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Fewer sue over road wrecks
| Saturday, Oct 4 2008 12:00 PM
Last Updated: Monday, Oct 6 2008 7:40 AM
A crash on the road can end up a clash in court.
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Tommie Thompson had “soft tissue” injuries — no broken bones — in her south central Bakersfield crash.
She suffered head, neck, back, arm, shoulder and leg pain which ran up medical bills of $59,000, court reports say.
She was hit by a man who ran a stop sign. The man was working for a tire company. The man initially claimed the crash was Thompson’s fault, but finally agreed he caused it.
Attorney Timothy Lemucchi worked out a $95,000 settlement — very high in such cases. Thompson’s share was $55,000 which she used to help buy a new car and house.
Thompson said filing the lawsuit was “pure hell” because the lawyer on the other side tried to get her to admit it was her fault. But she had nothing to hide and was happy with the result.
The defense attorney did not return phone calls asking for comment.
DEEP POCKET CASEBy all accounts, the Sept. 6, 2006 crash on Highway 178 and Oswell Street was the fault of 20-year-old driver Peter Thomas Elliott Jr., who with passenger Bobbie Munoz, 20, lost their lives in the rollover crash.
Elliott, celebrating his birthday, was very drunk — .28 blood-alcohol level which is more than three times the legal limit of .08 — in the early morning crash. Munoz was in the rear seat and not wearing a seat belt.
Deborah Ornelas, the mother of Munoz, went to Lemucchi to file a lawsuit. Among the defendants was Howard’s Mini Mart on Bernard Street where Elliott had bought a 20-pack — after having already drunk three to four beers.
At issue is whether the store sold beer to “an obviously intoxicated minor.”
The defense attorney, Ted Hoppe of Fresno, believes a videotape showed Elliott wasn’t obviously drunk, but it was a problem that Elliott wasn’t asked for identification and other minors said they bought beer there.
Hoppe said he might win eight out of 10 times, but decided to settle for $150,000 — a “small amount” for two deaths.
COMPARATIVE FAULTA big cloud of dust was up ahead on a rural Shafter road by almond orchards.
Osiel Guillermo Garza, then 18, in the Sept. 4, 1995 accident, didn’t stop until his Chevrolet Lumina bashed into a John Deere tractor, harvester and gondola that he couldn’t see in the roadway.
Attorney David Cohn, knowing that Garza would be found partially at fault, filed a lawsuit against Newmann Farms, alleging the tractor should have waited until the Lumina passed and created too much dust.
Garza suffered permanent brain damage as well as continuing physical injuries that affect his walk and peripheral vision.
Defense attorney Michael Renberg argued Garza was speeding and not driving in a reasonable manner. Though the tractor driver saw the car, the driver thought he had plenty of time to make the u-turn and get out of the way, the defense attorney said.
Renberg’s expert put the speed at 81 mph. Cohn’s expert put it at 55 mph.
A jury in 1998 awarded Garza $3.7 million in the accident, but found Garza 28 percent at fault, reducing the award to $2.7 million.
— Compiled by Steve E. Swenson
Motor vehicle lawsuits and trials in $25,000 or higher section of Kern County Superior Court
- 1990-91 — 807 cases, 77 trials
- 1991-92 — 788, 75
- 1992-93 — 728, 77
- 1993-94 — 616, 71
- 1994-95 — 638, 65
- 1995-96 — 631, 45
- 1996-97 — 664, 61
- 1997-98 — 567, 57
- 1998-99 — 641, 65
- 1999-00 — 689, 58
- 2000-01 — 741, 68
- 2001-02 — 784, 67
- 2002-03 — 914, 79 *
- 2003-04 — 543, 61
- 2004-05 — 489, 40
- 2005-06 — 542, 36
- 2006-07 — 494, 25
- 2007-08 — 478, 37
* A spike for extra filings when statute of limitations changed from one year to two years.
Note: Even more lawsuits worth less than $25,000 are filed, but the exact numbers are not available.
Source: Kern County Superior Court
Some 500 people a year file motor vehicle lawsuits in Kern County that exceed the $25,000 mark.
But the number of those suits has declined significantly since the early 1990s when they hovered around 800 annually.
The decrease, attorneys say, is due to lower money awards in neck and back pain cases, the expense of hiring experts and large numbers of drivers who don’t carry much, if any, insurance.
