

The case began with an October 2014 wreck in Marlboro County, South Carolina, in which a 61-year-old man and his wife were injured when a tractor-trailer driver rear-ended his vehicle while the driver of the tractor-trailer was talking on his cell phone. The couple filed lawsuits against the driver and his employer, Unifi Manufacturing. The husband’s lawsuit was later removed to federal court in South Carolina, while his wife’s remained under the state’s jurisdiction.

Unifi had a $2 million primary liability insurance policy with The Hartford and an umbrella insurance policy, which provides excess liability insurance, with Travelers. A representative of Travelers “implored” The Hartford to settle the claims within the policy limits, the company says, because of a “laundry” list of aggravating factors, including admissions that the driver of the tractor-trailer was on his cell phone in violation of company policy and was speeding.

Nevertheless, after nearly six months of mediation, The Hartford offered only $450,000 to settle the cases, against the plaintiffs’ demand of $3.5 million. Travelers sent another letter to The Hartford, demanding that it settle. About two weeks before trial, the plaintiffs offered to settle their cases for the policy limits of $2 million. The Hartford refused, and the case went to trial in November 2016.

It proved to be a costly decision. After two days of trial, the defendants agreed to settle the case. Travelers alleged that The Hartford tendered its remaining policy limits without negotiating any reduction in the couple’s demand or giving Travelers any advance notice, and that as a result it was forced to agree to a settlement that left it on the hook for $1.76 million in excess of the policy limits.

The company then sued The Hartford in North Carolina, where Unifi is headquartered, alleging a bad faith failure to negotiate the claim. It said that based on Unifi’s company financials and large fleet of trucks, both insurers feared punitive damages in the realm of $10 million.

“Travelers was put in an untenable position and was then forced to reach an immediate settlement before the trial was to continue the next morning,” the company alleged in its complaint. “The testimony at trial confirmed that the issue of punitive damages was going to reach the jury based on Unifi’s rampant cell phone abuse. The exact same issues concerning cell phone use had been discussed during depositions and were outlined in Travelers’s demand letters to Hartford.”

In a Sept. 23 verdict, the North Carolina jury agreed and awarded Travelers $1.76 million, plus interest.

Edward Bresee of Mozley Finlayson and Loggins in Atlanta represented Travelers. Brian Beverly of Young Moore and Henderson in Raleigh represented The Hartford. Both attorneys declined to comment on the verdict.

VERDICT REPORT — BAD FAITH CLAIM

Amount: $1.76 million

Injuries alleged: Payment of insurance benefits to insured party

Case name: Travelers Property Casualty Company of America v. Hartford Insurance Company of the Midwest

Court: Guilford County Superior Court

Case No.: 18-CVS-7069

Date of verdict: Sept. 23, 2019

Demand: $2 million

Attorney for plaintiff: Edward Bresee of Mozley Finlayson and Loggins in Atlanta

Attorney for defendant: Brian Beverly of Young Moore and Henderson in Raleigh

43. Man settles car crash lawsuit for $1.75M

A man who suffered life-threatening injuries after a woman on a cell phone ran a stop sign and crashed into his vehicle has settled a lawsuit against her estate for $1.75 million, the man’s attorneys report.

In April 2017, James Nitsch was driving west on a rural stretch of N.C. Highway 27 in Chatham County when another motorist, Bonnie Stephenson, ran a stop sign and collided at high speed with his driver’s side door, said Hunt Willis and Forest Horne of Martin & Jones in Raleigh.

Stephenson died, while Nitsch suffered life-threatening injuries to his spleen and liver. He also suffered acute traumatic injuries, including rib and non-displaced spinal fractures, and a head injury.

He was airlifted to WakeMed Hospital in Raleigh, where he underwent two abdominal surgeries to remove his spleen and repair internal injuries.

He spent three weeks in intensive care and three weeks in in-patient rehabilitation, Willis said, and underwent outpatient rehabilitation.

After an opening settlement offer of $500,000, Nitsch filed the lawsuit, Willis said.

