Verdicts and Settlements PDF Print E-mail

Verdicts and Settlements: Reported Cases

 

The verdicts headlines below lead to examples of cases in which the attorneys of Thomas, Ferguson & Mullins, LLP participated as counsel for the Plaintiff. The case reports come from the archive of the North Carolina Lawyers Weekly, Durham Herald Sun, News & Observer, and other news sources. Due to confidentiality provisions in other settlements, some of our firm’s cases are not reported upon by the news media and the amounts of those settlements cannot be disclosed. Unless specifically stated otherwise, these reported cases involve contested liability. Our attorneys fought and won these favorable verdicts and settlements for our clients.

Note: Each case is different. The results of these cases cannot be used as a basis for predicting the results in future cases. Each case is judged on its own unique set of facts.


$2.6 Million Recovery for Truck Wreck Victim with Fractured Hip, Femur and Ankle

$600,000 Recovered for Family of Victim in a Motor Vehicle Collision – Victim was Elderly, Disabled, and Suffering from Multiple Serious Illnesses

$1.4 Million Recovered for Family of Disabled, 60 year old Man Killed in Truck Wreck

$1,244,636 Recovered for Victim of Tractor Trailer Collision Who Suffered Injuries to Her Pelvis and Legs

$175,000 Recovered for Elderly Female Who Suffered Rib and Facial Fractures and Underwent Chiropractic Adjustments

Premises Liability -- $203,000 Recovery for Injured Tenant on Negligence, Landlord-Tenant Liability, and Statutory Claims

DOT loses new trial bid vs. Holmes Oil Jury awarded 66 times what state had offered for land

Jury says DOT owes 66 times its offer, - Jurors award $995,000 to Durham landowner; State had offered $14,959

$1,020,500 Recovered for Elderly Grandmother and Mentally Disabled Granddaughter for Motor Vehicle Crash Injuries - - Traumatic Brain Injury (TBI)

$475,000 Settlement: Scalding Water Burns Child’s Waistline

$469,638.90 Recovered for Slain Worker’s Family Despite Claims of Contributory Negligence by Slain Worker – Construction Site Accident

$800,000 Recovered for Brain Injury Victim Involved in Tractor-Trailer Wreck - Allegations of Contributory Negligence Asserted against Victim (Victim was Illegal Alien who spoke only Spanish)

$741,309.25 Settlement for Fractured Hip & Leg of Driver Struck by Commercial Driver

Man tricked out of motels - Durham jury agrees ex-wife took advantage of man to gain control of millions in property

Complex Business Litigation with Jury Trial - Jury Verdict in Favor of Hotel Founder, Property Valued over $8.7 Million

County Settles with U-Haul and Pays Owner $2,825,000; Initial Offer Was $1,300,000

County Settles with Scarborough and Hargett Funeral Home and Pays $3,750,000; Initial Offer was $1,300,000

Wrongful Death - $815,000 Recovered for Family of Victim Killed by Drunk Driver, Successful Claims against Drunken Driver and the Bar That the Served Drunk Alcohol

$9,500,000 Recovered for Young Man Who Suffered Traumatic Brain Injury (TBI) in Commercial Vehicle Crash - - Pedestrian hit by Garbage Truck

$2.6 Million Recovery for Truck Wreck Victim With Fractured Hip, Femur and Ankle

Type of Action: Automobile Negligence, Trucking Negligence, Violations of Federal Motor Carrier Safety Regulations (FMCSR’s)

Injuries Alleged: Multiple fractures of femur, hip and leg to female plaintiff, age 43 on date of collision. Injuries required multiple surgeries. Plaintiff is a resident of Wake County. At the time of her injury, she was gainfully employed in an office position at a medical doctor’s office, supporting herself, her two adult children, and one of her grandchildren.

Name of Case: [CONFIDENTIAL]

Court and County with Case #: [CONFIDENTIAL] Filed in a county in Eastern North Carolina

Settlement/Trial: Case settled at a second mediated settlement conference after numerous depositions, and an earlier mediation.

Name of Judge or Mediator: Robert A. Beason, Mediator

Special Damages: EMS, Surgeon Fees, and Hospital Charges $255,842.03; Net Lost Income to Date $52,920; Future Lost Income to Age 68 $617,000 (not reduced to present value); and Future Medical/Surgical Expenses: unknown

Verdict or Settlement: Settlement

Amount: $2,600,000 ($100,000 from automobile driver’s insurers; $2.5 million from truck driver’s insurers)

Date of Verdict or Settlement: Dismissal filed August 4, 2008.

Most Helpful Experts (Name, Title, Location): Timothy Harris, orthopedic surgeon (hip/femur), Wake Orthopedics, Raleigh, NC; Sarah DeWitt, orthopedic surgery (foot/ankle), Orthopaedic Surgery of Foot & Ankle, P.A., Raleigh, NC; Reggie Hines, Trucking Safety Regulations and Industry Standards, Mt. Olive, NC; Ed Livesay, Accident Reconstructionist, Lemon Springs, NC; Janey Barnes, Ph.D., Human Factors Expert, Raleigh, NC; Markay Media and Cynthia Hill, video production, Durham, NC; and, The Visual Advantage, medical illustrations and courtroom exhibits, Knightdale, NC. Insurance Carriers: [CONFIDENTIAL]

Lead Lawyer for the Plaintiff : Philip A. Mullins, IV of Thomas, Ferguson & Mullins, LLP, Durham, NC, 919-682-5648, fax 919-688-7251

Description of Case, evidence presented, and arguments made: The North Carolina Highway Patrol investigated this serious collision. Without the work of Troopers W.P. Moore and C.C. Cayco, much of the evidence would have been destroyed such that the trucking company and their truck driver would have avoided liability. Plaintiff’s experts used the information provided by the Highway Patrol to establish that both drivers, the trucker and the automobile driver, were liable for all damages sustained by the badly injured plaintiff. Through depositions of the truck driver and trucking company’s safety director, more damning evidence was obtained. The plaintiff was a rear seat passenger in an automobile that was driven into the rear of a stopped tractor trailer. The collision occurred on US Hwy 64 during daylight in a county east of Wake County. However, it was raining badly and the auto driver’s visibility was poor. The stopped tractor trailer was approximately five to seven feet to the right of the solid white line on the paved shoulder of the highway under an overpass.

The liability insurers for the passenger vehicle accepted liability and paid their policy limits ($100,000 per claimant). The trucker, his employer the trucking company and their liability insurers refused to accept any responsibility for the collision and refused to even discuss with plaintiff’s counsel any settlement prior to initiation of a lawsuit. The trucking defendants denied all liability in their pleadings and in their depositions. This was despite the fact that the Highway Patrol documented over 10 violations of the Federal Motor Carrier Safety Regulations, including the trucker’s failure to turn on his four-way flashers (“emergency flashers”) and his failure to place out the three warning triangles behind his stopped truck. The automobile driver indicated that she saw the truck, but thought it was moving in a normal fashion on the highway and simply tracked in behind it only to realize a second before impact that it was actually stopped. At the first mediation, even after showing all the evidence supporting the plaintiff’s claims against them, the trucking defendants did not want to pay nearly what the damages required. Also, in that initial mediation, the trucking defendants continued to claim there was no proximate cause in that the truck was stopped for over 30 minutes and parked so far off the road.

After that first mediation, plaintiff’s counsel conducted two focus groups to assess issues raised by the trucking defendants throughout the case. At the second mediation, plaintiff’s counsel shared the results of the two focus groups including exit interviews with jurors, their verdict sheets, and their responses to jury questionnaire questions to establish reliability of the focus groups’ verdicts and jurors’ comments. The plaintiff is an incredibly bright, kind, hard-working woman who would have presented well in any county in the State. Her injuries were significant. The Visual Advantage did a fine job illustrating her injuries and medical procedures in exhibits which we were prepared to take before a jury.

Amount Actually Recovered for Client: 100% recovery, ie., $2,600,000 (Two Million Six Hundred Thousand Dollars).

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$600,000 Recovered for Family of Victim in a Motor Vehicle Collision – Victim was Elderly, Disabled, and Suffering from Multiple Serious Illnesses

 

Type of Action: Wrongful Death, Automobile Negligence, Trucking Negligence, Violations of Federal Motor Carrier Safety Regulations (FMCSR’s)

Injuries Alleged: Broken neck, fatality within minutes of collision.

Name of Case: [CONFIDENTIAL]

Court and County with Case #: [CONFIDENTIAL] Filed in a county in Eastern North Carolina

Settlement/Trial: Case settled at a mediated settlement conference after numerous depositions.

Name of Judge or Mediator: Robert A. Beason, Mediator

Special Damages: Funeral/Burial Expenses $9,742.

Verdict or Settlement: Settlement

Amount: $600,000 ($100,000 from automobile driver’s insurers; $500,000 from truck driver’s insurers)

Date of Verdict or Settlement: Dismissal filed June 26, 2008.

Most Helpful Experts (Name, Title, Location): Charles A. Cook, M.D., Raleigh Associated Medical Specialists (family practice), Raleigh, NC; Reggie Hines, Trucking Safety Regulations and Industry Standards, Mt. Olive, NC; Ed Livesay, Accident Reconstructionist, Lemon Springs, NC; Janey Barnes, Ph.D., Human Factors Expert, Raleigh, NC; and, Markay Media and Cynthia Hill, video production, Durham, NC.

Insurance Carriers: [CONFIDENTIAL]

Lead Attorney for the Plaintiff : Philip A. Mullins, IV of Thomas, Ferguson & Mullins, LLP (Durham), 919-682-5648, fax 919-688-7251

Description of Case, evidence presented, and arguments made: Decedent was a 65 year old woman who was in the rear seat of a passenger automobile that crashed into the rear of a stopped tractor trailer truck. The truck was parked approximately five to seven feet to the right of the white line on the paved shoulder of US Highway 64 in a county east of Wake County. The truck was parked under an overpass. It was raining very hard. The driver of the car in which the Decedent was riding could not see well due to the heavy downpour and thought the truck was moving in a normal fashion. The car was going over 50 m.p.h. when it rear-ended the parked tractor-trailer. The truck driver had failed to turn on his emergency four-way flashers and had also failed to put out the 3 bi-directional warning triangles. Numerous other violations of the Federal Motor Carrier Safety Regulations (FMCSR’s) were found.

