Case results
Below are examples of cases in which our attorneys participated as counsel for the Plaintiff. The case reports come from North Carolina Lawyers Weekly. Note: each case is different and the results of these cases cannot be used as a basis for predicting the results in future cases. Each case was handled and resolved on its own merit.
Rural Mail Carrier Injured While Delivering Mail Settles for $5.5 Million
Plaintiff was a rural mail carrier in the process of delivering mail when she was struck from the rear by a tractor-trailer, and was rendered a paraplegic by the accident and also lost sight in her right eye.
Worker Suffers Paralysis and Settles for $4 Million
Plaintiff is an iron worker who suffered paralysis from falling during a demolition project. He settled for $4 million after evidence showed that the general contractor did not provide adequate safety measures.
A Plaintiff Struck By a Commercial Bus Settled Her Claim for $3.5 Million
A plaintiff struck by a commercial bus settled her claim against the defendant for $3.5 million after a post-mediation conference in the defendant’s attorney’s office.
Victim of Serious Bicycle Accident Receives $2.3 Million Settlement
A 35-year-old man sustained traumatic brain injuries after colliding with a car while riding his bicycle. The bicyclist was riding downhill when he was struck by a car that failed to brake for a stop sign and crashed into him.
T-Bone Crash Results in $2 Million Settlement
A 35-year-old woman sustained numerous broken bones and organ damage after her vehicle was t-boned by another driver. The woman obtained a $2 million settlement with the other driver’s insurance.
Moped Operator Recovers $2 Million For Brain Injury
A 45-year-old, was operating a moped before dawn on a four-lane bypass highway when he alleged he was struck from the rear by defendant trucking company driver.
Car Accident Victim Recovers $1.5 Million for Injuries
A 43-year-old man was able to recover damages for the various injuries he sustained from a negligent driver including a broken nose, fractured ankle, and damaged kidney.
Family of Auto Accident Victim Recovers $1.5 Million Settlement
A 44-year-old man was killed in an automobile accident when he was hit head-on by an oncoming van. He subsequently suffered cardiac arrest, leading to his death. His family obtained a $1.5 million settlement.
Georgia Traffic Death Settled in NC for $1.4 Million
A 23-year-old man was killed when the vehicle he was riding in was rear-ended by a tractor trailer. The accident occurred in Georgia but the lawsuit was filed in North Carolina.
Worker Injured in Auto Accident Wins $1.2 Million
The plaintiff was operating a commercial vehicle when the defendant crossed the center line and struck the plaintiff’s vehicle head-on.
Construction Worker Injured and Settles Case for $1.135 million
Ben Whitley’s client, the injured construction worker, suffered a leg injury while inspecting a job site. Attorney Whitley settles the case for 1.135 million dollars after job site contractor’s denied liability.
Pregnant Mom in Wreck Settles for $1.1 Million
The plaintiff, who was approximately three months pregnant at time of the accident, lost her baby and sustained multiple injuries.
Wrongful Death Claim from a Duplex Apartment Fire results in $1 Million Mediation Result
This wrongful death claim resulted from a duplex apartment fire in Raleigh which occurred on Oct. 7, 2005. The basis of the negligence alleged was the failure of the landlord and property manager to have operable smoke detectors pursuant to the city code.
Driver Struck While Moving Company Van Off Highway Recovers $1 Million
A 43-year-old, was operating her company’s van on a four-lane highway during a severe rainstorm.
Mediation for Traumatic Brain Injury Results in $1 Million Settlement
The plaintiff was able to recover a settlement for a thoracic fracture and mild traumatic brain injury suffered due to another’s negligence.
$900,000 Settlement Collected in Wrongful Death Auto Case
The decedent mother was traveling east in her sedan vehicle when the defendant truck driver backed his tractor-trailer onto the same highway from his residential driveway. The decedent and a passenger, her 6-year-old child, were killed in the wreck.
Truck Driver Injured in Collision Receives $650,000 in Mediation
The plaintiff is a 50-year-old truck driver who was involved in a head-on collision with an SUV. The plaintiff took evasive action, and his tractor-trailer turned over.
Woman gets $575,000 Settlement for Injuries in Pre-dawn Wreck
In the early morning before dawn, plaintiff was struck by a bobtail tractor while driving her vehicle on a country road in Columbus County near Whiteville. The operator of the tractor testified at his deposition that he was attempting to do a U-turn when the collision occurred.
Woman receives UIM benefits after workplace wreck
Plaintiff, age 47, was at her place of business when a vehicle ran over the curb and through the front glass window, pinning and crushing her against the wall. She sustained a displaced fracture of her fibula and a fracture of her tibia.
College student stacks divorce parents’ UIM insurance coverage
Plaintiff, a 22-year-old college student at North Carolina State University, sustained serious injuries in a motorcycle accident on Dec. 10, 2009. The at-fault vehicle turned left in front of him as he approached an intersection.
Settlement Reached in Rolling Truck Incident at Softball Field
Plaintiff, while attending a softball game for her 12-year-old daughter at a field in Lenoir County, was struck by a pickup truck parked behind the viewing area after it slowly and silently rolled down an incline and ran over the plaintiff.
Appellate Decisions
TRUHAN v. WALSTON, May 6, 2014
Teague, Campbell, Dennish & Gorham, L.L.P., by Bryan T. Simpson and Natalia K. Isenberg, for Daniel Joseph Truhan, Plaintiff-Appelle and Western Surety Company, Third-Party Defendent-Appellee.
Poyner Spruill L.L.P, by Timothy W. Wilson, for North Carolina Farm Bureau Mutual Insurance Company, Third-Party Defendent-Appellee.
Battle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler, for United Services Automobile Association, Third-Party Defendent-Appellee.
Whitley Law Firm, by Ann C. Ochsner, for Susan P. Walston, Defendent and Third-Party Plaintiff-Appellant.
OVERTON v. EVANS LOGGING, INC., Case No. COA12-761, January 15, 2013
Walter T. Overton and Hattie Overton, Plaintiffs v. EVANS LOGGING, INC., F/K/A, D/B/A, C.B. CARTER AND SONS, INC., EVANS LOGGING, and INTERNATIONAL PAPER COMPANY, Defendants.
Whitley Law Firm, by Robert E. Whitley, Jr. and Ann C. Ochsner, and Golkow Hessel, LLC, by Daniel L. Hessel, for Plaintiff-appellants.
Teague Campbell Dennis & Gorham, LLP, by Bryan T. Simpson and Megan B. Baldwin, for Defendant-appellee.
GRECO v. PENN NATIONAL SECURITY INSURANCE COMPANY, Case No. COA11-483, February 7, 2012
Victoria Klotz GRECO, Plaintiff, v. PENN NATIONAL SECURITY INSURANCE COMPANY, Penn National Holding Corporation, Pennsylvania National Mutual Casualty Insurance Company, Carolina Home Exteriors, L.L.C., and Donald Joseph McKinnon, Defendants.
Case Results (Expanded)
Construction Worker Receives 1.135 million dollar settlement
Type of Action: Negligence
Injuries alleged: Leg Fractures
Name of case: Confidential
Court: Durham County Superior Court
Verdict or settlement: Settlement
Amount: $1,135,000
Date of verdict or settlement: 10/23/2015
Highest Offer: None
Most helpful experts: Benjamin B. Liipfert III, special needs trust administration lawyer (Winston-Salem)
Insurance Carrier: USAA
Attorneys for plaintiff: Noah Abrams of Abrams & Abrams and Ben Whitley of the Whitley Law Firm in Raleigh
Attorney for defendant: Confidential
Were liability and/or damages contested? Yes
Description: Whitley Law Firm represented a construction worker who was injured after falling from a platform as he was inspecting a job site in 2014. According to Attorney Ben Whitley, the firm’s Raleigh personal injury lawyer, the defendant was inspecting a region that required him to lean over on an elevated platform. The guardrail was installed with the wrong sized nails and was constructed with only one board rather than the three that are required by OSHA.
The plaintiff sued several job site contractors who all denied liability and countered the claim with defense of employer negligence and contributory negligence.
Our team was able to settle his claim for $1.135 million. Attorney Ben Whitley stated that the parties were able to reach a settlement three weeks before they were supposed to go to trial.
Rural Mail Carrier Injured While Delivering Mail Settles for $5.5 Million
Case name and number: Withheld
Principal injuries (in order of severity): Paraplegia/blindness
Special damages: Not applicable
Tried or settled: Settled
Court: Lenoir County Superior Court
Date concluded: December 14, 2006
Name of judge: None (mediation)
Amount: $5,500,000
Insurance carrier: Not applicable
Expert witnesses and areas of expertise: J. Finley Lee, Ph.D., economist from Naples, Fla.; Kerry Nelson, heavy vehicle specialist of Scottsdale, Ariz.; Bruce Holt, RN, CCM, CLCP, life care planner of Pisgah Forest, N.C.; and Richard Bonfiglio, MD., psychiatrist of Murrysville, Pa.
Attorneys for plaintiff: W. Thompson Comerford, Jr., and Kevin J. Williams of Comerford & Britt, LLP, of Winston-Salem, N.C., and Robert E. Whitley of Whitley Law Firm, of Kinston, N.C.
