$10 million Judgment for Brain Injury After Amica Mutual Insurance Refused to Settle for $50,000 Policy Limits

On August 22, 2008 I finalized a judgment for $10.1 million after a 15-day jury trial for a 12 year-old boy who suffered severe personal injuries when he darted into the street and was struck by a car. The defendant was speeding at 33 mph in a school zone, yet her carrier refused to pay its $50,000 policy to settle all claims. Jeff Rickard and I tried the case, Jason Baker and our staff providing outstanding support.On November 14, 2007 at 4:20 pm, Rasheed Hilson left a girls’ basketball game at Morrill Middle School located at Morrill and Cropley in northeast San Jose.

Outside of the gym, Rasheed Hilson briefly chatted with four friends before seeing his bus and in typical 12 year-old fashion, ran to catch it without thinking of anything else. He ran down the school driveway directly into Cropley, without looking, into the path of a BMW. Kim Phuoc Tran, the driver, admitted she was driving at 33 mph.

The next day Officer Jincy Pace, SJPD, a lead homicide traffic investigator, was assigned this investigation because it was anticipated that Rasheed would die. Ms. Pace only interviewed the defendant driver who reported she was driving at 33 mph, she saw nothing, never slowed, thought a rock had shattered her windshield, continued driving to Morrill, about 130 yards away before turning and stopping. My reconstruction showed emphatically the driver could not have avoided seeing her BMW hit Rasheed.

Ms. Pace called the school and asked an unidentified secretary what time classes were over. Ms. Pace was told classes ended at 2:30 pm. Five of seven eyewitnesses, listed in the report by other officers, were 12 year-olds and as many as 30 children were reported outside the gym by one mother who came to school to pick up her daughter and saw the crash. Ms. Pace never followed up to find out why so many children were present if school was over at 2:30 pm.

Based on a superficial investigation, Ms. Pace decided the speed limit in effect at the time was 35 mph on the premise that the 25 mph limit only applies when children are coming and going to school and that school was over at 2:30 pm. She blamed the 12 year-old for his injuries and exonerated the driver.

At trial the school principal Ron Fairchild testified that the school was operating and open for business until 6 pm that day. After classes were over, a school-wide homework and study hour operated from 2:30 to 3:30 pm, and inter-school athletic events commonly ran from 3:30 to 6 pm.

On November 14th he was in the gym with several hundred children attending a girls’ basketball game. Five of Rasheed’s classmates who were eyewitnesses also reported there was a school basketball game that afternoon.

Ms. Pace never spoke to Fairchild, any of the five eyewitness children or the mother who saw 30 children present outside the school.

Ms. Pace never considered that the 25 mph speed limit is always in effect when school grounds are not separated from the road by a “fence, gate, or other physical barrier while the grounds are in use by children.”

In this case, an open driveway and sidewalk from the school to the street, well identified in more than 100 photographs by the SJPD, requires a 25 mph speed limit when the grounds are used by children, even if the school is closed. Ms. Pace ignored this mandate of the Vehicle Code.

The SJPD erroneously concluded that driving at 33 mph hour in a school zone was legal when children were present, the school was open and the school grounds were not separated from the road by a barrier.

It is a disgrace for traffic officers not to be trained that when there is no physical barrier and direct access from a school to the street, the speed limit is 25 mph. Officers making major decisions on traffic safety concerning children must know the law. There is no excuse for not knowing the law and calling what SJPD did an “investigation.”

On November 18, 2007, Tran’s carrier, Amica Mutual Insurance, received the police report detailing Rasheed’s personal injuries according to doctors at VMC: ”Hilson current status was critical and his fait [sic] was unknown due to head trauma . . . Head tramma [sic], a pelvic injury, facial lacerations and a bloken [sic] leg . . . bleeding in the Braind [sic] area, shaking as a result of the Trama [sic], brusing [sic] to the lungs, a pelvic fracture, a broken leg, and unknown if nerosergery [sic] would be needed to the head/brain area . . . Moved to the Prdiatric [sic] Intesive [sic] Care Unit where he would be stabilized . . . Dr. Adams believes the victim should survive the incident but it unclear at this point the extent of disabilities/injuries due to the head trama [sic] sustained by the victim.”

This is the quality of reporting by the SJPD in a severe personal injury case involving a child hit by a speeding driver in a school zone. What an embarrassment for a major U.S. city. Never be scared off by an adverse SJPD report. It may be far from the truth.

On December 6, 2007 a policy limits demand was sent to Amica with a 30-day deadline, reporting Rasheed’s loss of consciousness, multiple fractures and lifetime personal injuries from which this child “will never fully recover.” The demand specifically noted that numerous children were present when Rasheed left a school basketball game that afternoon and that the speed limit was 25 mph in a school zone. That turned out to be the evidence at trial.

