Butler Kahn recently obtained a $1,050,000 settlement in a truck accident case. The case was hard-fought from beginning to end, with the truck company denying that it was at fault and blaming our client for causing the collision. We were able to get a great result for our client using old-fashioned witness work, expert testimony, and an offer under Rule 68 of Georgia’s Civil Practice Act.
Here’s more about the case.
Facts of the Truck Wreck
* The names have been changed for our client’s privacy
On a sunny afternoon, Ms. Alberta Nelson was driving home from work. She took the same way that she had each day before. Shortly after rounding a curve, a box truck pulled out of a neighborhood road. Ms. Nelson crashed into the middle of the truck. Because of the truck’s sudden move, there was nothing Ms. Nelson could do to avoid the collision.
The front end of Ms. Nelson’s car was destroyed. The investigating police officer spoke with all of the witnesses and concluded that the truck driver was at-fault because he had failed to yield to oncoming traffic. The truck driver was later convicted for failing to yield.
Even though the truck driver was cited and convicted for failing to yield, the truck company and driver denied any responsibility for causing the collision.
Proving that the Truck Driver was at Fault
Even with the truck driver’s conviction, proving fault in this case was difficult for two reasons. First, the truck driver testified under oath that he had looked both ways before entering the roadway. He said that he didn’t see any cars coming from either direction. Second, the parties were able to download data from Ms. Nelson’s car, which showed that she was driving 10 mph over the speed limit just before the collision.
We knew we had an uphill battle and needed to find a way to neutralize the truck driver’s testimony and our client’s speeding. We turned to two types of expert witnesses – an accident reconstructionist and a human factors expert. The accident reconstructionist inspected the vehicles and calculated the relative speeds and positions of Ms. Nelson’s car and the box truck. The human factors expert used the accident reconstructionist’s calculations to figure out two critical pieces of information – when Ms. Nelson perceived and reacted to the box truck and when the box truck driver should have perceived and reacted to Ms. Nelson.
The experts were able to show that the truck driver had testified falsely, and that Ms. Nelson’s speeding didn’t contribute to the wreck. To the first point, the experts were able to show that the truck driver didn’t stop where he said he had and most likely didn’t even look left before entering the roadway. Had the truck driver looked left, he would have seen Ms. Nelson coming. To the second point, the experts showed that Ms. Nelson was paying attention and responded to the hazard in a reasonable way based on when she first applied the brakes. They also were able to show that Ms. Nelson wouldn’t have been able to avoid the collision even if she were driving 10 mph below the speed limit.
Trucking Insurance Company Tries to Get Out of Case
We filed this trucking case against the trucking company and against the trucking company’s insurer. That’s a little unusual – in most automobile collision cases, you’re not allowed to even mention the insurance company at trial, much less sue them directly. But Georgia has what lawyers call a “direct-action statute” that changes the rule in trucking cases. When a “commercial motor carrier” (usually meaning a truck company) is at fault, you can also sue the insurance company directly. So we did.
The insurance company didn’t like that. They filed a “motion to dismiss” with the Court, asking the judge to rule that the insurance company should not have been named as a defendant – basically, asking the Court to let them out of the case. We filed a response brief in which we explained that, under Georgia’s direct action statute, we were allowed to sue the insurance company directly. The insurer still disagreed and filed a reply brief. In the end, the Court had to issue a written order, or ruling – and we won. The insurance company remained a named defendant in the case.
Personal Injuries Sustained by Our Client
The injuries that our client suffered in the collision were serious.
The force of the impact shattered Ms. Nelson’s knee and badly bruised her face. Ms. Nelson was taken by ambulance to the hospital where she had an emergency surgery to repair her knee. After the first surgery, Ms. Nelson’s doctors recommended a total knee replacement because the knee had been so badly broken. Over a year after the first surgery, Ms. Nelson had a total knee replacement, which greatly improved her condition.
Although we were able to neutralize some of the obstacles, we still faced a significant risk that a jury would blame Ms. Nelson for speeding – even if she couldn’t have avoided the collision, driving at a lower speed might have lessened her injuries. After disclosing our expert’s opinions, we served what’s called a Rule 68 offer – which is found at O.C.G.A. § 9-11-68. A Rule 68 offer can be an effective tool for settlement because if the verdict at trial exceeds the offer by 125%, then the defendants are responsible for paying attorney’s fees in addition to the verdict. In other words, it forces the insurance company to realistically assess the value of the case.
In our Rule 68 offer, we gave the truck company, the driver, and the insurance company the opportunity to settle the case for $1,050,000.00. However, in order to accept the offer, each of the defendants had to agree to have a judgment entered against them (as opposed to a private settlement, which often comes along with confidentiality provisions and other unfavorable terms for the injured person). After the truck company and its insurer took one of our expert’s depositions, they realized their driver would most likely be held responsible by a jury. A few days later, the phone rang. The defendants accepted the offer, and the case was resolved favorably for our client.