Facts

On Feb. 21, 2004, at approximately 3 p.m., on a clear and sunny day, Vincent Virzi, a 34-year-old massage therapist from Boulder, Colo. was driving to Phoenix, Ariz. on Interstate 40 when his car broke down. He parked his car on the right shoulder of the highway. He exited his car and was standing on its driver's side when he was struck, killed, and thrown over 200 feet by a tractor-trailer driven by defendant Michael Dean Goben. Goben, 52, was in the number two of two lanes of Interstate 40 heading towards Ontario, Calif. and was working for O&S Trucking Co. Inc. of Springfield, Mo.

The plaintiffs are the parents of the decedent, Raymond Virzi Sr. and Judith Virzi.

PLAINTIFFS' CONTENTIONS:
The plaintiffs contended that defendant Goben was speeding (traveling over 80 mph at 75 mph speed limit and the safe speed was much lower) and inattentive; that the decedent and his vehicle were visible for .6 of a mile and Goben should have moved his rig to the left.

The plaintiffs argued that Goben lied repeatedly about his speed, reaction time, and his ability to maneuver to various witnesses, police officers and in his discovery responses.

It was undisputed that Goben had an unauthorized female passenger in his rig (a violation of company policy and the Federal Motor Carrier Safety Regulations) and that he repeatedly lied by denying that he knew her identity or her whereabouts so she could be contacted. The plaintiffs contended that Goben took action to hide the witness.

The plaintiffs presented testimony from experts, Kelly Adamson and Tom Truss, police officers, and the only independent eyewitness, that Goben was speeding and that he could have and should have avoided the accident by moving his rig to the left.

DEFENDANTS' CONTENTIONS:
The defendants argued that the decedent stepped into the path of Goben's rig seconds before impact after exiting his car, giving Goben no time to avoid the collision. The defendants also argued that the decedent could have or should have parked further to the right.

The defendants admitted that Goben lied about the identity and whereabouts of his female passenger, albeit to hide an affair and not to conceal relevant evidence.

Settlement Discussions

The plaintiffs made a C.C.P. Section 998 demand of $500,000; $2 million to $5 million at trial. The defendants made a C.C.P. Section 998 offer of $50,001; and $100,000 at trial. The plaintiffs rejected a high-low proposal with a cap on damages of $1 million and a guarantee of $100,000.

Damages

The plaintiffs, the decedent's siblings, and plaintiffs' economic expert, Peter Formuzis, testified that the decedent would have contributed $179,000 to plaintiffs over their lifetimes absent decedent's death.

Result

The decedent was found to be 49.5 percent at fault; and the defendant was 50.5 percent at fault. The plaintiffs will owe the defendants approximately $28,000 in costs and expert fees pursuant to C.C.P. Section 998.

Deliberation

one hour

Length

eight days