Trial Magazine

Cornell Smith, 38, was driving on the highway when he stopped with the traffic ahead, which was backed up from an off-ramp exit. While Smith was sitting in the stopped SUV, he was rear-ended by Ross Montgomery Keys, who was driving a cargo van for Tri-Cal Distributors, LLC. On impact, Smith, who was wearing his seat belt, was thrown upward in his seat and struck his head on the roof of his SUV. He felt immediate head and neck pain and was transported to the hospital.

Smith was diagnosed with a concussion and cervical strain. In the months after the incident, he developed chronic headaches, neck and mid-back pain, and numbness and tingling in his fingers. Imaging revealed cervical disk and facet damage, including an indentation of the ventral cord at C5-7. He underwent conservative treatment and medication, but the pain interfered with his ability to perform his job as a police officer.

About two years later, diagnostic testing revealed chronic right C-7 radiculopathy. An epidural injection provided temporary relief, but the pain returned. Ultimately, Smith underwent an anterior cervical diskectomy and fusion at C5-7. His medical expenses totaled about $121,100. He likely will require up to two more procedures when the levels surrounding the fusion break down.

Although Smith experienced some improvement after the surgery, lasting nerve damage left him with chronic radiculitis. His surgeon would not clear him to return to full-duty police work, and he had to resign from the force.

Smith sued Keys, alleging that he failed to keep a proper lookout, pay proper attention to his driving, and timely brake to avoid the collision. The plaintiff also sued Tri-Cal, alleging that it was liable under respondeat superior because Keys was in the course and scope of his employment.

Tri-Cal admitted liability. According to the police report, however, Keys was traveling at about 50 mph when he started braking but was unable to stop in time.

Smith was prepared to show that he had devoted his entire career to law enforcement and did not have meaningful transferable skills, leaving him unable to find comparable work. He claimed that he had planned to work until 66 and that, without mitigation, his lost earnings totaled more than $2 million.

Medical experts agreed that the plaintiff would be able to obtain work in some field, so there was a 30 to 50 percent mitigation of the lost earnings claim. The plaintiff also sought damages for a future life care plan, which was projected to be extensive.
The defendants had insurance with Allstate, including a primary policy with $2 million in coverage and a $5 million umbrella. When Allstate failed to make a meaningful offer at mediation, the plaintiff served a statutory settlement demand for $89,000 for the personal injury case, which was ignored.

Before trial, the plaintiff demanded the remaining $7 million in coverage. The defendants requested a mediation and offered $3.5 million at the session. The plaintiffs rejected it and offered to settle for policy limits of $7 million minus the property damage paid, if the amount was tendered within 48 hours of the failed mediation. Allstate agreed to those terms, and the parties settled for about $6.99 million.

Citation: Smith v. Tri-Cal Distributors, LLC, No. 34-2012-00122426 (Cal. Super. Ct. Sacramento Cnty. Mar. 2, 2016).

Plaintiff counsel: AAJ member Roger A. Dreyer, Jonathan R. Hayes, and AAJ member Daniel G. Schneiderman, all of Sacramento, Calif.