1.7M Verdict in Tow Truck Accident

Key may have been moving trial from Aitkin County

“If you try the case 10 times, I don’t know how many times you are going to get verdict of more than $1 million.”

—Bob Christensen, Minneapolis attorney

by Patrick Thornton
Reprinted with permission of Minnesota Lawyer ©2014

A man who had his legs broken when a tow truck rolled over him collected more than $1.7 million, including nearly $1 million for pain and suffering, from the driver of the truck, his employer and the insurance company. But first the man and his wife had to reject a $100,000 offer to settle the case and risk they could wind up with nothing. Dean and Sharon Bauer were camping at a Lake Mille Lacs campground in Aitkin County in July 2011. Their truck wouldn’t start so they called a tow truck company. A driver arrived at the scene and according to the Bauers’ lawyer, Bob Christensen of Minneapolis, the truck driver did not set the emergency brake and got out of the truck while it was still running to check on Dean Bauer. Bauer was under the hood of his truck. Sometime later the tow truck started to roll backward on to Bauer’s legs. Both of his legs were broken. Bauer is in his mid-60s and retired. The injury cost about $300,000 for surgeries and therapy sessions. He still walks with a cane and his mobility was and capabilities were diminished as a result of the injuries, Christensen said. They first sued the driver and his employer in Aitkin County.

That case settled for $765,000. Christensen said he was able to show that the driver acted negli-gently by leaving the vehicle run-ning when he got out and that he should have applied the emer-gency brake. The tow truck com-pany argued that Dean Bauer was too close to the truck and con-tributed to the injury, but by using an accident reconstructionist Christensen said they established there was at least 20 feet between the two vehicles when the tow truck rolled backwards. And then they sued the insur-ance company for an underin-sured motorist claim. But in order to collect any damages in that

case, the plaintiff needed to ex-ceed the “insurance gap,” Chris-tensen said. The tow truck driver had a $ 1 million policy, so in order to col-lect underinsured motorist bene-fits, the jury needed to return a net verdict of more than $1 million. If the jury returned a verdict of $995,000, the driver would not be underinsured and the Bauers would get nothing. It was a gamble, Christensen said. The insurance company of-fered $100,000 to settle. “They knew when they turned down that offer, they could end up

getting zero. But they wanted to go ahead,” he said. “The insurance company was betting on any award would be less than $1 mil-lion.” The insurer, AAA Insurance Group, declined to comment for this story. When it came time to sue out the case against the insurance company, Christensen said they made the strategic decision to venue it in Dakota County rather than Aitkin County. He said be-cause they were asking for a lot of money, he thought they would get a more “aware” and “understand-ing.” In short, he thought they had a better chance of getting a bigger

verdict in the metro area. The case went to trial in June 2014. Christensen said the trial was different because Bauer was re-tired at the time of the accident, so there wasn’t a claim for lost wages, and though the injuries were severe they weren’t cata-strophic like an amputation or being paralyzed. He said at trial the insurance company argued that some of Bauer’s injuries were due to a pre-existing cardiac condition. A car-diologist testified that his troubles were caused by the trauma of the accident.

Christensen said he also used a life care planner to testify to Bauer’s future medical expenses and what assistance he will need for the rest of his life. Christensen said there are things the Bauers will need to pay for now to main-tain a house that Bauer could do before the accident. “The life care planner was par-ticularly helpful because I didn’t have that wage loss I could point to here. [Bauer] was retired. There are ways you have to find to help build the special damages and get them in front of a jury,” he said. Christensen said he also used friends and neighbors to testify as to what Bauer was like before and after the accident and that he was active and hiked, hunted and fished. The jury returned a verdict June 13, finding the driver of the truck 100 percent responsible for the crash. The total value was $1,745,309.90. The jury awarded $329,986.90 for past medical ex-penses and $480,323 for future medical expenses. The jury also awarded $500,000 for past pain and emotional distress and $250,000 for future pain and emo-tional distress. Additionally, the jury awarded Bauer’s wife Sharon $125,000 for damages related to her husband’s injuries and another $60,000 for future damages. Christensen said plaintiffs lawyers are always looking for ways to build general damages in to verdicts and this case is a good example that it can be done. But it wasn’t easy. “If you try the case 10 times, I don’t know how many times you are going to get verdict of more than $ 1 million.” he said.

Vol. 18, No. 37 | $6.00 September 15, 2014 minnlawyer.com

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