By Charles McAleer and Nelson Tyrone
Stacey Camacho and her 2-year-old son spent the evening of July 3, 2005, with her mother, father and sisters. She was 25 and happily married to Jesus Camacho. On her way home to Jesus, a drunk driver ran a red light and ended Stacey’s life. Liability was crystal clear, so there was no question that we would get a verdict for Stacey. The circumstances of her death were horrible. We knew this was, in “lawyer’s terms” a “damages” case. Our job was to recover every dollar we could for Stacey’s son, husband, and family. But there were several significant obstacles in the way that threatened to limit the damages we could recover.
First, we had an insurance issue. The driver had only $100,000 in coverage. Charles McAleer, who was the first of us to represent the Camacho family, had already sent a time-limited “Holt” demand to which the insurer had failed to timely respond and later rejected on its terms.1 Because our ability to collect for the family was based on a future claim against the insurer for its negligent or bad faith failure to settle, there was never an offer beyond the policy limits. The insurer told us our analysis was wrong and we would never recover more than policy limits. And while we believed our analysis was right, and that we would ultimately recover the full amount of any verdict, we were nervous about advising Stacey’s family to go through the pain of a trial.
Although heading to trial after a “blown” Holt demand sounds like an easy decision, it is not. There is tremendous uncertainty. And given the tragedy of Stacey’s death, we felt the weight of the pressure of making sure we were right about the likelihood we could collect for the family.2 For that reason we retained and met with experts from the insurance industry and lawyers to make sure the insured would have a strong claim against the insurer for its failure to settle. Once we concluded that he did, we explained to the family, in countless discussions, that we believed the only way we get all damages to which the family was entitled, was to try the case to verdict and then prosecute a second action against the insurer. They agreed, and the work of building the damages case began.
Next, we had the “Hobson’s Choice” of bringing a punitive damages claim. On one hand, the conduct of the at-fault driver supported punitive damages. His blood-alcohol content was egregious, he gave false statements to police, and he called home rather than rendering aid to Stacey as she was dying.3 On the other hand, the more we got to know the defendant, the more we came to believe he was a decent man. His drinking the day he ran the red light was uncharacteristic. He was not a regular drinker and had been invited to drink shots of a high-alcohol liquor at a July Fourth Party. He didn’t understand his low tolerance. By the time of trial, he had been convicted of vehicular homicide and had served several years in prison. We wondered, “Should he be punished further?”
We knew we could not rely on pain and suffering to help build our damages case. There was no testimony supporting pre-impact pain and suffering or a conscious awareness of the impending impact. Therefore, we did not have a clear, pre-death suffering claim. Also, Stacey had died (almost) instantly from injuries she sustained in the wreck. A Good Samaritan who pulled over told us Stacey “appeared” to be trying to look towards the back seat of the car where her son was strapped in a car seat and screaming. But Stacy’s injuries left her unable to move her head or speak and she lost consciousness within two seconds. What we could do with a “two-second” consciousness to build a pain and suffering claim we did not know.
Finally, we could not rely on economic damages (lost wages) to build our damages case. Stacey earned very little at her job as a part-time kindergarten teacher. Her future lost wages were minimal, and we feared the jury would “frame” the damages too low.
“How is any of this a problem” someone might ask. “You have a wrongful death case – doesn’t the value of human life trump economic damages?” Well, of course, but we know jurors latch on to any number we give them to arrive at their verdict. We all know of examples when a jury returned a damages number in a case strikingly similar to some other number introduced into evidence, such as the cost of a commercial machine or the salary of a CEO. Put another way, if we could summon the power as lawyers to help jurors value human life with an equal amount of dollars balanced with an equal amount of loss, the verdict in every wrongful death case would be tens of millions, if not more.
We have all told jurors in our own way something along the lines of “the value of human life is immeasurable.” And we mean it. However we also understand as human beings that assigning a dollar value to human life is excruciatingly difficult. And we know as trial lawyers that jurors rarely, if ever, return verdicts of tens of millions or a hundred million dollars in wrongful death cases unless there is evidence of some other significant number that they can use as a reference point. The psychologists tell us this has to do with a lack of “reference” for the jurors. If jurors are asked to value the total loss of a mid-sized SUV with a third row of seats, they can do it. Whether they had ever shopped for one or not, they have gathered enough information from advertisers, friends, family, and from daily life to be able to place a value on a mid-sized SUV. Simply put, they have a reference of how to value it. But human beings have no experience valuing a human life with dollars.
When you handle a wrongful death case with no economic damages and no other evidence that can give the juror a reference point or “frame” for a valuation, we know we have a challenge in helping the jury find a number that is as big as it should be for our clients. These were the challenges we faced in doing our job for Stacey’s family. And here is how we approached each challenge.
We abandoned the economic damages claim. We believed that we could recover a multi-million dollar verdict for Stacey and did not want a “several hundred thousand” dollar damages claim that might “frame” the jurors’ damages discussions. We told the jury that the case was about valuing Stacey’s life, and the relationships she had, not about her income, or the cost to transport her body by ambulance or the cost to bury her. It is a significant thing to abandon a claim worth hundreds of thousands of dollars, but we discussed it in detail with the family, received their consent, and went forward to trial without that claim.
