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Dear Ms. Baldwin:
As you are aware, this firm has been retained to represent Mr. John Doe in his negligence claim against your insured. This letter is being sent to you pursuant to O.C.G.A. §51-12-14 and is in the nature of a demand for purposes of settlement and compromise only. It shall not be admissible for any purpose in the event that we are unable to resolve the case.
Mr. John Doe is a 66-year-old self-employed Commercial Truck Driver who was attempting to pump gas when he fell and suffered a massive acute right shoulder rotator cuff tear that required surgery to repair due to your client’s negligence in not having the grate hole properly marked or the cover tightened. He has incurred $42,975.95 in medical bills and $55,952.33 in lost wages.
On August 5, 2008, at approximately 9:00 a.m., our client, Lowell Craze was walking near Pump #20 when he stepped into a gap between the grates that cover the fuel drainage channel that runs the length of the pumps. The grates are not flush to one another and because the channel is in shadow it is very hard to tell. When his foot went down suddenly, he fell, injuring his right leg and shoulder. There are two other truck drivers that witnessed the incident and are referenced on the incident report.
Mr. Doe was an invitee on your insured’s property and your client is charged with the duty of ordinary care to keep the premises safe. Your manager admitted at the scene that when tractors drive over the grates, the grates slide back and forth and leave gaps. This was a known problem that could easily have been fixed with a new grate section. It is our position that liability is clear and that the only issue to be negotiated in this case is the value of the injury claim.
Following the incident, Mr. Doe was transported by Butts County EMS to the Spalding Regional Medical Center emergency room. Mr. Doe’s injuries were assessed and x-rays of his right shoulder were taken and reviewed. Mr. Doe was diagnosed with a rotator cuff sprain. Mr. Doe was prescribed pain medication, fitted with a sling and discharged with instructions to follow up with an orthopedic specialist or to return if condition worsens.
On August 13, 2008, still in pain and unable to move his right arm, Mr. Doe came under the care of Dr. Mark M. Williams, MD, FACS, an orthopedic specialist. When his first presented himself to the doctor his chief complaints were severe pain on his right side, with the inability to raise his right arm. His injuries were assessed and x-rays were taken again of his right shoulder. Mr. Doe was diagnosed with a right shoulder sprain, severe right shoulder pain, and right shoulder probable rotator cuff and biceps tendon tears. Dr. Williams sent him for an MRI and put a hold on any physical therapy or at-home exercises until the results were in.
On August 14, 2008, Mr. Doe received an MRI of his right shoulder at Gulf Imaging Open MRI. He returned to Dr. William’s office on August 21, 2008, to discuss the results which revealed a massive right shoulder cuff tendon tear. After a discussion over his options for treatment, Mr. Doe agreed to have surgery to repair the damage done to his shoulder as a result of his fall.
On September 08, 2008, Mr. Doe underwent right shoulder arthroscopy with debridement of rotator cuff tendon and labral tears surgery at Northwest Florida Surgery Center. I have enclosed the procedure records for your review.
After the surgery, he returned to the care of Dr. Mark Williams. Mr. Doe began physical therapy on September 22, 2008, and was released on May 29, 2009, after another MRI on March 16, 2009, revealed he was healing well and Dr. Williams felt he had reached MMI. I have enclosed the records for your review.
Despite his many years on the road, Mr. Doe drove tractor-trailers full time and intended on driving until his birthday in 2010. This injury completely disabled him from driving tractor trailers because he can no longer shift the gears. As you can imagine there are not many other companies that would hire a gentleman his age. As a result, Mr. Doe has a significant lost wages claim through October 2010.
At the time of this incident, he was self-employed as a Commercial Truck Driver. I am enclosing his 1099s from 2004, 2005, 2006, 2007 and his commission statement from 2008. You can see that when he lost the use of his arm in 2008, he lost his income for the remainder of the year. At trial, we would be able to demonstrate that he was on track to make $33,000.00 net in the year 2008 instead of the $28,381.00 he made. He has not driven this year at all and will have a lost wages claim of $28,000.00 for 2009 and since he would have worked through October 2010, he has a future lost wages claim of $23,333.33. We are providing his tax returns for the last few years to support this claim.
Since the time of this accident, Mr. Doe continues to suffer from extreme pain and discomfort as a result of her accident and injuries. He has surgical scars on his shoulder. He is unable to use his right arm for continued periods of time due to the swelling and pain he experiences. The quality of Mr. Doe’s life has deteriorated as a result of the accident in question. Mr. Doe still needs assistance with personal grooming; dressing himself and brushing his teeth and hair.
Driving tractor-trailers was a part of Mr. Doe’s identity and that has been taken from him. In the middle of the worst economy in 20 years, he finds himself unemployed and worried about how he will replace his income and this is all directly caused by the fuel station’s failure to repair the grate cover.
TIME LIMITED DEMAND FOR $395,000.00
Based on the foregoing, we hereby present a demand to settle this claim for $395,000.00. This claim could and should be settled. By doing so, we can spare all parties additional legal fees, costs, and delay. A settlement at this time would allow you to protect your insured from any further exposure to their personal income and assets. It is our recommendation that you advise your insured of this offer to settle, and would request that a copy of this letter offering the settlement be forwarded to them.
Please be advised that this settlement demand is conditioned upon an agreement between our office and your company regarding the language of the final release and certified confirmation of coverage.
Enclosed please find all medical records and bills in our possession, which document Mr. Doe’s claim. If you have any questions, please contact my office and speak with me. We look forward to hearing from you within thirty (30) days of your receipt of this letter to discuss settlement prior to our initiation of litigation.
Christopher Simon Attorney at Law