“The plaintiff’s recovery and his claim were complicated by the fact that he had pre-existing multiple sclerosis, which had impacted his ability to walk without assistance before the collision,” Willis said.

However, he has made a “remarkable” recovery and is able to walk again, but requires assistance from a walker instead of a cane, he said.

The case was defended on contributory negligence and the pre-existing condition.

“The defense argued that the plaintiff should have seen the decedent’s vehicle approaching the intersection and should have slowed or made some maneuver to avoid the collision,” Willis said.

The attorneys discovered through records that Stephenson was likely on her cell phone at the time of the crash, Willis said.

“Those developments essentially led the defense to rescind the contributory negligence allegations,” Willis said. “We certainly had concerns, considering our case was against a widower who was serving as the administrator of his deceased wife’s estate, and these were fine people.”

The attorneys received cooperation from rehabilitation physicians, neurologists, and a family doctor, as well as family and friends, which allowed them to draw “a compelling ‘before and after’ picture of the plaintiff’s condition, notwithstanding his excellent recovery,” Willis said.

“Before the wreck he lived in his rural farm home,” Horne added. “After the wreck, he had to convert his garage/workshop to a studio where he primarily lived and slept, because he could no longer make it up the stairs to his bedroom. That may have been the most compelling part of the mediation.”

Lori Elizabeth Gilmore of McAngus, Goudelock & Courie in Raleigh represented the defense.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH           

Amount: $1.75 million

Injuries alleged: Internal organ damage, spinal fractures, head injury

Case name: James Nitsch v. Estate of Bonnie Stephenson

Court: Chatham County Superior Court

Case No.: 18-CVS-428

Mediator: Bob Beason of Beason & Trehy Conflict Resolution in Durham

Date of settlement: May 15, 2019

Most helpful experts: Dr. Pat O’Brien of WakeMed Rehabilitation in Raleigh

Insurance carrier: State Farm

Attorneys for plaintiff: Hunt Willis and Forest Horne of Martin & Jones in Raleigh

Attorney for defendant: Lori Elizabeth Gilmore of McAngus, Goudelock & Courie in Raleigh

44. Cocaine use a factor in $1.575M settlement over fatal wreck

The family of the man who was killed after a driver of a truck towing a cement pourer ran a red light and T-boned his vehicle has settled a lawsuit for $1.575 million, the family’s attorney reports.

Charles Hinnant III of Ted Greve & Associates in Charlotte reports that Eddie Shook was stopped at an intersection waiting to make a left turn In December 2017 when the truck crashed into his vehicle’s side door, killing him.

“He did not die at the scene,” Hinnant said. “However, we deposed the first responder who was the lead paramedic who was on the scene within a matter of minutes. His testimony was that Mr. Shook was completely unconscious and unresponsive.” Shook was declared dead about an hour later.

The at-fault driver, Jadiel Gonzalez-Padron, was driving a truck for a cement pouring company, Jose Trucking Corp. Blood drawn at the scene showed cocaine and cocaine metabolite in his system. Padron eventually pleaded guilty to misdemeanor death by vehicle and admitted that he had used marijuana the night before, and cocaine about 90 minutes before, the 7 a.m. wreck.

“The challenge with this case was that, unlike many folks we represent in a wrongful death case where they had dependents and are married, where those cases are more valuable, Mr. Shook was unmarried and has no dependents,” Hinnant said. Moreover, Shook died right after the crash, so his family did not pursue pain and suffering damages.

Hinnant negotiated the settlement based on the prospect that Shook, a retired custodian who was 50 years old, would live for 20 more years. He also sought punitive damages based on the fact that even though Gonzalez-Padron was not charged with DWI, he was likely under the influence of cocaine, according to the opinion of Randall Tackett, a University of Georgia toxicologist.

Additionally, a witness said that Gonzalez-Padron was driving recklessly just before the crash and investigators who searched his cell phone found a text message that said, “I can barley drive [sic]” that Gonzalez-Padron sent shortly before the crash.

Austin Walsh of Hedrick Gardner in Charlotte and Matt Little of Teague Campbell Dennis & Gorham in Raleigh represented the defendants. They could not be reached for comment.

