Verdicts & Settlements (Continued)

Insurance Bad Faith, Auto Accident

Winker, et al v. Columbia Mutual Insurance Co: Winkler, et al v Cooley - CV397-62CC

Insurance Company pays $275,000

Plaintiff Winkler made an underinsured motorist claim against Columbia Mutual Insurance Company after her husband died in an accident with a driver who had only $25,000.00 in coverage.

Columbia Mutual had issued a policy to a corporation for which her husband was a shareholder, officer and employee. The terms of the policy provided auto liability coverage for non-owned vehicles, but the UM and UIM coverage was issued on owned vehicles. The corporation did not own any vehicles, and Winkler’s husband was killed driving his own vehicle engaged in the corporation’s business.

Winkler claimed that while there was no coverage under the terms of the policy, the policy should be reformed or was ambiguous. The claim centered on whether or not the insurance company intended to cover owned or non-owned auto risks as well as the request for insurance by the insured. The suit was settled for $400,000 the day before trial.

Winkler then sued the independent agent who sold the policy to the corporation for breach of fiduciary duty. She alleged that the agent placed the wrong policy and/or failed to understand the needs and requests for insurance made by the corporation. The claim was settled for $275,000.

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Insurance Bad Faith and Wrongful Death Injury

In Re: An Insurance Company. A 43 year old man died in a tree trimming accident when the lift bucket of a boom truck from which he was working separated from the pivot shaft and dropped him 30 feet causing injuries which resulted in his death. A pin was necessary to keep the bucket on the shaft and upon investigation the pin was missing.

The decedent was an independent contractor who provided labor to the tree trimming company. The tree trimming company provided the jobs and the equipment and the decedent performed the labor.

Plaintiff’s mother and two children made demand upon the insurance company that insured the tree trimming company for liability and were advised there was no coverage because they claimed the boom truck was an automobile, and therefore excluded under the policy. The tree trimming company had $100,000.00 of liability coverage.

Plaintiffs’ filed suit against the tree trimming company and obtained a Six Million Dollar judgment and then filed suit against the tree trimming company’s insurance carrier claiming bad faith for wrongfully interpreting the policy language and exposing the tree trimming company to the Six Million Dollar judgment.

The case settled with the insurance company for $2.1 Million.

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Insurance Bad Faith

Standard Security Life Insurance Company of New York v. West, in the United States Court of Appeals, 8th Circuit. In November 1998, University of Missouri football player Devin West purchased an insurance policy from Standard Security Life Insurance Company covering permanent total disability in the event he suffered an injury or sickness that prevented him from playing professional football. West was a standout player who was anticipated to go high in the draft and was being scouted by the St. Louis Rams. During play West sustained an injury that prevented him from becoming a professional football player and he made a claim under the disability policy. West filed suit against the insurance company in Missouri State Court claiming breach of insurance contract and vexatious refusal to pay. The insurance company filed suit in the Federal District Court seeking to compel West to arbitrate, effectively depriving him of his right to a jury trial. Plaintiff’s fought the insurance company’s motion to compel arbitration arguing that Missouri’s Arbitration Act rendered the insurance policy’s arbitration clause unenforceable. Section 435.350 RSMo. of the Missouri act states that an arbitration, “provision in a written contract, except contracts of insurance and contracts of adhesions… is valid, enforceable and revocable.” West argued that the Federal Arbitration Act did not pre-empt Missouri statute because of inverse pre-emption under the McCarran Ferguson Act. West prevailed in the district court, and the insurance company appealed to the 8th Circuit Court of Appeals. West also prevailed in the 8th Circuit and the arbitration was struck down. The case was then scheduled to be set for trial. Thereafter the insurance company agreed to settle the dispute by paying West a confidential six figure sum.

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Improper Insurance Coverage Denial Results In $1,280,000.00 Recovery For 65 Year Old With Broken Wrist And Lost Business Profits

Chris Faiella, represented a 65 year old gentlemen was injured in an auto collision in May of 2000. He sustained a broken wrist that required a wrist replacement due to a pre-existing scapholunate advanced collapse injury that was exacerbated by the fracture. He had his own dent less repair business, and as a result of the wrist replacement was unable to work at his occupation.

