Traumatic Brain Injury Demand Letter
VI. EVIDENCE OF DAMAGES - JACQUELINE WILLIAMS, Ph.D.
A. LOSS OF HOUSEHOLD SERVICES
Jacqueline is entitled to recover for the lost value of Brian's household and domestic duties resulting from his personal injuries. In response to Defendant James Anderson's First Set of Interrogatories, Jacqueline stated that before the accident, Brian was the head of the household. However, now she makes all the decisions and provides all of the household services. She makes sure all the records are up-to-date, that they have food to eat and a place to sleep. Jackie found a new apartment for Brian and herself after the accident; she arranged the moving and storage of all of their belongings; and took care of all the necessary paperwork.
Dr. Majors stated in a neuropsychological report dated February 13, 1998, that if Brian ever returns to work at any level of functioning, it will probably be at an entry level minimum-wage type of employment situation. With this in mind, it is unlikely that Brian will be able to perform household services including general household maintenance, repair and paperwork.
Ms. Forrester will seek a minimum amount of $163,190.00 at trial for the value of lost household services resulting from Brian's personal injury. For a discussion of these figures please see Dr. Everett Liebermann's evaluation of economic damages attached to this letter.
B. LOSS OF CONSORTIUM
Jacqueline is entitled to recover for loss of consortium which, as recognized by Texas law, is "the mutual right of the husband and wife to that affection, solace, comfort, companionship and sexual relations necessary to a successful marriage." Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978). Loss of consortium emphasizes the emotional or intangible elements of the marital relationship. Jacqueline has had to endure much more than she bargained for when the two were married on June 4, 1997. The overwhelming weight of evidence at trial will show that the man that Jacqueline wakes up with every morning is not the same person that she married just two and one-half short months prior to this tragic collision. Jacqueline and Brian both need to go through counseling for an extended period of time in order to deal with their marriage affection, emotional support and companionship.
Jacqueline will seek a minimum amount of $5.00 per hour for sixteen waking hours of every day since August 25, 1997 through the remainder of Brian's life expectancy which is 257,136 hours for a total of $1,285,680.00 of loss of consortium arising out of this incident.
VII. JURY VERDICT POTENTIAL
- Brian Forrester
- Accrued Damages
- Physical Pain and Suffering $100,560.00
- Mental Anguish $321,600.00
- Physical Disability $86,400.00
- Disfigurement $50,000.00
- Medical Expenses $400,000.00
- Damage to Wage Earning Capacity $30,121.00
Total Accrued Damages $988,681.00
- Future Damages
- Physical Pain and Suffering $584,320.00
- Mental Anguish $2,539,200.00
- Physical Disability $2,539,200.00
- Disfigurement $50,000.00
- Medical Expenses $1,000,000.00
- Damage to Wage Earning Capacity $1,953,746.00
Total Future Damages $8,666,466.00
TOTAL DAMAGES - Brian Forrester $9,655,147.00
- JACQUELINE Forrester, Ph.D.
- Accrued Damages
- Loss of Household Services $2,472.00
- Loss of Consortium $16,080.00
Total Accrued Damages $18,552.00
- Future Damages
- Loss of Household Services $160,718.00
- Loss of Consortium $1,269,600.00
Total Future Damages $1,430,318.00
TOTAL DAMAGES - Jacqueline Forrester, Ph.D. $1,448,870.00
- TOTAL VERDICT POTENTIAL
TOTAL VERDICT POTENTIAL: $11,104,017.00
VIII. STRUCTURED SETTLEMENT FRAMEWORK
A. STRUCTURE
We propose to negotiate this case on the basis of a structured settlement in two component parts: (1) the initial cash outlay; and (2) the purchase of a 50-year certain and life annuity.
After careful analysis we have determined that the structured portion of this case would require a 30, 40 or 50-year certain and life annuity compounded annually at 3% throughout the term of the annuity.
Any annuities utilized as part of the structured settlement herein must be purchased through an A. M. Best Rated A+ Superior XV company. We fully intend to shop the structure exhaustively in order to achieve the best possible rate of return, the largest affordable minimum guarantee, the greatest security and the best terms available in order to meet every conceivable need which each of these Plaintiffs will experience in the future as a result of this tragic event.
B. INDEPENDENT SPECIALIST
An independent structured settlement specialist, Marie Collins of Personalized Structured Settlements, will be present at the settlement conference, and she is currently shopping the market for the best available structure within these parameters. If you choose to use your own structured settlement specialist, all brokers involved in this claim should be apprised in advance that the annuity will be placed with the company which provides the best benefits for the money for the Plaintiffs.