The North Carolina State Highway Patrol cited the automobile driver for driving too fast for conditions. The North Carolina State Highway Patrol noted over 10 violations of the Federal Motor Carrier Safety Regulations and placed the trucker out of service. The Decedent was married, but living separate from her husband. They had been married for well over 30 years. They had five adult children, and several grandchildren. At the time of her death, the Decedent resided in Wake County. The collision occurred in a county east of Wake County. The Decedent had multiple serious illnesses including Alzheimer’s, Parkinson’s, diabetes, heart disease, and she had suffered a stroke several years before this crash. Her medical condition required her to have daytime live-in nursing assistance. Despite her health conditions, the Decedent lived a vibrant, productive life. Fortunately, for over a dozen years, the Decedent was followed by her family physician, Charles A. Cook, M.D. of Raleigh Associated Medical Specialists. Dr. Cook provided information to support plaintiff’s position that, despite all these health concerns, but for the collision the Decedent would have likely lived 16.8 more years per the North Carolina Mortality Tables. Dr. Cook and other witnesses noted that, although she was not gainfully employed (no wage loss submitted), she was very involved in helping others and was a very productive, important person in others’ lives.

The Decedent was involved in the lives of many who needed her help, advice, encouragement, and comfort including neighbors, young women in the community, and many in her church. Her minister, Sherry Walker of Garner, was very helpful in providing insight into how important this woman was to her children, people in their church, and those who knew her. To most of their congregation, the Decedent was known simply as “Mother Catherine.” Plaintiff’s counsel submitted a settlement video to defense counsel with compelling testimony from the Decedent’s children, surviving spouse, family friends, minister, and other people that the Decedent had counseled, comforted and helped in the months preceding her death. At the time of the collision, the Decedent was being driven to a wedding in Eastern North Carolina. The Decedent’s nephew was going to be married and the bride and groom were going to honor her at their wedding for her importance in helping them make good decisions in their lives.

Amount Actually Recovered for Client: 100% recovery, ie., $600,000 (Six Hundred Thousand Dollars).

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$1.4 Million Recovered for Family of Disabled, 60 year old Man Killed in Truck Wreck

Type of Action: Automobile Negligence, Trucking Negligence, Violations of Federal Motor Carrier Safety Regulations (FMCSR’s), Violations of Trucking Company’s Safety Policies, Wrongful Death

Injuries Alleged: Wrongful death case where decedent sustained multiple fractures and internal organ damage. Decedent was 60 year old male on date of collision. His fractures and organ damage required surgeries and intensive care treatment, patient was doing well initially, but could not survive so many serious injuries. Plaintiff’s decedent is a resident of an eastern North Carolina county. At the time of his injury, he was not gainfully employed and was drawing social security due to a back injury. He was happily married to his third wife. He had three adult, non-dependent children from his first two marriages, but all three lived far away. Only one child had seen him in the last five years of his life. Decedent was a volunteer fireman who was driving from him home to the station when the collision occurred; a firefighter’s fund paid his medical bills and their lien was addressed in settling this third party liability claim.

Name of Case: [CONFIDENTIAL]

Court and County with Case #: [CONFIDENTIAL] Filed in a rural county east of Charlotte, North Carolina

Settlement/Trial: Case settled at a mediated settlement conference after numerous depositions of fact and expert witnesses.

Name of Judge or Mediator: Donald Beskind, Mediator

Special Damages: EMS, Surgeon Fees, and Hospital $514,255.15; Funeral $ 1,652.35.

Verdict or Settlement: Mediated Settlement

Amount: $1,400,000.00

Date of Verdict or Settlement: Dismissal filed December 2009.

Most Helpful Experts (Name, Title, Location): Mary McMillan, Legal Nurse Consultant, Raleigh, NC; Michael Sutton, Accident Research Specialists, PLLC, Cary, NC (accident reconstruction expert) Michael K. Napier, Napier Diversified Services, Inc., Macon, GA (trucking industry standards) Cynthia Hill, Markay Media, Durham, NC (video production); and, Mark Valentine, The Visual Advantage, Wendell, NC (medical illustrations, courtroom exhibits)

Insurance Carriers: [CONFIDENTIAL]

Attorney(s) for Plaintiff : Philip A. Mullins, IV of Thomas, Ferguson & Mullins, LLP (Durham), 919-682-5648, fax 919-688-7251

Description of Case, evidence presented, and arguments made: This collision occurred in a 45 mph zone on a rural two lane paved road at night. Weather was not a factor. A passenger car under rode the left side of a semi-truck’s trailer that was completely blocking the car’s lane of travel. The trucker initially told investigators that he had pulled to the stop sign, looked both ways, seeing it was clear he began pulling out and then the passenger vehicle claim crested the hill about a 2/5ths of a mile away and just did not slow down to avoid his trailer. He claimed the passenger vehicle was speeding.

The plaintiff’s decedent was never able to voice his side of what occurred that night due to injuries and death. Thus, the defense took the position it was a no-negligence by its trucker and that the collision was entirely caused by the plaintiff’s decedent’s negligence in speeding and in failing to stop when it was obvious the road was blocked. The State Highway Patrol investigated this collision. Without the work of troopers involved, much of the evidence would have been destroyed such that the trucking company and their truck driver would have avoided liability. Plaintiff’s experts used the information provided by the Highway Patrol to establish that the trucker, and not the automobile driver, was solely liable for all damages sustained by the decedent and that the decedent did not have the time nor means to have avoided the collision.

While photographs did show that the trailer had conspicuity tape, side marker lights, and reflective tags around the trailer, which did not control. If the trucker was backing into the side road as plaintiff contended, the ‘cone of light’ caused by the trucker’s headlights would block the decedent’s view of the side markers on approach until it was too late for him to avoid the collision. Through physical evidence, statements by the trucker at the scene, and statements elicited from him during his daylong deposition, it became clear that the trucker was attempting to back into a side road and had blocked both lanes of travel on this somewhat hilly, two lane 45 mph road when the collision occurred at around midnight. Once that became evident, the multiple experts that the trucking company’s liability carrier hired were discredited as relying on unreliable statements by a discredited witness. Depositions of the defendant truck driver, trucking company’s safety director, and accident reconstruction expert were necessary to expose the truck driver’s falsehoods and bring a fair resolution to this case. The decedent’s widow was the administrator of the estate. She focused on vindicating her husband and proving he was not responsible for causing the collision. She was deposed and did well. The Visual Advantage’s illustrations of the injuries and medical procedures were instructive for the claims supervisors in attendance at the mediation.

Amount Actually Recovered for Client: 100% recovery, ie., $1,400,000 (One Million Four Hundred Thousand Dollars).

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$1,244,636 Recovered for Victim of Tractor Trailer Collision Who Suffered Injuries to Her Pelvis and Legs

Type of Action: Motor Vehicle Negligence, Truck or Tractor Trailer Wreck, Violation of Federal Motor Carrier Safety Regulations

Injuries Alleged: Initial injuries included femur fracture, tibial plateau fracture, cuboid fracture, talar neck fracture and SI joint fracture. Plaintiff sustained a partial permanent disability of her ankle (10%), knee (10%) and an additional 5% PPD for her leg based upon reflex sympathetic dystrophy.

Name of Case and County: *Confidential to protect Client’s Interest*

Date of Mediation: November 25, 2002

Name of Mediator: Marshall A. Gallop, Jr., Rocky Mount, NC

Special Damages: Past Medical Expenses Incurred $261,922.00

Verdict or Settlement: Settlement

Amount: $1,244,636.00

Most Helpful Experts (Name, Title, City): Fred C. Tyner, Accident Reconstruction Engineer, Raleigh, NC; Cynthia L. Wilhelm, Life Care Planner, Chapel Hill, NC; Medical Illustrations by Mark Valentine of The Visual Advantage in Knightdale

Lawyers for the Plaintiff: William J. Thomas, II and Jay H. Ferguson of Thomas, Ferguson & Mullins (Durham), 919-682-5648, fax 919-688-7251

Description of Case, the Evidence Presented, the Arguments Made, and/or Others Useful Information: Two truckers traveling side-by-side on I-85 in Durham County bumped, causing one of the trucks to veer across the median and into approaching traffic striking a car in which the plaintiff was a passenger. Plaintiff, a 22 year-old mother of an infant son, suffered severe injuries to her pelvis and legs. Evidence at the scene of the wreck showed that the truck in the right lane of travel veered out of his lane and bumped the truck in the left lane, causing the collision. Also, the electronic control module revealed the trucker that veered out of its lane was in violation of the Federal Motor Carrier Safety Regulations for driving more than permitted, contrary to his recorded driving time in his daily driving logs. This trucker’s insurer tendered its limits of coverage - which was apportioned with the driver of the car in which the plaintiff was riding.

Amount Actually Recovered for Client: 100% recovery, i.e., $1,244,636.00 (One Million Two Hundred Forty-Four Thousand Six Hundred and Six Dollars).

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$175,000 Recovered for Elderly Female Who Suffered Rib and Facial Fractures and Underwent Chiropractic Adjustments

Type of Action: Motor Vehicle Negligence

Injuries Alleged: Cracked Ribs; Hairline Fractures of Left Eye Bones and Maxillary Sinus (dashboard injury); Supra-orbital Nerve Injury

Name of Case and County: *Confidential*

Tried before (Judge, Jury, Arbitrator): Mediation

Name of Judge: Jim Billings from Raleigh, NC served as Mediator

Special Damages: At least $21,000 Past Medical Expenses Incurred*; $6,000 Lost Wages

Verdict or Settlement: Settlement

Amount: $175,000.00

Highest Offer: After depositions, $50,000 at time of 1st trial setting. Plaintiff took a dismissal, her attorneys associated Philip Mullins who re-filed the lawsuit and achieved the recovery reported.