Submitted by: W. Thompson Comerford, Jr., plaintiff’s attorney
Description: This is a personal injury case. Plaintiff was a rural mail carrier in the process of delivering mail when she was struck from the rear by a tractor-trailer that was owned by defendant Chestnutt and operated by defendant Becton. Chestnutt had employed defendant Becton, who had a substantial criminal record. Defendant Ezzell Trucking contracted with Chestnutt to provide services to haul wood chips. Chestnutt operated under his own DOT authority pursuant to a “motor carrier agreement” with Ezzell. Ezzell denied responsibility for the accident.
Plaintiff was rendered a paraplegic by the accident and also lost sight in her right eye. Her husband pursued a claim for loss of consortium. They have one adult child. After substantial discovery on agency issues, defendant Ezzell’s motion for summary judgment was denied. The case proceeded to mediation shortly thereafter and was settled for $5.5 million dollars.
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A Plaintiff Struck By a Commercial Bus Settled Her Claim for $3.5 Million
Case name and number: Confidential
Principal injuries (in order of severity): Traumatic brain injury and hip fracture
Special damages: $191,101 (Medical Expenses)
Tried or settled: Settled
Court: Confidential
Date concluded: September 16, 2008
Name of judge: None (mediation)
Amount: $3,500,000
Insurance carrier: Not applicable
Expert witnesses and areas of expertise: Linda Sproat, HealthCare Strategies, Inc.; Dixon Pearsall, Pearsall Vocational Services; Dr. Edwin Cooper, M.D., P.A.; Dr. C. Thomas Gualtieri, N.C. Neuropsychiatry; Dr. Finley Lee; Dr. Edwin Cooper, M.D., P.A., Kinston Orthopedic and Sports Medicine; Dr. Patrick O’Brien, Carolina Rehabilitation & Surgical Associates; Learning Services
Attorneys for plaintiff: Robert E. Whitley of Whitley Law Firm (Kinston)
Submitted by: W. Thompson Comerford, Jr., plaintiff’s attorney
Description: A plaintiff struck by a commercial bus settled her claim against the defendant for $3.5 million after a post-mediation conference in the defendant’s attorney’s office. Kinston attorney Robert E. Whitley represented the plaintiff, a 22-year-old single female who was a passenger in an auto that was struck almost head-on by the commercial bus on Oct. 18, 2006. The plaintiff was transported to the hospital at Chapel Hill. Her most significant injuries were a traumatic brain injury and left-hip fracture.
She was discharged from a rehabilitation center to her home on Nov. 8, 2006, with attendant-care instructions. Because of the rural area in which the plaintiff lived with her family and the lack of nearby resources, the plaintiff was eventually able to obtain a loan on her case so as to allow her admission to Learning Services of Raleigh. At Learning Services, she underwent therapy, rehabilitation, general observation, counseling and treatment for her brain injury. The loan allowed the plaintiff to stay at Learning Services for approximately two months. Her stay contributed, in part, to a significant recovery from her brain injury. At mediation, there was no significant offer made by the defense, and the case was on a trial calendar for Oct. 13, 2008.
As trial depositions were being taken in the weeks and months leading up to the trial date, the defense requested a settlement conference, one-on-one, with the plaintiff’s attorney and the head of the carrier’s claims department. Basically, “old-fashioned” settlement negotiations took place. The plaintiff elected to settle the claim for $3.5 million in part because of the enormous amount of cost that would be incurred in the months leading up to the trial by way of trial and discovery depositions. The plaintiff structured a large portion of the settlement proceeds in an annuity at a cost of $1.5 million, which will pay over her expected life a total of approximately $9 million.
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Victim of Serious Bicycle Accident Receives $2.3 Million Settlement
Type of Action: Negligence
Injuries alleged: Traumatic brain injury
Name of case: Withheld by plaintiff
Court: Forsyth Superior Court
Verdict or settlement: Pre-trial settlement
Amount: $2.3 million
Date of verdict or settlement: 10/14/2011
Highest Offer: None
Most helpful experts: Benjamin B. Liipfert III, special needs trust administration lawyer (Winston-Salem)
Insurance Carrier: USAA
Attorneys for plaintiff: Benjamin H. Whitley and Robert E. Whitley (Raleigh)
Attorney for defendant: None appeared: An insurance adjuster negotiated with plaintiff’s attorneys
Were liability and/or damages contested? Yes
Description: Benjamin H. Whitley and Robert E. Whitley represented a 35-year-old man who suffered traumatic brain injuries in June 2011, when a bicycle he was riding collided with the side of a car. He was hospitalized for three months following the crash and continues to recover at a rehabilitation and nursing center.
The man had been speeding downhill on his bicycle when the car’s driver failed to brake for a stop sign and crossed in front of him. He also was not wearing a bicycle helmet during the crash.
The driver’s insurance company, USAA, initially hinted at a contributory negligence defense, but backed down after the Whitleys said they would sue the driver and her husband if their client’s claim was denied or reduced in any way.
The insurer agreed to settle the case for the coverage limits of the driver’s underlying liability and umbrella policies. An attorney did not appear for USAA or the driver, but an insurance claims adjuster negotiated the settlement with the plaintiff.
Forsyth County Superior Court Judge William Z. Wood approved the settlement in October 2011, about four months after the collision. The Whitleys had sought an expedited settlement approval so the money would be available through a special needs trust for the plaintiff’s medical care.
The special needs trust allowed the plaintiff to preserve his Medicaid benefits while using the settlement money for additional treatment that would not be covered by Medicaid. A person who has more than $2,000 in assets is disqualified from Medicaid, but not if the assets are in a special needs trust.
The settlement money in the trust allowed the plaintiff to have a special bed that moves his body to prevent bedsores and to be seen by additional health care professionals and experts, Benjamin Whitley said.
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T-Bone Crash Results in $2 Million Settlement
Type of action: Negligence
Injuries alleged: Multiple orthopaedic injuries
Name of case: Confidential
Court/county: Wake County Superior Court
Case no.: Confidential
Tried before: Pre-trial settlement
Verdict/settlement: $2.03 million
Experts: Certified life care planner
Insurer: Confidential
Plaintiff’s attorneys: Ben Whitley & Robert Whitley
Person Submitting: Confidential
Description: A 35-year-old Wake County woman obtained a settlement of $2 million after a driver caused a T-bone collision while trying to overcorrect on a curve. The plaintiff, a mother of several small children, was left with numerous injuries including broken ribs, a fractured femur, a shattered spleen, renal laceration, internal bruising, and a fractured clavicle, all of which made her life more difficult.
Although the plaintiff’s attorney, Benjamin Whitley, hoped to avoid litigation, the threat of litigation proved necessary when the defendants failed to offer the full policy limits during the initial settlement discussion. Eventually, however, the plaintiff recovered the limits of two excess liability policies in addition to the primary liability policy.
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Traumatic Brain Injury Settlement
Amount: $1 million
Injuries alleged: Thoracic fracture and mild-traumatic brain injury
Case name: Withheld
Mediator: Ron Perkinson of Sanford
Judge: Pre-trial settlement
Date of settlement: April 25
Most helpful expert: Forensic engineers Steve Farlow of Raleigh and George Barbour and Chris Barbour of Wilmington; and Dr. Dixon Pearsall, rehabilitation, and vocational expert, of Little River, South Carolina
Attorneys for plaintiff: Ben Whitley of the Whitley Law Firm in Raleigh; Noah Abrams and Melissa Abrams of Abrams & Abrams in Raleigh
Attorney for defendant: Withheld
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Moped Operator Recovers $2 Million For Brain Injury
Type of action: Motor vehicle accident
Injuries alleged: Severe brain injury
Name of case: Confidential
Court/county: Confidential
Case no.: Confidential
Tried before: Mediation
Name of judge: n/a
Special damages: n/a
Verdict/settlement: Settlement
Amount: $2 million (available liability limits) Date obtained: June 6, 2005
Demand: n/a
Offer: n/a
Experts: Plaintiff’s liability experts included an accident reconstructionist and an expert tractor trailer driver
Insurer: n/a
Plaintiff’s attorneys: Robert E. Whitley of Whitley Law Firm, Kinston
Person submitting: Sandi Rose
Description: Plaintiff, a 45-year-old, was operating a moped before dawn on a four-lane bypass highway when he alleged he was struck from the rear by defendant trucking company driver. Plaintiff was transported to a local hospital and then transported by helicopter to a regional hospital. He was diagnosed with a severe closed head injury, bi-frontal hemorrhaging contusion, skull fracture, and some less serious orthopedic fractures. Shortly after admission, plaintiff underwent a bi-frontal craniotomy.
The difficulties in the plaintiff’s claim included the fact that the plaintiff was unemployed and on Social Security disability at the time of his accident. His disability had been awarded for fibromyalgia, depression, and disk disease. Further, plaintiff had no operator’s license, having lost it for multiple alcohol-related driving offenses. The accident report prepared by local police officers included statements attributed to the plaintiff that he was not wearing a helmet at the time of the impact and statements from the defendant truck driver that the moped was unlit. A neuropsychological examination performed prior to the accident, for the disability claim, also indicated a lower cognitive function than the neuropsychological examination conducted post-accident.
