Thursday, May 15, 2014: Daily Report

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Bar Settles Police Officer Injury Suit for $1M

Drunken driver hit DUI Task Force officer on I-75 after leaving Piedmont Road sports bar
Greg Land, Daily Report
May 15, 2014

may_15_daily

Andrew Goldner said dram shop cases are difficult to prove because they must show the bar knew the patron was intoxicated and would be driving.

An Atlanta police officer who was seriously injured when a drunken driver slammed into his parked patrol car has settled for $1 million his claims against the bar where the driver had been drinking.

Atlanta police officer Osbert Beckles suffered “too many injuries to list” as a result of the January 2013 wreck, said his attorney, Andrew Goldner.

“He’s made an outstanding recovery,” said Goldner, saying his client had a traumatic brain injury, pelvic fracture, ruptured spleen and other injuries. “His drive to get better, to return to the Atlanta police force, is amazing.”

Goldner represented Beckles along with Fried Rogers Goldberg partner Michael Goldberg.

The settlement represents the insurance policy limits for Woof’s Atlanta Sport Bar on Piedmont Road near Lindbergh Drive, said Goldner.

Woof’s attorney, R. Scott Masterson of Lewis Brisbois Bisgaard & Smith, indicated that his client may have been intimidated into settling by the issuance of a so-called Holt demand, named after the Georgia Supreme Court’s 1992 decision in Southern General v. Holt, 262 Ga. 267. That case says a plaintiff can issue a time-limited demand for the limits of an insurance policy; if the insurer declines and the plaintiff is later awarded more at trial, the insurer may be liable for additional damages if it is determined that it acted in bad faith by not protecting the insured’s interests.

“I am not sure that the Beckles case was what [then-Justice Norman] Fletcher had in mind when he penned the Holt opinion,” said Masterson via email.

“Close cases are what the jury system is for and, in my view, anything that deters the use of juries to decide legitimate disputes puts our system of justice in jeopardy,” Masterson added. “The often irrational fear created by Holt demands falls into that category. Though I feel the original intent of Holt has its place in instances when the insurance available is woefully insufficient to cover the loss or harm caused, the expansion and current application of the doctrine might be viewed by some as flying in the face of what my brothers and sisters on the plaintiff’s side claim to value most, access to the court system and justice for all.”

Masterson, who represented Woof’s with firm partner Thomas Grant, said he would have advised his client to go trial “with or without” the demand.

Goldner expressed surprise when apprised of Masterson’s comments.

“We don’t view our demand in this case as beyond the pale by any measure,” Goldner said. “I think Holt demands exist for situations exactly like this, when any rational observer would agree that the value of a case is far in excess of policy limits.”

Beckles’ injuries were catastrophic and ongoing, Goldner said. The officer has accrued about $250,000 in medical bills so far, he said, and “the damages continue to rise.”

Beckles, a member of the Atlanta police’s DUI task force, was parked on the northbound side of Interstate 75 at about 11:30 on a Friday night, monitoring traffic for speeders and suspected drunken drivers, Goldner said, when Scott Eugene Welker left the highway at the Northside Parkway exit ramp.

Welker “apparently fell asleep” en route to his Cobb County home, Goldner said, and crashed his Hyundai Sonata through the guardrail, crossed the gore and plowed into the side of Beckles’ cruiser.

Although Beckles, a seven-year veteran of the force, was catastrophically injured, Welker’s injuries were “apparently not very significant,” Goldner said. “He fled the scene after the wreck, then was apprehended essentially there. There were a number of visible signs that he was highly intoxicated.”

Welker was charged with multiple offenses including DUI, serious injury by vehicle, hit and run, reckless driving and failure to maintain lane, according to Fulton County Superior Court records.

According to a spokesman for District Attorney Paul Howard, Welker’s criminal case is pending. Welker’s attorney in the criminal case, according to court records, is Atlanta solo Robert Chestney; he was not available for comment.

In March 2013, Goldberg and Goldner filed a personal injury suit in Cobb County State Court naming Welker and a John Doe defendant to represent then then-unknown bar.

“We had to await the discovery responses from the defendant to tell us where he had been, because it wasn’t on the police report,” Goldner said.

