Traumatic Brain Injury Demand Letter
IV. LIABILITY
A. ORDINARY NEGLIGENCE
1. Negligence of James Anderson
James Anderson was negligent including but not limited to the following acts:
- Excessive speed under the circumstances;
- Failure to maintain a proper lookout;
- Failure to maintain control of his vehicle;
- Failure to turn his vehicle to the right or the left to avoid the accident;
- Failure to sound any warning to his victims; and
- Failure to timely apply brakes.
2. Liability of Herrington Wholesale Products, Inc.
Herrington Wholesale Products is liable under the theory of respondeat superior for the acts of its agent, James Anderson, while in course and scope of his employment.
Generally, to impose liability upon an employer for the tort of its employee under the doctrine of respondeat superior, the act of the employee must fall within the scope of the general authority of the employee in furtherance of the employer's business and for the accomplishment of the object for which the employee was hired. Andrews v. Houston Lighting and Power, 820 S.W.2d 411, 413 (Tex. App. -- Houston [14th Dist.] 1991 writ denied). An employee's tortious conduct will be found to be within the scope of employment when the tortious conduct is of the same general nature as that authorized or incidental to the conduct authorized. Smith v. M. System Food Stores, 297 S.W.2d 112, 114 (Tex. 1957). An employer will be held liable for the act of its employee, even if the act is contrary to express orders, if it is done within the general authority of the employee. J. V. Harrison Truck Lines v. Larson, 663 S.W.2d 37, 40 (Tex. App. -- Houston [14th Dist.] 1983, writ ref'd n.r.e.)
Here, it is undisputed that James Anderson was acting in furtherance of Herrington Wholesale Products's business at the time of the collision. Therefore, we will not belabor this point in the demand letter.
B. MALICE OF James Anderson
1. Liability of James Anderson
Brian Forrester will produce clear and convincing evidence that the devastating injuries which he suffers herein are the result of malicious conduct on the part of James Anderson. In this regard the jury will be asked to apply the following definition to the facts:
Malice means:
...
(B) an act or omission:
(i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. §41.001 Texas Civil Practice and Remedies Code (1996)
While the Organized Tortfeasors of America have been successful in lobbying the myopic Texas Legislature into passing a punitive damages statute which is designed to render it impossible for any plaintiff to prevail, the egregious conduct of James Anderson which resulted in the destruction of the health and happiness of Brian Forrester will be the exception which rises to the level of malice.
The jury will be confronted with the following facts which support malice on the part of James Anderson:
A few minutes before 4:45 p.m. on Monday, August 25, 1997, James Anderson was driving Herrington Wholesale Product's 1994 white Freightliner tractor pulling a 1990 white Lufkin semi-trailer east on Interstate 99 approaching the 8000 block.
At this point, Defendant Anderson heard via radio dispatch that the Texas Department of Public Safety was checking drivers' log books in Willow County, a few miles ahead. Defendant Anderson was aware that he was in violation of ICC regulations and Department of Transportation regulations for failure to keep his log book up-to-date. Not wanting to get a ticket for his first of many violations that afternoon, Defendant Anderson decided to fill out the log book before reaching the checkpoint.
Plaintiff will submit the argument to the court and jury that when viewed objectively from Mr. Anderson's viewpoint at 4:45 p.m. on Monday, August 25, 1997, Mr. Anderson had at least two choices. First, he could act as a reasonably prudent truck driver would act under the same or similar circumstances and exit the very busy interstate highway, bring his 80,000 lb. vehicle to a stop in a location which would be safe both to Mr. Anderson and other travelers, and update his log book in a reasonable and prudent manner. Secondly, Mr. Anderson could choose to wilfully ignore the extreme risk of harm and proceed with conscious indifference to the rights and safety of other travelers on Interstate 99 eastbound, i.e., act maliciously.
Defendant, James Anderson, opted for the second alternative which Plaintiffs will argue obviously involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. Amazingly, Mr. Anderson decided that while driving in crowded five o'clock traffic, on an interstate highway, approaching a section of the highway under construction where traffic narrowed to one lane, the best course of conduct was to convert Herrington Wholesale Products's 80,000 lb. eighteen-wheeler tractor-trailer into a battering ram by setting the cruise control on 63 miles per hour, approaching stopped traffic, and looking away from the road while filling out his log book.
