Plaintiff counsel said their client sustained knee injuries when she crashed into the middle of the box truck but argued she could not have avoided the collision.

Alphonsie Nelson of Quintairos, Prieto, Wood & Boyer in Atlanta handled the defense of the truck driver and his employer, Veterans Empowerment Organization of Georgia Inc. Meanwhile, Atlanta-based Hall Booth Smith attorneys C. Michael Johnson and Thomas K. Wingfield represented Arch Insurance Co., based out of Jersey City, New Jersey. Requests for comment went unanswered by defense counsel.

"Even though the truck driver was cited and convicted for failing to yield, the truck company and driver denied any responsibility for causing the collision," plaintiff counsel said in a statement.

But the litigation hurdles didn't stop there.

Obstacle

Plaintiff attorney Kahn said data downloaded from their client's vehicle revealed she'd been driving about 10 miles per hour over the speed limit just before the crash. When coupled with the truck driver's testimony that he'd "looked both ways" before entering the roadway, Kahn said plaintiff counsel would have faced an uphill liability battle if the case proceeded to trial.

"We did three focus groups, and a few of them attributed 50% [or] 40% fault to our client for speeding," Kahn said. "We weren't super confident in our ability to get over that hurdle at trial, even with the expert testimony saying that she wouldn't have been able to stop. even if she was going the speed limit."

Instead, plaintiff counsel said they relied on expert witnesses including an accident reconstructionist and a human factors expert to prove "the truck driver had testified falsely," and that their client's speeding "didn't contribute to the wreck."

Meanwhile, defense counsel for the trucking insurance company challenged the plaintiff's decision to name it as a defendant, since the truck driver had been transporting personal property at the time of the collision.

"It used to be the law in Georgia that, under that circumstance, there could be no direct action," said Butler. "The defense raised that issue. We briefed it, litigated it to conclusion and obtained a favorable order."

Gwinnett County State Court Judge Emily J. Brantley issued an order denying the insurance company's motion for dismissal.

Brantley determined that a "for hire" component outlined in O.C.G.A. § 40-1-100 (12) A  didn't apply since the the trucking company "voluntarily operates its own commercial vehicles intrastate picking up and delivering volunteer items to veterans."

"The purpose of permitting joinder of the insurance carrier is in furtherance of the public policy to 'protect the public' against injuries caused by the motor carrier's negligence," Brantley ruled. "The intent is that the insurer is to stand in the shoes of the operator of a commercial motor vehicle and be liable in any instance of negligence where the motor carrier is liable, with an eye toward ensuring that the insurance carrier's substantial resources are put towards safety and public protection."

'It Matters a Lot'

Plaintiff counsel credited a shift in the defendants' willingness to settle to a strategic Rule 68 offer made after disclosing their experts' findings. The plaintiff attorneys pointed out that after making a Rule 68 offer, if the case had gone to trial and received a verdict exceeding the offered settlement by 125%, the defendants would have become responsible for paying attorney fees in addition to the verdict.

"It forces the insurance company to realistically assess the value of the case," plaintiff counsel said in a statement. "In our Rule 68 offer, we gave the truck company, the driver and the insurance company the opportunity to settle the case for $1,050,000. However, in order to accept the offer, each of the defendants had to agree to have a judgment entered against them, as opposed to a private settlement, which often comes along with confidentiality provisions and other unfavorable terms for the injured person."

With the settlement accepted by the defendants, plaintiff counsel said the case has been resolved in their client's favor, but noted the litigation of the direct action statute is significant for attorneys on either side of the aisle going forward.

"It matters a lot," Butler said. "There's been some question in a couple of our cases raised about whether that applies, when, as in this case, the company operating the truck doesn't carry other people's property for hire, and they instead just use the truck to carry their own stuff."