Summary Judgment Granted in Multi-Truck and Bus Accident
Our firm was recently obtained summary judgment for a trucking company whose truck was involved in a multi-vehicle accident that included a total of six trucks and a bus. Lawsuits were commenced by six passengers on the bus, claiming various degrees of back injuries. One of the passengers allegedly suffered a back injury requiring surgical repair.
Seth Greenberg v. Cecil A. Hinds, et al., Middlesex County, New Jersey Superior Court (Middlesex County, May 2010)
Successful Dismissal of Third-Party Claim in Brain Damage Case
We were successful in obtaining a dismissal of a third-party action commenced by physicians and a hospital that were being sued for medical malpractice. Plaintiff was an employee of our client, a large nation-wide trucking company. He was injured in a fork lift accident and came under the care of those medical providers. He later sued the hospital and physicians, alleging that they committed medical malpractice that caused him to suffer a brain injury. The medical providers impleaded the trucking company, alleging that the employer’s own negligence caused the injury in the first place, and that plaintiff suffered a “grave injury,” thus allowing a suit against the employer for contribution, under New York. We moved for dismissal on the ground that plaintiff’s claim against the medical providers arose after the accident and that the cause of the accident had nothing to do with the alleged malpractice. The Court agreed, dismissing the third-party action against our client. After that dismissal by the Court, the plaintiff’s case against the medical providers proceeded to trial, and was settled in Court for $3,000,000.00. There has been no appeal of the dismissal in favor of our client.
Thomas Murphy and Ellen Murphy v. P. Charles Garell, M.D., et al., New York Supreme Court (Westchester County, September 2009)
Summary Judgment for Employer in Severe Brain Injury Case
Our client’s highly respected truck driver was severely and permanently injured during a delivery in Brooklyn, New York of 20-foot long bundles of steel angles. Each bundle weighed over 3,000 pounds. Only two people were present at the time of the accident, the injured driver, and the consignee’s forklift operator. The forklift operator claims to have little memory for details, while the injured driver is not even able to speak. He suffered a blunt-force blow to the front of the head, leaving a deep indentation and causing debilitating brain trauma.
Our driver and his wife brought suit against the consignee for negligence in the handling of the steel and for causing the devastating injuries. In turn, the consignee impleaded the trucker under a New York law permitting a defendant to seek contribution from an employer in the case of a “grave injury.” They alleged that the client had failed to provide proper training to their driver, proper equipment on their truck, and adequate help for the unloading of the product. Through investigation and pre-trial discovery, we were able to establish that the truck and the equipment were fully adequate, the client took all proper precautions, and that the driver was very well trained. In fact, he was one of their lead drivers with significant experience.
We moved for summary judgment at the close of pre-trial discovery. The Supreme Court granted our motion in a well reasoned and detailed decision from which there has been no appeal. Key to our success was the rapid response to the accident. The client’s risk manager and our firm investigated the accident just days after it occurred. The evidence obtained will also assist the valuable employee to obtain proper compensation from the owner and operator of the premises.
Guest v. AWL Industries v. USF Logistics, Inc., Supreme Court of New York, Kings County, December 1, 2008
Court Finds That Household Goods Carrier May Proceed with Lawsuit Against Subcontractor for Losing the Customer’s Goods
Our client, Stevens Van Lines, Inc., contracted with a customer to move his household goods from upstate New York to Wilmington, North Carolina. The parties agreed to a released value of $75,000 in the event of any loss or damage to the goods. Stevens then contracted with Don’s Moving & Storage, Inc., to perform the actual move. Don’s Moving was to pick up the goods at the consignor’s home, warehouse them at defendant’s warehouse in Albany, and subsequently transport them to North Carolina. Don’s Moving picked up the goods and issued its own bill of lading, with a maximum liability of $2,500, to the consignor. The goods were stolen from Don’s Moving’s trailer which was purportedly parked in the warehouse yard. The consignor made a claim to Stevens Van Lines, which paid him the agreed amount of $75,000.
Stevens then sued Don’s Moving & Storage to get back the $75,000. Don’s countered with a motion to dismiss, urging that their bill of lading should govern. In a decision filed March 12, 2009, the Supreme Court, New York County, denied Don’s Moving’s motion, agreeing that our allegations of negligence and breach of the contract between Stevens Van Lines and Don’s stated valid causes of action.
