Immunized: No slowdown seen in Top V&S of 2020

The thing that really jumps out at you about North Carolina Lawyers Weekly’s list of the Top Verdicts & Settlements of 2020 is how utterly ordinary it is. There are slightly fewer verdicts than is typical, but nothing about the list would give you any indication that anything unusual was going on in 2020, or that the last nine months of the year were in any way different from the first three.

Obviously very little about 2020 was ordinary, so the fact that attorneys continued to negotiate seven-figure settlements with their usual efficiency is both interesting and remarkable. When the courts first closed in March, it put a stop to jury trials, and some plaintiffs’ attorneys worried that settlements might slow down as well if defendants and insurers didn’t have the pressure of an imminent trial to concentrate minds on reaching a resolution.

It would seem that didn’t come to pass, for multiple reasons. Obviously, million-dollar settlements typically come after many months of negotiations, and many of this year’s Top Verdicts & Settlements were either resolved, or well on their way to being resolved before the pandemic struck. It’s hard to remember now, but at the time, almost no one was expecting normal court operations to be shut down for nearly a year, and so there was little incentive to drag out cases that were close to resolution. The pandemic’s staying power eventually became clear, but merely deferred the risk of a trial.

“The threat of a trial is still there,” said Coleman Cowan of the Law Offices of James Scott Farrin in Durham. “It’s been admittedly a bit less potent for the last year, but I think that’s beginning to change with jury trials resuming.”

What’s more, the jury trials that are just now resuming present uncertainty for both sides, especially in the twilight period where COVID-19 is waning but not yet gone. It’s unclear how social distancing will affect trials or whether the composition of juries might change as some potential jurors avoid jury service due to concerns about the virus. Judges in some jurisdictions have been encouraging lawyers to talk to their clients about waiving their right to a jury trial and opting for bench trials to help move cases along.

But some plaintiffs’ attorneys think that they may be better off waiting for jury trials because after a year of shutdowns and social isolation, jurors may be more sympathetic than ever to plaintiffs who’ve lost their mobility or their ability to pursue their favorite pastimes because of a serious injury. Jurors may see those sorts of losses differently now, and place a higher value on them accordingly, and that may help explain why cases are still continuing to settle for what both sides think is a fair value.

“The one thing the pandemic has done is it’s brought the whole world together,” said David Kirby of Edwards Kirby in Raleigh. “I think there’s been a common experience that jurors will be able to relate to in serious injury cases. I don’t know how long that’s going to last, but I think that common experience is going to benefit plaintiffs going forward, and I think that’s another reason why, if you’re on the defense side, it’s wiser to resolve a case now rather than resolve it later.”

The calculus may be different, however, in medical malpractice cases. After a year spent lauding medical personnel, and understandably so, for their harrowing work on the front lines of the fight, some attorneys worry that jurors may be less inclined to find that doctors or nurses have failed to provide an adequate standard of care. That, in turn, could reduce the value of medical malpractice cases.

Postponing a trial date can, in some cases, even have some upsides for plaintiffs. North Carolina is unusual in that pre-judgment and post-judgment interest rates on monetary judgments are fixed at 8 percent—a rather pricey figure in this new ultra-low-rate environment. Cowan said he’s brought that up in some settlement negotiations, and while it hasn’t appeared to sway anyone yet, as time goes on, that interest could start to bite, at least in cases where defendants have more exposure.

In cases where there are catastrophic medical injuries, there may be even further impetus to settle, attorneys noted, because the value of the case may increase over time as the plaintiff continues to undergo medical procedures, which both increases the amount of present damages and lays the foundation for arguments as to future damages.

“Normally a court schedule is not necessarily compatible with a person’s medical treatment timeline,” said Hunt Willis of Martin & Jones in Raleigh. “The court’s timeline is somewhat arbitrary. With no court timeline, the plaintiff’s treatment can proceed organically without having to say, ‘Am I going to have this surgery before mediation or after trial?’ That definitely helps paint a much larger picture of the damages than if the case was subject to the small window of the court calendar.”

Almost a year on from the first orders that shut down civil jury trials, they’re now finally starting back up in some counties. A backlog of cases will start to be dealt with, theories about post-COVID juries will be tested in the real world, and the specter of those jury trials will lead to cases being settled on the courthouse steps again. But it’s still too soon to say when things might get back to normal, or even what the new normal will look like.

For most folks, 2020 was a year of uncertainty, but now that vaccinations are ramping up, much of life is hopefully on the verge of getting back to normal. For the civil justice system, it was a year of Webex hearings and Zoom depositions, but apparently not a year of any significant impediment to getting disputes resolved. It may be that 2020’s biggest impacts will be felt most keenly not in 2020 itself, but in the years that follow.

Follow David Donovan on Twitter @NCLWDonovan

1. DOT to pay $19.1M to settle Wake Co. Map Act claim

The North Carolina Department of Transportation is paying $19.1 million to settle a claim by a Wake County family whose land was seized for a major highway project under the now-defunct Map Act, the family’s attorneys report.

George Autry, Stephanie Hutchins Autry, and Jeremy Hopkins of Cranfill Sumner in Raleigh said that the DOT used its authority under the Map Act–which allowed the DOT to seize property for future projects without having to pay any compensation until the land was formally condemned–to block any development of the roughly 65-acre property, starting in 1996. The DOT forbade the landowners, E&M Johnson Enterprises, made up of Johnson family members, from developing, selling, or improving the property so that it could one day be used for the Southern Wake Expressway.

The land had been in the family for generations and had once been a tobacco farm, but by the 1990s it produced little income except for a small mobile home park that was on the property. Because of the DOT’s actions, the land sat in limbo for more than two decades while the area surrounding it saw “tremendous growth,” Stephanie Autry said. The family almost lost the property “dozens of times” over the past two decades, in part because they had trouble paying taxes on it.

“They have been through hell all these years,” Autry said.

The North Carolina Supreme Court ruled the Map Act unconstitutional in 2016, triggering a storm of lawsuits by landowners against the DOT, including the Johnsons’ suit. In 2020, the DOT filed three condemnation actions to take portions of the Johnsons’ property totaling 19 acres, although Autry said that since the property was contiguous, under the same ownership, and had the same highest and best use, there should have been only a single direct condemnation suit.

The family settled their lawsuit just before the start of the pandemic, which brought such settlements and DOT activity to a “screeching halt,” Autry said.

“They were so lucky after being extremely lucky for a long period of time,” Autry said. “We have been repositioning them for 15 years before this settlement happened, and it was the very last case eminent domain that we settled before COVID shut everything down.”

The DOT deposited a total of $3,549,600 in the three direct condemnation actions, and nothing for the Map Act taking. The $19.1 million settlement resolves all four cases.

A spokesperson for the North Carolina Department of Justice, which represented the DOT, said her office had no comment on the settlement.

SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $19.1 million

Injuries alleged: Condemnation of roughly 19 acres of land and restrictions on development potential of roughly 65 acres of land stemming from the Map Act

Case name: E&M Johnson Enterprises, Inc. v. N.C. Department of Transportation

Court: Wake County Superior Court

Date of settlement: May 2020 (direct condemnations) June 23, 2020 (inverse condemnation)

Case Nos.: 18-CVS-1543 (inverse condemnation); 20-CVS-1639, -1640, and -1641 (direct condemnations)

Attorneys for plaintiff: George Autry, Stephanie Hutchins Autry, and Jeremy Hopkins of Cranfill Sumner in Raleigh

Attorney for defendant: North Carolina Department of Justice

2. Pender Co. Map Act case settles for $17.5M

The North Carolina Department of Transportation will pay $17.5 million to a developer who had to halt plans for a mixed-use development in Pender County after the DOT froze development of the property under the state’s Map Act, the developer’s attorneys report.

Ryal Tayloe, Jeremy Wilson, and Alex Dale of Ward and Smith in Wilmington and Matthew Bryant of Hedrick Bryant in Winston-Salem said that their client, Jamestown Pender Development, bought 684 acres in Pender County, about 20 miles west of Topsail Island, in 2006 and planned to construct a mixed-use development on it. But five years later, the DOT froze future development on 40 acres running through the middle of the property in order to build an interchange between U.S. 17 and the future Hampstead Bypass.

The DOT utilized its authority under the Map Act, which allowed the DOT to seize property for future projects without having to pay any compensation until the land was formally condemned. The North Carolina Supreme Court ruled the Map Act unconstitutional in 2016.

The development company filed an inverse condemnation lawsuit against the DOT in 2014, which Tayloe said the DOT “vigorously defended.” The lawsuit was scheduled to go to trial in November, but COVID-19 slowed and then halted jury trials. The case had been in litigation for several years, and in October the parties agreed to settle the case and finally have it resolved.

Under the settlement, the company deeded all but eight acres of the property to the DOT. Contractors will be able to use land that borders the Holly Shelter Game Lands as a staging area, which will limit construction traffic on an U.S. 17, Tayloe said. After the project is complete, the attorneys expect that the remaining land will be added to the game lands, which are owned and managed by the state’s Wildlife Resources Commission. After several delays, construction on the bypass is set to begin in 2022.

The company plans to develop the remaining eight acres or sell it for development.

The DOT has paid out hundreds of millions of dollars to settle Map Act lawsuits since the law was struck down. A spokesperson for the state’s Department of Justice, which represented the DOT, said her office had no comment on the settlement.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $17.5 million

Injuries alleged: Restrictions on development potential of roughly 40 acres of land stemming from the Map Act (plaintiff deeded 676 acres in total to the DOT as part of the settlement)

Case name: Jamestown Pender, L.P. v. North Carolina Department of Transportation

Case number: 14-CVS-528

Court: Pender County Superior Court

Date of settlement: October 2020

Most helpful experts: Russell Weil of Pintail Partners in Charlotte (land management), Jim Bullard of Tom J. Keith & Associates, Inc. in Charlotte (appraiser), Richard Marchitelli of Cushman & Wakefield in Charlotte (appraisal methodology), Craig Turner of Land Management Group, Inc. in Wilmington (environmental science), Jack Reel of Thomas & Hutton in Inman (property development and engineering), J.H. Carter of Southern Pines (environmental science), David Hampton of High Point (financing and real estate development), Sherry Jarrell of Philadelphia (economist), and Tim Stallman (statistician)

Attorneys for plaintiff: Ryal Tayloe, Jeremy Wilson, and Alex Dale of Ward and Smith in Wilmington and Matthew Bryant of Hedrick Bryant in Winston-Salem

Attorney for defendant: North Carolina Department of Justice

3. Families of killed construction workers settle claims for $14.5M

The families of three construction workers who were killed in an accident have confidentially settled a lawsuit against a subcontractor, a general subcontractor, and an equipment manufacturer for $14.25 million, their attorneys report.

David Kirby and Bill Bystrynski of Edwards Kirby in Raleigh, Chuk Umerah of Fayetteville, and Adam Neijna of Raleigh report that the three injured workers were undocumented immigrants, and that complicated their case. But Kirby said that the size of the settlement reflects the fact that a jury would likely be sympathetic because of the unsafe conditions that the men were working under.

“This was a case in which companies cut corners on safety to try to complete the job faster,” Umerah added. “It was a completely preventable accident.”

The attorneys said the case was further complicated by the fact that witnesses to the deaths were also undocumented immigrants, and so they were reluctant to come forward. Moreover, some of those witnesses were working under assumed names, making it difficult to track them down.

Neijna made appeals in the Latino community through the Spanish-speaking media for witnesses to come forward. It worked, bolstering the plaintiffs’ case, the attorneys said.

Due to a confidentiality agreement, other details about the settlement, including the names of the defendants and their attorneys, were unavailable.

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $14.25 million

Injuries alleged: Three deaths

Case name: Confidential

Court: Confidential

Date of settlement: June 2020

Attorneys for plaintiffs: David Kirby and Bill Bystrynski of Edwards Kirby in Raleigh, Chuk Umerah of Fayetteville and Adam Neijna of Raleigh

Attorneys for defendants: Withheld

4. Mother and man who killed toddler order to pay $12M

A mother and the man who was convicted of first-degree murder in the brutal beating death of her three-year-old daughter have been ordered to pay $12 million to the girl’s father in a default judgment following a bench trial, his attorney reports.

David Teddy of Teddy, Meekins & Talbert in Shelby said that in 2016, William Joseph McCullen, who lived with Jaylene Dumont in Gaston County, lost his temper with Dumont’s daughter, Jordyn Ann Dumont, and hit her in the stomach, causing her death.

“It was a brutal, brutal, assault,” Teddy said. “He punched her in the stomach with enough force to lacerate her liver.”

McCullen buried the girl in a shallow grave near her house and reported her missing. She was soon found, and McCullen was charged with first-degree murder. In June 2018, he was convicted and sentenced to life in prison.

The day after the conviction, Jordyn’s father, Joshua Kinnett, who was living out of state when his daughter died, filed the lawsuit against McCullen and Dumont. Teddy said that Kinnett knew from the outset he would be unlikely to ever collect a judgment against them.

