Verdicts & Settlements
Type of Action: Motor vehicle negligence and declaratory judgment
Injuries Alleged: Above the knee amputation
Name of Case: Eubanks v. Estate of Russell; Eubanks v. Utz and Estate of Russell
Court/County: Davie County
Case No.: 06 CVS 823 and 06 CVS 535
Tried Before: Mediation
Name of Judge: Richard Stone
Special Damages: $650,000.00
Verdict Date: January 2008
Experts: Kenneth Tomberlin, MD
Insurer: Allstate, Nationwide
Plaintiff’s attorneys: George Francisco, Winston Salem
Person Submitting: George Francisco
On August 11, 2004, Plaintiff was operating a motorcycle when Defendant made a left hand turn in front of the oncoming motorcycle resulting in a collision. Plaintiff was thrown to the pavement. Plaintiff was taken by ambulance to the hospital where he was hospitalized with a broken leg. Plaintiff developed chronic osteomyelitis in his leg and underwent numerous surgeries and additional hospitalizations which eventually resulted in the amputation of Plaintiff’s leg above the knee, insertion of a prosthetic leg and extensive physical therapy.
A few days after the accident, Plaintiff made a claim against Defendant through her liability insurer, Allstate. The liability insurer opened a claims file and began investigation of the accident. Unbeknownst to Plaintiff, or his former legal counsel, the Defendant driver died on November 3, 2004. The Co-Executors of the Defendant’s Estate published a Notice to Creditors in the local paper, but did not provide actual notice to Plaintiff.
Negotiations with the liability carrier failed and on November 2, 2005, Plaintiff’s former counsel filed suit. The complaint was returned unserved due to the Defendant’s death. Plaintiff obtained new counsel, obtained an Alias and Pluries Summons, filed a Motion to Amend the Summons, a Motion to Amend the Complaint and to Add a Party. The Estate contended that Plaintiff’s claim in excess of the liability was barred by Plaintiff’s failure to make a timely claim against the Estate. According to the published Notice to Creditors, claims were required to be presented to the Estate on or before February 11, 2005, and that the Estate did not receive notification of the claim until November 7, 2005.
The Co-Executors of the Estate disbursed more than $800,000.00 of a $1,000,000.00 Estate before the February 11, 2005 deadline to make claims.
The underinsured motorist carrier, Nationwide, contended that Plaintiff’s policy only provide $250,000.00 per accident in underinsured motorist coverage which was completely offset by Defendants $250,000.00 liability coverage. Plaintiff contended that he had $1,000,000.00 in underinsured motorist coverage due to the fact that his policy had been in place since the 1980’s and, he had never been offered the opportunity to select or reject underinsured motorist coverage in an amount different than his liability limits. The UIM carrier contended Plaintiff waived any UIM insurance due to Plaintiff’s failure to preserve the UIM carriers subrogation rights.
Plaintiff filed a Declaratory Judgment action alleging that Plaintiffs did not have notice of the death of Defendant until after November 2005, that Plaintiff’s claims were actually known to, or could have been reasonably ascertained by the personal representative of the deceased Defendant within 75 days of the granting of letters, the personal representative did not provide Plaintiff with the notice of the claim as required by NCGS § 28A-14-1(b) that the personal representative failure to give Plaintiff actual notice barred the Defendant Estate from disputing Plaintiff’s claim for damages against the Estate’s assets and that the Co-Executors of the Estate were personally liable to Plaintiff as a creditor.
The parties mediated the two cases after discovery was completed. The liability insurer tendered its $250,000.00 limit of liability and the UIM carrier paid an additional lump sum of $550,000.00. The Declaratory Judgment action was tried without a jury before the honorable Richard Stone. The Estate settled for an additional $200,000.00 prior to the filing of a judgment.