Swimming Pool Accident Leads To $7.2 Million Judgment
#5 Largest Verdict Of 1998
By Chris Brown
A swimming pool accident that left a 30-year-old truck driver a triplegic led to a $7.2 million judgment.
The plaintiff, J.R. Saunders, was injured when he dove into a pool at a friend's rented home. When the Secura Insurance Co. denied coverage and refused to defend, Saunders entered into an agreement with the owner to seek recovery from Secura first.
At trial, Judge Edith L. Messina awarded Saunders the full extent his claimed damages: $914,416 in medical expenses, $47,369 in lost wages, and more than $6 million for a life care plan.
The issue of coverage will be settled on April 5, 1999, when Secura's declaratory judgment motion is heard in federal court.
Lexington attorney Robert K. Langdon, who represented Saunders with Bradley D. Kuhlman, said that verdict amounts are driven by the character of the plaintiff and in this case, he "had a good plaintiff.
"This is a guy who has suffered a terrible injury, who ended up divorced as a result of what happened, but he still has a great attitude," said Langdon.
"He wants to be as independent as possible and because he still has the use of a hand, he can be pretty independent.
"With that hand, he can write, he can control his wheelchair, and he can get around. And his goal is to be able to work again. He doesn't want to just sit around and do nothing.
"He's a great guy you won't find a nicer guy anywhere."
Missing The Hopper
On July 6, 1996, J.R. Saunders and a friend decided to go swimming in the underground pool at the friend's rented home. The pool was approximately 20 feet by 40 feet, with sloping sides and a diving board at one end. It had neither depth markers nor "no diving" signs.
"It was what they call a 'hopper pool," said Langdon. "It was about three feet deep at the shallow end, and the dropped off to a little more than seven feet under the diving board."
Because a new liner had just been installed in the pool, it had only recently been opened for the season. And as a result, the water was dangerously cloudy.
"Part of the process of opening a pool for the season is giving the water a chemical 'shock' treatment," said Langdon. "No one ever drains the water out of these pools. You leave the water in there, and then at the beginning of the season you 'shock' the water to clean it and get it ready for swimmers.
"The water in this pool had just been shocked, and as a result it was cloudy. You couldn't really see the bottom."
Langdon argued that the pool was too narrow and too shallow for a diving board. But the presence of the diving board played a small role in the case, because the plaintiff dove into the pool from the side.
"Saunders was at the side of the pool down towards the shallow end," said Langdon. "He dove into the pool towards the hopper end, but he didn't make it to the deep water.
"He hit the bottom and ended up severely injuring his spine. And he's a triplegic as a result, with just partial use of one of his hands."
Liability
At the beginning of the case, Langdon named several defendants: Saunder's friend (who had rented the home), the owner of the building, the maker of the pool, the maker of the liner, and the installer of the liner.
This plethora of defendants left him with a plethora of liability theories.
"There were a couple of things that were wrong with this pool," said Langon. "One was that there was a diving board in it. This pool wasn't big enough or deep enough for a diving board." Langdon argued that the pool maker had a responsibility to design a safe pool. "It's basically a physics problem. It can all be calculated, the size and width and depth of the pool necessary to create a safe pool.
"And this wasn't a safe pool. We had a good case against the maker."
Lack Of Markings
The other problem with the pool was the lack of depth markings and "no diving" signs.
"If you go to a public pool, you'll always see depth markings on the deck and on the sides of the pool," said Langdon. "That way you don't have to guess the depth of the pool as you move along the side which is important in a pool with a sloping bottom.
"Public pools also have signs prohibiting diving from the sides. And a private pool should have the same kinds of warnings."
Langdon argued that all of the defendants shared in the liability for the lack of warnings.
"We certainly couldn't criticize the owner for the design of the pool," he said. "If an expert comes in and says you can put a diving board in your pool, that's the problem of the installer or maker.
"But the owner does have a duty to inform his guests and warn them about any dangers. We criticized the owner for not marking the depths."
The installer of the pool's liner was also responsible for seeing that the liner was properly marked with warnings, said Langdon. And he also said that the friend and renter of the property shared in liability.
Langdon's preparation for the case changed abruptly when Secura declared its decision not to defend because an agent had failed to include the property on the owner's insurance policy.
"The owner had this property to get rental income from it," explained Langdon. "And he decided to have the property added to the liability policy he carried for his own residence.
"The owner asked the agent to take care of it, and even paid the premium. But the agent got sloppy and didn't make all the necessary changes to the insurance form.
"The form includes a line where the agent is supposed to indicate if the policy provides liability coverage for other properties than the policy named on the front. The agent did put a check in this box.
"But the agent forgot to turn the policy over and list the property on the back. And because of that omission, Secura said there owner didn't have coverage."
The agent admitted his own mistake and conceded that the owner had done everything he was supposed to do.
Secura claimed that the agent's mistake did not rebound upon Secura because the agent was not Secura's employee. But Secura's own expert witness testified in deposition that the agent was the company's employee.
No Defense
Langdon expressed amazement at the company's decision not to defend the case, which left it on the hook for the entire verdict.
"The owner's policy's limits were just $100,000, and we were claiming over $7 million in damages. By deciding not to defend, they were completely exposing themselves to any excess verdict."
Secura was also exposing the owner, who had personal assets. "Secura made a decision to gamble that there was no coverage, and said in effect that it didn't care about the insured," said Langdon.
The owner was forced to hire his own attorney, who made repeated requests of the company to defend the case. When Secura continued in its refusals, the owner decided to enter into an agreement with the plaintiff that made Secura the main target of the case.
"After he had been refused by Secura three or four times, the owner offered to enter into a Sect. 537 agreement with us in which they would agree not to fight the suit, and we would agree to go after Secura first."
Secura belatedly regretted its decision not to defend, and tried to enter the case at the last minute. But Langdon successfully argued to keep the company out.
"Once they told the insured that they would not defend, and the insured entered into a Sect. 537 agreement, it was all over," he said. "The Sect. 537 agreement is a contract. If the insurance company were allowed to defend, that would put the owner into a breach.
"By deciding not to defend, Secura put the owner in a bind. But then Secura had to live with its own decision."
Langdon pointed out that Secura could have protected itself from exposure to an excess verdict by defending the case under a reservation or rights.
"I don't understand why they didn't defend I really don't," he said. "They only had $100,000 in coverage why not defend?
"The law provides that an insurer can defend a case without waiving its right to contest coverage. Whoever gave the in-house advice on this one make a bad decision."
Simplifying The Case
As a result of Secura's decision, Langdon was able to dismiss all of the defendants but the owner and concentrate on making a single liability case against a defendant who was not contesting the suit.
"Once we knew that Secura was not going to defend, we let all the other defendants out without prejudice, of course.
"There was no reason to keep the others in, because Secura's decision exposed them to the entirety of any damages award. We wouldn't get any more by keeping anyone else in, and it's easier to handle one liability case than it is four."
______________
Size of Verdict: $7,214,176
Status: Declaratory judgment action set for April 5, 1999
Type of Case: Premises liability
Date of Verdict: March 26, 1998
Length of Trial: One day
Jury Deliberations: N/A
Caption: Saunders v. Scrivener, et al.
Court: Jackson County Circuit Court, Judge Edith L. Messina
Plaintiff's Attorneys:
Robert K. Langdon and Bradley D. Kuhlman, Lexington
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