SETTLEMENT Failure of airbag to deploy results in $2.8M verdict

Is this a verdict or a settlement? Verdict

Type of case: Enhanced injury product liability

Amount: $2.8 million

Injuries alleged: Brain injury

Case name: Dominique L. Alexander vs. BMW of North America LLA

Court: U.S. District Court for the District of South Carolina Spartanburg Division

Case No.: 7:18-cv-03065-JD

Judge: Judge Dawson

Date of verdict: Feb. 3, 2023

Demand: An excess of $8 million

Bench or jury trial? Jury trial

Special damages: Pain and suffering, loss of enjoyment of life, and punitive damages

Most helpful experts: Mike Markushewski, Kelly Kennett, and Chris Caruso

Attorney(s) for plaintiff and their firm(s): Kevin Dean, Lee M. Heath, and John David O’Neal of Motley Rice LLC. Attorney(s) for defendant and their firm(s): Thomas Branigan and Patrick Cleary of Bowman and Brooke

Was the opposing represented by counsel? Yes

Were liability and/or damages contested? Yes Has the judgment been successfully collected? Not yet

B y H aviland S tewart hstewart @ nclawyersweekly . com

On Feb. 3, a jury in Spartanburg, S.C., handed down a $2.8 million verdict on behalf of a plaintiff who was seriously injured in a car accident when her 2015 BMW 528i’s airbag failed to deploy.

According to one of the plaintiff’s attorneys, Kevin Dean, in June 2017, during what should have been a typical rear-end collision, her vehicle lost power following rear impact, resulting in the failure of multiple safety features including the airbag and seatbelt.

“In our case, the battery was located in the trunk of the vehicle, and it was a rear end collision first followed by a front [collision],” Dean said. “So, the power source was damaged, and the air- bag didn’t deploy.”

The plaintiff survived the crash with a severe brain injury and a host of other injuries, Dean reported.

According to Dean, the plaintiff hit her forehead on the steering wheel with 1,000 pounds of force, resulting in subdural and subarachnoid hemorrhages. This brain injury caused neurological symptoms that will permanently affect the plaintiffs’ judgment, decision making, and personality.

“So much of safety devices in our vehicles, including airbags and seatbelts, are all tied to electronics and power sources,” Dean said. “If you lose power to your car, in BMW at least, you lose all your safety devices.”

This products liability action includes claims for general negligence, gross negligence, reckless conduct, and strict liability in tort, Dean reported.

“We were arguing that the failure of that airbag to deploy in this frontal collision was defective and unreasonably dangerous,” Dean said.

The plaintiff also suffered a compound fracture of her arm as a result of the front collision, as well as other injuries as well that her counsel alleged could have caused by the rear collision, and therefore did not claim to be the fault of BMW.

According to Dean, the plaintiff’s medical expenses totaled at approximately $440,000.

“We are thrilled to bring these financial resources to our client and also proud to be able to move forward with our commitment to the jury to continue investigating this defective product so that we can learn more and work to remove it from the roadways,” Dean said. “If you have this car, please let us know immediately.”

$3.1MILLION SETTLEMENT Injuries at apartment complex net $3.1M settlement

Type of Case: Insurance Bad Faith

Verdict or Settlement? Settlement

Case name: Withheld

Case no.: Withheld

Settlement Amount: $1 million

Plaintiff’s Counsel: Doward K. Harvin of Sabb Law Group, Scott C. Evans and James B. Moore III of Evans Moore, LLC

Defense Counsel: Wesley Sawyer

Venue: United States District Court, Florence Division

Most Helpful Experts: Andrew O. Wood, J.D. and Oliver Wood, (Economic loss in underlying tort action), Timothy Osbon (Life care plan in underlying tort action), M. Dawes Cooke Jr. (declaratory judgment action).

Was Liability Contested: Yes

In August of 2021, counsel obtained a default judgment of $3.13 million against an apartment complex in Kingstree, S.C., on behalf of a visitor who sustained a hip fracture and required multiple surgeries as a result of defects in a common area stairwell.

A lawsuit was filed and served upon the owner of the apartment complex. According to the plaintiff’s attorney, Scott Evans, the same day, the apartment complex forwarded a copy of the lawsuit to the complex’s property management company who had purchased the insurance policy.

Notice was then provided to an employee of the Cone Co., an Alabama retail insurance broker who sold a policy issued by Capitol Specialty Insurance Co., which covered the Kingstree property as well as other apartment complexes that were managed by a common group of property management companies, Evans reported.

According to Evans, a Cone Co. employee provided evidence of purportedly turning the claim into

Capitol Specialty Insurance Co. by and through a wholesale broker designated by the carrier to accept notice. The evidence of notice remains in dispute, plaintiff’s counsel reported.

Although Capitol Specialty Insurance Co. had notice of the damages hearing in the underlying tort action, it did not provide a defense to the apartment complex but instead filed a declaratory judgment action against the complex and the injured visitor in the U.S. District Court for the District of South Carolina, counsel reported.

Following the entry of judgment in the underlying tort action and service of the declaratory judgment action upon the apartment complex, the apartment complex assigned its rights to bring a bad faith and breach of contract action against Capitol Specialty, the Cone Co., and the complex’s management company to the injured visitor who had received the judgment.

A bad faith and breach of contract suit was filed in Williamsburg County the following day, and subsequently removed to the U.S. District Court. The Cone Co. tendered its policy limits following removal, Evans reported.

Since the settlement, the bad faith action filed on behalf of the apartment complex by the plaintiff has been remanded to the Court of Common Pleas for Williamsburg County. The state case remains pending against Capitol Specialty Insurance Co. and the complex’s management company, as does the declaratory judgment action brought by Capitol Specialty Insurance Co. against its insured and the injured visitor.

The defense counsel did not respond for comment.