$2.3 million awarded to woman whose leg was badly fractured when her car was rear-ended by a commercial van.

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friday, march 23, 2012
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verdicts &
settlements
Fulton jury awards $2 million for woman’s leg
broken in crash
verdict ILLUSTRATES a trend of insurers undervaluing fractures, her lawyer says
greg land | gland@alm.com
A Fulton County jury last
week awarded nearly $2 million to a
woman whose leg was badly fractured
when her car was rear-ended by a
commercial van, and added another
$218,000 for the woman’s husband.
Because the woman offered to settle
for $1 million almost two years ago,
the final judgment includes more than
$109,000 in interest, bringing the total
award to almost $2.3 million.
The case illustrates what Fried Rogers
Goldberg partner Michael L. Goldberg
described as a noticeable trend of
insurers undervaluing injuries that, while
not life-threatening, result in invasive
surgery and permanent damage.
“As a firm, we’re seeing this across
the board,” said Goldberg. “This lady
had a badly fractured femur and had
to have pins and screws inserted. We’d
been telling the defense, ‘Look, this is
a million-dollar case; she has long-term
mobility issues.’”
“They just kept evaluating it as a
$200,000 [to] $250,000 case,” Goldberg
said. He compared it to a Fulton County
case last year in which his firm represented
a woman who was awarded $1.4 million
for a badly fractured leg she suffered
when a Marta escalator malfunctioned.
john disney/daily report
Michael Goldberg said his client deserved a larger
award because she has long-term mobility issues.
“Insurers just don’t evaluate them
properly—they act like a fracture that
heals is no problem. That’s why we keep
trying these fractured leg cases,” said
Goldberg, who represented car accident
victim Gloria Turner with Russell T.
Deutschman of Kenneth S. Nugent P.C.
Goodman McGuffey Lindsey &
Johnson partner Robert A. Luskin,
retained by R.S. Andrews’ carrier
Cincinnati Insurance to defend the
company and its driver, said he offered
more than $250,000 to settle the matter.
Luskin, who worked with Philip W.
Lorenz on the case, said no decision
has been made regarding an appeal or
motion for a new trial. “We’re looking at
the law and the facts,” Luskin said, “and
we’re still evaluating those options.”
The case began in November 2009
when Turner, then 56, was stopped in
traffic on Canton Road. According
to all parties’ accounts, Cassidy
Dempsey, an employee of heating
and air-conditioning contractor R.S.
Andrews Services Inc., was driving
home in a company-owned Ford
Econoline van when he came upon
Turner’s stopped Nissan Altima and
struck it from behind.
According to Dempsey’s version
of the pretrial order, traffic halted
because a law n- ca re tr uck was
“stopped in the middle of the road for
some reason.” As he tried to move into
the right lane, another car “flew past
blowing its horn” and he swerved back
into the left lane, unable to brake in
time to avoid hitting Turner.
R.S. Andrews’ version of the accident
said that Dempsey originally claimed
the van’s brakes had failed, but that he
later refuted that story “after calming
down” and asserting that the van’s antilock brakes had instead activated.
In any event, according to the
company’s account, Dempsey was off
work and not acting in the course of his
duties when the accident occurred, and
the company denied any liability.

2. Daily Report March 23, 2012
Turner originally filed suit against
Andrews and Dempsey in DeKalb
County, then dismissed that complaint
and re-filed in Fulton County State Court
last year. The suit alleged negligence
against Dempsey, and contained counts
for imputed liability; negligent hiring,
training and supervision; and negligent
inspection, maintenance and repair
against R.S. Andrews.
During a court-ordered mediation
before Victor J. Faenza, the most the
defense would offer was $250,000,
Goldberg said.
“Ours was $1 million going in,” he
said, “but we said if they got to $750,000,
we’d recommend it to our client.”
Goldberg said that the defense was
“adamant that it was not worth even
$500,000,” but Luskin disagreed.
“I did not say that,” he said, asserting
that he had offered “in excess of
$250,000” to settle the case.
Luskin said that his defense of both
R.S. Andrews and its driver—whom
the company claimed was not acting
within the scope of his employment—
did not create any conflict, since both
defendants agreed that Dempsey was
not on duty at the time of the wreck.
“The question was whether he was
actually in the scope of his employment;
that was a question for the jury,” he
said. “There was never any question as
to whether it created conflict.”
Prior to trial, the defense moved to
add Turner’s husband, Preston Turner,
as a plaintiff.
“That was a strategic thing,” said
Goldberg, explaining that the defense
apparently wanted to avoid having
the plaintiff win and then have to face
the husband in a new suit, for loss of
consortium claim.
“We don’t usually bring loss of
consortium claims, because juries
don’t seem to like them, and they don’t
usually add a lot,” said Goldberg.
Trial commenced March 12 before
Fulton County State Court Chief Judge
Patsy Y. Porter.
Goldberg noted that his side did not
present any expert witnesses, calling
Dempsey; R.S. Andrews owner Jack
Dowling; the investigating police officer
and an eyewitness to prove cause and
Gloria Turner’s doctor and others to
prove damages.
The defense presented the mechanic
who inspected the van’s brakes, a former
operations manager with the company,
and an investigator who had surveilled
Gloria Turner for several days.
“He had some video that showed
her walking with a limp in varying
degrees,” he said.
The defense raised an argument that
Gloria Turner, a 20-year vegetarian,
may have contributed to her medical
condition by refusing certain protein
supplements her doctor recommended,
Goldberg said, and that she was not
aggressive enough in performing
physical therapy.
The plaintiffs’ rebutted that argument
by pointing out she had returned to work
within five months of the wreck, relying
on a walker as she moved around the
office, he said.
On March 14, the jury of five
African-American and seven white
members deliberated about five hours
before returning a verdict awarding
$1,962,0 0 0 to Gloria Turner and
$218,000 to Preston Turner. The jury
also ruled that Cassidy Dempsey was
in the scope of his employment at
the time of the wreck, so there was
no allocation of liability between
Dempsey and R.S. Andrews.
In a March 19 entry of judgment,
Porter added $109,416 to Gloria
Turner’s award, representing 639 days’
of interest on the $1 million settlement
offer Goldberg made in June 2010,
citing Georgia’s Unliquidated Damages
Interest Act, O.C.G.A. § 51-12-14.
Under that section, if an offer to settle
a case is not met within 30 days and a
subsequent verdict is in excess of the
offer, interest on the settlement offer
may be added to the judgment.
In total, the award comes to
$2,289,416.
Goldberg said he spoke briefly to some
of the jurors, who said they all thought
the driver, Dempsey, was a very nice
man, but they couldn’t understand why
R.S. Andrews didn’t take responsibility
for the accident.
“They said they felt that, based on
the law and testimony, there was never
any argument about whether he was in
the scope of his employment,” he said.
“They clearly felt that the damages
were very significant, well in excess of
a million dollars; they just didn’t know
how much,” said Goldberg.
Luskin said one issue that may be
raised on appeal is Porter’s denial
of summary judgment prior to trial
regarding the scope of employment
issue. He noted that the judge did
grant a directed verdict denying any
claims for punitive damages and
future lost wages.
Luskin said he, too, spoke to the jurors,
but they didn’t raise any particular
issues regarding their decision.
“There was nothing in particular,”
he said. “We talked about the trial in
general, but nothing that will have
any bearing on our decisions in the
future.”
The case is Turner v. R.S. Andrews,
No. 11EV12354. DR
Reprinted with permission from the 3/23/12 edition of the DAILY REPORT
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