Insurance coverage keys settlement in death case – $2,662,654 Settlement

On Dec. 4, 2005, plaintiff’s decedent, a 73-year-old retired woman, was a passenger in a Chevrolet automobile hauling a camper headed northbound on Interstate 81 near Roanoke, en route to New York. A Freightliner tractor, operated by the defendant and owned by his employer, was pulling a flatbed trailer leased by Duckett Truck Leasing. The truck was traveling at an excessive speed when it struck the automobile in the rear.

Decedent sustained multiple injuries, including spinal cord injuries at C2-3-4-5 levels which rendered her a quadriplegic. She spent many months in the hospital and in a nursing home battling decubitus ulcers, chronic respiratory failure, upper respiratory tract infections and urinary tract infections before succumbing to pneumonia. She was widowed and left two adult children.

The focus of the case was to find more insurance coverage than the total of $989,000 available to the impecunious Mom & Pop defendant trucking company. Notwithstanding initial denials, plaintiff’s counsel determined that there was garage policy coverage, in the amount of $500,000, on the leased trailer that was available to the truck driver as a permissive user.

Counsel also pursued a $5,000,000 excess policy, the existence of which was denied until the morning of deposition of the corporate representative for the trailer leasing company in Arkansas. It turned out that this policy had an exclusion that was effective as to the claim. Counsel also investigated and determined that there was no liability as to the broker of the load being carried by the trucker.

The decedent had $1,200,000 of UIM coverage (with intrapolicy vehicle stacking) under a policy issued under Pennsylvania law, as to which there was no setoff as to the liability coverages. The decedent also had personal injury protection medical benefits in the amount of $1,000,000 under the same Pennsylvania policy, which paid all of her medical bills. The PIP benefits eliminated the question of any Medicare lien and had no offsetting effects as to the UIM coverage. As a result, the two adult beneficiaries received a substantial net from the settlement to divide between them.

Type of action: Wrongful death
Injuries alleged: Temporal basilar skull fracture; fracture of the interior left orbital rim and wall of left maxillary sinus, facial bone fractures, spinal cord injury at C2-3-4-5 levels rendering plaintiff’s decedent a quadriplegic
Name of case: Stephen T. Harper, administrator to the estate of Joan Ostermann V. Albert Heflin, Duckett Truck Center Inc., et al.
Court: Roanoke County Circuit Court
Name of judge: Robert P. Doherty Jr.
Special damages: Medicals – $1,725,713; funeral expenses – $9,665
Verdict or Settlement: Settlement
Amount: $2,662,654
Date: June 30, 2009
Highest offer: All available liability and uninsured motorist coverage
Experts: Treating physicians: Dr. John Fraser, neurosurgeon, Roanoke; Dr. Lawrence Robinson, neurologist, New York
Insurance carriers: Great West Casualty Insurance Company; Harco Insurance Company; Westfield Insurance Company (plaintiff’s uninsured motorist carrier)
Plaintiff’s attorney: George E. Allen III, Richmond