Court: Virginia Circuit Court October 2022
Attorneys: Eric K. Washburn and Kevin Sharp
WHAT HAPPENED
Our client, a long-haul tractor-trailer driver from Georgia, was delivering lumber for the first time to a lumber distributor in Hampton, Virginia in late 2019. He checked in with the distributor’s delivery foreman and was directed to pull onto an area of the delivery tarmac and began unstrapping the lumber so that the forklift drivers could begin the unloading process.
The tarmac at the distributor’s location had four other flatbeds on the tarmac that were being loaded and unloaded with lumber by three industrial-sized forklifts. These forklifts were constantly moving around the tarmac without designated lanes of travel. The forklifts were being operated in the forward direction with full loads of lumber blocking the line of sight of the forklift operators.
Actual forklift of the type involved in this incident.
As our client was bent over, folding up his tarps next to his flatbed, a forklift operator with a full stack of lumber blocking his line of sight turned and collided with our client, violently pushing him down to the pavement.
Our client suffered severe orthopedic injuries to his left ankle and right wrist. He was transported to the emergency room where he underwent emergency orthopedic surgery to stabilize multiple fractures in his leg and his wrist. Our client spent three days in the hospital before being allowed to return home to Georgia where he continued with orthopedic care, physical therapy, and rehab treatment. He incurred approximately $128,000 in medical bills and after seven months of physical therapy, he regained a good portion of his range of motion in his ankles. Eventually, he was physically able to return to trucker work, although without any significant lifting requirements.
Client required pins, plates, and screws to support his foot and wrist.
KEY LEGAL STRATEGY
Following his treatment and once he was able to reach maximum medical improvement, a demand package was sent to the claims adjuster for the lumber distributor. The insurance carrier offered only $250,000 in full settlement of all claims, and attorney Washburn advised our client this offer was far too low, and our client agreed with a plan to move the case into the circuit court as a lawsuit to prove this was a more significant case of orthopedic damages and long term impairments.
Once the complaint was filed in Circuit Court, Attorney Washburn ramped up the process of discovery, issuing Freedom of Information Act requests, particularly to the local OSHA office having investigated this accident. We thus obtained the OSHA investigation file and learned of the specific OSHA penalties that the defendant company was cited for as a result of improper forklift procedures and policies.
Attorney Washburn pored over the OSHA file and developed plans to conduct oral depositions of important witnesses to the accident, and witnesses familiar with the company’s forklift policies. In addition, our attorneys obtained the defendant company’s policies and procedures for receipt of deliveries, as well as the operator’s manuals for the forklifts used at the business.
Our firm has handled several previous forklift collision cases; each case has involved leg injuries due to the forklift tines or merchandise striking the workers. Through our experience, we have located forklift experts to review the facts of these prior cases, and provide expert reports detailing forklift requirements set forth by OSHA, the policies in place by the company utilizing the forklift, and whether and to what extent forklift policies and procedures were followed. See the related content case results below for details of our prior cases.
According to the forklift expert attorney Washburn retained in this case, the following were key factors causing this incident:
- Virginia OSHA cited the defendant company for unsafe forklift operations namely 1910.178(a), 1910.178(n)(4), and 1910.178(n)(6). Its policies and procedures created an unsafe work environment at the lumber yard for both the truck drivers and employees and these policies and procedures were the contributing cause of our client’s accident.
- The person operating the forklift when our client was struck was a certified forklift operator and received formal forklift training governed by 29 CFR1910.178. He knew or should have known if his forward view of travel was in any way obstructed, he should have known to drive the forklift with the load trailing. Based on his perspective from the forklift’s cab, his view of the path was partially obstructed by the 16 feet long by 5 feet tall Mill Pack being carried on the forks of his forklift. He either assumed [our client] was in the cab of his road tractor or was standing on the opposite side of the flatbed trailer when he turned left in front of the rig. But [our client] was actually standing on the ground beside his flatbed trailer bent over at his waist while he was rolling up the second tarp when he was struck by the forklift Mill Pack.
Related Case Result Content
$1,000,000 Settlement for Warehouse Worker Who Had Foot and Ankle Crushed in Forklift Accident
Prior Court Decision, Firm Client Injured by Forklift Operator
How our Virginia forklift accident attorneys uncover evidence and maximize your recovery
Attorney Washburn synthesized these sources of information during the depositions of the company witnesses and their main corporate representative, and destroyed their central defense, which at first was that our client began preparing his lumber for unloading in the “wrong” tarmac location. By the time these key depositions had been done, the claim our client pulled his truck to the “wrong” location was a crumbling defense.
The defendant company attorneys finally agreed with our attorney’s suggestion that a formal mediation settlement conference might be appropriate. Mediation is voluntary and does not postpone a trial date in the future. Although the case did not settle at the formal mediation conference, weeks later the mediator successfully brokered a settlement satisfactory to all parties. Note that our client has previously settled a worker’s compensation claim arising from this same incident, but through earlier negotiation in conjunction with his workers’ compensation attorney, there was no lien to repay any workers’ compensation benefits he had earlier received. The case was settled for $750,000 less than two months before trial.
The results: $750,000.00 confidential settlement