“You can’t put a price on the life of a child, but when someone acts in the manner that McCullen acted, there needs to be some local accountability in Gaston County for the community,” Teddy said. “When we brought the action, we knew the chances of collecting any money against McCullen or the mother was slim, but we felt like we needed to make a statement, and we did.”

Jaylene Dumont was not charged in her daughter’s death, but on Feb. 25 Judge W. Robert Bell found that her negligence had contributed to the death.

Kinnett has also settled a lawsuit against the North Carolina Department of Health and Human Services for $250,000. Teddy said that, a few weeks before Jordyn’s death, the Gaston County Department of Social Services conducted an investigation into the dangerous living conditions at her home—including drugs, alcohol, and violence—but took no action.

VERDICT REPORT — WRONGFUL DEATH

Amount: $12 million

Injuries alleged: Blunt force trauma

Case name: Joshua Kinnett, administrator of the Estate of Jordyn Ann Dumont vs. William Joseph McCullen and Jaylene Corrine Dumont

Court: Gaston County Superior Court

Case No.: 18-CVS-2955

Judge: W. Robert Bell

Date of verdict: Feb. 25, 2020

Attorney for plaintiff: David Teddy of Teddy, Meekins & Talbert in Shelby

Attorney for defendants: None

Has the plaintiff been successful in collecting the judgment?: No

5. Workplace death leads to $9.13M settlement

The family of a man who died in a workplace accident during his first assignment working for a temp agency has confidentially settled a worker’s compensation claim and a negligence lawsuit against the company for whom he was working for a total of $9.13 million, the family’s attorneys report.

Will Owen and Eddie Musselwhite of Musselwhite, Musselwhite, Branch & Grantham in Lumberton said the accident happened in May 2018. The victim, whose name was withheld pursuant to a confidentiality agreement, was in his first day of employment with the temporary agency when the accident occurred.

Due to the confidentiality agreement, other details about the case, including the nature of the incident that led to the man’s death, the location of the incident, and the identities of the defendants and their attorneys, were also unavailable.

The family settled a worker’s compensation claim with the temp agency for $130,000 and filed a lawsuit against the company for whom he was working.

Owen said that the company raised a defense of contributory negligence and argued that the victim was a “borrowed servant,” who was working as its employee, not the temporary agency’s employee, at the time of the accident, and therefore the family was eligible only for worker’s compensation and could not bring a third-party claim against the company.

Nevertheless, the company ultimately settled with the man’s family for $9 million in an agreement reached on July 30, Owen said. Steve Farlow of Accident Reconstruction Analysis in Raleigh served as an expert witness for the family.

SETTLEMENT REPORT – NEGLIGENCE

Amount: $9.13 million

Injuries alleged: Death

Case name: Confidential

Court: Confidential

Date of settlement: July 30, 2020

Most helpful experts: Steve Farlow of Raleigh (accident reconstruction)

Attorneys for plaintiff: Will Owen and Eddie Musselwhite of Musselwhite, Musselwhite, Branch & Grantham in Lumberton

Attorney for defendant: Withheld

6. Charlotte to pay owner $8.3M for land for airport expansion

The City of Charlotte has opted to avoid the potential turbulence of a condemnation action and agreed to pay $8.35 million for eight acres of land earmarked for the expansion of Charlotte Douglas International Airport after having initially threatened to condemn the land, the landowners’ attorneys report.

Tommy Odom and David Murray of The Odom Firm in Charlotte report that the city announced in 2017 its intention to acquire two parcels that their client owned, both near the airport’s entrance. At the time, half of the property was used as overflow parking for an offsite airport parking lot, and the other half was vacant. The city offered $2,425,000 for one parcel and $2,067,000 for the other, Odom said.

“They said that they were going to take the property, and were going to use eminent domain unless they sold it to them,” Odom said. “We pushed back on that, saying we didn’t think the city had the authority to take it, and they suggested we go to mediation.”

Odom said that experts were able to show that the property was very valuable because of its potential to be developed into 700 parking spaces near the airport.

The case settled at mediation prior to the condemnation action being filed, Odom said. The Charlotte City Council approved the payment on Jan. 27.

Leila Lahbabi of the City of Charlotte and Becky Cheney of Hamilton Stephens Steele in Charlotte represented the city. Lahbabi referred a request for comment to the city of Charlotte’s communications division.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $8.35 million

Injuries alleged: Taking of eight acres of land

Case name: Dispute settled prior to any lawsuit being filed

Venue: Mecklenburg County

Mediator: Jason James of Bell, Davis & Pitt in Charlotte

Date of settlement: Jan. 27, 2020

Highest initial offer: $4,491,000

Most helpful experts: Deborah Haskell of Winthrop Real Estate Advisors in Columbia, South Carolina (land appraisal) and Lee McLaren of DPR Associates in Charlotte (landscape architecture)

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

Attorneys for defendant: Leila Lahbabi of the City of Charlotte and Becky Cheney of Hamilton Stephens Steele & Martin in Charlotte

7. Illegal eviction fees lead to $8M settlement

Members of three classes of apartment renters who were wrongly charged eviction fees have settled class-action lawsuits against three North Carolina property management companies for just over $8 million, their attorneys report.

Scott Harris and Patrick Wallace of Whitfield Bryson in Raleigh and Ed Maginnis and Karl Gwaltney of Raleigh filed the first of the lawsuits in 2017. The plaintiffs alleged that Grubb Management of Raleigh charged eviction filing, attorneys’, and sheriff’s order fees that were at the time prohibited by North Carolina law, which permitted fees in eviction proceedings only up to 5 percent of the total monthly rent. The lead plaintiff, Jordan Hargrove, paid $843 per month in rent, but his fees topped $190, Harris said.

The attorney filed similar lawsuits against Southwood Realty of Cumberland County and Bridge Property Management of Wake County, two other apartment companies who charged the inflated fees.

“Landlords were using these fees as extortion, holding [tenants] hostage,” Harris said. “If they didn’t want to get evicted, they had to pay those fees.”

The lion’s share of the settlement funds comes from Southwood Realty, which agreed to pay out just over $7 million. Bridge Property will pay $505,000, and Grubb Management will pay $475,000.

After the lawsuits were filed, the state legislature amended the law to allow landlords to charge such fees. The 4th U.S. Circuit Court of Appeals is now considering whether the law should be applied retroactively, thereby absolving liability for other landlords who charged the fees before 2018 in other pending cases.

Under the settlements’ terms, any resident of the properties owned by the defendants who lived there between September 2014 and June 2018 will be eligible to receive a part of the settlements. Hargrove and the named plaintiffs in the other classes all received lump-sum settlements ranging from $5,000 to $8,000.

Amie Sivon, Ashley Campbell, John Nunnally, and Matt Hubbard of Ragsdale Liggett in Raleigh represented Southwood Realty; Nick Hulse and Mike Honeycutt of Fisher Phillips in Charlotte represented Bridge Property Management; and Jonathan Reich and Cal Adams of Womble Bond Dickinson in Winston-Salem represented Grubb Management. They could not be reached for comment.

SETTLEMENT REPORT — CLASS ACTION

Amount: $7,029,000

Injuries alleged: Illegal eviction fees

Case name: Angela Stewart, on behalf of herself and all others similarly situated, v. Southwood Realty Co.

Court: Cumberland County Superior Court

Case No.: 18-CVS-6090

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

Date of settlement: April 20, 2020

Attorneys for plaintiffs: Scott Harris and Patrick Wallace of Whitfield Bryson in Raleigh and Ed Maginnis and Karl Gwaltney of Raleigh

Attorneys for defendant: Amie Sivon, Ashley Campbell, John Nunnally, and Matt Hubbard of Ragsdale Liggett in Raleigh

SETTLEMENT REPORT — CLASS ACTION

Amount: $475,000

Injuries alleged: Illegal eviction fees

Case name: Jordan Hargrove, on behalf of himself and all others similarly situated, v. Grubb Management, et al

Court: Wake County Superior Court

Case number: 17-CVS-7995

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

Date of settlement: May 18, 2020

Attorneys for plaintiffs: Scott Harris and Patrick Wallace of Whitfield Bryson in Raleigh and Ed Maginnis and Karl Gwaltney of Raleigh

Attorneys for defendant: Jonathan Reich and Cal Adams of Womble Bond Dickinson in Winston-Salem

SETTLEMENT REPORT — CLASS ACTION

Amount: $505,000

Injuries alleged: Illegal eviction fees

Case name: Erica and Joseph Lewis, on behalf of themselves and others similarly situation, v. Bridge Property Management

Court: Wake County Superior Court

Case number: 18-CVS-9665

Mediator: Doug McCullough of New Bern

Date of Settlement: May 18, 2020

Attorneys for plaintiffs: Scott Harris and Patrick Wallace of Whitfield Bryson in Raleigh and Ed Maginnis and Karl Gwaltney of Raleigh

Attorneys for defendants: Nick Hulse and Mike Honeycutt of Fisher Phillips in Charlotte

8. Woman whose limbs were amputated settles claim for $7M

A woman whose hands and legs were amputated after she was incorrectly administered a drug used to treat septic shock has confidentially settled a claim against the treating medical center for $7 million, her attorneys report.

Troy Stafford of DeVore, Acton and Stafford in Charlotte and Chad McGowan of McGowan, Hood and Felder in Rock Hill, South Carolina, said that their client, whose name was withheld pursuant to a confidentiality agreement, went to her local emergency room one morning in August 2016 because she was feeling sick. She was diagnosed with sepsis and septic shock and placed into intensive care shortly before being transferred to another hospital.

By the time she arrived at the second hospital, gangrene had already begun to set in. It was several more days before doctors there diagnosed the source of the sepsis, which turned out to be an infected uterine fibroid. Ultimately, both of her hands had to be amputated and both of her legs amputated below the knees.

The client sued the second hospital, alleging medical malpractice. She contended that the drugs that were prescribed to treat her weren’t appropriate and one of those drugs, phenylephrine, wasn’t called for and was actually harmful. She also alleged that nurses improperly administered and overdosed the drug Levophed, which is used to raise blood pressure and reduce blood flow to a patient’s extremities when they are in septic shock.

“If used correctly, the drug is life-saving, but it has to be controlled and modified literally on a five-minute basis,” said McGowan, who said he has represented two other clients in recent years who had to have their limbs aborted because of the misuse of Levophed and is now representing a fourth client.

The two sides reached a settlement in the case on Oct. 7, and McGowan said his client is now “learning to live life on her own, but she still needs a lot of help.”

Due to a confidentiality agreement, other details about the case, including the identities of the defendants and their attorneys and the location of the hospital, were not available, but McGowan said the hospital had initially contended that his client had waited too long before going to the emergency room and that blood clotting problems had caused the amputations.

McGowan said his client had visited an urgent care clinic the day before she went to the emergency room, and was told that she likely had the flu. She was advised to go to an emergency room, but said she’d wait until the next morning to see if she felt better and was told that would be fine.

SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $7 million

Injuries alleged: Amputation of both legs and both hands

Case name: Withheld

Venue: Withheld

Date of settlement: Oct. 7, 2020

Most helpful experts: Kyle Happel, M.D. of New Orleans (critical care); Maya Jackson, R.N of Atlanta (nursing); Jason James, M.D. of Miami (obstetrics); Michael Strieff, M.D. of Baltimore (hematology); and Raymond Sauer of Clemson, South Carolina (economics)

Attorneys for plaintiff: Troy Stafford of DeVore, Acton and Stafford in Charlotte and Chad McGowan of McGowan, Hood and Felder in Rock Hill, South Carolina

Attorneys for defendants: Withheld

9. Jury awards $6M to family of man killed in crash

The family of a man who died after a tractor-trailer crashed into his van has secured a $6 million wrongful death verdict against the at-fault driver and his employer, the family’s attorney reports.

Wade Byrd of Fayetteville and Curtis Osborne of Charlotte report that the victim, Sammie Pendergrass, was heading east on U.S. 74 in Anson County while Franklin Burgess was heading west in March 2017. Burgess lost control of his truck, crossed the median, and collided head-on with Pendergrass’s van.

Byrd said that Pendergrass, who was 24, was thrown 50 feet from his vehicle into a ditch and was found about 10 minutes later. He suffered blunt force trauma, open right knee deformity, significant forehead swelling and ecchymosis, left eye injury, distended stomach, deformity to right arm, swollen left eye, unstable pelvis injury, and deep lacerations to his right lower extremity, right upper extremity, eyelids, and abdomen.

Byrd said that Pendergrass was alert for at least 30 minutes before losing consciousness. He died a few hours later of cardiac arrest.

During trial, Burgess testified that he suffered from cough syncope, a condition in which people lose consciousness during coughing fits, and had passed out a few seconds before the crash and lost control of the tractor-trailer. Byrd said that he believes the jury thought Burgess was lying.

“We found an eyewitness who followed him for twelve miles before the crash and who testified he was weaving from lane to lane constantly, causing her to be afraid to try and pass him,” Byrd said.

