Accident Defense - December 2008

In December 2008, Colby Jones obtained a defense verdict on behalf of a motorist who admittedly rear ended the Plaintiff’s vehicle. At trial in the Superior Court of Gordon County, the Plaintiff’s attorney read medical narratives from a chiropractor and neurosurgeon indicating that the Plaintiff would require future surgery to his neck and that the need for surgery was related to the accident. Although the chiropractor testified that he had never treated the Plaintiff before the accident, medical records obtained from his office showed that he had provided chiropractic care to the Plaintiff before the accident. The Plaintiff presented evidence of past medical expenses of nearly $17,000.00 and future medical expenses of $50,000.00. Although the Plaintiff’s attorney asked the jury to return a verdict for $150,000.00, jurors agreed with Colby that the Plaintiff did not sufficiently prove that the minor accident caused his injuries, and they returned a verdict in favor of the defendant.

AllState Insurance - November 2008

In November 2008, Colby Jones successfully defended Allstate in the State Court of Cobb County. At trial, the Plaintiff’s neurosurgeon used medical illustrations to describe to the jury how her quadriceps tendon was completely lacerated as a result of her left knee coming into contact with the highway during the accident. In a complicated procedure, the surgeon reattached her quadriceps tendon to her kneecap using fiber suture wire. The Plaintiff’s other injuries included losing approximately a third of her kneecap, fracturing her ankle, and developing scars on both knees. Her medical expenses and lost wages exceeded $90,000.00. Negligence was admitted on behalf of the young defendant driver and his parents. However, jurors readily agreed with Colby that the Plaintiff’s starting of a family and going on a ski trip after the accident indicated that she had recovered from her injuries. While the Plaintiff’s attorney asked the jury to award $650,000.00, jurors returned a verdict of only $219,000.00. As the Plaintiff had already received $275,000.00 in other insurance before trial, Allstate as the Plaintiff’s underinsured motorist carrier was not required to pay any additional money to the Plaintiff.

Holcomb v. Norton - January 2008

On January 10, 2008, Lee Welborn obtained a plaintiff’s verdict in Holcomb v. Norton in Cherokee State Court following a three-day jury trial. Plaintiff Vennie Worley Holcomb and her family had owned 10 acres off of Cove Road in Pickens County since 1944. Defendant Dirone Norton purchased 60 acres behind that parcel in July 2003, which contained no access to the road. The Defendant tried several times to convince Plaintiff to trade an acre for an acre and a half so that he could have an easement, but Plaintiff told him that she had picked cotton on that land as a child, and didn’t want to sell or trade now that she was in her 80’s. Incredibly, the Defendant hired a timber company and had them bulldoze a road right through the middle of the Plaintiff’s property. The road was 500 feet long, 18 feet wide, and required 10-12 tons of timber to be pushed down on the Plaintiff’s property. The value of the timber was between $475 (according to the defense experts) and $15,000 (according to the plaintiff’s expert).

In phase one of the trial, the jury awarded the Plaintiff $15,000 for willful trespass, $35,000 for attorneys fees and expenses, and $200,000 for intentional infliction of emotional distress. The jury felt that the Defendant should be required to pay punitive damages, and further indicated that he had acted with a specific intent to cause harm. In phase two of the trial, the jury learned that the Defendant had $30,000 in his bank account. As such, the jury returned a verdict for punitive damages in the amount of $30,000.

Since the plaintiff had been served with an unliquidated damages demand for $50,000 back in October, 2004, the plaintiff was also entitled to pre-judgment interest. The final judgment will be approximately $293,000 including court costs. In April, 2007, Joe Parker tried a 4 day case in Paulding County, which resulted in a defense verdict. Parker's client, driving a SUV, rear ended the Plaintiff, who was in a Crown Victoria. The Plaintiff was taken from the scene by ambulance to the ER where he complained of knee pain, neck pain, and low back pain. 9 days later an MRI of the knee showed a torn meniscus, and less than 2 months later the Plaintiff underwent knee surgery to repair the knee. Thereafter, the Plaintiff had PT for the knee. As his job required the use of an automobile and he allegedly was unable to drive due to the knee for 5 months, the Plaintiff claimed $31,000 in lost wages. The Plaintiff also received PT for his back, and he was subsequently diagnosed with a herniated disc by MRI, although surgery was not recommeded. His medical expenses totalled $28,000. Parker was able to show that the Plaintiff's knee complaints were not consistent and that his herniated disc was, in all likehood, of longstanding duration. The jury found for the defense, based on the Defendant's testimony, which was disputed by the Plaintiff, that the Plaintiff had begun to accelerate after the traffic light he was stopped at turned green, and then, for no apparent reason, stopped. Based on the jury's comments after the verdict, the jury did not accept the torn meniscus or the herniated disc as being related to the accident.

