NTL member Ryan Zehl obtains $23.5M settlement in head-on fatal wreck

Accident with two carsNational Trial Lawyers Top 100 and Top 40 Under 40 member Ryan Zehl secured a $23.5 million settlement in March for the family of a woman killed in a head-on accident in Brazoria County, Texas. Mr. Zehl was assisted by Matt Martin and Eric Allen of his firm, Zehl and Associates of Houston, Texas.

On July 20, 2017, Christina Burley, 24, a homemaker, was driving a compact car south on County Road 2611, a two-lane road in Brazoria County. Her husband, James Ray Burley, 47, a trucker, was a passenger. Larry Wayne Sassin was traveling north in a large pickup truck. Traffic ahead of Sassin slowed, and Sassin swerved left. He and the Burleys collided head-on at about 65 mph. Mr. Burley sustained severe injuries to his head, colon, leg and other areas of his body. Ms. Burley’s injuries were fatal. 

Mr. and Mrs. Burley were taken by Life-Flight to the hospital. Mrs. Burley was pronounced dead on arrival, about an hour after the accident. She was survived by her husband and her mother, plaintiff Alberta Roberts. Mr. Burley was in a coma for about seven days and was in the hospital from July 20 to Aug. 30. He sustained about 23 broken bones and a colon injury, which required a colostomy. He also claimed a moderate traumatic brain injury. His head injuries included a subarachnoid hemorrhage, left cervical ICA (internal carotid artery) injury, left orbital floor fracture, Le Fort I fracture, Le Fort II fracture, mandibular fracture, maxillary sinus fracture and chin lacerations.

Injuries to the rest of his body included a right clavicle fracture, right scapula fracture, sternum fracture, fractures of ribs 2 through 8, left pneumothorax, pulmonary contusions, spinal fractures, multiple small-bowel avulsions, traumatic hernia, multiple mesenteric hematomas, aortic dissection, severed sigmoid colon, complex comminuted and displaced open left femur fracture, comminuted fractures of the left third and fourth metatarsals and left cuboid fracture.

Mr. Burley had numerous surgeries within days of the accident. On the date of the accident, his surgeries included exploratory laparotomy and resection of devascularized segments of the small intestine and colon. Surgeries the next day included irrigation and debridement of the clavicle and femur fractures, left knee arthrotomy, exploratory laparotomy, creation of colostomy and creation of small bowel anastomoses. His surgery on July 24 included open reduction and internal fixation of the clavicle fracture, and his surgery on July 27 included open reduction and internal fixation of the femur fracture. On July 28, a feeding tube and thoracostomy tube were placed by doctors. He also underwent open reduction and internal fixation of the left first, second and third tarsometatarsal joints and percutaneous pin fixation of the left fourth and fifth tarsometatarsal joints. The colostomy was reversed on March 5, 2018.

At the time of settlement, Mr. Burley claimed ongoing pain in his back, neck, and both knees and an inability to walk without a cane or walker. He also required assistance getting in and out of the bath and shower. He also claimed impairment of short-term memory, executive functioning and inability to work as a truck driver or most anything else, and speech impairment.

Mr. Burley also claimed depression and regular emotional outbreaks over the loss of his wife and the profound changes in his physical abilities and overall quality of life.
He moved in with his brother, who was still caring for him when the case resolved. Mr. Burley claimed that he would be hiring a home health aide soon to supervise and care for him 24 hours a day.

His paid or incurred medical bills were $1,123,000, and he claimed a life care plan of $6.1 million. His lost earnings and lost earning capacity were still undetermined when the case was resolved.

Mr. Burley and Ms. Burley’s estate sued Sassin and Sassin’s employer, Johnson Supply and Equipment Corp. The lawsuit alleged that Sassin was negligent in the operation of his vehicle, that Johnson Supply was vicariously liable for his actions on a theory of respondeat superior, and that Johnson was negligent and grossly negligent in its hiring, training, retention and supervision of Sassin. 

The plaintiffs alleged that (1) Sassin was not paying attention and, as a result, did not notice that traffic ahead had slowed until it was too late, (2) that Sassin should have swerved into a grassy field to the right of the roadway, rather than left into oncoming traffic, (3) that Sassin, who was a counter salesman, had never received any training and had no experience driving company vehicles and, therefore, should not have been permitted to drive Johnson Supply’s delivery trucks.

The defendants generally denied the allegations. The case settled for $23.5 million before any expert depositions and before any experts had been designated by the defense.