Stevens Van Lines, Inc. v. Don’s Moving & Storage, Inc., Supreme Court of New York, New York County, March 12, 2009
Transfer of Venue in Serious Trucking Accident Case
We were called in to coordinate all investigation and reconstruction in a serious-injury trucking accident that occurred in New Jersey. Witnesses included State Police, rescue crews, medical and hospital personnel, and the truck driver and others, all of whom reside in New Jersey. We developed a theory of indemnity against another company, also located in New Jersey.
When the plaintiff brought suit in federal court in her home state of Connecticut, our client instructed us to seek pro hac vice admission in that court, and to move for a transfer to New Jersey, where the accident occurred and where most of the witnesses reside. We presented evidence and legal arguments that our client would be prejudiced if the case were to stay in Connecticut. We also argued that although plaintiff obtained follow-up medical care in Connecticut, the crucial medical treatment was provided by a New Jersey hospital.
The Connecticut federal court held that although “the plaintiff’s choice of forum is generally given considerable weight,” the balance of factors weigh in favor of the trucking company. These include the convenience of the witnesses and the parties, the location of relevant documents and the operative facts, availability of process, and the New Jersey court’s familiarity with applicable law. The transfer to New Jersey will be a significant benefit to our clients.
Tentoni v. Jeffers, U.S. District Court, District of Connecticut, Case No. 3:07-CV-1234 (Judge Peter C. Dorsey, April 8, 2008)
Federal Court Applies Course of Dealing Argument to Limit Trucker’s Liability in Cargo Loss Claim
We successfully represented A.D. Transport Express, Inc. in a $650,000 cargo loss lawsuit brought in federal court in New Jersey. Travelers Insurance Company sued as subrogee of Summit Transportation, Inc., a sophisticated warehousing, trucking, and logistics business, to recover $650,000 after the theft of our client’s truck and its cargo. Summit and A.D. Transport had a verbal agreement for A.D. Transport to haul imported clothing products from the Summit warehouse in New Jersey to Ann Klein, Inc., in Louisville, Kentucky. Summit prepared the bills of lading, which contained no limitation of liability.
For over three years, A.D. Transport carried three to four shipments per week, a total of 650 shipments, without incident. After each incident, A.D. sent Summit a freight bill accompanied by A.D. Transport’s own bill of lading. That bill, which was issued after each shipment, contained a very clear limitation of liability meeting all requirements of the Carmack Amendment. If that bill of lading had been utilized instead of the shipper’s bill, the limitation would have been fully enforceable. The District Court ruled that this course of dealing was evidence of the terms of the agreement between the parties, including the limitation of liability. Judgment was entered in favor of Travelers for $10,000, the limitation amount in the bill of lading.
Travelers a/s/o Summit Transportation, Inc. v. A.D. Transport Express, Inc., 2007 WL 2571957 (US District Court, District of New Jersey)
Successful Settlement of Claim for Retinal Detachment
Plaintiff David Heller brought suit against our client, a trucking and logistics company, arising out of an intersection accident. He claimed that he sustained various soft tissue injuries, including disc herniations. He also claimed that the accident was the proximate cause of a detached retina for which he had emergency surgery. That surgery occurred ten months after the accident with the onset of symptoms just one week before the surgery. That set of facts did not seem right to us. With our client’s authority, we went full swing into our investigation. We learned that plaintiff had had an accident one year before our accident. We also learned that plaintiff had been severely myopic all his life and had worn glasses or contact lenses since the age of six. Also, plaintiff underwent Lasik surgery just three months before our accident. Our ophthalmological expert advised us that these are all indications of a degenerative condition in the eye that probably led to the detachment of the retina.
Finally, we learned that plaintiff had been in a third automobile accident just about three months before the onset of the retinal detachment. If the detachment was traumatic in origin, it was that third accident that was a likely candidate. Our ophthalmologist would have testified that in all probability the detachment was not caused by any of the traumas, but rather by the degenerative condition of the structures of plaintiff’s eyes. Plaintiff identified two ophthalmological experts, both of whom somehow blamed our accident for the retinal detachment. Neither of the two gave a strong explanation for his opinion. Plaintiff’s demand just prior to trial was still in the high six figures, while we had offered nothing. Just days before trial, plaintiff’s counsel contacted us with a desire to settle. Their demand began to tumble, but we did not budge until it was clear that we could achieve an extremely successful settlement. The intense investigation paid large dividends.