The case was a good example of the value of thorough and timely investigation, according to plaintiff’s counsel. According to the plaintiff’s investigation, the plaintiff had a triangular reflective device on the back of his moped, an officer had seen him shortly before the accident with his lights on, his driving habits indicated that no one had ever seen him operate the moped without lights or without a helmet – and most importantly, the neurosurgeon who performed the brain surgery indicated that there were no injuries to his skull that would be consistent with his not having his helmet on. The claim had been denied by the defendants’ carrier based upon a contributory negligence defense. There had been no offers made prior to the mediated settlement conference and the plaintiff attempted to seek contribution from the trucking company in excess of the total $2 million coverage.
At mediation, the defendant’s trucking company and insurer agreed to pay their full policy limits.
The settlement agreements with the parties included confidentiality provisions which only allow limited disclosures.
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Car Accident Victim Recovers $1.5 Million For Injuries
Amount: $1.5 Million
Case name: Confidential
Court: Settled pre-suit
Date of settlement: January 16, 2017
Plaintiff’s attorneys: Ben Whitley and Bob Whitley of the Whitley Law Firm in Raleigh
Attorneys for defendant: Confidential
Description: The Whitley Law Firm is happy to announce a $1.5 million settlement on behalf of a client who was seriously injured in a car crash. Attorneys Bob and Ben Whitley represented the victim, a 43-year-old man, who sustained kidney damage, a broken nose, and fractured ankle when another driver failed to stop at a stop sign.Included in the settlement are funds to cover the victim’s $227,000 in past medical expenses, $123,800 for anticipated future medical expenses, and $123,000 in future income loss.
The victim collected from the at-fault driver’s primary policy liability and a portion excessive liability as part of the pre-suit settlement. Both parties have agreed to keep other details of the settlement confidential.
Although the other driver was cited by police for failing to obey the stop sign, the defendant strongly contested the claim by the victim for damages, however, both parties agreed to early mediation in order to decrease the amount of legal fees and other expenses that drawn-out litigation would have cost.
The early settlement also ensures that the victim can now receive physical therapy that is mandatory for his recovery. He was unable to pursue that course of treatment because he no longer has medical insurance and could not afford to pay for the therapy.
The skilled Raleigh personal injury attorneys at the Whitley Law Firm have more than 80 years of combined experience aggressively advocating for accident victims and getting them the compensation they deserve.
If you have been injured in any type of accident, please contact our office today for a complimentary case evaluation.
Family of Auto Accident Victim Recovers $1.5 Million Settlement
Case name and number: Confidential
Principal injuries (in order of severity): Wrongful death
Tried or settled: Settled
Date concluded: October 24, 2013
Amount: $1.5 million
Mediator: Robert Beason (Durham)
Expert witnesses: Dr. Donald R. Jason (forensic pathologist) & Dr. Carson Bays (economist)
Attorneys for plaintiff: Robert Whitley, of Whitley Law Firm
Description: Attorney Robert Whitley, of Whitley Law Firm, represented the family of a 44-year-old man who was killed in an automobile accident. The victim had been driving his pickup truck along a rural two-lane road when a commercial van traveling in the opposite direction crossed over the center line and struck his vehicle head-on. When paramedics arrived on the scene, the man was unresponsive. He went into cardiac arrest shortly thereafter, and was pronounced dead just minutes later.
According to Dr. Donald Jason, one of the experts that was enlisted by the plaintiff, the victim had suffered from a phenomenon known as “air hunger.” This occurs when one suffers severe anxiety, panic and an involuntary urge to increase respiration. Jason believed that the victim endured “air hunger” in the time leading up to his death. Due to the facts of the case, the plaintiffs were able to recover a $1.5 million settlement. “We were pleased because the family was pleased,” explained Whitley.
The 44-year-old victim was survived by his wife, his 6-year-old son and his adult son. The settlement was reached on October 24, 2013, with Bob Beason and Ellis in Durham serving as the mediator. Whitley Law Firm has since been successful in collecting the settlement. According to Robert Whitley, “This was an important chapter to close for the family.” To read more about this case, click here.
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Georgia Traffic Death Settled for $1.4 Million
Court: Carteret County
Verdict/Settlement: $1.4 Million
Mediator: Rene S. Elliot
Special Damages: $8,844 for funeral expenses, $1,200 for burial
Date of Settlement: August 17, 2012
Most Helpful Expert: Francis W. Rushing Ph.D
Insurance Carrier: Auto Owners & Central Mutual
Attorneys for Plaintiff: Robert E. Whitley (Kinston) and Ann Ochsner (Raleigh) of Whitley Law Firm
Description: Jurors like to know who’s getting what when assessing an award for a wrongful death claim, and in North Carolina those who die without leaving dependents behind sometimes create complicated deliberations.
That’s what Robert E. Whitley found after presenting North Carolina focus groups with a wrongful death claim on behalf of a plaintiff killed in Georgia. Whitley’s client walked away with a $1.4 million pre-suit settlement.
Georgia’s wrongful death law bases damage awards on loss to the decedent rather than loss to the beneficiaries as in North Carolina. The plaintiff was a 23-year-old, self-employed mechanic who worked on automobiles and boats, refurbishing them for resale. He is survived by his mother and father, a 19-year-old brother and a girlfriend of seven years. He had a high school education and had completed some courses in mechanics and welding at the community college in Carteret County.
He died after a tractor trailer rear-ended the vehicle he was riding in. The accident occurred in Georgia. The suit could have been filed in North Carolina or Georgia but the Georgia wrongful death law would have applied in either venue.
North Carolina is a survivor state so it’s the loss to a decedent’s heirs that is crucial in determining a damage award. In this case, the heirs were parents who were not financially dependent on the decedent. They would have not have been helped by North Carolina law, Whitley said. Since the plaintiff wasn’t legally responsible to support anyone, the award would have been less. Results from the focus group studies showed that the test jurors struggled with the question of who would benefit from an award.
Georgia law puts makes the present value of the decedent’s lifetime expected earnings the crucial factor in an award. Whitley retained economist Francis W. Rushing to compute that amount.
All parties, including the two insurance companies covering the defendant vehicle, agreed to the settlement in pre-suit mediation. There was an additional $60,000 set aside for payment of some other claims, from which plaintiff will receive residue.
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Worker Injured in Auto Accident Wins $1.2 Million
Case name: Confidential
Number: 05 CVS 180
Court: Carteret County
Verdict/settlement: Arbitration panel
Arbitrators: Marshall Gallop, Joe Edwards and Chuck Simpson
Amount: $1.2 million
Special damages: $154,780
Past lost wages: $87,760
Future lost wages: $709,200 (as computed by economist)
Date obtained: March 13, 2007
Demand: $1 million UIM coverage and $100,000 liability coverage
Offer: None
Plaintiff’s attorney: Robert E. Whitley of Whitley Law Firm (Kinston)
Plaintiff’s experts: Dr. Ed Cooper, IME; Gary Albrecht, economist; Dixon Pearsall, vocational
Submitted by: Alicia Delamere
Description: This matter was brought before a panel pursuant to the binding arbitration provision of the underinsurance policy. The panel awarded the plaintiff $1.2 million (medical bills, past lost wages, future lost wages) for injuries suffered from a motor vehicle accident in which the plaintiff sustained injuries to the knee, arm and pelvic areas.
The plaintiff settled a worker’s compensation claim prior to the arbitration of the third-party claim.
The plaintiff was operating a commercial vehicle when the defendant crossed the center line and struck the plaintiff’s vehicle head-on, the plaintiff said. Timely investigation resulted in accident scene photographs being taken and the recording of eyewitness accounts.
The plaintiff was age 42 at the time of the accident. He had worked as a laborer throughout his life and for 19 years had been a roofer for a major construction company in Carteret County. He was the superintendent of all roofing projects for the company, earning $19 per hour and supporting a wife and one child when the accident occurred.
At the arbitration hearing, the main issue was whether the plaintiff was totally and permanently disabled from gainful employment. The plaintiff’s work ethic and determination was a central theme in the presentation of the case. The plaintiff’s employer and family testified that the plaintiff returned to his job more than a year after the accident, and he was unable to perform the tasks that the job required and which he had been previously able to perform.
A vocational expert testified that, at the time of the hearing, the plaintiff was unemployable. However, through proper vocational rehabilitation, he could return to work at a job that paid much less than he was earning at the time of the accident.
The defense relied upon a physical capacity exam conducted by a rehabilitation service on behalf of the workers’ compensation carrier. The test showed the plaintiff could return to medium work. The plaintiff testified he took two Percocets before the exam, and he was determined to do whatever it took to get his job back.
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Pregnant Mom in Wreck Settles For $1.1 Million. Lost Child, Suffered Brain Injury
Type of Action: Commercial vehicle wreck
Injuries Alleged: The plaintiff was approximately three months pregnant at time of accident, and she lost her baby. She sustained a brain injury, pelvic injury, and had to undergo a fusion at L4
Name of Case: Confidential
Court: Carteret County
Case No.: Confidential
Tried Before: Mediation
Verdict/Settlement: Settlement
Amount: $1.1 million
Verdict Date: Settlement obtained Nov. 20, 2006
Demand: Policy limits
Offer: No offer until mediation
Experts: N/A
Insurer: State Farm
Plaintiff Attorney: Robert E. Whitley, Whitley Law Firm, Kinston
Person Submitting: Alicia Delamere
Description: The plaintiff, a commercial truck driver, was traveling on Highway 101 in Carteret County when the defendant’s tractor trailer crossed the center line and struck plaintiff’s vehicle head-on. Timely investigation resulted in several videotaped eyewitness accounts supporting the fact that the defendant truck driver, who was killed in the wreck, was responsible.