The trial lasted nine days, and the jury deliberated for two hours before returning its verdict on Feb. 13. Pendergrass’s parents described him as an “incredibly good person” who worked two jobs, helped his brother and sister pay their bills while they were in college, and was very active in his church.

The defendants’ highest offer had been $1 million.

John Barringer and Meredith Cushing of McAngus Goudelock & Courie in Charlotte represented Burgess and his employer, S&D Coffee. Barringer said the verdict is on appeal and declined to comment.

VERDICT REPORT — MOTOR VEHICLE CRASH

Amount: $6 million

Injuries alleged: Death

Case name: Estate of Sammie Pendergrass vs. S&D Coffee, Inc. and Franklin Burgess, Jr.

Court: Anson County Superior Court

Case number: 18-CVS-200

Judge: James M. Webb

Date of verdict: Feb. 13, 2020

Demand: $4 million

Highest offer: $1 million

Most helpful experts: Dr. Mark D. Tripp of Fort Royal, Virginia (emergency room physician), Dr. Robert Aris of Chapel Hill (pulmonology), Steve Farlow of Raleigh (accident reconstruction), and David Dorrity of Mauldin, South Carolina (trucking safety)

Insurance carrier: Travelers Insurance and Allianz Global Risks U.S. Insurance Co

Attorneys for plaintiff: Wade Byrd of Fayetteville and Curtis Osborne of Charlotte

Attorneys for defendants: John Barringer and Meredith Cushing of McAngus Goudelock & Courie in Charlotte

10. Family of van driver killed in DWI wreck settles suit for $5.85M

The family of a woman who died after her vehicle was hit by an impaired driver has confidentially settled a lawsuit against the at-fault driver and his employer for $5.85 million, the family’s attorneys report. The settlement is believed to be the largest individual settlement ever negotiated in Johnston County.

Robert Lucas and Sarah Ellerbe of Lucas, Denning and Ellerbe in Selma said that Martha Peterson was transporting five children in a day care van in Clayton in November 2018 when the impaired driver crossed the center line, hitting the van head-on and killing Peterson almost instantly. None of the children was seriously injured.

The impaired driver worked for a plumbing company, and at the time of the wreck he was driving home in a company truck after finishing a shift with a coworker. Cameras in the truck documented everything that happened after the driver dropped off his coworker and leading up to the collision. Videos showed that the driver had methadone in the truck and had been asleep in the passenger seat just before getting behind the wheel, the attorneys said. He drove about four and half miles before hitting Peterson, during which time he crossed the centerline 27 times and narrowly averted a collision on nine occasions.

The attorneys said that the driver would show up to work showing signs of impairment “more than 50 percent of the time” according to one witness, and other witnesses testified that he would regularly fall asleep during company meetings, slur his speech, and stumble around. The witnesses said that it was common knowledge at the company that the driver had a drug problem, and the owner had been told that if the company continued to allow him to drive, “he was going to kill someone one day.”

Peterson’s family sued the driver for negligence and punitive damages and sued his employer for negligent entrustment and punitive damages, contending that the employer had allowed him to drive despite his having had nine prior at-fault automobile accidents, three prior accidents in the company truck, and 15 prior driving convictions. No drug tests had been administered after any of the accidents, violating company policy.

The remainder of a $6 million insurance policy was divided between the children who were in the van at the time of the wreck.

“The biggest challenge of the case was the fact that our client was not available to testify, and the driver pleaded the Fifth Amendment on everything, leaving us to piece together the employer’s liability through their employees and the thousands of tidbits of written information we received through discovery,” Ellerbe said. “The negligent entrustment aspect of the case was like a huge puzzle that we had to put together to see the pattern of the employer’s behavior and hold them accountable.”

Mike Jones of Goldsboro mediated the settlement, which was agreed to on Feb. 26. Lucas and Ellerbe said that based upon discussions with other attorneys and judges, the settlement was believed to be the largest individual settlement in Johnston County’s history. An archive search confirmed that it is the largest such settlement that has ever been reported to Lawyers Weekly.

Certain details about the case, including the identities of the defendants and their attorneys, were withheld pursuant to a confidentiality agreement.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $5.85 million

Injuries alleged: Death

Case name: Withheld

Court: Johnston County Superior Court

Mediator: Mike Jones of Goldsboro

Date of settlement: Feb. 26, 2020

Demand: $6 million (insurance policy limits)

Attorneys for plaintiff: Robert Lucas and Sarah Ellerbe of Lucas, Denning and Ellerbe in Selma

Attorney for defendant: Withheld

11. Family of pastor killed in wreck settles suit for $5.78M

The family of a man who was killed after he was hit by a pizza delivery driver who had crossed a center line has settled a lawsuit for $5.78 million, the family’s attorneys report.

Randall Phillips of Charles G. Monnett III & Associates in Charlotte and Mark Avera of Avera & Smith in Gainesville, Florida, said that the victim, Allen Lee, was driving north on US-701 in Bladen County in September 2019, as Tajuan Lewis, a Domino’s Pizza delivery driver for Pizza Properties of North Carolina, was heading south. Lewis crossed the center line and hit Lee’s car almost head-on. Lewis died at the scene. Lee remained conscious and a witness called his wife to let her know he was in a wreck.

“She got there and was talking to him just before they extricated him,” Phillips said. “As they were getting ready to load him into the air ambulance, he became unstable. They diverted by ground to a local hospital, where he passed away.”

Lee was a pastor and technical director at a church in Fayetteville. That Sunday, he and his wife and their two young children had attended service at their church, and afterwards Lee went to another church to help them with some audio and video issues. He was on his way home when the wreck happened, Phillips said.

“This was probably one of the most idyllic families you have ever seen,” Phillips said. “Long-time sweethearts who got married and who are just super, super responsible people. She is a math professor at a community college and they were living the American dream–a guy in his 30s, with a two-year-old and a four-year-old.”

Walt Rapp of McAngus Goudelock & Courie in Wilmington represented Pizza Properties. He said that he was unable to get in touch with a spokesperson for the company regarding the settlement.

“But speaking for myself, it was a tragic and unfortunate accident resulting in the loss of someone who, by all accounts, was an amazing husband and father,” Rapp said. “While I know no amount of money can compensate them for their loss, I sincerely wish the family the very best in the future.”

Kenneth Rotenstreich of Teague Rotenstreich Stanaland Fox & Holt in Greensboro represented Lewis’s insurance company, Allstate. He could not be reached for comment.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $5.78 million

Injuries alleged: Death

Case name: McIntyre, as Administrator of the Estate of Allen Lee v. Pizza Properties of North Carolina, Inc.

Court: Robeson County Superior Court

Case No.: 19-CVS-3439

Judge: Robert Floyd

Date of settlement: June 1, 2020

Most helpful experts: Johnnie Hennings of Raleigh (accident reconstruction), and Fred Raffa of Orlando, Florida (economist)

Insurance carrier: Penn National and General Star (Pizza Properties) and Allstate (Tajuan Lewis)

Attorneys for plaintiff: Randall Phillips of Charles G. Monnett III & Associates in Charlotte and Mark Avera of Avera & Smith in Gainesville, Florida

Attorneys for defendants: Walt Rapp and Luke Dalton of McAngus Goudelock & Courie in Wilmington (Pizza Properties of North Carolina) and Kenneth Rotenstreich of Teague Rotenstreich Stanaland Fox & Holt in Greensboro (Allstate)

12. Motorcyclist settles dram shop claim for $5M

A motorcyclist has negotiated a $5 million confidential settlement of his claim against a North Carolina nightclub that overserved the man who caused the wreck that resulted in his leg amputation, his attorneys report.

James Rainsford, Katherine Merritt, and Jason Murphy of Coleman, Gledhill, Hargrave, Merritt & Rainsford in Hillsborough said that their client and the nightclub patron, both of whose names were withheld pursuant to a confidentiality agreement, were riding their motorcycles in opposite directions one night in 2017. The other biker fell off of his motorcycle, which then skidded down the road, hitting their client and causing serious injuries to his leg. Their client was in the hospital for about a month and underwent several unsuccessful surgeries before his leg was amputated.

Rainsford said that the other biker had a .10 BAC three hours after the crash. The other biker’s phone was found at the crash scene and contained photos that had been taken earlier that evening at the nightclub, and he admitted that he’d been at the club and been drinking there.

The club claimed that there was no evidence that they’d served the biker past the point of intoxication, but Rainsford said there were receipts that proved that he’d bought several beers there.

Rainsford said that he and his co-counsel conducted five focus group sessions, and these were instrumental in framing the client’s case. Several members of the focus groups had an issue with holding a club liable for the over-indulgence of the at-fault driver.

“We heard, ‘A drunk is going to drink’ a lot,” Rainsford said, although the at-fault driver had “never been in trouble before” and was not a bad guy by any stretch of the imagination.”

After three years of litigation and multiple mediations, the nightclub agreed to pay the client $5 million.

“This case was a war,” Rainsford said.

Due to a confidentiality agreement, the identities the club and its attorneys were unavailable.

SETTLEMENT REPORT — DRAM SHOP

Amount: $5 million

Injuries alleged: Amputated leg

Case name: Withheld

Court: Withheld

Date of settlement: June 30, 2020

Most helpful experts: Robert Forney, Jr. of Toledo, Ohio (toxicology), Tricia Yount of Charleston, South Carolina (economist), and Mark Fordham of Henderson (prosthetist)

Attorneys for plaintiff: James Rainsford, Katherine Merritt, and Jason Murphy of Coleman, Gledhill, Hargrave, Merritt & Rainsford in Hillsborough

Attorneys for defendant: Withheld

13 (tie). Patient who suffered stroke settles claim for $3.5M

A woman who didn’t receive timely treatment for a stroke she suffered while she was recovering from breast reconstruction surgery has confidentially settled a claim against the treating hospital for $3.5 million, her attorneys report.

Troy Stafford of Devore, Acton & Stafford in Charlotte and Troy Blakeney of Houston, Texas, report that their client, whose name was withheld due to a confidentiality agreement, had suffered from breast cancer and entered the hospital in May 2019 for reconstructive surgery, which was performed without complications. Shortly after, though, she developed one-sided hand weakness that progressed to full-side weakness, facial drooping, and loss of speech, which are all signs of a stroke.

The client’s family members and pastor reported the symptoms to the hospital’s nursing staff, which documented the symptoms but failed to flag them, figuring that they were being caused by morphine, Stafford said. The nurses didn’t report the symptoms to the attending physician for 24 hours, by which point it was apparent that the client had suffered a stroke. She suffered complete and permanent use of one arm, limited use of one leg, and permanent loss of speech.

Stafford said that the hospital claimed that a brain bleed caused the stroke and couldn’t have been stopped, but imagery showed that the stroke actually was caused by a brain clot that developed into the brain bleed, and if doctors had immediately started treatment of the stroke symptoms, they would have caught the clot before it caused bleeding of the brain.

Stafford said that the client is now living with her daughters and “overall, she is ok.” He said that the settlement will pay for much-needed rehabilitation therapy.

Due to the confidentiality agreement, the name of the hospital and its attorneys were unavailable.

SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $3.5 million

Injuries alleged: Permanent loss of use of one arm, limited use of one leg, and permanent loss of speech

Case name: Confidential

Court: Confidential

Date of settlement: Dec. 20, 2020

Attorney for plaintiff: Troy Stafford of Devore, Acton & Stafford in Charlotte and Troy Blakeney of Houston, Texas

Attorney for defendant: Withheld

13 (tie). Family of woman killed by commercial vehicle settles case for $3.5M

The family of a woman who was killed after a commercial vehicle rear-ended her car has confidentiality settled a pre-suit claim for $3.5 million, her attorneys report.

Elizabeth Grimes and Richard Yeoman of Grimes Yeoman in Mooresville said that the victim, whose name was withheld pursuant to a confidentiality agreement, was driving in slow traffic when the driver of a commercial truck slammed into the back of her car. Despite the low traffic speeds, the commercial vehicle was traveling at around 65 mph, and the impact caused heavy damage to the rear of the victim’s vehicle and to the commercial vehicle, Grimes said.

The victim was alive at the scene and able to respond to paramedics’ questions about her pain, but she was taken to a local hospital and died about two hours later due to her injuries, Grimes said.

Grimes said that the case was settled on April 17 after pre-suit mediation, which was held via Zoom video conferencing. Before the mediation, Grimes and Yeoman provided the defendants’ counsel and claims adjuster with a video interview with the family, which Grimes called “powerful and persuasive.”  The family described the victim’s deep involvement in her community and her work. Her family described her as being reliable and a “problem solver,” and someone you could count on to help.

“Both the husband and daughter became emotional as they described the activities they did together as a couple and family,” Grimes said. “The husband said they loved to travel and called it their ‘great adventures.’”

Grimes and Yeoman also submitted a recorded video interview with the victim’s former work supervisor, which Grimes said helped establish the victim’s standing in her community and the emotional losses sustained by her family and co-workers.

