Paralysis / Spinal Cord - Demand Letter
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BRAD DAY, ET AL.
V.
HARRY S. BRITEN RESIDENTIAL SERVICES CORP.
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SETTLEMENT DEMAND LETTER
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This Settlement Demand is submitted to Harry S. Briten Residential Services Corp. in a good faith effort by Plaintiffs to amicably resolve this case prior to trial. It is agreed by the Defendants in accepting this demand letter that it will be utilized solely for the settlement negotiation process for which it is submitted.
Respectfully submitted,
LAW OFFICES OF HOWARD L. NATIONS
HOWARD L. NATIONS
4515 Yoakum Boulevard
Houston, Texas 77006
(713) 807-8400
ATTORNEY FOR PLAINTIFFS
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November 25, 1997
Mr. Tom Spangle
Chorn, Winters, Beech, Danlam & White
Attorneys at Law
1600 Central Life Building
San Angelo, Texas 88888
Re: Plaintiff: Brad Day
Defendant: Harry S. Briten Residential Services Corp.
Cause No.: 97-3333-D
Court: 777th Judicial District
County: Harrison
Dear Mr. Spangle:
We have reviewed all of the information presently available in the captioned cause in order to evaluate this case for settlement purposes prior to our meeting in Houston on December 7, 1997. Based upon our review of the liability and damages aspects of the case, we have arrived at certain parameters which we would consider in a structured settlement proposal. The purpose of this letter is to familiarize you with our position regarding your client's liability, give you the benefit of our summary of the several hundred pages of medical records to date, provide a preview of our medical evidence and to propose a framework from which we may work towards negotiating a structured settlement.
I. FACTUAL SYNOPSIS
This case arises out of a motorcycle-auto accident which occurred in Flat Rock, Texas, on January 12, 1996, involving Plaintiff, Brad Day, and Sara Glass, a real estate salesperson who was working in course and scope of her employment with Harry S. Briten Residential Services Corporation showing their listed properties to prospective customers at the time of the accident. Plaintiff, Brad Day, was proceeding southbound on Broadway, while Sara Glass was proceeding northbound approaching the intersection of Greyburne. The accident occurred because Sara Glass, who was preoccupied with showing Harry S. Briten real estate to her customers, failed to maintain a proper lookout and made an unsafe turn directly into Mr. Day's path. Brad, in a desperate effort to avoid the inevitable impact, laid the motorcycle down and skidded approximately ten feet before striking the right rear side of Ms. Glass' automobile. Brad was then thrown across the pavement, sliding on his back for a distance of twelve to fifteen feet until he violently collided head first with the wheel of a pizza truck which was being driven by James Sheridan. The kinetic force of the impact between Brad's head and the truck was so great as to lodge his head between the tire and the wheel wall of the truck. The violence of the impacts upon Brad's body with the car, the street and the truck caused him to sustain a devastating spinal column injury, a permanent spinal cord injury, a closed head injury and fracture of the left foot, resulting in permanent paraplegia and reduction in mental capacity.
II. PARTIES AND FORUM
A. PLAINTIFFS
Brad Day is a twenty year old white male paralytic who will make a highly favorable impression on the jury and who will be an excellent witness in his own behalf. Prior to this accident he was a highly intelligent, strong, healthy, happy young man with a bright personal and economic future. Brad's health, happiness and above-average mental capacity abruptly ended on January 12, 1996, when Sara Glass, caught up in the zeal of her employment with Harry S. Briten, negligently caused Brad to suffer the devastating injuries of paraplegia and a closed head injury. These injuries have severely limited Brad's future physical activities, his social opportunities, his enjoyment of life, his ability to earn a living and reduced his mental capacity, including his reasoning capabilities and short term and long term memory. Thus, Sara Glass' negligence exchanged Brad's future lifetime of health and happiness for a lifetime of physical pain and suffering and mental anguish. Brad will make an excellent witness in projecting this exchange to the jury.
In addition to the obvious devastating effect on Brad's physical capacity, the jury will be particularly impressed with the evidence concerning Mr. Day's high degree of intelligence and mental capacity prior to the accident and the obvious permanent reduction in mental function which he has suffered as a result of the closed head injury.
B. DEFENDANT
Defendant, Harry S. Briten, is a highly respected residential real estate company which was the employer of Sara Glass at the time of the occurrence in question. The evidence is clear that Ms. Glass, whose carrier has settled for policy limits due to the obvious negligence on her part, was clearly operating within the course and scope of her employment with Harry S. Briten at the time of the accident. There will be no particular advantage to the Plaintiff from suing a corporation since Harry S. Briten is a highly reputable company whom the jury will like.
C. FORUM
This suit is in the District Court in Harrison County, Texas, which has a reputation for being moderate on liability issues but liberal in the award of damages. Since this is a clear case of liability on the part of your insured, we anticipate that a jury will be very favorably impressed with the damages evidence herein and give a very liberal award to Mr. Day.
III. LIABILITY
We regard this a clear case of liability on the part of Sara Glass as did her insurance carrier, State Insurance, who has already paid policy limits in this case. There are two liability aspects in this case: 1) the negligence of Sara Glass as the proximate cause of Brad's injuries; and 2) Sara Glass' status as an employee of Harry S. Briten Company at the time of the accident. Thus, a discussion of each of these liability aspects is in order:
A. NEGLIGENCE OF SARA GLASS
On the morning of the accident, Sara Glass picked up two of Harry S. Briten's potential home buyers and was driving them around showing Harry S. Briten listed houses for approximately three hours. At 12:05 p.m. Ms. Glass was headed northbound on Broadway, in Flat Rock, approaching the intersection with Greyburne, when she made a left-turn directly in front of the motorcycle driven by Brad Day. A review of the evidence clearly indicates that Ms. Glass was negligent in failing to maintain a proper lookout and in making an unsafe left turn, and that such negligence was the proximate cause of the accident and the resulting injuries to Brad Day. Officer Raymond Darcy, after investigating the accident at the scene, issued a ticket to Ms. Glass for an unsafe left turn and listed her inattention as a fact contributing to the accident.
Ms. Glass admitted in her deposition that she was excited about her prospects of making a sale and was talking to her clients about available real estate and that she did not see the motorcycle prior to the accident.
State Insurance, Ms. Glass' insurance carrier, hired Dr. Mark Lacy of General Dynamics, Inc., an accident reconstruction specialist, for the purpose of making an investigation and doing an accident reconstruction which would exonerate Ms. Glass from any liability in the case and to establish negligence on Brad Day. At the conclusion of Dr. James' investigation, he advised State Insurance that he could neither exonerate Ms. Glass nor implicate Brad since his investigation led him to the following conclusions:
- When Ms. Glass began making the left-hand turn the motorcycle would have been in her full view;
- Neither the motorcycle nor the Oldsmobile was exceeding the 30 MPH speed limit prior to the impact;
- Ms. Glass did not give proper lookout at the time her turn was being made and was primarily responsible for this accident;
- I do not believe that Mr. Day was negligent; and
- In effect, Ms. Glass simply turned in front of Mr. Day without giving proper lookout.
There is no evidence of any nature of any negligence on the part of Brad Day and the sole proximate cause of the accident was the negligence of Sara Glass.