The plaintiff was approximately three months pregnant and lost her baby in the accident. She also sustained a brain injury. Because she was on the job at the time of the accident, the workers’ compensation insurer managed her medical treatment. Significantly, the workers’ compensation carrier saw fit to have her admitted to Shepherd’s medical facility in Atlanta, Ga., one of the country’s leading brain injury hospitals. As a result of this early treatment and therapies associated with her hospitalization in Atlanta, the plaintiff made a substantial, although not complete, recovery from her brain injury.
Her workers’ compensation claim was mediated months before the third party claim mediation. The workers’ compensation lien was compromised and substantially reduced by agreement.
Her medical bills totaled approximately $387,443 and she had approximately $29,905 in lost wages through 11/20/2006. In return for being able to settle the claim at mediation and in return for structuring a large portion of the settlement, the plaintiff was willing to accept the full policy limits of $1.1 million to resolve her claim.
Of interest, the plaintiff was married several months before the date of her mediation and part of the mediation presentation included footage from her wedding.
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Wrongful Death Claim from a Duplex Apartment Fire Results in $1 Million Mediation Result
Case name and number: Withheld
Principal injuries: Death
Special damages: $12,953.49 (funeral expenses)
Tried or settled: Mediation
County where tried or settled: Pitt County
Date concluded: April 19, 2007
Name of mediator: Marshall Gallop
Amount: $1 million
Insurance carrier: Nationwide
Expert witnesses and areas of expertise: Bernard Kromenacker of Raleigh, safety and fire expert
Attorney for plaintiff: Robert E. Whitley and Brian E. Clemmons of Whitley Law Firm, Kinston
Submitted by: Whitley Law Firm
Description: This wrongful death claim resulted from a duplex apartment fire in Raleigh which occurred on Oct. 7, 2005. The decedent, a graduate of the North Carolina School of Science and Arts, was a sophomore at North Carolina State University at the time of the fire. He was survived by his parents, who reside in Pitt County.
The decedent arrived at his apartment late in the evening on Oct. 6, 2005, and went to bed in his third-floor bedroom shortly thereafter, as he had to return to his work the following day. There was a North Carolina State home football game on Oct. 6. As a result, there was a lot of partying going on at the duplex apartment by roommates and others both before and after the game. Based on the investigation conducted by the Raleigh Fire and Police Department, it was determined that the probable origin of the fire was a cigarette that had been left burning near or on the sofa in a second floor playroom.
Another third-floor resident was awakened by a smoke detector that had been placed in his room by his parents and was able to escape by jumping out of his window. Another third-floor resident was also killed in the fire. The decedent was one service project away from being an Eagle Scout, was a member of his high school’s National Honor Society and was well-respected in the community.
The basis of the negligence alleged was the failure of the landlord and property manager to have operable smoke detectors pursuant to the city code of Raleigh and the North Carolina General Statutes. The examination of the property by investigators for the fire and police department was inconclusive as to whether or not there were detectors or alarms in the apartment. There was conflicting testimony from other witnesses about the existence or nonexistence of operable smoke detectors.
The most compelling testimony according to the plaintiff was the testimony of the surviving tenant’s parents, who informed the decedent’s family that they had looked for smoke detectors upon moving their son into the apartment and, not having found any, purchased one for him for his room.
The defendants contended first, that there was no evidence that operable smoke detectors were not installed as required by the code and statute; secondly, that the decedent was also negligent by not notifying the property manager and landlord; and, lastly, that the decedent had no dependents and the potential damages would be limited.
The plaintiff’s evidence, which came from family members, community members, teachers, scout masters, church leaders, and professors, was that the decedent had a promising future and had good personal habits and conduct, including the fact that he did not smoke nor consume any alcoholic beverages whatsoever. His parents have established a foundation in his name for the purpose of providing college scholarships to North Carolina State University as well as making parents more aware of smoke detectors in student housing.
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Driver Struck While Moving Company Van Off Highway Recovers $1 Million
Type of action: Motor vehicle accident
Injuries alleged: Loss of both legs
Name of case: Confidential
Court/county: Confidential
Case no.: Confidential
Name of judge: n/a
Special damages: n/a
Verdict/settlement: Settlement
Amount: $1 million ($30,000 from liability carrier and $970,000 from underinsured carrier)
Date obtained: March 10, 2005
Demand: n/a
Offer: n/a
Experts: Plaintiff’s damage experts included a life care planner and an economist
Insurer: n/a
Plaintiff’s attorneys: Robert E. Whitley of Whitley Law Firm, Raleigh
Person submitting: Sandi Rose
Description: Plaintiff, a 43-year-old, was operating her company’s van on a four-lane highway during a severe rainstorm. Plaintiff lost control of the van after hydroplaning and slid into the protective railing on the shoulder on her side of the road at an approximate 45 degree angle. The rear of her van came to rest with about two to three feet in the traveled lane on the highway. Plaintiff was attempting to get her jack out of the rear of the van in order to get her vehicle off of the railing and was standing in the highway when she was struck by the defendant driver causing her to sustain traumatic amputation of both of her legs above the knee.
The liability carrier almost immediately tendered its minimum coverage limits. The underinsurance carrier, which was also the same carrier as plaintiff’s workers’ compensation carrier, originally took the position that the plaintiff was negligent by being out on the highway, and that the plaintiff had negligently placed herself in that position by having lost control of her vehicle.
Shortly before the mediated settlement conference of the workers’ compensation claim, the underinsured carrier, which had been invited to that mediation, tendered the balance of its limits of $970,000. There was some issue prior to that tender as to whether or not there would be any offset for the workers’ compensation benefits paid to plaintiff. The carrier eventually acknowledged that the value of plaintiff’s claim exceeded the total workers’ compensation lien by more than $1,000,000.
At the mediated settlement conference for the workers’ compensation claim a settlement was reached for the indemnity portion of the claim only. The settlement agreement with the workers’ compensation carrier and the parties includes confidentiality provisions which only allow limited disclosures.
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$900,000 Settlement Collected in Wrongful Death Auto Case
Type of action: Wrongful death
Injuries alleged: Death
Name of case: Confidential
Court: Greene County Superior Court
Case number: Confidential
Tried before judge or jury: Judge
Name of judge: N/A
Special damages: Funeral expenses (deceased mother, $6,493; deceased passenger, $5,558) and medical expenses (deceased passenger, $1,327)
Verdict or settlement: Settlement
Amount: $900,000
Settlement date: April 29, 2007
Offer: N/A
Experts: Ron Kirk, Research Engineers, Inc., Raleigh; Paul Paxton, Truck RX, Inc., Pensacola, Fla.; Paul Olson, Human Factors Expert, Ann Arbor, Mich.
Insurer: Canal Insurance Company
Plaintiff’s attorneys: Robert E. Whitley and Paul A. Rodgman of Whitley Law Firm, KinstonSubmitted by: Alicia Delamere
Description: The wreck in this case occurred on the morning of Dec. 3, 2003, on a two-lane road in Greene County. The decedent mother was traveling east in her sedan vehicle when the defendant truck driver backed his tractor-trailer onto the same highway from his residential driveway, the plaintiff’s report said.
The decedent and a passenger, her 6-year-old child, were killed in the wreck.
The decedent’s estate filed wrongful death claims, alleging the defendant was negligent in backing onto the highway to his right instead of his left, failing to use a spotter, blocking the highway and backing to his blind side.
The defendant truck driver filed an answer, alleging contributory negligence and a cross-claim. The defendant trucking company hired expert accident investigators, who were on the scene within three hours of the accident. The plaintiff retained an expert to investigate as well.
An issue arose concerning the sun and its effect on the decedent’s vision. The plaintiff hired a human factors expert who had retired from General Motors for this issue.
The case was mediated twice, and the parties met an impasse both times. An offer of $600,000 was filed in late 2006. A second offer of $750,000 was filed in April 2007.
In addition to alleging contributory negligence, the defense said both decedents (mother and son) were survived only by the administrator of the estate, the decedent’s mother and passenger’s grandmother. There were no other heirs, and there was no economic loss.
Other issues were the health condition of the decedent and the fact that the child-passenger was riding in the front seat. The plaintiff’s truck-driving expert was prepared to testify on numerous violations of safety rules and regulations that the defendant truck driver allegedly committed.
The case was set for a two-week session in June in Greene County Superior Court.
One week prior to trial, the defendant insurance company made an offer of $900,000. There was a total of $1 million in insurance coverage, but the defendant did not have assets from which to satisfy an excess judgment, the plaintiff’s report said. The plaintiff demanded the full coverage but elected to accept the $900,000 offer in view of the added expenses of litigation, which would include transportation and witness fees for the various experts.
It was concluded that it would be in the plaintiff’s best interests to settle rather than go forward with trial.