Due to a confidentiality agreement, other details about the settlement, including the identities of the defendants and their counsel were not available.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $3.5 million

Injuries alleged: Death

Case name: Case settled before any lawsuit was filed

Venue: Confidential

Date of settlement: April 17, 2020

Most helpful experts: Gary Albrecht of Winston-Salem (economic damages) and Eric Bare of Remkis Consulting in Charlotte (accident reconstruction)

Attorney for plaintiff: Elizabeth Grimes and Richard Yeoman of Grimes Yeoman in Mooresville

Attorney for defendant: Withheld

15. Family injured in tractor-trailer wreck settles suit for $3.275M

A husband and wife who were both injured after a tractor-trailer rear-ended the husband’s car as he was aiding his wife on the side of a North Carolina highway have confidentially settled a lawsuit against the at-fault driver and the driver’s employer for $3.275 million, their attorneys report.

Wade Byrd of Fayetteville and Mark V.L. Gray of Greensboro report that the wife was traveling with the couple’s infant son when she pulled over onto a narrow shoulder of the highway after her car broke down in 2014. Her husband arrived and parked behind her, and they moved their son into his car.

Soon after, an 18-wheel tractor trailer slammed into the husband’s car, which in turn rammed into his wife’s car. The husband suffered minor injuries; the wife suffered back and neck injuries that required two surgeries. The wife has now fully recovered.

Subsequent to the wreck the infant, who is now seven years old, developed moderate autism, and the family contended that the wreck had caused his autism, Byrd said. The defense “strongly challenged” the contention that the boy’s injuries from the wreck had caused his autism and argued that the condition was likely congenital.

(Autism spectrum disorder has no single known cause, and the current state of medical science does not permit doctors to determine what caused a particular child’s autism. Researchers continue to investigate whether various postnatal environmental factors, including traumatic brain injuries, can contribute to the development of autism spectrum disorder.)

On June 11, the driver and the “multi-state large trucking company” he worked for settled the claims of the husband for $50,000, the wife for $425,000, and their son for $2.8 million.

“He’s got difficulties, and you just don’t know when things are going to go wrong, when things are going to go haywire,” Byrd said. “When he was testing at school, he would get under his desk and bang his head. And when things like that will occur, no one has any idea.”

Due to a confidentiality agreement, other details about the case, including the location of the crash and the identities of the defendants and their counsel, were withheld.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $3.275 million

Injuries alleged: Neck, back, and brain injuries

Case name: Confidential

Court: Confidential

Date of settlement: June 11, 2020

Attorneys for plaintiff: Wade Byrd of Fayetteville and Mark V.L. Gray of Greensboro

Attorney for defendant: Withheld

16. Developer settles eminent domain claim for $3.1M

A development company has settled a claim against the North Carolina Department of Transportation for $3.1 million after the DOT cut off highway access to the company’s land in order to build an overpass along a major highway in eastern North Carolina, the company’s attorney reports.

Eric Remington of Ward and Smith in New Bern reports that his client, Cherry Branch Limited Partnership, acquired 44 acres along N.C. 70 in Havelock in the 1990s as part of a land swap with the U.S. Forest Service. The USFS had previously granted the DOT a permit, and then later an easement, to develop N.C. 70 through the property, but it reserved the right to enter and exit the property from the highway.

In 2016, the DOT cut off several acres of right-of-way to Cherry Branch’s property on either side of U.S. 70 to build a bridge across the highway and into USMC Air Station Cherry Point. Remington said the DOT failed to include Cherry Branch’s land in the description of the areas being taken and claimed that N.C. 70 was a controlled access road prior to the taking and Cherry Branch had no right to access it from the property. Cherry Branch filed a counterclaim for inverse condemnation.

“We had copies of the permit and easement,” Remington said. “The exchange deed said that the U.S. Forest Service was transferring all rights, interests and title in the property. We believe that meant that any rights the U.S. Forest Service had through the permit and easement were transferred or assigned to Cherry Branch, including but not limited to the direct access rights expressly reserved in the permit.”

After mediation, the parties reached a settlement in January 2020, with the DOT agreeing to pay the $3.1 million and Cherry Branch turning over all of its interests in 18.56 acres it had held.

Follow Bill Cresenzo on Twitter @bcresenzonclw

SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $3.1 million

Injuries alleged: Taking of access rights to property

Case Name: Department of Transportation v. Cherry Branch Limited Partnership 

Case number: 16-CVS-1116

Court: Craven County Superior Court

Date of settlement: January 2020

Attorneys for defendant: Eric Remington of Ward and Smith in New Bern

Attorney for plaintiff: North Carolina Department of Justice

17. TBI manifests after crash, prompts $3M settlement

A man who suffered a severe traumatic brain injury after the driver of a construction truck ran a stop sign and slammed into his car has settled a suit against the at-fault driver and his employer for $3 million, his attorneys report.

Lee Olive and Whitney Brooks of the Olive Law Firm in Charlotte said that their client was injured in October 2018 near Concord when his head slammed against his car’s windshield. The client was taken to the hospital, where he was diagnosed with a thin left temporal subdural hematoma, or bleeding of the brain. He was released within two days, and at the time his prognosis was good.

“No one was anticipating this case becoming such a big case,” Olive said. “It was a serious accident, but nothing in the million-dollar range at that point.”

Two months later, however, the hematoma manifested.

“He started staggering around the house and his wife said, ‘He’s not right,’” Olive said. “He checked into the hospital, and they noted that he was bleeding.”

The client underwent emergency surgery and now lives in a skilled nursing faculty, where he requires care around the clock. He is barely able to walk and has no short-term memory, Olive said. He does not know where he is most of the time, and has little communication with others.

A Cabarrus County court declared him incompetent and appointed his wife as his guardian, Olive said. The client’s wife contended that the at-fault driver had numerous criminal confessions for speeding, resisting arrest, DWI, assault with a deadly weapon, public intoxication, and driving while license revoked. Olive said that there was also some dispute over the life expectancy of the client, who is now 68, with the defense arguing for a lower life expectancy based on his medical condition and a stroke he suffered in 2012.

Ultimately, the two sides reached the $3 million settlement on Oct. 12. The agreement includes $1.9 million in future medical expenses, more than $200,000 in past medical expenses, and $200,000 for loss of consortium.

Allen Smith of Hedrick Gardner in Charlotte represented the defendants. He could not be reached for comment.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $3 million

Injuries alleged: Traumatic brain injury

Case name: Withheld

Court: Cabarrus County Superior Court

Date of settlement: Oct. 12, 2020

Special damages: $1.9 million (future medical expenses) $214,704 (past medical expenses) $200,000 (loss of consortium)

Most helpful experts: Ashley Johnson of Vargas Vocational Consulting in Belmont (medical expenses)

Attorneys for plaintiff: Lee Olive and Whitney Brooks of the Olive Law Firm in Charlotte

Attorney for defendant: Allen Smith of Hedrick Gardner in Charlotte

18. Woman injured by delivery truck driver settles suit for $2.9M

A woman who was injured after a truck driver rear ended her car in rush-hour traffic has settled a lawsuit against the at-fault driver and his employer for $2.9 million, her attorneys report.

Ted Greve and Robert Herford of Raleigh report that their client, Ashley Grant, was on her way to work when the driver of the delivery truck, Donald Dalrymple, hit her from behind. The crash injured Grant’s neck and she had to undergo fusion surgery.

Dalrymple would later say that he was tired and had fallen asleep and tried to stop when he was about 20 feet from Grant’s vehicle, Greve said.

Greve said that the original settlement negotiations broke down when the insurer, Cincinnati Insurance, refused to pay policy limits of $1 million. Once a lawsuit was filed, Greve and Herford discovered that the at-fault driver’s employer, LA Farms, had an additional $2 million policy. A second mediation included detailed a review of the medical records that persuaded the insurer that there was more to the case than what it had anticipated, Greve said.

“I think the defense just finally ‘got’ the injury,” Greve said.

The attorneys said they were pleased with the result, particularly given that there was no need to incur significant expenses on expert witnesses. Grant eventually returned to work, but had difficulties, and so has now applied for disability.

“She will always have to deal with severe and restricted ranges of motion, which is significant for a 35-year-old single mother,” Greve said.

Scott Hart of New Bern mediated the settlement, which was reached on July 16.

John Cathcart of Brown Crump Vanore & Tierney in Raleigh represented the defense. He could not be reached for comment.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $2.9 million

Injuries alleged: Neck injuries requiring fusion surgery

Case name: Ashley Grant v. Donald James Dalrymple and LA Farms, Inc.

Court: Wake County Superior Court

Case No.: 19-CVS-4906

Mediator: Scott Hart of New Bern

Date of settlement: July 16, 2020

Insurance carrier: Cincinnati Insurance

Attorneys for plaintiff: Ted Greve and Robert Herford of Raleigh

Attorney for defendant: John Cathcart of Brown Crump Vanore & Tierney in Raleigh

19 (tie). Student who was raped in sorority house settles claim for $2.5M

A college student who was raped by a man who had intruded into her off-campus sorority house has confidentially settled a lawsuit with the home’s property manager for $2.5 million, her attorneys report.

David Kirby and Bill Bystrynski of Edwards Kirby in Raleigh and David Sherlin of Holt Sherlin in Raleigh said the intruder, a stranger to the student, walked through the front door of the sorority house, went into her bedroom, and raped her. The man has been criminally charged in the case.

The client filed a claim against the house’s property management company, alleging that it knew that the door that the rapist used to enter the house had been having issues with properly closing and locking for several months before the assault.

Bystrynski said that crime data for the half-mile area surrounding the house showed “substantial” violent crimes had occurred in the area while the student was living there. A security expert said that the assault was foreseeable and corrective security measures should have been taken.

Due to a confidentiality agreement, other details about the case, including the identities of the property management company and its attorneys, were unavailable.

SETTLEMENT REPORT – NEGLIGENCE

Amount: $2.5 million

Injuries alleged: Severe emotional distress stemming from rape and sexual assault

Case name: Confidential

Court: Confidential

Date of settlement: Sept. 22, 2020

Attorneys for plaintiff: David Kirby and Bill Bystrynski of Edwards Kirby in Raleigh and David Sherlin of Holt Sherlin in Raleigh

Attorneys for defendant: Withheld

19 (tie). Couple injured in head-on collision settles claim for $2.5M

A woman who was severely injured and nearly died after her vehicle was hit head-on by another driver has confidentially settled a lawsuit against the at-fault driver for $2.35 million, and her boyfriend, who suffered minor injuries, has settled his lawsuit for $150,000, their attorneys report.

Bill Elam, Will Elam, and Michael Rousseaux of Elam & Rousseaux in Charlotte report that their clients were injured in May 2018 when the at-fault driver crossed over the center line and crashed into their car. The woman, whose name was withheld pursuant to a confidentiality agreement, suffered internal injuries and bleeding that were so serious that they nearly killed her, Will Elam said.

“It was truly a matter of life and death,” Elam said. “The trauma surgeon literally had our client’s heart in their hands, massaging it to prevent cardiac arrest. This certainly could almost have been a wrongful death case.”

She was in the hospital for almost a month, during which she required nine procedures, ranging from a bowel repair to a spleen removal, Elam said. She would later need surgery for bowel perforation, surgery on her left thumb, physical therapy for a spinal fracture, and surgery on her scars. The wreck also left her with PTSD.

Her boyfriend suffered only minor injuries, including hand scarring and, later, tinnitus (ringing in the ears).

Elam said the at-fault driver raised a sudden emergency defense, claiming that he crossed the center line while attempting to help his small child in the backseat after a bee flew into their car.

Ray Owens of Higgins & Owens in Charlotte mediated the settlement, which was agreed to in February 2020.

Due to a confidentiality agreement, other details about the case, including the name of the other driver and his attorneys, were unavailable.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $2.5 million

Injuries alleged: Loss of spleen, sternal fracture, spinal fracture, bowel perforation, left thumb ligament rupture, scarring to abdomen, and PTSD; scarring to hand and tinnitus

Case name: Confidential

Court: Confidential

Mediator: Ray Owens of Higgins & Owens in Charlotte

Date of settlement: February 2020

Attorneys for plaintiff: Bill Elam, Will Elam, and Michael Rousseaux of Elam & Rousseaux in Charlotte

Attorneys for defendant: Withheld

19 (tie). Walker hit by truck settles claim for $2.5M

A walker who was seriously injured after a truck hit him from behind has settled a claim against the truck driver and his employer for $2.5 million, his attorneys report.

James Roberts III and Matthew Quinn of Lewis Roberts in Raleigh and Michael DeMayo and Adrienne Blocker of Charlotte report that their client, whose name was withheld pursuant to a confidentiality agreement, was walking down an unspecified road in October 2016 when he was hit from behind by a box truck that was traveling at about 35 mph and thrown more than 34 feet by the impact.

The client, 53, was taken by ambulance to a nearby hospital, where he remained for several weeks, Quinn said.

His injuries included a traumatic brain injury and hemorrhaging, arm fracture, abdominal hemorrhage, spleen laceration, acute kidney injury, pelvic fracture, and C5-6 disc protrusion.

