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MOTORCYCLE/PICKUP TRUCK COLLISION; RESPONDEAT SUPERIOR; DISPUTED DRUG IMPAIRMENT: SKULL FRACTURE; CLOSED HEAD INJURIES; BRAIN DAMAGE: SETTLEMENT
Thomas Jack Yee, as Curator and Guardian of Mark Allen Yee, an Incapacitated Adult vs. Dolgencorp, Inc., d/b/a Dollar General Corporation, a Tennessee Corporation, and Tammylee M. Wright
State Court of Fulton County Civil Action File No. 02VS041556E; Settlement: February 7, 2006
Settlement of $15,000,000.00 for Mark Allen Yee (“Yee”), a 32-year old diesel mechanic who suffered serious head injuries when Tammylee M. Wright (“Wright”) turned her pickup truck across his lane of travel, resulting in a head-on collision.
On July 4, 2002, Yee was driving his motorcycle from his home in Conyers, Georgia, to a motorcycle show in Gainesville, Georgia. He had moved to Georgia from Shreveport, Louisiana, where he had previously worked odd jobs in construction and as a mechanic since dropping out of high school in the ninth grade. He was divorced and living with his girlfriend, but had a 13-year old daughter who resided with her mother in Shreveport. Yee had recently taken new employment as a diesel mechanic in Atlanta, but had not been employed long enough to vest in its health insurance program.
While Yee was proceeding westbound in Forsyth County, Wright was proceeding eastbound in her husband’s pickup truck in the opposite direction, and attempted to turn left into a Dollar General Store, resulting in a violent, head-on collision with Yee’s motorcycle. There were no eyewitnesses, but the Deputy Sheriff who investigated the collision felt that Wright had likely failed to yield the right-of-way, and an analysis of her urine reflected that she had methamphetamine in her system at the time. Yee had no memory of the incident, and his potential contributory negligence could not be conclusively resolved by eyewitness testimony or by the physical evidence.
It initially appeared there would be little recourse available for Yee’s severe injuries, as Wright was an uninsured driver who was excluded under her husband’s insurance policy, and had no assets. Initial efforts thus focused on assisting Yee and his family with medical, financial and related issues. Several months into investigation of the case, however, evidence was obtained from a witness who recalled that Wright had a number of empty Dollar General shopping bags in the back of her truck, and that she had made a statement at the scene to the effect that she was taking shopping bags to the local Dollar General Store. It was later learned that Wright had been employed by Dollar General for about two months at its store in Cumming, Georgia, and on the date of this incident had been requested by the store manager, as a favor after her shift was over, to drive her personal vehicle to another Dollar General store to obtain shopping bags, as the stock at the Cumming store was depleted. Though driving was not a part of her job description, and she was neither reimbursed for her mileage nor paid for her time in running this errand, this evidence was arguably sufficient to create a jury question on the issue of agency against her employer, Dollar General, and suit was therefore subsequently commenced against both Dollar General and Wright.
Yee suffered orbital facial fractures and a closed head injury in this collision, resulting in impairments in his ability to speak, limitations in his ability to move his left arm or left leg, inability to ambulate without assistance, and a diminishment of his vision in his left eye. He was hospitalized for over six months, and thereafter transferred to the care of his parents in Shreveport. He had no health insurance, and his parents had to care for him alone at their small home, where his father was forced to give up his employment at a doll shop owned by he and his wife in order to provide for his daily care.
In the absence of insurance, Mr. and Mrs. Yee had to modify their home and personal vehicles in order to accommodate the needs of their handicapped son. His father was appointed as his guardian in Louisiana, and by the end of 2005, Yee had incurred about $500,000.00 in medical expenses. Yee was earning about $40,000.00 as a diesel mechanic at the time of this incident, and his future lost earnings were projected at about $1,500,000.00, while his lost future fringe benefits were estimated at about $500,000.00.
Yee had a potential punitive damage claim due to Wright’s alleged drug use, but the criminal case against her had not been pursued by the local District Attorney, probably due to the Georgia Supreme Court’s recent search and seizure opinion, Cooper vs. State, 277 Ga. 282, 587 SE2d 605 (2003). Moreover, there was a dispute between experts as to whether the evidence showed Wright was under the influence of drugs, and whether her urine had been properly obtained or analyzed, as the Georgia Bureau of Investigation had never determined the quantity of methamphetamine in her system. Yee accordingly later agreed to enter into a stipulation in which he waived his potential punitive damages claim, in return for Defendants’ stipulation that Wright was an employee of Dollar General acting in the course and scope of her employment at the time of the collision.