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Truck Driver Injured in Collision Receives $650,000 in Mediation
Type of action: Motor vehicle accident
Injuries alleged: Neck, back and shoulder injuries
Case name: Confidential
Case number: Confidential
Court: Martin County
Tried before judge or jury: Mediation
Name of mediator: James D. Llewellyn
Verdict or settlement: Settlement
Settlement date: June 5, 2007
Amount: $650,000
Experts: Dr. Ed Cooper, orthopedic surgeon, Kinston, N.C., and Dixon Pearsall, rehabilitation and vocational expert, Little River, S.C.
Plaintiff’s attorneys: Robert E. Whitley and Paul A. Rodgman of Whitley Law Firm
Submitted by: Alicia Delamere
Description: The plaintiff is a 50-year-old truck driver who was involved in a head-on collision with an SUV on July 12, 2004. The plaintiff took evasive action, and his tractor-trailer turned over. He was admitted and discharged from the emergency room with impressions of contusion to the chest and head, lumbar sprain and strain, right shoulder contusions and left elbow lacerations.
On Aug. 11, 2004, the plaintiff was seen by an orthopedic surgeon, who reviewed X-rays and MRIs of the plaintiff’s upper and lower spine. The surgeon had the impression that the plaintiff had cervical spondytis, mild degenerative changes, mild stenosis and spurring.
The plaintiff was treated conservatively and underwent anterior C3-4, C4-5, and C5-6 discectomies, followed by inter-body fusion and the application of a titanium plate and screws on June 14, 2005. He then underwent a shoulder operation and was given a permanent rating for his shoulder and work restrictions.
The plaintiff submitted to an independent medical examination by a doctor hired by the plaintiff’s counsel. The defendant hired a doctor to conduct a second independent medical examination, in which the doctor concluded the plaintiff received no acute injuries in the wreck and would be able to return to sedentary work.
The plaintiff never returned to work after the accident. Because he was on the job at the time of the wreck, his claim was covered by workers’ compensation.
The plaintiff filed for binding arbitration of the case pursuant to the underinsurance policy on his employer’s tractor-trailer rig. The parties agreed to mediation about 10 days prior to the arbitration hearing. Several months prior to mediation of the wreck case, a mediation was held in the workers’ compensation claim. The carrier’s position was that there was no medical reason that the plaintiff could not return to work, and the plaintiff’s position was that he was permanently disabled. The plaintiff retained the services of Dixon Pearsall, a rehabilitation and vocational expert, who said the plaintiff was basically unemployable.
A settlement of the workers’ compensation claim was reached at the mediated settlement conference, leaving the issue of the carrier’s lien unresolved. Mediation was held in the auto claim, which was attended by attorneys for the workers’ compensation carrier as well as the attorney for the underinsurance carrier.
An issue facing the parties at the mediation was the question of the plaintiff’s injuries and his employability. The plaintiff had sustained a very similar injury a couple of years prior to this wreck, and many of his complaints and symptoms from that earlier incident were exactly the same as those contained in his records in this wreck. Another obstacle for the plaintiff was that most of his complaints of pain were unsubstantiated by objective medical evidence.
The mediation proceeded with parties and counsel for the underinsurance carrier separated from the attorneys for the workers’ compensation carrier. A settlement was finally reached after almost a full day of negotiations. The settlement was complicated by the underlying UIM setoff for workers’ compensation as well as the issue of the workers’ compensation lien.
These issues were further complicated by the medical issues involved and the wide difference of opinions between the plaintiff’s medical and vocational experts and the defendant’s medical experts.
Early on, the liability insurance carrier for the responsible driver paid $50,000 in coverage, and by agreement with all counsel, one-third of these proceeds were placed in the trust account of the plaintiff’s attorney, pending the resolution of the worker’s compensation lien. The claims were settled by the defendant underinsured carrier paying, in “new money,” the sum of $650,000. “New money” means the amount was the net amount paid free and clear from any workers’ compensation setoff.
The parties also reached a compromised agreement which substantially reduced the workers’ compensation lien. The only negotiating tool that the plaintiff’s counsel had with respect to the workers’ compensation carrier was the threat of taking the issue before a Superior Court judge to have the workers’ compensation lien substantially reduced or totally eliminated.
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Woman gets $575,000 Settlement for Injuries in Pre-Dawn Wreck
Type of action: Motor vehicle accident
Injuries alleged: Broken left femur, left wrist fracture, bruising to breast
Case name: Withheld
Case number: Withheld
Court: Withheld
Tried before judge or jury: Mediation
Name of mediator: Marshall A. Gallop, Jr.
Verdict or settlement: Settlement
Settlement date: June 8, 2007
Amount: $575,000
Experts: Not applicable
Plaintiff’s attorneys: Robert E. Whitley and Benjamin Whitley of Whitley Law Firm
Submitted by: Alicia Delamere
Description: In the early morning before dawn, plaintiff, 69, was driving her vehicle on a country road in Columbus County near Whiteville. Plaintiff was operating her vehicle on N.C. 214, a two-lane road with 13 feet of shoulders on either side of the road. The speed limit was 55 mph at the place of the accident.
As plaintiff drove, she saw headlights to her left in the oncoming lane, and it even appeared that the vehicle was on the opposite shoulder of the road with its lights directed toward her. Plaintiff slowed her vehicle, but as she approached, she said, the other vehicle, a bobtail tractor (without its trailer) pulled into her lane, headed basically perpendicular to her direction of travel. The operator of the tractor testified at his deposition that he was attempting to do a U-turn when the collision occurred.
Plaintiff sustained a broken left femur, a left wrist fracture and bruising to her breast. Her total medical expenses were $192,346.32, and her total lost wages were $1,366.40. No permanent impairment rating was rendered by her treating physicians.
A lawsuit was filed against the truck driver and the trucking company that employed him. The defendants pleaded, among other things, contributory negligence on the part of the plaintiff. Plaintiff was hospitalized at Southeastern Regional Hospital for five days and then was transferred to a nursing home for rehabilitation and recovery.
Plaintiff subsequently underwent two knee replacement surgeries. Of her total medical expenses of $192,346.32, approximately $35,000 was attributed to her knee replacement surgeries. Plaintiff’s orthopedic surgeon, although not deposed, had informed plaintiff’s counsel that while the injuries from the wreck contributed to the necessity for these surgeries, the plaintiff had significant degenerative changes in both knees and, in his opinion, would have to have undergone a knee replacement in the not-too-distant future. He further stated that it was the bed rest, and not necessarily the trauma from the wreck, that accelerated the need for the knee replacement.
Plaintiff is a widow. She lived alone and was the sole operator of a sandwich shop on Highway 214 between Hallsboro and Lake Waccamaw. Plaintiff was quite a proprietor in that she was the cook, waitress, and busboy, and pretty much managed the restaurant herself and had done so for more than 20 years.
Several months prior to the trial, mediation was held, and the defendant made a final offer of $450,000. After mediation and before the trial date, there were informal discussions between the parties’ counsel, and the parties agreed to settle the claim for $575,000.
Extensive investigation and photography were done to help support plaintiff’s claim. For example, aerial photographs clearly showed that the defendant truck driver could have traveled less than a mile from the site of the accident and safely turned around in a school parking lot.
The plaintiff was never able to return to her sandwich shop. Throughout the litigation, her main complaint was her inability to return to and manage her restaurant.
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Woman receives UIM benefits after workplace wreck
Type of action: Automobile – Personal Injury
Injuries alleged: Fracture of tibia and fibula
Case name: Confidential
Case number: Confidential
Court: Wayne County Superior Court
Tried before judge or jury: Confidential arbitrator
Name of judge: Confidential arbitrators
Verdict or settlement: Arbitrated verdict
Settlement date: April 12, 2010
Amount: $550,000
Experts: Christopher C. Hasty, M.D., treating orthopedic surgeon ( Greenville)
Plaintiff’s attorneys: Robert E. Whitley (Raleigh)
Submitted by: Alicia Delamere
Description: Plaintiff, age 47, was at her place of business when a vehicle ran over the curb and through the front glass window, pinning and crushing her against the wall. She sustained a displaced fracture of her fibula and a fracture of her tibia.
Plaintiff underwent two different surgeries, the second of which was to remove a screw placed in the first surgery. Plaintiff incurred total medical expenses of $66,354 and was given an impairment rating of 20 percent to her lower extremity by her treating orthopedic surgeon.
She did not claim any loss of income as she was self-employed and her business (approximately 50 employees) continued to operate during her recovery time. She was able to manage and do the bookkeeping necessary for her business at home and while she was recovering. She also had some gratuitous help from family members on maintaining her business throughout her recovery.
The carrier for the responsible driver had tendered and paid its $100,000 coverage before plaintiff retained counsel. State Farm, plaintiff’s carrier, had offered $35,000 of its underinsurance coverage to settle the claim. Plaintiff did not think that was adequate and thereafter retained counsel.
Prior to retaining an attorney, plaintiff had been informed that the total amount of the applicable underinsurance coverage was $500,000, the coverage on her commercial vehicle. However, plaintiff’s attorney discovered two additional family policies providing additional underinsurance coverage. Plaintiff thereafter received $4,000 in medical payment coverage provided by the two “new” policies.
Plaintiff was very active and enjoyed outside activities. She was a water- and snow-skier, she played volleyball regularly, rode horses, ran, had her pilot’s license and was extremely active with her family and friends. Some of her activities had been curtailed for several years prior to the date of her injury because she was caring for her ailing father. The defense contended that she was not nearly as active just before her crush injury and therefore it should not be considered as elements of her damages.