The driver told investigators that he didn’t see the client. Both the driver and the employer contended that the client had been walking with his back to traffic in the dark, and there was also evidence that he may have been walking in the road, Quinn said.

An accident reconstructionist said that the driver had the “last clear chance” of avoiding the collision because if the driver had been traveling within the speed limit and paying attention, he would have been able to see, react to, and avoid the client, Quinn said.

The client underwent substantial physical therapy and multiple surgical procedures. He used a wheelchair for several months and then a walker for several more months.

While Quinn said that the client is doing better, he will never return to work.

“He’s struggling to return to life as best as he can,” Quinn said.

The settlement, agreed to on Dec. 31, included $700,000 for past medical expenses and $800,000 to $1.2 million in lost wages.

Due to the confidentiality agreement, other details about the case, including the name of the driver, hos employer, and their attorneys, were unavailable.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $2.5 million

Injuries alleged: Traumatic brain injury and hemorrhaging, arm fracture, abdominal hemorrhage, spleen laceration, acute kidney injury, pelvic fracture, and disc protrusion

Case name: Confidential

Court: Confidential

Date of settlement: Dec. 31, 2020

Special damages: $700,000 for past medical expenses and $800,000 to $1.2 million in lost wages

Attorneys for plaintiff: James Roberts III and Matthew Quinn of Lewis Roberts in Raleigh and Michael DeMayo and Adrienne Blocker of Charlotte

Attorneys for defendant: Withheld

22. Woman burned during procedure settles claim for $2.2M

A woman whose face was severely disfigured after she suffered burns while undergoing a medical procedure has confidentially settled a claim against a North Carolina hospital for $2.2 million, her attorneys report.

Bailey Melvin of Greenville and Micah Simonsen and Lars Simonsen of Edenton said that their client, 59, went to the hospital in 2018 for an outpatient procedure to have a small cancerous lesion removed from her face. Medical staff wiped her face with alcohol but didn’t wait long enough for it to dry before placing a cautery, a small instrument used to burn off the lesion, near her face.

A flame erupted, causing severe third-degree burns. The client was immediately transferred to the hospital’s burn center and was in and out of the burn unit for several months and had numerous surgeries, the attorneys said.

“It was a terrible, terrible, situation,” Melvin said.

Due to a confidentiality agreement, the identities of the hospital and its attorneys were unavailable, but Melvin said the hospital offered up no defenses and the claim was quickly settled. The client has faced hardships all her life, Melvin said. She has Turner Syndrome, which causes developmental difficulties, but lives on her own and takes care of herself.

“She lives a very simple life and has a wonderful outlook on life,” Melvin said. “She has a sunshine personality, and I think that made her able to handle it better, certainly than I would have or 99 percent of the population would have, because she has such a positive personality.”

SETTLEMENT REPORT – MEDICAL MALPRACTICE

Amount: $2.2 million

Injuries alleged: Third-degree burns to face

Case name: Confidential

Court: Confidential

Date of settlement: February 2020

Attorneys for plaintiff: Bailey Melvin of Greeneville and Micah Simonsen and Lars Simonsen of Edenton

Attorneys for defendant: Withheld

23 (tie). Jury awards $2M to man hurt shopping for dog food at Walmart

A Cumberland County jury has awarded $2 million to a man who was seriously injured when several 50-pound bags of dog food fell on his head while he was shopping at a Walmart in Hope Mills.

Brent Adams of Dunn said that his client, John Cain, was shopping for dog food, and the store had laid out two piles of bags of it, one roughly seven feet high, and the other much shorter. When Cain bent over to pick up a bag from the shorter pile, five or six bags tumbled off the taller pile onto him, knocking him to the floor.

Cain declined medical help and began driving himself home, but on the way home he became nauseous and vomited. After he got home, a friend insisted on taking Cain to a local VA hospital, where he was treated. Upon returning home, Cain was unable to get out of bed for two or three weeks and stayed close to home for several weeks thereafter. Before the injury Cain had been very active, helping his son in the concrete business and going horseback riding with friends nearly every weekend, but after the injury he stopped riding altogether and curtailed other physical activities, Adams said.

Cain sued Walmart, alleging negligence. Adams said that Cain came to his office only shortly before the expiration of the statute of limitations, and so attorneys didn’t have an opportunity to guide his health care, all of which was provided by the VA hospital and a few civilian providers the VA referred him to. Adams said that federal regulations make VA doctors essentially impossible to subpoena for deposition or trial, and none of the civilian doctors to whom Cain was referred took any real interest in him or his case.

Adams thus asked a local retired orthopedic surgeon, Dr. Douglas McFarlane, to examine Cain and his medical records and render opinions concerning the nature and extent of his injuries. McFarlane testified that Cain had no herniated discs but suffered a 3.5-mm forward displacement of his C3 and C4 vertebrae, which implied a degree of instability that is permanent. At trial, McFarlane testified that Cain could not lift more than five pounds at a time and had been in pain every day since the incident and would suffer physical pain and mental suffering every day for the remainder of his life.

Walmart initially had the case removed to federal court, but the parties later agreed to have it returned back to state court. Adams said that shortly before the trial started, Walmart’s attorney indicated that the company would stipulate negligence, and just before the first day of trial it indicated that it would abandon its defense of contributory negligence, so the only issue that went to the jury was Cain’s damages.

Cain, who was 73 at the time of the trial and had a life expectancy of more than 12 years, had incurred no medical bills aside from a VA lien of about $7,000, so he waived any claim for medical expenses and successfully moved to prohibit any testimony from Walmart about medical bills.

Adams said 11 witnesses testified on Cain’s behalf, including McFarlane, a shopper who’d seen the bags fall onto Cain, and Cain’s three children, who testified about how their lives had been impacted by their father’s injuries. Adams said that Cain himself was very personable and well-liked by the jury, and this aided their case considerably. During his testimony, attorneys brought into court six 50-pound bags of dog food of the same brand that hit Cain, though Judge Graham Shirley, who presided over the trial, required that they be removed after Cain’s testimony.

In addition, Adams said that another crucial moment in the case came when Walmart provided its surveillance video showing the fall. The camera was a long distance from the scene of the fall and the video was very difficult to see, but Scott Dunlap of Legal Media experts was able to enhance the video and allow attorneys to run the video both in real time and in slow motion.

After a four-day trial, the jury returned the $2 million verdict in Cain’s favor on Jan. 17 after deliberating for a little more than an hour. Walmart’s highest pre-trial offer was $45,000, Adams said.

“He was significantly injured, and of course this verdict, it won’t give him back the life he had, but it will certainly help him,” Adams said.

Michael Washburn and Jonathan Martin of Brown Crump Vanore & Tierney in Raleigh represented Walmart. They could not be reached for comment on the verdict.

VERDICT REPORT – NEGLIGENCE

Amount: $2 million

Injuries alleged: Anterolisthesis of C3 and C4 vertebrae and neck injuries

Case name: John Archie Cain v. Walmart Inc., Walmart Stores East LP, & Walmart Associates Inc.

Court: Cumberland County Superior Court

Case No.: 16-CVS-2067

Judge: Graham Shirley

Date of verdict: Jan. 17, 2020

Highest offer: $45,000

Most helpful experts: Dr. Douglas McFarlane of Fayetteville (orthopedic surgeon)

Attorneys for plaintiff: Brent Adams and Diana Devine of Brent Adams and Associates in Dunn

Attorneys for defendant: Michael Washburn and Jonathan Martin of Brown Crump Vanore & Tierney in Raleigh

23 (tie). Mom of boy killed at bus stop awarded $2M

The North Carolina Industrial Commission has awarded $2 million to the mother of a seven-year-old boy who was killed after he was hit by a car while crossing a highway to board his school bus.

The verdict comes 10 years after Jonathan Beegle told his mother, Laura Beegle, goodbye on their front porch in Union County before he crossed the highway and was hit by a car, attorneys Sam McGee of Tin, Fulton, Walker & Owen in Charlotte and Mike Daisley of Charlotte said.

“They were there on the front porch, and they would have a word of the day she was trying to teach him,” McGee said. “The word of the day was ‘stupendous.’” He said it was going to be a ‘stupendous day.’”

Lara Beegle filed a lawsuit with the commission claiming that the bus route was improperly designed because it required the first-grader to cross a highway where the speed limit was 55 mph. Beegle contended that the route could have readily been changed to pick her son up directly in front of his house. Moreover, Beegle said that the bus stop’s location made it impossible for oncoming traffic to see the bus’s flashing lights at a minimum of 300 feet.

“The way this bus stop was set up, it was less than half of that,” McGee said.

Beegle also contended the bus driver was negligent in the operation of the school bus and for failing to report or change the route. The bus driver was a supervisor who had driven the route before and had the authority to change it, McGee said.

The North Carolina Attorney General’s Office contended that the commission was the wrong venue for a route design claim. The commission agreed and dismissed the suit, but the state’s Court of Appeals reversed and remanded the case. A deputy commissioner again dismissed the route design claim, but the full commission reversed and allowed the case to proceed.

After the case was finally tried, Commissioner James Gillen ruled in April 2019 that the bus driver had failed to report or correct the unsafe bus stop, causing Jonathan’s death and emotional distress for Lara Beegle. Damages for both the wrongful death claim and the negligent infliction of emotional distress claim exceeded the $1 million cap allowed by the state’s Tort Claims Act, and so Gillen awarded the $1 million maximum for each claim.

The state appealed to the full commission, which upheld the award on March 3. The state then settled the case for the full judgment, without payment of costs, and agreed not to appeal.

“I have never had to fight harder or longer, or had the pleasure of representing a more deserving client,” Daisley said. “From the moment that Lara Beegle walked into my office in the late spring of 2010, I felt this was the type of case and she was the type of client that made the practice of law truly worthwhile. Lord knows it was frustrating sometimes with all the delays, but working with Sam and serving Lara for this last decade has been one of the greatest privileges of my career.”

A spokesperson for the Attorney General’s Office said the office had no comment on the verdict.

VERDICT REPORT — WRONGFUL DEATH

Amount: $2 million

Injuries alleged: Death

Case name: Burns v. Union County Board of Education

Court: North Carolina Industrial Commission

Case No.: TA-22902

Judge: James Gillen

Date of verdict: March 3, 2020

Most helpful experts: Leonard Bernstein of New York (bus safety) and Barbara Birge of Charlotte (emotional distress)

Attorneys for plaintiff: Sam McGee of Tin, Fulton, Walker & Owen in Charlotte and Mike Daisley of Charlotte

Attorney for defendant: Mark Snead of the North Carolina Department of Justice in Raleigh

25. Crash into stalled tractor-trailer prompts $1.9M settlement

A woman who was injured after she slammed into a tractor-trailer that had broken down in the middle of the road has confidentially settled a lawsuit against the at-fault driver and his employer for $1.9 million, her attorney reports.

Hunt Willis of Martin & Jones in Raleigh said that the client, whose name was withheld due to a confidentiality agreement, was driving on a rural North Carolina highway in early 2019. The driver of a large commercial tractor trailer attempted to make a left-hand turn, but the truck broke down, blocking the lane. The client was traveling in the opposite direction and with no time to react she crashed into the side of the tractor-trailer, Willis said.

The client was in the hospital for five days. She suffered a serious knee injury that required major surgery, Willis said.

The client sought damages for negligence against the at-fault driver for failing to conduct proper maintenance and pre-trip inspections on the tractor-trailer and for failing to put out warning devices such as reflective triangles. The client also contended that his employer failed to train the driver on preventive maintenance checks and emergency response procedures.

The client recently had another knee surgery and may soon need to have a total knee replacement. She is a recovering opioid addict (and was on her way to a group meeting when the crash happened), so she couldn’t take prescription pain medication following her surgeries because of the risk of a relapse, and that was a primary argument for pain and suffering damages, Willis said.

Bob Beason of Durham mediated the case, which settled in October.

Due to the confidentiality agreement, other details about the settlement, including the name of the at-fault driver, his employer, and their attorneys, were unavailable.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.9 million

Injuries alleged: Knee injury requiring multiple surgeries, pain and suffering

Case name: Confidential

Court: Confidential

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

Date of settlement: October 2020

Special damages: $100,000 (medical bills)

Attorney for plaintiff: Hunt Willis of Martin & Jones in Raleigh

Attorneys for defendant: Withheld

26 (tie). Man who fell into auto service pit settles suit for $1.8M

An elderly man who suffered brain injuries after he fell into an open service pit at an auto repair shop has confidentially settled a claim against the shop franchisor and its franchisee for $1.8 million, his attorneys report.

Justin Osborn and Joe Budd of Osborn Gambale Beckley & Budd in Raleigh report that their client, an 84-year-old man whose name was withheld due to a confidentiality agreement, visited the repair shop in May 2019 and accidentally stepped into an open service pit, hitting his head. The client suffered multiple injuries, including a subarachnoid brain hemorrhage (bleeding in the space between the brain and the tissue covering the brain) and a traumatic brain injury. He was in the hospital for 10 days, Budd said.

