Facts

On April 15, 2013, at 2:45 p.m., plaintiff Maria Kung, 32, was returning to her home in Morgan Hill with her son Jonathan, 5, when a vehicle driven by defendant Darlene Burch crossed over the double yellow line, of a two-lane road, crashing into the driver's side of Kung's vehicle causing the vehicle to be knocked off the road into a ditch. Burch's blood alcohol level at the time of the crash, at 2:45 p.m., was .24. Burch was on her way to pick up her two young sons at school. Her five-year old daughter was a passenger in the vehicle. An hour before the accident, and prior to getting into her vehicle, Burch admitted to consuming a full bottle of wine.

PLAINTIFFS' CONTENTIONS:
At the time of the accident, Burch, was on her cell phone and had been given two tickets within the prior year for using a wireless telephone while driving. Evidence from a video camera of the CHP officer showed that Burch was markedly intoxicated, uncooperative when being interviewed by the CHP officer and belligerent. Plaintiffs asserted causes of action against Burch for negligence, intoxication/using her cell phone at the time of the accident, and sought punitive damages.

Burch was driving a car co-owned by her husband, defendant Sean Burch, and the company he was part owner of, Pacific States Industries. Sean Burch and his employer, Pacific States Industries, were sued for negligent entrustment of the vehicle they co-owned. A summary judgment motion by defendants Sean Burch and his employer, Pacific States Industries, was denied as Burch had a prior history of alcoholism and her husband was fully aware of it.

DEFENDANT'S CONTENTIONS:
Defendants did not dispute Burch's liability in causing the accident. Defendants contended that Kung was able to return to work and that there would be a minimal future wage loss.

Specials in Evidence

$12,000 (Jonathan Kung); $250,000 (Maria Kung) $63,000 $400,000

Damages

Kung was employed as a sales associate-cashier earning approximately $20,000 a year in a gas station, and is the mother of two young sons.

Injuries

Kung suffered severe injuries to her shattered left elbow and, in addition, had knee, upper and lower back trauma. There were vertebral fractures in the lower back area, a displaced sternal fracture and an umbilical hernia. She underwent two surgeries to her left arm/elbow during her initial hospitalization for one week. Approximately 18 screws along with a metal plate were inserted in the left arm/ elbow. The hardware was removed in September 2014 following which she had continuing difficulties of pain and inability to perform her job working as a bakery assistant. In July 2015, Kung underwent a fourth surgery to remove a portion of a screw that had been left in left elbow area, which was tearing up her joint and, in addition, the ulnar nerve was decompressed, which helped reduce the pain. Because of the extensive injuries to the left elbow, Kung was no longer able to work at her position in the bakery and thereafter began working as a schoolyard monitor part time three hours a day for 3-4 days a week. Both defendants IME examining doctor and plaintiff's doctor who did the fourth surgery at UCSF stated that in the future she will need an elbow transplant. In addition, she will have permanent problems with the elbow regarding limitation of motion, continuing pain and inability to lift more than 5-10 pounds with the left arm. Dr. Lattanza, the UCSF surgeon, stated that plaintiff's injury is permanent and that there will be a restriction of lifting no more than 5-10 pounds. As a result, plaintiff will have a substantial future wage loss, which was part of the workup by Carol Hyland who, after administering various tests, stated that the tests indicated that plaintiff would have difficulty working at a permanent job because of her injuries and limitations. Jonathan Kung had minimal injuries and, as indicated, sustained a non-displaced fracture of his left ankle.

Result

Defendants settled with Kung for $949,000 and her son, Jonathan for $30,000, for a total settlement of $979,000. Plaintiffs withdrew their motion for modifying the restitution order and informed the district attorney that the prior restitution order of Dec. 9, 2013 was satisfied in full.

Other Information

In December 2013, Burch pleaded nolo contendere at the probation/sentencing hearing. As part of her punishment for driving under the influence of alcohol and endangering her child, she was sentenced to prison. Following the nolo contendere plea, the complaint was amended requesting attorney fees under CCP Section 1021.4 since Burch was convicted of a felony. There was no dispute regarding liability. Burch, at the time of the probation/ sentencing hearing, in a letter to Kung, apologized for causing the accident and injuries. At the time of the probation/ sentencing hearing, restitution was sought by plaintiff and a judgment was entered for $94,000, which consisted primarily of her then past wage loss and medical bills up to that time. Prior to the mediation on Oct. 11, 2016, plaintiff filed a motion to modify the restitution order to seek recovery for plaintiff's attorney time, which was in excess of 700 hours and for additional losses for prior and future wages and medical costs following the initial restitution order of $94,000. FILING DATE: June 25, 2013.