Most Helpful Experts (Name, Title, City): Colin Kurtz of Kurtz Family Chiropractic Center in Wilson, Chiropractor; ECU Medical Center in Greenville, NC; Medical Illustrations by Mark Valentine of The Visual Advantage in Knightdale

Lead Attorney for Plaintiff : Philip A. Mullins, IV of Thomas, Ferguson & Mullins (Durham), 919-682-5648, fax 919-688-7251

Description of Case, the Evidence Presented, the Arguments Made, and/or Others Useful Information:
This female plaintiff was 59 years old at the time of this collision. This was a major collision caused by the defendant pickup truck driver’s failure to pay attention to a red light. Defendant’s liability was not contested. Causation, damages, and any permanency were all contested matters. She had a significant history of headaches and an extensive number of emergency room visits for her headaches before and after the collision. Plaintiff began using a very significant amount of pain killers following the collision. There were a number of gaps in treatment. Some of the gaps in treatment were over 2 months. If all the emergency room visits were related to the collision, the Plaintiff’s medical bills were considerably more than $21,000.* However, the defense contested that unless any doctor testified that they were causally related, the majority of the bills were not included in their evaluation of the claim.

At the time of settlement, no physician had testified. Plaintiff maintained that she had severe pain in the initial weeks following the crash as a result of several fractured ribs. Thereafter, she had back and neck pain that her chiropractor at Kurtz Family Chiropractic helped treat. A few months following the wreck, she began experiencing intermittent pain that grew worse over time. That pain began in the left side of her face near her eye and radiated up her face onto the top of her head. One physician did mention radiating pain and questioned whether she had supra-orbital nerve damage in the collision. None of the diagnostic studies were dispositive as to whether she had permanent nerve damage. Plaintiff contended she had permanent injury to her supra-orbital nerve which caused severe pain throughout her face and head. The defense asserted that there was evidence that the plaintiff appeared to be abusing pain medications. The plaintiff and her family would have presented very well to the jury. There were several photographs to establish the violent force of the collision. Colorized radiological studies illustrated the fractures. To the extent the plaintiff was abusing pain medications; she had not been doing so until this collision.

Amount Actually Recovered for Client: 100% recovery, ie., $175,000 (One Hundred Seventy-Five Thousand Dollars).

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Premises Liability -- $203,000 Recovery for Injured Tenant Negligence Claim, Landlord-Tenant Liability, and Statutory Claims

Brief Statement of Claim: Tenant was badly injured due to his apartment ceiling’s collapse. Premises liability, landlord liability.

Principal Injuries (in order of severity): Nerve and subcutaneous damage to right ankle and foot, resulting in 25 percent Permanent Partial Disability rating and scarring; aggravation/exacerbation of pre-existing mental condition.

Special Damages: Medical bills $22,000; lost wages $12,789

Tried or settled: Mediated settlement

County where tried or settled: Durham

Case Name and number: *Confidential, to protect client’s interests*

Date Concluded: May 9, 1996

Name of Mediator: Lacy M. Presnell, Raleigh, NC

Amount: $105,000 lump sum payment; unencumbered real property deed to plaintiff; $450 per month for the greater of plaintiff's lifetime or 15 years; present value of $203,305

Expert Witnesses and areas of expertise: Greg Georgiade, M.D., Duke University Medical Center, plastic surgeon (Durham).

Lead Plaintiff’s Lawyer: Philip A. Mullins, IV, Thomas, Ferguson & Mullins, LLP, (Durham), 919-682-5648, fax 919-688-7251

Description of Case, the Evidence Presented, the Arguments Made, and/or Others Useful Information: The plaintiff, a residential tenant in low-income housing, sued a property management company and owner after the tenant’s ceiling collapsed. He alleged gross negligence in repairing the property under common law and gross negligence in failing to maintain the property in a fit and habitable condition as required by the North Carolina Residential Rental Agreements Act, G.S. § 42-38 et seq. The plaintiff maintained that violations of the statute resulted in joint and several liability of the manager and the property owner. In 1990 a portion of the living room ceiling collapsed. The manager's repairman patched the hole but did not repair the remaining portion of the ceiling or make any repairs to the roof. In August 1994, a different portion of the same ceiling collapsed on the plaintiff, resulting in a de-gloving injury to his right foot and ankle. The defendants denied that both collapses occurred as a result of water damage due to a leaking roof. From 1991 until the second collapse, the plaintiff made several complaints and requested that the defendants inspect the ceiling's condition and make necessary repairs. The defendants denied that such complaints were made and disclaimed any liability. They maintained there was never a leak in the roof and that the ceiling just collapsed. They alleged contributory negligence and initially made an offer of $50,000 which was withdrawn during discovery. Prior to obtaining his disability rating from Dr. Georgiade, two other treating physicians at Duke University Medical Center wrote that the plaintiff could return to work without restrictions in October 1994. The defendants maintained that all lost wages after October 1994 were solely due to the plaintiff's pre-existing mental condition and were unrelated to the 1994 accident. The defendant's position regarding special damages resulting from the accident was as follows: medical bills for foot/ankle injury, approximately $10,000; lost wages from Aug. 17, 1994 through Oct. 17, 1994, $1,770.

Amount Actually Recovered for Client: 100% recovery, ie., Present value of $203,305: $105,000 lump sum payment; unencumbered real property deed to plaintiff; and $450 per month for the greater of plaintiff's lifetime or 15 years.

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DOT loses new trial bid vs. Holmes Oil
Jury awarded 66 times what state had offered for land

Heraldsun.com
The state Department of Transportation has lost its bid for a new trial in a land-condemnation case that saw a jury award Holmes Oil Co. of Durham $995,000 in August. The sum was 66 times what DOT had offered, making it one of the largest -- if not the largest -- factors by which an eminent domain award was ever increased in North Carolina. The next highest multiplier anyone could remember Monday was 13. Meanwhile, newly filed court documents indicate that interest alone on the Holmes verdict is more than DOT offered to pay.

According to the documents, the amount of accrued interest at 8 percent has now topped $257,000, bringing the amount owed Holmes to more than $1.2 million. In unsuccessfully seeking a new trial, DOT contended that an appraiser was erroneously allowed to voice his opinion about the value of the disputed property, testifying that Holmes suffered damages of $850,000 when its gas station and convenience store complex -- at N.C. 54 and N.C. 55 -- was reduced in size. But the new court documents indicate that Judge A. Leon Stanback thought the appraiser's testimony was fine. "Appraisers must be given wide latitude in formulating and expressing their opinions of value," he wrote. Stanback, who was the trial judge, said he "did not err" in allowing the appraiser to testify. If the Holmes convenience store could no longer function, the site "would only have value as a vacant site and the damages would be $1,140,000," said Stanback, citing evidence in the recent trial. "The jury's verdict of $995,000 was, therefore, supported by the evidence."

As a result, Stanback denied the state's bid for a new trial. Attorney Spurgeon Fields, representing DOT, had no comment Monday. Other officials predicted the case would go to the state Court of Appeals. If so, interest will continue to accrue at 8 percent until the $995,000 judgment is paid or overturned. "I'm very pleased the judge upheld this verdict," Holmes lawyer Jay Ferguson said Monday. "I expect the Court of Appeals will do the same," added Ferguson, who represents Holmes along with attorney Emmett Haywood. The appraiser testified that Holmes' property became a "dysfunctional mess" when DOT took two road easements it needed for highway widening at the busy intersection. Ferguson said that even though only a small part of the gas station complex was condemned, the remaining portion drastically lost value because the business was left with only one driveway entrance instead of two. DOT initially offered Holmes only $900 -- and later $14,959 -- for the property. The state eventually raised the ante to $25,000 but never went any higher, according to lawyers involved in the case. Some lawyers believe the case highlights a need to overhaul land-condemnation procedures, which are controlled by what the state believes to be "just compensation."

© Heraldsun.com Copyright 2008. All rights reserved.

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Jury says DOT owes 66 times its land offer Jurors award $995,000 to Durham businessman; State had offered $14,959

Heraldsun.com
The state thought $14,959 was the right price to pay a Durham businessman for two road easements at a busy Durham intersection. Durham County jurors were of a different mind. This week, the jurors decided the Department of Transportation must pay Holmes Oil Co. $995,000 for the land -- 66 times the DOT's initial offer. Two Holmes lawyers, as well as other attorneys familiar with such cases, said 66 was perhaps the largest multiplier ever achieved in a local condemnation action. The next highest multiplier anyone could remember was 13. "In all my 15 years practicing eminent domain law, it is the highest multiple I can recall ever being paid in a DOT case," lawyer Emmett Haywood said Friday of the Holmes verdict. The DOT did not indicate whether it would appeal.

Attorney Spurgeon Fields, representing the DOT, had no comment Friday. Haywood, who represented Holmes, along with attorney Jay Ferguson, said the law requires DOT to pay not only for the land it takes, but also for damages to what's left. "The DOT wants to put blinders on and say they should just pay for what they are taking and not pay for any of the damages they are causing," Haywood said. In the Holmes case, an appraiser testified that the company's gas station and convenience store complex at N.C. 54 and N.C. 55 was left a "dysfunctional mess" by the DOT's condemnation, which was undertaken to widen the highway there. The appraiser estimated damages to Holmes at $850,000. "The backbone of our economy is small business," said Haywood. "Holmes Oil operates 19 convenience stores today and employs 160 people. Government gives subsidies to the big companies to relocate here, but yet that same government doesn't want to help the small business, which is being hurt by the government's own actions."

