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Paramedic blamed overloading in rollover of roll-off truck
Harris County District Court, 113th
leg; chest-bruise; chest-fracture, rib;
other-hematoma; other-laceration; other-spleen, laceration;
Motor Vehicle – Truck, Rollover, Passenger; Transportation – Trucking; Motor Vehicle – Intersection, Multiple Vehicle
Jennifer Kwas v. Lone Star Disposal, L.P., Lone Star Disposal (Texas), L.L.C., Julio Edwin Martinez, and York Risk Services Group, Inc.,
July 23, 2018
Jennifer Kwas (Female, 42 Years),
City of La Porte ,
Julio Edwin Martinez
Sydney I. Meriwether;
The Ammons Law Firm;
Jennifer Kwas ■ A. T. Davila;
The Davila Law Firm;
Julio Edwin Martinez ■ Brittani S. Miller;
Texas Municipal League Intergovernmental Risk Pool;
City of La Porte
City of La Porte,
Julio Edwin Martinez,
Lone Star Disposal L.P.,
York Risk Services Group Inc.,
Lone Star Disposal (Texas) LLC
Ramey, Chandler, Quinn & Zito, P.C.;
Julio Edwin Martinez ■ James D. Smith;
The Smith Law Firm;
Lone Star Disposal L.P., York Risk Services Group Inc., Lone Star Disposal (Texas) LLC ■ Wade R. Quinn;
Ramey, Chandler, Quinn & Zito, P.C.;
Julio Edwin Martinez
Texas Municipal League Intergovernmental Risk Pool for the city of La Porte
Starr Cos. for LoneStar Disposal, LoneStar Disposal (Texas) and Martinez
On Dec. 4, 2015, plaintiff Jennifer Kwas, 42, was a paramedic in the back of a city of La Porte ambulance driven by paramedic Troy Mason, transporting a critically ill patient. They were in Pasadena, heading west on Vista Road at the southbound feeder road of Beltway 8. The intersection was controlled by a stoplight, and the light for westbound traffic on Vista Road was red. Julio Edwin Martinez was driving a roll-off truck south on the feeder road, in the course and scope of his employment with Lone Star Disposal L.P., and it was loaded with concrete debris. Mason entered the intersection on a red light. Martinez, who had a green light, swerved to the right and then to the left. The truck rolled over, causing its load to spill onto the ambulance and roadway. Martinez received a ticket for failing to yield the right of way to an emergency vehicle, but was later found not guilty. Kwas sustained multiple injuries. Kwas filed a claim with Lone Star’s liability insurer, whose third-party administrator was York Risk Services Group Inc. The truck was owned by Lone Star Disposal L.P. and Lone Star Disposal (Texas) LLC. In 2016, Kwas sued the Lone Star entities and Martinez for negligently driving an overloaded vehicle; failing to keep a proper lookout; and failing to yield the right of way. Kwas also sued York Risk Services, but dismissed it early in the case. In 2017, Martinez sued Mason and the city for the paramedic’s negligent failure to operate an emergency vehicle with due regard for the safety of others. Martinez’s case and Kwas’ case were then consolidated. Martinez also asserted claims against Lone Star. All of Martinez’s claims were later nonsuited with prejudice. However, the fact of his lawsuit came into evidence, over Lone Star’s objection. Lone Star filed counterclaims against the city, but those claims, along with Martinez’s claims against the city, were dismissed on the city’s plea to the jurisdiction. The city, by and through Texas Municipal League Intergovernmental Risk Pool, as subrogee, intervened against Martinez and the Lone Star entities, seeking property damage. It also sought to protect its workers’ compensation lien, but nonsuited that claim shortly before trial. The Lone Star entities and Martinez designated the city and Mason as responsible third parties. The case went to trial on only Kwas’ claim and the city’s property damage counterclaim. Kwas and Mason maintained that the ambulance’s flashing lights and siren were activated and Mason had sounded the air horn before entering the intersection. Except for Martinez, all southbound drivers on the feeder stopped to yield to the ambulance, the paramedics claimed. Plaintiff’s counsel noted that the truck was righted, re-loaded and weighed after the accident. The gross weight on the three axles was found to be 3,750 pounds over the legal limit. In addition, the tandem axle weight was found to be 10,600 pounds over the legal limit. Plaintiff’s counsel argued that the truck being overloaded caused Martinez to misjudge the stopping distance and lose control. The plaintiff’s accident reconstruction expert opined that the truck was going 40 mph when it entered the intersection and that the truck’s weight and speed led to the rollover. Martinez denied that the ambulance’s flashing lights and siren were on, and he denied hearing an air horn. The defense further argued that Mason failed to wait until the intersection was clear before proceeding. Alternatively, the defense argued that the view of both drivers was obstructed and that the accident was therefore unavoidable. The defense expert, an accident reconstructionist, agreed that Martinez was going 35 mph to 40 mph when he entered the intersection, but he opined that the weight of the truck was not a factor in the rollover. He also opined that Mason should have seen the truck approaching the intersection. Defense counsel emphasized the fact that the witnesses to the accident gave conflicting accounts of what happened. The defense also argued that photos showed that police directed the truck’s load to be stacked over the tandem axle before weighing.
Kwas was taken by helicopter to an emergency room where she was treated and released within a few hours. She sustained chest contusions, rib fractures, a splenic hematoma, a possible small spleen laceration and a leg laceration. She followed up a few times with her primary care doctor and was able to return to work after about five months. She was fully recovered by then, but said that, because of the accident and injuries, she eventually decided to find another career. For actual damages, she sought past and future physical pain and mental anguish, past and future physical impairment and past loss of earning capacity. She sought $1.3 million to $2 million for those damages. She also sought punitive damages, and the trial was bifurcated for that. The city sought $107,577.97, for the cost of repairing its ambulance and replacing the equipment inside.
The jury found negligence and comparative responsibility of 65 percent on Lone Star and 35 percent on Martinez and found gross negligence by Lone Star, but not Martinez. It did not find that the negligence, if any, of Mason or the city proximately caused the accident. The jury awarded Kwas $1.35 million and the city $107,577.97, for a total of $1,457,577.97.
City of La Porte: $70,395 Personal Injury: cost of vehicle repairs; $37,183 Personal Injury: cost of equipment restoration; Jennifer Kwas: $200,000 Personal Injury: Past Physical Impairment; $250,000 Personal Injury: Punitive Exemplary Damages; $200,000 Personal Injury: past physical pain and mental anguish; $700,000 Personal Injury: future physical pain and mental anguish
Michael L. Landrum
$1,000,000 (by Kwas; insurance coverage’s limit)
6 male/ 6 female; 1 Asian/ 1 black/ 3 Hispanic/ 6 white
The defense filed a motion for judgment notwithstanding the verdict with respect to the award of future damages. The defense plans to file a motion for a new trial arguing several additional points, followed by an appeal.
This report is based on information that was provided by Kwas’ counsel, counsel of the city of La Porte, counsel of Lone Star Disposal and Lone Star Disposal (Texas), and Martinez’s defense counsel. The remaining attorneys were not asked to contribute.