A Norfolk woman whose arm was crushed in an accident at a monster truck show at Virginia Beach has gained $14.2 million in a structured settlement with the truck’s owners and the event coordinator.
The case is Kubitza v. Vinson, Gravedigger 4×4 Inc. and Cellar Door Productions of Virginia Inc., filed in the Norfolk Circuit Court. Representing the plaintiff were Norfolk lawyers O.L. “Buzz” Gilbert and Jeffrey A. Breit.
The settlement is believed to be one of the largest ever for a personal injury case in Hampton Roads.
Joy ride on beach
In October 1998, the plaintiff, along with several other patrons, paid $5 to ride in the Gravedigger, a popular 4×4 monster truck that was among the featured trucks at the two-day weekend show, promoted by Cellar Door. During the ride, the truck turned at high speed and flipped over onto its roof. The plaintiff’s arm, exposed through the coverless window on the side of the truck, was pinned between the roof and the sand, crushing it.
The woman, formerly a preschool teacher at the Norfolk Naval Base Child Development Center, developed reflex sympathetic dystrophy (RSD) of the right arm, which constantly contracts the muscles in her right forearm and upper arm. She is unable to bend her arm at the elbow, and her right shoulder flexes in towards her chest.
Gilbert said that as a result of the RSD, she experienced 100 percent loss of the use of her right arm. The bones in her right arm have become osteoporitic, and she suffers from neurogenic pain, which gives her “excruciating pain 24 hours a day, seven days a week,” Gilbert said. “She is on an enormous amount of narcotics.”
The plaintiff’s injuries, for which she has had 37 surgeries and pain-blocking procedures, will prevent her from working again.
The plaintiff’s lawyers worked to prove an agency theory between Cellar Door and Gravedigger.
“The challenge in the case was to find a provable theory of liability against Cellar Door,” Gilbert said.
Cellar Door contested liability, denying that Gravedigger was its agent. Gravedigger had admitted liability in the case, and Breit said that the lawyers alleged that the two companies shared a joint enterprise, as ticket revenue was shared between the two companies.
Cellar Door denied that point, and also contested the allegation that they were independently negligent by not properly scouting the geography of the location of the monster truck show.
In a pretrial hearing, the court allowed use of a contract between them, laying out the degree of control by Cellar Door. Right after that company lost at the hearing, settlement negotiations began.
The case was settled the morning of the scheduled trial on Aug. 28, said Breit.
Gravedigger 4×4 Inc. paid $1 million, the extent of its insurance coverage, and Cellar Door paid $4.5 million, for a total of $5.5 million awarded. With interest and the scheduled pay-out over the plaintiff’s lifetime, she will receive $14.2 million.
Gilbert said that the money will take care of the plaintiff for the rest of her life and will “also enable her to go to the best medical centers in the world and try to find cutting-edge research to help her. That was our goal from the beginning. We talked to her at length about not losing hope.”
“I’m pleased,” said Breit about the settlement. “They paid more than they ever wanted to pay. They had substantial risk.”
He attributed the high amount of the settlement to the amount of work put into the case.
“Good settlements come about by preparing for trial…if you prepare your cases for settlement and not trial, you’re not getting the top dollar,” he said. “We were literally in the court room that morning, all set up and ready to go.”
Attorneys for Gravedigger 4×4 Inc. and Cellar Door declined comment.