A neuropsychologist determined that the fall caused permanent cognitive defects that impact the client’s balance and his short-term memory. Prior to the incident, the client lived alone and enjoyed gardening and spending time with his children and grandchildren. He has since moved to an assisted-living facility and now requires around-the-clock care.

“He was declared incompetent for the case,” Budd said. “It was a life-changing event.”

The attorneys contended that the orientation of the shop floor and lack of adequate signage warnings violated OSHA and N.C. Department of Labor regulations. They also argued that the franchisee failed to follow the franchisor’s safety training and policies: customers are required to be escorted by staff members while on the bay floor, and surveillance footage showed their client was alone when he fell into the pit.

Other details about the claim, including the names of the defendants and their attorneys, were withheld due to the confidentiality agreement.

SETTLEMENT REPORT — PREMISES LIABILITY

Amount: $1.8 million

Injuries alleged: Subarachnoid brain hemorrhage, traumatic brain injury

Case name: Confidential

Court: Confidential

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

Date of settlement: Nov. 15, 2020

Attorneys for plaintiff: Justin Osborn and Joe Budd of Osborn Gambale Beckley & Budd in Raleigh

Attorney for defendants: Withheld

26 (tie). Family of motorcyclist killed in wreck settles claim for $1.8M

The family of a man who was killed in a wreck while he was riding a motorcycle has confidentially settled a claim against the at-fault driver for $1.8 million, the family’s attorney reports.

David Sherlin of Holt Sherlin in Raleigh reports that the decedent, who was in his 50s, was struck when the at-fault driver made an illegal turn.

Four insurance companies were involved in the settlement, all of which tendered their policy limits prior to litigation, Sherlin said.

Due to a confidentiality agreement, other details about the settlement, including the name of the defendant and their attorney, were not available.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.8 million

Injuries alleged: Death

Case name: Confidential

Court: Confidential

Date of settlement: October 2020

Attorney for plaintiff: David Sherlin of Holt Sherlin in Raleigh

Attorneys for defendant: Withheld

28. Family of man killed in wreck settles claim for $1.75M

The family of a man who died after the pickup truck he was riding in was hit head-on by the driver of another pickup truck has confidentially settled a pre-lawsuit claim against the at-fault driver for $1.75 million, the family’s attorneys report.

Robert Lucas and Sarah Ellerbe of Lucas Denning and Ellerbe in Selma report that the decedent, whose name was withheld pursuant to a confidentiality agreement, was traveling west on a rural Johnston County road along with his two sons in May 2020. One of the sons was driving, and the man and his other son were passengers.

As the driving son was steering through a curve, the at-fault driver was driving in the opposite direction, and the trucks collided head-on. Both vehicles were mid-size pickup trucks, and the clients’ vehicle turned over on its side.

The father sustained serious injuries and was transported to WakeMed hospital in Raleigh. He underwent two surgeries that were ultimately unsuccessful and died 10 days after the wreck. His two sons were not seriously injured, the attorneys said.

The family contended that the at-fault driver had crossed a double yellow line trying to pass a tractor-trailer. The at-fault driver said he was trying to keep up with the truck ahead of him, which was being driven by one of his co-workers. During meditation, he admitted liability, but disputed punitive damages.

“We felt that the defendant was trying to pass a vehicle on a double yellow line in a curve and that would have been an intentional lapse that would cause harm to others,” Ellerbe said. “The defense originally stated that the [at-fault driver] had a medical condition or fell asleep, but our experts disputed whether the onboard computer evidence supported that.”

A key issue in the case was the fact that the father was seriously ill with liver cancer. Doctors had given him approximately 18 months to live.

After mediation, conducted by Collins Barwick of Raleigh, the parties settled for $1.75 million on Nov. 10. Due to the confidentiality agreement, other details about the case, including the name of the defendant and his attorney, were unavailable.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.75 million

Injuries alleged: Death

Case name: Confidential

Mediator: Collins Barwick of Raleigh

Date of settlement: Nov. 10, 2020

Special damages: $350,000 (past medical bills)

Attorneys for plaintiff: Robert Lucas and Sarah Ellerbe of Lucas Denning and Ellerbe in Selma

Attorneys for defendant: Withheld

29. Man crushed by loader settles claim for $1.7M

A man who was severely injured after a 1,000-pound loader arm collapsed on him while he was fixing a piece of machinery at a North Carolina industrial plant has confidentially settled a claim against the plant’s owner for $1.7 million, his attorney reports.

Coleman Cowan, Hoyt Tessener and Barry Jennings of the Law Offices of James Scott Farrin in Durham said that his client was a contractor working at the plant in November 2015. He was performing preventative maintenance on a large piece of machinery when the loader arm fell onto his head and leg, breaking his jaw, knocking out his teeth, and crushing his leg. He was rushed into surgery at a trauma center, where a surgeon worked to save his leg, but it wasn’t until days later that they knew that the surgery was successful.

“His leg was saved, but he’ll never walk the same way again,” Cowan said.

The client settled a workers’ compensation claim with his employer for $294,000 and filed a lawsuit against the owner of the plant. Documents produced in discovery from both the plant owner and client’s employer determined the loader arm fell “due to piping design and pressure sensor location,” and “the contractors involved in this incident were not found to be in violation of any existing safety policy.”

Coleman said that the plant’s owners had improperly installed a part into the loader that caused its arm to release when it should not have. The owner of the plant raised the defense of contributory negligence.

“The defense was, ‘You did your job wrong,’” Cowan said.

Due to a confidentiality agreement, the names of the plant and its attorney were not available.

SETTLEMENT REPORT – NEGLIGENCE

Amount: $1.7 million

Injuries alleged: Broken jaw, crushed leg

Case name: Confidential

Court: Confidential

Date of settlement: Oct. 25, 2020

Attorney for plaintiff: Coleman Cowan, Hoyt Tessener and Barry Jennings of The Law Offices of James Scott Farrin in Durham

Attorneys for defendant: Withheld

30. Truck driver injured by steel pipe settles claim for $1.5M

A truck driver who suffered severe injuries when a two-ton pipe landed on him has settled a claim against the crane company responsible for loading the pipe for $1.5 million, his attorneys report.

Tom Comerford and John Chilson of Comerford Chilson & Moser in Winston-Salem and Mike Lewis of Lewis & Keller in Raleigh report that the injury happened while their client, Bruce Holler, was picking up a load of four steel pipes that he was planning to transport to a construction site in Wilmington.

Holler was standing near his trailer while a crane operator for Mountain Creek Contractors lifted one of the pipes and dropped it in the trailer. That caused another 4,000-pound pipe, which hadn’t been properly secured, to come loose and fall out of the trailer and land on Holler, who suffered spine, pelvis, and knee injuries, and a permanent injury to his urethra.

Holler was in the hospital for eight days after the incident and underwent numerous surgeries, Chilson said.

Ron Spivey of Winston-Salem mediated the settlement, which was agreed to on Feb. 28, 2020.

Holler also settled a worker’s compensation claim, but the terms of that settlement are confidential. He has made a “good recovery” and is now back to work as a truck driver, Chilson said.

Jennifer Addleton Welch of Cranfill Sumner in Raleigh represented Mountain Creek Contractors. She could not be reached for comment, but Chilson said that Mountain Creek contended that Holler had been contributorily negligent and should have known better than to stand close to the trailer while the crane operator was loading the pipes.

SETTLEMENT REPORT — NEGLIGENCE

Amount: $1.5 million

Injuries alleged: Spine, pelvis, and knee injuries; permanent injury to urethra

Case name: Case settled before any lawsuit was filed

Mediator: Ron Spivey of Winston-Salem

Date of settlement: Feb. 28, 2020

Attorneys for plaintiff: Tom Comerford and John Chilson of Comerford Chilson & Moser in Winston-Salem and Mike Lewis of Lewis & Keller in Winston-Salem

Attorney for defendant: Jennifer Addleton Welch of Cranfill Sumner in Raleigh

31 (tie). Claim settled for $1.3M after tractor-trailer ran red light

A man who suffered a traumatic brain injury and intestinal injuries after his vehicle was broadsided by a tractor-trailer driver who had run a red light has confidentially settled a claim against the at-fault driver and his employer for $1.3 million, his attorney reported.

Hunt Willis of Martin & Jones in Raleigh reports that the crash happened when his client, a utility worker whose name was withheld pursuant to a confidentiality agreement, was driving to his worksite one day in 2019. The client stopped at a red light and then proceeded through the intersection when the light turned green. As he did so, the driver of the tractor-trailer ran the red light and slammed into the driver’s side of the utility work van, sending it careening over 70 feet.

The client was taken to the hospital, where he was diagnosed with a closed-head injury (a type of traumatic brain injury) and an injury in which his intestines were knocked into his chest cavity.

Willis said that the tractor-trailer driver’s records helped to show that fatigue was a significant factor in causing the crash.

“The detailed logbook entries from the driver showed that he should not have been driving, as he had acquired too much on-duty drive time the night before without adequate rest,” Willis said.

Due to the confidentiality agreement, other details about the settlement, including the names of the defendants and their attorneys, were unavailable, but Willis said that the defendants argued that his client had been contributorily negligent because he pulled into the intersection when he should have known the truck was coming and should have stopped in time. They also disputed that the impact from the wreck caused the head injury and post-concussive symptoms that client sought treatment for, including problems with his eyesight that hindered ability to continue driving commercial vehicles.

The client had a worker’s compensation lien of more than $100,000 and negotiated a waiver.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.3 million

Injuries alleged: Closed head injury, intestinal injuries, impaired eyesight

Case name: Confidential

Court: Confidential

Date of settlement: November 2020

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

Attorneys for defendants: Withheld

31 (tie). Tenants settle FHA suit over apartments, secure $1.3M in improvements

The owners, builders, and architects of five Triad apartment complexes will spend $1.3 million to settle a complaint that apartments and public areas in their communities were inaccessible to disabled residents, their attorney reports.

Jack Holtzman, of the North Carolina Justice Center, who represented Legal Aid of North Carolina in the lawsuit, said that LANC’s Fair Housing Project discovered in 2017 that the newly built complexes had violations that ranged from “very serious to less serious,” but all restricted accessibility to disabled tenants.

LANC filed a complaint with the U.S. Department of Housing and Urban Development against the owners, builders, and architects of Brightwood Crossing Apartments in Whitsett, Chamberlain Place Apartments in Clemmons, Granite Ridge Apartments in Greensboro, Lafayette Landing Apartments in Jamestown, and Robinhood Court Apartments in Winston-Salem, alleging violations of the Fair Housing Act.

As part of the settlement, signed on Oct. 5, the defendants agreed to make modifications to common areas in the complex, as well as 325 apartments, to bring them into compliance with federal law. Employees of the defendants with responsibility for the design and construction of covered multifamily dwellings will also undergo training on relevant sections of the FHA and ADA.

“This was a very good result for tenants with disabilities and accessibility issues in North Carolina, as well as for the respondents,” Holtzman said. “I think this was a good settlement, and we appreciate HUD, and the respondents’ willingness to settle.”

Bo Rodenbough of Brooks Pierce in Greensboro represented the respondents. He declined to comment on the settlement.

SETTLEMENT REPORT — ADA VIOLATIONS

Amount: $1.3 million to be spent on modifications

Injuries alleged: Apartments inaccessible to disabled tenants

Case name: Fair Housing Project of Legal Aid North Carolina vs. BSC Holdings Inc., et al

Venue: United States Department of Housing and Urban Development

Case No.: 04-17-9473

Date of settlement: Oct. 5, 2020

Attorney for plaintiff: Jack Holtzman of the North Carolina Justice Center in Raleigh

Attorney for defendant: Bo Rodenbough of Brooks Pierce in Greensboro

33. Man injured in wreck settles for $1.25M

A man who was injured after he crashed into a vehicle that made a left turn in front of him has confidentially settled with the at-fault driver for $1.25 million, his attorneys report.

Joseph Edwards and Sharon Edwards of Edwards & Edwards in Greenville report that their client, whose name was withheld pursuant to a confidentiality agreement, was traveling north on a divided highway when the other driver made the turn, and the client slammed into the passenger side of the other driver’s car.

The client’s injuries included fractures to his ankle, shin, collarbone, and ribs.

The attorneys said that the other driver conceded that he had been partially negligent because he had failed to see the client’s vehicle, but argued that their client was also contributorily negligent because he didn’t see the turning vehicle and didn’t brake in time.

As it happened, there was a highway patrolman already at the scene investigating another wreck, but the patrolman had his back to the intersection and did not witness the second crash. The attorneys were able to locate a bicyclist who had been approaching the intersection from a side road when the wreck happened and said that the plaintiff didn’t have enough time to come to a stop before impact.

During pre-lawsuit settlement negotiations, the attorneys presented a video that included statements from the witness and from the man’s from family and friends, highlighting the pain and suffering and diminished quality of life that he has suffered since the wreck.

