Truck ran red light, resulting in rear-ender, death of child - Settled for $1.03 Million
Truck ran red light, resulting in rear-ender, death of childSETTLEMENT $1,030,000
CASE Gabriel Flores v. Michael Mullen,
Restoration Training & Technology, Inc.,
No.04CC10247
COURT Superior Court of Orange County,
Orange, CA
JUDGE David A. Thompson
DATE 9/29/2005
PLAINTIFF ATTORNEY(S) Shawn Nelson (lead), Rizio & Nelson, Santa Ana, CA (Estate of Alexandra Flores, Gabriel Flores) Gregory G. Rizio, Rizio & Nelson,Santa Ana, CA (Gabriel Flores) Eric Ryanen, Rizio & Nelson,Santa Ana, CA (Gabriel Flores) .
DEFENSE ATTORNEY(S) Paul E. Groff. Law Office of Paul E. Groff,
Long Beach, CA
FACTS & ALLEGATIONS
On Sept. 21, 2004, plaintiff's decedent Alexandra Flores, age 4, was in a car that was rear-ended by a truck driven by Michael Mullen while in the course and scope of employment for Restoration Training & Technology, an equipment leasing company in Chino. The accident was at the intersection of Pacific Park and Wood Canyon Drive in Aliso Viejo. Alexandra was killed instantly. On behalf of his daughter's estate, Gabriel Flores sued Mullen and Restoration Training for negligent operation of a motorvehicle, seeking wrongful-death damages. Flores' counsel contended that Mullen ran a red light.
Liability was not disputed.
INJURIES/DAMAGE death
The impact between the vehicles resulted in Alexandra receiving head-crush injuries, and she was killed instantly. Plaintiff's counsel noted that she was sitting in the back seat and was properly buckled into a child seat. Mr. Flores, 35-yearold single father said she was his only child. Plaintiff's counsel sought both defendants' policy limits.
RESULT The parties settled for a sum of $1.03 million.
Restoration paid its $1 million policy, and Mullen paid his $30,000 policy.
INSURER(S) Firemen's Fund for Restoration Training &Technology
Coast Insurance for Michael Mullen
Woman Claims Distracted Driver Ran Red Light - Settled for $615,000
Woman claimed distracted driver ran red light
SETTLEMENT $615,000
CASE Robbie Ann Oliviera v. Terry Pedicone; Mary Pedicone; Scott Swanson; and Orange County Patio, Inc., No. 03CC05406
COURT Superior Court of Orange Country, Santa Ana, CA
JUDGE David R. Chaffee
DATE 4/2/2004
PLAINTIFF ATTORNEY Shawn Nelson, Rizio & Nelson, Santa Ana, CA
DEFENSE ATTORNEYS Ted D. Lee, Darlington, Robertson & Lee, Santa Ana, CA (Orange County Patio Inc.)
Kerry Sorensen, Gilbert & Kelly, Orange, CA (Mary Pedicone, Scott Swanson, Terry Pedicone)
FACTS & ALLEGATIONS
On July 9, 2002, plaintiff Robbie Ann Oliviera, 40, a cusromer service representative, was driving her Mazda south on Towne Centre Drive in Lake Forest when her vehicle was struck by a 1990 Honda Civic travelling east on Lake Forest Drive. The Honda was being driven by Scott Swanson, who was in the course and scope of his employment with Orange County Patio Inc. Swanson had borrowed the vehicle from Mary and Terry Pedicone. The collision caused moderate damage to both vehicles.
Oliviera sued Swanson, alleging negligence; Orange County Patio Inc., Anaheim, based upon an agency theory of respondent superior; and the Pedicones, alleging negligent entrustment. Oliviera contended that Swanson was distracted by reading a map and entered the intersection on a red light. Swanson 'initially denied that he was in the course and scope of his employment with Orange County Patio at the time of the accident; however, he later admitted it at his deposition. The Pedicones did. nor dispute Oliviera’s contentions; however, they wanted the Orange County Patio policy to cover the loss. Orange County Patio disputed that its general liability policy covered the vehicle driven by Swanson, and did not admit coverage at any rime during litigation.
INJURES/DAMAGES
carpa tunnel syndrome;herniated disc at L5-SJ
Oliviera claimed that as a result of the accident, she suffered a 3-mm central disc protrusion at L5.1 and carpal runnel in both wrists. She treated with physical therapy for three months, but claimed that the pain did not lessen. Oliviera was then scheduled for a three-level spinal fusion that was expanded to four levels during the surgery. Oliviera's symptoms continued post-operatively, and it was determined that the hardware placed during surgery failed. She .then
underwent a second spinal surgery to repair the failed four-level fusion. She later underwent surgery to both wrists to treat her carpel runnel syndrome. Oliviera claimed that as a result of the injuries, she was declared permanently disabled by the Social Security Administration. She claimed $271,949 in past medical expenses and $1.3 million (present value) for future loss of earnings.