According to Haywood, the Holmes case points to a need for reform in the "just-compensation" clause that controls condemnation payments. "The government's right to seize someone's property is one of its greatest powers," she said. "If the property owner has to fight to be paid fairly and has to pay his own real estate appraiser, attorney, engineer and other experts, how can this be just compensation?" The DOT's highest offer for the Holmes property, made not long before trial, was $25,000 -- still magnitudes below the $995,000 jury verdict. Ferguson said Friday that even though only a small portion of the Holmes property was condemned, the remaining portion became far less valuable -- largely because the gas station and convenience store was left with only one driveway entrance instead of two. "It will no longer have suitable access," said Ferguson. "Mr. Holmes doesn't know if he can continue to operate or not." The DOT, he said, uses all its power to take people's property as cheaply as possible. So when the DOT takes only a portion of the property, it's vital for landowners to understand the full impact, he said. "While sometimes only small portions of a piece of property are taken, the impact can be devastating," Ferguson said. For that reason, it is critical to have engineers, appraisers and other experts evaluate the damages caused by DOT, he said. "When landowners are having their property taken by the government, they should know that the government is trying to get the property at a rock-bottom price, and they don't have to accept what the government is offering," the lawyer said. "Our Constitution requires that landowners be given full and fair compensation for their property. Landowners should never settle for less."

The Holmes case was not Ferguson's first victory against the DOT in a condemnation action. Three years ago, he won $98,219 for Irving and Gloria Whitney over 0.07 of an acre the state condemned to widen Cheek Road at Midland Terrace. That jury award was more than 13 times the DOT offer of $7,300. DOT also has endured several other higher jury-awarded sums here in recent years: *Last winter, a jury decided DOT must pay $66,509.62 for 1,271 square feet of land at N.C. 55 and Sedwick Road, near Interstate 40. At one point, DOT had offered only about $900 for the property, but it eventually upped the ante to $14,605.

 *Last year, to avoid the uncertainty of a jury trial, DOT agreed to pay an investment company $950,000 for 0.1 acre at Hillandale Road and Interstate 85. The state's original offer was $165,000.

*In 2003, DOT indicated it would pay $207,000 for property occupied by the former Pan-Pan diner, also at Hillandale Road and I-85. Jurors awarded more than $1 million after deliberating only 15 minutes.

*In November 2004, another jury deliberated just 11 minutes before deciding the state should pay $2.3 million for 0.6 acre it took from a Howard Johnson's hotel at the same roadway construction site. The jury award was more than seven times the $291,000 state officials initially were willing to pay.

© Heraldsun.com Copyright 2008. All rights reserved.

Cheek Road Powerball

Location, location, location goes the real estate mantra, and Irv Whitney figured the location of his little piece of God's green earth on Cheek Road was worth a lot more than the state Department of Transportation was willing to pay for a sliver. Five years ago, DOT took 0.07 acre of Whitney's land for a widening project, paying him $7300. Them's fightin' figures, or so Whitney might have said. He filed suit against DOT. Last week, a Durham County jury awarded Whitney $98,219 - 13 times the amount DOT paid him - for that 0.07 acre.

Was the award fair to the taxpayers of North Carolina? No. Was it fair to Whitney? You bet it was. As Whitney put it, his 3.6 acres on Cheek Road is "pretty much our 401(k) plan." The 0.07 acre taken by the DOT thus had far more importance to Whitney and his wife than anyone else.

DOT took 3,049 square feet of Whitney's land. The Jury award in effect set the price at $32.21 a square foot. In Whitney's defense, we should note that if a house in good condition had been on his 3,049 square feet, DOT likely would have paid much more than $98,219.

Whitney's attorney, Jay Ferguson, engineered the courtroom victory. This is Lawyer Ferguson's second trump of DOT. Two years ago, he won a jury award of $135,475 for a Wake Forest couple that had been offered $34,500 for part of their property.

Moral of these stories: If you think government is shortchanging you in a property taking, get an independent appraisal, a sharp lawyer and go to court. You might win the legal Powerball, just as Irv Whitney did.

© Heraldsun.com Copyright 2008. All rights reserved.


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$1,020,500 Recovered for Elderly Grandmother and Mentally Disabled Granddaughter for Motor Vehicle Crash Injuries - - Traumatic Brain Injury (TBI)

Type of Action: Motor Vehicle Negligence

Injuries Alleged: Two claimants involved, an 89 year old grandmother and her 30 year old granddaughter. The Grandmother’s injuries were fractured right orbit and optic nerve sheath injury, fractured right and left ulna and radius, and traumatic brain injury (TBI) which induced permanent dementia. The Granddaughter: contusions primarily from seat belt and emotional distress.

Name of Case and File Number: *Names Withheld to Protect Clients’ Interests*

County Where Case Filed: Durham County

Tried before (Judge, Jury, Arbitrator): Mediation on March 15, 2004

Name of Mediator: Andy Little, Chapel Hill, NC served as Mediator

Special Damages: $160,491 total medical bills. The Grandmother’s medical bills and living expenses from the date of collision until the date of mediated settlement conference were $155,450. The Granddaughter’s medical expenses were $5,041.

Verdict or Settlement: Settlement

Amount: $1,020,500.00

Highest Offer: After discovery and depositions, defense offered $60,000 claiming there was evidence of contributory negligence, no negligence by their driver (sudden emergency due to brake failure), and only $60,000 in insurance coverage. The defendant's insurance company and its counsel insisted there was no further insurance coverage; however, plaintiff's counsel located additional coverage.

Most Helpful Experts (Name, Title, City): Frances Ferguson, M.D. – internal medicine, Durham; Thomas Barber, M.D. – family medicine, Durham; David Sappenfield, M.D. – ophthalmologist, Durham; Mark Sebastian, M.D. – trauma surgeon at Duke Univ. Medical Ctr., Durham; Maggie Driscoll, R.N. – nurse consultant, Apex; Ann Neulicht – life care planner, Raleigh; Medical Illustrations by Mark Valentine of The Visual Advantage in Knightdale

Plaintiff’s Lawyers: Jay H. Ferguson and Philip A. Mullins, IV, Thomas, Ferguson & Mullins, LLP, (Durham), 919-682-5648, fax 919-688-7251

Description of Case, the Evidence Presented, the Arguments Made, and/or Others Useful Information: An elderly grandmother and her granddaughter were traveling in a residential area of Durham when a van driven by a vacuum cleaner salesman ran a stop sign causing a collision. The grandmother had legally adopted her granddaughter who was developmentally disabled. The granddaughter was totally dependent upon her grandmother for her daily requirements. Although she was 89 years old, the grandmother was independent, living in her own home and cooking, cleaning and caring for herself and her granddaughter. The granddaughter received minor injuries (seatbelt bruising), but was very upset for months following the collision as she witnessed her grandmother’s serious injuries and could not forget them. The grandmother received more significant injuries including the onset of long-term dementia requiring her to live in a nursing care facility for the remainder of her life. The defense contested liability. Due to the limited mental capacity of the granddaughter and the grandmother’s trauma induced dementia, the defendant driver’s rendition of how the collision occurred was very defense friendly. If believed by a jury, there would have been no liability. The defense contested damages. The defense claimed that the grandmother’s eye problems and dementia were age-related and due to pre-existing conditions, and were not caused by the collision. The defense hired an independent medical doctor to opine that the grandmother’s mental status was not permanently altered by this collision.

Amount Actually Recovered for Client: 100% recovery, ie., $1,020,500 (One Million Twenty Thousand Five Hundred Dollars).

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$475,000 Settlement: Scalding Water Burns Child’s Waistline

Type of Action: Negligence, After School Program's Negligent, Supervision of Children 

Injuries Alleged: Second degree scald burns on a 6-year-old boy’s right forearm, right hip and abdomen that resulted in permanent scarring and keloid formation on right hip at beltline. Scarring also caused psychological harm resulting in a diagnosis of Adjustment Disorder with Anxiety.

Name of Case: *Confidential*

Court and County with Case #: *Confidential, case was filed in eastern North Carolina*

Special Damages: $4,275.46 Past Medicals; $5-10,000 Estimated Future Medical Expenses.

Verdict or Settlement: Settlement.

Amount: $475,000.00

Date of Verdict or Settlement: January 7, 2003 settlement, just one day before mediation.

Most Helpful Experts (Name, Title, Location): J. Finley Lee, economist, Chapel Hill, NC; Scott Hultman, plastic surgeon, UNC Jaycee Burn Center, Chapel Hill, NC; Robert Clark, plastic surgeon, Cary, NC; Roger Moore, psychologist, Cary, NC; Carrie Dittner, psychologist, Cary, NC; Focus Video Productions, Creedmoor, NC; J Mac Video Productions, Raleigh, NC; and, John Elkins Photography, Durham, NC.

Lead Lawyer for the Plaintiff : Philip A. Mullins, IV of Thomas, Ferguson & Mullins, LLP (Durham), 919-682-5648, fax 919-688-7251

Description of Case, evidence presented, arguments made and other useful information: The day before the plaintiff’s 6th birthday, he was injured while in the care of an after school care program operated by a local public school. The after school program took all the children ages five and six to the cafeteria to study the properties of water (solid, liquid and gas) and set up an electric hotplate on a cafeteria table with an very large pot of water on top. Once the water came to a rapid boil, the employees called the young children over to the pot and discussed the steam. The young child tripped over the electric cord as he was leaving the table area and it pulled the pot off the table with the boiling water spilling on his right arm, stomach and right hip. The workers also failed to timely remove the child’s clothing that was soaked with boiling water. Thus, the child sustained extensive second degree burns resulting in loss of skin over 6% of his total body surface area including right forearm and abdomen. The waistband held the boiling water tightly to the child’s right hip causing large keloid formation. In addition to extensive discoloration from permanent pigment damage, experts noted that this child now had a very substantial increased risk of skin cancer. In that Plaintiff is a black child who, pre-accident had a negligible risk of skin cancer, Plaintiff contended this now significant risk of skin cancer would eliminate the child’s ability to procure health insurance at the standard rate.

