Posted on Feb 13, 2008

Cell phone use in car leads to $5.2M payout
International Paper settles suit brought by woman who said she lost her arm because of car accident caused by employee driving too fast and on phone

Talk isn't always cheap, as International Paper Co. learned recently when it agreed to pay $5.2 million to settle a personal injury suit related, at least in part, to one of its employees' use of a cell phone while driving.

According to the complaint, filed in Fulton County Superior Court in 2006, International Paper employee Vanessa C. McGrogan was using her company-supplied cell phone as she drove west on Interstate 16 near Dublin when she rear-ended a vehicle driven by Debra Ford. The collision pushed Ford's vehicle into the ditch on the right side of the road, overturning it so that the driver's side hit and then slid along the roadway—with Ford's arm trapped between the door and the asphalt.

Medical complications eventually forced Ford, a widowed mother of four, to have her arm amputated almost up to the shoulder.

“We have a cell phone statute in Georgia that says the driver is not to do things that are distracting,” said Ford's attorney, Katherine L. McArthur of The Law Firm of Kathy McArthur in Macon. McArthur explained that this essentially means reasonable cell phone use is acceptable within the purview of the statute. The International Paper employee's cell phone use was not reasonable, McArthur continued, because the employee had set her cruise control at 77 miles per hour—in a 70 mph speed zone.

The combination of those two factors, said McArthur, allowed her to raise the issue of intentional negligence on the part of the employee and International Paper and to seek punitive damages.

International Paper raised some affirmative defenses, McArthur said, alleging, among other things, that the loss of her client's arm was caused at least in part by the fact that she was a smoker, and that smoking had damaged her vascular system, thus impairing the healing process. Both Ford's doctor and another medical expert refuted that claim, saying Ford lost her arm because it was crushed in the accident, McArthur said.

Outside counsel for International Paper, C. Michael Evert Jr. and Christopher G. Conley of Evert Weathersby Houff, referred comment to Amy Sawyer, a spokeswoman for International Paper in Memphis, Tenn.

Sawyer, in an e-mail message, said only, “This was an unfortunate accident, which touched off a series of bizarre events that caused Ms. Ford's injuries. Given these circumstances, it was a very unique case.”

After a series of negotiations with a variety of outside counsel for International Paper—the company changed law firms three times, McArthur said—and an attempt at mediation, the parties agreed to settle for $5.2 million in mid-December. The case had been set for trial March 17.

Although International Paper filed a motion for partial summary judgment on the issue of punitive damages, the case settled before Judge Michael D. Johnson had ruled on that issue. “They didn't want to make bad law,” McArthur said of International Paper.

According to McArthur, the company made an early settlement offer of $750,000, and a mediator indicated International Paper would go as high as $2.5 million. McArthur, however, rejected the early settlement offer.

The employee's cell phone use had a “huge impact” on the final settlement amount, according to McArthur. That's true even though the exact timing of the employee's cell phone use was never determined.

International Paper contended that the employee was not actually on the phone at the moment the collision occurred, according to McArthur. The employee testified at deposition that she had used the cell phone just prior to getting on the interstate, and the accident occurred nearly two miles later. A witness, however, testified that he had seen her with the phone to her ear at the time of the collision.

“They were concerned the effect this would have on a jury, to know the driver was on a cell phone,” McArthur said of International Paper.

Juries have not reacted favorably to employers whose employee-drivers caused accidents while using a cell phone, according to McArthur.

In the text of a speech she gave during a Georgia Trial Lawyers Association seminar in Macon last week, McArthur cites several cases where employers had to pay up when their employees were involved in cell phone-related accidents.

In one case, she wrote, Dykes Industries of Little Rock, Ark., lost a $20.9 million personal injury suit in which its employee was using a cell phone when the accident occurred. In another case, the State of Hawaii agreed to pay $2.5 million as its share of liability in an accident involving a state employee who was allegedly talking on her cell phone when she hit a tourist.

Perhaps the classic example for lawyers involves attorney Jane Wagner of Cooley Godward. In 2000, according to McArthur's GTLA speech, Wagner was driving home from work and conducting a business call on her cell phone when she struck and killed a 15-year-old girl in Northern Virginia's Fairfax County. She did not stop her car, later saying she thought she had hit a deer.

According to Washington Post reports, Wagner later pleaded guilty to a hit-and-run and served one year in jail; a jury ordered her to pay more than $2 million in damages to the victim's family. Wagner's firm, Cooley Godward, settled for an undisclosed amount, according to the Post; the plaintiffs had initially sued for $30 million.

McArthur said she has seen studies showing that cell phone use while driving may actually cause drivers to exhibit greater impairments than those who are legally intoxicated. She also cited statistics from Human Factors, the journal of the Human Factors and Ergonomics Society, indicating that cell phone distraction causes 2,600 deaths and 300,000 injuries in the United States each year.

“Even knowing all this, I can't stop myself from talking on the cell phone while I drive, so it has to be made illegal,” said McArthur, whose GTLA presentation included the information that 15 states ban or restrict cell phone use by young drivers, and five states and the District of Columbia ban hand-held cell phone use while driving. She said she believes Georgia, too, eventually will alter its law relating to drivers' cell phone use.

“The driving force behind cell phone laws is not the deaths and injuries,” McArthur said. “It's the settlements and verdicts.”

Associate Editor Janet L. Conley can be reached at [email protected]

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