RESULT
On the evening before trial, the case was settled for $615,000 (policy limits for all defendants). Orange County Patio will pay $500,000; the Pedicone’s will pay $ 100,000; and Swanson will pay $15,000.
DEMAND
Policy limits to all defendants
OFFER
None responded
INSURER(S)
Auto Club for the Pedicone’s Insurance Co. of New York for Orange County Patio
Allstate for Swanson
PLAINTIFF EXPERTS
Peter Formuzis, economics, Santa Ana, CA
Michael H. Sukoff, M.D., neurosurgery,Tustin, CA
DEFENSE EXPERT
Alan M. Strizak, M.D., orrhopedic surgery, Laguna Niguel, CA
Manger of Hobby Store Killed - Settled for $1.1 million
Manager of hobby store killed while trying to close mechanical gate
SETTLEMENT $1,100,000
CASE
Joyce Jones, Kelli Jones & Kelli Goldner v. The DePietro Corporation, Frank DePietro & Sons, Fulmer Construction & All Cities Fence & Construction, No. BC 318466
COURT Superior Court of Los Angeles Country, CA
JUDGE Andria Richie
DATE 9/2/2005
PlAINTIFF ATIORNEYS Gregory G. Rizio (lead), Rizio& Nelson, Santa Ana, CA
R. Shawn Nelson, Rizio & Nelson,Santa Ana, CA
DEFENSE ATTORNEY(S) Diane M. Coe (lead), Jackson & Wallace LLP, Sherman Oaks, CA (Frank DePietro & Sons Inc.)
Christopher D. Lockwood, Arias, Aaen,San Bernardino, CA (The DePietro Corp.)
Edward F. Morrison, Jr., Lewis,Brisbois, Bisgaard& Smith LLP,Los Angeles, CA (Fullmer Construction)
James OdIum, Mundell, OdIum & Haws, San Bernadino, CA (for Horizon Hobby)
Jack R. Reinholtz, Prindle, Decker & Amaro (for All Cities), Long Beach, CA (The DePietro Corp.)
Jason T. Yu, Jackson & Wallace LLP, Sherman Oaks, CA (Frank DePietro & Sons Inc.)
FACTS & ALLEGATIONS
On March 19, 2004, plaintiff decedent Kevin Jones, 56, a night shift manager at Horizc Hobby, was finishing his shift. This included manually closing rolling security gate, the design of which was known as a "pigg back" or "telescoping" gate. When pushed, the leading gate would roll down a V-shaped track. Halfway down, the leader leaf of the gate's rectangular metal frame piece, which was welded to the gate, was supposed to catch the trailing portion the gate's rectangular metal frame catcher, which was all welded to the gate. When the two small welded catcher pieces made contact, they would travel together along the track until the gate was completely closed.
On this night, however. the leading leaf's front wheel came off the track So the two catcher pieces did not engage. When the leading leaf rolled clear of the trailing leaf, the former, losing, support of the lateral gate leaf, derailed, falling directly on Jones, who was crushed under the weight of the 500-pouI leading leaf. He died at the scene. Jones' estate; his wife, Joyce; and his daughters sued the designer, manufacturer and installer of the gate, Ontario based All Cities Fence & Construction Co. Inc.; the general contractor, Ontario-based Fullmer Construction; proper owner The DePietro Corp.; and property manager Frank DePietro & Sons, for wrongful death damages based on streict products liability and general negligence theories. (DePietro Corp. cross-claimed against Jones' employer, Horizon Hobby but never served it, and the company was dismissed from the Suit under California's exclusive remedy law) against All Cities and Fullmer. the plaintiffs alleged strict products liability (design, manufacturing and marketing defect.
The plaintiffs claimed that the gate without an architect approval and that it should have catchers at the top -a simple inexpensive and failsafe solution. The plaintiffs alleged that the defendants began using this design after the instant fatality. The plaintiffs also alleged that a gate this large and heavy should have been designed to open and close mechanically rather than manually. The plaintiffs alleged that the defendants had installed
several other piggy-back style gates that closed mechanically.
As for manufacturing defect, the plaintiffs contended that the leaf wheels had been installed misaligned, substantially increasing the likelihood of derailment. On the marketing defect claim, the plaintiffs argued that Fullmer and All Cities failed to provide any warning as to the possibility of gate derailment, especially given that it was clear
that a derailment coupled with the weight of the gate would result in a catastrophic injury or death for the person pulling it closed.
