My client is a truck driver who hauls logs as an independent contractor for a logging company. In November of 2010 the client was hooking/hooked up to a log trailer at a lumber yard. He was out of his truck tending to his trailer. The client was possibly bent over. A log claw/loader was nearby. The claw/loader manipulated logs on the trailer causing two logs outside the stanchions to scissor his head. The client received devastating injuries described below.
The client was conscious and speaking, though disoriented, when medical transport and firemen arrived. He told the EMT that he had two beers earlier that morning. The client was life flighted to Grady Hospital. The doctors at Grady saved his life, but he almost died from the staph infection he obtained there. He underwent an emergency bifrontal craniotomy, cranial reconstruction with cranialization of bi frontal sinuses, Dura repair, and restoration of the orbital rim. He had a complex comminuted skull fracture with traumatic brain injury. He has lost “boundaries” in his behavior and speech. He will behave inappropriately in public but does not realize his behavior. He has lost his peripheral vision due to optic nerve injury from his facial fractures. He has lost sense of taste and smell. He continued to have a cerebrospinal fluid leak out his nose and they had to do a skin graft in his sinuses to seal the leak. Recently he has learned that his sphenoid process will need reconstruction. The medical bills totaled $584,000.00. The medical bills were paid by State Benefit Insurance. The client was a “man’s man”. He was a hard working independent truck driver. He will never be able to work again.
The client’s wife has been through the agonizing process of her husband’s injury and treatment while attempting to hold her job.
The defendant pulpwood company had its insurer meet with the client and they offered him a structure with a current value of $750,000.00 in mid-2011. The insurer mentioned contributory negligence. The insurer had told the client there was $1M in insurance. The insurer did voluntarily advance $60,000 to get the client’s home out of foreclosure and help with expenses. We believe the insurer was attempting to drag the client out to the statute.
We were able to identify excess insurance after sending the pulpwood company a OCGA 33-3-8 letter asking for policy information. The insurer again let us know that they claimed contributory negligence.
We cited to them OSHA’s Logging Standard (29 CFR 1910.266) which were designed to eliminate many of the fatal accidents and greatly reduce the number of lost work day injuries occurring in this industry. The first duty of any person handling logs is to assure the area is clear. 1910.266(f)(2)(v) Before starting or moving any machine, the operator shall determine that no employee is in the path of the machine. 1910.266(f)(2)(vii) The machine shall be operated at such a distance from employees and other machines such that operation will not create a hazard for an employee. 1910.266(h)(5)(i) No log shall be moved until each employee is in the clear. 1910.266(h)(6)(ii) Only the loading or unloading machine operator and other personnel the employer demonstrates are essential shall be in the loading or unloading work area during this operation. The defendant’s own web site referred to the www.loggingsafety.com web site. That web site cites the following standard: “Each employee shall be held responsible for performing all work in a safe manner so that injuries to that person and to others will be avoided.” “Do not attempt to load a truck or trailer when anyone is near the transport unit.” These standards were clearly violated in this case.
The client wanted only to claim insurance limits. So we sent a Holt demand for the $2M policy limits in exchange for a limited release. The insurers agreed to pay the $2M rather than take the risk of trial. We had actually hoped they would blow the demand period. We structured the settlement to guarantee the client an enhanced payout over time and to protect him from his own lack of boundaries.
The insurer pushed us hard to obtain a Medicare set aside. We retained the Garretson firm to review the case and give us an opinion letter regarding the necessity of a MSA. The insurers eventually agreed not to require a MSA.
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