Heller v. Quinones and USF Distribution, Inc. (New York Supreme Court, Bronx County, 2008)
Determined Defense Results in Voluntary Dismissal for Ocean Carrier in Serious Injury Claim Arising from Intermodal Accident
We obtained a voluntary dismissal in a very serious injury case, when we persuaded plaintiff’s attorney that he could not prove a case against our client, a steamship company. Plaintiff, a semi-retired doctor who was devoting his retirement years providing medical care to disadvantaged children in Bronx, New York, was on his way to his home in New Jersey when he was run off the road by a tractor-trailer. His car hit a utility pole. The plaintiff, a very pleasant man, sustained severe injuries that would require multiple surgeries, including emergency hip replacements. He will not work again.
The truck did not stop. However, the plaintiff, as he testified at his deposition, thinks the trailer had the name of our client on it. Therefore, plaintiff brought suit against our client. Our client knew nothing of the accident but tried, unsuccessfully, to help identify the trucker involved. In a court-mandated arbitration, the arbitrator agreed that our client, which did not own the tractor or control the truck driver, could not be liable for plaintiff’s devastating injuries. The doctor and his attorney decided not to appeal the arbitration decision, even though they had no one else to sue and no legal remedy. Judgment of dismissal was entered upon the arbitration award.
Witkowski v. Evergreen, Superior Court of New Jersey, December 2006
Successful Dismissal of Wrongful Death Action on Due Process Grounds and Personal Jurisdiction Grounds
Plaintiff’s Estate brought a wrongful death action against our client in New Jersey for an accident which occurred in the State of Florida. The decedent had resided in New Jersey and the Estate attempted to obtain jurisdiction in the State by arguing that our client utilized the New Jersey highways for part of his ongoing trucking business.
We argued that the only true nexus to the State of New Jersey was the decedent’s residence, and that the trucking company’s use of the New Jersey highways was not sufficient to subject the company to jurisdiction by the New Jersey Courts. Citing constitutional due process grounds, the Court agreed with our position and dismissed plaintiff’s complaint.
Prakash Pradhan, et al. v. The Estate of Michael Pietrasz, et al., November 2006
Successful Defense of Trucker Through Summary Judgment Motion, Appeal
Our trucker client had a mechanical breakdown on the Bronx-Queens Expressway in New York. He pulled his tractor-trailer off to the shoulder safely, put out flares and reflectors, and called for help. The time was about 4:00 a.m. In the dark and while still on the phone with a towing company, the trucker saw a Jeep Liberty speed around a curve at high speed and out of control, zig-zagging from right to left, and back to the right, striking the rear of the trailer. The drunken driver of the Jeep was not seriously hurt. His front-seat passenger, an attractive young woman, suffered severe chest and facial injuries, underwent surgery, and has significant facial scarring.
The passenger sued her drunken friend and our client. After discovery was complete, we moved for summary judgment based on these undisputed facts and favorable New York law. The motion judge denied our motion in a one-line opinion, clearly not wanting to work hard on the decision. We appealed to the Appellate Division, which held a pre-argument conference, telling plaintiff’s counsel that we would likely win on appeal. Soon afterward, we settled at a very reasonable figure. The plaintiff settled with the Jeep’s drunken driver, who was driving a company car at the time, for $1.9 million.
Chin v. Rivera, Supreme Court of New York, 2006
Precedent-Affirming Case - Punitive Damages Averted in Serious Injury Claim Against Trucker
Our trucking company client faced a serious punitive damage claim arising from an accident occurring on a rural, curving road, in rainy weather. Police investigation revealed that the truck’s empty flatbed trailer swerved to its left, completely blocking the path of the oncoming plaintiff’s passenger car. Plaintiff could not avoid striking the trailer. In the resulting crash, plaintiff suffered severe and debilitating fractures and will not be able to return to her former position as a high-level radiology nurse at an area hospital. Investigation also revealed that the driver of the truck had a poor driving record, and was speeding at the time of the accident in an unfamiliar locale. The police also determined that at least half of the trailer’s tires were seriously worn, and that under DOT guidelines, the trailer should have been placed out of service. Shortly before trial, we moved for summary judgment dismissing the punitive damage claim. Senior U.S. District Judge William C. Conner agreed with us that the defendant’s conduct, though severe, did not arise to the level of wantonness and moral culpability required under New York law for the imposition of punitive damages. Even the combination of unsafe tires, the driver’s past driving record, and his unsafe driving in bad weather in unfamiliar surroundings, did not meet New York’s demanding standard.
