What would you tell a distraught mother of a 12-year-old child
- who unexpectedly dashed into the street;
- was run down by a car;
- suffered permanent brain damage;
- police exonerated the driver; and
- police found the child 100% at fault.
Can you identify the red flags in the following facts?
November 14 was a sunny fall afternoon when Rasheed Hilson, age 12, left a basketball game at Morrill Middle School in San Jose. Outside the gym, he chatted with friends before seeing his bus. He raced down the school driveway into the street without looking for traffic into the path of a speeding BMW. In one-tenth of a second the impact accelerated Rasheed to 33 mph, his head shattered the windshield, and he was thrown over the car as it continued without stopping. Rasheed suffered severe brain damage and multiple fractures.
San Jose police officer Jincy Pace, a 1994 graduate of West Point, headed SJPD traffic homicides. She was assigned the investigation, anticipating that Rasheed would die from his injuries. Officer Pace interviewed the defendant driver, who reported she was driving at 33 mph. The driver also reported she had seen nothing. She did not see a 12-year boy run from her right into the street into the front of her car. She thought a rock had shattered her windshield and continued driving down Cropley Avenue to Morrill, a distance of 130 yards. She turned at the corner.
Five of seven eyewitnesses to the crash listed in the SJPD report were 12-year-olds. One mother reported that 30 children were outside the gym when she came to pick up her daughter and saw the crash. None were interviewed by Officer Pace.
Officer Pace called the school and asked an unidentified secretary what time classes were over. She was told classes ended at 2:30 pm. Based on that call, Pace decided the speed limit in effect at the time was 35 mph, concluding that the 25-mph limit only applied when children are coming and going to school.
Pace decided the 12-year-old was solely at fault for his injuries and exonerated the driver.
Red Flag 1. Is there anyone in the world who could claim with specificity they were driving 2 miles an hour under what they believed was a 35-mph speed limit?
Red Flag 2. That the driver was oblivious to the impact, and her self-serving statements bordered on the incredible, did not spark any doubt or curiosity for Officer Pace.
Red Flag 3: Officer Pace never questioned why so many children were present if the school day was over at 2:30 pm. She never spoke to the school principal, the five eyewitnesses, or the mother who saw 30 children.
I called school principal Ron Fairchild who told me that the school was open for business until 6 pm. After classes ended, a school-wide homework and study hour operated from 2:30 to 3:30 pm. Athletic events commonly ran from 3:30 to 6 pm.
Red Flag 4. Officer Pace did not know that the speed limit is 25-mph when school grounds are unfenced. Vehicle Code 22352 mandates a 25-mph speed limit whenever school grounds are not separated from the road by a “fence, gate, or other physical barrier while the grounds are in use by children.” One appellate opinions discussing Section 22352 affirmed the decision of Judge Edward Panelli of the Santa Clara County Superior Court that without a fence the speed limit was 25-mph in a school zone.
The Morrill School was not fully fenced. An open driveway from the school to the street was the path Rasheed took that afternoon as he raced for his bus.
My reconstruction showed the driver could have avoided hitting this boy if she had been driving at 25-mph — http://www.youtube.com/watch?v=PDNraS8UuOM
On November 18 Amica Mutual Insurance, the insurer for BMW driver, received the SJPD report detailing Rasheed’s injuries. The verbatim report summarized his medical condition:
“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.“
It is hard to believe that a police officer hired by the 10th largest city in the United States lacked basic English skills. Nonetheless, the report confirms this youngster suffered a major brain injury and fractures of the pelvis and leg, among other injuries.
Rasheed’s mother, Dalette Hilson, immediately hired Omar Habbas’s law firm. She was told she would be meeting with her lawyer, but that never happened. She was incensed that her lawyer never talked to her. Three weeks later Mrs. Hilson came to my office.
I promise to provide five-star help to everyone who has suffered a serious injury and take the time to evaluate if and how we can help. I take my work seriously and do my best to maximize recoveries that will last a lifetime. And like any other problem, the devil is always in the details, so I do not make snap decisions. I tell every client the truth, gently, and with respect. I listened to Mrs. Hilson.
Rasheed’s only chance for a substantial recovery would be if Amica denied a policy limits demand. That would open the door to Amica’s treasury and a recovery in excess of the policy. But the chance of Amica refusing to pay policy limits with these injuries was remote.
On December 6 Mrs. Hilson discharged the Habbas firm and hired my firm. That day I crafted a policy limits demand letter that was sent to Amica with a 30-day deadline.
The letter relied upon the police report to describe the injuries. It would be read by an adjuster who earned bonuses by saving money for the company and confident this claim would be defensed based on the report itself. The letter noted multiple children were in the area and the speed limit was 25-mph in a school zone. I did not know the amount of the policy. Based on the Zillow report of the value of the driver’s home I anticipated it would be modest. I demanded the full amount of the driver’s policy.
Amica primary obligation was to protect its insured. A child had been struck in a school zone busy with children by a car traveling at close to 35 mph. There were massive injuries. VMC pediatric ICU charges and surgeries would be in the hundreds of thousands of dollars. The risk was that Amica’s adjuster was highly experienced and with these injuries it would be best for Amica to pay the policy and put the matter to rest. Agreeing to pay the driver’s $50,000 policy would be the most prudent position for the company.
Even if the policy was tendered, before a minor’s compromise could be approved, the Court would require an investigation into the driver’s assets and ability to contribute to a settlement. Medi-Cal is always paid first and it would be collecting virtually all of the recovery. The Medi-Cal lien later turned out to be $788,000.
So, there was no risk in making a policy limits demand and substantial benefits if an aggressive adjuster decided not to pay the policy.
On December 12 the claims department for Amica acknowledged receipt of the demand and requested a release for medical records. I provided one immediately.
