Child hit by car after leaving ice cream truck; ice cream seller said negligent. $21.1 million verdict. Fresno County.

Summary

Ice cream truck vendor said contributorily negligent for girl's catastrophic injury; $1 million policy is opened up.

The Case

Case Name: Moua v. Vardayan, Akers
Court and Case Number: Superior Court of Fresno County / 02 CE CG 03621
Date of Verdict or Judgment: Tuesday, January 09, 2007
Date Action was Filed: Friday, October 11, 2002
Type of Case: Insurance – Bad Faith, Claims Handling, Vehicles - vs. Pedestrian
Judge or Arbitrator(s): Hon. Alan Simpson
Plaintiffs:
Sandy Moua
Defendants:
Karen Vardanyan
Erik Akers
Type of Result: Arbitration Award

The Result

Gross Verdict or Award: $23,295,000
Net Verdict or Award: $21,120,000
Contributory/Comparative Negligence: Mr. Vardanyan: 85%, Mr. Akers: 5%, Minor Sandy Moua: 10%
Economic Damages:
Past medical costs: $195,000

Future medical costs: $6,700,000

Future lost earnings capability: $1,900,000
Non-Economic Damages:
Past pain and suffering: $4,000,000

Future pain and suffering: $10,500,000
Post Trial Motions & Post-Verdict Settlements: Judge Alan Simpson entered judgment in accordance with the award.

The Attorneys

Attorney for the Plaintiff:
Law Office of Otto Haselhoff, PC by Otto L. Haselhoff, Santa Monica.
Attorney for the Defendant:
Wilkins Drolshagen & Czeshinski LLP by Michael Czeshinski, Fresno.

The Experts

Plaintiff’s Medical Expert(s):
Alan M. Birnbaum, M.D.

Kevan Z. Craig, D.O.

Matthew Halsey, M.D.

Rick A. Sarkisian, Ph.D.

Tracy Albee, R.N.
Plaintiff's Technical Expert(s):
Alex J. Balian, retail safety, West Hills.

George Y. Blair, accident investigation, Fresno.

Robert W. Johnson, M.B.A., economics, Los Altos.

Facts and Background

Facts and Background:
On July 26, 2002, plaintiff Sandy Moua, age 6, purchased merchandise from Karen Vardanyan's ice cream truck in Clovis. After Sandy got her ice cream, she ran across the street to return to her home, but she was struck by a van driven by Erik Akers, a minor who had permission to drive the vehicle from his parents, Daniel and Mary Akers.

Upon impact, Sandy flew through the air and struck the ground. Claiming physical damages, Moua, through her guardian ad litem and father Leng Moua, sued the three Akers and Vardanyan for negligence. (Before trial, the Akers defendants settled out for $50,000, the limit of their insurance policy.)
Plaintiff's Contentions:
That defendant Vardanyan was negligent in her sale of ice cream products from her truck. That Vardanyan negligently parked the ice cream truck in an unsafe location, negligently failed to display proper signage warning motorists of children, and negligently constructed and/or modified the ice cream truck.
Defendant's Contentions:
Vardanyan disputed the allegations, contending that Sandy darted out across the street without looking and was therefore at fault for the accident. Defense also argued that Sandy's parents were comparatively liable for failing to watch her and failing to train her to look out before crossing the street. Vardanyan and Akers each blamed each other and filed counter claims against Sandy's parents for implied indemnity and comparative fault.

Injuries and Other Damages

Physical Injuries claimed by Plaintiff:
Sandy sustained a massive brain injury with partial paralysis. At first, she was bed-ridden. Then, she was confined to a wheelchair for mobility. By trial, she could walk for short periods of time with great difficulty, and she still relied on her wheelchair. Moua also had reduced motor skills which made communicating and studying very difficult for her.

Special Damages

Special Damages Claimed - Past Medical: $195,000
Special Damages Claimed - Future Medical: $6,700,000
Special Damages Claimed - Future Lost Earnings: $1,900,000

Additional Notes

Award Details: The parties stipulated to binding arbitration. Arbitrator James R. Gillen apportioned liability as follows: Sandy, 10%; Akers, 5%; and Vardanyan, 85%. Gillen then awarded $23,295,000, reduced to $21,120,000 after apportionment of liability. After the lawsuit was filed, Vardanyan filed for bankruptcy, which imposed an automatic stay of the action. Plaintiff's counsel then moved to lift the stay and allow the case to continue as long as Sandy limited her recovery to the proceeds of Vardanyan's insurance plus any funds recovered due to an assignment of Vardanyan's bad-faith rights against the carrier, which refused to tender its $1 million limit.