On December 12, 2007 Amica’s claims department acknowledged receipt of the demand and requested a release for medical records, which was provided immediately.

At that time, Amica knew that its primary obligation was to protect its insured under her $50,000 policy, a child had been struck in a school zone by a car traveling at close to 35 mph, there were massive personal injuries and VMC pediatric ICU charges and surgeries were expected to be in the hundreds of thousands of dollars.

Before the 30-day deadline lapsed, Amica made no substantive response to the demand. It did not offer the $50,000 policy, did not offer the policy conditioned on a medical examination or a written report confirming the injuries and never asked for an extension.

By January 8, 2008 when Rasheed Hilson was discharged from VMC to Subacute Saratoga Hospital it was known he had suffered multiple severe personal injuries: a partial excision of the right frontal lobe, fractures of the mandible, humerus, pelvis, head of the femur, tibia and fibula and would be permanently bedridden. His medical bills at VMC totaled $788,000.

January 28, 2008 the lawsuit was filed and at the earliest moment an order shortening time brought an early hearing at which my motion for a priority trial date was granted.

Before the lawsuit was filed I wrote the defendant and urged her to obtain Cumis counsel. Nothing happened. I never have seen personal injuries of this magnitude without the insured having Cumis counsel and in May I wrote the Insurance Commissioner advising of the failure of Amica to appoint Cumis counsel for the defendant.

Trial started on June 23rd before Judge Leslie Nichols. Steve Werth and Ray Coates of Low, Ball & Lynch defended Tran. After trial started, the defendant hired Dave Henningsen of Robinson & Wood as Cumis counsel.

It was no surprise that Judge Nichols instructed the jury that the speed limit was 25 mph and that Rasheed was obligated to yield the right of way to Ms. Tran’s BMW.

Because Rasheed’s conduct had to be compared to that of 12 year-olds, I presented state-of-the-art testimony by two nationally-recognized scientists who specialize in child brain development and pedestrian safety awareness in 12 year-olds. Everything you have always known about the impulsivity of 12 year-olds has been confirmed scientifically by functional MRIs and dense array EEGs.

Our video reconstruction showed the violence of an impact at 33 mph that threw Rasheed over the BMW and how no collision would have occurred if the driver had obeyed the 25 mph speed law when children are present in a school zone.

The jury of five Caucasians, five Asians, and two Latinos deliberated for two days and on July 18 found $9 million in economic damages, with 65% comparative fault on Rasheed. After adjusting for Medi-Cal charges, a judgment for $3,058,570 was entered that day.

We had expected a 50/50 finding on liability based on our four focus groups, so 65% comparative fault was in the ballpark, but what was shocking was the finding that Rasheed was awarded nothing for pain and suffering, having suffered severe personal injuries and permanent brain damage.

After the reading of the verdict, I could have asked for the jury to deliberate further, but decided to have the verdict entered and then make a motion for a new trial on damages.

The jury’s decision was against the law and violated commitments made in voir dire. The CACI instruction in a case of liability mandates that compensation for pain ”must” be provided. Case law provides that damages for pain cannot be zero and a jury cannot eliminate pain from wounds. Query: would this result have occurred if the plaintiff was white? That troubles me. If this case is any guide, Mr. Obama will not do as well in Santa Clara County as some hope.

On an order shortening time, I moved for a new trial on the issue of damages only. The defendant argued that she wanted a new trial on all issues, but she had not made a motion for new trial and allowed the jurisdictional period to lapse.

Judge Nichols ordered a new trial on the issue of pain and suffering only, which kept intact the underlying $3 million judgment, providing the defendant did not accept an additur of $7 million [35% of $20 million: a county record].

Judge Nichol’s touched our hearts with his 13-page decision summarizing the evidence of Rasheed’s family, injuries and suffering. My motion and his order never mentioned that Rasheed is black. Judge Nichols in his decision attached photos of Rasheed and his family that were in evidence and a copy of a body-size medical poster in color that detailed Rasheed’s injuries.

On August 21st, the defendant accepted the additur and an amended judgment was entered on August 22nd nunc pro tunc effective July 18, 2008 for $10,102,292.67.

The bad faith action is next. Unlike nationally known carriers who have paid millions in extra-contractual dollars to our clients before verdict, Amica Mutual Insurance has now exposed itself to punitive damages for not protecting its insured by paying policy limits of $50,000 in a case of severe personal injuries – $10 million worth.

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Onward,

Richard Alexander

Posted on: December 19, 2008   Posted in: Personal Injury / Wrongful Death   One Comment