VERDICT REPORT – WRONGFUL DEATH

Amount: $1.575 million

Injuries alleged: Death

Case name: Joshua Shook, as administrator of the Estate of Eddie Dean Shook vs. Jadiel Gonzalez Padron and Jose Trucking Corp. d/b/a G & P Contractors

Case number: 18-CVS-9952

Court: Mecklenburg County Superior Court

Mediator: Ray Owens

Date of settlement: Feb. 26, 2019

Most helpful experts: Randall Tackett of Athens, Georgia (toxicologist)

Insurance carrier: Ohio Security Insurance Company and The Princeton Excess and Surplus Lines Insurance Company

Attorney for plaintiff: Charles William Hinnant III of Ted Greve & Associates in Charlotte

Attorneys for defendant: Austin Walsh of Hedrick Gardner in Charlotte and Matt Little of Teague Campbell Dennis & Gorham in Raleigh

45. Family of motorcyclist killed by tractor-trailer wins $1.55M verdict

The family of a man who was hit by a tractor-trailer as he tried to pass the truck on his motorcycle has won a $1.55 million judgment against the truck’s driver after a bench trial in federal court.

Thomas Carroll was working at Case Farms in Duplin County in May 2016 while a truck driver working for Oakley Trucking was delivering a shipment to the farm, said Guy Crabtree of Durham and Leonard Jernigan of Raleigh, who represented Carroll’s wife and children.

Carroll was traveling behind the tractor-trailer on his motorcycle as they were both leaving the farm when he attempted to pass the truck on its left.

The tractor-trailer drifted into the left lane, causing Carroll to run off the road, lose control of his motorcycle, come back onto the road, and hit the side of the tractor-trailer. He flew off his motorcycle under the tractor-trailer’s tires, Crabtree said.

The driver was not keeping a proper lookout or keeping his tractor-trailer under proper control, Crabtree said.

The defense had contended that Carroll was reckless when he tried to pass the tractor-trailer and that Carroll was an inexperienced motorcyclist, Jernigan said. The driver said he never saw Carroll until he felt a bump under his rear trailer tires and saw the motorcycle fly off the shoulder of the road.

Crabtree contended that Carroll’s attempt to pass the slow-moving tractor trailer on the 24-foot-wide road did not amount to contributory negligence.

U.S. District Judge Earl Britt handed down the judgment Jan. 3 after a bench trial. The judgment includes $300,000 for each of Carroll’s four children.

“He won’t be coming over to teach them to dance, or attend a father-daughter function or help them move furniture in their first apartment,” Crabtree said. “He won’t be fixing their cars or fixing up their new home or bringing a stray animal over to be cared for, or taking them shopping.”

James Bryan and Jonathan Massell, who represented the defense, have appealed the ruling to the U.S. 4th Circuit Court of Appeals. They could not be reached for comment.

VERDICT REPORT – WRONGFUL DEATH

Amount: $1,551,767

Injuries alleged: Death

Case name: Wendy G. Carroll, Administrator of the Estate of Thomas Anthony Carroll, deceased, v. Oakley Trucking Inc.

Court: U.S. District Court for the Eastern District of North Carolina

Case No.: 17-cv-357

Judge: W. Earl Britt

Date of verdict: Jan. 3, 2019

Demand: $1,551,767

Attorneys for plaintiff: Guy Crabtree in Durham and Leonard Jernigan and Kristina Thompson in Raleigh

Attorneys for defendant: James Bryan and Jonathan Massell of Nexsen Pruet in Greensboro

46. Uber driver who lost arm settles suit for $1.5M

An Uber driver whose arm was amputated after her car collided with another at an intersection has confidentially settled a lawsuit against the City of Charlotte and others for $1.5 million, her attorney reports.

Coleman Cowan of the Law Offices of James Scott Farrin in Durham reports that his client, whose name was withheld pursuant to a confidentiality agreement, was between passengers when the accident occurred in October 2017. The city had recently converted a three-way intersection to a four-way intersection after a new road was cut through a new housing development.

