VERMONT LAWYER

AND TRIAL COURT REPORTER

Couple Injured by Overtired Milk Truck Driver Awarded $1.1 Million

by WILL HUNTER

© 2006 Vermont Lawyer and Trial Court Reporter

BURLINGTON - Randolph and Vidalina Carford were enjoying a vacation to Vermont and New Hampshire in the summer of 2002 in the new motorhome they had purchased. The Norwalk, Connecticut, couple spent one night in Vermont and then drove down 1-93 as far as Tilton, New Hampshire the next day. They parked the motorhome in the rest area and spent the night. The next morning, August 11, just as they were getting on the road again heading south, their world fell apart.

The Carfords had just said their morning prayers when they saw a tractor-trailer truck barreling toward them across the median. They wire convinced that there was nothing that they could do and that they were going to die. When the crash came, it killed the driver of the truck, destroyed the Carfords' motor home, left Vidalina unconscious and Randy with a badly injured leg. The milk truck was owned by Leland Sloan, Sr. of Newport Center, Vermont, and the driver was Doug Gamble, who had left Vermont hours earlier with a load of organic milk he had collected at farms around Vermont and then delivered to the Stoneyfield Farm yogurt plant in Londonderry, New Hampshire. Gamble, who had been driving many hours more than safety regulations allow, had fallen asleep in the truck at several of the farms and while at the plant. He had roused himself for the return trip north to Newport, and at about 8:30 a.m. dozed off again behind the wheel.

Just behind Gamble heading north was an Emergency Medical Technician who stopped and immediately determined that the situation for the Carfords was desperate. He called on his cell phone for a helicopter, but an ambulance arrived moments later. The Carfords were taken to the local hospital; Randy was soon airlifted to Dartmouth Hitchcock, where he underwent a partial amputation of his leg, removing large sections of muscle which could not be saved. Randy was subsequently transferred to Yale New Haven, where he underwent a series of further operations. When the procedures were all over, he was unable to walk without the use of a cane. His doctors do not expect his condition to improve.

New Hampshire State Police officer John Curran conducted an extensive investigation of the accident, discovering significant violations of Motor Vehicle Safety Regulations. Sloan, who had a $1 million liability policy insuring Gamble and himself, had failed to pay for workers' compensation. When Gamble's widow made a claim against Sloan, the employer filed for bankruptcy. The Carfords, through a Connecticut attorney, made a demand for the full million dollar policy, but the insurance company claimed it needed more information to evaluate their damages claims, and the Carfords retained Mike Hanley to file suit in federal court in Vermont. (Although the insurer subsequently offered the policy limit, the Carfords are pursuing a bad faith claim against the company in Connecticut, where such claims are allowed.)

The case against the Gamble Estate and Sloan was tried over four days, going to the jury at 2 p.m. Although jurors had not reached a verdict by suppertime, they indicated that they wanted to continue their deliberations. At midnight, they were finished. They awarded $103,353 in property damages, $218,942.47 for Randy's medical bills and $18,975 for Vidalina's. Each Carford was awarded $175,000 for pain and suffering, $25,000 for loss of enjoyment of life and $10,000 for loss of consortium. A major dispute arose over Randy's lost income claim. The evidence was that he would not be able to continue his landscaping business because of his physical problems, and Hanley called retired professor Gene Laber to testify about his other employment prospects. Using Census Bureau statistics that show that workers have a 50% reduced chance of employment if they walk with a cane, Laber expressed the view that it was likely that Randy would be unable to find employment. The defense countered this with testimony from rehabilitation specialist Greg Laroy and economist Robert Bancroft, who told the jury that the Census Bureau data were unreliable and that Randy had probably been capable all along of earning a living in a job that would not require his physical labor. Judge William Sessions denied the defense motion under Daubert v. Merrell Dow Pharmaceuticals to prevent Laber from offering his opinion about Randy's future employment prospects. In the end, the jury awarded Randy $230,178 for lost future earnings, an amount which represented the present value of his expected after-tax earnings for the rest of his working years.

Under New Hampshire law, which applied since the accident happened there, punitive damages are not allowed, but the jury was asked if the defendant Sloan had engaged in conduct that was "wanton, malicious or oppressive," which Sessions explained included acting with reckless indifference to the rights of others. Since the jury concluded that the defendant had, it could have awarded "enhanced compensatory damages," but it elected not to do so.

The final verdict came to $1,1 11,448. Hanley moved successfully for an award of prejudgment interest (under the New Hampshire rate) and was awarded $82,368, along with costs of $28,000. The insurer contends that it is obligated to pay no more than the $1 million policy limit, and the issue of whether the limit includes interest and costs remains to be decided. As it gets sorted out, Sloan will have to have a new lawyer, since his attorney ,Robert Bent has been named to the Superior Court by Governor James Douglas.

Vermont Trial Court Reporter, Volume X, No. 3, January 31, 2006, pages 5, 10.