The lifetime cost differential between health insurance at the standard rate versus non-standard rate was staggering. Several health underwriters and medical directors of underwriting departments confirmed Plaintiff’s theory that the burns were underwriting concerns beyond just the scarring involved despite the fact that there was no impairment rating or scarring down on joints to reduce function. By submitting the medical records to the liability carrier’s own approved list of annuity companies, Plaintiff obtained age rating further confirming the significant impact such burns have on one’s long-term health. Photographs taken within hours of the accident and the weeks following illustrated Plaintiff’s painful burns and the excruciating recovery, including changing wound dressings. These photographs along with video statements from witnesses proved helpful in establishing the irrefutable value of Plaintiff’s claim. Additionally, Plaintiff’s counsel “doubled up” on expert witnesses so that independent medical examination or medical record reviews concerning permanency or extent of injury were unwarranted. Liability was contested.

Amount Actually Recovered for Client: 100% recovery, ie., $475,000 (Four Hundred Seventy-Five Thousand Dollars).

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$469,638.90 Recovered for Slain Worker’s Family – Construction Site Accident

Type of Action: Negligence, Construction Accident, Wrongful Death

Injuries Alleged: Middle-aged male died when heavy objects fell onto his body while he was working at a construction site.

Name of Case: *Confidential *

Court and County with Case #: *Confidential, in a county east of Charlotte, NC*

Verdict or Settlement: Settlement at mediated settlement conference.

Name of Mediator: Sam Q. Carlisle, II, Pinehurst, NC, Mediator

Special Damages: $4,805.00 Funeral/Burial Expenses

Verdict or Settlement: Settlement

Amount: $469,638.90: $375,000.00 via tort recovery from general contractor; and, another $94,638.90 recovered from decedent’s employer-subcontractor via workers compensation.

Date of Verdict or Settlement: October 9, 2009

Most Helpful Experts (Name, Title, Location): Howard J. Rigsby, M.E., accident reconstruction engineer, OSHA & construction industry standards Charles R. Manning, Jr., Ph.D., P.E., accident reconstruction engineer Cynthia Hill, Markay Media, Durham, NC (video production); and, Mark Valentine, The Visual Advantage, Wendell, NC (medical illustrations, courtroom exhibits)

Insurance Carrier(s): *Confidential*

Lead Plaintiff’s Lawyer : Philip A. Mullins, IV of Thomas, Ferguson & Mullins, LLP (Durham), 919-682-5648, fax 919-688-7251

Description of Case, evidence presented, arguments made and other useful information:
Liability was contested. Damages were contested. Decedent was an hourly employee for a subcontractor on a construction jobsite who provided manual labor. Decedent was living in a drug rehabilitation house and had been working for less than a week when this accident occurred. Decedent had very limited skill or experience working on any construction jobs. The general contractor specified how the subcontractor and its employees were to perform their work on this site. Plaintiff contended that such directions and supervision, or lack thereof, by the general contractor, constituted actionable negligence which proximately caused the fatal accident.

The defendant general contractor contended that it was not negligent. The general contractor asserted that the decedent was contributorily negligent such that any recovery by the Estate was barred by the doctrine of contributory negligence. Additionally, the defendant general contractor alleged that the decedent’s employer (subcontractor) was negligent and such negligence was intervening and superceding such that, even if the general contractor were negligent, which was denied, the Estate still had no right of recovery. The decedent’s family had recovered from the employer-subcontractor the statutory maximum allowed under the North Carolina Workmen’s Compensation Act for the decedent’s death. At the decedent’s compensation rate for the 400 weeks, that sum totaled $94,638.90. The subcontractor’s workers’ compensation insurance carrier asserted its right to subrogation as regarded any recovery from any third party. Due to insufficient evidence to support a Woodson claim, no claims were asserted by the Estate against the employer-subcontractor in this civil action. However, the Estate took the position that the employer-subcontractor’s negligence, which joined in and concurred with the defendant general contractor’s negligence, barred the subcontractor’s right to any workers’ compensation subrogation claim of lien. A number of depositions were completed of fact witnesses, the parties, and each party’s experts. OSHA cited the subcontractor and the general contractor for separate violations of safety standards.

The general contractor contested these citations and entered into an informal settlement agreement with NC OSH whereby the settlement could not be used as an admission against its interest in the wrongful death civil case. The general contractor’s experts opined that many of the citations were not grounded in fact and that none were causally related to the decedent’s fatal accident. The decedent had no tax records or proof of financial support of his surviving spouse or three minor children for the five years preceding the accident. The Plaintiff claimed he was actively working to turn his life around when he was killed due to the negligence of the defendant general contractor. The defense obtained some written evidence of marital problems and argued that the relationship between the decedent and his family members was not healthy and of minimal value should the case go to a jury. Plaintiff was able to negotiate with the employer-subcontractor’s workers’ compensation insurer a full waiver of its subrogation claim. Thus, the total recovery for this contested liability claim for the decedent’s family was $469,638.90. The decedent’s surviving spouse was deposed and presented very well. The defense was able to get her to admit many of the facts concerning marital issues and problems. However, she was able to explain their marriage, the decedent’s progress and rehabilitation, and their family’s interactions in the last weeks of the decedent’s life. She would have been a very strong witness before any jury. There were a number of witnesses who would have testified that the relationship between the decedent and his family was very, very strong in the weeks before his fatal accident. .

Amount Actually Recovered for Client: 100% recovery, ie., $469,638.90 (Four Hundred Sixty-Nine Thousand Six Hundred Thirty-Eight Dollars and Ninety Cents).

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$800,000 Recovered for Brain Injury Victim Involved in Truck Wreck - - Allegations of Contributory Negligence Asserted against Victim (Victim was Illegal Alien who spoke only Spanish)

Type of Action: Motor Vehicle Negligence, Commercial Motor Vehicle Negligence, Tractor-Trailer Negligence, Traumatic Brain Injury

Injuries Alleged: Closed Head Brain Injury with Frontal Lobe Hemorrhage, Fractured Left Temporal Bone, Fractured Left Maxillary Wall, Fractured Sphenoid Plate, Fractured Right Temporal Bone

Name of Case: *Confidential*

Court and County: *Confidential, case filed in Civil Superior Court in Eastern North Carolina county*

Name of Mediator: Jackie Clare from Raleigh, NC served as Mediator

Special Damages: $121,205.56 Past Medical Expenses; $401,405 Projected Lifetime Lost Income; Life Care Plan/Lifetime Supervision

Verdict or Settlement: Settlement reached during 2nd Mediation

Amount: $800,000.00

Highest Offer: After depositions, $150,000 was offered at first mediation.

Most Helpful Experts (Name, Title, City): Antonio Puente, Neuropsychologist in Wilmington; Indra Gatiwala, Neurology Center of Lumberton, Neurologist, Lumberton; Gabriel Fernandez of Hoke Family Medical Center, Family Practice Physician, Raeford; Michael A. Sutton, Accident Reconstructionist of Accident Research Specialists in Cary; Robert Wilfong, Trent Neurosurgery, Neurosurgeon in Wilmington; and, Medical Illustrations by Mark Valentine of The Visual Advantage in Knightdale

Lead Plaintiff’s Lawyer : Philip A. Mullins, IV of Thomas, Ferguson & Mullins, LLP (Durham), 919-682-5648, fax 919-688-7251

Description of Case, the Evidence Presented, the Arguments Made, and/or Others Useful Information: The plaintiff is a gentleman from Mexico. Before the collision, he was in the US working under an alias without proper documentation for lawful employment. He spoke only Spanish and could not read or write in any language. On the morning of this pre-dawn collision, the Plaintiff was driving to work in Bladen County at a large hog processing plant. About 1/8 of a mile before the right turn into the employee parking lot, the collision occurred on Highway 74.

A tractor-trailer truck driver failed to yield the right of way and pulled out in front of the Plaintiff’s vehicle. The Plaintiff slammed on brakes and swerved but clipped the safety bar on the tail end of the trailer. The trailer’s rear safety bar shredded through the hood and windshield of Plaintiff’s passenger vehicle and struck the Plaintiff’s face and head. The force was so great it broke the back of the Plaintiff’s seat and fractured several bones in his head and face. After 30 minutes’ extraction using the “jaws of life”, the Plaintiff was rushed by ambulance to Bladen County Hospital and then airlifted to the regional trauma center at New Hanover Regional Medical Center in Wilmington. Due to significantly raised intracranial pressure readings, the neurosurgeon performed brain surgery to relieve the pressure in hopes of saving Plaintiff’s life. The surgical intervention was successful and the Plaintiff now is able to walk, talk and move without restriction. However, due to some brain injury, he has a diminished full scale I.Q. with marked limitations affecting his executive function, ability to judge/perceive dangers, and relational interactions. After the collision, his employer terminated his health benefits claiming he was not lawfully employed.

Without medical insurance and no income, he was unable to pay for his medical care. For over four (4) years since the collision, his family has supervised him or cared for him on a 24-hours-a-day basis. Due to his brain injury and inability to recall any of the events of the collision or the moments before the collision, the truck driver’s statements as to how the collision occurred were difficult to contradict. The truck driver claimed to have come to a complete stop and, after pulling out some, he saw the Plaintiff’s vehicle speeding towards him while it passed another vehicle. The trucker estimated that the Plaintiff was going well over the posted 55 m.p.h. limit and that the Plaintiff only began to brake a few car lengths from the truck. After being released by law enforcement, the trucker called his supervisor who told him to drive away from the scene without first downloading the “black box” data. The truck driver destroyed much of the “black box” data when he pulled away from the accident site. Plaintiff’s counsel asserted that such conduct constituted a knowing spoliation of critical evidence which would give Plaintiff many favorable inferences to establish clear liability by the trucker. The chief battleground for the case was the plaintiff’s arguable contributory negligence. (The defense also asserted several other defenses. Arguably, the plaintiff had no valid operator’s license.

