Georgia insurance carrier 'refuses' to pay $22M verdict

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'Three opportunities to pay'

Drew Gilliland teamed with firm colleague Daniela Martinez to represent Florentino Hernandez Hernandez in bringing a personal injury complaint against trucking company Red Rose Express LLC and truck driver Julian Rodriguez-Zulda.

Per a second amended plaintiff complaint filed last July in DeKalb County State Court, Florentino sustained a broken right arm and leg after rear-ending the trailer operated by Rodriguez-Zulda along Buford Highway in Peachtree Corners, Georgia.

“Defendant JRZ negligently stopped his vehicle in the roadway as he was traveling downhill. The lights on Defendant JRZ’s tractor trailer were not turned on; the emergency flashers were not on; and emergency triangles were not put out. These acts and omissions violated Federal Motor Carrier Safety Regulations,” the plaintiff complaint alleged. “As Plaintiff was traveling downhill, he collided into Defendant JRZ’s tractor trailer. Plaintiff did not see Defendant JRZ’s vehicle because it was dark, there were no streetlights and the lights on Defendant JRZ’s truck were not turned on. The collision occurred as a direct and proximate result of Defendant JRZ’s negligence, gross negligence, negligence per se, failure to exercise ordinary care, and disregard for the safety of others."

In addition to being transported to the hospital and undergoing emergency and subsequent surgeries, plaintiff counsel said Hernandez endured post-traumatic stress disorder and an undiagnosed mild traumatic brain injury from the collision.

"[I]t was very difficult to get him treatment because he only spoke Spanish, and he did not like complaining about his problems. He was so tough that he actually tried to walk after the crash on a broken leg," Gilliland said. "He was also diagnosed with disc herniations in his neck and lower back, and he got injections and a percutaneous disc decompression surgery. It took him a year to go back to work."

Gilliland said the plaintiff incurred $502,000 in medical bills but that plaintiff counsel opted to waive Hernandez's lost-wages claim when demanding damages from Knight, the defendants' insurer. On several occasions, plaintiff counsel offered to resolve the matter with Knight for the defendant's policy limits.

"Knight had at least three opportunities to pay the $1 million policy limits before trial. They received two demands under OCGA 9-11-67.1 for the policy limits of $1 million, and they also received an offer of judgment for $750,000 under OCGA 9-11-68," Gilliland said.

According to plaintiff counsel, the defendant's insurer offered $250,000 in response to Hernandez's first demand but later recanted.

"Knight is now taking the position that the two demands they received under OCGA 9-11-67.1 failed to comply with that statute and so they were not required to make any offers," Gilliland said. "Knight is also arguing that offer of judgment failed to comply with OCGA 9-11-68 and they were therefore not required to make any offers."

With the parties remaining at odds over liability, the matter proceeded to a trial before DeKalb County State Court Judge Alvin T. Wong in February — but not before the parties entertained additional settlement talks the weekend before trial. However, when an adjuster for Knight proffered a high-low resolution of $250,000 and $750,000, Gilliland said plaintiff counsel's response of a high-low offer of $2 million and $8 million or resolution for $7.5 million went unaccepted.

'Too fast for conditions'

To overcome the defense argument, plaintiff counsel redirected the jury's focus to the role the defendants' alleged negligence played in Hernandez's injuries.

"We learned that the truck's wiring system had been chewed through by rodents and that was the likely cause of the truck stopping on Buford Highway," Gilliland said. "The trucking company did not preserve any maintenance records of its truck even though it was required to do so under federal law."

In addition to pointing out at least several federal regulation violations committed by the defendants that constituted negligence per se, plaintiff counsel leveraged testimony from several witnesses who corroborated the truck's hazard lights had not been lit at the time of the collision. Because of the "trucking company’s lack of maintenance on the truck," plaintiff counsel posited the vehicle "never should have been on the road."

Plaintiff counsel then attempted to turn the obstacle of their client "going back to work and not receiving medical treatment for three years" into an opportunity.

"We used those facts in our favor," Gilliland said. "During jury selection, a lot of jurors expressed disdain for people who claim to be injured as a way to milk the system. We pointed out that our client was the exact opposite of that: He went back to work as soon as he was physically capable of doing so. We said he should be commended for getting on with his life and not trying to game the system."
Before resting their case, plaintiff counsel requested the jury award Hernandez $66 million in damages. However, the jury reached a different conclusion.

$22 million verdict

The jury split the remaining liability between the trucking company and its driver at 80% and 15%, respectively.

"The insurance company had the opportunity to settle for $750,000 under the offer of settlement statute, so we filed a motion to add $9 million in attorney fees," Gilliland said. "We have a hearing on our attorney fees in May."

Juror feedback

Following the trial experience, Gilliland shared that he believed "DeKalb [County] is changing to a more conservative venue." By speaking with jurors after the trial, Gilliland said he learned that some had been perturbed about the trucking company lacking the maintenance records that federal law required the defendant to keep.

"The jury was upset about that, especially given the wiring system in the truck," Gilliland said. "The jury also gave weight to the eyewitness testimony about the truck not having its lights on."

And that's not all the jury revealed.

Gilliland said he learned that having medical professionals on the jury ultimately worked in the plaintiff's favor. In addition to an accountant, banker, corporate communications specialist and minister, the jury included at least two nurse practitioners and an occupational therapist, according to plaintiff counsel.

"They understood the severity of the injuries and that the plaintiff would need future medical care," Gilliland said. "Another juror said that it costs $96,000 per year to live in Georgia, so they added that sum for the next 20 years and they awarded his medical bills. The rest of was 'pain and suffering.' We don’t know how much money the medical professionals thought was needed for future medical care. We did not present any future medical expenses in our case."

Gilliland noted that plaintiff counsel received support from appellate attorney Anna Cross of Cross Kincaid, who appeared on behalf of Max Thelen of Ashby Thelen Lowry during trial. With Hernandez's verdict unsatisfied by Knight, plaintiff counsel said Thelen had taken over post-trial appellate work in the case.

"The insurance carrier is refusing to pay more than the policy limits of $1 million," Gilliland said. "With the recent passage of tort reform, we think this [case] ... raises interesting issues about the motivation of insurance companies to negotiate in good faith after a jury has spoken."

According to plaintiff counsel, Knight has retained Jason Wyrick of Cruser and Mitchell as counsel. As of Wednesday morning, Knight had not responded to a request for comment about the case. A request for comment from Knight Specialty Insurance Company general counsel P. Renee LoCascio also remained unanswered.

This article first published on law.com.

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