The two sides agreed to the settlement on Jan. 7. Other details about the settlement, including the identities of the defendant and their attorneys, were withheld due to the confidentiality agreement.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.25 million

Injuries alleged: Fractures to right ankle, left tibia, left clavicle, sternum, multiple ribs, and hands

Case name: Confidential

Court: Confidential

Date of settlement: Jan. 7, 2020

Special damages: $190,364

Attorneys for plaintiff: Joseph Edwards and Sharon Edwards of Edwards & Edwards in Greenville

Attorneys for defendant: Withheld

34 (tie). Sheriff’s office to pay $1.2M in shooting death

Rockingham County will pay $1.2 million to settle a lawsuit filed by the family of a father of two young children who was shot and killed by a sheriff’s deputy in his driveway, according to court documents and the family’s attorneys.

John Edwards and Cate Edwards of Edwards Kirby in Raleigh said that Todd Burroughs of Stoneville was returning from a wedding with his family after midnight in May 2016. At the same time, two sheriff’s deputies, Frank Martin, and his trainee, Chase Myers, were conducting a security check on a business and spotted Burroughs in his truck.

The deputies followed Burroughs into his driveway. Burroughs got out of his truck and asked why the deputies were there while his family remained inside the vehicle, Cate Edwards said. The deputies ordered Burroughs to the ground. He refused and continued to ask what the officers were doing there, but the deputies didn’t reply, she said.

After Martin had alternately hit Burroughs with a baton, pepper spray, and a stun gun, Burroughs took the baton from Martin and threw it on the ground. The deputies alleged that Burroughs then picked up the baton and walked towards Martin—a claim that Burroughs’ wife, who by that point had exited the truck, denied.

Martin shot Burroughs three times, twice in the chest and once in the abdomen, and Burroughs fell to the ground. While Martin was performing CPR on Burroughs, the family’s dog ran off the porch. Martin, who later said the dog was interfering with his efforts to revive Burroughs, shot the dog dead, Edwards said.

Burroughs died at the scene. Martin’s body camera was not turned on until late into the encounter and that footage is very dark, Edwards said. The audio recorded Burroughs using “vulgar and aggressive” language toward Martin. Burroughs’ blood alcohol content was .20, according to an autopsy.

Burroughs’ family brought federal deprivation of civil right claims and state-law wrongful death claims, alleging that Martin’s use of deadly force was excessive and unauthorized. The claims survived summary judgment, overcoming the sheriff’s and Martin’s qualified immunity argument, Edwards said.

The deputies, who are still with the sheriff’s office, contended that they turned their blue lights on as they followed Burroughs and that he had been swerving, speeding and failed to stop at a stop sign. Myers, who was dismissed from the lawsuit at summary judgment, also said that he had “gut feeling” that something wrong, which is why they followed Burroughs into his driveway. Martin said that he felt his life was threatened after Burroughs grabbed his baton.

Edwards said that empaneling a jury that does not have biases in favor of law enforcement is a major challenge in such cases.

“When you are confronted with a case involving law enforcement, you are always concerned about what the jury pool is going to think, because law enforcement officers protect and serve our community,” Edwards said.

Burroughs’ wife and two children are “glad to have this chapter closed,” Edwards said.

“There are a lot of difficult facts in this case that made it an uphill battle,” Edwards said. “They were really relieved to not have to go through [a trial], and this was an important piece of closure.”

Lee Daniels and Ann Rowe of Davis & Hamrick in Winston-Salem represented the Rockingham County Sheriff’s Office and Martin. They could not be reached for comment.

SETTLEMENT REPORT — CIVIL RIGHTS

Amount: $1.2 million

Injuries alleged: Death

Case name: Burroughs v. Sam Page, in his official capacity as Sheriff of Rockingham County, Frank Martin, in his individual capacity and official capacity and Liberty Mutual Insurance Co.

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

Case No.: 1:17-cv-463

Judge: Joe Webster

Date of settlement: Jan. 9, 2020

Insurance carrier: Liberty Mutual

Attorneys for plaintiff: John Edwards and Cate Edwards of Edwards Kirby in Raleigh and Mark L. Bibbs of Raleigh

Attorneys for defendants: Lee Daniels and Ann Rowe of Davis & Hamrick in Winston-Salem

34 (tie). Moped driver injured in car collision settles suit for $1.2M

A driver of a moped who was injured after he was hit by a car that failed to yield to him at a stoplight has confidentially settled his dispute with the at-fault driver for $1.2 million, his attorney reports.

Coleman Cowan of the Law Office of James Scott Farrin in Durham said that his client, whose name was withheld pursuant to a confidentiality agreement, was traveling through an intersection with a green light in October 2018 when the driver of the car turned left and hit the client, flipping him over the car and onto the pavement behind it.

The client lost consciousness and was hospitalized for 35 days. He had brain bleeding and seven fractures in his back, five of which were fused in the days after the collision. His permanent injuries included foot drop (difficulty lifting the front part of the foot) in his left foot and short-term memory loss. After he was released from the hospital, the client spent 62 days in nursing and rehabilitation centers, and his medical bills came to $224,787.

The at-fault driver was cited for failure to yield the right-of-way, and an eyewitness saw him turn left in front of the moped driver, Cowan said. The defendant testified during deposition, however, that he had done nothing to cause the collision, and that the wreck was the plaintiff’s fault because the defendant didn’t realize the moped driver had entered the intersection until the wreck happened.

After the deposition, Cowan discovered surveillance video from a nearby gas station that recorded both vehicles entering the intersection. The video showed the moped driver approaching the intersection on a straight, flat road with his headlights on, and that he was clearly visible to the at-fault driver for at least six seconds before the driver turned left in front of the moped.

The case settled for $1.2 million on March 20, shortly after the surveillance video was discovered and disclosed to defense counsel, Cowan said.

Other details about the settlement, including the location of the wreck and the identities of the defendant and his attorneys were withheld due to the confidentiality agreement.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.2 million

Injuries alleged: Brain bleeding, back fractures, foot drop, short-term memory loss

Case name: Confidential

Court: Confidential

Date of settlement: March 20, 2020

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

Attorneys for defendant: Withheld

36 (tie). Family of teen killed at bus stop settles claim for $1.1M

The family of a teenager who was struck and killed at what they contended was a dangerous school bus stop has settled a claim against the Wake County Board of Education for $1.1 million, the family’s attorneys report.

Shawn Howard and Karl Gwaltney of Maginnis Howard in Raleigh, Sam McGee of Tin Fulton Walker & Owen in Charlotte, and Marie Lang of Wall, Templeton & Haldrup in Raleigh report that the 14-year-old, Maria Fernandez, was struck and killed by a motorist in 2013 while she was crossing a dark and poorly lit road to board her school bus.

Fernandez’s brother was a step ahead of her when she was struck, and her father “saw shadows and heard a bang,” Howard said.

“Everybody described a terrible sound,” Howard said. “There were 911 calls where you can hear her family yelling as she slowly passed away.”

The motorist was not charged in Fernandez’s death. A claim filed with the North Carolina Industrial Commission alleged that Wake County school administrators had poorly designed the bus route. The commission dismissed that claim, saying that it was beyond the commission’s jurisdiction, but the family’s other claims, including that the bus driver failed to properly use the bus’s lights or pull out its stop arm after coming to a stop, remained. The family also contended the bus driver had a duty to report a dangerous bus stop, but did not.

Howard said that witnesses who were driving behind the school bus testified in depositions that the bus driver failed to activate her lights after pulling up to the bus stop. Neither witness believed that the driver coming from the other direction would have been able to see Fernandez in the dark, and the family contended that having an additional stop on Fernandez’s side of the highway in front of her house would have prevented her from having to cross a dark highway to board the bus.

Howard said that a reconstruction report from the North Carolina State Highway Patrol indicated that the bus driver had used her lights, but in the course of a thorough discovery the family learned that that was not the case.

The North Carolina Department of Justice represented the Wake County Board of Education. A spokesperson for the DOJ said the office had no comment on the settlement, but Howard said that the board contended that Fernandez was contributorily negligent and the bus driver had turned the bus’s warning lights on.

“The witnesses did not support that, and we didn’t think the black box data was supportive of that,” Howard said.

SETTLEMENT REPORT – WRONGFUL DEATH

Amount: $1.1 million

Injuries alleged: Death

Case name: Martinez v. Wake County Board of Education

Court: North Carolina Industrial Commission

Case number: TA-24791

Date of settlement: November 2020

Most helpful experts: Sean Dennis of Cary (reconstruction engineering), Dr. Reem Utterback of Raleigh (psychiatry) and Leonard Bernstein of Wildwood Crest, New Jersey (school bus safety)

Attorneys for plaintiff: Shawn Howard and Karl Gwaltney of Maginnis Howard in Raleigh, Sam McGee of Tin Fulton Walker & Owen in Charlotte, and Marie Lang of Wall, Templeton & Haldrup in Raleigh

36 (tie). Sheriff’s deputy injured in wreck settles claim for $1.1M

A sheriff’s deputy who was injured after a driver crashed into his patrol car while the deputy was responding to a call has settled a claim with his personal underinsured motorist insurance carrier for $1.1 million after he was able to correct snafus in his record keeping of his policies, his attorney reports.

Andrew Cioffi of Raleigh said that John Carlisle, a Wake County deputy and K-9 officer, was driving north on U.S. 401 in southern Wake County in October 2018, running full lights and siren and running over the speed limit, Cioffi said.  Another driver swerved into his lane, hitting the side of the patrol car, and knocking it off the road, into a grassy medium and then hit another car head-on.

Carlisle suffered a thigh fracture that required surgeries that included the insertion of rods and screws to hold his leg together. He has upcoming surgeries and faces another surgery to remove the hardware and won’t be able to return to work as a K-9 officer, Cioffi said.

The settlement was part of a third-party claim. Carlisle was also the owner of a concrete company, and over the years the business went through a number of changes and he added family members to the business and also changed insurance agents and carriers. After the wreck, he wasn’t able to locate an original policy that he had taken out that covered the listed vehicle.

“Like many folks his age, he did all his business on his phone and did not have paper copies of this sequence of insurance policies, many with overlapping policy periods,” Cioffi said.

Carlisle was able to track down one of his former agents who found a business automobile policy that was issued to him individually, with an underinsured motorist policy with limits of $1 million, and a $100,000 personal automobile policy. After arbitration, the parties settled the claim on Dec. 21.

A worker’s compensation claim is pending.

Drew Grice Jr. of Walker Allen Law in Goldsboro represented the UIM insurance provider, Searcy Insurance. He could not be reached for comment.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $1.1 million

Injuries alleged: Thigh fracture with multiple complications

Case name: Claim settled before any lawsuit was filed

Date of settlement: Dec. 21, 2020

Attorney for plaintiff: Andrew Cioffi of Raleigh

Attorney for defendant: O. Drew Grice Jr. of Walker Allen Law in Goldsboro

38 (tie). Mom of boy who drowned settles lawsuit for $1M

The mother of a six-year-old boy who drowned in a cloudy hotel swimming pool has confidentially settled a lawsuit against the hotel and the woman who was looking after the boy for $1 million, the mother’s attorneys report.

Mark Melrose and Adam Melrose of Asheville report that the boy, his father, his brothers, and his father’s girlfriend were traveling for a baseball tournament in September 2017. That night, they joined a group of other parents and players at the hotel’s indoor swimming pool. (The name of the hotel and all of the individuals involved in the incident were withheld pursuant to a confidentiality agreement.)

The father later took one of his sons back to their hotel room and asked his girlfriend to watch the six-year-old, who could not swim. The boy was hanging onto the wall of the pool and made his way to the five-foot deep end. As he reached the ladder, he lost his grip and eventually sunk to the bottom of the pool. Moments later, the girlfriend noticed that the boy was missing, and she and others searched for him in the hotel parking lot and his hotel room. After nine minutes, another child jumped into the pool and discovered the boy at the bottom. He died at the scene.

The entire incident was captured by a hotel security camera.

“I’ve been practicing for 30 years and it was one of the hardest things I have ever had to watch,” Mark Melrose said. “That child’s drowning–you can see it as it happens, and it is just awful.”

The boy’s mother sued the hotel’s owner, who in turn sued the girlfriend. Thomas Griffiths, a pool safety expert, testified that the pool’s cloudy water was the proximate cause of the boy’s drowning, and that if the main drain at the deepest part of the pool can’t be seen because of water clarity issues, the pool must be closed immediately.

Dr. Derek Covington, an expert in undersea and hyperbaric medicine, testified that had the child been discovered in the first five minutes of going under, he likely would have survived. He said that there were a number of people who swam directly over the child as he was drowning and were unable to see the child due to the cloudy water. He also testified to the extent of suffering that the child would have experienced as he was drowning.

The identities of the hotel’s attorneys were also withheld, but Mark Melrose said that the hotel argued that the water in the pool was clear when they tested it that morning, and that even if the water was cloudy, it became cloudy too quickly for the hotel to address the issue. But Mark Melrose said the video footage showed a hotel employee bringing towels to the area minutes before the drowning, and the water was cloudy.