Since the Plaintiff was not legally entitled to earn wages in the US without a valid work VISA, the defense argued his lost wages claim was meaningless.) The roadway around the accident site is flat, with no obstructions to either driver’s view. If the trucker came to a complete stop before entering the intersection, contributory negligence would have likely barred the Plaintiff’s right to recover. Given the amount of lighting on the tractor and trailer and the visibility at the time, both accident reconstruction engineers would have conceded that there was ample opportunity (speed, time, distance, reaction time) for the Plaintiff to perceive the problem, brake, and avoid any collision with the tractor-trailer if the trucker came to a complete stop. However, Plaintiff’s counsel argued that the trucker’s testimony was not credible. There was physical evidence to refute parts of the trucker’s story. Unfortunately, not all of the trucker’s story was contradicted by the physical evidence. Nonetheless, with the inferences drawn in Plaintiff’s favor, because the defendants knowingly destroyed the black box data, the Plaintiff’s counsel argued that the truck did not come to a complete stop and that Plaintiff’s reaction was appropriate and there simply was not enough time or distance to entirely stop before point of impact. The defense had witnesses that would arguably have offered sufficient evidence for the jury to conclude the Plaintiff was contributorily negligent.

The Plaintiff’s family would have presented very well to the jury via an interpreter. Due to the language barrier coupled with the type of injuries involved, this case presented some difficult problems. Admittedly, the Plaintiff “looked fine and acted fine.” 9 out of 10 times, he correctly answered factual questions such that proving he had a severe brain injury and needed supervision was worrisome. For those who knew him before or spoke fluent Spanish and were around him for any length of time since the collision, it was obvious he suffered a severe impairing brain injury. Many of these problems were addressed by the bilingual neuropsychologist, Antonio Puente, who evaluated the Plaintiff while he was still in the trauma center at New Hanover Regional Medical Center. The medical illustrations were important in showing the magnitude of his brain injuries. Given the evidence and amount of time it takes a tractor-trailer rig to clear several crossing lanes from a dead stop, the Plaintiff was forced to accept the defense’s final offer of $800,000 on the evening of the mediated settlement conference.

Amount Actually Recovered for Client: 100% recovery, ie., $800,000.00 (Eight Hundred Thousand Dollars).

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$ 741,309.25 Settlement for Fractured Hip & Leg of Driver Struck by Commercial Driver

Type of Action: Personal Injury, Motor Vehicle Negligence, Commercial Truck

Injuries Alleged: Fractured Hip and Leg Bones, Permanent Impairment of Legs

Name of Case: *Confidential*

Court Where Pending including County: Bladen County

Trial or Mediation: Settled shortly before scheduling mediation

Special Damages: $87,562.05 Past Medical Expenses

Amount: $741,309.25 (this was all of the negligent truck driver’s liability insurance coverage)

Highest Offer Prior to Settlement: The injured man attempted to settle this on his own, but the insurance carrier denied the claim asserting that the injured driver was contributorily negligent because he struck the rear of the commercial truck as that truck was turning right off the highway.

Most Helpful Experts (Name, Title, City): Michael A. Sutton, Accident Reconstruction Engineer of Accident Research Specialists in Cary; Medical Illustrations by Mark Valentine of The Visual Advantage in Knightdale

Lead Plaintiff’s Lawyer : Philip A. Mullins, IV of Thomas, Ferguson & Mullins, LLP (Durham), 919-682-5648, fax 919-688-7251

Description of Case, the Evidence Presented, the Arguments Made, and/or Others Useful Information:
The Plaintiff is a gentleman who lived in Bladen County. He was driving home in a pouring rain on four lane divided US highway in eastern North Carolina. It was during daylight hours when the collision occurred. He was driving in the right lane when he was passed by a car carrier (commercial truck) that was traveling in the left lane. The car carrier then swiftly decelerated and braked hard. The plaintiff switched to the left lane and began to pass the right turning commercial truck when the rear-end of the commercial truck swung out into the left lane of travel causing the collision with the front of the plaintiff’s mini-van. After the initial impact, the plaintiff lost control of his vehicle due to the wet roadway surface and his vehicle rolled over. Plaintiff was airlifted from the scene to New Hanover Regional Medical Center where they performed several surgeries to address his orthopaedic injuries. He was released 3 weeks later, but was unable to walk with the same gait as before the accident. Before the collision, Plaintiff was disabled due to an unrelated trauma to his low back. He was not working at the time of this collision and there was no lost wage claim. This is believed to be one of the largest recoveries in Bladen and Columbus counties for a driver who was injured in this kind of collision due to the problem of contributory negligence. There was only $741,309.25 of insurance coverage.

Amount Actually Recovered for Client: 100% recovery, ie., $741,309.25 (Seven Hundred Forty-One Thousand Three Hundred and Nine Dollars).

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Man tricked out of motels Durham jury agrees ex-wife took advantage of man to gain control of millions in property

Heraldsun.com
Durham hotelier Paul K. Simpson said he was desperate to get back with his estranged wife when she plied him with drinks, drove him to her lawyer and got him to sign over the deeds to several motels. This week, a jury agreed, concluding Simpson's now ex-wife tricked him out of property said to be worth "well into the millions." After hearing weeks of evidence in Durham County Superior Court, the jury decided Mary Leitch engaged in "constructive fraud" and used "undue influence" when she got Simpson to sign a July 1985 agreement in which he signed over his property to her. The jury further concluded that Leitch took advantage of Simpson and failed to act "openly, fairly and honestly."

"We had a great jury. They were very intelligent," said lawyer Phillip Mullins, who represented Simpson along with attorney Gabriela Matthews. "Mr. Simpson is a family man who built his businesses in partnership with his wife," Mullins added. "She tried to defraud him and take those businesses. The jury said no. Justice has been served." Mullins said the businesses include four motels: the Best Western Skyland in Durham, the Best Western University near Duke University Hospital, the Best Western Pinehurst and the Best Western Martinsville in Virginia. While Mullins declined to put a precise dollar figure on such assets, he said they are worth "well into the millions." For example, Duke now leases the Best Western University for a handsome sum and has an option to buy it in the year 2004 for $2.5 million, Mullins said.

An "equitable distribution" trial still must be held in which a judge will divide the Simpson-Leitch property. But because of this week's jury verdict, Simpson can expect a share of roughly 50 percent instead of only about 2 percent, according to Mullins. "This puts him on the radar screen," said Mullins. Lawyer Hayes Hofler, representing Leitch, said Thursday he and his client were "disappointed in the way the jury resolved these issues." "But the jury was very conscientious and very admirably upheld the concept of government by consent of the governed," Hofler added.

According to his lawsuit, Simpson wanted to get back together with Leitch very much while the two were separated in July 1985. So Leitch poured several drinks for Simpson and then drove him to her lawyer's office, where he was asked to sign away his property, the suit said. Leitch made it clear that "the only way he could preserve the marriage was for him to sign the agreement," the suit contended. "[She] was able to extract [his] signature by playing upon his love and affection for his wife, knowing that he would do anything to save his marriage." Leitch thus "gained great economic advantage and intended to gain further advantage," the suit said. The couple did reunite after the property agreement was signed, only to divorce later. In an answer to the lawsuit, Leitch alleged that Simpson "committed fraud and other illegal acts" of his own with the disputed property. She contended, for example, that Simpson had a power of attorney illegally notarized after signing her name to it or obtaining her signature "by misrepresentation." Then he persuaded a Moore County lawyer to draft deeds involving the property in question, Leitch said. She said the deeds conveyed such property into both her name and that of Simpson, despite the July 1985 agreement that gave the real estate to Leitch alone. Leitch said this was done without her knowledge or consent. Simpson deeded the property back to her only after she threatened to have him prosecuted criminally, Leitch added. She also said that Simpson "voluntarily performed numerous acts in recognition of the agreement." According to Leitch and her lawyer, such acts essentially ratified the agreement and barred Simpson from rescinding it.

© Heraldsun.com Copyright 2008. All rights reserved.

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Complex Business Litigation with Jury Trial - Jury Verdict in Favor of Hotel Founder, Property Valued over $8.7 Million

Type of Action: Breach of Contract, Business and Marital Contracts

Name of Case: Paul Simpson v. Mary Simpson

Court and County with Case: Durham County

Verdict or Settlement: Jury Verdict.

Amount in Controversy: Real Estate holdings in North Carolina, Virginia and West Virginia valued in excess of $8.7 Million

Date of Verdict: November 28, 2001.

Presiding Judge: Donald W. Overby

If not settled, Highest Offer (plaintiff’s verdict): No offers made by defendant, ex-wife.

Lead Trial Counsel for Plaintiff : Philip A. Mullins, IV of Thomas, Ferguson & Mullins, LLP, 919-682-5648, fax 919-688-7251

Case Summary: This case involves a complex business litigation with breach of contract, fraudulent inducement and domestic relations aspects. The case concerned substantial real estate assets in North Carolina and Virginia. Paul Simpson, the Plaintiff, sought to set aside contracts entered into during his marriages to the defendant, Mary Simpson. If successful, Plaintiff demanded an equitable distribution of all marital assets in accordance with North Carolina family laws. The property was acquired during this couple's two marriages from 1973 until 1996. The defendant refused to offer anything, claiming that the Plaintiff got all he deserved according to her payment of funds per their 1985 Separation Agreement. In October, 2001, defense counsel informed the Court that the defense estimated the value of the marital assets of the first marriage to be $6.5 million.

The Plaintiff sought to set aside a 1985 Separation Agreement under which the couple’s income producing properties were distributed inequitably with the majority of those assets being distributed in 1985 to the Defendant, Mary Simpson. Paul Simpson claimed that Mary Simpson induced him to execute the Separation Agreement by constructive fraud, undue influence, and duress. After they executed the Separation Agreement and resulting deeds in 1985, the Simpsons resumed their marriage in late 1985 and purchased other income producing properties including a $2.2 million dollar property in Virginia in 1986. Plaintiff argued that alone was sufficient evidence that they abandoned the Separation Agreement. Even though they later separated in mid-1988 and were divorced on January 8, 1991, shortly thereafter the Simpsons decided to remarry and did so on 12/31/91.

