$5.8M: Elderly Bicyclist Struck By Semi-tractor Trailer

Nearly $6 Million For Elderly Bicyclist Struck By Semi-tractor Trailer Following Plaintiffs Counsel’s Contention That Truck Broker Was Vicariously Liable For Independent Contractor’s Negligence

FINAL RESULT:

$5,815,000
($4,800,000 from Defendant, Scully Distribution Services, Inc.)
($1,000,000 Policy Limits from Defendant, Jose Gutierrez)
($15,000 Policy Limits from J.T. McKinney Co., Inc.)

CASE DESCRIPTION:

On November 25, 2008, Plaintiff James McClellan was injured in a Bicycle v. Tractor-Trailer collision at the intersection of Lemon Avenue and Laycross Drive in the City of Industry. The collision occurred at approximately 11:30 a.m. Plaintiff contended that he was struck without warning by a tractor trailer driver, Jose Gutierrez dba Gutierrez Trucking, whom was making a right turn. Defendant contended that Plaintiff put himself in a position of danger, stopped in the middle of the intersection in the blind spot of Defendant’s tractor trailer.

Plaintiff contended that Defendant, Jose Gutierrez, was an employee not only of Gutierrez Trucking but also Scully Distribution Services (“Scully”). Plaintiff argued that while Jose Gutierrez signed an agreement as an independent contractor, his actions made him an agent of Scully at the time of the incident. Scully contended that Jose Gutierrez was an independent contractor and that they could not be liable for his independent negligence, if any. McKinney Trailer Rentals rented the trailer to Jose Gutierrez on the date of the incident.

Following Jim’s brief awakening, he soon lost consciousness again. When Jim woke up for the second time, he found that his right leg was amputated below the knee. Jim remained in the hospital for nearly a year. Jim went from being an active, healthy 76-year-old male to a catastrophically injured patient in need of serious continuing medical care. Plaintiff contended that he requires assistance with daily activities, including: help eating, bathing, and taking medications. Defendant denied the nature and extent of Plaintiffs injuries.

COMPLETE TITLE OF PLAINTIFFS:

James McClellan
Gloria McClellan

COMPLETE TITLE OF DEFENDANTS:

Jose Gutierrez
Scully Distribution Services, Inc.
J.T. McKinney, Co., Inc.

PLAINTIFFS’ ATTORNEYS:

Christopher R. Aitken, Esq.
Michael A. Penn, Esq.
Atticus N. Wegman, Esq.
AITKEN✦AITKEN✦COHN

DEFENDANTS’ ATTORNEYS:

Attorneys for Defendant, JOSE GUTIERREZ
Daniel Sullivan, Esq.
Sarah Mitchell, Esq.
Sullivan, Ballog & Williams, LLP
400 N. Tustin Avenue, Ste 475
Santa Ana, CA 92705
(714) 541-2121
(714) 541-2120 facsimile

Attorneys for Defendant, SCULLY DISTRIBUTION SERVICES, INC.
Edward R. Leonard, Esq.
Julee M. Fritsch, Esq.
HARRINGTON, FOXX, DUBROW & CANTER, LLP
1100 Town & Country, Suite 1020
Orange, CA 92868
(714) 973-4595
(714) 973-7923 facsimile

Associate Counsel for Defendant, SCULLY DISTRIBUTION SERVICES, INC.
Barry Clifford Snyder, Esq.
Ashley Ann Dorris, Esq.
Snyder Law, LLP
420 S. Fairview Avenue, Ste 102
Santa Barbara, CA 93117
(805) 692-2800
(805) 692-2801 fax

Attorneys for Defendant, J.T. McKINNEY CO, INC.
Toni Kern, Esq.
700 South Flower Street
22nd Floor
Los Angeles, CA 90017-4209
(213) 381-2861
(213) 383-6370 fax

PLAINTIFF’S CONTENTIONS AS TO LIABILITY:

Plaintiffs contended that defendant, Jose Gutierrez caused the incident by failing to yield to Jim in a roadway prior to turning. Plaintiff contended that Jose Gutierrez was found to be in violation of California Vehicle Code §22107 which states: “[n]o person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.” Plaintiff contended that Jose Gutierrez changed his story from the time he was interviewed by police, and his deposition.

Plaintiff contended that Defendant, Jose Gutierrez, was an employee not only of Gutierrez Trucking but also Scully Distribution Services (“Scully”) at the time of the incident such that vicarious liability would be established. Plaintiff argued that while Jose Gutierrez signed an agreement as an independent contractor, his daily actions made him an agent of Scully at the time of the incident. Intensive discovery revealed that Jose Gutierrez basically worked exclusively for Scully, even though he was listed as an independent contractor. Plaintiff contended that his job functions were exactly the same as individuals employed as direct Scully drivers.

Defendant, J.T. McKinney Co. Inc. owned the trailer that defendant, Jose Gutierrez was hauling with his tractor on the date of the incident.

