Kevin Erb, 52, was driving northbound on a highway during the early morning hours. As he drove through an area obscured by dense fog combined with smoke from a controlled burn, Loran Leroy Smith Sr., driving a tractor-trailer southbound for Peninsula Logistics, crossed the centerline and struck Erb’s SUV.
Erb suffered severe crush injuries to his left leg, requiring its amputation above the knee. He now uses a prosthesis. His past medical expenses totaled $654,000, and his future life-care costs are estimated at about $1.74 million. Erb had been earning about $34,000 annually as a fiberglass craftsman for a boat manufacturer. He was unable to return to that job but may be able to obtain lower-paying, sedentary work in the future.
Erb and his wife sued Smith, alleging that he was negligent in failing to keep a proper lookout, failing to keep his truck under control, driving too fast for conditions, and crossing the centerline. The plaintiffs also contended that if Smith could not see properly, he should have pulled over until the smoky conditions cleared.
The plaintiffs also sued Peninsula Logistics, alleging liability for Smith’s negligence. The plaintiffs contended that if Smith was an independent contractor, as the defendants claimed, then Peninsula was liable under a law that makes trucking companies liable for the acts of their independent contractors.
The plaintiffs claimed about $498,000 in past and future lost earnings.
Smith argued that the fog and smoke created a “white out” condition—a contention supported by witnesses—and that the condition caused him to become disoriented. The defense also argued that it would have been dangerous for Smith to stop his truck in the road because cars could strike him from behind; that even if he pulled off to the side, cars might follow the taillights; and that he could not pull completely off the road because the shoulder was too narrow.
The jury awarded about $7.35 million jointly and severally against the defendants. The verdict included about $3.42 million for future pain and suffering, about $2.53 million for past and future medical expenses, $654,000 for past pain and suffering, about $498,000 for past and future lost earnings, and $250,000 to Erb’s wife for loss of consortium. Defense motions for a new trial, remittitur, and judgment n.o.v. are pending.
Citation: Erb v. Peninsula Logistics, Inc., No. 2012 CA 001509 AN (Fla., Osceola Co. Cir. Sept. 20, 2013).
Plaintiff counsel: AAJ member John Elliott Leighton and Eric Halsey, both of Miami.
Plaintiff experts: Gary Stephens, accident reconstruction, Macclenny, Fla.; and Paul Deutsch, life-care planning, and Fred Raffa, economics, both of Orlando, Fla.
Defense experts: Alan Moore, accident reconstruction, and Stuart Cody and Bradley Braun, life-care planning, all of Orlando.