Case: Danny Huddleston, as next friend of Wanda Huddleston v. DAT Truck Lines Inc., HNL Truck Lines Inc. and Handrijono Oetomo, No. 6:17-cv-00055-JRG
Court: United States District Court, Eastern District, Tyler, TX
Judge: Rodney Gilstrap
Neutral(s): Richard Grainger
Plaintiff Attorney(s): B. Gregg Price, Gregg Price Law Office, Sulphur Springs, TX, Daryl L. Derryberry (lead), Derryberry Zips Wade Lawhorn PLLC, Tyler, TX, Tab E. Lawhorn, Derryberry Zips Wade Lawhorn PLLC, Tyler, TX, Craig D. Zips, Derryberry Zips Wade Lawhorn PLLC, Tyler, TX
Defense Attorney(s): J. Hans Barcus (co-lead), Cantrell, Ray & Barcus, Huntsville, TX (DAT Truck Lines Inc., Handrijono Oetomo), Randy G. Walters (co-lead), Walters, Balido & Crain, Dallas, TX (HNL Truck Lines Inc.), Christopher Pierce, Walters, Balido & Crain, Dallas, TX (HNL Truck Lines Inc.)
Facts & Allegations: On Feb. 17, 2016, plaintiff Wanda Huddleston, 79, retired, was driving north in a Chevrolet Silverado pickup truck on U.S. Highway 69 near Lindale. Handrijono Oetomo, an employee of DAT Truck Lines Inc., was driving south in an 18-wheeler owned or leased by HNL Truck Lines Inc. It was early morning and dark, and traffic was heavy. Oetomo attempted a U-turn in an open intersection, and Huddleston struck the 18-wheeler. She sustained multiple injuries and later had multiple strokes, which caused her to become mentally incapacitated. The investigating officer gave Oetomo a ticket for failing to yield the right of way.
Huddleston’s son, on her behalf, sued Oetomo, DAT and HNL for negligently making an unsafe U-turn, failing to yield the right of way and failing to keep a proper lookout. He also sued DAT for violating numerous policies and procedures and Federal Motor Carrier Safety Administration regulations by not giving Oetemo any driver training, not disciplining him for driver log violations, not suspending him after he was given a citation, and not deciding whether the accident was preventable. The plaintiff sued HNL on theories of vicarious liability, alleging that Oetomo was a statutory employee of HNL.
Plaintiff’s counsel said that Oetomo, in deposition, took no responsibility for the accident and blamed Huddleston, in part, because women have slower reflexes.
Plaintiff’s counsel argued that Oetemo was lost and unfamiliar with the area, he was in a rush and he falsified his logs. The truck’s data recorder said the truck had been operating for more than 13 hours, but Oetomo’s handwritten logs said he had been driving for only 7.25 hours.
Under federal regulations, Oetemo shouldn’t have been driving the vehicle at all because he didn’t understand English well enough, according to plaintiff’s counsel.
The defense argued that Huddleston was contributorily negligent for driving too fast, not keeping a proper lookout, not controlling her speed and not braking or turning in time to avoid the collision.
The defense accident reconstruction expert opined that Huddleston should have been able to see the truck and stop before the impact.
An eyewitness who was behind Huddleston was able to stop, the defense noted.
HNL further argued that the truck was not a listed vehicle under its insurance policy and that it therefore had no insurance coverage.
Plaintiff’s counsel countered that, because the policy had a particular endorsement, known as an MCS-90 endorsement, the carrier would have to pay any eventual judgment.
INJURIES/DAMAGES: craniotomy; fracture, leg; hardware implanted; internal fixation; open reduction; pins/rods/ screws; stroke; subdural hematoma
Huddleston sustained a ,leg fracture and a subdural hematoma. She claimed that the accident caused two to three debilitating strokes; as well.
She underwent open_ reduction and internal fixation of the fracture, with placement of pins and screws. For the subdural hematoma, she underwent a craniotomy.
As a result of the strokes, she required 24-hour care and had to move into a nursing home.
The· plaintiffs’ neurology expert opined that the strokes were related to the accident.
