A retired high school teacher and a longtime resident of rural Sonoma County was walking across Franz Valley School Road to retrieve his morning newspaper from the roadside mailbox opposite the driveway entrance to his residence. He was struck by a Cadillac SUV while he was in the roadway. The morning sun created a visual impairment for the eastbound driver but there was no indication that she slowed or otherwise accounted for the impairment. Due to the severity of his injuries, the first responders, the Calistoga Fire Department, called for air evacuation to Santa Rosa Memorial Hospital. Ten hours later, at the hospital, having never regained consciousness, the pedestrian succumbed to his injuries.
The accident was investigated by the CHP whose report was based almost entirely on the statement of the driver of the SUV and some physical evidence at the scene. The CHP report concluded that the decedent was the sole cause of the accident- as a pedestrian in a roadway outside of a marked crosswalk.
The three adult children of the decedent retained GJEL Accident Attorneys to pursue their claim against the SUV driver for the wrongful death of their father. Even though the accident report placed sole responsibility on the decedent, attorney Andy Gillin undertook an extensive investigation which developed persuasive evidence contradicting the conclusion in the accident report:
the driver had lived in the area for several years and was familiar with the road and the visual impairment caused by the morning sun to eastbound drivers;a lifelong resident of the area gave strong testimony that the decedent walked across the road at that location every morning, was aware of the visual hazard to vehicular traffic, and would not have placed himself in the path of an oncoming car.
Additionally, in the stretch of the rural county road where the accident occurred, and for miles in either direction, there were no marked crosswalks.
The driver’s insurance carrier, State Farm, initially rejected any claim of responsibility of their insured-relying on the unequivocal conclusion in the CHP report.
The credibility of the witness statements and the inconsistency of the driver’s statements (telling the CHP that she never saw the pedestrian in the roadway before the collision but telling the GJEL investigator that she saw him a split second before the impact) aided the GJEL attorneys in convincing State Farm to acknowledge the substantial liability exposure of the driver. An offer from State Farm of the policy limits to our clients in settlement of their claim was made, but was conditioned on acceptance by our clients of financial responsibility for any Medicare liens.
Legal analysis and further negotiation by GJEL attorneys Andy Gillin and Ralph Jacobson established that our clients were not responsible for any Medicare payments because their claim was not derivative of their father’s injuries. Rather, it was the driver’s negligence that caused the conditions that necessitated the administration of Medicare services, and so it was the driver that should accept that liability. State Farm and the driver’s personal attorney accepted that argument and advised the driver to accept it. This contractual protection for our clients from a claim for reimbursement from Medicare enabled them to maximize their recovery for the wrongful death of their father.