"I'm satisfied," Tuszynski said of the jury's decision. "Honestly, I thought the jury would assign some degree of fault to Mr. DeFrancesco simply because [of the case's circumstances]. … I had hoped the percentage assigned was lower, but given the overall net recovery, our client was pleased with how it all ended."

How It Happened

David Tuszynski is of counsel with Garland, Samuel & Loeb. Courtesy photo

The incident played out in dramatic sequence. On March 13, 2017, DeFrancesco had parked his tractor-trailer at a Flying J truck stop in Resaca off Interstate 75, about 75 miles northwest of Atlanta. According to a court document, while asleep in the middle of a rainy night, DeFrancesco was awakened by the impact of Stephens' truck striking his.

Tuszynski said DeFrancesco testified in court that "the other rig was caught on [his] fender and bumper and was see-sawing back and forth to get unstuck."

"While the other driver was stuck to our client's truck, our client got his pants half on, flashed his headlights and blew his horn to get the other driver's attention," Tuszynski added. "Then, he opened his driver's door and turned towards the door to put on his boots and was knocked to the pavement by the other truck still jerking his truck."

According to Tuszynski, the bare-footed DeFrancesco was not injured by the fall, and he then got up, ran and jumped onto Stephens' truck's DOT bar, also known as the Mansfield bar, which runs low along the back of every tractor-trailer.

"While our client was holding on with one hand, he was banging the side of the trailer and hollering for the driver to stop," he said. "The other driver tapped his brakes or hit a dip, and our client fell off; he did a tuck and roll, got up and went back to his truck."

From there, DeFrancesco started his 18-wheeler and took a more direct route out of the truck stop than Stephens, catching up to him and blocking his path before he could get onto I-75.

"The other driver said he did not know he hit our client's truck and did not know our client had jumped on the back of his trailer," Tuszynski said. "Also, he testified that he would not have stopped if our client had not blocked him."

Tuszynski added that DeFrancesco said he went to great lengths to stop the other truck because some tractor-trailers are driven by bad actors who steal others' license plates and use them as their own, in addition to using fake trucking company signs, making it impossible to determine the owner's true identity.

DeFrancesco's Injuries

Sara Sibley is an associate with Garland, Samuel & Loeb. Courtesy photo

According to Tuszynski, though DeFrancesco did not report any injuries to police the night of the incident, he woke up the next day with back, neck and knee pain. He visited a local hospital and was treated and discharged. Having sustained injuries in a 2009 truck wreck, DeFrancesco had undergone prior back/neck surgery, and the defense used his medical history as an argument for the jury to acquit its client, Tuszynski said.

After finishing his trucking route to Florida and returning to his home state, DeFrancesco was seen by an orthopedic surgeon, who diagnosed him with a protruding disc that was treated with epidural steroid injections.

In January 2018, DeFrancesco underwent further surgical treatment. A laminectomy was performed, in which the doctor removes all or part of a vertebral bone, or lamina, to relieve pressure on the spinal cord or related nerve roots.

"Even after the laminectomy, he still had pain, so he was diagnosed with a hip injury [in April 2018]," Tuszynski said, adding that DeFrancesco's doctor then recommended hip replacement surgery.

The surgery and hip injury forced DeFrancesco, who owned a one-man trucking business, to miss various periods of work. In light of having previously undergone two back surgeries, DeFrancesco opted against hip replacement surgery and used glucosamine supplements to treat his injury.

Tuszynski said DeFrancesco's health is at about 75%, and due to his injuries, he is no longer able to accept certain truckloads because they require him to personally load and unload them from his trailer.

Trial Strategy

The case was referred to Garland, Samuel, & Loeb by Eckert & Associates on Fleming Island, Florida. DeFrancesco sued only Sentry Select Insurance Co., which held the insurance policy for Greenwood Farms, Stephens' employer. That tactic is allowed under Georgia law in tractor-trailer wreck cases.

Because Sentry has a registered office in Lawrenceville, the lawsuit was originally filed in Gwinnett County State Court before the defense moved to federal court.

Coincidentally, both DeFrancesco's and Stephens' rigs were insured by Sentry, which was one of two key "pieces of evidence that I thought were very important and would not be in a typical auto case," Tuszynski said. He added that DeFrancesco's policy included no-fault coverage, which "provided him a certain level of medical benefits and lost income."

One insurance adjuster each was assigned to DeFrancesco and Stephens, and a third one, a subrogation adjuster, was also assigned to the case, with the plaintiff seeking a monetary award from the defendant.

"What a third adjuster does is send a form letter to the Sentry Select liability adjusters for the claim under the other guy's policy, meaning [it says], 'We have determined your insurer is at fault,'" Tuszynski said. "That, I argued quite heavily, but you basically had Sentry Select admitting they were at fault for this accident."

He added that at her deposition, the subrogation adjuster, who was based in Wisconsin, "tried to retract or backtrack that letter."

"She said when she sent the letter, she didn't know the full facts of the situation, [saying], 'I didn't know how he was injured. If I had known that, I would not have sent the letter because it would have changed my entire assessment,'" Tuszynski said.

The attorney also said another key piece of evidence was DeFrancesco's back surgery prior to the incident.

"They were arguing Mr. DeFrancesco had back problems before, and 'we didn't hurt him as bad as he says,' but Mr. DeFrancesco's no-fault claims adjuster at some point … required [him] to go to an independent doctor chosen by Sentry Select," he said. "He went to see this doctor, an orthopedic surgeon, and he said the accident in Resaca aggravated any preexisting back problems he had."

'Reasonable' Risk

When asked how rare this case was in their legal careers, Tuszynski and Sibley, who've practiced law for nearly 41 and more than 10 years, respectively, said it was one of a kind.

"This is the first time I've had a case where someone jumped onto a moving vehicle and was thrown off in the process," Tuszynski said. "I think [what] I said in my opening or closing argument is you see these [situations] when you get carjacked, and sometimes people try to jump in the car or on the car door to try to get [the thief] to stop. My argument to the jury was it is reasonable to make some attempt."

Said Sibley, "We talked in jury selection, too, about hit-and-run [incidents] and who's experienced it." Later she added, "This factual scenario is really rare."

From both sides, there were takeaways from this case, Tuszynski said, "I suppose there are different ways of looking at it. If you're looking at it from the lawyers' perspective, the takeaway is don't be reticent about taking your cases to court even if they appear to be difficult, contested liability cases."

Sibley added, "Especially, we've had these delays with the [COVID-19] pandemic, and it's time to get these cases, especially contested liabilities, to trial."

Both also praised Jones for his fair and smooth handling of the trial.

Defense's Reaction

James Hardee and Robyn Roth, both partners with Fain, Major & Brennan in Atlanta, represented Sentry in the case.

"We thought the jury verdict was fair and reasonable and understandable," said Hardee, adding the defense does not plan to appeal. "I think the jury came back and [believed] the plaintiff would never have accepted if we ever made that offer. The jury came back with a verdict basically in the middle of where the case would fall anyhow. It was a very interesting trial with a different set of facts [than a usual one]. David Tuszynski is a real gentleman and a pleasure to work with and did a fine job for his client."

He said the pre-suit demand "was somewhere in the $700,000s."

"The guy had had a back surgery," Hardee said, "and the testimony was he alleged he needed two more surgeries, including a hip replacement surgery, so we felt pretty good about the verdict."

The case is captioned James DeFrancesco v. Sentry Select Insurance.