This case study focuses on one of our actual accident cases. This case will illustrate the importance of consulting an experienced attorney to evaluate your injury claim before you abandon or close it.
This was a complex injury claim we litigated and settled about 2 years ago. In the interest of preserving our client’s confidences, we will refer to our client as “YG.” YG is a 27 year-old man who was involved in a motor-vehicle-accident at nighttime in November 2000. YG was driving his girlfriend’s red Mazda RX-7 northbound on Interstate-5 (I-5), near Everett, Washington.
YG was at a Korean bar and restaurant where he was drinking with his friends. YG consumed beer, cocktails, and shots. YG was intoxicated and his blood alcohol level (BAC) at the time of the accident was almost .23, nearly 3 times the legal limit of .08. YG lived in Mountlake Terrace, but for some reason he cannot explain, he was speeding towards Everett.
YG passed other northbound vehicles, going between 85 and 90 m.p.h. As YG approached Everett near Milepost 148, towards the Port of Everett Exit, his car started to spin because of his speed and over-correction. YG’s car rotated and the rear collided with the guardrail, knocking out all the lights in the car. YG staggered out of the car which stalled perpendicular and blocking the two middle lanes. It was 2:00 a.m., and there was no street lighting or ambient lighting in that portion of the roadway. YG was no visible to on-coming traffic.
A newspaper distribution truck driver heading to Snohomish County to distribute newspapers approached the scene. The truck was traveling 65-70 miles an hour. The truck driver did not see YG’s car until he was only 100 feet away. The truck could not stop or avert colliding with YG’s car. The truck slammed into YG’s car, which batted YG 30 feet into the guardrail. YG sustained serious injuries, including rapture of the avuncular nerve which supplies blood to the arm. YG suffered permanent disability and loss of use of his left hand. YG also suffered broken leg, facial fractures and laceration.
YG consulted six injury attorneys to see if he had any claims against the truck driver for his injuries. The first five attorneys declined to take YG’s case. The sixth attorney eventually took the case but withdrew when the truck driver’s insurance company offered only $6000.00 to settle the case. This attorney withdrew from the case and YG consulted Attorney Martin E. Nwizubo of Actus Law Group.
Recognizing the difficulty of proving that the truck driver was at-fault for causing YG’s injuries, Attorney Martin E. Nwizubo signed on to the case. Attorney Nwizubo concluded that although YG’s intoxication is a big contributing factor to the accident, that the truck driver was liable for contributory negligence as a matter of law. Attorney Nwizubo argued a “two accident theory” of the case. Under Attorney Nwizubo’s theory of the case, two separate accidents occurred as a matter of law and that YG’s intoxication was the “proximate cause” of the first accident involving the guardrail. Attorney Nwizubo theorized that the truck driver’s inattention was the proximate cause of the second collision involving the truck. Attorney Nwizubo relied on Greengo v. PEMCO, 135 Wn.2d 799, 959 P.2d 657 (1997) to support his proposition that two distinct accidents with separate proximate causes occurred. Attorney Nwizubo therefore took the position that YG’s intoxication was not relevant and its probative value was substantially outweighed by its prejudicial effect under Evidence Rule 403.
The defense relied on Geschwind v. Flanagan, 121 Wn.2d 833, 838, 854 P.2d 1061 (1993) to argue that YG’s intoxication was the proximate cause of the injuries he sustained. Furthermore, the defense also invoked RCW 5.40.060, which states that in any claim for injury where the plaintiff was “legally intoxicated” at the time of the injury, if the jury determines that plaintiff is more than 50% at fault for his injury as a result of the intoxication, the plaintiff cannot recover anything from the defendant. Essentially, plaintiffs who sustain injuries while intoxicated are barred by RCW 5.40.060 from recovering under contributory negligence if they are found to be responsible for more than 50% of the accident causing their injuries.
Attorney Nwizubo filed suit against the truck driver’s employer based on respondent superior for the contributory negligence of their driver. Attorney Nwizubo strategically chose a more favorable forum, in this case in Pierce County rather than Snohomish County where the accident occurred. Attorney Nwizubo chose Pierce County because the defendant company’s principal place of business was in Fife. More importantly, Attorney Nwizubo felt that a Pierce County jury would be more empathetic to YG’s injuries than a Snohomish County jury.
After protracted litigation, this case was “prepped” for settlement through strategic and timely motion practice. It was concluded earlier on that the settlement value or the determinative factor in the jury’s ultimate finding would be whether or not evidence of intoxication is admitted by the court. We concluded that the earlier we obtained rulings on the admissibility of intoxication evidence, the earlier we could evaluate the settlement value of our claim, if any. Furthermore, the earlier the court ruled on this evidentiary issue, the more informed and prudent we could be pursuing a potentially worthless claim.
With these considerations in mind, we filed a summary judgment motion and deliberately noted it for two days after the court-mandated mediation date. In our summary judgment motion, we requested the court to rule as a matter of law that two separate collisions with separate proximate causes occurred and to suppress evidence of intoxication. Naturally, the defendant argued that the proximate cause of the injuries sustained YG was a fact question to be determined by the jury.
As in most complex litigation cases, the timing of motions and court orders can ultimately affect the outcome of the litigation. In this case, the judge heard the summary judgment motion, but reserved ruling on the issue pending motion in-limine. Fortunately, the defense perceived and interpreted this decision by judge to reserve ruling with alarm.
The defense interpreted this reservation to mean that the judge was seriously considering granting plaintiff’s motion to suppress intoxication evidence. This court ruling set a favorable climate for settlement for the plaintiff.
The defense in their panic made more generous offers to settle, fearing the unquantifiable risk of going to trial. The case ultimately settled for a quarter of a million dollars! The lesson from YG’s case is that a serious injury case is never as simple as it appears. It is always advisable to consult an experienced and aggressive attorney to review your case before you give up on it!!
The author is Attorney Martin E. Nwizubo, and he may be reached at 206-587-2393 or martin@actuslawgroup.com. |