 

 

NTL members James Power and Sean Houlihan recover $8.1M & $400K after fatal demolition accident

In late March, a pair of National Trial Lawyers members dispersed two separate settlements arising from a single workplace incident to clients of Power Rogers & Smith, L.L.P. The settlements stem from a workplace incident at a demolition site in 2013 in which two workers were injured by falling concrete, and totaled $8.1 million, and $400,000, respectively.

The underlying incident for the lawsuits, which court records indicate were consolidated before a single Judge in Cook County Circuit Court (O’Reilly v. Deerfield Construction Co., et al.), occurred on December 26, 2013, when two men had been removing a portion of exterior wall for a new restaurant at what was then the Westfield Hawthorn Mall in Vernon Hills.

While performing their job, pieces of concrete from the roof fell onto the workers. One of the men was struck and fatally injured by the falling debris. The other worker suffered several injuries, including a head injury, bursitis of the right elbow, and tricep tendon tear.

In the lawsuit, Power Rogers & Smith attorneys claimed several parties involved in the project were negligent, including the general contractor (Deerfield), Westfield and Westfield Property Management, the project owner (Brinker Restaurant Corp.), and the demolition subcontractor. The attorneys worked closely with a real estate and shopping center expert to determine the scope of industry standards and practice relating to the defendants’ project and responsibilities during development and construction.

Attorney James A. Power Jr. said the incident could have been prevented had the defendants completed an OSHA and project manual-mandated engineering survey before work was performed on the building.

In their defense, defendants argued a pre-demolition inspection was performed prior to the work, and that it was sufficient.

Ultimately, Attorneys James A. Power Jr., National Trial Lawyers member Sean M. Houlihan, and National Trial Lawyers member James I. Power were able to secure two significant settlements on behalf of their clients:

  • An $8.1 million wrongful death settlement for the estate and family of the 25-year-old man tragically killed in the incident; and
  • $400,000 settlement on behalf of the second worker who suffered multiple injuries.

The claims, settled in February and finalized in March, are a reminder of the dangers workers face on demolition and construction sites, as well as the need for employers, property owners, and those working on such projects to take the necessary steps to protect them from preventable harm. Commenting on the resolution, Attorney Power said:

“We are satisfied to have negotiated these settlements for our clients, and to send a message that worker safety should always be a priority. You never think about the dangers your children are exposed to when they do this type of work.”

The case, 14 L 9677 consolidated with 14 L 9692, was filed in the Circuit Court of Cook County, Illinois County Department.

NTL member Timothy McMahon settles child death case for $9.5M

legal news for consumersNational Trial Lawyers member Timothy McMahon, along with Mark Sigala and Ben Stoddard of Corsiglia McMahon & Allard, LLP in San Jose, settled a child death case in California for $9.5 million in January 2019. In June of 2016, Plaintiffs Suhas Kulkarni and Chaitali Prabhune moved with their seven-year-old daughter and 18-month-old son Krish to the Water’s Edge Apartment Complex in Foster City, CA. They traveled from the east coast while in the United States on a work visa from India.  They relocated to California because Mr. Kulkarni accepted a position as a senior engineer for Oracle in May 2016.  Their unit was on the third-floor at the end of a common enclosed hallway.  At each end of the hallway were floor-to-ceiling windows with no sill that opened from the bottom. The Kulkarnis had never seen the windows opened. The hallway window was only a few feet from the front door of the Kulkarni’s apartment.During the first few weeks of living at Water’s Edge, their toddler Krish watched a garbage truck picking up trash at the property every week.  He was fascinated by the large trucks and liked to look out the Kulkarni’s apartment patio windows to watch the men work.

On August 11, 2016, just two months after moving into the complex, Krish pointed at the apartment door indicating that he wanted to go outside to look out of the hallway window because he thought a garbage truck was driving by. As noted above, the hallway windows were low-sill, making it easy for young Krish to see outside.  His mother, Chaitali, opened the door to show Krish that there were no garbage trucks that day.  As soon as she opened the door, Krish ran towards the hallway window with his hands outstretched. Unbeknownst to Krish’s mother,  the window was wide open, with only a bug screen separating the interior hallway from the outside.  His mother had no time to react.  As soon as he reached the window, he put his hands against the screen.  It popped out, and Krish fell three stories to the concrete walkway below.  His mother saw the entire tragedy unfold before her eyes. Video footage from emergency first responders who arrived minutes after the fall depicts the inconsolable mother holding onto her baby, crying and pleading for his life.  He was pronounced dead later that evening at a local children’s hospital. The family returned to India a few weeks following his death.