Medical Defense Russell Davis - 2007

Russell Davis enjoyed a successful 2007 in continuing his defense of physicians and their practices. He successfully tried three cases involving various different allegations and medical specialties. One such case was tried on behalf of a hospital who was accused of providing improper DVT prophylaxis for an automobile accident victim. Although the patient did ultimately die in the hospital from a pulmonary embolus, the jury readily accepted the defense explanation that the hospital acted appropriately with the knowledge he had at the time in making the recommendations for the patient’s care.

Medical Defense - 2007

A defense verdict was obtained on behalf of a neonatologist who was the director of his hospital’s NICU which had received a neonate transferred from the birthing hospital for specialized treatment at the pediatric hospital. Due to errors in communication, the baby never had her State mandated neonatal screening tests performed, and she ultimately suffered brain damage due to delayed diagnosis of an inherited disorder that would have been detected by the screening.

One Car Rollover Auto Accident - 2007

Russell Davis also obtained a favorable outcome in the trial of an automobile accident case. It involved a one car rollover accident where the driver was killed, but the passenger plaintiff survived. The plaintiff suffered a spinal cord injury and was a paraplegic and very sympathetic, and the plaintiff’s attorney presented evidence of a life care plan valued at in excess of $5M. Nevertheless, the jurors indicated after the trial that they readily agreed with Mr. Davis’ argument that there simply had not been enough evidence in the case to prove the deceased driver had done anything wrong to cause the accident.

Firm Overview for 2007

The Firm has enjoyed a great deal of success in defending cases for its various insurance clients with a great track record at trial. However, the Firm has also served its clients in 2007 by presenting seminars to its insurance clients on a myriad of issues and topics involving recent developments in the law. Topics ranged from interpretation of insurance policies and their application to multiple various factual scenarios to avoiding bad faith exposure in claim handling. Downey & Cleveland is proud to be able to offer these additional services to their clients in order to foster an ongoing partnership in the defense of claims and the representation of the insurers and their insureds.

Council on Ethical Billing

Downey & Cleveland is pleased to have been nominated for membership in the Council on Ethical Billing, which is a national organization that is an alliance of select attorneys, law firms, insurance companies, risk managers and general counsel who have joined together to promote high levels of performance and ethics in defense litigation. Partner Russell Davis is the lead contact with the Council on Ethical Billing for the Firm.

Portfolio Center v. Owners Insurance Company - October 2007

Lee Welborn obtained a defense verdict in Portfolio Center v. Owners Insurance Company on October 12, 2007 in Fulton County Superior Court Judge Jackson Bedford’s courtroom following a four-day jury trial. Portfolio Center sued Owners Insurance Company for their alleged bad faith refusal to pay $135,000 for damaged computers and electronic equipment. The Plaintiff’s expert, Robert Ballard, testified that all of the equipment had been damaged by fire, which was covered by the policy.

The defense served the plaintiff with a notice to produce at trial, requiring the plaintiff to bring all of the alleged fire-damaged equipment to court for the jury and the experts to inspect. This was accomplished by a moving company. Defendant’s expert, David Leone of SEA, Ltd., demonstrated to the jury that there was no visible fire damage either on the outside or inside of any of the equipment, even after they were dismantled. The damage had occurred when a tree had fallen against a powerline leading to the building, causing a transient overvoltage of electricity. The policy in question excluded loss or damage caused by artificially generated electrical current, including electrical arcing. The jury determined that the loss was excluded under Owners policy, and that Owners properly refused to pay the claim.

Pedestrian Struck - Spring 2007

A defense verdict was returned by a jury in the State Court of Gwinnett County in the spring of 2007 in a case tried by Sean Hynes, who represented the Defendant. The Defendant struck the Plaintiff, who was a pedestrian, with his car while the Defendant was pulling out of a no parking zone at a loading dock. The Plaintiff claimed the Defendant caused him to incur more than $14,000 in medical expenses and to undergo surgery on his right knee. The Defendant denied the Plaintiff was entitled to recover and the jury agreed.

Car Crash - Spring 2007

A jury in the State Court of Cobb County returned a verdict in favor of the Defendant in the spring of 2007. The lawsuit was filed as a result of the Defendant striking the Plaintiff’s car from behind on I-575. The Defendant, who was represented by Sean Hynes, admitted he caused the accident, but he denied that the he was the cause of the Plaintiff’s claimed injuries or her approximately $33,000 in medical expenses. The jury found for the Defendant

Husband and Wife Suit - March 2007

A Husband and Wife filed suit in the State Court of Cobb County claiming the Defendant injured them when he rear-ended their car. The Defendant was issued a citation and paid the fine. The case was tried in March of 2007 and Sean Hynes represented the Defendant. The jury returned a verdict for less than $1,200 for the Plaintiff wife and awarded the Plaintiff husband no damages.