DEFENDANT’S CONTENTIONS AS TO LIABILITY:

Defendant, Jose Gutierrez, contended that he was not negligent for any of the injuries suffered by Plaintiff. Defendant contended that Plaintiff put himself in a position of danger. Defendant contended that Plaintiff stopped, for unknown reasons, in the middle of the intersection and in the blind spot of Defendant’s Tractor Trailer. For this reason, Defendant contended he was unable to see Plaintiff during his right hand turn.

Defendant, Scully Distribution Services, Inc. contended that defendant, Jose Gutierrez was an independent contractor and not employed by Scully Distribution Services, Inc. Scully contended that Jose Gutierrez specifically entered into an independent contractor agreement and that he had his own separate insurance and controlled his own actions.

Defendant, JT McKinney, paid the policy limits of trailer ownership liability earlier in the litigation.

COUNTY: Los Angeles

CASE NUMBER: KC055249

COURT: Los Angeles-East District (Pomona South Courthouse)

JUDGE: Judge Steven D. Blades (Dept. G)

DATE OF SETTLEMENT:

April 9, 2010 – $15,000.00 (J.T. McKinney)
December 7, 2010 – $1,000,000 (Jose Gutierrez)
December 7, 2010 – $4,800,000 (Scully Distribution)

MEDIATOR:

Troy Roe (Judicate West)

TYPE OF CASE:

Bike v. Auto (Personal Injury)

DATE/TIME OF INCIDENT:

November 25, 2008 at approximately 11:30 a.m.

LOCATION OF INCIDENT:

Intersection of Laycross and Lemon Avenue, City of Industry, County of Los Angeles, State of California

PLAINTIFF AGE:

James McClellan, 76 at time of incident (DOB 6/1/32)
Gloria McClellan, 75 at time of incident (DOB 12/28/32)

PLAINTIFF’S OCCUPATION:

James McClellan, Retired

PLAINTIFF’S EXPERTS:

1. – Irene Mefford, R.N.
P.O. Box 3595
Ventura , CA 93006
(Nurse Case Management – Home Transition)

2. – David Nissenberg
Nissenberg & Associates
7910 Ivanhoe Avenue, Suite 14
La Jolla, CA 92037
(Commercial Trucking)

3. – Timothy J. Reust
Accident Science, Inc.
24421 Chestnut Street, Suite 100
Newhall, CA 91321
(Accident Reconstruction)

4. – Gerald Bretting
Collision & Injury Dynamics, Inc.
149 Sheldon Street
El Segundo, CA 90245
(Accident Reconstruction)

5. – David Patterson
Casa Colina Centers for Rehabilitation
255 East Bonita Avenue
Pomona, CA 91769-6001
(Physical Rehabilitation)

6. – Anne Barnes, R.N.
3047 San Gabriel Avenue
Glendale, CA 91208
(Life Care Planner)

7. – Kendall Wagner, M.D.
Fullerton Orthopedic Surgical Medical Group
101 Laguna Road, Suite A
Fullerton, CA 92835
(Orthopedist)

8. – Catherine M. Graves, MBA, CFA
901 Paloma Place
Fullerton, CA 92835-3304
(Economist)

PLAINTIFF’S INJURIES:

James McClellan’s initial injuries following the incident included a left common iliac artery injury; bilateral superior and inferior rami fractures; bilateral peritrochanteric fractures; pubic diastesis, posterior urethra injury; right Lisfranc fracture/dislocation; contusions face/scalp; hypovolemic shock; and bilateral ankle wounds. He was also later treated for the following stemming from his initial injuries: aspiration pneumonia, with acute hypoxic respiratory failure; septic shock; adult respiratory distress syndrome; acute gastrointestinal bleed; anemia; small-bowel obstruction; right foot infection (MRSA), status post right below knee amputation; pneumonia (MRSA); urinary tract infection; gastric ulcer; right lower extremity deep venous thrombosis, status post inferior venous cava filter placement; sepsis; rectus sheath hematoma; urethral injury secondary to pelvic fracture; multiple fractures secondary to motor vehicle accident; coronary artery disease; sick anus syndrome; diabetes, type II; and hypothyroidism.

Gloria McClellan maintained a claim for loss of consortium.

MEDICAL SPECIALS:

Approximately $443,748.38 was paid for medical services.

PLAINTIFFS’ LITIGATION SUPPORT:

Juris Productions (video)
High Impact, Inc. (illustrations)

SUBMITTED BY:

CHRISTOPHER R. AITKEN, ESQ.
MICHAEL A. PENN, ESQ.
AITKEN✦AITKEN✦COHN
3 MACARTHUR PLACE, SUITE 800
P.O. BOX 2555
SANTA ANA, CA 92707-2555
(714) 434-1424
(714) 434-3600 FAX
Chris@aitkenlaw.com
Michael@aitkenlaw.com