Case details

Driver working in scope of employment caused crash: plaintiff





Result type

Not present

back, fracture, fusion, lumbar, thoracic
In November 2016, plaintiff Jason Kelly, 32, was driving on Interstate 880, in Fremont. His vehicle was sideswiped by a van operated by Johnson Lam. The impact caused Kelly’s vehicle to strike the concrete center median. Kelly sustained to his back. Kelly sued Lam; Lam’s father, Simon Lam (doing business as US Cargo Way Trucking Co.); Johnson Lam’s employer, Express Messenger Systems Inc. (doing business as OnTrac); a regional service provider of OnTrac, John Sharifi; Sharifi’s two companies that paid OnTrac drivers like Johnson Lam, H&H Courier Inc. and East Bay Courier Inc. Kelly also sued the title owner of Johnson Lam’s van, Valerie Shemet; Subcontracting Concepts Inc.; Subcontracting Concepts (CT), LLC; and California Overnight Inc. Kelly alleged that Johnson Lam was negligent in the operation of his van and that the remaining defendants were vicariously liable for Johnson Lam’s actions. Johnson Lam was uninsured at the time of the accident, so Kelly filed a separate claim, seeking recovery via the supplementary-uninsured-motorist provision of his own insurance policy. It was also discovered that Lam bought the van from Shemet, but that it did not pass a smog inspection, so Lam was not able to get the title transferred to his name. Ultimately, Shemet, Subcontracting Concepts, California Overnight and Simon Lam (doing business as US Cargo Way Trucking) were dismissed from the case. The matter continued against Express Messenger Systems, Sharifi, H&H Courier and East Bay Courier. Kelly’s counsel contended that Johnson Lam was en route to make his daily deliveries for OnTrac and that Lam was in the course and scope of his employment and/or agency with OnTrac’s operator, Express Messenger Systems, at the time of the collision. Counsel also contended that Lam had no prior professional driving experience and no valid registration or automobile insurance for the vehicle. Counsel further contended that Lam was hired without any background checks, drug testing or vehicle inspection and that Lam was driving an overloaded delivery vehicle with inadequate tires. Express Messenger Systems’ counsel contended that at the time of the collision, Lam had entered into a contract with East Bay Courier, a business owned by Sharifi, to provide delivery services and that East Bay Courier had contracted with the transportation broker Express Messenger Systems to provide delivery services. As such, counsel for Express Messenger Systems asserted that Lam was an independent contractor and not an employee of Express Messenger Systems., Kelly sustained a burst fracture of the lumbar spine at L1. He was immediately taken by ambulance to a hospital, where he underwent a lumbar fusion surgery at T12-L1 and L1-2, during which he had two metal rods and five screws implanted. Kelly spent eight days in recovery before being discharged. He later underwent hardware removal surgery 2.5 years after the accident. Kelly continued working at a desk job, but he claimed he can no longer lift heavy objects or perform manual labor. He also claimed that his permanent physical limitations include much reduced tolerances to sitting, standing, lifting and walking. He further claimed that he requires future treatment, which will include pain management, rhizotomies, physical therapy, weight loss management, pain psychology, pain medication, facet injections, and other future medical treatment. Kelly sought recovery for his past and future medical costs, and past and future pain and suffering. He waived any wage loss claim.
Superior Court of Alameda County, Oakland, CA

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