HIOJ: How Teamwork Helped the Proverbial Dog Catch the Bus

How I Obtained Justice

How Teamwork Helped the Proverbial Dog
Catch the Bus

LOVE THE WIND/SHUTTERSTOCK.COM

By Mark Alexander

When I was a 13-year-old boy enamored with my Farrah Fawcett poster, my father remarked, “Mark, you are like the proverbial dog trying to catch a bus: if he ever catches it, he won’t know what to do with it.” Forty years later, I found myself at counsel’s table in a similar position when the jury returned a verdict in favor of my clients for $11.5 million. The amount was appropriate under the circumstances, but now what?

I like to think I am a good trial lawyer, securing favorable settlements and trial results for my clients. However, I had never before convinced a jury to return an excess verdict; especially not one for substantially more than the insurance policy limits. Following the verdict, the congratulations were tempered with the refrain “Good luck collecting it.” While I had heard the war stories, had attended the seminars, had read the cases, these were uncharted waters for me – but not for everyone. This is a story about how teamwork, helped the proverbial dog catch that bus, collect a judgment and obtain justice for his clients.

Factual Overview

Late on a hot, summer night in 2013, a husband, wife, and their 12-year-old daughter were coming out of a Walmart in Gainesville, Georgia. As they walked through the large crosswalk in front of the store, a man driving a company-owned truck (HVAC/Plumbing) suddenly accelerated around parked cars and struck the family.

All three family members survived. They all experienced physical injuries, some worse than others, and the wreck impacted them emotionally, some worse than others. The driver later pled guilty to driving under the influence.

The company’s management moved swiftly to distance itself from its driver, thinking it might avoid liability and increased insurance premiums. The company told its insurer the driver did not have permission to drive the truck for personal errands. Without any independent investigation, the insurance carrier, Columbia National Insurance Company, immediately denied coverage to the driver. In truth, however, employees like the at-fault driver routinely used company trucks assigned to them for personal errands.

When we sued the company and its driver – by that time fired – Columbia defended the company. Surprisingly, Columbia did not defend the driver under a reservation of rights, file a declaratory judgment action nor seek to stay the underlying action. We ultimately settled the claims against the company (negligent hiring, entrustment, etc.), but we continued to pursue claims against the driver. Because Columbia had denied a defense to the driver, he was in default.

In 2017, together with Dan Sammons of Sammons & Heneke, we took the case against the driver before a jury in the State Court of Hall County. The trial lasted two days. After a brief deliberation, the jury returned an $11.5 million verdict. Later that year, the family and the driver filed suit against Columbia asserting claims for coverage and for negligence and bad faith because Columbia failed to settle the claims against the driver within Columbia’s $4 million policy. After a favorable ruling on the parties’ competing motions for summary judgment1 and on the eve of trial, the parties settled the insurance case in February for $10.5 million.

The Right Decision

Plaintiff’s lawyers covet our cases, especially the good ones. We like to kick ideas around with colleagues for the cost of lunch, but we resist actually getting others involved out of fear of fees and having to share. I had experience fighting with insurance companies over coverage. I took the crash course in negligent failure to settle and “bad faith” litigation. I Googled it and Westlawed it. I could do it…but should I do it? I made many key decisions during the six years of this litigation. However, my wisest decision was to get someone who specializes in this area of the law involved and work closely with them. That collaboration added millions of dollars of value to the case. Here’s how.

Independent Representation
v. Assignment

Cases involving an excess judgment and an insurer’s negligent failure to settle sometimes make strange bedfellows. Plaintiffs and insured defendants are adverse in the underlying litigation. But, in the bad faith litigation that follows, the defendant is often the plaintiff’s ally against their common foe, the insurer. News of the verdict identifying the defendant driver soon hit the local media, much to his chagrin. The man I needed as my ally had now become my archenemy. Multiple private investigators, despite their persuasive efforts, could not get us an audience with the driver, much less secure his cooperation or an assignment of his claims against Columbia. We identified a family member of the driver and the local business she owned using Facebook. Through her business’s attorney, we were able to coordinate a meeting between the driver and independent bad faith counsel on the condition that I be nowhere near the building. Despite the driver’s animosity towards me, he was willing to have his own lawyer represent him to pursue each of our claims against Columbia. Enter the Pros: bad faith counsel for the driver. The driver hired Jay Sadd and Rich Dolder of Slappey & Sadd.

The Pros, well-versed in coverage and bad faith litigation, recommended litigating in federal court, where rulings are often based solely upon briefing and pages are at a premium. Joining forces with separate counsel representing the driver to pursue coverage claims against Columbia had many advantages. Two lawyers, instead of one, were able to cross-examine the adjusters and insurance executives during depositions. Two lawyers, instead of one, were able to propound interrogatories. Finally, two lawyers, instead of one, each with a full arsenal of pages, were able to initiate and respond to a variety of complex motions.

Most importantly, we were able to review and refine each other’s written work product. On numerous occasions, we tempered the other’s emotion, tone, or sharp edge, which had a way of creeping into our work when fueled by the frustrations of litigation. Having another voice to quiet the yelling taking place on paper helps maintain focus on what is important. The process of exchanging multiple drafts often led to more questions, long conversations, new revelations and a deeper insight into the strengths and weaknesses of our legal positions. Iron sharpening iron. A fresh set of eyes can transform good work into excellent work.