The plaintiff filed suit against the tortfeasor, a veterinarian who operated her own business as a Missouri Limited Liability Company and was in the scope and course of her business at the time of the crash. Her primary auto insurer defended the claim, but her business insurer denied a defense and indemnity based upon exclusions for executive officers, and leased, hired or borrowed vehicles. The business policy was a hybrid commercial package policy with non-owned auto coverage only. The auto coverage excluded autos owned by employees and executive officers. The tortfeasor had been operating a vehicle owned by her and her husband personally, but regularly used in her business.

In May of 2005 the plaintiff obtained a judgment against the tortfeasor and her business in the amount of $1,500,000.00. Then the plaintiff sued XYZ Insurance Company seeking coverage under the policy. Plaintiff argued that a Missouri LLC managing member was not an employee of the business and did not fall within the meaning of the executive officer exclusion because corporations have executive officer, but LLC's have members and managing members. Plaintiff relied on industry literature from the International Risk Management Institute and the Fire & Casualty Insurance & Surety Bulletin which supported plaintiff interpretation of the executive officer exclusion. The plaintiff also argued that the vehicle owned by the tortfeasor and used in the business was not a leased, hired or borrowed vehicle because the only auto coverage provided was for non-owned autos used in the business of the insured. The named insured on the policy was the veterinary business, not the veterinarian. The case settled in early 2007 several weeks before trial for $1,250,000.00. The plaintiff also collected $30,000 from the primary carrier. The insurance company requested confidentiality concerning their name.

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Dangerous Product Resulting in Brain Injury

Johnson v. General Motors and Davis

Plaintiffs sued General Motors because of defective seat belts

Johnson, age 5, sustained a serious closed head injury from a head on motor vehicle accident on February 22, 1996. Johnson was wearing the lap and shoulder passive restraint provided for the front passenger seat in the 1992 Chevrolet Lumina being driven by his father Mr. Johnson when it was struck by a 1985 Ford Escort being driven by Mr. Davis. The passive lap and shoulder belt provided in the Chevy Lumina permitted Johnson to move forward excessively so that he was able to strike his head on the instrument panel and thereby receiving his brain damage. Mr. Johnson, who was also wearing the automatic lap and shoulder belt, received a dislocated hip from which he has fully recovered. Mr. Davis, who was completely unrestrained during the accident, also received a dislocated hip from which he has completely recovered.

Plaintiffs sued General Motors on the theories of strict liability, negligence and failure to warn. Through evidence developed by plaintiffs during discovery it was determined that General Motors was aware that the particular restraint system in the Chevy Lumina (“W” car) did not adequately restrain small occupants. General Motors engineers had suggested a number of changes for the 1992 Chevy Lumina, none of which were implemented. Medical expenses at the time of settlement were $220,629.84. Case settled for a confidential amount on February 11, 2000 three days before trial.

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Dangerous Product Resulting in Wrongful Death

The family of Joplin man who died from carbon monoxide poisoning sued the manufacturer of the generator.

John Harris was a guest of Randolph and Lois Anderson on their 40 foot yacht at the Lake of the Ozarks on May 31, 1999. On Memorial Day, John Harris along with the owners of the boat and another passenger, Robert Stein, died of carbon monoxide inhalation.

Harris owned a construction business and was a resident of Joplin.

Missouri Law Enforcement initially treated the accident as a homicide but quickly determined the deaths resulted from a failed exhaust component of an onboard Kohler gas powered generator. The wife and mother of John Harris brought suit against the generator manufacturer, Kohler Company, the boat manufacturer, the boat’s owners, the boat surveyor and the mechanics who performed work on the boat months before the four deaths.

As part of the normal operation of the generator, carbon monoxide gas is produced and must be safely exhausted from the boat. If it failed carbon monoxide would be injected into the cabin vessel where people could be poisoned. Carbon monoxide is odorless, colorless, tasteless and deadly. Our investigation uncovered facts that showed the failure rate on this part was as high as 23%. This is a staggering number, considering the pipe was never supposed to fail. Despite a high failure rate and four other deaths, Kohler refused to recall the product until recently.

