Multiparty settlement reached in lawsuit

ST. LOUIS, MO -- A Cass County woman who was left partially paralyzed after being rear-ended in 2007 received $2.95 million in a multiparty insurance company settlement.

Diana White was southbound on Highway 7 in Cass County on May 7, 2007. She was stopped behind two vehicles, the first of which was waiting to make a left turn. While White was stopped, an ABC Specialty Inc. tow truck driver John Orfield tried to brake, but his wheels locked. Orfield rear-ended White, causing a chain-reaction crash.

White suffered a spinal cord injury that initially left her completely paralyzed from the waist down. Today she is able to get around with the assistance of a walker, but her physicians expect her to remain partially paralyzed for the rest of her life.

ABC Specialty initially offered to pay the full $1 million of its policy limits on condition of getting a full release. The plaintiff declined the offer, however, and chose to take depositions from Orfield, his supervisor and ABC Specialty Inc.'s operations manager to see if there was potential for additional claims and avenues for insurance, said lead plaintiff's attorney Scott Nutter.

"Anytime you have an auto accident case that involves very serious injuries like this, you never accept the initial policy limits. ... One million dollars is a lot of money, but it's not full compensation for this client," he said.

During the depositions, the plaintiff learned that Orfield had a history of accidents and citations and had failed a drug test while working for ABC Specialty Inc. The plaintiff also learned Orfield did not give a drug test following the accident, which was required by company policy.

Orfield also testified that the truck's anti-lock brake system (ABS) warning light had been on at the time of the collision and that he'd reported to the problem to the company. He said his brakes locked and caused him to lose control when he tried to avoid the collision.

The depositions revealed that a related company, ABC Specialty Sales, was responsible for performing maintenance on the tow truck.

The operations manager for ABC Specialty Sales testified that he was aware the ABS warning light was on but did not fix it because he does not believe anti-lock brakes are a proper safety feature for tow trucks.

Adding a further twist, the owner of ABC Specialty Inc. testified that his Austin Insurance Inc. agent failed to obtain a requested $3 million umbrella liability policy in addition to a $1 million policy on the tow truck.

The plaintiff filed suit against ABC Specialty, ABC Specialty Sales and Orfield in October 2007.

Given the information obtained in depositions, the plaintiff hired brake expert Richard Diklich, who was prepared to testify to the brakes' malfunction and to ABC Specialty Sales' failure to properly maintain and repair them according to industry standards.

The plaintiff also hired accident reconstructionist Bruno Schmidt, who held the opinion that driver Orfield would have been able to maintain steering control and avoid the collision or at least dramatically lessen the impact of the collision had the anti-lock brakes functioned properly.

The insurance carrier for ABC Specialty Sales agreed to pay its $1 million policy limit to avoid an excess judgment and risk a claim for bad faith.

The plaintiff also pursued a claim against Austin Insurance, the agency that allegedly failed to obtain the $3 million umbrella policy for ABC Specialty Inc. Austin Insurance claimed that ABC Specialty only had a $1 million policy and had not requested a $3 million umbrella policy. The plaintiff made a tentative agreement with ABC Specialty to limit recovery to available insurance in exchange for ABC Specialty's assignment of the proceeds from any claim against Austin Insurance.

As the plaintiff was preparing to try the case against ABC Specialty and to request a damages finding of more than $10 million, the errors and omissions carrier for Austin Insurance agreed to pay its $1 million policy limits.

The plaintiff then settled with ABC Specialty for the remaining limits of the $1 million auto policy, or $955,000. The plaintiff's total settlement amounted to $2,955,000.

"The case illustrated the importance of doing your due diligence with respect to other claims and other insurance," Nutter said. "In this case, two days of depositions led to another $2 million in recovery for a very deserving client."

Defense attorneys Dave Schatz, Todd Moulder and Tom Magee did not respond to requests for comment.

$2.9 million settlement

Motor vehicle collision

Court: Cass County Circuit Court

Case Number/Date: 07CA-CV04064/ Sept. 30, 2009

Judge: Jacqueline A. Cook

Plaintiff's Experts: Bruno Schmidt, Ph.D, Springfield (accident reconstruction), Richard Diklich, Liberty, (brake maintenance and repair), Tracy Wingate, Kansas City (life care planner), Larry Cox, Springfield (economist)

Special Damages: $405,606.63 in past medical charges, $3,576,711 in future medical and life-care expenses, $388,482 in past and future lost wages

Insurers: SUA Insurance Co. for ABC Specialty Inc., Hartford Insurance Co. for ABC Specialty Sales, Utica Mutual Insurance Co. for Austin Insurance Agency

Caption: Diana White v. ABC Specialty Inc., John Orfield, ABC Specialty Sales, and Austin Insurance Inc.

Plaintiff's Attorneys: Scott E. Nutter , Shamberg, Johnson & Bergman,

Kansas City

Defendants' Attorneys: Dave Schatz, Husch Blackwell Sanders, Kansas City, for ABC Specialty, Inc., and John Orfield; James Morrow and Todd Moulder, Morrow, Willnauer & Klosterman, Kansas City, for ABC Specialty Sales; Tom Magee, Moser & Marsalek, St. Louis, for Austin Insurance Inc.

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