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Burns - Automobile Accident Demand Letter

Automobile Accident

Demand Letter

D. DAMAGES - ESTATE OF LEE LEONARD WAYMOND

1. Basis of Recovery:

Pursuant to Texas Civil Practice and Remedies Code, Section 71.021, the Estate of Lee Leonard Waymond is entitled to recover for the cause of action for personal injury which Lee Leonard would have had if he had not been incinerated and had survived the accident.

2. Damages - Survival Action

a. Physical Pain and Suffering: It is obvious from the autopsy report that this man burned to death. He was not asphyxiated and did not suffocate but rather endured and experienced the horrors of having the flesh burned from his body to the point where his brain was cooked and his bones cracked from heat fracture. The pain involved in such an event is unthinkable but it will be the job of a Texas jury to put a dollar value on this event. We will ask a jury to award a minimum of $250,000 for the physical pain which this man endured in the final moments of his life.

Sally will testify that Lee was moaning and moving but was so overcome by the flames as to be unable to extricate himself from the vehicle and from the seat which was trapping the two children beneath him.

b. Mental Anguish: In Yowell vs. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986) the Court allowed a recovery of $500,000 to compensate the passengers for the mental anguish, which the Court designated as pre-impact terror, which the passengers experienced as they knew they were about to die in a plane that was plummeting toward earth. We will ask compensation of an equal amount for the mental anguish which this man, trapped in the fiery Glider with the two children trapped beneath him, obviously experienced as he slowly burned to death and had no means of extrication.

E. JURY VERDICT POTENTIAL - ESTATE OF LEE LEONARD

Damages - Survival Action

a. Physical Pain and Suffering $ 250,000
b. Mental Anguish $ 500,000


F. SETTLEMENT DEMAND - ESTATE OF LEE LEONARD

Based upon the foregoing review of the liability and damages aspects of this case, we are offering to settle all claims of The Estate of Lee Leonard Waymond arising out of this tragic occurrence for cash or a combination of cash and structured settlement of equal value on the following basis:

Estate of Lee Leonard Waymond $ 375,000

X - DEATH OF TIMOTHY BENJAMIN WAYMOND

A. AUTOPSY REPORT OF TIMOTHY BENJAMIN

The office of the Medical Examiner of Clements County at Joseph Miltner Forensic Center, conducted the Pathological Diagnosis on the seven-year-old son and passenger in the Glider , Timothy Benjamin Waymond. It is the examiner's opinion that the child came to his death as a result of a charred body, motor vehicle accident, passenger. Timothy Benjamin's mother had to identify his charred body which was found in the left rear passenger position in the burning Glider . Timothy Benjamin was burned from the skin down to the bone, one of the most torturous ways to die in excruciating pain as the skin was seared through the dermis, tissues, muscles and bones, cooking the bodily organs.

The postmortem examination is exhaustingly detailed describing that the child, Timothy Benjamin Waymond, suffered a grisly, harrowing death in the rear passenger's seat in the Glider . The reports indicate that as a result of this accident, Timothy Benjamin was severely charred front and back, nearly all of his skin and tissues burned away. Shockingly, Timothy Benjamin's heart, lungs and other internal organs were literally cooked in the extensive fiery heat. The examination, summarized in grisly detail, explains the effect of the blaze on Timothy Benjamin's body as follows:

1. Head - Timothy Benjamin's entire top skull was burned away severely, exposing his cooked brain and dura mater. Timothy Benjamin's eyes were so severely charred and burned, that the iris in each eye was not discernable for color content. The skin and fat over Timothy Benjamin's face, nose, ears and mouth were totally burned away, leaving his teeth exposed and severely charred. His right medial mandible bone was broken and the muscles were exposed due to the flesh burning away from the jaw.

Timothy Benjamin's entire top of the brain was severely shrunken and showed severe burn injury. The seven-year-old's brain was completely exposed with the skull bones burned and fractured away. The dura was markedly thickened and the top of his brain showed severe heat and cooking artifact. His cerebellum, medulla, and pons were shrunk due to the cooking artifact.

Timothy Benjamin's tongue was severely burned. His burns extended into the anterior trachea and the larynx was totally burned through. His thyroid gland was severely charred and cooked. The skin in his neck was burned away, exposing the underlying neck muscles.

