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ARTICLE ID 13768

$________ Concrete foundation rolls off of truck during delivery, crushing truck driver's leg - Amputation.

New London Superior Court, Connecticut

The 47-year-old male plaintiff was a truck driver who delivered a load of concrete foundations. In the process of unloading the foundations, one of the foundations rolled off of the truck and p 7 3 crushed the plaintiff’s leg. He was flown by Life Star helicopter to Yale New Haven Hospital where his leg was amputated approximately six inches below the knee. The plaintiff alleged that the defendant New England Pipe failed to properly secure the concrete foundations, failed to use appropriate securing materials, failed to train its employees in proper loading procedures and violated government and industry standards. The plaintiff alleged that the defendant Northeast Corridor negligently directed the truck to park on an uneven slope, improperly unloaded the foundations without regard to the center of gravity, failed to train the forklift operator in safe unloading procedures and failed to require that New England Pipe use the proper blocking materials and methods.

The defendant Northeast Corridor is a consortium of three construction firms that contracted with Amtrak to complete the electrification of the rail line from New Haven to Boston.

Northeast Corridor then contracted with New England Pipe to manufacture 12-foot long, 18-inch diameter concrete foundations to support the steel structures on which the electric lines were erected. As part of its contract, New England Pipe agreed to transport the foundations, which weighed between ________ to ________ pounds each, to the railway. New England Pipe subcontracted with Delta Bulk to transport the foundations to various points along the tracks. New England Pipe loaded the foundations onto its own flat bed trailers, placing wooden dunnage to separate the foundations and nailing wooden blocks to the dunnage to secure the foundations in place. Delta Bulk drivers then hooked up their trucks to the trailers and drove to various sites along the tracks. A Northeast Corridor employee would then unload the foundations with a front end loader that was used as a forklift.

The plaintiff claimed that the defendants’ negligence and improper use of materials in securing and unloading the foundations resulted in his injury.

After the plaintiff’s leg was amputated, physicians removed muscle from his abdomen to create a cushion for the stump, leaving a hole in his abdomen. A skin graft was taken from his thigh to cover the stump. After a month of hospitalization, the plaintiff was transferred to a rehabilitation center where he remained for three weeks. After he was able to return home, the plaintiff required daily visiting nurses to change the dressings on his stump and his abdomen. The plaintiff was fitted with a prosthesis within a year of the accident. He was unable to continue driving a truck and was retrained as a dispatcher by his employer. However, after a year of working as a dispatcher, a recurrent infection precluded the plaintiff from wearing his prosthesis and he was unable to continue working. The plaintiff’s orthopedist rated his disability at 70% for the loss of his leg and 12% for chronic skin problems, which translates to a 32% disability of the whole body. The plaintiff’s medical bills were $________. Workers’ Compensation payments totaled $________. The plaintiff estimated his loss of wage earning capacity to be as high as $________.

Northeast Corridor filed a cross-claim and third party cross- complaint for indemnity against New England Pipe. An attempt to include Delta Bulk Transport, the plaintiff’s employer, as a p 7 3 third party defendant was unsuccessful.

Following mediation, the parties agreed to settle for the sum of $________, with New England Pipe to pay $________ through its insurance carrier; and Northeast Corridor to pay $________, $________ through its primary carrier and $________ through its excess carrier. The settlement was apportioned with $________ to the plaintiff and $________ to his wife for loss of consortium.

A post-settlement dispute arose concerning the excess carrier for Northeast Corridor, which claimed that its obligation to pay its share of the settlement of $________ was conditioned on arriving at a written arbitration agreement with New England Pipe. The excess carrier refused to pay within 30 days. The plaintiff filed a motion for default judgment pursuant to state statute and demanded interest. The defendant opposed the motion claiming that the arbitration agreement was a precondition to the settlement.

The defendant also opposed the payment of any interest. The agreement to arbitrate was reached approximately three months after settlement. The excess carrier then delivered a check for $________. After a full evidentiary hearing, the court rejected the defendant’s claim of a condition precedent. The defendant further argued that its check was an accord and satisfaction which was accepted by cashing the check. The plaintiff argued that the letter accompanying the check was ambiguous as to whether the check resolved the original claim or the statutory interest claim. The court found that there was no accord and satisfaction intended or accepted. The plaintiff’s motion for judgment for 83 days of interest in the amount of $________ was granted. The defendant plans to appeal.

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