Later I learned that Amica’s adjuster submitted the authorization for Rasheed’s records to VMC’s records department. No records could be found because Rasheed’s chart was in the ICU. The adjuster did not consider that Rasheed would still be receiving active care and records would not be ready until he was discharged on January 6th.
Red Flag 5. At no time did Amica make a substantive response to the demand. It did not offer its $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 of the deadline. No doubt the report by the San Jose Police Department made Amica confident that it had no exposure. No substantive response to the demand also meant that Amica did not appreciate Vehicle Code 22352.
On January 28 Hilson v. Tran was filed. A motion for a priority trial date was made and granted.
At the time of filing, I wrote Ms. Tran. I urged her to request Cumis counsel – an attorney for the insured, paid by the carrier, when there is a conflict of interest between the insured and the company. Amica should have paid its $50,000 policy and saved her from being sued.
By that time, we had Rasheed’s medical records which confirmed he had suffered a partial excision of the right frontal lobe and fractures of the mandible, humerus, pelvis, femur, tibia and fibula. It was clear that Rasheed would be permanently bedridden and brain-damaged for life.
I never have seen injuries of this magnitude and a $50,000 policy 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 23. Steve Werth and Ray Coates of Low, Ball & Lynch defended the driver. After trial commenced, the defendant hired Dave Henningsen of Robinson & Wood as Cumis counsel.
On the issue of Rasheed’s comparative fault, his misconduct had to be judged and compared to that of 12-year-olds in general. I presented testimony by two nationally recognized scientists, specialists in child brain development and pedestrian safety awareness of 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.
A video reconstruction showed the violence of an impact at 33 mph that caused Rasheed’s skull to fracture the windshield and throw him over the BMW. A second video showed that no collision would have occurred if the driver had obeyed the 25-mph speed law.
Rasheed suffered massive brain damage and is a hemiparetic. He will always be bedridden and in a wheelchair bound. He functions at the level of a five-year-old. A substantial frontal lobe loss has resulted in a loss of executive function, both cognitive and judgmental. At the time of trial, his older sister was a senior in college and Mrs. Hilson was completing a degree in elementary education. With this heritage, Rasheed also would have graduated from college and would have had the earnings of a college graduate.
Rasheed will never finish elementary school, obviously was incapable of working, and would require 24/7 care throughout his life. His life expectancy was 44-47 years. A day-in-the-life video confirmed his devastating injuries. Worse, psychiatric testimony explained that Rasheed fully understood that his carefree life had been destroyed and he cried over what had happened to him.
Judge Leslie Nichols instructed the jury that the speed limit at the school was 25-mph, not 35-mph as the SJPD had concluded and that Rasheed was obligated to yield the right of way to the BMW.
The jury of five Whites, five Asian Americans, and two Latinos deliberated for two days and on July 18 found $9,000,000 million in future economic damages. There was no award for pain and suffering. The jury placed 65% fault on Rasheed. After adjusting for Medi-Cal charges of $788,000, a judgment for $3,058,570 was entered that day with no award for pain and suffering.
I had expected a 50/50 finding on liability based on four focus groups, so 65% comparative fault was in the ballpark, but it was shocking that Rasheed was awarded nothing for pain and suffering.
Would this have happened if the Rasheed had been White?
My voir dire always hits hard on damages and in this case, I included questions about racial discrimination. I should have pushed harder on the issue of compensating a Black child as they would a White, Asian American or Latino child. If I had to do it again, I would incorporate the riveting and electrifying voir dire by Charles Garry in 1968 in defense of Huey Newton, the chairman of the Black Panther Party. Charlie brutally explored in-depth racial stereotypes and laid bare prejudice. Minimizing Racism in Jury Trials: The Voir Dire Conducted by Charles R. Garry in People of California V. Huey P. Newton (Ann Fagan Ginger, ed.) National Lawyers Guild, 1970.
After the verdict, I could have asked for the jury to deliberate further but decided to have the verdict entered and make a motion for a new trial on damages.
The jury’s decision was against the law. 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. In addition, every juror violated the commitment made during voir dire to follow the law.
I moved for a new trial on the issue of damages only. The defendant requested a new trial on all issues, but she had not made a timely motion for new trial and allowed the jurisdictional period to lapse.
Judge Nichols ordered a new trial on the issue of pain and suffering unless the defendant accepted an additur of $7 million.
His ruling made the verdict, in effect, $29 million before deducting for comparative fault. That was a Santa Clara County record.
Judge Nichol’s touched everyone’s heart [including the support staff at Low, Ball & Lynch] with his 13-page decision summarizing the evidence of Rasheed’s family, his 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 illustration that detailed Rasheed’s injuries.
On August 21, the defendant accepted the additur. An amended judgment was entered on August 22 nunc pro tunc effective July 18, for $10,102,292.67. A record result in record time.
HERE ARE THE LESSONS TO BE LEARNED FROM THIS CASE STUDY
- Do not accept at face value a police officer’s conclusions.
- The goal of a policy limits demand letter is not to settle the claim but to trigger a rejection and provide the opportunity to collect above and beyond the policy limits.
- Anyone with a claim should understand that their most valuable right is to make a policy limits demand. Avoid piecemeal discussions with adjusters.
- Draft a demand that meets the requirements of a good faith offer to settle so that insurance coverage counsel will agree that it was a mistake not to accept the settlement offer.
- Demand the policy even when you do not know the limits. The reality is that in most cases, with exceptions, the policy is all that is available to satisfy the claim.
- Give a deserving client the chance to fully collect for their loss.
- Study Charles Garry’s voir dire in the Huey Newton case. It is invaluable.
- The practice of personal injury law is personal. Meet, listen and support a client as you would a member of your family.
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