Practicing Out Loud

The collaborative process continued with the other lawyers in the office. When I prepare for a deposition, I hear the question-answer exchange take place in my mind, and all my “gotchas” fall perfectly into place. When I actually hear it happen, however, I am typically disappointed; the “gotchas” have somehow evaporated. I was fortunate to have Andrew Gould join our firm as an associate at this time. Andrew emphasized the importance of role-playing upcoming depositions which proved to be an invaluable tool. The process helped us revise the order of our questions and topics. It was a platform for us to share and challenge each other’s ideas and strategies, and it caused us to think deeply about the issues of the case for hours. Of course, this required us to carve significant amounts of time out of our days to immerse deeply in the case. True effectiveness in the creative process takes time. Our preparation paid off handsomely when we were able to cross-examine witnesses to give revealing and pivotal answers.

From the Mouths of Babes

As detail-oriented lawyers, we analyze the multitude of facts against the backdrop of our legal canvas. Jurors ultimately decide the same facts against the backdrop of their life experiences. The two are not the same. In this case, one of our regularly conducted focus groups helped us synthesize our presentation of the case. We presented several complex legal issues about insurance coverage that we expected focus group participants, as non-lawyers to struggle to grasp. Instead, after being given an array of competing positions, they understood these issues better than we expected, and they presented us with a roadmap to success. Cutting through the legal gobbledygook, they simply wanted to find a way to compensate the family for their traumatic experience. One participant struck a nerve when he exclaimed: “The insurance company is wrong and needs to pay!” The first and last sentences of our response to Columbia’s motion for summary judgment: “Columbia is wrong and needs to pay.”

Real People,
Real Stories, Real Fun

Columbia denied coverage to the driver because it contended the driver was not a permissive user of the company truck when the accident took place. Central to the question of coverage and a prerequisite for the bad faith claim were to what degree the company permitted or knew about its employees using company trucks for personal errands. Fortunately, we located a former employee who knew other former employees. But it takes more than a phone call to learn people’s truths. We chatted with a former employee on lawn chairs in his garage, with another while sharing chips and salsa, and with another over a beer. During these gatherings outside the office, we heard stories of the company encouraging drivers to take their trucks to children’s ball games, school activities, and other community events to promote itself. We heard hunting and fishing stories with drivers showing off their weekend’s kill in the back of the company truck. We heard stories of employees using company trucks for family vacations and trips to KFC, Target, and the grocery store. Persistent fact-finding made it crystal clear that personal use of company trucks was a “perk of the job.” The case was not won in the courtroom or in the office. The key to our success came from going out and meeting real people and listening to real stories. And it was real fun.

A Better Lawyer

I know I am a better trial lawyer now, not because of an $11.5 million verdict or a $10.5 million settlement. I am a better trial lawyer because I have gone to war against a mighty foe. I am a better trial lawyer because I have spent time in the trenches fighting alongside brilliant trial lawyers. I am a better trial lawyer because I have witnessed real people’s simple truths prevail over polished legal sophistry. I am a better trial lawyer because I have experienced the benefits of overcoming my prideful resistance to get others involved.

“Teamwork…It is the fuel that allows common people to attain uncommon results.”
 – Andrew Carnegie

I am looking out for the next bus to chase, and when I catch it, I won’t hesitate to let others help me bring it down. ●

ABOUT THE AUTHOR
Mark Alexander is a trial lawyer and senior partner and at Stewart, Melvin & Frost, in Gainesville, Georgia. Mark and his trial team conduct monthly focus groups in Gainesville, often collaborating with lawyers across the state, as he did in this case. Mark serves on the State Bar of Georgia’s Board of Governors and is former president of the Gainesville-Northeastern Bar Association. Mark and his wife Michelle are the proud parents of Boone and Pete, now students at UGA. Boone graciously helped his dad as he struggled to compose this article. 

FOOTNOTE
1 Dunn v. Columbia Nat’l Ins. Co., 418 F. Supp. 3d 1192 (N.D. Ga. 2019).


SIDEBAR

Other Stuff
That Worked
(For My Plaintiff Friends)

ALEXANDER LIMBACH/SHUTTERSTOCK.COM

Pause long enough to listen to your staff. Insight from my incredible team, which includes Rhonda Parson (paralegal) and Cody Stephens (legal assistant), helped ground our work in reality and improve the final product. The value gained from their input, commitment and tireless hard work cannot be overstated.

During the trial of the underlying case, we did not introduce evidence of the medical bills; instead, we discussed medical treatment generally.

During trial, rather than introduce certified copies of the defendant’s driving record, we called a representative of the Department of Driver Services to testify about the defendant’s driving history.

We used a businessman who is active in our local community theatre to read the medical narrative of the treating physician.

Our most powerful piece of evidence was the parking lot surveillance video depicting the horrific event. We played it only once during the trial. The initial shock had a lasting impact, and the video did not need to be replayed.

We struggled with whether to call the 12-year-old daughter (who had a learning disability) to testify about the wreck. We decided against it. It was the right call.

Never underestimate the power of post-judgment interest, especially with large judgments. Sometimes post-judgment interest is covered under the policy in addition to indemnity limits.

We served discovery responses and responsive pleadings before the day they were due. Try it sometime. It’s liberating.

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