Nearly $6 Million For Elderly Bicyclist Struck By Semi-tractor Trailer Following Plaintiffs Counsel\u2019s Contention That Truck Broker Was Vicariously Liable For Independent Contractor\u2019s Negligence<\/p>\n
$5,815,000
\n($4,800,000 from Defendant, Scully Distribution Services, Inc.)
\n($1,000,000 Policy Limits from Defendant, Jose Gutierrez)
\n($15,000 Policy Limits from J.T. McKinney Co., Inc.)<\/p>\n
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\u2019s tractor trailer.<\/p>\n
Plaintiff contended that Defendant, Jose Gutierrez, was an employee not only of Gutierrez Trucking but also Scully Distribution Services (\u201cScully\u201d). 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.<\/p>\n
Following Jim\u2019s 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: eating, bathing, and taking medications. Defendant denied the nature and extent of Plaintiffs injuries.<\/p>\n
James McClellan
\nGloria McClellan<\/p>\n
Jose Gutierrez
\nScully Distribution Services, Inc.
\nJ.T. McKinney, Co., Inc.<\/p>\n
Christopher R. Aitken, Esq.
\nMichael A. Penn, Esq.
\nAtticus N. Wegman, Esq.
\nAITKEN\u2726AITKEN\u2726COHN<\/p>\n
Attorneys for Defendant, JOSE GUTIERREZ
\nDaniel Sullivan, Esq.
\nSarah Mitchell, Esq.
\nSullivan, Ballog & Williams, LLP
\n400 N. Tustin Avenue, Ste 475
\nSanta Ana, CA 92705
\n(714) 541-2121
\n(714) 541-2120 facsimile<\/p>\n
Attorneys for Defendant, SCULLY DISTRIBUTION SERVICES, INC.
\nEdward R. Leonard, Esq.
\nJulee M. Fritsch, Esq.
\nHARRINGTON, FOXX, DUBROW & CANTER, LLP
\n1100 Town & Country, Suite 1020
\nOrange, CA 92868
\n(714) 973-4595
\n(714) 973-7923 facsimile<\/p>\n
Associate Counsel for Defendant, SCULLY DISTRIBUTION SERVICES, INC.
\nBarry Clifford Snyder, Esq.
\nAshley Ann Dorris, Esq.
\nSnyder Law, LLP
\n420 S. Fairview Avenue, Ste 102
\nSanta Barbara, CA 93117
\n(805) 692-2800
\n(805) 692-2801 fax<\/p>\n
Attorneys for Defendant, J.T. McKINNEY CO, INC.
\nToni Kern, Esq.
\n700 South Flower Street
\n22nd Floor
\nLos Angeles, CA 90017-4209
\n(213) 381-2861
\n(213) 383-6370 fax<\/p>\n
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 \u00a722107 which states: \u201c[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.\u201d Plaintiff contended that Jose Gutierrez changed his story from the time he was interviewed by police, and his deposition.<\/p>\n
Plaintiff contended that Defendant, Jose Gutierrez, was an employee not only of Gutierrez Trucking but also Scully Distribution Services (\u201cScully\u201d) 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.<\/p>\n
Defendant, J.T. McKinney Co. Inc. owned the trailer that defendant, Jose Gutierrez was hauling with his tractor on the date of the incident.<\/p>\n
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\u2019s Tractor Trailer. For this reason, Defendant contended he was unable to see Plaintiff during his right hand turn.<\/p>\n
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.<\/p>\n
Defendant, JT McKinney, paid the policy limits of trailer ownership liability earlier in the litigation.<\/p>\n
