A few months ago, we reported a partial resolution of a case where a drunk driver, late at night crossed over a grassy median into oncoming traffic on an unlighted portion of I-57, striking a car occupied by 4 persons, including an infant.  One adult died in the accident.  The initial crash was followed a few seconds later by a semi-tractor-trailer crashing into the same car, catapulting the infant who was in a proper car seat, out of the car, causing grievous injuries.

Lipkin & Apter Files Suit Against Trucking Company

We filed suit against the trucking company.  A dash board mounted camera from the tractor-trailer showed its path 30 seconds before the crash.  There were no other vehicles on the roadway. Lights from the tractor-trailer lit about 100 feet ahead of the truck.  Our clients car, disabled, stranded and with its lights knocked out from the first crash, could not be seen until approximately 15 seconds before the 2nd crash. 

No Apparent Evidence of Trucker Fault

The trucker tried veering around the stranded car, which was partially covering both left and right hand lanes of traffic. Vehicle blackbox data indicated that the driver had on cruise control, and was travelling 70 mph.  There were no traffic signs limiting trucks to less than 70 mph.  No law prohibited driving the truck on cruise control.  In so far as hours driving, the tractor-trailer operated within the rules of the Federal Motor Carrier Safety Administration.  There was no evidence either that the truck driver was intoxicated or had fallen asleep.

Insurance Company Offers $1,000,000 Policy Maximum to Settle

We inspected the tractor-trailer, both cars involved this incident, traveled the route of the truck for several miles before the crash, and hired an expert trucking engineer, all to determine if the truck could have avoided the accident.  The legal discovery process (where parties obtain answers to interrogatories and receive documents, and take sworn depositions of opposing parties, witnesses and doctors) was about to begin when the insurance company for the tractor-trailer contacted us, offering its $1,000,000 policy to settle the case. 

Cost/Benefit Analysis of Litigation Outcome Possibly Leads to Settlement Offer

We can only speculate as to why it did so at this early stage of litigation, when there was no concrete evidence of wrongdoing by their driver.  But the likely reason has to do with the insurance company’s cost benefit analysis of the outcome of litigation.

This analysis is part of every personal injury case, whether the potential damages are extremely large, as here, or small.  In this case, the trucking defendant did not have excess insurance coverage.  Excess coverage refers to the purchase of a separate insurance policy that will pay damages that exceed the primary policy.  Because the potential harm caused in a trucking accident can easily exceed a standard $1,000,000 primary policy, virtually all trucking companies purchase an excess policy of $10,000,000 or more to protect the company from a catastrophic loss that could end the company. 

When a jury returns a verdict and the defendant fails to have enough insurance to pay the verdict, plaintiff can go directly after the assets of the defendant.  Here, that means all of the trucks, incoming receipts and property owned by the trucking company.  The defendant did not have an excess policy.  We know, because we required it to sign a sworn affidavit stating that the only policy available to pay damages in this case was its $1,000,000 primary policy.  Should it be determined in the future that the defendant lied about this, there would be severe consequences, consequences that could terminate its business and result in the personal liability of its owners, as well as criminal charges for perjury. 

Huge Jury Verdict Could Have Ended the Company

In this case, the injuries to the four occupants of our vehicle would easily run into the millions of dollars.  Rather than run the risk, however slim,  that a jury would return a huge verdict against it, the defendant decided to pay its primary policy and end the litigation. From the vantage of our clients, the decision was that their interests were best served by accepting $1,000,000 now, rather than risk years of uncertain litigation.  All told, our clients received $2.5 million in this case, including money received from the drunk driver.

In cases where the prospective damages are low, the insurance company and defendant may decide to play hardball, knowing that even in a worse case scenario, the amount they will have to pay out carries little risk to it.  Analysis of the likelihood, and consequences of an unfavorable verdict, play a significant role in an insurance company’s actions to settle a personal injury case. 

Contact Lipkin & Apter If You Are Involved In A Serious Work Related Accident

Lipkin & Apter is dedicated to providing personal, professional legal representation to our clients. We will explain the process of litigation to you, help you understand the strengths and weaknesses of your case, and its anticipated value, so that you can make the decision that best fits your needs.  Should you be involved in a serious personal injury or work related accident, feel free to contact us for a free, no obligation discussion of your case.