Huddleston sought past medical bills of about $315,000, as well as $918,000 for the present value of her life-care plan. She also claimed past and future physical pain, mental anguish, physical impairment and disfigurement.
The defense neurology expert opined that strokes resulted from pre-existing conditions, not from the accident.
RESULT: The case settled for a total of $1.4 million. DAT and Oetemo settled on Sept. 16, 2016, for their policy limit of $1 million, paid by their carrier. HNL settled at mediation on March 6, 2017, for $400,000, paid by HNL’s carrier. HNL’s policy limit under the MCS-90 endorsement was $750,000.
Insurer(s): Global Hawk Insurance Co. for DAT and Oeterho
Wilshire Insurance Co; for HNL
Plaintiff Expert(s): Steve Irwin, accident reconstruction, Dallas, TX.
Rodney Isom, Ph.D., life care planning, Irving, TX
Pete Sullivan trucks, Houston, TX John Swiger, Ph.D., economics, San Antonio, TX
Kathy Toler, M.D., neurology, Dallas, TX
Defense Expert(s): Leonard Hershkowitz, M.D., neurology, Houston, TX
Clifford L. Mccarter, accident reconstruction, San Antonio, TX
Case: Demon Savage v. GKD Management, L.P., d/b/a A&G Commercial Trucking v. CMH Manufacturing, Inc., d/b/a Clayton Homes Bonham, No. 2:16-CV-00362-JRG
Court: United States District Court, Eastern District, Marshall, TX
Judge: Rodney Gilstrap
Neutral(s): Richard Grainger
Plaintiff Attorney(s): B. Gregg Price, Gregg Price Law Office, Sulphur Springs, TX, Daryl L. Derryberry (lead), Derryberry Zips Wade Lawhorn PLLC, Tyler, TX, Craig D. Zips, Derryberry Zips Wade Lawhorn PLLC, Tyler, TX
Defense Attorney(s): Joshua T. Kutchin (co-lead), Fanning, Harper, Martinson, Brandt & Kutchin, Dallas, TX (GKD Management L.P.), W. Scott Simpson (co-lead), Simpson, McMahan, Glick & Burford PLLC, Birmingham, AL (CMH Manufacturing Inc.), James E. Cuellar, Wells & Cuellar, P.C., Houston, TX (CMH Manufacturing Inc.)
Facts & Allegations: On Jan. 13, 2016, plaintiff Demon Savage, early 40s, an unemployed U.S. Navy veteran, was driving a 2004 Ford Expedition on State Highway 37 near Mineola. A tractor-trailer was traveling toward him in the oncoming lane with oversized cargo: a manufactured home. The truck driver was in the course and scope of his employment with GKD Management L.P. The cargo had been loaded that morning in Bonham at a manufacturing plant owned by CMH Manufacturing Inc., the company that provided most of GKD’s business. The truck delivery was headed to Louisiana. As Savage’s vehicle and the 18-wheeler approached each other, one or more boards flew off the trailer, and one lodged itself in Savage’s windshield. Savage lost control and went off the road. He claimed lower back injuries.
The type of board that came off the truck is called oriented strand board. The parties also referred to it as roof planking.
It was being used to secure the plastic wrap that had been wrapped around the manufactured home for transport to Louisiana.
Savage sued GKD Management L.P., operating as A&G Commercial Trucking. GKD filed a third-party claim against CMH Manufacturing Inc., operating as Clayton Homes Bonham. Savage then added claims of his own against CMH.
Savage alleged negligence against both companies on a theory of respondent superior, based on their employees’ conduct, and neither of the defendants disputed the issue of course and scope of employment. Savage also alleged negligent hiring, training and retention.
Against A&G, Savage alleged that its driver violated Federal Motor Carrier Safety Regulations, including CFR section 393.100, which generally requires truck drivers to secure their cargo and keep it from blowing or falling off.
Savage further alleged that truck driver performed only a haphazard inspection of the cargo before starting his trip. He did not use a ladder to inspect the cargo from on top. Even though the top of the cargo was 14 feet above the ground, all he did was walk around it while standing on the ground, plaintiff’s counsel maintained.