The three-way intersection had been controlled with a stop sign, but no new stop signs were installed when it was converted to a four-way intersection, Cowan said. His client and the other driver entered the intersection at the same time from perpendicular directions, and neither had stop signs.

“Her car rolled over and crushed her left arm between the car and the road,” Cowan said. The client was airlifted to Carolinas Medical Center, where her arm had to be amputated at the elbow.

The engineer who designed the subdivision had included a second stop sign at the intersection in the original plans, Cowan said, but it was removed from the final plans submitted to the City of Charlotte for approval. The engineer couldn’t explain why the stop sign was removed from the final plans, Cowan said.

During construction of the subdivision, there had been concrete barriers blocking the new road approaching the intersection. Residents of the neighborhood said that the concrete barriers had been opened in the weeks before the collision, and that the intersection had become dangerous. In fact, Cowan said, two residents made complaints to the city about the intersection 10 days before the collision.

Besides settling her suit against the City of Charlotte, the client also reached settlements with the engineer who created the plans, his firm, and the subcontractor who built neighborhoods’ roads.

Due to a confidentiality agreement, other details about the settlement, including the names of the attorneys for the defendants, were not available.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $1.5 million

Injuries alleged: Amputation of left arm

Case name: Confidential

Court: Mecklenburg County Superior Court

Case No.: Withheld

Mediator: Raymond Owens of Higgins & Owens in Charlotte

Date of settlement: Oct. 8, 2019

Special damages: $38,717 for medical bills, $756,350 for future economic loss, and $582,718 for a life care plan

Most helpful experts: Daren Marceau of Cary (forensic transportation)

Attorney for plaintiff: Coleman Cowan of the Law Offices of James Scott Farrin in Durham

Attorney for defendants: Withheld

47. Newlywed-turned-widow settles crash suit for $1.3M

The widow of a 65-year-old man who died in a wreck with a pizza delivery driver has settled a lawsuit for $1.3 million, her attorney reports.

Matt Yelverton of Yelverton Litigators in Charleston, South Carolina reports that the victim, Raymond Russell was driving on N.C. 9 in Polk County when the delivery driver’s vehicle turned left in front of him.

The crash occurred in front of a fire department. Firemen “tried to extricate him from the vehicle, but it was apparent that he was not going to be able to survive,” Yelverton said.

Russell was pronounced dead at the scene. The 17-year-old delivery driver was not seriously injured, Yelverton said.

The case settled before Russell’s widow, Vickie, filed a lawsuit. Proving economic damages was difficult, Yelverton said, because the couple lived on $970 a month from Social Security, and Russell had been on disability for the past 15 years, so Yelverton focused on loss of companionship as an injury.

“They had known each other for years, went their separate ways and then reunited,” Yelverton said.

The couple had been married just three weeks prior to Russell’s death, and Yelverton made a video about their lives together and with others in their small community.

“I took a videographer to interview Vickie, Ray’s friends, church members, and others to develop the non-economics,” Yelverton said. “We were able to get a production-quality video to the insurer within a week of Ray’s death. This sent a message to the insurance company that we had already done the legwork to establish non-economics. The video was instrumental in establishing the losses that Vickie suffered.”

SETTLEMENT REPORT – WRONGFUL DEATH

Amount: $1.3 million

Injuries alleged: Death

Case name: Estate of Raymond Russell v. Derkach and Wolverine Pizza

Court: Polk County Superior Court

Mediator: Stephen Grabenstein of the Van Winkle Law Firm in Asheville

Date of settlement: April 29, 2019

Most helpful experts: Dan Beale of Beale Bagley Productions in Columbia, South Carolina (videography) and Brian Cid in Asheville (investigations)

Insurance carrier: Liberty Mutual

Attorneys for plaintiff: Matthew Yelverton of Yelverton Litigators in Charleston, South Carolina and Patrick Scarlett of George Sink Injury Lawyers in North Charleston, South Carolina

48 (tie). Improper debt collections nets $1.2M settlement

A class-action lawsuit against a debt collector has resulted in a $1.2 million settlement, the attorneys for the plaintiffs report. 