The hotel also contended that the father’s girlfriend was the sole proximate cause of the child’s drowning due to her failure to properly supervise the child, while the father’s girlfriend admitted that the combination of her failure to supervise and the water cloudiness both contributed to his death, Mark Melrose said. The hotel argued that any recovery should be reduced by half under North Carolina’s slayer statute, because the father was partially at fault.

Under a settlement reached on April 6, the hotel agreed to pay $700,000, and the father’s girlfriend agreed to pay $300,000. Bill Brazil of Brazil & Burke in Asheville mediated the settlement.

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $1 million ($700,000 from the hotel, and $300,000 from the individual third-party defendant)

Injuries alleged: Death

Case name: Confidential

Court: Confidential

Mediator: Bill Brazil of Brazil & Burke in Asheville

Date of settlement: April 6, 2020

Most helpful experts: Thomas Griffiths of Abington, Pennsylvania (pool safety) and Derek Covington of Gainesville, Florida (undersea and hyperbaric medicine)

Insurance carrier: Auto Owners Insurance Company and State Farm Fire & Casualty Company

Attorneys for plaintiff: Mark Melrose and Adam Melrose of Asheville

Attorneys for defendant: Withheld

38 (tie). DOT ordered to pay $1M to family of teen

The North Carolina Department of Transportation will have to pay $1 million to the family of a teenager who was killed on his way to school while crossing a road where the DOT had refused to install sidewalks or a crosswalk despite decades of warnings about the road’s safety, the North Carolina Industrial Commission has ruled.

Fourteen-year-old Stephen Canipe Jr. of Gaston County was hit by a car while he was crossing New Hope Road on his way to Cramerton Middle School, less than a half-mile from his home, in October 2014. According to the commission’s ruling, Canipe crossed the road because his school had warned students who walked to school to face traffic while traveling if there were no sidewalks.

Canipe was catastrophically injured, suffering a right open femur fracture, bilateral pelvis and sacrum fractures, facial and jaw fractures, and significant internal injuries to his brain and abdomen, according to the ruling. A paramedic testified that the injuries were the worst she had seen in her 11-year career. Canipe died at the hospital.

Thomas Bumgardner of Charlotte and Scott Roberts of Gastonia represented the Canipe family in the lawsuit, which contended that the DOT knew that the stretch of road was dangerous for pedestrians but refused to remedy the situation.

“The DOT didn’t see any merit in the case, and there was no offer prior to trial,” Bumgardner said. “They blamed the boy.”

During the hearing, the plaintiffs called 16 witnesses, including the mayor of Cramerton, Cathy Young, who testified that even though the section of New Hope Road isn’t in its town limits, the town had offered in 1998 to pitch in money for improvements because the road was so dangerous for pedestrians. The former superintendent of Gaston County Schools, Ed Sadler, testified that in 2002, he had sent a letter to the DOT expressing his concerns about the lack of sidewalks or crosswalks and the safety of the road for walkers, according to the ruling.

The DOT contended that Canipe should have crossed at an intersection near the school, but an officer testified that the intersection was “chaos,” and he would never advise someone to cross there.

During the seven-day trial, Stephen Canipe Sr. described his son as “absolutely one hundred percent a vibrant, exuberant young man.”

The parents have since moved away from their home.

“They didn’t want to relive that every day, living in the same location,” Bumgardner said. “They still live with the loss every day. They are grateful the commission listened to their story and delivered justice as best as the law provides.”

A spokesman for the North Carolina Department of Justice said the office is reviewing the decision.

VERDICT REPORT — MOTOR VEHICLE CRASH

Amount: $1 million

Injuries alleged: Death

Case name: Canipe v. North Carolina Department of Transportation

Court: North Carolina Industrial Commission

Case No.: TA-25879

Judge: Allen Baddour

Date of verdict: May 29, 2020

Attorneys for plaintiff: Thomas Bumgardner of Charlotte and Scott Roberts of Gastonia

Attorney for defendant: Donna Wojcik of the North Carolina Department of Justice in Raleigh

38 (tie). Teen who nearly drowned settles suit for $1M

A teenager who suffered brain damage after he almost drowned in a town-owned swimming pool has settled a lawsuit against the town for $1 million, his attorneys report.

The attorneys, Lee Olive and Whitney Brooks of Charlotte, reported that the settlement agreement contained a clause stating that “the terms of the settlement were confidential to the extent allowed by law” and declined to identify the defendant town. Any settlement agreement entered into by a municipality in North Carolina is a public record subject to disclosure under the state’s Public Records Act, but as a practical matter, citizens can’t plausibly obtain such records without knowing where to direct their requests. Lawyers Weekly was unable to obtain a record of the agreement despite making the best reasonable efforts to do so and has decided, with reservations, to publish this story despite being unable to identify the name of the defendant town, which is ostensibly a matter of public record.

Olive and Brooks said that the 15-year old client was swimming with his friends at a recreation center. A video of the incident shows that the teen suddenly went underwater and sunk to the bottom of the pool. He remained there for more than two and a half minutes before his friends realized that he was in danger.

Video footage showed a lifeguard step down from the lifeguard stand, walk to the edge of the pool and peer into the deep end, where the teen’s body was at the bottom of the pool, Olive said. His friends then dove to the bottom of the pool and brought him to the surface. The lifeguard helped lift the teen out of the pool after he was brought to the surface, but never got in the pool. The lifeguard performed CPR before another lifeguard took over.

“The video footage directly conflicted with the lifeguard’s statements to authorities after the incident in which the lifeguard stated that during the incident, he jumped in the pool to rescue the boy,” Brooks said.

The teen suffered a brain injury resulting from oxygen deprivation. He was taken to a hospital, where he developed aspiration pneumonia, a type of lung infection that results from a large amount of fluid entering the lungs. He also underwent inpatient rehabilitation at Children’s Healthcare of Atlanta. He was able to return to high school with academic accommodations and is now enrolled in college where he receives testing and note-taking accommodations, Olive said.

The lawsuit was settled at mediation on June 26. The town argued the teen would have had to have been underwater for a longer period of time to have suffered irreversible brain damage, Olive said.

SETTLEMENT REPORT — NEGLIGENCE

Amount: $1 million

Injuries alleged: Anoxic brain injury

Case name: Withheld

Court: Withheld

Case No.: Withheld

Date of settlement: June 26, 2020

Special damages: $104,172 (past medical bills)

Attorneys for plaintiff: Lee Olive and Whitney Brooks of Charlotte

Attorney for defendant: Withheld

38 (tie). Family of man killed in dump truck wreck settles suit for $1M

The family of a man who was killed after the driver of a dump truck rear-ended his car has settled a lawsuit against the at-fault driver and his employer for $1 million, the family’s attorney reports.

Matthew Sullivan of White and Allen in Kinston reports that Leslie Creech was about to make a right turn into the parking lot of a convenience store on U.S. 70 in Kinston in 2019 when Willie Johnson crashed his commercial dump truck in Creech’s car, crushing it. Sullivan said that Johnson was speeding and didn’t properly swerve to avoid a less-serious crash, and that detailed accident reconstruction revealed that Johnson was traveling on the far-right side of the travel lane and his right side tires were actually outside the fog line at the start of the skid, which factored heavily in the wreck.

Creech, who was 65, suffered head and brain trauma. He was placed in a medically-induced coma, and his family removed life support four days later.

Creech’s grandson, a minor who was also in the car when the wreck occurred, sustained bilateral temporal bone fractures, a displaced fracture of the right nasal bone, a concussion associated with subdural hematoma, hearing loss in his right ear, and cranial nerve palsy, which causes blurry vision. A recent MRI revealed that he had no current residual effects from the head trauma, his hearing had returned to baseline function, and the cranial nerve palsy had resolved, Sullivan said.

Sullivan said that Johnson’s extensive history of motor vehicle safety violations provided compelling evidence for both negligent entrustment and punitive damage claims, but both Johnson and the owner of the trucking company that employed him, Jasper Jones Trucking, had little in recoverable assets. The company was a sole proprietorship with one truck with annual gross revenues of less $100,000 that was operating from a private residence that was owned jointly by the owner and his wife. Johnson, meanwhile, was suffering from cancer. Creech’s family agreed to accept the full limits of the company’s insurance policy to resolve the dispute, Sullivan said.

Gregory York of York Williams in Charlotte represented the defendants. He declined to comment on the settlement, which was agreed to on June 22.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1 million

Injuries alleged: Death; bone fractures, concussion, blurred vision

Case name: Tyndall v. Jasper Jones Trucking

Court: Lenoir County Superior Court

Case number: 20-SP-70

Judge: Imelda Pate

Date of settlement: June 22, 2020

Special damages: $29,000 (medical expenses for Creech), $9,000 (funeral expenses) $10,700 (medical expenses for grandson)

Most helpful experts: Steven Farlow of Raleigh (engineering)

Insurance carrier: Integon Indemnity Corporation

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

Attorney for defendant: Gregory York of York Williams in Charlotte

38. (tie). Injured moped driver settles claim for $1M

A man who was rear-ended by a hit-and-run driver has confidentially settled a pre-lawsuit claim against the at-fault driver’s employer for $1 million after the company’s truck was discovered parked in front of the driver’s house through Google Earth, the plaintiff’s attorney reports.

Bob Whitley of Whitley Law Firm in Raleigh reports that his client, whose name was withheld pursuant to a confidentiality agreement, was riding his moped in Raleigh when he was struck from behind by the at-fault driver, who was on the job and driving a company truck.

The client suffered rib fractures and a collapsed lung and was in the hospital for 79 days, during which time he suffered a stroke, leading to further physical and mental decline. Whitley hired a life care planner to establish the extensive medical care that the client will require in the future.

A bystander who witnessed the wreck chased the driver and wrote down his license plate number, which was traced back to the company. The investigating officer couldn’t determine who had been driving the truck at the time, but Whitley, via Google Earth, discovered that the company truck had been parked outside of the employee’s house.

The company and its insurance carrier argued that the at-fault driver’s use of the company vehicle was unauthorized and therefore the client’s injuries weren’t covered.

Whitley said the insurer continued to stall in its evaluation of his client’s injuries. Whitley told the carrier that if the limits of insurance coverage weren’t completely tendered by a certain date, he would file suit against the company and seek an excess verdict. Just before the deadline, Whitley said, the carrier tendered its limits and the client settled the case for $1 million.

Due to the confidentiality agreement, other details about the case, including the identities of the defendants and their attorneys and insurer, were not available.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1 million

Injuries alleged: Rib fractures and collapsed lung

Case name: Confidential

Court: Withheld

Case No.: Withheld

Date of settlement: June 29, 2020

Attorney for plaintiff: Bob Whitley of Whitley Law Firm in Raleigh

Attorney for defendant: Withheld

38 (tie). Worker whose legs were crushed settles claim for $1M

A construction worker whose legs were crushed by a piece of equipment has confidentially settled a claim against a developer and a construction company for $1 million, his attorneys report.

Ben Whitley of Raleigh and Noah Abrams of Raleigh report that their client, whose name was withheld pursuant to a confidentiality agreement, was contracted through a temp agency to work as a quality controller installing solar panels for a North Carolina construction company in Sampson County in January 2019. Another worker was operating a skid steer, a piece of equipment used for excavating, and abruptly turned it to the left, crushing the client’s legs and ankles.

The client sustained severe fractures to both legs and both ankles, requiring the placement of metal rods, and spent several months in physical therapy.

The client contended that the site was dangerous because the developer had failed to properly inspect it or provide proper supervision, and alleged that the construction company had been negligent in its inspection and oversight of the project and was liable for the skid steer driver’s failure to properly operate the device.

Whitley said that soon after the client filed a lawsuit, the construction company emailed him and told him to “save himself and the attorneys time and money and dismiss the case.” The company contended that under the borrowed servant doctrine, the client was acting as its own employee, not the temporary agency’s employee, at the time of the incident, and so he was limited to worker’s compensation remedies and couldn’t bring a third-party claim against the company.

Whitley said that while “North Carolina law is tough on this,” the client “ignored the strange request.”

“They apparently didn’t think we had much of a case,” Whitley said.

Whitley said that the defendants also contended that the plaintiff had been contributorily negligent because he’d ignored instructions not to stand near the skid steer in operation, but the construction company ultimately conceded that the operator of the skid steer had driven it in an unsafe manner.

The case settled in mediation. Whitley and Abrams said they also negotiated down a workers’ comp lien from more than $200,000 to only $55,000.

“He is doing much better,” Whitley said of his client. “He is hoping to use the settlement to get into the car repair business. He can’t stand on his legs, but he can use hands. He is learning to retrain and retool.”

Due to the confidentiality agreement, other details about the settlement, including the name of the defendants and their attorneys, were unavailable.

SETTLEMENT REPORT — WORKPLACE INJURY

Amount: $1 million

Injuries alleged: Severe fractures to both legs and both ankles

Case name: Confidential

Court: Confidential

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

Date of settlement: November 2020

Attorneys for plaintiff: Ben Whitley of Raleigh and Noah Abrams of Raleigh

Attorneys for defendants: Withheld