At the arbitration hearing, plaintiff testified that she experienced some constant leg pain in the area between her knee and thigh. She testified that her favorite commercial on television was the one in which the 80-year-old grandmother was water-skiing and water-skied onto the shoreline. She testified that before this accident, she maintained that that was going to be her — that is, water-skiing at age 80. Additionally, she testified that most all of her physical activities had been significantly limited by her injury.
State Farm did not increase its $35,000 offer prior to the arbitration hearing; however, after counsel was retained, they advanced the 35,000 offer without prejudice.
From the arbitration award of $550,000, State Farm was credited with the $100,000 previously paid by the liability carrier, the $35,000 offer and advance and the $4,000 paid in medical payment coverage. Plaintiff received the difference of $411,000, plus pre-judgment interest from the date the complaint was filed against the responsible party.
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College student stacks divorced parents’ UIM insurance coverage
Type of action: Personal Injury – Motorcycle Wreck
Injuries alleged: Numerous orthopedic fractures
Case name: Confidential
Case number: None
Court: Mecklenburg County
Tried before judge or jury: None
Name of mediator: Marshall A. Gallop, Jr.
Verdict or settlement: Settlement
Settlement date: March 1, 2010
Amount: $555,000 (which represented all of the insurance coverage available)
Insurers: Allstate, Integon General, GEICO and Nationwide
Experts: Not applicable
Plaintiff’s attorneys: Robert E. Whitley (Raleigh)
Submitted by: Alicia Delamere
Description: Plaintiff, a 22-year-old college student at North Carolina State University, sustained serious injuries in a motorcycle accident on Dec. 10, 2009. The at-fault vehicle turned left in front of him as he approached an intersection.
Plaintiff sustained serious orthopedic injuries and had to undergo several surgeries and extensive rehabilitation. His total medical expenses were $231,891.
Plaintiff maintained an apartment in Raleigh as a student but also maintained residency with each of his parents, who had divorced years prior to this wreck.
The responsible driver for the wreck had minimum policy limits, and those limits were tendered prior to the plaintiff retaining counsel. Plaintiff’s father, a medical doctor, had made inquiry with his insurance company as well as an attorney about the potential recovery for his son. The plaintiff’s father concluded that there would be no recovery beyond the $30,000 in liability coverage because his son had minimum coverage of $30,000 on the motorcycle he was operating.
After extensive investigation of the plaintiff’s family and residential situation, it was determined that he was covered by several policies, including his own separate GEICO automobile policy, which had $100,000 per person in underinsurance coverage.
Evidence was developed that plaintiff maintained a “residence” at his mother’s home in Mecklenburg County, whose address was still used on his banking account, and he had a key and could go to her home at any time. She had underinsurance coverage on a family automobile policy of $100,000 with Allstate.
It was also established that the plaintiff maintained a “residence” with his father in his home, whose address he used for voter registration. His father had two separate policies, one with Nationwide for $250,000 in underinsurance, and a second policy with Nationwide on his motorcycle with $100,000 in underinsurance coverage.
Plaintiff was able to stack all of the underinsurance coverages for a total of $550,000 and was able to settle the claim for the total amount of all of the underinsurance coverage. For more information, see Bob Whitley’s Blog entry 6/19/ 2010
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Settlement Reached in Rolling Truck Incident at Softball Field
Type of action: Negligence
Injuries alleged: T12 burst fracture, neurological deficit in lower extremities, rib fractures and bilateral sacral fractures
Special damages: Medical expenses of $141,000 and lost wages of approximately $14,000
Case name: Confidential
Case number: None
Court: None (Settled in Lenoir County)
Tried before judge or jury: None
Verdict or settlement: Settlement
Settlement date: May 23, 2007
Amount: $735,000
Experts: Ron Kirk of Research Engineers and Ed Cooper, M.D.
Insurer: Nationwide
Plaintiff’s attorneys: Robert E. Whitley of Whitley Law Firm, Kinston
Submitted by: Alicia Delamere
Description: The plaintiff, along with her husband, attended a softball game for her 12-year-old daughter at a softball field in Lenoir County on March 5, 2006.
A short chain-link fence surrounded the field. The fans’ viewing area was at the bottom of a slight incline. A parking area for vehicles was located further back from the viewing area. After the game, the plaintiff and her husband stood at or near the fence on their daughter’s side of the field, waiting for her team to conduct its post-game meeting. As they stood there, a pickup truck parked behind the viewing area slowly and silently rolled down the incline and ran over the plaintiff, according to the plaintiff’s report. The pickup truck neither struck nor injured the husband.
Just before the truck hit the plaintiff, someone yelled, “Watch out.” The plaintiff turned to look for something in the air, thinking a softball had been thrown in her direction, the report said.
The plaintiff was transported by air to Pitt Memorial Hospital, where her original diagnosis was a T12 burst fracture, neurological deficit in her lower extremities, rib fractures and bilateral sacral fractures.
She underwent decompressive laminotomies of T11 and T12, with spinal cord decompression. Following surgery, a posterior instrumentation and fusion of T11 and L1 was conducted.
An investigation revealed that the pickup truck had been driven to the field by another player’s parents, with children as passengers. It was left idling so that family members could get warm during the game and afterwards. At some point shortly before the incident, a child in the truck engaged the truck into gear, causing it to slowly roll down the incline, the plaintiff’s report said. The truck was insured under a commercial policy of the operator’s employer.
The plaintiff’s family retained an attorney shortly after the incident. This led to a timely investigation that included interviewing numerous fans at the game and the deputy sheriff who investigated the incident. The attorney also hired an engineer to examine the vehicle to make sure it could not have been disengaged from park without someone having done it – either a child or adult.
After being hospitalized and undergoing extensive rehabilitation at Pitt Memorial Hospital, the plaintiff was discharged by her treating physician on Jan. 11, 2007, with 30 percent permanent partial impairment due to her injuries.
The plaintiff retained an independent medical examiner and a board-certified orthopedic surgeon to review her medical records, tests, scans and X-rays from the hospital and to conduct an extensive physical examination of the plaintiff. The independent medical examiner concluded that the plaintiff had 44 percent permanent partial disability.
The plaintiff’s attorney contacted the senior adjuster for the responsible insurance company and decided to attempt to settle the claim before filing a lawsuit because the family that operated the pickup truck was acquaintances of the plaintiff and her family, a minor had disengaged the pickup truck and the plaintiff wished to settle before filing suit. The plaintiff’s attorney attributed some of the successful resolution of the claim to the insurance company’s reasonableness and fairness.
The plaintiff’s attorney presented the adjuster with the engineer’s report on the pickup truck and the independent medical examiner’s 19-page report, and after approximately three weeks of negotiations, the parties reached a $735,000 settlement. A portion of the settlement, $150,000, was structured for lifetime benefits to the plaintiff.
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Iron Worker Settles for $4 Million After Suffering from Paralysis
Type of Action: Personal Injury
Injuries alleged: Paraplegia
Name of case: Withheld
Court: Wake County Superior Court
Verdict or settlement: Settlement
Amount: $4,000,000
Date of verdict or settlement: 9/16/2014
Highest Offer: None
Most helpful experts: Steve Farlow of PE Accident Reconstructionist, Raleigh; Carson Bays, economist, Greenville; and Hope Wade, CLCP, Life Care Planner, Oklahoma City, Oklahoma.
Insurance Carrier: USAA
Attorneys for plaintiff: Doug Abrams, Noah Abrams and Melissa Abrams of Abrams & Abrams, Raleigh, and Ben Whitley of Whitley Law Firm, Raleigh
Attorney for defendant: Derek Crump of Brown Crump Vanore & Tierney, Raleigh, and Bo Walker of Ragsdale Liggett, Raleigh
Description: An iron worker has received a settlement of $4 million after being paralyzed from falling from a walkway during a demolition job. The plaintiff (name withheld) was 41 years of age at the time of the injury. His accident took place at a mall in Raleigh where he was cutting out portions of the overhang so that a crane could be brought through and steel beams hoisted up. The plaintiff fell through the area that was just removed after the overhang collapsed which resulted in a spinal cord injury.
When an inspection of the accident location took place, a report from the general contractor regarding the fall protection measures that would take place was found. None of the items that the general contractor had checked off from the list were found on the site. If the case had gone to trial, these reports would have been a big part of the evidence.
Not only did the plaintiff get the settlement, but the attorneys reduced a workers’ compensation lien against the payout to a small amount because of the employer’s negligence.
WORKER SUFFERS PARALYSIS FROM FALL
$4 Million – 9/16/2014Type of Action: Personal Injury
Injuries alleged: Paraplegia
Name of case: Withheld
Court: Wake County Superior Court
Verdict or settlement: Settlement
Amount: $4,000,000
Date of verdict or settlement: 9/16/2014
Highest Offer: None
Most helpful experts: Steve Farlow of PE Accident Reconstructionist, Raleigh; Carson Bays, economist, Greenville; and Hope Wade, CLCP, Life Care Planner, Oklahoma City, Oklahoma.
