Vehicle and Bicycle Victories

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Lunt v. Sears Roebuck and Co.
$3,500,000 settlement for brain injured 18 year old.

We represented Melissa Lunt, age 18, after a Sears delivery truck broadsided her vehicle at 45 miles per hour. The Sears driver was talking on his cell phone when he ran a red light. Melissa sustained brain injury that caused memory loss and cognitive dysfunction.

Quinnan v. New Hampshire Insurance Co.
$890,000 settlement of uninsured motorist claim.

There was no insurance for the wrongdoer who ran Roger Quinnan's pickup truck off the road while he was on a business trip. He sustained head and internal injuries. We collected $250,000 from his own uninsured motorist carrier on his personal pickup truck. We then collected an additional $890,000 from his employer's uninsured motorist coverage after a successful appeal to the United States Ninth Circuit Court of Appeals to overturn the ruling of the trial judge who had dismissed his coverage case in favor of the insurance company. This was a significant victory because the employer's policy contained $1,000,000 worth of liability coverage, but no uninsured coverage. Nevertheless, we were successful in showing that Arizona law required that an equal amount of uninsured motorist coverage be provided in addition to the liability coverage, where Roger was driving his own pickup truck on company business with the permission of his employer.

Wall v. Noblitt
Phoenix jury decides motocross track was negligent, awards $300,000.

We represented Tim Wall in a case against a Casa Grande motocross track. Both of Tim's legs were badly broken when he crashed his bike into a front-end loader the track owner had parked underneath one of the track's designed jumps. The owner was planning on doing some track maintenance but had not closed the track or put out any warnings to riders. A Maricopa County jury returned a $300,000 verdict in favor of our client.

Ill-designed BMX track puts boy in wheelchair.
Our client, a teenage boy, was paralyzed after a bicycle crash on a BMX track. We argued that the track was negligently designed in that the obstacles on the track were placed too close together. Our settlement enabled our client to not only obtain the necessary therapies and treatment he requires for the rest of his life, but also to begin a very rewarding business working with others with similar disabilities.

Those responsible for attorney's death recognize their mistakes and change business practices.
We recovered all available insurance proceeds for the wrongful death of a beloved Tucson attorney, who was killed while riding his bicycle when a negligent driver turned into his path. This is one of a number of bicycle and motorcycle accident cases we have handled over the years. As part of this settlement, the defendant rental truck agency changed the way it does business.

City pays for failing to trim tree blocking stop sign.
We represented the families of four girls who were killed or seriously injured while driving to run an errand, did not see a stop sign and were hit by an eighteen-wheeler. We were successful in obtaining a settlement against Chino Valley for failing to properly maintain the roadway and trim tree limbs growing in front of the stop sign.

Drunk driver held accountable for actions.
We represented a railroad engineer who was broadsided by a drunk driver who ran a red light early one morning while our client was returning home from work. We received full compensation for our client's injuries.

Underinsured Motorist Policy Pays Full Value for Back Surgery.
Our client was a college student who was home for the winter break when she was rear ended by a speeding driver who was under the influence of alcohol. Police estimates put the at fault driver's speed at approximately 100mph. Our client was a ballet dancer who was performing and studying dance. As a result of the collision she suffered a severe neurological injury and required neurosurgery. She continues to have limitations, and her career as a performer has been ended. The at fault driver had insufficient insurance. After settling with his carrier for the policy limits, we commenced litigation against our client's own UIM carrier, who initially refused to resolve this claim. Soon after our client's deposition, we were able to negotiate a confidential full value settlement that will pay for her medical bills, allow her to get the future therapy and care she needs and reflects a reasonable amount for her pain and loss.

Mendota Ins. Co. v. Gallegos
Where UIM policy fails to defines terms, court will give the terms ordinary meaning.
Martin and Eric are adult brothers who lived with their parents. Martin rented an apartment with a friend so he could "party." Apparently his parents were cramping his style. Martin shared the rent and utilities at the apartment and moved his bed and some clothes to the apartment. He continued to keep personal belongings and furniture at his parents' home where Eric lived full time. Martin then met a girl and began spending five out of seven nights at her apartment. However he did not move belongings there or share rent or expenses. He continued to receive mail at his parent's home where he had sit down dinners on weekends. He testified he intended to move back to his parent's home when he was done "partying." In short, Martin spent most of his time at his girlfriend's house, some time at the apartment and some time at his parent's.