Pain and Suffering
We had one witness who had seen some evidence of Stacey conscious for a second or two. Charles and I re-enacted the scene – both in preparation for trial and in the courtroom. We came to understand that even a second of not knowing if a 2-year-old son will survive his injuries would be a living hell for a parent. Stacey died unable to speak to her child, comfort him, or even know if he would live or die. We believed Stacey would have gladly given her own life to know her son was safe, but she died not knowing. The evidence was that he was cut, bleeding from his forehead and screaming for his mother. That is the last thing Stacey heard before she died. And she was unable to move a muscle to help. That is the definition of hell, and we would all give all the money we had to avoid dying like that. After Charles re-enacted the scene in the courtroom, the jury included $715,000 in their verdict for the seconds of conscious emotional agony Stacey must have gone through.4
We struggled with this one. We wanted the jury to learn about inflammatory behavior by the defendant. However we were aware that he had been punished severely (imprisoned) and was, from all accounts, a decent human being who had made a terrible mistake. The choice we made was to put on the punitive damages case to the jury. I told them in opening that they would have evidence before them that would justify an amount of money from the defendant purely to punish him. During trial we introduced all of the evidence we had relevant to the punitive claim. But during the defendant’s testimony, something in the courtroom changed. He sobbed on the stand. He told the family that, as a father, he could not imagine someone taking his child from him. He begged for forgiveness and acknowledged he had taken something precious from them. The judge and some jurors cried. We were all deeply moved.
That night we talked with the family about how the defendant’s testimony had impacted them. Stacy and her family are deeply religious. We had seen how they relied on faith to survive Stacy’s death. That night we told them we did not believe the jury would punish the defendant further. The family agreed he had been punished enough. But what were we to do? There were risks to dismissing the punitive claim. While dismissal would solve concern about the jury “front loading” damages on the punitive claim, the fact that significant evidence of the defendant’s bad conduct – which was only relevant to the punitive claim – had already been admitted might cause the Judge to grant a mistrial if we dismissed the claim.
Instead, we left the claim in the case and talked to the jury about the issue in closing something like this:
You have a right to punish this defendant. The law provides for that right and the lawyers and the Court know that punitive damages are an appropriate element of damages in this case. But that does not speak to what we all experienced yesterday when Mr. [Defendant] testified. Am I the only one that felt his pain? Am I the only one who felt his suffering yesterday and wonders if, maybe, he hasn’t been punished enough? Well, the punitive claim is before you and there is a line on the verdict form where you can put any number you wish. But I spoke with Stacy’s mother last night, and she gave me permission to let you know that the family understands if you want to put a zero on the line for punitive. And that they wonder if maybe Mr. [Defendant] hasn’t suffered enough. They know his family is suffering without him because they are suffering without Stacy. They asked me to tell you that what this case is really about is valuing Stacy’s life – and although the number of dollars you put as the full value of her life will never equal how much her life was really worth to her – they trust you to understand, and to speak up for, how precious and valuable Stacey’s life was – and is.
The jury returned a total verdict for Stacey’s family of $5,115,000 in wrongful death damages, 0$ for punitive damages, and $715,000 for the 1-2 seconds of conscious pain and suffering Stacey probably experienced. The Camachos then took an assignment from the insured tortfeasor of his claim against his insurer for failing to settle. In that case, the trial judge awarded $8,135,873, which was the full amount of the underlying judgment plus all post-judgment interest that had accrued on the underlying judgment up to judgment in the case against the insurer.5
And while it took us more than 12 years from Stacey’s death, eight years from the trial of the wrongful death case6, and more than two years after the negligence and bad-faith trial against the insurer to finish our work for Stacy and her family, I believe that all members of Stacy’s team did our level best to provide the Camacho family the only thing we could as lawyers – to understand Stacy’s life, and to recover every dollar we knew how to recover for her family. ●
About the Authors
Charles McAleer is the founder of the McAleer Law Firm in Decatur where his practice focuses on personal injury, workers’ compensation, and contract litigation. A graduate of the University of South Carolina and the Emory University School of Law, he is an active member of the State Bar of Georgia, GTLA, the American Trial Lawyers Association, and the Atlanta and American Bar Associations.
Nelson Tyrone is the founding partner of the Tyrone Law Firm in Atlanta where his practice specializes in birth injury law. A graduate of the University of Virginia and the University of Georgia School of Law, Nelson is an active member with the American Association for Justice, the Trial Lawyers College and a
member of the GTLA Executive Committee.
1 “An insurance company may be liable for damages to its insured for failing to settle the claim of an injured person where the insurer is guilty of negligence, fraud, or bad faith in failing to compromise the claim.” S. Gen. Ins. Co. v. Holt, 262 Ga. 267, 268, 416 S.E.2d 274, 276 (1992). Because the automobile wreck occurred before July 1, 2013, the new “offer statute” was irrelevant. See, O.C.G.A. § 9-11-67.1.
2 Little did we know that it would take more than 10 years from Stacey’s death for our “Bad Faith Team” (with the addition of Jay Sadd, Rich Dolder and Darrell Hinson) to obtain a verdict against the insurer in the Northern District of Georgia.
3 Some of this evidence was only relevant to Punitives, some was relevant to credibility
4 Stacey’s son recovered from his bodily injuries, is living with his dad and grandmother and doing well in school.
5 Camacho v. Nationwide Mut. Ins. Co., 188 F. Supp. 3d 1331 (N.D. Ga. 2016), aff’d, 2017 WL 2889470 (11th Cir.) (affirming Judge Totenberg’s “thorough and well-reasoned order”).
6 To put the length of the entire litigation in context, Nelson’s wife was pregnant with their daughter when she came to watch him close the wrongful death trial. Their daughter is eight and started third grade this year.