C. CONSTRUCTIVE RECEIPT
In order to expedite the negotiation of this settlement on a structured basis, it is probably well to advise your structured settlement specialist that we are fully aware of the PLR 8333035 in which the Internal Revenue Service ruled that knowledge of the cost of the package does not constitute constructive receipt, as follows:
PRIVATE LETTER RULINGThe following is a Private Letter Ruling from the I.R.S. on the subject of structured settlements received on May 16, 1983.
LTR 8333035, May 16, 1983
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This is in reply to a letter of April 5, 1983, submitted on your behalf by your authorized representative, requesting a supplemental ruling that disclosure by defendant of the cost or present value of annuity to be purchased to fund its monthly settlement obligation will not cause you to be in constructive receipt of the present value of the amount invested in the annuity.
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You have asked for a clarification of the above ruling because of your concern that your knowledge of the existence or cost of the annuity might cause you to be in constructive receipt of that annuity.
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Based on the language in § 1.451-2(a) of the regulations, the Service has consistently taken the position that knowledge is not determinative in deciding a question of constructive receipt, but that unqualified availability is decisive. Rev. Rul. 68-126, 1968-1 C.B. 194; Rev. Rul. 73-99, 1973-1 C.B. 412; Rev. Rul. 74-37, 1974-1 C.B. 112 and Rev. Rul. 76-3, 1976-1 C.B. 114; all set forth conclusions consistent with this position.
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Based on the information submitted in the original ruling request, we conclude that disclosure by defendant of the existence, cost or present value of the annuity will not cause you to be in constructive receipt of the present value of the amount invested in the annuity.
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Thus, we can save a lot of each other's time by eliminating all of the usual verbiage concerning constructive receipt which generally transpires in a structured settlement negotiation.
D. MINIMUM REQUIREMENTS
If you are agreeable to the following conditions, we will proceed with negotiation of a structured settlement herein:
- Plaintiff reserves the right to approve the life insurance company from which the annuity is purchased. This must be an A+ (Superior) XV A.M. Best rated company.
- We agree to use a §130(c) Qualified Assignment; however, Plaintiffs reserve the right to approve the Assignee. It is our usual position not to approve a mere shell company as an Assignee. However, this may be subject to approval based upon the strength of the annuity company.
- We will consider a guaranteed 30, 40 or 50-year certain and life annuity in this particular case.
- We will alternatively consider annual inflationary increases of 3%, 4% or 5% and compare the increases in cost in order to determine the best overall utilization of funds for the Plaintiffs' benefit.
- The cost to the liability insurance carrier of the Defendant's proposed package must be disclosed to the independent structured settlement specialist utilized by the Plaintiffs herein in order to provide a basis for comparative shopping of the structure so that the maximum benefits may be achieved for the Plaintiff.
If you have any question with respect to any of these prerequisites to negotiation of the structured settlement, please feel free to call on us and we will attempt to reach a mutual understanding so that the insurance carrier's structured settlement specialist and the independent specialist utilized by the Plaintiff will be shopping for the same type of structured settlement. It has been our experience that if we can have a clear understanding in the beginning as to what the Plaintiffs' minimum requirements are with respect to a structure, this will save a considerable amount of wasted effort by your structured settlement specialist shopping for the wrong type of annuity and will also expedite the resolution of this claim.
IX. CONCLUSION
Although this case is not formally set for mediation, we see no necessity of extending the time frame for mediation beyond April 17, 1998. At mediation we will offer additional evidence as to Brian's devastating injuries as well as his future lifecare plan. We will make every reasonable effort to reach a fair and equitable settlement of this case. However, if we are unable to settle the case by the scheduled mediation date, we are perfectly agreeable to taking our chances before a Keethon County jury later this year. We feel that a Keethon County jury would be particularly interested in hearing about the reckless and malicious conduct of a commercial truck driver on our freeways.
We have amicably pursued settlement in an efficient manner, in order to avoid the costly expenses of litigation for all parties involved. However, we are certainly willing to expend the time and money that we feel this case is worth in preparing for trial if we do not reach an amicable settlement at mediation. We are not willing to expend large sums of money and effort on trial preparation and then settle this case on the courthouse steps. Since this is no more in your interest than in ours, we should agree that if we are not able to settle this case at mediation, we should terminate settlement negotiations and ask a jury of fine citizens from Keethon County to resolve our dispute.
If you feel you need any other information which is necessary to help you reach a determination as to the value of Brian Forrester and Jacqueline Forresters’ damages in this case, please call me immediately and we will do whatever we can to cooperate in a timely fashion.
With kindest personal regards, I remain
Yours very truly
Signature