Through extensive written discovery and depositions, plaintiffs’ counsel discovered that the building was originally constructed as an adult-only complex in the 1970s. The apartment complex was not designed for families with children. Sobrato had purchased the complex decades later and commissioned RSS Architecture to design a complete façade remodel of the apartment buildings in 2014-2015.  The design that RSS came up with called for removal of old aluminum low-sill windows in the hallways and replacement with a new set of low-sill windows that also open from the bottom upwards. RSS Architecture and Sobrato hired BKB Construction to complete the remodel.  To remedy the fact that the large low sill windows open from the bottom up, the defendants installed “window safety locks” that functionally limited how far the windows could be opened.  When operated properly, the windows could only be opened three inches.  However, the window lock devices were easily overridden by simply pushing down a tab and lifting the windows up further.  In fact, this feature was designed into the lock mechanics so that if desired, the windows could be opened fully.  On the day of Krish’s death, another tenant had apparently overridden the window safety locks and left the window wide open.  Before that day, the Kulkarni family had never seen the windows opened and had no reason to suspect the windows were dangerous.

Through deposition testimony offered by Woodmont Real Estate’s head of building maintenance, plaintiffs’ counsel established that the property management company knew for months leading up to the death of Krish Kulkarni that tenants of Water’s Edge apartments were regularly overriding the safety locks and leaving the windows wide open in common area hallways due to poor ventilation, trash chutes that were full and backed up, and high temperatures during the summer months.  The open windows exposed young children and pets to the risk of falling from the windows, and Woodmont admitted that it was aware of the danger.  From time to time, they would close the windows if they happened to see them opened beyond the window safety lock’s limit, but did not instruct tenants to stop overriding the window locks. In fact, a Woodmont employee was walking the property the morning of the fall and was looking for open hallway windows to close. Unfortunately, that employee was just minutes late.

Following Krish Kulkarni’s death, the building owners removed the ineffective window locks and replaced them with permanent window locks that could not be opened beyond three inches under any circumstances. Plaintiffs contended that these new permanent window locks were the only safe and reasonable window locks to be used on these windows to prevent death and injury to children.Plaintiffs alleged that RSS Architecture was negligent in selecting replacement windows to have a low-sill that opened from the bottom up, and did not include permanent window limiters. Plaintiffs also alleged that fixed bottom high sill windows could have been used so that window locks would not be necessary.  Plaintiffs alleged that BKB Construction was negligent in installing the windows with that configuration, knowing that safe window design calls for higher sills or increased protection from falls. Throughout litigation these defendants asserted the affirmative defense of “completed and accepted doctrine,” disclaiming any and all liability because the building owner had inspected and accepted their work after completion and was aware of the danger posed to children.  Ultimately the architect and contractor agreed to mediation and settlement before the completed and accepted doctrine defense was tested before the court.Plaintiffs alleged that Woodmont, as the property manager, and Sobrato as the owner were liable for Krish’s death because they were aware of the danger of open windows and were aware that tenants were overriding the window safety locks, but admitted that they did nothing to address the problem beyond closing the windows because they didn’t consider it a “hot button” safety issue. 

Attorneys for the plaintiffs reached a $9,475,000 mediated settlement with Arnold Levinson at ADR Services. The Sobrato Organization, LLC and SI XVII, LLC, the property owner defendants, agreed to pay a total of $4,000,000. Woodmont Real Estate Services, the property manager, agreed to pay a total of $4,000,000.BKB Construction LP and BKB Construction Management LLC, the contractor defendants, agreed to pay a total of $1,000,000. (Underlying policy limits)RSS Architecture Inc agreed to pay a total of $475,000, on a $1,000,000 professional liability policy with declining limits.  In a highly unusual concession at mediation, the Sobrato and Woodmont defendants also agreed to six specific non-monetary terms at the request of the Kulkarni family that relate to tenant safety, window disclosures, warnings,  and prevention of future window fall tragedies.

Podcast: Inside the post-settlement process

legal news for consumersAfter a settlement has been reached and signed, another process begins for injury victims. The post-settlement process can be complex, especially when it comes to providing medical care for accident victims. One of the keys is finding a reliable team who can make the process seem seamless. In this podcast from the Legal Talk Network, Ringler Radio host Larry Cohen talks to Porter Leslie of Ametros and attorney Paolo Longo, Jr. about how to manage medical expenses in a simpler way.

NTL member settles construction injury case for $1M

National Trial Lawyers member Roger Booth of Booth & Koskoff in Torrence, California has settled a construction injury lawsuit for more than $1 million over a worker left paralyzed when he fell off a roof after tripping on a protruding nail.

