In June of 2009, the plaintiff was a 46 year old truck driver making a delivery to a “big box” store. The defendant in question had a policy whereby drivers were expected to “assist” their employees in unloading merchandise brought to the facility. In this particular instance, the defendant employee was operating a clamp forklift, which would grasp cubes of merchandise and transport them on to pallets. The plaintiff was expected to “throw pallets” and “cut shrink wrap” off the cubes when necessary. The accident occurred when merchandise fell onto the plaintiff as the defendant attempted to place it on the pallet.
The case was originally handled by an attorney who received a pre-suit offer of $18,000.00. The attorney was dismissed by the client when he suggested that the offer be accepted. The case was then given to a second attorney who completed the discovery process and asked for $800,000.00 to settle the matter. Ultimately, the client believed he needed trial counsel and decided to make a switch to this office. Immediately, a motion was filed to reopen discovery, and four separate experts were retained: A worksite safety expert; a vocational rehabilitation expert; an economist; and a neurosurgeon. Plaintiff’s new counsel also took several key depositions which, it was ultimately argued, established liability. In essence, the defendant employee as well as two of his superiors and a company investigator all testified that the employee had mistakenly grasped two cubes of flat screen televisions instead of one. Consequently, the circumference of the pallet was inadequate to accommodate the girth of the merchandise, causing the load to tumble over and strike the plaintiff. As an offshoot of this litigation, the defendant sued plaintiff’s employer on a contract action claiming indemnification. This matter was litigated and decided via a summary judgment motion in favor of the defendant. In other words, the defendant remained in the case as the named defendant, but all defense costs and any subsequent settlement or verdict was to be borne by plaintiff’s employer, who had a self-retention policy obligating them to pay the first million dollars of any resolution. The defendants ultimately made a settlement offer in the amount of $250,000.00 to be paid in ten monthly installments of $25,000.00. This offer was rejected.
The parties agreed to mediate the case in March of 2013. It was not until the actual day of the mediation that the plaintiff learned that the defendant company had undergone a change in ownership and corporate structure which resulted in the excess carrier “dropping down” to provide coverage for this incident. Plaintiff’s counsel argued that the plaintiff had suffered a significant cervical injury which required surgery, all of which was directly related to this incident. The defendant countered by stating the plaintiff should not have been standing where he was at the time of the incident and that although injured, was in no way disabled. At day’s end, the defendant offered $550,000.00. Again, the offer was rejected.
Three weeks prior to trial the parties agreed to engage in a second mediation. After a combined sixteen hours of mediation, the case ultimately settled for $900,000.00.