Evidence showed that Kohler had originally selected metal that would last the lifetime of the part, but then, chose to use a less expensive material that is subject to corrosion, break down and failure. Kohler switched to stainless steel in 1998, but continued to sell the destructive part for another ten years. Kohler also never published the availability of the redesigned part until 1998.

We obtained a settlement for our clients in the amount of $6.2 million dollars.

Kohler has issued a world wide recall of the defective part and all generators that contain the defective part and will pay for the part, labor and all associated expenses. Kohler has agreed to publish the recall in appropriate media, through its dealer and distribution network and inform boat manufacturers who utilize the effected generators on their yachts. Kohler also agreed to inform the United States Coast Guard.

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Dangerous Product Resulting in Injury

Thudium v. Allied Products, et al. Plaintiff was 16 years old when he was helping his father prepare to load grain utilizing what is known in the farming community as a portable grain auger.

The handle used to crank the 60 foot grain auger up and down had broken off and the young man was walking underneath the grain auger attempting to find the handle while the father utilized a wrench to raise the auger. The auger fell striking the 16 year old on the back and head resulting in a severe fracture to the young man’s ankle.

Plaintiff claimed that the winch failed due to improper design and the failure to comply with applicable engineering standards concerning the raising and lowering of farm implements by mechanical means

Plaintiff sued Kewanee Company which manufactured the portable grain auger and Kewanee filed a third party action against Fulton Winch which manufactured the mechanical winch that plaintiff claimed had failed.

The case was tried to a jury in Federal Court in St. Louis and the jury returned a verdict in favor of plaintiff and against Kewanee in the sum of $175,000.00 and a verdict for Kewanee and against Fulton Winch in the same amount.

The case was appealed by defendants to the 8th Circuit and the 8th Circuit upheld plaintiff’s verdict.

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Auto Accident and Dangerous Product Resulting in Wrongful Death: Stapleton vs. Mazda

Stapleton v. Mazda. Plaintiffs, a young husband and wife and their three children were rushing to the hospital as a result of the wife having severely cut her arm, when she actually ran her arm through the storm door of their home. On the way to the hospital, Mr. Stapleton lost control of his vehicle resulting in the vehicle rolling several times resulting in the death of Mr. Stapleton, his wife and one of their minor children. Plaintiffs’ investigation showed that the seatbelt on the Mazda had failed. Part of the seatbelt mechanism was located through the Plaintiffs’ investigation and was lying in a roadway ditch.

The case was settled prior to trial for a confidential 7 figure amount acceptable to both parties.

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Auto Accident and Dangerous Product Resulting in Wrongful Death: Hardwick vs. Silverado Muffler and Tire and Chrysler Corporation

Hardwick v. Silverado Muffler and Tire and Chrysler Corporation. Suit was brought against a motor vehicle safety inspection station and a manufacturer after Plaintiff’s wife and his unborn child were killed in a roll over accident of a Jeep CJ7 in 1994. The car was purchased from a used car dealer who inspected the vehicle and passed the vehicle as appropriately safe for the roadway. That model year of Jeep had been equipped with the lap/shoulder belt combination, but at the time of inspection there was only a lap belt. In addition, there was a large ring on the Jeep roll bar where the shoulder belt would normally have been. Plaintiff’s also brought claims against the auto manufacturer regarding the failure of the roll bar assembly and the vehicle’s instability.

Prior to trial Chrysler settled for a confidential amount. The case went to trial against the remaining Defendant on theories of negligence regarding the dealers’ inspection and passing of the vehicle despite lacking a shoulder belt. The jury returned a verdict on the death of the wife for $1.1 Million and an award of $468,000.00 for Plaintiff’s unborn child. After an apportionment of fault against the deceased wife, the total verdict for Plaintiff was $820,000.00.

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Nursing Home Neglect Resulting in Wrongful Death: Decubitus Ulcers

Wrongful death by complications from severe decubitus ulcers

The adult son of the deceased filed suit against the nursing home and its affiliated companies for the wrongful death of Delbert E. Fisher. The plaintiff claimed that inadequate staffing, failure to accurately chart Mr. Fisher’s condition, and improper care and treatment caused the development and progressive worsening of multiple decubitus ulcers resulting in bilateral amputations of his father’s legs above the knees and his eventual death. Plaintiff further asserted that the actions fell below the accepted standard of care and were not within the standards of nursing practice and long term regulatory standards. The defendants asserted that Mr. Fisher’s pre-existing health problems including diabetes, stroke and poor circulation caused the ulcerations and were unavoidable.