Martin purchased an auto insurance policy from Mendota Insurance with the help of his mother. It defined "'family member' as 'a person related to [the named insured] by blood, marriage or adoption who is a resident of [the named insured's] household.' The policy, however, did not define 'resident' or 'household.'"

Thereafter brother Eric was in an automobile accident riding as a passenger. He brought an underinsured motorist [UIM]claim against Martin's policy with Mendota. Mendota moved for a declaration that Eric was not a resident of Martin's household. Eric sought a declaration to the contrary. The trial court found Eric and Martin to be family members and residents of the same household. The Arizona Court of Appeals affirmed.

In interpreting when a person is a resident of the same household, physical presence alone is not dispositive. A household shares three characteristics:

  1. "A close-knit group of individuals who treat each other like family, and deal with each other intimately and informally."
  2. "A shared dwelling place where its members develop and maintain their close-knit, intimate, and informal relationships."
  3. "A settled or permanent status; it requires a degree of permanency and intention to integrate into the family unit and remain a member for more than a mere transitory period."

The trial court's findings of fact will only be overturned if "clearly erroneous." Here where Martin considered his parent's home his home and residence, received his mail there, listed that address on his driver's license, spent weekends there interacting as a family member with Eric and his parents and where he had not signed a lease on the apartment or "moved in" with his girlfriend and could leave either at any time, the trial court properly concluded Eric and Martin were family members of the same household.

Melendez v. Hallmark Ins. Co.
Offer of uninsured motorist coverage must include amount of premium.
Plaintiff and her passengers were in an auto accident and their combined medical bills alone exceeded the 50/100 liability coverage held by the at fault motorist. Plaintiff's auto insurer Hallmark Insurance denied her underinsured motorist [UIM] claim based upon her alleged rejection of the coverage. Plaintiff sued Hallmark and moved for partial summary judgment claiming the form she signed "rejecting" UIM coverage did not specify what the coverage would cost and was therefore an insufficient offer of UIM under Ariz. Rev. Stat. sec. 20-259.01. The statute further provides that unless a proper rejection of the coverage is obtained, the insurer is bound to provide UM/UIM coverage. Hallmark filed a counter motion for partial summary judgment claiming its offer was adequate and in compliance with the statute which does not specifically require a premium quote. The plaintiff signed and initialed the rejection of this offer. The trial court granted Hallmark's motion and denied plaintiff's. The Arizona Court of Appeals reversed and remanded.

The Arizona Court of Appeals held: "A UM/UIM selection/rejection form that lacks premium prices and optional coverage amounts, and which tells the insured that the form does not provide coverage, does not objectively communicate a 'proposal of terms 'and would not lead a reasonable person to understand that an offer is being made that, if accepted, would bind the offeror." The court found it significant that the form created for use by the Arizona Department of Insurance has a blank for inserting the amount of the premium. Interestingly, Hallmark's form had been expressly rejected by the Arizona Department of Insurance in 2010 for that reason. In order to come to this conclusion the court was required to distinguish and at least partially overrule Garcia v. Farmers Ins. Co., 191 Ariz. 410, 956 P.2d 537 (App. 1998). This was done based primarily in reliance upon the supreme court cases of Tallent v. National Gen. Ins. Co., 185 Ariz. 266, 915 P.2d 665 (1996) as interpreted and applied in Ballesteros v. American Standard Ins. Co., 226 Ariz. 345, 248 P.3d 193 (2011) where the court held that the term "offer" is not defined by the statute and therefore standard contract law principles ought to apply to define it; contract law requires an offer be complete enough that acceptance would bind the coverage. Here that would require an agreement on what is to be paid for how much coverage.

Justice Gould dissented pointing out that Ariz. Rev. Stat. does not specify that the offer include the premium amount.

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Schmidt, Sethi & Akmajian

Schmidt, Sethi & Akmajian is one of the most experienced, successful personal injury law firms in the Tucson area. Established in 1995, our firm has a long history of success, as seen in our many victories.