$2.8 Million Excess Verdict for Broken Ankle in Atlanta

Excess Verdict Against State Farm

Note: This article originally appeared on law.com. 

Following a day-and-a-half trial, a Fulton County Georgia jury delivered a post-apportionment award of $2.8 million, but deemed the plaintiff 25 percent liable for his injuries.  A Jane Doe defendant was cleared of liability.  The plaintiff was injured when the SUV in which he was a passenger flipped on its side. The driver of the vehicle, which was packed with friends who had been out bar-hopping, is facing drunken-driving charges and invoked his Fifth Amendment right against self-incrimination throughout the trial, said plaintiffs attorneys Matthew Wetherington and Michael Werner.

The defense attorneys, Downey & Cleveland partner W. Curtis Anderson and Waldon Adelman Castilla Hiestand & Prout attorney Travis Meyer, said no appeal was likely because an agreement reached during trial caps the award at the limits of the plaintiff’s uninsured/underinsured motorist policy, but Wetherington said there was a remaining dispute as to how much coverage was available.

Background

According to the lawyers and court documents, the wreck happened Jan. 6, 2014, when several friends from various Atlanta colleges were out celebrating a birthday.  The defendant offered to take everyone home in his Toyota 4Runner; he was not the designated driver, said Werner, “but he made a big point of telling everybody he wasn’t drinking.”  With seven people aboard, the Defendant was driving down Moreland Avenue approaching DeKalb Avenue when a car pulled out in front of him. The Defendant swerved into the opposite lane, overcorrected and rolled the SUV onto its side.

The plaintiff’s portion of the pretrial order said the vehicle slid 240 feet before coming to rest, indicating the Defendant had been doing nearly 70 miles per hour.  Most of the passengers were OK or suffered minor injuries. But Wetherington’s client suffered a serious fracture to his ankle that would require surgery and the attachment of a skin “flap” from his thigh to repair.

The Settlement Demand

Prior to the suit being filed, the Plaintiff demanded and received the $250,000 limit of the Defendant’s insurance policy. In 2015, he sued the Defendant and Jane Doe, the driver of the car that pulled in front of the Defendant to recover underinsured motorist coverage from his own insurer.

Wetherington said he first demanded $500,000 from his client’s UM carrier, State Farm, “then we increased it $50,000 every 60 days, up to $850,000.”

A mediation last year failed, he said, and State Farm’s highest offer was $275,000, made the Saturday before trial.  Trial began Monday, April 3, before Fulton County State Court Judge Wesley Tailor, with Meyer representing the Defendant and Anderson representing Jane Doe. The Defendant had been released from liability upon payment of his policy limits and so bore no personal exposure, Meyer said, but the necessity for invoking the Fifth Amendment for any question regarding the accident “makes it a little tricky.”

Anderson represented Jane Doe.  “I had three options,” he said. “I could represent the Defendant, I could represent State Farm, or I could represent Jane Doe. All three options had potential benefits and risks.”  “Because the defendant had already paid $250,000 under a [limited liability release], I did not want there to be no defense for Jane Doe,” he explained, in case the jury deemed her liable for any damages.

The Trial

The plaintiff’s lawyers faced three liability issues, said Wetherington.  “The first was that our client was a passenger in the rear cargo section of the SUV,” he said. “Second was whether he knew or should have known the defendant was drinking—the court resolved that on directed verdict. Third, was this wreck caused by the defendant or contributed to by the Jane Doe driver?”

The trial wrapped up about noon on Tuesday, he said, and the jury took about two hours to award the Plaintiff $2,799,802, including past medical expenses of $299,802, past pain and suffering of $1.5 million and $1 million in future pain and suffering.  After subtracting the 25 percent apportioned to the Plaintiff, the award was $2,099,851.

Afterward the jury foreman, an attorney at a large corporate firm, was very complimentary to all the lawyers, said Wetherington.  “They took the charge very seriously,” he said.  Anderson said he enjoyed working with Werner and Wetherington.