Savage also alleged that the truck driver failed to perform an in-transit inspection within the first 25 miles as required by A&G’s policies and procedures and by Federal Motor Carrier Safety Regulations. Savage further alleged that the truck driver failed to perform any in-transit cargo inspection during the trip. If he did perform an in-transit inspection, it was not documented.
After the incident, the truck driver kept going. Savage was able to pull back onto the road and follow him. When the truck driver eventually stopped for some unrelated reason, Savage told him what had happened, and he provided Savage with all the required information.
Plaintiff’s counsel noted that the truck driver never reported the incident to police and that the incident took place off of the route that the state Department of Motor Vehicles had prescribed for the trip. That is, the driver had deviated from the route, and plaintiff’s counsel argued that that was the reason he did not call the police. Generally, deviating from the route is a crime, for both the driver and his employer.
As to Clayton Homes-Bonham, Savage alleged negligence on the part of its employee in charge of wrapping the cargo with plastic wrap and securing it with oriented strand board on the morning of the trip. He failed to wrap the cargo properly and secure the plastic wrap properly, Savage alleged.
The basis for the direct negligence claims against Clayton Homes-Bonham was that this employee had numerous performance reviews with CMH indicating that his work quality was “poor.”
Both defendants initially questioned whether the board in question came from GKD’s truck or not. However, it became clear during discovery that it did.
INJURIES/DAMAGES: annular tear; back and neck; decompression surgery; facetectomy; foraminotomyl foraminectomy; herniated disc at C4-5; herniated disc at L5-S1; laminotomy; physical therapy
Savage went to the emergency room by private vehicle on the date of the accident. He claimed a significant herniated disc at C4-5, a more prominent herniated disc at L5-S1, and an annular tear at L5-Sl. He testified that, when his vehicle left the road, it bounced violently over the terrain until it came to a stop.
At the emergency room, Savage complained of neck and back pain and was treated and released.
He underwent some physical therapy before undergoing surgery in May 2016. The surgery consisted of laminotomies, foraminotomies, partial facetectomies and subtotal decompression, all at L5-Sl.
His surgeon testified that Savage will need a fusion at L5-S1 and, depending on the results of a future select nerve root injection, either a fusion or decompression at L4-5. He testified that the reasonable cost of a single procedure including both a fusion at L5-S1 and a decompression at L4-5 would be about $275,000 to $300,000. He predicted adjacent segment disease would eventually result from the fusion at L5-S1 and that Savage would therefore need a fusion at L4-5 within eight to 12 years, at a cost of $225,000 to $250,000.
Savage sought about $193,000 for past medical bills; about $530,000 to $585,000 for future medical bills, including a nerve root injection and two surgeries; and a little less than $1 million for lost earning capacity and lost household services. He also sought past and future physical pain, mental anguish, physical impairment and disfigurement.
The defense argued that all the complaints and treatment that Savage attributed to the accident, including any future surgeries, were a result of pre-existing conditions. Savage had had lower back problems since the early 2000s.
RESULT: A&G’s insurer agreed to pay Savage $1.1 million to settle all his claims. In addition, pursuant to an agreement between the two defendants, A&G paid all of Clayton Homes-Bonham’s attorney fees and expenses in the case up to $180,000.
A&G had a $1 million primary policy and a $5 million umbrella policy. Clayton Homes-Bonham was self-insured.
Insurer(s): American Inter-Fidelity Exchange for GKD
Plaintiff Expert(s): Brian Reece, M.D., orthopedic surgery, Frisco, TX (treating surgeon)
Pete Sullivan, trucks, Houston, TX
John Swiger, Ph.D., economics, San Antonio, TX
Defense Expert(s): Karen B. Linsteadt, CPC, coding & billing (medical), Plano, TX
George Mendez, CPA, economics, San Antonio, TX
Roby D. Mize, M.D., orthopedic surgery, Dallas, TX
Danny Phillips, accident reconstruction, Dallas, TX
J. Clark Race, M.D., orthopedic surgery, Austin, TX
Richard A. Suss, M.D., neuroradiology, Dallas, TX
Gary D. Thomas, trucks, Waco, TX David R. Tompos, manufactured housing, Nappanee, IN