Kimberly, a 31-year-old police detective, was injured-on-duty in June 2000, while riding as a passenger with two other officers in a police vehicle driven by a co-employee. The vehicle in which she was riding broadsided a large GMC dump truck that was attempting to make a u-turn from the right shoulder of the road. The driver of the police vehicle slammed on the brakes in an effort to avoid the collision but was unable to stop in time.
Immediately following the accident, Kimberly did not recall whether she was wearing her seatbelt. However, she testified in the deposition that it was her custom and practice to always wear a seat belt when possible. The defendant’s vehicle was owned by a construction company and driven by the twenty-two-year-old grandson of the owner. The driver had a known history of schizophrenia, for which he had been prescribed anti- psychotic medication. He had not taken his medication for a month prior to the accident. He also had a history of drug and alcohol abuse, for which he had undergone psychiatric treatment and hospitalization. The owner of the company claimed that he hired his grandson one week prior to the accident and was unaware of his grandson’s personal or medical history.
As a result of the accident, Kimberly sustained injuries to her low back and right knee. She was transported from the scene by ambulance. Because she was nineteen weeks pregnant at the time, no x-rays or other diagnostic tests could be performed. As a result of her pregnancy, Kimberly was unable to take any anti-inflammatory or pain medication and was forced to endure months of severe back pain which radiated into both legs. Kimberly’s back pain progressively got worse. Following the birth of her child, an MRI revealed low back disc protrusions at two levels. Her doctor recommended that she undergo a lumbar laminectomy and a two level spine fusion. Kimberly also developed bilateral carpal tunnel syndrome which we believed was due to bracing herself against the seat in front of her at the time of impact. Approximately ten months following the accident, Kimberly attempted to return to light duty, but she was only able to work for a period of three weeks before her back pain got worse and her doctor took her off of work completely.
At the time of the accident, Kimberly was earning approximately $7,200.00 per month. By the time settlement negotiations began, she had already lost wages of approximately $151,000.00. It was anticipated that Kimberly could earn only approximately $15.00 per hour in an alternative occupation. Because she had a work-life expectancy of an additional thirty years, her net loss of future earnings capacity was could be as much as $1,600,000.00. Her past medical expenses were approximately $11,000.00, and future medical expenses were estimated at $50,000 to $60,000.00. The defendant’s insurance policy limit was $1,000,000, for which our lead attorney on the case, Steger Johnson, made the demand.
The defendant initially refused to participate in mediation, given our $1,000,000.00 demand, and then reluctantly agreed. At the beginning of the mediation, the defendant argued that Kimberly was not wearing her seatbelt at the time of the accident and would not have sustained injury if she had. They argued that her carpal tunnel injuries were proof of the fact that she wasn’t wearing a seatbelt since she would not have been able to reach the seat in front of her with a seatbelt on. They also argued that her injuries were not severe enough to preclude her from her job as a police detective, since most of her duties involved interviewing witnesses, writing reports, making telephone calls and other light office work. Finally, they argued that she was looking for a way to stay home with her new baby and the accident was a convenient excuse. This argument was unpersuasive, given the fact that she was already the mother of a ten year old son and had been working as a police officer for seven or eight years.
At the first mediation session the defendant offered $300,000.00 with an indication that they may be willing to pay $400,000.00 to $500,000.00. At a second mediation session, the defendant offered $600,000.00. Through subsequent negotiations, the defendant ultimately agreed to settle the case for $900,000.00. Because analysis by the accident reconstruction expert determined that Kimberly’s co-employee was negligently driving the police vehicle too fast, and may have been able to stop in time to avoid the accident had he been traveling at the speed limit, her employer and the California Public Employees’ Retirement System received no portion of the settlement, even though both had made substantial expenditures for her workers’ compensation and retirement benefits and medical treatment.
As a result of this excellent settlement Kimberley will have a measure of financial security. However, like every truly injured person, the money doesn’t truly replace the loss of a career to which she was devoted or make the pain with which she lives every day any less debilitating.