Sample Demand Letter

David Monroe
Allstate Insurance
PO Box 3001
Baltimore, Maryland 21201

Re:   Dominique Alverez
Your Insured:  Ludwig Trucking
Date of Loss:  January 2, 2011
Claim No.:  2011-96934

Dear Mr. Monroe:

You have asked me to prepare a demand in this case in an effort to resolve this wrongful death truck accident case. Plaintiff’s demand in this case is $3.37 million.

FACTS

Let’s me first run thought the facts of the case. On January 4, 2011, Allen Alverez, Sr. was killed when James Transfer/Trucking employee/driver George Boise pulled a box trailer away from the Boise loading dock while Allen Alverez was loading pallets of sugar into the box trailer with his forklift truck. The forklift actually fell off of the back of the box trailer while Allen Alverez was backing out of the trailer. The forklift became suspended four feet off of the ground in the air for some period of time as it was caught between the end of the box trailer and the loading dock plate – then it fell to the ground crushing Allen Alverez to death. Allen Alverez either fell or jumped off of the forklift while it was suspended in the air and landed underneath of the forklift just seconds before it came down on top of his head. The Baltimore City crime scene photos depicting the aftermath are rather brutal.  (Mr. Alverez’s brain matter can be seen splattered on the ground.)

The State of Maryland conducted an investigation into Allen Alverez’s death. Its report (several hundred pages in length).  That report and the discovery that followed in this case lead to the following facts:

  1. George Boise hooked up to and pulled the wrong trailer from the loading dock.  The trailer that Mr Boise was supposed to have moved was already loaded and sitting in an area adjacent to the loading dock known as the “gravel lot.”
  2. Mr. Boise did  not compare his paper work that was handed to him by the Boise shipping clerk with the number on the trailer he was about to move. If he had looked at the paperwork, he would have seen that the number of the trailer on the paper work did not match the number of the trailer he was hooking up to.  Boise claims, however, that the shipping clerk told him to pull the trailer from dock number 6. The shipping clerk at his deposition denied this statement and testified that he told Boise that the trailer was the one that was sitting on the gravel lot. The shipping clerk foreman who was present at the time in the same office also testified at his deposition that he heard the shipping clerk specifically tell Boise that the trailer was on the gravel lot.
  3. Mr. Boise did not walk down the loading dock to bay number 6 to ascertain if, in fact, the trailer was fully loaded. This is the act of negligence that proximately caused Allen Alverez’s death. Under the Federal Motor Carrier Safety Act Boise is charged with this duty and he failed to fulfill this duty. We have an expert in the field of trucking that will opine that the proximate case of Mr. Alverez’s death was the failure of Mr. Boise to follow the mandated safety procedures.
  4. Mr. Boise denied that he had any obligation to inspect the trailer and denied he even had access to the loading dock to inspect the trailers.  In his Answers to Interrogatories, Mr. Boise stated that he was NOT permitted to go onto the loading dock. All of these statements are false. The Boise employees all confirmed that in the past Mr. Boise had walked onto the loading dock to check on the trailers and that the drivers have to sweep out the trailers and make sure they are free of debris before the sugar is loaded into them.  Boise even provides a broom and trash can that is kept on the loading dock for this purpose.
  5. The contract between James Transfer, Inc. and Boise requires that James employees check, and if necessary, block the cargo before moving the trailers. Mr. Boise testified at his deposition that he never received any specific instructions regarding his duties at the Boise plant from anyone at James.
  6. Mr. Boise testified at his deposition that on occasion he has requested Boise employees escort him down onto the loading dock to check his loads before he moves the trailers.

Ultimately, I think we all know what happened here. George Boise simply pulled the wrong trailer from the loading dock while it was still being loaded by Mr. Alverez.  He failed to check the load before he pulled the trailer away from the loading dock.  If he had either compared the trailer number on his paper work to the trailer he was about to hook-up to or had simply walked down the loading dock, or at minimum looked down the loading dock, the death of Allen Alverez could have been avoided.  Due to the placement of trailers in the bays to either side of bay 6, neither Mr. Alverez nor Mr. Boise could have seen each other while one was on the loading dock and the other was on the outside ground area. All Mr. Boise had to do was to walk 100 feet and look in the trailer to ascertain the trailer was still being loaded.  At the time of the incident that trailer had 6 pallets of sugar loaded inside.