On October 3, 2013, plaintiff was working as a roofer on a residential construction site when he tripped and fell off the roof, suffering a catastrophic spinal cord injury. In January 2015, plaintiff sued Mora Construction, the framing subcontractor, and Eldorado Construction, the general contractor.

Plaintiff’s Contentions: 

Plaintiff alleged that his injuries occurred because he tripped on a nail which had been left sticking up on the roof by defendant Mora Construction. According to plaintiff, Mora utilized “cleats” to install the plywood on the roof, which is a method where nails are partially driven into the roof in order to hold plywood in place while it is cut. Plaintiff alleged that Mora Construction had negligently left one of these nails protruding from the roof when it completed its work. Plaintiff also alleged that defendant Eldorado Construction had been negligent because, as general contractor, it had exercised and maintained control of the safety conditions on the construction site, but had nonetheless failed to ensure safe working conditions.

Defendants’ Contentions: 

Both defendants denied all liability for plaintiff’s injury. Defendant Eldorado Construction claimed to have no knowledge as to how plaintiff’s fall occurred, but argued that, as the general contractor, it had no liability for plaintiff’s injuries under the Privette line of cases.

Defendant Mora Construction claimed that plaintiff’s fall was caused purely by his own negligence, and the negligence of his employer. Mora Construction denied leaving any nails protruding from the roof, claiming that it never utilized “cleats” when installing plywood on roofs. A city inspector had examined the roof after Mora Construction completed its work and had approved it. Additionally, Mora claimed that one of its employees had witnessed plaintiff’s fall, and that he had not tripped on a nail at all, but rather had slipped on roofing paper while walking backwards. Mora also argued that regardless of what had caused plaintiff to fall, plaintiff and his employer were primarily responsible for plaintiff’s injuries because plaintiff had failed to secure himself to the roof with a harness, as was required by plaintiff’s employer’s own rules.

Dispute Regarding Applicable Insurance: 

Early in the litigation, Defendant Eldorado Construction revealed that it had no applicable insurance coverage. Defendant Mora Construction initially did not file an answer and ignored plaintiff’s counsel’s attempts to contact him. After plaintiff initiated default proceedings, defendant Mora finally filed an answer, but then failed to respond to written discovery requests and ignored plaintiff’s counsel’s requests for information about insurance coverage.

Eventually, Mora’s attorney- who had not been hired by an insurance company but by Mr. Mora himself – provided plaintiff with two insurance certificates, neither of which covered the date of plaintiff’s injury. However, upon subpoenaing Mora’s insurance broker directly, plaintiff’s counsel learned that there was a $1,000,000 liability policy that covered the date of plaintiff’s injury. Plaintiff’s counsel then tendered the claim to the carrier, more than three years after plaintiff sustained his injuries. The insurance carrier hired a coverage lawyer and initially took the position that, even though the declarations page of its policy listed policy limits of

$1,000,000, there was a “sub-limit” in the policy that limited coverage for construction accidents to $10,000.

Settlement Negotiations: 

On May 11, 2017, plaintiff served a CCP 998 offer to compromise on defendant Mora Construction for the $1,000,000 policy limit. Plaintiff served a subsequent 998 on November 2, 2017, after having resolved the workers’ comp lien.

Result:

The parties agreed to settle the lawsuit for $1,010,000, with defendant Mora Construction paying its $1,000,000 policy limit and Defendant Eldorado Construction paying $10,000 out of pocket. Additionally, plaintiff negotiated a deal with the workers’ comp carrier, which had asserted a lien of over $1,500,000, to settle the lien for $200,000, including a waiver of any right to a credit against future workers’ comp benefits.

Case Name/Number: 

Florentino Carrera v. Eldorado Construction, Mora Construction, et al. Los Angeles County Superior Court no. BC 569493

Attorneys:

Plaintiff – Roger Booth, Carly Sanchez, Andrew Pruitt (Booth & Koskoff) Defendant Eldorado Construction – Wayne Leech (Leech & Associates) Defendant Mora Construction- Paul Jacobs (Jacobs & Dodds)

NTL president says Remington bankruptcy could put settlement at risk

Gun maker Remington is expected to file for bankruptcy, a move that threatens a landmark class action settlement, according to The National Trial Lawyers President Mark Lanier. CNBC quotes Lanier as saying “If they file for bankruptcy, it will stay all proceedings.” Lanier was a lead attorney for plaintiffs who said Remington’s Model 700 and several similar models could fire without the trigger being pulled because of a design defect. Lanier also told CNBC that he’s concerned that none of the weapons will be retrofitted with a fix.