Insurance Carrier: USAA
Attorneys for plaintiff: Doug Abrams, Noah Abrams and Melissa Abrams of Abrams & Abrams, Raleigh, and Ben Whitley of Whitley Law Firm, Raleigh
Attorney for defendant: Derek Crump of Brown Crump Vanore & Tierney, Raleigh, and Bo Walker of Ragsdale Liggett, Raleigh
Description:
An iron worker has received a settlement of $4 million after being paralyzed from falling from a walkway during a demolition job. The plaintiff (name withheld) was 41 years of age at the time of the injury. His accident took place at a mall in Raleigh where he was cutting out portions of the overhang so that a crane could be brought through and steel beams hoisted up. The plaintiff fell through the area that was just removed after the overhang collapsed which resulted in a spinal cord injury.
When an inspection of the accident location took place, a report from the general contractor regarding the fall protection measures that would take place was found. None of the items that the general contractor had checked off from the list were found on the site. If the case had gone to trial, these reports would have been a big part of the evidence.
Not only did the plaintiff get the settlement, but the attorneys reduced a workers’ compensation lien against the payout to a small amount because of the employer’s negligence.
FAMILY OF AUTO ACCIDENT VICTIM
SETTLED FOR $1.5 MILLION – 10/24/2013Case name and number: Confidential
Principal injuries (in order of severity): Wrongful death
Tried or settled: Settled
Date concluded: October 24, 2013
Amount: $1.5 million
Mediator: Robert Beason (Durham)
Expert witnesses: Dr. Donald R. Jason (forensic pathologist) & Dr. Carson Bays (economist)
Attorneys for plaintiff: Robert Whitley, of Whitley Law Firm
Description: Attorney Robert Whitley, of Whitley Law Firm, represented the family of a 44-year-old man who was killed in an automobile accident. The victim had been driving his pickup truck along a rural two-lane road when a commercial van traveling in the opposite direction crossed over the center line and struck his vehicle head-on. When paramedics arrived on the scene, the man was unresponsive. He went into cardiac arrest shortly thereafter, and was pronounced dead just minutes later.
According to Dr. Donald Jason, one of the experts that was enlisted by the plaintiff, the victim had suffered from a phenomenon known as “air hunger.” This occurs when one suffers severe anxiety, panic and an involuntary urge to increase respiration. Jason believed that the victim endured “air hunger” in the time leading up to his death. Due to the facts of the case, the plaintiffs were able to recover a $1.5 million settlement. “We were pleased because the family was pleased,” explained Whitley.
The 44-year-old victim was survived by his wife, his 6-year-old son and his adult son. The settlement was reached on October 24, 2013, with Bob Beason and Ellis in Durham serving as the mediator. Whitley Law Firm has since been successful in collecting the settlement. According to Robert Whitley, “This was an important chapter to close for the family.” To read more about this case, click here.
OVERTON v. EVANS LOGGING, INC.
1/15/2013Walter T. Overton and Hattie Overton, Plaintiffs v. EVANS LOGGING, INC., F/K/A, D/B/A, C.B. CARTER AND SONS, INC., EVANS LOGGING, and INTERNATIONAL PAPER COMPANY, Defendants.
GEORGIA TRAFFIC DEATH
SETTLED FOR $1.4 MILLION – 8/17/2012Court: Carteret County
Verdict/Settlement: $1.4 Million
Mediator: Rene S. Elliot
Special Damages: $8,844 for funeral expenses, $1,200 for burial
Date of Settlement: August 17, 2012
Most Helpful Expert: Francis W. Rushing Ph.D
Insurance Carrier: Auto Owners & Central Mutual
Attorneys for Plaintiff: Robert E. Whitley (Kinston) and Ann Ochsner (Raleigh) of Whitley Law Firm
Description: Jurors like to know who’s getting what when assessing an award for a wrongful death claim, and in North Carolina those who die without leaving dependents behind sometimes create complicated deliberations.
That’s what Robert E. Whitley found after presenting North Carolina focus groups with a wrongful death claim on behalf of a plaintiff killed in Georgia. Whitley’s client walked away with a $1.4 million pre-suit settlement.
Georgia’s wrongful death law bases damage awards on loss to the decedent rather than loss to the beneficiaries as in North Carolina. The plaintiff was a 23-year-old, self-employed mechanic who worked on automobiles and boats, refurbishing them for resale. He is survived by his mother and father, a 19-year-old brother and a girlfriend of seven years. He had a high school education and had completed some courses in mechanics and welding at the community college in Carteret County.
He died after a tractor trailer rear-ended the vehicle he was riding in. The accident occurred in Georgia. The suit could have been filed in North Carolina or Georgia but the Georgia wrongful death law would have applied in either venue.
North Carolina is a survivor state so it’s the loss to a decedent’s heirs that is crucial in determining a damage award. In this case, the heirs were parents who were not financially dependent on the decedent. They would have not have been helped by North Carolina law, Whitley said. Since the plaintiff wasn’t legally responsible to support anyone, the award would have been less. Results from the focus group studies showed that the test jurors struggled with the question of who would benefit from an award.
Georgia law puts makes the present value of the decedent’s lifetime expected earnings the crucial factor in an award. Whitley retained economist Francis W. Rushing to compute that amount.
All parties, including the two insurance companies covering the defendant vehicle, agreed to the settlement in pre-suit mediation. There was an additional $60,000 set aside for payment of some other claims, from which plaintiff will receive residue.
RECO v. PENN NATIONAL SECURITY INSURANCE COMPANY
2/7/2012Victoria Klotz GRECO, Plaintiff, v. PENN NATIONAL SECURITY INSURANCE COMPANY, Penn National Holding Corporation, Pennsylvania National Mutual Casualty Insurance Company, Carolina Home Exteriors, L.L.C., and Donald Joseph McKinnon, Defendants.
VICTIM OF SERIOUS BICYCLE ACCIDENT
SETTLED FOR $2.3 MILLION – 10/14/2011Type of Action: Negligence
Injuries alleged: Traumatic brain injury
Name of case: Withheld by plaintiff
Court: Forsyth Superior Court
Verdict or settlement: Pre-trial settlement
Amount: $2.3 million
Date of verdict or settlement: 10/14/2011
Highest Offer: None
Most helpful experts: Benjamin B. Liipfert III, special needs trust administration lawyer (Winston-Salem)
Insurance Carrier: USAA
Attorneys for plaintiff: Benjamin H. Whitley and Robert E. Whitley (Raleigh)
Attorney for defendant: None appeared: An insurance adjuster negotiated with plaintiff’s attorneys
Were liability and/or damages contested? Yes
Description: Benjamin H. Whitley and Robert E. Whitley represented a 35-year-old man who suffered traumatic brain injuries in June 2011, when a bicycle he was riding collided with the side of a car. He was hospitalized for three months following the crash and continues to recover at a rehabilitation and nursing center.
The man had been speeding downhill on his bicycle when the car’s driver failed to brake for a stop sign and crossed in front of him. He also was not wearing a bicycle helmet during the crash.
The driver’s insurance company, USAA, initially hinted at a contributory negligence defense, but backed down after the Whitleys said they would sue the driver and her husband if their client’s claim was denied or reduced in any way.
The insurer agreed to settle the case for the coverage limits of the driver’s underlying liability and umbrella policies. An attorney did not appear for USAA or the driver, but an insurance claims adjuster negotiated the settlement with the plaintiff.
Forsyth County Superior Court Judge William Z. Wood approved the settlement in October 2011, about four months after the collision. The Whitleys had sought an expedited settlement approval so the money would be available through a special needs trust for the plaintiff’s medical care.
The special needs trust allowed the plaintiff to preserve his Medicaid benefits while using the settlement money for additional treatment that would not be covered by Medicaid. A person who has more than $2,000 in assets is disqualified from Medicaid, but not if the assets are in a special needs trust.
The settlement money in the trust allowed the plaintiff to have a special bed that moves his body to prevent bedsores and to be seen by additional health care professionals and experts, Benjamin Whitley said.
WOMAN INJURED BY UIM IN WORKPLACE WRECK
AWARDED $550,000 IN ARBITRATION VERDICT – 4/12/2010Type of action: Automobile – Personal Injury
Injuries alleged: Fracture of tibia and fibula
Case name: Confidential
Case number: Confidential
Court: Wayne County Superior Court
Tried before judge or jury: Confidential arbitrator
Name of judge: Confidential arbitrators
Verdict or settlement: Arbitrated verdict
Settlement date: April 12, 2010
Amount: $550,000
Experts: Christopher C. Hasty, M.D., treating orthopedic surgeon ( Greenville)
Plaintiff’s attorneys: Robert E. Whitley (Raleigh)
Submitted by: Alicia Delamere
Description: Plaintiff, age 47, was at her place of business when a vehicle ran over the curb and through the front glass window, pinning and crushing her against the wall. She sustained a displaced fracture of her fibula and a fracture of her tibia.
Plaintiff underwent two different surgeries, the second of which was to remove a screw placed in the first surgery. Plaintiff incurred total medical expenses of $66,354 and was given an impairment rating of 20 percent to her lower extremity by her treating orthopedic surgeon.
She did not claim any loss of income as she was self-employed and her business (approximately 50 employees) continued to operate during her recovery time. She was able to manage and do the bookkeeping necessary for her business at home and while she was recovering. She also had some gratuitous help from family members on maintaining her business throughout her recovery.