Nothwithstanding Mr. Boise’s and James Trucking’s arguments, this case is a lock on primary negligence. If you meaningfuly dispute this premise, we should call off the mediation.

As you know, there is adequate coverage in the case. There are two insurance policies we have agreed cover this loss: a $2 million primary insurance policy and a $10 million excces policy.

THE ISSUE OF CONTRIBUTORY NEGLIGENCE

While I don’t think you have a good faith arguement on primary negligence, your claim that Mr. Alverez is contributorily negligent will likely make it to the jury. Liability will not be hard in this case. Mr. Boise’s sole defense is that Mr. Alverez failed to “lock out” the trailer’s air lines while he was loading it with sugar. If the “lock out “device had been used, it would have been impossible for Mr. Boise to hook-up to and move the trailer.

Discovery had shown this is an argument is, at least in my opinion, fatally flawed. We learned through discovery and the MOSHA report that:

  1. Defendant’s only evidence is a written policy that, according to everyone, including Boise, was never followed that forklift operators should “lock out” the trailers that they were loading.  In fact, Mr. Boise testified that he never saw anyone at Boise use a “lock out” device while he was working at the plant.
  2. The policy was not effectively communicated to Mr. Alverez’s co-workers as one co-worker testified during his deposition that he was unaware of the policy and had never used the “lock out” device. The MOSHA investigator notes that during an open discussion with Boise workers, the workers informed him that it was simply too dangerous for them to leave the loading dock area and walk on the road to install the lock out devices for fear of being run over by the trailer jockeys.
  3. James’s entire defense is based upon a written policy that was not being implemented at the time of the incident. Boise’s decision to move the trailer was not based upon the absence of the “lock out” device.

DAMAGES

A. Economic Loss

I do not think there is much dispute about the economic loss. Mr. Alverez was earning approximately $140,000.00 per year at the time of his death. The economic loss including loss of household services when reduced to present value is estimated at $1,858,000.00.  James does not have any expert to counter this figure.   The only person entitled to claim the economic losses are Mr. Alverez’s spouse, Megan Alverez, who was solely dependent upon her husband for financial support at the time of his death, and his youngest daughter. Mandy Morki (the only child born of the marriage of Megan and Allen Alverez) who resided with her mom and dad at the time of her dad’s death and was also solely dependent upon her father for financial support.  Jennifer was single at the time of her father’s death and has since married but she and her new husband are living with Megan Alverez as they cannot survive financially on their own. We represent Megan Alverez and Jennifer Ignatowski. The other four step children had left the family home years ago and were not dependent upon their father for any financial support.

B. The Survival Action Brought by the Estate

There is no evidence to support a claim for conscious pain and suffering; however, there is evidence to support a claim for pre-impact fright.   I think this claim has real jury appeal. This is the only claim Mr. Alverez has in his own right and that resonates with a jury.   If we win, and ask for damages, I think the likelihood is that the jury throws in the baby with the bath water (or something like that).

C. The Wrongful Death Damages

We are claiming damages under the wrongful death statute for both Megan Alverez and Jennifer Ignatowski. Obviously on the non-economic damages, this is clearly a cap and a half case. Normally, I will point to the fact that this case is pending in Baltimore City. But this is going to be a cap case in any county in Maryland. We have a great decedent and absolutely wonderful people as plaintiffs.

THE WORKER’S COMPENSATION LIEN

This lien could make settlement of this case more complicated.  Ms. Alverez was awarded death benefits by the Workers’ Compensation Commission. She was granted an award of compensation and will be paid the sum of $906.00 per week for the rest of her life as long as she does not remarry. Megan began receiving this compensation on February 5, 2009, and now has a lien totaling approximately $94,000.00, against any further recovery she may be entitled to.  I have invited the workers’ compensation carrier’s lawyer, Steven K. Short, to attend the mediation.  The compensation carrier should only have a lien on the amount of the economic damages paid to Megan Alverez and NOT the amount of non-economic damages

I look forward to seeing you at the mediation.

Sincerely,

 

Ronald V. Miller, Jr.

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