To greatly exacerbate the situation and to demonstrate the level of malice on the part of James Anderson, Plaintiff will show through the testimony of Will Jamison, an eighteen-wheeler driver who was following James Anderson, that this erratic driving behavior which caused Anderson to repeatedly drive out of the right lane onto the shoulder and back across into the left lane, had been occurring for a distance of five miles, over a period of five minutes. Jamison will testify that Anderson was driving so erratically that Jamison slowed his vehicle in order to put distance between his truck and Anderson's truck. Jamison also states that Anderson was so far off of the road at the time he started over the Highstreet underpass that he nearly hit the bridge abutment. Such conduct clearly involves an extreme degree of risk considering the probability and magnitude of the potential harm to others of which even James Anderson surely must have had actual awareness of the risk involved. Anderson obviously proceeded with conscious indifference to the rights, safety, and welfare of others with the resulting deaths and devastating injuries. This is a case of malice. This is a case for punitive damages.
A Texas jury will certainly find that even James Anderson, despite his obvious mental challenges involved in driving an eighteen-wheeler on an interstate freeway, had actual subjective awareness that allowing an eighteen-wheeler to drive itself involved extreme risk of harm to innocent persons. However, Anderson proceeded with conscious indifference to the rights, safety, and welfare of Brian Forrester and the two unfortunate young ladies who were victimized by his gross ignorance. This is a case of malice. This is a case for punitive damages.
2. Liability of Scarsdale Mutual Insurance Company
While it is true that the insurance policy of Scarsdale Mutual does not cover James Anderson for exemplary damages arising out of his malicious and reckless conduct, it is clear that your insured, James Anderson is exposed to damages far in excess of the policy limits of this case when consideration is given to the nature and extent of the damages suffered by the Forresters and the extensive legal damages suffered by the families of the two deceased young ladies, Margaret Grimes and Lisa Buchanan. When the total damages caused by James Anderson are combined with the exemplary damages payable to each of his victims, it is obvious that the exposure to your insured, James Anderson, exceeds $21,000,000.00, which we understand to be the amount of insurance coverage in this case.
I am authorized by all counsel for the various plaintiffs herein to state that Scarsdale Mutual is hereby afforded the opportunity to settle all of the cases arising out of this tragedy for an amount within policy limits. In the event such settlement is not made by Scarsdale Mutual and James Anderson suffers judgments against him in excess of policy limits, Scarsdale Mutual will be liable to James Anderson for the excess liability. Therefore, it is respectfully submitted that it is in the best interest of Scarsdale Mutual as well as their insured, James Anderson, to settle this case within policy limits in order to avoid a substantial excess liability judgment against your insured.
This is a classic case for application of the Stowers Doctrine in the event the carrier fails or refuses to accept this opportunity to settle all cases within policy limits at mediation.
The five requisites of the Stowers case will clearly be present in the event of such refusal:
- A clear case of liability on the part of the insured;
- Complete control of the case by the carrier;
- A demand within the policy limits;
- A negligent refusal by the insurance carrier to settle within the policy limits; and,
- A verdict in excess of policy limits.
Stowers v. American Indemnity Insurance, 15 S.W.2d 544 (Tex. 1929)
In applying the requisites for a Stowers recovery to the case at bar, we see the potential exposure of Scarsdale Mutual Insurance Company to an amount in excess of their policy limits: 1) this is clearly a case of liability on their insured; 2) Scarsdale Mutual is in complete control of the case; 3) a demand is hereby made on behalf of all plaintiffs for a settlement of the case within policy limits; 4) the negligent refusal to settle within policy limits is up to you; and 5) a verdict against your insured in excess of policy limits, thereby exposing him to personal liability which can be avoided by a settlement at this time will surely follow if this case is litigated.
Therefore, it is clear that all of the elements for Stowers either are or will be present in the event of a negligent refusal by Scarsdale Mutual Insurance Company to settle this case timely and within policy limits.
I am forwarding an extra copy of this demand letter to counsel for James Anderson so that your insured may be fully aware of his exposure to an amount of damages in excess of his policy limits which can be avoided by your settlement of the case within policy limits.
Additionally, so there is absolutely no doubt in the mind of the leadership of Herrington Wholesale Products, please advise them of our unequivocal position that in the event of a verdict in excess of policy limits, we will definitely pursue the assets of Herrington Wholesale Products until such time as the Forresters' judgment against them is fully satisfied.
Considering that it has been seven months since the accident, you have had sufficient time to investigate thoroughly and educate yourself fully with respect to the Plaintiffs' claim herein. Considering further that we are providing you with full documentation of all of our damages to support our demand, we see no necessity of extending the time frame for mediation beyond the next thirty (30) days.
If anything further is needed for your evaluation of this claim, please call me immediately, and if it is available to us, I will see to it that it is provided to you immediately. In the meantime, our settlement demand will be withdrawn at the conclusion of mediation and we will refuse to negotiate any further settlement past that date.
Our settlement demand is based on a jury verdict potential which we feel is attainable, considering the devastating nature of the injuries, the youth of the injured parties and the extensive future lifetime of mental anguish, physical disability, disfigurement, damage to wage earning capacity, medical and rehabilitative needs.
