'Bull demand' nets $3M settlement with trucking company's insurer
A camera on the truck showed that the driver had 12-15 seconds of clear visibility of the stopped vehicle it collided with.
After a demand letter sent to a trucking company’s insurer failed to spur negotiations in a wrongful-death claim, a team of Georgia plaintiff attorneys decided to take a page out of a trial guidebook.
By shifting the focus of their next demand letter from the insurer to the insured, plaintiff counsel said the defendants became the most persuasive advocates for settlement.
Now the plaintiff team of Princenthal, May & Wilson and Starrett & Harris attorneys is outlining how the strategy helped them overcome a series of factual hurdles to secure a $3 million tender.
‘Extremely tough set of facts’
Austell lawyer Wesley Starrett of Starrett & Harris teamed with Sandy Springs attorneys Matthew Wilson and Michael Denney of Princenthal, May, & Wilson to represent the mother of a woman killed in a collision with a tractor-trailer along Interstate 285 near Memorial Drive in May.
Upon taking on the case, plaintiff counsel said they faced ”an extremely tough set of facts.”
During the morning of the crash, the plaintiff’s daughter had been a passenger in her own vehicle as it sat parked in the far right lane of the interstate “with no brake lights illuminated,” per Wilson.
In addition to a driver operating the woman’s vehicle with only a learner’s permit, plaintiff counsel said police later charged the individual with DUI and vehicular manslaughter for the death of their client’s daughter.
“We knew that was a challenge that we were going to have to face very, very early in the case,” Starrett said. “We did learn that [the driver was] well over the legal limit according to the blood alcohol works.”
But Starrett said that didn’t dissuade plaintiff counsel from proceeding with the case.
Instead, the trio focused its attention on the driver behind the deadly collision.
“There was a camera on the truck that showed that the driver had a good 12 to 15 seconds of clear visibility of that stopped vehicle before impact,” Starrett said. “[The truck driver] never touched the brakes or changed lanes, and there was hardly any traffic on the road.”
‘It didn’t matter how much apportionment’
As part of its investigation into the case, plaintiff counsel said they exchanged a variety of documents with defense lawyers for the trucking company’s insurer.
Kennesaw attorneys Blair Cash and Donovan Eason of Moseley of Marcinak Law Group represented the defendants, but did not respond to a Daily Report request for comment.
Noting the forward-facing video of the crash obtained from the truck’s cab, plaintiff counsel Denney contended liability transferred to the trucking company upon its driver’s impact with the plaintiff’s daughter’s vehicle.
“Any negligence for the car becoming stopped in the roadway or any intoxication was over at the point where the truck approached her on the interstate,” Denney said. “From there on the truck had the ability to avoid the collision and any negligence on our driver.”
To support that argument, Denney said he leveraged his prior experience on the opposite side of the table as a trucking defense lawyer. He said he used analyses of driver’s logs and data taken from the truck itself to highlight the defendant’s negligence leading up to the collision.
“I went through and found all the problems they had on the regulatory side of things,” Denney said. “He was using what’s called a ‘personal conveyance exception,’ or the ability to use the truck off duty, to actually drive the loads. It was extensive.”
By coupling the alleged pattern of rule violations with the truck driver’s failure to respond to the stationary vehicle “in the roadway until less than two seconds before the collision,” Denney said plaintiff counsel could attribute “a very significant amount of liability” to the trucker.
“We then argued, under an apportionment statute, it didn’t matter how much apportionment was put on the driver, [because] it would still be more than the defendants had in insurance,” Denney said.
‘Bull demand’
Plaintiff counsel used its analysis to support an initial demand, but said defense counsel responded with follow-up questions about the charged driver’s liability, rather than an offer of settlement.
“We felt like we needed to approach it differently and decided to write, as we call it, a ‘bull demand’ … to get the insured’s attention,” Wilson said.
Rather than write the second demand letter to defense counsel or the insurer, Wilson said plaintiff counsel addressed the correspondence to the owner of the trucking company and truck driver.
Hoping to relay to the insured the potential “risk their trusted insurance carrier exposed them to by not tendering [policy] limits,” plaintiff counsel made sure to include wording from the insured’s policy that conveyed that “the insurer, not the insured, is the sole decider on whether to pay.”
Wilson said the plaintiff team also highlighted the existence of a conflict of interest “between the insurer saving their shareholders’ money by not paying, versus the guaranteed protection the insured is given by settling the claim.”
In addition to equating a policy limit payment to “a drop in the bucket compared to the billions the insurance company makes or is sitting on,” Wilson said plaintiff counsel acknowledged why apportionment “even under the worst of circumstances” for their client would still likely “result in an excess verdict.”
“We tell counsel, ‘Hey, this needs to be forwarded to your insured,’” Wilson said. “That fear from the insured of what can happen provides a tremendous motivation for them to essentially lobby or negotiate or advocate on the plaintiff’s behalf.”
Wilson said he’d learned the approach from “Running with the Bulls,” a trial guidebook about “how to win top-dollar settlements” written by married trial attorneys Nicholas and Courtney Rowley.
Co-counsel Starrett applauded the approach for its ability to force insurance companies and their representing counsel to have candid conversations with their insureds about ”who they’re actually representing and protecting.”
“The insurance company has very good attorneys that represent them, but their number one priority is going to be to protect that insurance policy,” Starrett said. “Protecting the insurance policy is not always in line with protecting the insured’s assets.”
$3 million tender
Plaintiff counsel said the secondary bull demand led defense counsel to offer a $3 million tender, but Starrett said the strategy could have still worked in plaintiff counsel’s favor, had the wrongful-death claim proceeded to trial.
“It puts you in a great posture, should you obtain a verdict of excessive limits, to show that they acted in bad faith by not settling this case, because not only did you advise them of what could potentially happen if they didn’t settle, but you also advised them that they should inform their insureds of that, as well,” Starrett said. “At the point when a bad-faith action happens, that action actually is going to belong to the insured. So it gives the insured great evidence to show, ‘Hey, this is what [plaintiff counsel] told [the insurer] is going to happen.’ It’s even better evidence if they never shared it with them.”
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