Case details

Driver was not in scope of work at time of crash, defense argued





Result type

Not present

back, brain, brain injury, fluttering in vision, head, hearing loss, neck, pain, right eye, shoulder
On Jan. 4, 2011, plaintiff Scott Myers, 54, an IT manager, was stopped at a traffic signal on the southbound Interstate 5 on-ramp at Culver Boulevard, in Irvine, when he was rear-ended by a vehicle driven by Walter Kozlov. Myers claimed he sustained to his back, neck, and shoulder, as well as residual hearing loss. Myers sued Walter Kozlov; the vehicle’s owner, Ludmila Kozlov (also known as Ludmila Divinsky); and Mr. Kozlov’s employer, Franchise Services Inc. Myers alleged that Mr. Kozlov was negligent in the operation of his vehicle. Myers also alleged that Ms. Kozlov was vicariously liable for Mr. Kozlov’s actions and that Franchise Services was liable for Mr. Kozlov’s actions during the course and scope of his employment. Plaintiff’s counsel contended that Mr. Kozlov had just dropped his son off at school and was operating his vehicle while on his way to work when the accident occurred. Thus, counsel argued that Mr. Kozlov was in the course and scope of his employment at the time of the collision and that the vehicle-use exception applied since Mr. Kozlov was using the vehicle for the benefit of his employer. Counsel for Franchise Services denied that Mr. Kozlov was in the course and scope of his employment at the time of the accident and argued that Mr. Kozlov was merely going to work, an exception to the course and scope of employment (i.e., the going-and-coming rule)., Myers claimed that he suffered pain in his neck, back and shoulder, with pain shooting up from his neck into his head. He subsequently complained of shooting pain in his temples, in his jaw, behind his right eye, in his brain, and on the top of his head. He also complained that he experienced constant noise in both hears, resulting in hearing loss; fluttering in his vision, causing a strobe effect when his eyes were closed; and limited mobility in his neck. As a result, emergency services made Myers keep his head straight while being transported by ambulance to Hoag Memorial Hospital Presbyterian, in Newport Beach. Myers was diagnosed with whiplash, a back strain, and an impingement of a shoulder. He ultimately underwent surgery on his thoracic spine, consisting of a thoracotomy and discectomy at the T6-7 level, on Dec. 18, 2014. The surgery was performed at Hoag Memorial Hospital Presbyterian, and Myers remained hospitalized until Dec. 24. 2014. However, Myers contended that the surgery did not go well and that he ultimately developed residual hemiparesis/hemiplegia. As a result, he was transferred to a rehabilitation facility in Tustin following his hospital stay and he continues to complain of residual medical issues. The plaintiff’s primary care doctor testified about Myers complaining of mid-back pain since the date of the subject accident. The plaintiff’s treating neurosurgery expert testified about performing the thoracic surgery on Myers and opined that Myers’ need for surgery was related to the subject accident. Plaintiff’s counsel asked the jury to award Myers $4.3 million in total damages, including $125,000 in past medical expenses, $125,000 in past loss of income, $75,000 to $100,000 in future medical expenses, $8,000 in future loss of income, and an unspecified amount of damages for Myers’ past and future pain and suffering. Defense counsel argued that the entire scope of Myers’ and treatment, including the surgery, were not completely related to the subject accident. Counsel noted that Myers was admitted to the emergency room at Hoag Memorial Hospital Presbyterian one year after the subject accident with complaints of mid-back pain radiating into his chest from working a chainsaw for about five hours in his backyard. Thus, defense counsel contended that one year post-accident, prior visiting the hospital in December 2014, Myers was capable of operating a chainsaw to cut down trees in his yard. The defense’s medical experts opined that Myers’ mid-back surgery was not caused by the accident.
Superior Court of Orange County, Santa Ana, CA

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