The carrier for the responsible driver had tendered and paid its $100,000 coverage before plaintiff retained counsel. State Farm, plaintiff’s carrier, had offered $35,000 of its underinsurance coverage to settle the claim. Plaintiff did not think that was adequate and thereafter retained counsel.
Prior to retaining an attorney, plaintiff had been informed that the total amount of the applicable underinsurance coverage was $500,000, the coverage on her commercial vehicle. However, plaintiff’s attorney discovered two additional family policies providing additional underinsurance coverage. Plaintiff thereafter received $4,000 in medical payment coverage provided by the two “new” policies.
Plaintiff was very active and enjoyed outside activities. She was a water- and snow-skier, she played volleyball regularly, rode horses, ran, had her pilot’s license and was extremely active with her family and friends. Some of her activities had been curtailed for several years prior to the date of her injury because she was caring for her ailing father. The defense contended that she was not nearly as active just before her crush injury and therefore it should not be considered as elements of her damages.
At the arbitration hearing, plaintiff testified that she experienced some constant leg pain in the area between her knee and thigh. She testified that her favorite commercial on television was the one in which the 80-year-old grandmother was water-skiing and water-skied onto the shoreline. She testified that before this accident, she maintained that that was going to be her — that is, water-skiing at age 80. Additionally, she testified that most all of her physical activities had been significantly limited by her injury.
State Farm did not increase its $35,000 offer prior to the arbitration hearing; however, after counsel was retained, they advanced the 35,000 offer without prejudice.
From the arbitration award of $550,000, State Farm was credited with the $100,000 previously paid by the liability carrier, the $35,000 offer and advance and the $4,000 paid in medical payment coverage. Plaintiff received the difference of $411,000, plus pre-judgment interest from the date the complaint was filed against the responsible party.
COLLEGE STUDENT STACKS DIVORCED PARENTS’ UIM INSURANCE COVERAGE
SETTLED FOR $555,000 – 3/1/2010Type of action: Personal Injury – Motorcycle Wreck
Injuries alleged: Numerous orthopedic fractures
Case name: Confidential
Case number: None
Court: Mecklenburg County
Tried before judge or jury: None
Name of mediator: Marshall A. Gallop, Jr.
Verdict or settlement: Settlement
Settlement date: March 1, 2010
Amount: $555,000 (which represented all of the insurance coverage available)
Insurers: Allstate, Integon General, GEICO and Nationwide
Experts: Not applicable
Plaintiff’s attorneys: Robert E. Whitley (Raleigh)
Submitted by: Alicia Delamere
Description: Plaintiff, a 22-year-old college student at North Carolina State University, sustained serious injuries in a motorcycle accident on Dec. 10, 2009. The at-fault vehicle turned left in front of him as he approached an intersection.
Plaintiff sustained serious orthopedic injuries and had to undergo several surgeries and extensive rehabilitation. His total medical expenses were $231,891.
Plaintiff maintained an apartment in Raleigh as a student but also maintained residency with each of his parents, who had divorced years prior to this wreck.
The responsible driver for the wreck had minimum policy limits, and those limits were tendered prior to the plaintiff retaining counsel. Plaintiff’s father, a medical doctor, had made inquiry with his insurance company as well as an attorney about the potential recovery for his son. The plaintiff’s father concluded that there would be no recovery beyond the $30,000 in liability coverage because his son had minimum coverage of $30,000 on the motorcycle he was operating.
After extensive investigation of the plaintiff’s family and residential situation, it was determined that he was covered by several policies, including his own separate GEICO automobile policy, which had $100,000 per person in underinsurance coverage.
Evidence was developed that plaintiff maintained a “residence” at his mother’s home in Mecklenburg County, whose address was still used on his banking account, and he had a key and could go to her home at any time. She had underinsurance coverage on a family automobile policy of $100,000 with Allstate.
It was also established that the plaintiff maintained a “residence” with his father in his home, whose address he used for voter registration. His father had two separate policies, one with Nationwide for $250,000 in underinsurance, and a second policy with Nationwide on his motorcycle with $100,000 in underinsurance coverage.
Plaintiff was able to stack all of the underinsurance coverages for a total of $550,000 and was able to settle the claim for the total amount of all of the underinsurance coverage. For more information, see Bob Whitley’s Blog entry 6/19/ 2010
A PLAINTIFF STRUCK BY A COMMERCIAL BUS
SETTLED FOR $3,500,000 – 8/16/2008Case name and number: Confidential
Principal injuries (in order of severity): Traumatic brain injury and hip fracture
Special damages: $191,101 (Medical Expenses)
Tried or settled: Settled
Court: Confidential
Date concluded: September 16, 2008
Name of judge: None (mediation)
Amount: $3,500,000
Insurance carrier: Not applicable
Expert witnesses and areas of expertise: Linda Sproat, HealthCare Strategies, Inc.; Dixon Pearsall, Pearsall Vocational Services; Dr. Edwin Cooper, M.D., P.A.; Dr. C. Thomas Gualtieri, N.C. Neuropsychiatry; Dr. Finley Lee; Dr. Edwin Cooper, M.D., P.A., Kinston Orthopedic and Sports Medicine; Dr. Patrick O’Brien, Carolina Rehabilitation & Surgical Associates; Learning Services
Attorneys for plaintiff: Robert E. Whitley of Whitley Law Firm (Kinston)
Submitted by: W. Thompson Comerford, Jr., plaintiff’s attorney
Description: A plaintiff struck by a commercial bus settled her claim against the defendant for $3.5 million after a post-mediation conference in the defendant’s attorney’s office. Kinston attorney Robert E. Whitley represented the plaintiff, a 22-year-old single female who was a passenger in an auto that was struck almost head-on by the commercial bus on Oct. 18, 2006. The plaintiff was transported to the hospital at Chapel Hill. Her most significant injuries were a traumatic brain injury and left-hip fracture.
She was discharged from a rehabilitation center to her home on Nov. 8, 2006, with attendant-care instructions. Because of the rural area in which the plaintiff lived with her family and the lack of nearby resources, the plaintiff was eventually able to obtain a loan on her case so as to allow her admission to Learning Services of Raleigh. At Learning Services, she underwent therapy, rehabilitation, general observation, counseling and treatment for her brain injury. The loan allowed the plaintiff to stay at Learning Services for approximately two months. Her stay contributed, in part, to a significant recovery from her brain injury. At mediation, there was no significant offer made by the defense, and the case was on a trial calendar for Oct. 13, 2008.
As trial depositions were being taken in the weeks and months leading up to the trial date, the defense requested a settlement conference, one-on-one, with the plaintiff’s attorney and the head of the carrier’s claims department. Basically, “old-fashioned” settlement negotiations took place. The plaintiff elected to settle the claim for $3.5 million in part because of the enormous amount of cost that would be incurred in the months leading up to the trial by way of trial and discovery depositions. The plaintiff structured a large portion of the settlement proceeds in an annuity at a cost of $1.5 million, which will pay over her expected life a total of approximately $9 million.
WORKER INJURED IN AUTO ACCIDENT
AWARDED $1.2 MILLION – 8/13/2007Case name: Confidential
Number: 05 CVS 180
Court: Carteret County
Verdict/settlement: Arbitration panel
Arbitrators: Marshall Gallop, Joe Edwards and Chuck Simpson
Amount: $1.2 million
Special damages: $154,780
Past lost wages: $87,760
Future lost wages: $709,200 (as computed by economist)
Date obtained: March 13, 2007
Demand: $1 million UIM coverage and $100,000 liability coverage
Offer: None
Plaintiff’s attorney: Robert E. Whitley of Whitley Law Firm (Kinston)
Plaintiff’s experts: Dr. Ed Cooper, IME; Gary Albrecht, economist; Dixon Pearsall, vocational
Submitted by: Alicia Delamere
Description: This matter was brought before a panel pursuant to the binding arbitration provision of the underinsurance policy. The panel awarded the plaintiff $1.2 million (medical bills, past lost wages, future lost wages) for injuries suffered from a motor vehicle accident in which the plaintiff sustained injuries to the knee, arm and pelvic areas.
The plaintiff settled a worker’s compensation claim prior to the arbitration of the third-party claim.
The plaintiff was operating a commercial vehicle when the defendant crossed the center line and struck the plaintiff’s vehicle head-on, the plaintiff said. Timely investigation resulted in accident scene photographs being taken and the recording of eyewitness accounts.
The plaintiff was age 42 at the time of the accident. He had worked as a laborer throughout his life and for 19 years had been a roofer for a major construction company in Carteret County. He was the superintendent of all roofing projects for the company, earning $19 per hour and supporting a wife and one child when the accident occurred.
At the arbitration hearing, the main issue was whether the plaintiff was totally and permanently disabled from gainful employment. The plaintiff’s work ethic and determination was a central theme in the presentation of the case. The plaintiff’s employer and family testified that the plaintiff returned to his job more than a year after the accident, and he was unable to perform the tasks that the job required and which he had been previously able to perform.
A vocational expert testified that, at the time of the hearing, the plaintiff was unemployable. However, through proper vocational rehabilitation, he could return to work at a job that paid much less than he was earning at the time of the accident.
The defense relied upon a physical capacity exam conducted by a rehabilitation service on behalf of the workers’ compensation carrier. The test showed the plaintiff could return to medium work. The plaintiff testified he took two Percocets before the exam, and he was determined to do whatever it took to get his job back.
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