$825,000 RECOVERY

$825,000 RECOVERY - AUTO/MOTORCYCLE COLLISION - MOTORCYCLIST STRUCK BY INEBRIATED DRIVER OF CONSTRUCTION PICK-UP TRUCK - DEATH ACTION.

Hudson County

This was a death action in which the plaintiff contended that the defendant intoxicated driver of a construction pick-up truck, who was proceeding in the right, south-bound lanes without activating the turn signal in order to reach the far exit lane to the left, cutting off and striking the 36-year old decedent motorcyclist, who was proceeding in the left lane. The plaintiff maintained that the decedent, who was pronounced dead at the scene from massive internal injuries, probably experienced conscious pain and suffering for several seconds. The decedent left a wife with whom he resided and a daughter who lived in Trinidad.

The accident occurred at 11:45 P.M. as the decedent was returning from work. The plaintiff contended that the defendant driver and two co-workers were returning from a job site in the construction company pick-up truck and were drinking. The employer's insurance policy covered the driver irrespective of whether he was in the course of his employment. The plaintiff was prepared to present two eyewitnesses who would have contended that the defendant suddenly switched lanes as the left sided exit approached, striking the plaintiff motorcyclist. The plaintiff also established that based upon concessions by the defendant driver, he was unfamiliar with the area and contended that he had attempted to suddenly reach the exit in the far left lane without making observations. The plaintiff also maintained that after the collision the defendant continued a short distance and stopped, throwing some beer cans over the raised highway. The plaintiff maintained that the defendant was inebriated and that he had a BAC of .15.

The police report reflected that one of the witnesses had observed that the decedent was traveling at approximately 75 mph and had the liability case had been tried, the defendant would have argued that the decedent was comparatively negligent. The plaintiff would have countered that this same witness had indicated in a statement given to the plaintiff's investigator that the decedent was traveling at 55 mph, the same speed as the witness, and the plaintiff would have argued that the officer had made a mistake in his report. This individual, who was listed as a potential witness by both parties, and who had been interviewed by counsel during the investigation, had not been asked to give a deposition by either party.

The decedent died from massive internal injuries as well as head trauma. The plaintiff contended that based upon scrape marks on his hands, it was clear that he must have attempted to break his fall and, therefore, that he must have experienced a brief period of conscious pain and suffering. The plaintiff also contended that after the decedent was thrown from his bike, he was propelled into on-coming traffic and was struck by another vehicle, pointing to such observations by one of the eyewitnesses, arguing that the period of conscious pain and suffering may well have been slightly longer.

The defendant would have pointed to the testimony of the other eyewitness that only the on-coming driver struck the motorcycle and not the defendant, who was some distance from the motorcycle after the accident. The defendant would have denied that there was any evidence of conscious pain and suffering, pointing to the fact that there were no observations of any consciousness, that there was no expert pathology testimony supporting the plaintiff's contentions and that the decedent was pronounced dead at the scene. The on-coming driver could not be certain if he struck the decedent. The on-coming driver, who was not a defendant, had brought his own claim against the defendant, which is pending.

The decedent was working as a mechanic. The plaintiff's economist would have introduced evidence of approximately $1.4 million in economic losses, including lost earnings, loss of services and loss of guidance and advice under Green/Bitner. The widow, in her late 30's, described an extremely close relationship with her husband in which she relied upon him for extensive emotional support in addition to the extensive services provided by the husband, who was a mechanic, did virtually all household repairs. The decedent also left a daughter who resided in Trinidad with the child's mother and the plaintiff contended that he provided some limited support.

The case settled prior to trial for a structure of $1.8 million with a recovery of $825,000.

REFERENCE

Chandler vs. Martinez et al. Docket no. L-9866-97; 6-99.

Attorney for Plaintiff: Robert Fuggi of Fuggi & Fuggi in Toms River.