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$500,000 Policy Limits Settlement in Personal Injury Against Co-Employee (“Something More” Case)

After normal business hours on August 29, 2002, Richard Patterson returned to his place of employment at Jim Robertson Chevrolet, Inc. (“Jim Robertson”), an automobile dealership in Kirksville, Missouri to do some evening work. A co-employee, Steven Hagner, was at Jim Robertson performing internet promotional work. While at Jim Robertson, Richard suffered an episode of acute hypoglycemia as a result of his Type 1 insulin-dependent diabetes. Hagner found Richard lying on the ground behind his vehicle outside the dealership showroom, in an incoherent state. Hagner picked Richard up off of the pavement, placed him in the driver’s seat of his vehicle, put the vehicle’s key in the ignition and started the engine, reportedly to engage the air conditioning, since it was a hot, summer evening. Hagner closed the driver’s side door and left Richard unattended while Hagner returned to the dealership showroom. Hagner admitted in deposition testimony that he thought Richard was intoxicated. Richard, still suffering from acute hypoglycemia, roused himself sufficiently to put the vehicle in gear, drive off the dealership parking lot and onto the southbound lane of U.S. Highway 63 where he drove the vehicle off the road into a ditch. The vehicle hit a driveway culvert, became airborne and overturned several times.

Richard suffered severe injuries as a result of the accident, including multiple rib fractures, a flail chest injury and a questionable traumatic brain injury. He was hospitalized for nearly a month, and underwent follow-up surgeries, pain treatments and a neuropsychological evaluation. Richard still suffers daily nerve pain from his rib fractures. He has been unable to return to work since the date of the accident. A vocational rehabilitation evaluation has determined Richard to be unemployable.

Richard filed suit against Hagner, alleging that Hagner, as a co-employee, was negligent in the breach of his common law duty to exercise reasonable care while assisting a co-employee with a medical emergency. Hagner’s actions in placing Richard in the driver’s seat of his vehicle, turning on the ignition and leaving him unattended were alleged to be “affirmative negligent acts” outside the scope of Jim Robertson’s non-delegable duty to provide a safe workplace, creating a hazardous condition and affirmatively causing or increasing his fellow employee’s risk of injury, and were therefore “something more” than a failure to provide a safe working environment.

A Motion to Dismiss for Lack of Subject Matter Jurisdiction was filed by Hagner, alleging that the Division of Workers’ Compensation had exclusive jurisdiction, which would deprive the Circuit Court of Cole County of subject matter jurisdiction. Richard had earlier filed a Workers’ Compensation claim and entered into a compromise settlement with Jim Robertson. The Court overruled defendant Hagner’s Motion to Dismiss. Hagner later filed and argued a Motionfor Summary Judgment alleging the Division of Workers’ Compensation had exclusive jurisdiction; the Court denied Hagner’s Motion for Summary Judgment.

The case settled for policy limits of $500,000.00 approximately one month prior to trial.

Type of Action: Personal Injury

Court/Case Number/Date: Circuit Court of Cole County, Missouri; Case No. 05AC-CC00664.

Caption: Richard R. Patterson & Sue Ellen Patterson v. Steven D. Hagner

Medical Expense: $303,786.92

Total Settlement: $500,000.00 (policy limits)

Attorneys for Plaintiffs:Jay Benson
The Benson Law Firm LLC
Kirksville, Missouri
Timothy W. Van Ronzelen
Cook, Vetter, Doerhoff and Landwehr, P.C.
Jefferson City, Missouri
Attorneys for Defendants:W. James Foland & Kyle N. Roehler
Foland, Wickens, Eisfelder, Roper & Hoffer, P.C.
Kansas City, Missouri