Facts

On Jan. 3, 2004 at approximately 8:00 a.m., plaintiff Ed Aguilar, 46, was heading westbound on Foothill Boulevard in Tujunga, approaching Apperson. As plaintiff approached the intersection at Apperson, defendant Larry Gostischef was in the left-turn lane planning to turn left from eastbound Foothill to northbound Apperson. The defendant testified that he waited until the light was red and assumed that the plaintiff would stop; he then made his turn. The plaintiff struck the right rear side of defendant's vehicle.

The evidence established that plaintiff was proceeding at a speed of 45 to 55 mph in a 35 mph zone on his Harley-Davidson motorcycle. The plaintiff admitted to consuming four to five beers over the course of the day. However, his blood alcohol level was taken at the hospital and was found to be about a .1.

There were approximately five independent witnesses. Four of them indicated that defendant had made his turn on either a green or yellow light. One witness testified that defendant did not make his turn until the light was red, and that plaintiff entered the intersection on a red light.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that the defendant violated the California Vehicle Code, which required that a left-turning vehicle wait until traffic has cleared before executing a left turn. The plaintiff contended that the light was either green or yellow, and that defendant illegally violated the plaintiff's right-of-way. The plaintiff alternatively argued that even if the light was red, the defendant saw the motorcycle coming, knew that he was speeding, and should not have turned in front of plaintiff knowing he would be unable to stop.

DEFENDANT'S CONTENTIONS:
The defendant contended that he did not make the turn until the light was red and he felt it was clear to make the turn. Although he saw the motorcycle and knew it was speeding, it was some distance down the street and he assumed that the motorcycle would come to a stop. The defendant also contended that plaintiff failed to perceive and react to the danger in a timely fashion due to the fact that he was under the influence of alcohol and marijuana.

INTERVENOR'S

Settlement Discussions

The policy limits of $100,000 was offered. The plaintiff contended that this offer was late.

Damages

The life care plan totaled $2.3 million. In addition, the plaintiff incurred past medical expenses, which were stipulated to, of $507,000, and loss of earnings amounting to about $1.4 million.

Injuries

The plaintiff lost his right leg above the knee and sustained a significant break to his elbow. The life care planner indicated that the plaintiff would need multiple surgeries to his elbow and leg, and would eventually need a spinal stimulator because of phantom pain in his stump. The plaintiff has had ongoing problems with his stump and has not yet been able to obtain a prosthetic leg with a socket that properly fits, which has aggravated these problems. The defense doctors agreed that the plaintiff sustained a significant injury and that he was going to need a great deal of future help. The defense life care plan indicated that the future loss would be in the range of $1.4 million. In addition, the defense did not dispute the past medical or past loss of earnings claim and only minimally disputed the future loss of earnings claim.

Result

Total verdict of $4,679,314, with the jury finding the plaintiff 50 percent comparatively negligent, thus resulting in the net verdict of $2,339,257. POST TRIAL DEVELOPMENTS: On March 23, 2009 the trial judge, Judge Torres, granted the motion of defendant's insurer, Farmers Insurance Exchange, to intervene for purposes of bringing a motion for judgment notwithstanding the verdict. On April 16, 2009, two post trial motions were scheduled to be heard before the trial judge, Judge Torres. One was a motion to tax the costs and interest asserted by plaintiff in the amount of approximately $1 million (based in part on a CCP 998 offer that was not accepted) and the second was a motion for judgment notwithstanding the verdict by the intervenor. The JNOV was based on the fact that defendant, Mr. Gostischef, had filed for bankruptcy in the federal court on Sept. 28, 2005. The bankruptcy court ultimately discharged Mr. Gostischef's debts, however it did not discharge plaintiff Aguilar's claim as a result of a judgment in an adversary proceeding, which was stipulated to by both Aguilar and Gostischef. Aguilar had filed the adversary proceeding seeking nondischargeability based on 11 USC section 523(a)(6) which exempts from bankruptcy discharge "willful and malicious injury." Since the personal injury case was tried only as a negligence action, Judge Torres granted the JNOV concluding that res judicata (based on the federal bankruptcy nondischargeability judgment) barred the plaintiff from proceeding with a negligence action in state court. Judgment will be entered for the defendant and a cost bill will be filed. The motion regarding the plaintiff's cost bill was held to be moot.

Deliberation

two days

Poll

9-3

Length

eight days