Facts

On Oct. 30, 2007, plaintiff Mary Beth Ely, a 38 year old woman, was driving her car eastbound on Airport Drive in the city of Torrance. She entered the intersection of Crenshaw Blvd. on a green light. Defendant Arnold Kim was traveling southbound on Crenshaw when he ran the red light, causing a collision with Ely's vehicle. Kim was driving his own car which was insured by Allstate Insurance, with a policy limit of $15,000. Kim was en route to perform an examination of an insurance applicant on behalf of Mobile Medical Examination Services Inc. (MMES), which had hired him pursuant to an Independent Contractor Agreement. Ely brought an action against Kim, for negligence, and MMES, for vicarious liability.

Disputing that an agency relationship existed between Kim and MMES, MMES filed a motion for summary judgment, which the court denied.

PLAINTIFF'S CONTENTIONS:
Ely contended that Kim was acting within the course and scope of his employment with MMES when the accident happened. Further, the existence of the Independent Contractor Agreement did not protect MMES from legal responsibility according to the doctrine of respondeat superior.

DEFENDANT'S CONTENTIONS:
MMES contended that no agency relationship existed because Kim was an independant contractor. As such, MMES claimed, it was not liable for his negligence.

Settlement Discussions

Initially, MMES offered to waive a claim of malicious prosecution against Ely if she agreed to dismiss the case. Later, MMES offered to settle the case, per CCP 998, for the sum of $1,500. Ely filed a CCP 998 offer to compromise in the sum of $700,000 while the motion for summary judgment was pending.

Specials in Evidence

For cervical fusion surgery, $415,000. Estimated at $400,000.

Injuries

Ely suffered neck injuries, which resulted in a kyphosis. Ely underwent two cervical fusions, an anterior fusion at C5-7 and a posterior fusion at C4-7. Her treating doctor indicated the need for another fusion surgery and hardware removal. Ely claimed that she had to give up tennis and most physical recreational activity due to the fusion surgeries and the chronic neck pain, which radiates into her upper extremities.

Result

The case was settled following the denial of the motion for summary judgment and right before the final settlement conference. Under the agreement, Ely was to receive $1,500,000 from MMES and $15,000 from Kim (policy limits).

Other Information

MEDIATORS: Robert E. Shannon, Esq., Jeffrey Krivis, Esq. FILING DATE: Sept. 10, 2008.