ACCIDENTS CLIMBING
Lawsuits may be down, but accidents aren’t.
In 1992, there were 4,774 vehicle accidents reported in Kern County. As of last year, that number had risen to nearly 6,000, according to the California Highway Patrol. More than a quarter involved injuries.
Typically, attorneys who file lawsuits do so on a contingency basis. If they don’t win or reach a settlement, they don’t get paid and their clients are not compensated.
If they do win, the money is shared. Typically the lawyer keeps 33.3 percent of the award if no lawsuit is filed and 35 percent if a suit is filed. The attorney’s share jumps to 40 percent after a trial and 45 percent if the case goes to appeal.
Those amounts — plus expenses — are negotiable, attorneys say.
MOST SUITS SETTLE
At least 95 percent of cases settle without a trial.
In many cases, people don’t carry enough insurance, or the wrong kinds, said attorney Timothy Lemucchi, who has years of experience representing clients in the aftermath of auto accidents.
“The chances of getting hit by someone with a minimum policy is pretty great,” Lemucchi said. The minimum insurance required in California is $15,000 for death or injury to one person; $30,000 for all persons and $5,000 property damage.
Attorneys recommend having high amounts of uninsured or under-insured coverage — $250,000 or more.
Attorneys can go after homes or other assets, but generally don’t. A protection called homesteading can protect property from judgments.
Those with lots of insurance — so-called “deep pockets” — raise the stakes.
Even if a deep-pocket defendant is found minimally at fault, that entity may pay the lion’s share of an award. But only for money that was actually spent or lost, such as medical payments and lost wages. A deep pocket entity doesn’t have to pay more than it’s share for pain and suffering or punitive awards.
Common deep pocket targets are governmental agencies such as the city of Bakersfield and the county of Kern.
NO RECENT BIG CLAIMS LOCALLY
Both City Attorney Ginny Gennaro and County Counsel Bernard Barmann said their agencies haven’t had to pay out any massive claims recently.
In the past five years, the city has faced 35 lawsuits and paid no money in 14 of them. Most of the cases cost the city between $10,000 to $25,000 range. Only three topped $100,000.
The city has insurance which has limited their liability in some cases. For instance the city paid out a $500,000 deductible after a city police officer made an illegal U-turn in front of a speeding car, a wreck that left a man with severe brain damage.
When that case went to court, the jury awarded a $4.2 million verdict, which was paid by an insurance company, not the city.
Chief Deputy County Counsel Mark Nations said the county does not keep similar statistics. “But we have not had a serious (loss) in a motor vehicle case in a long time,” he said.
INJURY VALUE
How much money is an an injury or death “worth?”
The answer depends on several factors, attorneys say.
They include lost wages, changes in lifestyle (such as a surgeon with a broken hand), medical expenses, life expectancy and pre-existing injuries, attorneys say.
The level of insurance may be central. An injury may be worth millions yet may have to be settled for much less if the insurance doesn’t cover it.
The type of injury is also very important. We asked three local attorneys who regularly handle car wreck cases, Lemucchi, David Cohn and Arnold Anchordoquy, to give us estimates.
Both Lemucchi and Cohn typically represent the plaintiffs, while Anchordoquy typically represents defendants.
Lemucchi suggested the amounts and Cohn and Anchordoquy offered their comments.
• Soft tissue — $10,000 to $100,000. “Could be lower,” Cohn said. Anchordoquy said, “Most cases settle for nowhere near that amount.”
• Broken bones — $75,000 to $100,000. Cohn said he settled a broken bone case for $400,000, but Anchordoquy said many settle for $15,000 to $20,000 or less.
• Quadriplegic (paralyzed from the neck down) — $6 million to $10 million. Cohn put the range at $5 million to $20 million. “I think that’s high,” Anchordoquy said.
• Death — $100,000 to millions. Cohn and Anchordoquy generally agreed.
A couple of major factors — fault and credibility — play into how much money gets dealt out.
If an injured party is mostly at fault, his or her share of any award goes down accordingly, the attorneys said. The same holds true if the injured party comes across as a liar or just plain greedy.
“If jurors don’t like the plaintiff, that’s reflected in the verdict,” Lemucchi said.