The negligence claim against all defendants. The argument as to All Cities and Fullmer covered the same ground as the products liability claims. As to the DePietro defendants, the plaintiffs argued failure to inspect the property and failure to
warn against dangerous conditions. Fullmer contended that the design and installation of the gate were well within industry standards. Its counsel argued that the company was not responsible under a strict products liability theory because it was not a manufacturer of a mass produced product, or for failure to warn, because the alleged defect was patent, i.e., open and obvious, rather than latent and second.
All four defendants argued that the decedent's employer, Horizon Hobby, was negligent to a significant degree, based upon its knowledge of past problems with the gate. They alleged that, although it knew of the danger, it never contacted any of the defendants to have the gate track repaired. They claimed that the Jones himself once declared, "I'll be damned if I let that gate kill one of my guys."
INJURIES/DAMAGES asphyxia: death
Jones was crushed and the compressional asphyxiation killed him. His wife and their daughters, Kelcey Jones and Kelli Goldner, sought $228,000 for loss of income (based on the decedent's annual income of $39,000 and a retirement age of 67), $2,110,000 for loss of household assistance and consortium, and an unspecified amount for loss of comfort and society. Jones' widow claimed she suffered emotional distress from the loss of her husband of nearly 38 years, who had been her high school sweetheart. She was prescribed anti-depressants. Kelcey Jones claimed she was partially dependent on her parents economically and sought $100 to $150 per month for loss of support. Although she did not specify for how long she was seeking this monthly amount. The defendant disputed the amount of damages sought, arguing that the annual income figure upon which the widow's claim for loss of support was based should nor include the decedent's quarterly discretionary bonus, as there was no guarantee that he would have continued to receive the bonuses. Accordingly, the defendants claimed the total loss of income should be $185,000. The defendants also argued that a portion of the loss of services claim was not supported by the facts and their economist valued the claim at about $125,000.
RESULT
The plaintiffs settled with all defendants for $1.1 million. All Cities paid $1.03 million, slightly over its policy limit. Fullmer paid $30,000. The DePietro defendants paid $40,000, including $17,500 from DiPietro & Sons and $22,500.
from DiPietro Corp.
DEMAND $1.2 million
OFFER $750,000
PLAINTIFF EXPERTS
Peter Formuzis, economics, Santa Ana, CA
Jerry H. Hildreth, property management, Tehachapi, CA
Ken Obenski, P.E., mechanical, San Diego. CA
DEFENSE EXPERTS
Joseph W. DeCarlo, property management,Costa Mesa, CA (for All Cities and Fullmer)
Mack A. Quan, mechanical, Los Angeles, CA(Expert for Fulmer Consrruction)
Ken Solomon. civil, Woodland Hills, CA(for All Cities)
Paxton B. Starksen. mechanical, Long Beach, CA (for DePietrn)
Ted Vavoulis, economics. Pasadena. CA
Auto vs. Bus - Head on Collision - Settled for $1 million
PERSONAL INJURY
Auto v Bus
Head-On Collision
SETTLEMENT: $1 million.
COURTIDATE: San BernardinoSuperior I Feb.11, 2002.
ATTORNEYS: Plaintiff - R. Shawn Nelson (Rizio& Nelson,Santa Ana).
DEFENDANT: Harry Carpelan (Brunick,Battersby, McElhaney & Beckett, San Bernardino).
TECHNICAL EXPERTS:
Plaintiff -
Peter Formuzis, economist, Santa Ana;
Brian Hopkins, CPA,Orange;
MichaelBonneau, Cational rehabilitation, GardenGrove.
Defendant-
JubinMerati, Ph.D.economist, Los Angeles
Edward L. Bennett, vocationational rehabilitation, Santa Barbara.
MEDICAL EXPERTS:
Plaintiff-
Michae Kania, psychology,
Redland; David Doty, M.D., orthopedic surgeon,
Colton; James Rho, M.D., pain management, Colton.
Defendant - Gary Pointer, M.D., orthopedic
surgeon, Loma Linda; Craig C. Rath,
psychologist, San Bernardino.
FACTS & CONTENTIONS:
The plaintiff was driving his work Truck during the afternoon of June 23, 2000 up Old Waterman, Canyon Rd. in San Bernardino. The defendant's school bus was being driven down the mountain and crossed the double yellow divider and hit the plaintiff head-on. The plaintiff suffered back and knee pain resulting in
arthroscopic surgery to each knee. The plaintiff was unable to continue' his occupations as a self-employed refrigeration contractor due to his back pain ' and, within one year of the accident, his business closed. The plaintiff contended that the defendant had driven down the mountain in a negligent manner. The defendant admitted liability.
INJURIES:
The plaintiff's wife included her loss of consortium claim in the settlement.
SPECIALS IN EVIDENCE:
MEDS, $55,000; future MEDS $48,000; LOE,$80.000; Future LOE $370,000.