In June they filed an amended complaint naming Woof’s and its parent company, H.H.S.T. Sporting Group, and accusing the bar of violating Georgia’s dram shop statute.

“Dram shop cases are very difficult,” Goldner said. “You’ve got to prove the bar served a person they knew was intoxicated, and—the more difficult prong—you’ve got to show they knew the patron would be driving.”

“With respect to the first prong, we were able to secure Mr. Welker’s bar receipts as well as the bar’s computer printouts showing how many drinks they had entered for him,” Goldner said. Combined with Welker’s signs of intoxication at the scene and with the results of a blood alcohol test well after the wreck showing a blood alcohol content of 0.15, he said, their expert was prepared to testify that Welker had a BAC of about 0.20 when he hit Beckles.

As to the second prong, Goldner said, information obtained through discovery revealed that Welker had had a prior relationship with the bartender serving him the night of the accident.

“The bartender admitted he knew Mr. Welker lived in Cobb County, and that he would likely be driving home,” he said.

In November, Goldberg and Goldner demanded the $1 million policy limit to Woof’s insurer, State National Insurance Co. The insurer said it wanted more information, Goldner said, and in March the plaintiff’s lawyers submitted a Holt demand to expire at the end of March, and the defendants asked for additional medical examinations for Beckles.

They didn’t bother to send demands to Welker’s auto insurer, USAA, or to Beckles’ underinsured driver carrier, Allstate. Each policy carried a limit of $25,000.

“Given the facts and the injuries, we knew they’d pay when we were ready to accept the limits,” Goldner said.

In March, he said, they submitted a Holt demand to expire at the end of March, and the defendants asked for additional medical examinations for Beckles.

“We agreed to let Beckles be examined, and the end of March we gave them another 10 days,” said Goldner. “That prompted a phone call asking if they could have until the end of April. After the independent medical examinations were completed, they agreed to tender their policy limits.”

In early May, the parties settled for a total of $1,050,000.

The case is Beckles v. Welker, No. 2013A1143-6.

Dog case settlement

Goldner also recently settled another case, this one involving a small boy who was mauled by a bull mastiff while his family was vacationing on Peaks Island, Maine, last year. Although the settlement agreement is confidential, he said, the dog’s owner had a $500,000 insurance policy and “we were not inclined to be flexible.”

The child had about $13,000 in medical bills, he said, and the settlement “bore no relation whatsoever to the medical bills.”

An Alpharetta couple, Kevin and Sharon Carnegie, regularly vacation at Peaks Island with their two children, Goldner said. According to the lawyer and a demand letter he filed in the case, the family was walking along the beach when they encountered Peaks Island resident Carol Fexa walking her dog, Phineas.

When 5-year-old Nate asked whether he could pet the dog, Fexa responded “Sure, he’s friendly,” Goldner said. “Soon after, the bull mastiff lunged at Nate, got most of his face in his mouth and started clamping down on his throat.”

Kevin managed to pry the dog off, he said, leaving Nate with “two substantial bite marks on the right side of his face, and one substantial puncture wound on the left.”

The child was taken by fireboat to a hospital in Portland, where they “addressed the wounds as best they could,” he said. Treatment continued when the family returned to Georgia.

A mutual friend contacted Goldner to ask if he could help the Carnegies with getting Nate’s medical bills paid, he said, and subsequent interviews with Peaks Island residents revealed that Fexa’s dog had attacked another young boy the year before.

“There were at least three and maybe as many as five victims, including the owner herself,” Goldner said.

In both the attack on Nate and in the attack the previous year, Goldner said, “the owner went to great lengths to blame both of the boys, alleging improper conduct by the boys and their parents, who she said weren’t supervising their children.”

“That really angered the Carnegies, because they were just looking to have their medical bills resolved, not looking to make a big claim, but her efforts to blame a 5-year-old boy spurred them to make a claim.”

Fexa ultimately agreed to have the dog euthanized to avoid criminal prosecution, Goldner said.

Nate suffered “substantial facial scarring” and continues to be afraid of dogs in the family’ neighborhood, he said.

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