Yee was evaluated in 2005 at medical facilities in Texas and Louisiana which concentrated in the treatment and care of brain damaged individuals. Based on evidence from rehabilitation and medical specialists from each facility, on independent rehabilitation medical experts, and on a life care planner, Plaintiff presented evidence that he would require lifetime future medical and rehabilitation care which would cost about $4,500,000.00, and home modifications and attendant care which would cost approximately $9,000,000.00. Defendants countered with their own life care planner, who concluded that Yee’s lifetime health care and rehabilitative needs could be properly accommodated for the present cash value of about $4,000,000.0, and that a number of Yee’s future needs, as projected by Plaintiff’s experts, would not be required.
Plaintiff buttressed his case for general damages by presenting evidence that Yee was an aspiring country and western singer, who had dreamed of becoming a recording star in Nashville, Tennessee. As a result of his injuries, however, he would never again be able to sing, or even speak clearly. Plaintiff compiled several original songs recorded by Yee on CD’s, along with tape of his amateur singing performances, and juxtaposed them with video taken after the incident, in which he attempted to sing and strum his guitar at home, graphically illustrating how his life had been forever changed as a result of his injuries. The “Life of Mark Allen Yee” DVD resulted in powerful evidence of Yee’s pain and suffering, permanent impairment, and the manner in which he, while still fully cognizant of his surroundings and condition, was “trapped” in a body that could not function, and would never again function, as it had before.
Two full day unsuccessful mediations were conducted, in May of 2005 in Atlanta, and January of 2006 in Shreveport. Thereafter, on the eve of trial, in an effort to exclude evidence of Defendant Wright’s methamphetamine use, Defendants stipulated to liability, and filed a motion to exclude this evidence on the grounds that it was no longer relevant. This motion was initially denied, but the court’s Order, and its Order excluding Plaintiff’s claim for expenses of litigation, were pending under motions for reconsideration when the matter was thereafter settled for $15,000,000.00, shortly prior to its specially set trial date, after over 3½ years of litigation and more than 30 depositions taken in Louisiana, Texas, Utah, Florida, and Georgia. The settlement proceeds were paid into a Qualified Settlement Fund established pursuant to I.R.S. guidelines, in order to permit competitive bidding for a lifetime tax free structured settlement annuity for Yee, construction of a “special needs” house to accommodate his physical handicaps, negotiation of liens, and other necessary post-settlement financial planning.
Plaintiff’s experts were: Herman A. Hill, P.E., Accident Reconstruction; Carolyn W. Hidgon, Ph.D., Life Care Planner; Alan M. Harben, M.D., Physical Medicine; Francis W. Rushing, Ph.D., Economist; H. Horton McCurdy, Ph.D., Toxicologist; Thomas E. Staats, Ph.D., Neuropsychologist; Aimee Q. Adams, Speech Therapist; Carol L. Whitmore, Physical Therapist; Andre S. Cuartas, Ph.D., Psychologist; Lindsey S. Montagnino, Speech Language Pathologist; Elizabeth Parker, Occupational Therapist; Wendi Kimbrell, R. N., Clinical Nursing Specialist; Annemarie Bock Clancy, Speech Pathologist; Thomas M. Harkey, Residential Builder/Contractor; Christopher L. Loyd, Pool Design/Contractor; and William B. Hill, Jr., Esq., attorneys’ fees/expenses of litigation.
Defendants’ experts were: Joe W. Kent, P.E., accident reconstruction; W. James Woodford, Ph.D., Toxicologist; and Cathlin Vinett, Life Care Planner.
[Plaintiff was represented by ATLA and GTLA members Clark H. McGehee, Esq., and William C. Lanham, Esq., of the Atlanta, Georgia, law firm of Johnson & Ward]
[Defendants were initially represented by Earl W. Gunn, Esq., Ashley P. Nichols, Esq., Charles L. Clay, Jr., Esq. and Laura L. Voght, Esq., of the Atlanta, Georgia, law firm of Weinberg, Wheeler, Hudgins, Gunn & Dial, L.L.C., and were later represented by Lowell S. Fine, Esq. and Karen R. Monson, Esq., of the Atlanta, Georgia, law firm of Alembik, Fine & Callner, P.A.]