Facts

On Sept. 11, 2009, at 11:30 a.m., plaintiff Jeromy Houston, 34, was employed by Anrak Corporation as a grinder. He was requested by the general contractor's paving foreman and a
City Inspector to make an additional cut at or about the intersection of Oro Dam Boulevard and Lincoln Avenue in Oroville. He saw a cone that was down and he walked over and uprighted the cone. A Community Service Officer for the City of Oroville was in her squad car across the street and facing the accident site when she saw defendant Derek Schies, an owner operator, make a right-hand turn with his end-dump tractor-trailer. The officer saw plaintiff walk backwards two or three steps into the right rear duals of the trailer. She believed he was six inches outside the cone zone. Schies testified that he saw plaintiff with the cone and believed they made eye contact and Schies then diverted his attention to traffic approaching in the left-hand turn lane since he had a tight right-hand turn due to the construction site.

PLAINTIFF'S CONTENTIONS:
Plaintiffs contended that Schies should have taken a route that would have allowed him to drive straight in to the accident site; that he should not have commenced the right-hand turn after seeing plaintiff on the ground; that he was aware of off tracking of his trailer and that it would go in towards the cone zone and he should have kept his eyes on that area rather than divert them to the oncoming left-hand turn traffic; he could have stopped within one foot and should have stopped when he saw plaintiff near his vehicle.

DEFENDANT'S CONTENTIONS:
Defense contended that it was proper to make a right-hand turn and that he could make that turn without encroaching on the cone zone. He contended that an independent contractor would have a right to exercise which way he came in to the jobsite. He further contended that he was never instructed by the general contractor's paving foreman to come in straight; that it was proper for him to look to the left at the oncoming traffic; that plaintiff was totally at fault for walking backwards into the side of a moving tractor-trailer of which plaintiff was aware. Furthermore, plaintiff possessed a Class 1 Commercial License and was aware of the off tracking of tractor trailers.

Settlement Discussions

Jeromy Houston made a CCP 998 demand of $900,000. Jennifer Houston demanded $100,000 out of a $1 million policy with Progressive Insurance. Defendants made a CCP 998 offer of $125,000.

Specials in Evidence

$93,065.98 (stipulated) $115,437 $2,050,975 $1,987,675

Injuries

Plaintiff suffered left foot crush injury; left anterior process calcaneus fracture - comminuted and intra-articular; S/P ORIF S/P surgical removal of four transarticular pins; left transverse tarsal dislocation; S/P triple arthrodesis on the left, chronic pain syndrome with psychological sequelae; S/P left scapula fracture; S/P left seventh rib fracture with pneumothorax resolved.

Result

Plaintiffs settled with the general contractor, broker and Insurance Company of the West. The general contractor and the truck broker each paid $600,000 on the morning of trial for a total of $1.2 million. The Intervenor, Insurance Company of the West (ICW), accepted $100,00 from the plaintiffs in satisfaction of their compensation/medical paid in the amount of $211,000. ICW also agreed to leave the Medical Treatment Award open for life.

Other Information

A mediation was held on Feb. 17, 2011 before Michael P. Stenson, Esq. Two settlement conferences were held before Hon. Barbara Roberts on April 25, 2011 and May 25, 2011. One settlement conference was held before Hon. Steven Howell on March 5, 2012. FILING DATE: Nov. 20, 2009.

Poll

10-2

Length

16 days