Mr. Fisher was admitted as a patient to the nursing home on August 21, 2000. At the time of admission, Mr. Fisher was free of decubitus ulcers but developed multiple ulcers on his lower extremities as well on his sacral area and hip within a short period of time. The ulcers progressed to advanced stages, becoming infected and gangrenous. On January 11, 2001, he was admitted to the hospital for amputation of both legs above the knees. Mr. Fisher died on October 25, 2001.

Plaintiff’s attorneys took over 40 depositions of nursing staff. Numerous employees admitted that understaffing was a problem and that it adversely affected the quality of care. The nursing home administrator admitted that inadequate turning contributed to deceased’s decubitus ulcers.

The parties reached an agreement to settle the wrongful death claim for a confidential amount.

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Nursing Home Abuse Resulting in Wrongful Death: Bowel Infection

Sutton, et al v. North Village Park, LLC, in the Circuit Court of Randolph County, Missouri, Case No. CV300-367CC. Plaintiff Lee Cowen Sutton died while he was a resident at the defendant’s nursing home facility in April of 2000. Plaintiffs brought a medical malpractice suit against the nursing home for neglect. Plaintiff’s investigation showed that Mr. Sutton suffered from necrosis of the bowel and he eventually died of systemic sepsis infection. Plaintiff’s developed evidence which showed that the institution and nurses who cared for Mr. Sutton failed to conduct appropriate physical assessments, failed to adequately document Mr. Sutton’s intake and output as well as his bowel movements. As a result of a failure to intervene when Mr. Sutton’s bowel movements became irregular and ultimately impacted, Mr. Sutton suffered a ruptured bowel and necrosis of the bowel. Plaintiff’s also brought claims indicated negligence had occurred because of lack of staffing and failure to comply with the applicable regulations relating to notification of physician, requirements to intervene on behalf of patient when they need care, failure to adequately assess a patient.

The case was settled for a confidential six figure amount.

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Nursing Home Neglect Resulting in Wrongful Death: Medication Errors

Evras v. St. John’s Mercy Health and Scenic View Skilled Care, in the Circuit Court of the City of St. Louis, Missouri, Case No. 022-0359. Plaintiff was the representative of the surviving family of Ms. Evras who was a resident of Defendant’s nursing home in also received medical services from the hospital and its skilled nursing facility. At the time of her death she was 82 years of age. Ms. Evras was diagnosed with cellulites and abscess of a leg. During her stay at Defendant’s institution she was placed on various courses of antibiotic treatments including Clindamycin, Ancef and Vancomycin. Plaintiff’s investigation indicated that some of the medications were inappropriate, and were contraindicated giving past allergy histories of Ms. Evras and participated in her contracting Steven Johnson Syndrome. As a result of the syndrome Ms. Evras suffered pain and anguish and ultimately expired from a condition which caused blistering and welting of her skin on or about the majority of her body.

The case settled prior to trial for a confidential amount acceptable to both parties.

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Nursing Home Neglect Resulting in Wrongful Death: Failure to Monitor

Farrar v. Reliant Care Group, LLC, et al, in the Circuit Court of Randolph County, Missouri, Case No. 03CV177688. Plaintiff Georgia Farrar was the surviving adoptive mother of Ronnie Farrar who died while he was a resident of a nursing home managed by Defendant and operated by its affiliate. Plaintiff’s investigation indicated that Farrar was put on a mechanical soft diet due to his health condition. That as a result of lack of care and negligence in supervising the staff and failing to have adequate staff, Farrar was given access to solid foods. Farrar as a result of his medical condition did not understand or appreciate the necessity for consuming mechanically soft foods and consumed a hot dog. Farrar later aspirated the hot dog. Plaintiff’s alleged that there was a delay in appropriate treatment and transfer. Farrar was eventually transferred to the emergency room in a local hospital. Despite heroic efforts Farrar died of asphyxiation later the same day. Plaintiff brought a claim as a result of the negligence of the nursing home and its management company.

The case settled prior to trial for a confidential six figure amount.