Marcoux v. Farm Service & Supply, Inc., 283 F.Supp.2d 901 (S.D.N.Y. 2003)
Federal Court Holds No Duty Owed By Truck Driver in Unloading Accident
Our trucking company client was delivering a heavy transmission to an automobile dealership. A dealership employee alleged that while he was unloading the transmission from the truck with the driver’s assistance, the transmission fell, injuring the employee’s leg and foot. He sued both the trucking company and Ford Motor Company, the shipper, for his damages.
We moved successfully for summary judgment. The federal court agreed that there was no evidence of negligence on the part of the driver or the trucking company, and that neither of them had breached any duty owed to the plaintiff.
Anthony v. Con-Way Transportation Services, Inc., U.S. District Court, Eastern District of New York
New York Federal Court Holds Carmack Amendment applicable to Contract Carrier
Our client brokered a specialized load to a commercial trucker, consisting of machinery which formulates cardboard cartons for high-end retailers, such as Tiffany’s of New York. The machinery was picked up in California, to be transported to upstate New York, but the trucker suffered an accident in Virginia which greatly damaged the expensive cargo. The shipper’s subrogated insurer sued both the trucker and our client in New York federal court, asserting state-law claims of negligence, conversion, breach of contract, bailment, and statutory business-fraud claims. The trucker, a contract carrier, moved for partial summary judgment, to dismiss the state-law claims. The federal court granted the motion, holding that since the Interstate Commerce Commission Termination Act, the Carmack Amendment applies to contract carriers and common carriers alike. Carmack provides exclusive remedies, and defenses, in motor carrier and railroad freight loss and damage claims, and pre-empts all state-law claims. The trucker then acceded to our demands for contractual indemnity and settled the claim, and also reimbursed our client for legal fees incurred in defense of the lawsuit.
Travelers Ins. a/s/o Quality Carton v. North American Van Lines, U.S. District Court, Southern District of New York, 2005
Hard Work and Surveillance Limit Serious Injury Claim at Client’s Terminal
Plaintiff claimed that he was injured while loading his employer’s truck at our trucking client’s premises. As a result of the incident, plaintiff sustained a tri-malleolar fracture of the lateral and medial malleolus, and the fibula of the left ankle, requiring surgical intervention. He also claimed that as a result, he has permanent physical limitations, and can work only at sedentary jobs, as his ankle prevents him from engaging in strenuous activities. We were able to prove that plaintiff’s own negligence was a significant factor in causing the incident. With the aid of surveillance, we were also able to disprove and minimize plaintiff’s claims regarding his limitations. The matter was subsequently litigated to conclusion resulting in a net award to plaintiff of only $29,657.53.
Garzon v. Conway Transportation, Supreme Court, New York County, 2004
Successful Defense of Trucker in 3-Vehicle Accident - Forceful Accident Reconstruction, Effective No-Fault Motion
Suit was brought against our trucking client by the drivers of two other vehicles involved in the accident. The lead driver-plaintiff, Quintero, claimed that he was struck in the rear by our client’s tractor-trailer, causing him to lose control, strike the center median, and then collide with the vehicle driven by the second plaintiff, Teodoru. The force of that impact propelled Teodoru’s vehicle into a collision with the client’s tractor-trailer. Quintero claimed to have sustained a torn meniscus requiring surgery, while Teodoru allegedly sustained herniated discs, and an aggravation of a pre-existing knee injury.
Our defense, supported by our superb accident reconstruction expert, was that there had been no contact between our tractor-trailer and the Quintero vehicle. In fact, Quintero had lost control while attempting to pass our truck, and then hit the center median and, ultimately, the Teodoru vehicle. Armed with that defense, we settled the Quintero claim, at trial, for $18,000.
