Negligence: Motor Vehicle/Rented Car - 1.62 Million Dollar Settlement

Type of Action: Personal Injury/Motor Vehicle/Rented Car

Type of injuries: Paralysis (T-7)

Court and Case #: Suffolk Superior Court,

C.A. No. 87-3324

Judge or Jury: Jury

Name of Judge: Barbara Rouse

Special Damages: Medicals, approximately $189,000.

Damages awarded or settled: Settled.

Amount: $1.62 million plus partial waiver of medical lien of nearly $189,000.

Attorney for plaintiff- Kenneth I. Kolpan, Law Office of Kenneth I. Kolpan, Boston.

Attorney for Defendant: Withheld

Name of Most Helpful Expert: Jack Dahlberg (life care planner)

Name of Case: Withheld

Insurance Carrier-. Fireman's Fund

Other Useful Information:

On May 9, 1987, the 16-year-old plaintiff was riding her bicycle along Revere Beach Boulevard on a clear sunny morning when she was struck by a rental car driven by defendant, who had fallen asleep at the wheel. Plaintiff, who was destined to be valedictorian in her high school class, was thrown onto defendant's windshield, had her scalp partially decapitated, and then was catapulted to the pavement where she sustained a severing of her Spinal cord at T-7, traumatic brain injuries, fractured skull and clavicle, and other internal injuries.

Defendant driver pleaded guilty to driving to endanger, driving under the influence and driving under the influence causing serious bodily harm. Defendant was sentenced to 4-6 years imprisonment. Defendant driver had only $20,000 liability insurance.

Suit was also brought under G.L. c. 231, S 85A, against the rental car company which owned the vehicle, even though the rental company had leased the car to a local dealership more than a year before the accident and had not had possession of the vehicle for that year. The dealership had rented the car to the defendant driver about one month before the accident. The rental car company asserted that it lacked control over the defendant driver since it never met him, nor did it have possession of its car in the year immediately preceding the accident.

Plaintiff countered the rental car company's affirmative defense of lack of control by establishing through discovery that the rental company required the car dealership to use all its rental forms in renting the car to the driver, select drivers according to the driver selection checklist and promote the name of the rental company, and that it refused to change any of the forms as requested by the car dealership. Plaintiff demonstrated that the rental company gave its permission for the rental of the car if the above protocol was followed. Further, the car dealership had previously rented a car to the defendant driver without incident.

At trial, defense counsel for drunk driver asserted it was his client's fault for which he had served prison time.

Plaintiffs counsel submitted a 26-minute videotape as a trial brief of proffered testimony of plaintiff, her family, friends, plaintiff's daily activities, documentary evidence of plaintiffs accomplishments both before and after the accident. Portions of the videotape were to be offered at trial demonstrating her treatment and rehabilitation. Experts also would have testified to present and future value of plaintiffs medical care and foregone earning capacity.

Case was settled on first day of trial after opening statements.

Published with permission of Massachusetts Lawyers Weekly.