The lawsuit was filed in 2015 in the U.S. District Court for the Middle District of North Carolina and alleged that a collection agency, whose name was withheld, had attempted to collect debts that had been discharged in a Chapter 7 bankruptcy, which is a violation of the Fair Debt Collection Practices Act and the North Carolina Collection Agency Act. Both acts provide for statutory damages, said Gary Jackson of the Law Offices of James Scott Farrin in Durham, who represented the plaintiffs along with his colleague Christopher Bagley, and Ed Maginnis and Karl Gwaltney of the Maginnis Law Firm in Raleigh.

“A Chapter 7 discharge is supposed to be a fresh start for a consumer whose debts have overwhelmed her ability to pay,” Jackson said. “More than 400,000 consumer debtors file for Chapter 7 relief each year, and those bankruptcies typically follow sudden catastrophes like injuries that require medical treatment.”

The original plaintiff’s debt was a medical bill from August 2013, Maginnis said. She filed for Chapter 7 bankruptcy in July 2014 and received a discharge the following October. The violation of the FDCPA and the NCCAA occurred in March 2015 when the defendant contacted her to collect on that debt, the attorneys said.

Depositions of the defendant’s employees revealed a flaw in the defendant’s procedures for screening out–also known as “scrubbing”–such debts from collection lists, Maginnis said.

“The defendant appears to have scrubbed for bankruptcies upon receiving accounts from its customers, the original creditor, but apparently lacked procedures for identifying accounts that later fell into bankruptcy and were discharged,” he said.

The parties settled on a class-wide basis for $1.2 million in May 2018, and Judge Loretta Biggs granted final approval in late May 2019, Maginnis said. The class includes more than 12,000 consumers who were subject to potentially improper collection attempts between 2012 and 2019. None objected to the settlement and none opted out.

The law firms tracked down the plaintiffs eligible for their share of the confidential settlement.

“That was one of the biggest challenges for the whole case,” Bagley said. “It involved some time-consuming and somewhat expensive data analysis.”

The firms received a list of people who had been contacted by the defendants between 2012 and 2019, then sent those to the credit bureau TransUnion, which cross-referenced the names to find out who had filed for bankruptcy.

The net settlement is around $660,000 and those eligible to collect will get about $54 each.

SETTLEMENT REPORT — CLASS ACTION/DEBT COLLECTION

Amount: $1.2 million

Injuries alleged: Emotional distress and statutory damages

Case name: Withheld

Court: U.S. District Court for the Middle District of North Carolina

Case No.: Withheld

Judge: Loretta Biggs

Date of settlement: May 29, 2019

Attorneys for plaintiff: Ed Maginnis and Karl Gwaltney of Maginnis Law in Raleigh and Christopher Bagley and Gary Jackson of the Law Offices of James Scott Farrin in Durham

Attorneys for defendant: Withheld

48 (tie). Injured motorcyclist settles case for $1.2M

A motorcyclist who was severely injured after he crashed into a Jeep that made a left turn in front of him has reached a settlement with the Jeep’s driver for $1.2 million, his attorney reports.

Daniel Hansen of Shumaker, Loop & Kendrick in Charlotte reports that his client, whose name was withheld pursuant to a confidentiality agreement, was riding his motorcycle in Charlotte on July 11, 2017 when the Jeep made a sudden turn in front of him, causing the client to crash into the right quarter panel of the vehicle.

The client suffered multiple injuries, including two shattered pelvises, a completely collapsed lung and a partially collapsed one, a lacerated liver, and 12 broken ribs. He was in the hospital for more than three weeks and underwent rehabilitation for eight months. He is now walking and has returned to work, but has permanent scarring on his hips and torso and permanent metal rods in his hips, Hansen said.

Particularly painful was the fact that the client had metal rods in each hip that protruded from his body and were connected by an external rod, Hansen said.

“He got a really terrible hip infection,” he said.

Moreover, whenever he had to clean the area and the rod, “it was like a tuning fork” that caused pain throughout his body. When the rod was removed, he developed a bone infection in his hip and had to have another surgery so doctors could scrape the infection out.

The defense argued contributory negligence, Hansen said.