The Teodoru lawsuit was dismissed on a no-fault threshold motion, on the ground that he did not suffer a “serious injury.” Teodoru appealed to the New York Appellate Division, Second Department, arguing that his serious-injury contention was supported by a finding of a significant limitation of motion of the lumbar spine. In a unanimous decision, the Second Department affirmed the dismissal, focusing on an unexplained gap between the time Teodoru stopped treatment and the date that he obtained a medical affidavit to oppose the summary judgment motion.
Quintero and Teodoru v. Crane, Supreme Court of New York, Appellate Division, 2005
New Jersey Appellate Division limits reach of “Loading and Unloading” coverage in Trucker’s insurance policy
Our client’s truck driver suffered a back injury while unloading a truckload of merchandise at a warehouse. He blamed the injury on an electric pallet jack supplied by the warehouse, that lost its battery charge during the operation, leaving the driver to have to maneuver the loaded pallet jack without electrical power. The driver sued the operator of the warehouse and also the maintenance contractor whose job it was to keep the pallet jacks’ batteries charged. The two defendants settled with the driver and then sued Travelers, the trucker’s insurer, for reimbursement, claiming to be owed “loading and unloading” coverage. Since our client’s deductible exceeded the settlement amount, we intervened on their behalf and worked with Travelers’ counsel to defeat the coverage claim. The Appellate Division held that the providing of the pallet jack by the warehouseman, and the maintenance of the unit by the contractor, were not “an integral part” of the unloading process. Thus, the warehouseman and the contractor, and their general liability insurers, were required to bear the expense of the settlement and the defense of the truck driver’s lawsuit. This is a helpful clarification of New Jersey’s wide-reaching and often confusing case law on the issue of loading and unloading coverage.
Twin Oaks Bloc, Inc. v. Travelers Ins. Co., et al., etc., New Jersey Appellate Division, 2003
Defense Finding of No Liability in Serious Truck Accident Case
We successfully litigated a truck accident case, obtaining a decision in favor of client. Plaintiff sustained serious injuries, including tears of the anterior lip of the glenoid labrum and the coracohumeral ligament requiring surgical intervention, as well as disc herniations in the cervical and lumbar spines. She contended that our client’s driver drove a tractor-trailer out of a parking lot, blocking plaintiff’s way and providing plaintiff no chance to stop her vehicle. We proved that plaintiff had ample distance to slow down, but could not do so because she was speeding. We also established that plaintiff then tried to swerve around our client’s tractor-trailer, ultimately coming into contact with the tractor portion of the vehicle.
Ana Santos v. Penske Truck Leasing Co., Supreme Court, Queens County, 2002
Summary Judgment for Our Trucking Clients
Plaintiff allegedly sustained serious injuries in a multi-vehicle collision and subsequently commenced suit against the operators of all vehicles involved, including our client who was operating the lead vehicle. On motion for summary judgment we were able to dismiss all claims against our client arguing that he had been legally stopped in traffic at the time of the collision.
Almonte v. Yutaka Chiba, et al., Supreme Court, Kings County, 2001
Plaintiff’s Expert Barred from Testifying Against Trailer Manufacturer
In a product liability claim against our client, a nationally-known manufacturer of truck trailers, we moved successfully to bar the testimony of plaintiff’s product liability engineering expert. As a result, the lawsuit was dismissed with prejudice. The claim arose out of a work-related injury sustained by a truck driver who had injured his back and undergone multiple spinal surgeries, each leaving him worse off than before. He claimed to be totally disabled as a result of the wrenching of his back while attempting to close a roll-up door on a trailer manufactured by our client and incorporating a door manufactured by the co-defendant. Plaintiff’s engineer theorized that during a morning of deliveries by the plaintiff, the tracks of the door, as well as the rollers themselves, had become deflected by the shifting of negligently-loaded cargo, causing the rollers to lodge and to lock the door in an open position. Then, as the theory went, the cargo shifted back, and so did the steel track. That’s why there was no evidence of any damage afterward! The expert could not explain why this trailer had been used for eight years without a hitch. A seven-hour deposition provided ample support for the successful motion, and the trial judge (a former plaintiffs’ attorney of note) was as incredulous as we were.
Stachow v. Consolidated Freightways, et al., Superior Court of New Jersey, Middlesex County (2001)