Confidential
Settlement – $100,000Facts
On Nov. 10, 1995, at approximately 5 p.m., the plaintiff, age 58, was driving his 1986 GMC pick-up truck southbound on the Harbor freeway, when, for an unknown reason, the engine of plaintiff's vehicle stalled, causing his vehicle to slow down to a stop. As plaintiff attempted to steer his vehicle across lanes of travel in an attempt to reach the right shoulder, his vehicle was rear-ended by the defendant who was driving a 1991 Toyota pick-up truck who claimed he was unable to slow down his vehicle in time to avoid the collision. The defendant alleged that it was plaintiff who created the danger on the highway when he attempted to cross his lane of travel. The defendant further contended that at the time of the impact, it was dark and that the plaintiff had been driving his vehicle without any lights or operable brake lights which, resulted in no appropriate warning for him to avoid rear-ending the plaintiff's vehicle. The responding highway patrol officer found plaintiff to be a contributing factor in causing the accident. The plaintiff did not have a policy of liability insurance at the time of the accident, and as such, he was precluded from seeking general damages under the retroactive effect of Proposition 213.
Settlement Discussions
On April 4, 1997, the defendant made a C.C.P. Section 998 offer for $7,001. Thereafter, the defendant agreed to pay the arbitration award of $10,293. On Jan. 4, 2000, the defendant made a C.C.P. Section 998 offer for $15,001, which was later raised to $47,217, a few weeks before trial. Thereafter, numerous settlement related discussion took place between counsel until the matter was settled for the policy limits of $100,000.
Specials in Evidence
$44,303 $108,000
Injuries
Injuries according to the plaintiff: Pain to plaintiff's neck, low back, right leg and right foot. On April 13, 1998, the plaintiff submitted to a percutaneous needle discectomy at L4-5. In addition, the plaintiff claimed to have lost earnings in excess of defendant's policy limits. Injuries sustained according to the defendant: Based upon the examination and records review conducted by the defendant's medical examiner (which took place prior to plaintiff submitting to the needle discectomy) the defendant claimed that the plaintiff had no evidence of any ongoing pathology, limitation or restriction and that the mechanism of injury was not consistent with any acute or traumatic disc herniation. The defendant further claimed that anything beyond a few days of physical therapy was excessive.
Other Information
On Oct. 20, 1997, the matter was arbitrated before Barry I. Goldman. The plaintiff received an arbitration award of $10,293. Thereafter, a request for trial de novo was filed on plaintiff's behalf. Given the arbitrator's award, the counsel for the defendant successfully caused plaintiff's case to be transferred to Municipal court. However, after the plaintiff underwent a needle discectomy, plaintiff's counsel remanded his client's claim back to the Superior court. According to the defendant: After a non-binding arbitration, the plaintiff's first attorney filed a trial de novo. In April 1998, the plaintiff underwent a percutaneous discectomy and added another $34,000 in medical expenses. The plaintiff alleged that he could not perform physical work for the remainder of the year and had to hire independent contractors to perform his physical labor on his apartment buildings (he renovated old apartment buildings). He claimed he had to pay others to perform his work and paid them cash.
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