COUNTY:<\/strong> Los Angeles<\/p>\n CASE NUMBER:<\/strong> KC055249<\/p>\n COURT:<\/strong> Los Angeles-East District (Pomona South Courthouse)<\/p>\n JUDGE:<\/strong> Judge Steven D. Blades (Dept. G)<\/p>\n April 9, 2010 – $15,000.00 (J.T. McKinney) Troy Roe (Judicate West)<\/p>\n Bike v. Auto (Personal Injury)<\/p>\n November 25, 2008 at approximately 11:30 a.m.<\/p>\n Intersection of Laycross and Lemon Avenue, City of Industry, County of Los Angeles, State of California<\/p>\n James McClellan, 76 at time of incident (DOB 6\/1\/32) James McClellan, Retired<\/p>\n 1. – Irene Mefford, R.N. 2. – David Nissenberg 3. – Timothy J. Reust 4. – Gerald Bretting 5. – David Patterson 6. – Anne Barnes, R.N. 7. – Kendall Wagner, M.D. 8. – Catherine M. Graves, MBA, CFA James McClellan\u2019s 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.<\/p>\n Gloria McClellan maintained a claim for loss of consortium.<\/p>\n Approximately $443,748.38 was paid for medical services.<\/p>\n Juris Productions (video) CHRISTOPHER R. AITKEN, ESQ.DATE OF SETTLEMENT:<\/h2>\n
\nDecember 7, 2010 – $1,000,000 (Jose Gutierrez)
\nDecember 7, 2010 – $4,800,000 (Scully Distribution)<\/p>\nMEDIATOR:<\/h2>\n
TYPE OF CASE:<\/h2>\n
DATE\/TIME OF INCIDENT:<\/h2>\n
LOCATION OF INCIDENT:<\/h2>\n
PLAINTIFF AGE:<\/h2>\n
\nGloria McClellan, 75 at time of incident (DOB 12\/28\/32)<\/p>\nPLAINTIFF’S OCCUPATION:<\/h2>\n
PLAINTIFF’S EXPERTS:<\/h2>\n
\nP.O. Box 3595
\nVentura , CA 93006
\n(Nurse Case Management – Home Transition)<\/p>\n
\nNissenberg & Associates
\n7910 Ivanhoe Avenue, Suite 14
\nLa Jolla, CA 92037
\n(Commercial Trucking)<\/p>\n
\nAccident Science, Inc.
\n24421 Chestnut Street, Suite 100
\nNewhall, CA 91321
\n(Accident Reconstruction)<\/p>\n
\nCollision & Injury Dynamics, Inc.
\n149 Sheldon Street
\nEl Segundo, CA 90245
\n(Accident Reconstruction)<\/p>\n
\nCasa Colina Centers for Rehabilitation
\n255 East Bonita Avenue
\nPomona, CA 91769-6001
\n(Physical Rehabilitation)<\/p>\n
\n3047 San Gabriel Avenue
\nGlendale, CA 91208
\n(Life Care Planner)<\/p>\n
\nFullerton Orthopedic Surgical Medical Group
\n101 Laguna Road, Suite A
\nFullerton, CA 92835
\n(Orthopedist)<\/p>\n
\n901 Paloma Place
\nFullerton, CA 92835-3304
\n(Economist)<\/p>\nPLAINTIFF’S INJURIES:<\/h2>\n
MEDICAL SPECIALS:<\/h2>\n
PLAINTIFFS\u2019 LITIGATION SUPPORT:<\/h2>\n
\nHigh Impact, Inc. (illustrations)<\/p>\nSUBMITTED BY:<\/h2>\n
\nMICHAEL A. PENN, ESQ.
\nAITKEN\u2726AITKEN\u2726COHN
\n3 MACARTHUR PLACE, SUITE 800
\nP.O. BOX 2555
\nSANTA ANA, CA 92707-2555
\n(714) 434-1424
\n(714) 434-3600 FAX
\nChris@aitkenlaw.com
\nMichael@aitkenlaw.com<\/p>\n","protected":false},"template":"","case_type":[888,882],"class_list":["post-14636","case_results","type-case_results","status-publish","hentry","case_type-bicycle-accident","case_type-personal-injury"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/case_results\/14636","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/case_results"}],"about":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/types\/case_results"}],"wp:attachment":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/media?parent=14636"}],"wp:term":[{"taxonomy":"case_type","embeddable":true,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/case_type?post=14636"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}