During their second marriage, they bought additional property and Paul Simpson signed as "Lessor" on a lease of one of the properties that Mary Simpson claimed was her separate property under the provisions of the 1985 Separation Agreement. In February, 1996, the Simpsons again separated and were divorced for the second time on April 6, 1998. Defendant alleged that the Separation Agreement was a complete bar to all of Plaintiff's claims for equitable distribution of the assets from their first marriage. Early in the case, the trial court bifurcated the case to allow a jury to determine a number of issues. The issues submitted to the jury fell into four categories:(i) whether the Separation Agreement was binding given the claims of impropriety surrounding its execution; (ii) whether the separation provisions were integrated with the property settlement provisions; (iii) whether Paul Simpson ratified the Separation Agreement; and (iv) whether Paul and Mary Simpson abandoned the Separation Agreement. Initially, the Defendant asserted a statute of limitations bar. However, the trial court found that the Defendant was equitably estopped from asserting that bar due to her conduct.

At mandatory mediation in September, 2001, there were no settlement offers from the defendant. Throughout the case, the Defendant refused to discuss settlement in that she believed there was no way for Plaintiff to win all the issues that were eventually submitted to the jury. This case was assigned to a Special Judge, Donald W. Overby. After empanelling a jury on November 5, 2001, the case was tried to completion on November 28, 2001. The Plaintiff won all 8 issues submitted to the jury. Throughout both trials, defense counsel asserted that it would be nearly impossible for a jury to decide so many issues in Plaintiff's favor given the complicated fact pattern and business valuations involved. Plaintiff's counsel believed these very difficult obstacles could be overcome with adequate witness preparation and proper planning of all evidence in the trial.

The keys to success were selecting an intelligent jury, having the main witness testify as to all the complicated facts and explain the parties' subsequent actions. Throughout his testimony, Paul Simpson referred to an illustrative exhibit (color timeline) that covered the dates of marriage/separation/divorce and their purchases of marital assets during the 25-year period from 1973 to 1998. The jury was able to understand Paul Simpson and they liked him. The exhibit helped them to follow the complicated fact situation and to see that there was a relationship of trust between Paul and Mary Simpson after the 1985 Separation Agreement once the Simpsons resumed their marriage in 1986-1988. There was strong documentary evidence that contradicted Defendant's deposition testimony and seriously undermined her defenses. Judge Overby ruled that Plaintiff's counsel could use that evidence to impeach the defendant or her witnesses. The defendant chose not to testify or put on any witnesses. Plaintiff's counsel believes that, given the documentary evidence and Mary Simpson's own inconsistencies in her sworn affidavits and pleadings, defendant's election to not testify may have been the wisest tactic. The jury deliberated for over a day before returning its verdict. With the favorable verdict, the case was allowed to proceed to equitable distribution where North Carolina law allows that all the marital assets from both marriages will be divided equally.

Other Useful Information: Plaintiff retained an expert to prepare informative graphics that "uncomplicated" a complex fact situation. After returning their verdict, several members of the jury informed Plaintiff's counsel that without the exhibit they would have been lost in this case. Jeff Darnell, Wilson Litho, Inc., Courtroom Graphics Division, (919) 469-8711

Amount Actually Recovered for Client: Client’s right to seek ½ of the entire estate, ie., claim for 50% of $8.7 Million (Eight Million Seven Hundred Thousand Dollars).

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County Settles with U-Haul and Pays Owner $2,850,000; Initial Offer Was $1,300,000

County settles with owner over facility taken for courthouse.
On Feb. 28, 2006, Durham County condemned 2.39 acres of land occupied by a U-Haul business immediately adjacent to the Durham County Jail for the purpose of constructing a new courthouse. At the time of taking, the county deposited $1,350,000 as its estimate of just compensation based upon two appraisals it had obtained from MAI appraisers. The defendant/landowner had refinanced its property in 2003 and 2005. The appraised values at that time were $1,300,000 and $1,325,000, respectively.

In 2003, the landowner certified in court proceedings that the value of the property was $1,300,000, and in 2005 seven months prior to the taking by the county the landowner certified in loan documents that the value of the property was $1,325,000. Also, during the refinancing just prior to the taking, the landowner transferred the property to a different subsidiary of the same parent corporation and purchased revenue stamps indicating the value of the subject tract was $1,325,000. The landowner filed a motion in limine to prevent introduction of the 2003 appraisal, 2005 appraisal, owner's certification of value to a Nevada court in 2003, its certification of value in loan documents just prior to the taking and the purchase of revenue stamps indicating the purported land value. The defendant also filed a motion to dismiss the action for the county's violation of the open meetings law. The motion in limine was based upon the scope-of-project rule set forth in G.S. Sect. 40A-65, which prevents a condemned property's value to be increased or decreased as a result of part of the project for which the property is condemned.

The Durham County jail was approved for construction in 1990 and opened in 1996. At the time, it was contemplated that the jail and courthouse would be connected via an underground tunnel, with the courthouse occupying the subject tract. Since the presence of the jail devalued the subject tract and arguably diminished its highest and best use, the defendant moved in limine to prevent any prior valuations into evidence since the bank appraisals (and the certifications of valuation based upon the appraisals) did not apply the protections of the scope-of-project rule. During a Rule 30(b)(6) deposition, the county engineer, in an attempt to defend against the upcoming hearing on whether the jail and courthouse were separate projects, testified that the Board of County Commissioners discussed alternate potential sites in closed session. However, the minutes of the board never identified the alternate sites prior to entering closed session, which was required by G.S. Sect. 143-318.11.

The defendant filed a motion to dismiss the condemnation action based upon the board's violation of the open meetings law in its selection of the site for the courthouse. The case settled on the morning the motions were to be heard. Bill Thomas and Jay Ferguson also served as attorneys for the adjoining property owner, Scarborough and Hargett Funeral Home, Inc., a funeral home in downtown Durham. The county paid $3,750,000 for the land and historical building on the site after its initial offer of $1,300,000.

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Type of Action: Eminent Domain

Type of Injuries: Total taking of 2.39 acre mini-storage U-Haul facility

Name of Case: County of Durham v. AREC3, LLC

Type of Injuries: Total taking of 2.39 acre mini-storage U-Haul facility

Verdict or Settlement: Settlement

Amount: $2,825,000

Amount deposited at time of taking: $1,350,000

Judge: Honorable Ronald L. Stephens

Most helpful experts: Emil Malizia, M.R.P., Ph.D., AICP, Chair, Department of City and Regional Planning, UNC-CH. Expert in urban development and redevelopment. F. Bruce Sauter, MAI, Greenville, NC, Expert Appraiser. Lauriette W. West-Hoff, ICA, CREA, Durham, NC, Expert Appraiser.

Attorney for plaintiff/condemnor: Marie Inserra, Assistant County Attorney, Durham, NC

Attorney for defendant/landowner: Jay H. Ferguson and William J. Thomas II, Thomas, Ferguson & Mullins, LLP, Durham, NC

Person submitting report: Jay H. Ferguson, (919) 862-5648 Telephone, (919) 688-7251 Fax

On February 28, 2006, the County of Durham condemned 2.39 acres of land occupied by a U-Haul business immediately adjacent to the Durham County Jail for the purpose of construction a new courthouse. At the time of taking, the County deposited $1,350,000 as its estimate of just compensation based on two appraisals it obtained from MAI appraisers.

The landowner had refinanced its property in 2003 and 2005 in which the appraised values at the time were $1,300,000 and $1,325,000 respectively. In 2003, the landowner certified in court proceedings that the value of the property was $1,300,000. In 2005, seven months prior to the taking by the County, the landowner certified in loan documents that the value of the property was $1,325,000. Additionally, during the refinancing just prior to the taking, the landowner transferred the property to a different subsidiary of the same parent corporation and purchased revenue stamps indicating the value of the subject tract was 1,325,000.

Defendant landowner filed a motion in limine to prevent introduction of the 2003 appraisal, 2005 appraisal, owner's certification of the value to a Nevada court in 2003, its certification of value in loan documents just prior to the taking as well as the purchase of revenue stamps indicating the purported land value. The defendant also filed a motion to dismiss the action for the County's violation of the open meetings law.

The motion in limine was based upon the scope of the project rule as set forth in G.S. 40A-65 which prevents a condemned property's value to be increased or decreased as the result of part of the project for which the property is condemned. The Durham County jail was approved for construction in 1990 and opened in 1996. At the time of the approval for construction, it was contemplated at the jail and courthouse would be connected via an underground tunnel with the courthouse occupying the subject tract. Since the presence of the jail devalued the subject tract and arguably diminished its highest and best use, the defendant moved in limine to prevent any prior valuations into evidence since the bank appraisals (and the certifications of valuation based upon the appraisals) did not apply the protections of the scope of the project rule.

During a Rule 30(b)(6) deposition, the county engineer, in an attempt to defend against the upcoming hearing on whether the jail and courthouse were separate projects, testified the Board of County Commissioners discussed alternate potential sites in closed session. However, the minutes of the Board never identified the alternate sites prior to entering closed session as required by G.S. 143-318.11; thus the defendant filed a motion to dismiss the condemnation action based upon the Board's violation of the open meetings law in its selection of the site for the courthouse.

The case settled on the morning the motions were to be heard.

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County Settles with Scarborough and Hargett Funeral Home and Pays $3,750,000; Initial Offer was $1,300,000

Attorneys Bill Thomas and Jay Ferguson were two of the attorneys for Scarborough and Hargett Funeral Home, Inc., a funeral home in Downtown Durham. The property adjoined a U-Haul business immediately adjacent to the Durham County Jail, which had been condemned for the purpose of construction a new courthouse.

The County of Durham paid $3,750,000 for the land and historical building on the site after an initial offer of $1,300,000.

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Wrongful Death - - $815,000 Recovered for Family of Victim Killed by Drunk Driver Claims Against Drunk Driver and Bar That Served Drunk Alcohol

Type of Action: Negligence, Drunk Driver Liability, Bar and Liquor Liability

Injuries Alleged: Fatality of James Warren, age 38, a resident of Wake County. At the time of his death, James was the father to three sons, Darrin, Daniel and Nickolas, and was happily married to his wife, Susan Warren. James worked as material handler at a local manufacturing plant.