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Nursing Home Neglect Resulting in Multiple Fractures

Arnold v. A Nursing Home. Suit was brought by the daughter of a resident of a nursing home when her father fell and suffered a fractured hip. Investigation showed that the nursing home had failed to monitor the activities of their patient. In addition, they had failed to properly classify him as a fall risk and implement appropriate safe guards to prevent him from injuring himself. As a result of the fall the patient suffered a fracture of the left intertorochanteric fracture of the left proximal femur, a closed displaced intertorochanteric fracture of the right proximal femur and underwent surgery to correct these conditions.

The defense claimed that the fractures were either pre-existing, or as a result of osteopenia. Analysis of the fractures and expert testimony were used to demonstrate the fractures were traumatic in nature. The case settled before trial for a confidential six figure sum.

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Nursing Home Neglect Resulting in Wrongful Death: Fall

Holtman v. SSM Healthcare of St. Louis and Rosewood Home Health Services, Inc., in the Circuit Court of the City of St. Louis, Case No. 022-058. Plaintiffs were the surviving family of Arthur F. Holtman who was a resident at Defendant’s nursing home, and also received care at Defendants hospital. Holtman was improperly transferred and as a result fell and suffered a fracture of the neck. Plaintiff’s investigation indicated that Holtman’s fall was due to failure to use a gait belt by the staff of the nursing home. After being transferred to the hospital for care, Holtman was determined not to be a surgical candidate due to his age and other medical complications. Holtman was put in a neck brace, however, the neck brace was ill fitting and its use was not consistent with good practice. As a result of the ill fitting neck brace Holtman developed decubitus ulcers on his chin and back of his neck. As a result of the decubitus ulcers which advanced from Stage 1 through Stage 4, he developed putrid smelling ulcers, and eventually developed systemic sepsis and died of a related infection.

Plaintiffs brought claims against Defendant nursing home and hospital who were involved in the treatment of Holtman for medical malpractice arising out of the treatment provided to Holtman concerning both the fall and care thereafter.

The case was settled for a confidential sum acceptable to all parties.

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Will Contests

F.E. Scott, Personal Representative of the Estate of Rovene Witt. Decedent was the elderly widow of a long time small town dentist. The couple had no children and had amassed a modest fortune.

Decedent executed a will some months prior to her death and benefited three local churches with the residue going to a long time family friend who provided care and assistance to her on a daily basis during the waning years of her life.

Upon her death the will was admitted to probate. A will contest was filed by two nieces who claimed that the decedent lacked testamentary capacity when she executed the will. The decedent was a resident in a nursing facility at the time she executed the will.

After extensive discovery and deposition of the two nieces who were contesting the will, the case mediated and resulted in payment of a nominal sum to each niece. The bequests to the church were upheld and the family friend received the balance of the estate which was approximately $800,000.00.

Biere v. Rector. Decedent , while very near death, executed trust amendments which substantially changed and frustrated a long standing estate plan that he and his late wife had established that provided for their two sons and two grandchildren.

This law firm represented the trustee (granddaughter) of the long standing estate plan, who upon learning of the activity immediately surrounding her grandfather’s death filed suit in Macon County Circuit Court and sought injunctive relief to prevent withdrawals and transfers for several bank deposits held in several banks and sought enforcement of the last prevailing trust documents based upon the lack of testamentary capacity of decedent at the time he executed the trust amendments and other documents.

At the deposition of the defendants, the defendants withdrew their claim and the original trust was re-established and validated. The granddaughter is and continues to be trustee of that trust. The amount in controversy was in the high six figures.

Halley v Halley . Decedent was in her 80’s, was widowed and had no children.

Throughout a frugal working lifetime, decedent had amassed a total estate in the high six figures which she had distributed among various nieces and nephews by blood and by marriage by placing various names jointly on certificates of deposit.

Upon her death, a nephew filed an accounting action claiming that a prior will should govern and that he had received a disproportionate amount of the jointly held assets. He also claimed that decedent lacked the necessary capacity at the time she established the various jointly held accounts and that this firm’s client had manipulated the establishment of these accounts by undue influence. After substantial discovery a nominal amount was paid to plaintiff resulting in this firm’s client receiving a total settlement in the mid six figures.

