August 8, 2005
Cite this Page: 18 NCLW0577
Verdicts & Settlements
Moped Operator Recovers $2 Million For Brain Injury Despite Helmet, Cognitive Test Issues Negligence/Auto - Moped Driver Hit By Truck - Brain Damage Claimed - Issue Whether Wearing Helmet - $2 Million Settlement Type of action: Motor vehicle accident Injuries alleged:
Severe brain injury Name of case: Confidential
Court/county: Confidential
Case no.: Confidential
Tried before: Mediation
Name of judge: n/a
Special damages: n/a
Verdict/settlement: Settlement
Amount: $2 million (available liability limits) Date obtained: June 6, 2005
Demand: n/a
Offer: n/a
Experts: Plaintiff's liability experts included an accident reconstructionist and an expert tractor trailer driver
Insurer: n/a
Plaintiff's attorneys: Robert E. Whitley of Whitley Law Firm, Kinston Person submitting: Sandi Rose
Description: Plaintiff, a 45-year-old, was operating a moped before dawn on a four-lane bypass highway when he alleged he was struck from the rear by defendant trucking company driver. Plaintiff was transported to a local hospital and then transported by helicopter to a regional hospital. He was diagnosed with a severe closed head injury, bi-frontal hemorrhaging contusion, skull fracture, and some less serious orthopedic fractures. Shortly after admission, plaintiff underwent a bi-frontal craniotomy.
The difficulties in the plaintiff's claim included the fact that the plaintiff was unemployed and on Social Security disability at the time of his accident. His disability had been awarded for fibromyalgia, depression, and disk disease. Further, plaintiff had no operator's license, having lost it for multiple alcohol-related driving offenses. The accident report prepared by local police officers included statements attributed to the plaintiff that he was not wearing a helmet at the time of the impact and statements from the defendant truck driver that the moped was unlit. A neuropsychological examination performed prior to the accident, for the disability claim, also indicated a lower cognitive function than the neuropsychological examination conducted post-accident.
The case was a good example of the value of thorough and timely investigation, according to plaintiff's counsel. According to the plaintiff's investigation, the plaintiff had a triangular reflective device on the back of his moped, an officer had seen him shortly before the accident with his lights on, his driving habits indicated that no one had ever seen him operate the moped without lights or without a helmet - and most importantly, the neurosurgeon who performed the brain surgery indicated that there were no injuries to his skull that would be consistent with his not having his helmet on. The claim had been denied by the defendants' carrier based upon a contributory negligence defense. There had been no offers made prior to the mediated settlement conference and the plaintiff attempted to seek contribution from the trucking company in excess of the total $2 million coverage.
At mediation, the defendants trucking company and insurer agreed to pay their full policy limits.
The settlement agreements with the parties included confidentiality provisions which only allow limited disclosures.