Name of Case: Estate of James D. Warren, Jr. v. Highbeams II, Inc.

Court and County with Case #: Wake County, File # 06-CVS-17336

Settlement/Trial: Case settled at a mediated settlement conference after written discovery was conducted.

Name of Judge or Mediator: Anne R. Slifkin, Becton, Slifkin & Bell, P.A. (Raleigh), Mediator

Special Damages: EMS and Hospital Charges $15,105.86; Funeral Bills $2,812.35; Burial Bills $5,633.18; Present Value of Net Lost Income to Age 67 $692,478; and, Present Value of Loss of Services to Warren Family $484,000.

Verdict or Settlement: Settlement

Amount: $815,000.00 ($65,000 from three insurers on behalf of the drunk driver which was their policy limits; and, $750,000 from insurer for the bar that overserved the drunk driver alcohol.)

Date of Verdict or Settlement: Dismissal filed January 31, 2007.

If not settled, Highest Demand (defense verdict) or Highest Offer (plaintiff’s verdict): Not applicable.

Most Helpful Experts (Name, Title, Location): J. Finley Lee, economist, Chapel Hill, NC; Andrew Mason, toxicologist, Boone, NC; J Mac Video Productions, Raleigh, NC; and, The Visual Advantage, medical illustrations and courtroom exhibits, Knightdale, NC.

Insurance Carriers: Several layers of insurance were involved which insured the drunk driver and the bar that served him alcohol.

Lead Attorney for Plaintiff: Philip A. Mullins, IV of Thomas, Ferguson & Mullins (Durham), 919-682-5648, fax 919-688-7251

Description of Case, evidence presented, and arguments made: The family hired Thomas, Ferguson & Mullins, LLP within days of the fatal motor vehicle collision. Attorney Philip Mullins was able to contact witnesses, including the drunk driver and his drinking buddies, to obtain critical evidence establishing his obvious intoxication on the evening of the wreck, before the bar served him several more alcohol drinks and then let him heave their establishment with car keys in hand. The drunk driver’s insurers tendered their policy limits after adequate evidence was submitted to them from the plaintiff’s attorneys.

As with far too many bar liability cases, liability was a hotly contested in this case. The bar took the position that they had no knowledge of the patron’s intoxication when they were serving him alcoholic drinks, before he left their bar and drove drunk. On the evening of March 17, 2006, UNC was playing in the Men’s NCAA basketball tournament. James Warren drove his vehicle with a friend to a local bar, Highbeams Bar & Grill. The bar was located along Hwy 64 in Knightdale. Unbeknownst to James, another man named Samuel Morris was also at the bar. Morris had been drinking at the bar for quite some time and had drunk approximately 14 drinks containing alcohol at that bar. At shortly before midnight, James and his friend left the bar. Because James had been drinking, he chose to not drive his vehicle, but instead set out to walk less than ¼ mile to the hotel where his wife worked. After safely crossing the highway and going several yards off the paved roadway, James sat down and eventually fell asleep or passed out on the embankment near the road.

A passing motorist called 9-1-1 and Wake County Sheriff’s deputy Walt Martin stopped to speak with James and lend some assistance in getting him to the hotel. Samuel Morris then left the bar, after having drunk so much that his blood alcohol level was approximately 0.28, and set out to drive his motor vehicle home. Morris crashed into the rear of Deputy Martin’s stopped white suburban which was outside the travel lanes of the roadway with its rear flashing lights, blue flashing lights, and headlights operating. Morris hit the stopped law enforcement vehicle so hard it launched the suburban off the road and up the embankment, running over and killing James.

Pre-suit settlement negotiations were not fruitful. In the days and weeks after this tragic crash, the bar allowed others to be served alcohol to the point of intoxication resulting in two other serious motor vehicle crashes, one of which resulted in another fatality. When it became apparent that the bar had no intention of altering its behavior or honoring its obligations under the law as a privilege licensee to serve alcoholic beverages, the Warren family authorized filing of this lawsuit. After some preliminary written discovery was conducted, the parties agreed to mediate the case. Plaintiff’s counsel submitted an extensive settlement package to the defense including complete medical history of the decedent, affidavits establishing the special damages, videotaped of James’ family, co-workers, and friends concerning the family’s loss, and additional documentation to address all the concerns of the defense relating to liability. Throughout the course of this litigation and at the mediation, the bar denied all liability. The bar asserted no negligence, no duty to stop or otherwise take any precautionary measures with an intoxicated patron who was going to operate a motor vehicle, and no liability due to the drunk patron’s intervening negligence. The bar also asserted contributory negligence on the part of James Warren. The bar asserted that James was passed out on the side of the road at the ditch area with a blood alcohol level of approximately 0.15. Thus, he was a proximate cause of his own injuries which led to his own death. (If a jury believed that, which is contributory negligence, it would likely bar their liability to the Estate. Plaintiff contested this allegation.)

Late on the evening of the mediated settlement conference, the parties reached a settlement. The Estate successfully recovered the policy limits of the drunk driver’s insurance and all underinsured motorist coverage prior to instituting this action against the bar. The recovery from the drunk driver and the UIM carrier(s) is not part of the $750,000 recovered by the Estate from the bar. After the lawsuit was filed, but before mediation, the bar closed down. The corporation had no assets against which to collect any judgment. After the lawsuit was filed, it was determined that the bar’s owners had no assets to collect any judgment from. Since there were very limited liability insurance coverage limits in this situation, and the sheriff deputy’s claims were pending, the Estate authorized settlement. (Deputy Walt Martin is represented by separate counsel has a lawsuit pending in Wake County against the same drunk driver and the bar, Wake County 06-CVS-11441.) The background information provided to the defense concerning the character of James Warren as a son, husband and father, and the evidence of his family’s loss as a result of this avoidable fatality were the most compelling factors in obtaining this settlement. His military service with various medals and honors, along with his exemplary work history were helpful. Having co-workers who agreed to step forward to provide their affidavits and videotaped statements concerning James’ character, high quality of work, and loyalty to family was invaluable in focusing the defense and their liability insurance carrier to depth and degree of this family’s loss.

Amount Actually Recovered for Client: 100% recovery, ie., $815,000 (Eight Hundred Fifteen Thousand Dollars).

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$9,500,000 Recovered for Young Man Who Suffered Traumatic Brain Injury (TBI) in Commercial Vehicle Crash - - Pedestrian hit by Garbage Truck

Type of Action: Motor Vehicle Negligence, Commercial Vehicle, Pedestrian

Injuries Alleged: Traumatic brain injury, a traumatic partial amputation of his right foot which was subsequently re-attached at Duke, right tibia and fibula fractures, right knee dislocation and fragmentation, left tibial plateau fracture, left knee fracture and joint disruption, left femoral fracture, fractured left sinus, fractured left orbit, right orbital fracture, fractured right sinus, liver laceration, kidney laceration, and other less severe physical injuries. Plaintiff was in a coma at Duke University Medical Center for approximately one month followed by in-patient rehabilitation for an additional seven months.

Name of Case and File Number: *Names Withheld to Protect Clients’ Interests*

County Where Case Filed: Durham County

Concluded on Date: September 13, 2000

Name of Mediator: Jim Billings, Raleigh, NC served as Mediator

Special Damages: $780,000 total medical bills, projected lost income $900,000.

Verdict or Settlement: Settlement

Amount: $9,500,000.00

Highest Offer: Initially, the defense denied the claim due to contributory negligence. (In North Carolina, a finding of contributory negligence will bar a plaintiff’s right to any recovery.) After discovery and depositions, during which the defendant truck driver plead the 5th Amendment, the lawyers for the injured pedestrian obtained an order striking the contributory negligence defense.

Most Helpful Experts (Name, Title, City): Ann Neulicht, Ph.D., Life Care Planner, Raleigh, NC; J. Finley Lee, Ph.D., Economist, Chapel Hill, NC; Plaintiff’s treating medical care providers at Duke University Medical Center, Durham, NC; and, Medical Illustrations by Mark Valentine of The Visual Advantage in Knightdale.

Plaintiff’s Lawyers: William J. Thomas, II and Jay H. Ferguson were among the lawyers representing the injured pedestrian. Thomas, Ferguson & Mullins, LLP, (Durham), 919-682-5648, fax 919-688-7251

Description of Case, the Evidence Presented, the Arguments Made, and/or Others Useful Information: The victim of the negligent garbage truck driver was a 16 year old boy who was walking alongside the road coming home from school. He was struck by a Waste Industries garbage truck on the afternoon of February 9, 1998. At the time he was struck, the boy was not on the roadway. When the garbage company and its driver denied all liability for his severe injuries, Thomas, Ferguson & Mullins, LLP. filed a lawsuit to recover the boy’s damages against the negligent driver and, Waste Industries, the owner of the truck and the driver’s employer. The defendants again denied liability and asserted contributory negligence, contending that the boy was negligently walking with his back to traffic. Although there were conflicting eyewitness reports regarding the direction in which the boy was walking, the plaintiffs contended that he was facing traffic and that, even if he had his back to traffic, he was not negligent because it was impractical and unsafe to walk on the other side of the road as that side of the road had no shoulder and would have required the pedestrian to walk in the roadway. Once the lawsuit was filed, the plaintiff’s lawyers deposed the defendant truck driver. The truck driver pled the Fifth Amendment to avoid any criminal liability and refused to testify about how the accident happened. The plaintiffs contended that the defendant driver could not refuse to testify and still continue maintaining the defense of contributory negligence. The plaintiff’s lawyers filed a motion to strike the contributory negligence defense and a superior court judge agreed and struck the defense. The defendants appealed that ruling. The case settled at mediation while the appeal was still pending.

Amount Actually Recovered for Client: The actual present day value of the settlement was $9,500,000 (Nine Million Five Hundred Thousand Dollars); however, the settlement included annuities with projected future payouts totalng $53,577,157.00 (Fifty Three Million, Five Hundred Seventy Seven Thousand, One Hundred Fifty Seven dollars.)

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