Confidential
Settlement – $2,100,000Court
San Francisco Superior
Attorneys
Plaintiff
Matthew D. Davis
(Walkup, Melodia, Kelly & Schoenberger)
Michael A. Kelly
(Walkup, Melodia, Kelly & Schoenberger)
Defendant
Kara A. Smith
(Van De Poel, Levy, Allen & Arneal LLP)
Kendra L. Tanacea
(California Civil Rights Department)
Experts
Plaintiff
Thomas A. Jennings
(technical)
Donald H. Hillebrandt
(technical)
Carol R. Hyland M.A.
(technical)
Defendant
Ron Perisho
(technical)
Albert J. Ferrari
(technical)
Robert Fransen
(technical)
Facts
Plaintiff Julio Magana, 32, was a construction worker for Olivewood Construction in Mountain View. Magana was digging a trench during the remodeling of a seaside home located in San Francisco. At the same time, Sunshine Construction employees were operating a Caterpillar backhoe, among other equipment, near the house. The Sunshine employees were working next to the retaining wall, which was near where Magana was digging, when the retaining wall gave way and collapsed into the trench onto Magana. As a result, Magana was pinned against the foundation of the home for over 45 minutes. Magana sued Sunshine; Evans & Sutton Construction, the contractors; and Barry and Lizanne Rosenstein, the owners. All of the parties, except for Sunshine, were dismissed for no contribution. Sunshine was the only party that was not dismissed during the discovery phase.
Settlement Discussions
The plaintiff demanded $3 million (combined policy limits) and the defendant offered $1 million.
Specials in Evidence
$562,268 $1,120,000 $250,000
Damages
The plaintiff sought an unspecified amount in general damages. The plaintiff's wife filed a claim for loss of consortium.
Injuries
The plaintiff suffered severe injuries to his abdominal area that resulted in abdominal compartment syndrome. As a result, surgery was performed on the plaintiff in an effort to remove his damaged spleen and kidney and to repair his diaphragm. The plaintiff received 10 liters of blood during the procedure and almost died. The plaintiff underwent 30 surgical procedures in a two-month period. He was in a drug-induced coma for six weeks and in the ICU for seven weeks. The plaintiff also suffered wrist fractures and herniated discs. The plaintiff claims that he continues to suffer from pain in his head, back, wrists and stomach. The plaintiff also claims that he cannot lift heavy objects because he may herniate his incision sites.
Result
According to defense counsel, the parties settled for $2,100,000 at a JAMS mediation before retired Judge Michael Ballachey. According to plaintiff's counsel, the parties settled for $2,751,000, which included a waiver of approximately $600,000 workers' compensation lien and a payment from the workers' compensation carrier to Julio Magana in exchange for a C&R release of future claims.
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