The Estate of Norbert Clavin. Norbert Clavin had never married and had no children. He had acquired substantial land holdings in Chariton County, Missouri. He had executed a will several years prior to his death. The will left all of his estate to St. Columban’s Foreign Mission Society which was an Order of the Catholic Church.

Decedent’s two nephews filed a will contest claiming that decedent lacked testamentary capacity at the time he executed the will and cited the fact that decedent had been treated in a “dry out” facility some 26 times over the last 20 years of his life.

This firm represented St. Columban’s Foreign Mission Society and was able to prove that decedent managed his business affairs, borrowed money, bought and sold cattle and at the time he executed the will had the necessary testamentary capacity in spite of his occasional bouts with alcohol.

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Explosion Resulting in Wrongful Death

Littrell v. MFA Oil Company, in the Circuit Court of Jackson County, Missouri, at Kansas City, Case No. 99CV218684. On February 1, 1999, Clara Jo Littrell was sleeping in her home. At approximately 10:30 p.m. at night her house exploded and was engulfed in flames. The explosion was a result of leaks in an LP gas system that was the fuel source for the furnace in the residence. Plaintiff’s family sued the supply and deliver company, MFA Oil for carelessness, recklessness and negligence because the gas system was not properly maintained and was in a defective and unsafe condition. Holes in the gas system which had developed over time allowed gas to escape and leak into crawl spaces of the house and during normal cycling of the furnace, gases built up and the furnace kicked on as the temperature dropped and ignited the gas from an electrical spark. The home exploded killing Mrs. Littrell.

The case was settled under a confidentiality agreement between the family of Mrs. Littrell and MFA Oil Company for a confidential sum acceptable to both parties.

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Explosion Resulting in Severe Burns

In Re: Thomas Hill Power Plant Cases. Plaintiffs’ were three men who worked at the Thomas Hill Power Plant who were severely burned when a giant oil cooled circuit breaker refused to open and close the main circuitry for the outgoing lines for the Thomas Hill Power Plant. As a result of the defect there was an explosion while three men were in the yard for maintenance purposes and the explosion hurled burning oil over the men. The men were hospitalized for an extended period of time as a result of the burns and underwent extensive medical care. Suit was filed against the maintenance company who neglected to open the compressed airline all the way which resulted in the circuit breaker only going partially closed instead of closed all the way as designed and therefore it caused arcing and ultimate explosion injuring the Plaintiffs.

The Plaintiffs received a confidential seven figure settlement.

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Wrongful Death Involving Electrocution

Twenter v. Potterfield, et al, in the Circuit Court of Boone County, Missouri, Case No. 97CC070546. A boy was electrocuted while swimming in a pond. A deep water pump created an electrical field. Plaintiffs were the parents of an 11 year old boy who was electrocuted while swimming in a pond. They sued the land owner and electrical contractor who had put a pump in the pond. The accident happened in July when Matthew Twenter and a friend were fishing in the land owners’ lake with the land owners’ permission. Matt snagged his fishing lure on a float tire and swam to the tire to unsnag the lure. When he reached the tire he was electrocuted which resulted in his death. Plaintiffs claim that the boy was killed when he swam into a lethal electrical field created by the water pump that was suspended from the tire. Plaintiffs’ investigation showed that the pump was a deep water pump that should not have been installed in the pond whether it was fishing or swimming. It also indicated that the electrical field was caused by a combination of poor installation work and lightening damage. The Plaintiffs’ investigation showed the contractor was negligent in allowing the repair work to be done by an apprentice without the supervision or a journeyman electrician. The electrician also claimed that he had notified the land owner that the pump created a dangerous condition.

The case settled prior to trial for a settlement of $800,000.00.

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Commercial Litigation

Atencio, et al v. Southwestern Bell Wireless, et al, in the Circuit Court of Boone County, Missouri, Case No.: 99CV164429. Plaintiff brought claims for breach of contract under the Missouri Merchandizing Fair Practices Act. The case was settled with the class receiving compensation in excess of $1.2 Million. Defendants also paid costs and Plaintiffs’ counsel’s attorneys’ fees.

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Disclaimer: Past results afford no guarantee of future results and every case is different and must be judged on its own merits.