Facts

On April 6, 2007, defendant Rafael G. Gomez was driving his 1997 Freightliner truck, hauling two-fully loaded tractor-trailers for defendant Nicolas Martinez. At approximately 5 p.m., plaintiff John Doe, a 35-year-old night stock clerk at a grocery store, left Big's Grill and Sports Bar in Fullerton after drinking since noon. Riding his motorcycle, plaintiff approached the intersection of Yorba Linda Boulevard and La Palma Avenue, noting that traffic was backed up considerably at a red light. He therefore split traffic on the right side of the number two lane between a line of stopped vehicles and the bicycle lane. As he approached the intersection and was passing cars on his left, plaintiff approached a right-turn only lane, which took the place of the bicycle lane. Defendant's truck was the first vehicle stopped before the limit line of the number two lane. After splitting traffic on the right side of the truck, plaintiff stopped his motorcycle in front of the truck anywhere from one to five feet from the bumper (witness estimates vary) and entirely within the crosswalk.

After the light turned green, the 70,000-pound truck and trailers moved slowly into the intersection. At trial, eyewitnesses testified that the truck traveled no more than 5 mph. The truck rolled into the motorcycle, knocking down plaintiff, pushing him 48 feet into the intersection and severing his right leg below the knee.

Prior to the arrival of the investigating officers at the scene, plaintiff was taken to the hospital by ambulance. In the emergency room, the doctor ordered a blood test. Plaintiff's plasma blood alcohol level at the ER was .23 percent. The parties stipulated that the intoxication level in whole blood was equal to .20 percent.

One year before trial, the defense moved to bifurcate, which the court granted. Immediately prior to trial commencing, the parties stipulated to waive the damages phase by agreeing how to address the subject of damages. Plaintiff also dismissed without prejudice defendant Martinez since his insurance policy (covering the trailers only) provided excess coverage for the driver, if needed. Accordingly, the sole defendant at trial was Rafael G. Gomez, the truck driver.

Prior to trial, defendant filed a motion in limine to exclude evidence that he refused a blood draw at the scene and evidence of his prior criminal and drug history. The motion was sustained and the evidence was excluded. Likewise, plaintiffs sound recreation evidence was also excluded, for lack of foundation.

PLAINTIFF'S CONTENTIONS:
At trial, plaintiff did not dispute his own negligence in driving drunk. He argued that the defendant should share responsibility because he saw and heard plaintiff pull up. He claimed that the truck driver should have seen him from the truck's right side mirrors as plaintiff approached the intersection.

Plaintiff also alleged that he was clearly within defendant's view when he stopped for approximately one minute next to a small window in the passenger door of the truck and revved his motorcycle twice (it had a very loud straight-pipe exhaust), before moving his motorcycle in front of the truck.

Plaintiff further alleged that the truck driver was under the influence of controlled substances when he took illegal painkillers that his mother had bought in Mexico and given him for his toothache.

DEFENDANT'S CONTENTIONS:
The defense argued that plaintiff was 100 percent liable for the accident. The defense argued that plaintiff violated five California Vehicle Code provisions, specifically section 21658 (laned roadways); section 21755 (passing on right safely); section 21970 (blocking crosswalk prohibited); section 22101 (regulation of turns at intersection) and section 23152 (driving under the influence of alcohol). Further, the truck driver testified that he did not hear plaintiff's motorcycle over his loud diesel engine or see him.

The defense toxicologist testified at trial that plaintiff had the equivalent of 10 drinks in his system when his blood was drawn after the accident. Accounting for the alcohol burn rate and the fact that plaintiff drank over a five-hour period, he would have had to consume 14 drinks that afternoon (assuming his drinking was spaced evenly over the five-hour period).

Settlement Discussions

On Sept. 22, 2008, plaintiff demanded $1 million (policy limits) against Rafael G. Gomez; and $1 million against Nicolas Martinez (policy limits). On Oct. 11, 2007, defendants Rafael G. Gomez and R. Gomez Trucking & Sons made a C.C.P. section 998 offer of $250,000. No other offers were conveyed.

Damages

Plaintiff claimed $173,597 in lost earnings and $1 million in past medical expenses. Assuming that plaintiff was unable to return to his prior occupation, he was not re-trained in some other profession and worked until age 67, the claimed future loss of earnings was $625,122. Plaintiff claimed future life care costs of $852,691 (all numbers reduced to present value). Accordingly, plaintiff claimed present value specials of $2,447,662 (and provided lesser estimates assuming different factual scenarios). The defendant did not dispute past earnings, past medical expenses, or a large portion of the life care costs. The defendant contended that since plaintiff was finally stable and about to be fitted for a prosthetic device, the defense's vocational rehabilitation expert and orthopedic surgeon would testify that plaintiff should be able to return to his prior occupation in approximately one year and therefore the future loss of earnings would be reduced.

Injuries

Plaintiff's right leg below the knee was severed during the accident. He had 19 surgeries and numerous follow-up visits with his doctors over the following three years. At the time of trial, plaintiff had not yet been fitted for prosthetics. His treating orthopedic surgeon, Dr. James Coleman, opined that plaintiff would likely be capable of being fitted for a below-the-knee prosthetic device at the end of May or early June 2010. Both parties agreed that this would be a temporary prosthesis and that it would be another six months before plaintiff was ready to be permanently fitted and considering going back to work. The defense did not dispute the necessity or reasonableness of plaintiff's prior treatment.

Result

The jury returned a verdict for the defense, finding plaintiff 100 percent negligent. Under the terms of the parties' agreement, plaintiff received $300,000.

Other Information

Prior to trial the parties entered into a binding "high low agreement," the terms of which were as follows: the case was determined to have a damages value of $4,000,000. If plaintiff proved defendant was 50 percent or more fault, defendant's insurance company would pay no more than $2,000,000 (the available policy limits). If plaintiff proved defendant was less than 7.5 percent at fault, or if the jury returned a defense verdict, defendant's insurance company would pay no less than $300,000. If for example, the jury placed 25 percent liability on the defendant, defendant's insurance company would pay 25 percent of $4,000,000, or $1,000,000. This agreement protected defendant's carrier from an excess verdict and protected plaintiff with a minimum of $300,000 regardless of the outcome of the trial. INSURER: Scottsdale Insurance Company insured Rafael G. Gomez. Great West Casualty Company insured Nicolas Martinez.

Deliberation

one day

Poll

9-3

Length

three days