Disabled car was struck by sweeper, man suffered TBI – $5,070,280 settlement

On Sunday, Jan. 15, 2017, the plaintiff was driving to work in his father’s SUV in the right southbound lane of the James River Bridge. The vehicle suffered a mechanical breakdown a short distance inside of the county line of Isle of Wight County, but still on the James River Bridge.

Approximately 10 minutes later, an employee of Crittenden Services Inc., or CSI, was operating a commercial sweeper truck south on the bridge. The sweeper truck was not being used to clean the bridge.  Instead, CSI’s employee was simply returning the truck to CSI’s facility after having performed work at various sites on the Virginia Peninsula. According to the employee, prior to the collision, he was not paying attention and was focused on traffic on the northbound span of the bridge. As a result, CSI’s employee drove the sweeper truck into the rear of the plaintiff’s disabled vehicle. The plaintiff was standing in front of his disabled vehicle. When the collision occurred, the impact propelled the plaintiff’s vehicle into him, throwing the plaintiff approximately 67 feet from the point of impact.

EMTs were summoned to the scene. The plaintiff actually coded on the bridge. The EMTs were able to revive him and transport him to Riverside Regional Medical Center. Believing that a fatality would ensue, the Virginia State Police deployed a crash team to investigate the collision. That team well-documented the collision site and confirmed that visibility that morning was 10 miles.

The defendants initially raised the defense of contributory negligence, taking the position that the plaintiff had failed to engage his emergency flashers. This matter had not been covered in the State Police Crash Team Report. Plaintiff’s counsel engaged an investigator to investigate the matter. The initial investigation came back inconclusive on whether the emergency flashers were on. At that point plaintiff’s counsel issued a FOIA request for all available radio and telephone traffic for all emergency responders. It was through this information that plaintiff’s law firm learned that the bridge operator had actually observed the sequence of events. The follow-up investigation revealed that the bridge operator had seen the plaintiff’s vehicle disabled on the bridge with his emergency flashers on. The bridge operator actually closed the right lane of the bridge. The bridge operator’s notes revealed that 10 minutes later, three vehicles continued to travel in the right lane (which had been closed to traffic). As the three vehicles approached the plaintiff’s disabled vehicle, two vehicles changed from the right to the left lane. The third vehicle, being the sweeper truck, struck the plaintiff’s vehicle.

The plaintiff’s case was filed in Hampton Circuit Court. Shortly after the plaintiff prevailed on a motion to transfer venue, the parties agreed to mediation before retired Judge Thomas S. Shadrick. The case was complicated by a significant ERISA lien. Plaintiff’s counsel retained the services of Dave Place of The Place Firm to negotiate a substantial reduction of the ERISA lien.

Throughout the life of the claim, plaintiff’s counsel worked with various healthcare providers in Atlanta and Florida making sure that the plaintiff continued to receive the highest level of care for his traumatic brain injury. This involved appealing at one point a determination by the medical insurance administrator that no further specialized services were needed. This decision was ultimately reversed, but in the interim, plaintiff’s counsel  were able to work out an agreement with the healthcare provider so that the plaintiff would remain in that specialized facility. Plaintiff’s counsel further worked out similar arrangements once the plaintiff’s medical coverage expired under COBRA. As a result, the plaintiff was able to receive treatment for approximately two  years post-collision.

The case resolved at mediation for the sum of $5,070,280.00. Of the settlement amount, the insurance carrier tendered the remaining limits of its policy in the amount of $4,995,280.00. In addition, CSI contributed $75,000.00. The early resolution of the case was advantageous to all parties. From the plaintiff’s standpoint, significant expert witness fees were avoided, and an appropriate special needs trust was established and funded in an orderly fashion. From CSI’s standpoint, resolution of the claim allowed the company, which had been operated for decades by a husband and wife, to continue its business.

[19-T-164]

Type of action: Personal injury

Injuries alleged: Severe traumatic brain injury; Anterior skull base fractures; Facial fractures including the left mandible, ramus, medial and lateral pterygoid plate, left zygomatic arch, left maxillary sinus, and frontal bone (with orbital rim involvement); Bilateral pulmonary contusions and edema; Seven- centimeter laceration to left cheek; Laceration of lip on the left; Cervical strain/sprain with muscle spasms and straightening of normal cervical lordosis; and Numerous bruises and abrasions.

Name of case: Daryl Wilson, Conservator of Darrell J. Hatchett, an Incapacitated Person, v. Stephen A. Ricks, Jr. and Crittenden Services, Inc., a Virginia Corporation

Court: Hampton Circuit Court

Case no.: CL18-693

Tried before: Mediation

Name of mediator: Hon. Thomas S. Shadrick (Ret.)

Date resolved: July 16, 2019

Special damages: Past medical bills: $1,691,314.82. Future medicals: The preliminary life care plan ranged between $4,294.138.53 and $8,621,578.53, depending on the plaintiff’s living arrangements. Lost earnings and loss of earning capacity: Never quantified due to case resolving at early stage of litigation.

Verdict or settlement: Settlement

Amount: $5,070,280

Attorneys for plaintiff: Leonard C. Heath Jr., Shawn W. Overbey, Joseph F. Verser and J. Harrison Powell, II, Newport News. The legal intern who determined that the bridge operator observed the collision was Jordan C. Heath, now an attorney with the firm.

Plaintiff’s experts: Sharon Reavis, life care planner; Dave Place, The Place Firm, lien reduction; Shannon Laymon-Pecoraro, the Hook Law Center, special needs trust & Medicare set-aside; George M. Lear, Ed.D., industrial engineer

Insurance carrier: Penn National Insurance Company