‘They said he was speeding, but there is no evidence of that,” Hansen said. “They said, ‘Hey, you are up walking and talking, why are you asking for so much money?’ and ‘You could have avoided the accident, and juries don’t like motorcyclists’ and ‘We understand you had a bad experience, but hey, it could have been worse,’ things like that.”

Other details about the wreck, including the location of the crash and the names of the attorneys for the defendant, were withheld due to a confidentiality agreement.

SETTLEMENT REPORT — MOTOR VEHICLE WRECK

Amount: $1.2 million

Injuries alleged: Shattered pelvis, completely collapsed lung and partially collapsed lung, lacerated liver, and 12 broken ribs

Case name: Confidential

Case number: Confidential

Court: Withheld

Date of settlement: March 12, 2019

Attorney for plaintiff: Daniel Hansen of Shumaker, Loop & Kendrick in Charlotte

Attorneys for defendant: Withheld

50. Carpenter’s widow settles wrongful death suit for $1.05M

The wife of a carpenter who was killed when a roof truss system collapsed on him has confidentially settled a wrongful death lawsuit for $1.05 million, her attorney reports.

Jay Kerr of Asheville said that the carpenter, whose name was withheld pursuant to a confidentiality agreement, was helping build a house in Henderson County in February 2017 and assisting his co-workers with installing a gable truss for a large central room above him. (A truss is triangular and supports a home roof and walls).

The carpenter was pushing and pulling on three wooden 2x4s that were detached at the bracing end, but otherwise kept attached to the gable end truss. As he was holding one of the pieces of wood while standing on the subfloor below, 25 trusses “virtually collapsed like dominos, with several striking and crushing the decedent,” Kerr said.

The carpenter was an employee of an independent framing subcontractor who had been hired by a general contractor to frame the home, which includes erection of the roof truss system. Kerr said that the subcontractor had failed to install adequate and proper temporary bracing and restraint to support the truss system as required by the truss manufacturer’s specifications.

While there was substantial evidence of the subcontractor’s negligence, Kerr said, he concluded that the evidence likely did not support viable claims against the subcontractor, which had provided workers’ compensation benefits to the carpenter’s wife and two children and thus claimed statutory immunity from any civil liability claims.

The carpenter’s widow sued the general contractor, alleging negligence based on violations of the relevant building code and non-delegable duties.

The general contractor didn’t dispute that inadequate temporary bracing and restraint had been installed, but claimed that the installation was the sole responsibility of the subcontractor and that it hadn’t violated any independent legal duties by failing to ensure that they had been properly installed, Kerr said. It argued that it had properly hired and retained the subcontractor to perform framing work, and that the work did not involve any non-delegable duties.

Kerr said that the biggest challenge in the case was establishing that the general contractor had an independent duty to ensure that the truss safety measures were applied, a duty which he otherwise could not have delegated to the subcontractor.

The two sides ultimately reached a settlement on March 11. Stephen Grabenstein of the Van Winkle Law Firm in Asheville mediated the settlement.

Ervin Ball of Ball Barden and Cury in Asheville represented the contractor. He said that the North Carolina appellate courts have concluded that roofing activities are not inherently dangerous, which otherwise could impose such a non-delegable duty. Ball said that his client has a good safety record and had never been involved in litigation concerning his business.

“Under the circumstances it was a fair and reasonable settlement for all parties,” he said. “It was a very tragic accident.”

SETTLEMENT REPORT – WRONGFUL DEATH

Amount: $1.051 million

Injuries alleged: Death

Case name: Withheld

Case number: Withheld

Court: Henderson County Superior Court

Mediator: Stephen Grabenstein of the Van Winkle Law Firm in Asheville

Date of settlement: March 11, 2019

Special damages: $850,000 third-party settlement funds and net $201,000 workers’ compensation benefits after waiver of subrogation lien

Most helpful experts: Paul Fama of SKA Consulting Engineers, Inc. in Asheville

Attorney for plaintiff: Jay Kerr in Asheville

Attorney for defendant: Ervin Ball of Ball Barden and Cury in Asheville