Tractor-trailer struck plaintiff's car stalled on highway
ORANGE COUNTY
MOTOR VEHICLE
Rear-ended -- Tractor-Trailer -- Negligence
Tractor-trailer struck plaintiff's car stalled on highway
SETTLEMENT $1,750,000
CASE Shunichi Nakamura vs Ricardo Aguirre,Martir Estrada & William Espinosa,No. 05CC05448
COURT Superior Court of Orange County,Westminster, CA
JUDGE James D. Cesare
DATE 8/8/2006
PLAINTIFF
ATTORNEY(S) R. Shawn Nelson, Rizio, Nelson & McGuire, Santa Ana, CA
Gregory G. Rizio, Rizio, Nelson & McGuire, Santa Ana, CA
DEFENSE
ATTORNEY(S) James T. Biesty, Biesty,Garretty & Wagner, Los Angeles, CA
FACTS & ALLEGATIONS
On Oct. 27, 2004, at about midnight, plaintiff Shunichi Nakamora, 21, a male Japanese national, was driving his sedan in the number three lane of southbound Interstate 405. It was raining very heavily and the roads were slick and wet. Nakamora's vehicle stalled in the lane and he called 911 for assistance. 911 dispatched a tow truck to the scene.
Meanwhile, Ricardo Aguirre was driving a truck in the number three lane pulling a 48-foot long trailer, hauling a load from Los Angeles to San Diego. Aguirre slammed into the rear of Nakamora's vehicle. Nakamora's vehicle was thrown into the median divider and eventually came to rest with the rear impacting the divider and the front of his vehicle facing traffic. Nakamora sued Aguirre for negligent operation of a motor vehicle and the truck and trailer's owners, Martir Estrada and William Espinosa for vicarious liability. Aguirre testified in his deposition that he saw only Nakamora's vehicle seconds before impact and it wasn't moving.
The defence contended that Nakamora did not have his lights on, or emergency flasher lights on, making Nakamora's vehicle impossible to see. Plaintiff's counsel countered that Nakamora's lights were on. His accident reconstructionist, Paul Guthorn ,performed testing on the lights recovered from the vehicle and confirmed they were on at the time of the collision.
INJURIES/DAMAGES anxiety; convergence insufficiency; cranial nerve palsy; diplopia; eye; neuropsychological deficits
Nakamura was rushed to the UCI Medical Center where he remained in a coma for several days. He slowly regained consciousness and recovered. On Nov. 28, he was admitted directly to a hospital in Japan for further
treatment, and later a rehabilitation facility where he remained until approximately March 2005.
Nakamura suffered a fracture of the left orbital Medial wall; sheer/diffuse axonal brain injury; diplopia; cranial nerve palsy; convergence insufficiency, olfactory and taste dysfunction, central hearing loss; severe cerebellar atrophy; bilateral hippocampal atrophy; mood, anxiety, amnesia and psychotic disorders. A majority of Nakamora's treatment has been in Japan, however, due to laws restricting the release of records, plaintiff's counsel was forced to hire numerous experts' throughout the western United States to evaluate Nakamora's injuries. Nakamora continues to live in Japan under the supervision of his father. He had hoped to pursue a career in cosmetology or the culinary arts, however his severe permanent diplopia (double vision) makes it difficult for him to work in most fields. He is unable to read or work on a computer for any extended period of time, he is not able to drive and often drops things or trips and falls. He currently works as a dishwasher in a Japanese restaurant. Nakamora's injury has significantly impaired his social skills and behaviour, according to his counsel. He often says inappropriate things, or acts in sociailly inappropriate ways, and, other than his family, he remembers very little about his past friendships and relationships. His physicians believe that with further treatment, Nakamora may develop better ways of managing his deficiencies, but his injuries are permanent and not expected to improve. He will likely always require some kind of daily, routine monitoring.
RESULT
The case was settled during mediation for $1,750,000. Of the settlement, $1 million was paid by Estrada's insurance, Sutter Insurance Company, his policy limit. $750,000 was paid by Espinosa's insurance, also Sutter Insurance Company, which totaled the policy's limit.
INSURER(S) Sutter Insurance Company
PLAINTIFF EXPERTS
Paul S. Guthorn, accident reconstruction, Long Beach, CA
James Loong, PhD, neuropsychology, Salt Lake City, UT
David L. McPherson, audiology, (audiologist)
Kenneth L. Nudleman, neurology, Santa Ana, CA
Peter A. Quiros, refractive eye surgery,
Toshiaki Udo, psychology/counselling,Pasadena, CA
Samuel Whitaker, M.D., neurology,Long Beach, CA
Bozena Barbara Wrobel, otolaryngology,Los Angeles, CA (rhinology consultation)
DEFENSE EXPERTS
David J.King, P.E., accident reconstruction, Lake Forest, CA
Martin Levine, M.D., neurology,Encino, CA