Settlement: $1,900,000.00        

Case Type: Bicycle, Motor Vehicle - Hit and Run, Motor Vehicle - Driver Fatigue

Case: Thomas M., Susan S. & USAA as Subrogee of Thomas E. M. v. Joseph Martin, Jan B. Warner, Augie's Baked Products Inc. and Modern Italian Bakery of West Babylon, Inc., Augustino Moronese and Augie's Distribution Corp., No. 26620/00

Venue: Suffolk Supreme, NY- Judge: Edward D. Burke- Date: 09-09-2005

PLAINTIFF(S) Attorney: Daniel P. Buttafuoco; Daniel P. Buttafuoco & Associates; Woodbury, NY, for Thomas M. , James S. McCarthy; Daniel P. Buttafuoco & Associates; Woodbury, NY, for Thomas M., Expert: None

DEFENDANT(S) Attorney: Carolyn S. Rankin; Lawrence N. Rogak L.L.C.; Oceanside, NY, for Augie's Baked Products Inc., Modern Italian Bakery of West Babylon Inc. None reported for Joseph Martin, Modern Italian Bakery of West Babylon Inc., Jan B. Warner, Expert: None

Insurer:Liberty Mutual Insurance Co. for Modern Italian Bakery of West  Babylon

Facts: At about 6:30 a.m. on July 6, 2000, plaintiff Thomas M., 55, the founder and owner of a tool-supply company, was bicycling on Sound Avenue, in Suffolk County. He was struck by a bread-delivery truck that as traveling in the same direction. The truck's operator continued driving and was not immediately identified. M. sustained chest, head, lung, neck and spleen injuries. M. sued the truck's driver, Joseph Martin; the truck's registered owner, Jan Warner; the previous owner of Martin's bread-delivery route, Augie's Baked Products Inc.; that company's supplier, Modern Italian Bakery of West Babylon Inc.; and two related entities who were not pursued. M. alleged that Martin was negligent in the operation of his vehicle, that Warner was vicariously liable for Martin's actions and that the remaining defendants were liable because the accident occurred while Martin was acting as their agent.

Counsel for Augie's Baked Products and Modern Italian Bakery of West Babylon moved for pretrial summary judgment of liability. The motion was granted, but M.'s counsel appealed. The appellate division, Second Department, reversed. It found that a jury had to weigh the issues of employment and employer liability. Prior to the trial, M. and Modern Italian Bakery of West Babylon agreed to a settlement. Modern Italian Bakery of West Babylon's insurer agreed to contribute $300,000 from its $1 million policy. The matter proceeded to a trial against the remaining defendants.

Martin conceded that the accident occurred because he fell asleep while driving, but he contended that he was not initially aware that his truck had struck M. He claimed that he did not see M. and that, as such, he erroneously concluded that the truck had struck a sign. Augie's Baked Product's counsel contended that Martin's contract specified that Martin was an independent contractor--not an employee of the company. She noted that Martin's girlfriend, Warner, was the registered owner of Martin's truck, and that the truck's exterior did not bear a logo or a business name. She also contended that Martin paid for his own insurance, gas and tolls, that he had authority to change bread orders and prices, that he had authority to add and subtract customers and that his wages were recorded on a 1099 tax form--not a W-2 form.

Injury: The trial was bifurcated, so damages were not before the court. M. became comatose. He was placed in an ambulance and transported to Stony Brook [N.Y.] University Hospital, where doctors determined that he had sustained a head injury, a traumatic brain injury, a transverse-process fracture of his spine's C6 vertebra, multiple rib fractures and a laceration of his spleen. The rib fractures created a pneumothorax, which is an air or gas buildup that occupies the pleural cavity.

M. underwent a tracheostomy, with implantation of a chest tube. He also underwent dialysis. His coma lasted three months. On Sept. 19, 2000, he was transferred to Moss Rehabilitation Hospital, in Philadelphia.

M. claimed that his pre-accident physical condition was excellent and that he could run a five-minute mile. He contended that he had almost regained full physical functioning, but that he suffers residual brain-function and cognitive deficits. M.'s medical expenses exceeded the limit of his no-fault insurance's coverage. Thus, a $300,000 medical-expenses lien was pending. He sought recovery of the lien amount, his past and future lost wages, and damages for his past and future pain and suffering. His wife, Susan S., presented a loss-of-services claim.

Defense counsel did not contest M.'s injuries.

Verdict Information: The jury rendered a plaintiffs' verdict. It found that Martin was an agent, servant and/or employee of Augie's Baked Products.Prior to the scheduled start of the trial's damages phase, the parties agreed to a $1.9 million settlement. Augie's Baked Products' insurer agreed to contribute the limit of its $1.5 million policy, and the insurer of Martin and Warner agreed to contribute the limit of its $100,000 policy. $300,000 was also paid by the bakery that had products inside Martin's truck.