2. Chest - Timothy Benjamin's chest skin was burned away, exposing his muscles and left ribs. His right ribs were missing for they had been burned away. Timothy Benjamin's heart and lungs were severely cooked. Severe heat artifact appeared on the myocardium muscles around the heart. His left lung was severely charred with marked heat artifact.

3. Abdomen - The skin and fat had been totally burned away from Timothy Benjamin's belly and his charred intestines and liver were exposed. His liver was severely charred and thickened. His right liver lobe showed cooking artifact. His pancreas, left adrenal gland and spleen were charred. His right adrenal was missing, supposedly burned away. Most of the skin and fat on Timothy Benjamin's back was completely burned away. His small and large bowels were severely charred.

4. Genitalia - Timothy Benjamin's external genitalia and penis were burned away in the fire. His kidneys were severely charred and his testicles could not be found due to the severe burning injury to his perineum.

5. Legs - Timothy Benjamin's legs were burned off at the mid femur level. Both legs had severe heat and burn fractures. The left lower leg was absent due to the heat fracture of the femur. A small remnant of the knee joint was attached by a muscle to the lower thigh.

6. Arms - Timothy Benjamin's charred arms were scorched in a boxer's position. His left arm was fractured and the proximal portion was missing. His right humerus, just above the elbow, was fractured and the rest of the arm was severely shrunken and burned with contracture. His bones were exposed and several of his muscles had ruptured from the heat.

B. DAMAGES - ESTATE OF TIMOTHY

1. Basis of Recovery: Pursuant to Texas Civil Practice and Remedies Code, Section 71.021, the Estate of Timothy Waymond is entitled to recover for the cause of action for personal injury which Timothy would have had if he had not been pinned under the collapsing driver's seat and had survived the accident.

2. Damages - Survival Action

a. Physical Pain and Suffering: It is obvious from the autopsy report that this child burned to death. He was not asphyxiated and did not suffocate but rather endured and experienced the horrors of having the flesh burned from his body to the point where his brain was cooked and his bones cracked from heat fracture. The pain involved in such an event is unthinkable but it will be the job of a Texas jury to put a dollar value on this event. We will ask a jury to award a minimum of $250,000 for the physical pain which this child endured in the final moments of his life.

b. Mental Anguish: In Yowell vs. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986) the Court allowed a recovery of $500,000 to compensate the passengers for the mental anguish, which the Court designated as pre-impact terror, which the passengers experienced as they knew they were about to die in a plane that was plummeting toward earth. We will ask compensation of an equal amount for the mental anguish which this child, trapped under the collapsed seat of the Glider and under the weight of his father, obviously experienced as he slowly burned to death and had no means of extrication.

C. JURY VERDICT POTENTIAL - ESTATE OF TIMOTHY

Damages - Survival Action

a. Physical Pain and Suffering $ 250,000
b. Mental Anguish $ 500,000

D. SETTLEMENT DEMAND-DEATH OF TIMOTHY BENJAMIN

Based upon the foregoing review of the liability and damages aspects of this case, we are offering to settle all claims of The Estate of Timothy Waymond arising out of this tragic occurrence for cash or a combination of cash and structured settlement of equal value on the following basis:

Estate of Timothy Benjamin Waymond: $ 375,000

XI - STRUCTURED SETTLEMENT FRAMEWORK

A. STRUCTURE

We propose to negotiate this case on the basis of a structured settlement in two component parts: (1) the initial cash outlay, and (2) the purchase of a 50-year certain and life annuity.

After careful analysis we have determined that the structured portion of this case would require a 30, 40 or 50-year certain and life annuity compounded annually at 3% throughout the term of the annuity.

Any annuities utilized as part of the structured settlement herein must be purchased through an A. M. Best Rated A+ Superior XV company. We fully intend to shop the structure exhaustively in order to achieve the best possible rate of return, the largest affordable minimum guarantee, the greatest security and the best terms available in order to meet every conceivable need which each of these Plaintiffs will experience in the future as a result of this tragic event.

B. INDEPENDENT SPECIALIST

An independent structured settlement specialist, Marie Collins of Personalized Structured Settlements, will be present at the settlement conference, and she is currently shopping the market for the best available structure within these parameters. If you choose to use your own structured settlement specialist, all brokers involved in this claim should be apprised in advance that the annuity will be placed with the company which provides the best benefits for the money for the Plaintiffs.

C. CONSTRUCTIVE RECEIPT

In order to expedite the negotiation of this settlement on a structured basis, it is probably well to advise your structured settlement specialist that we are fully aware of the PLR 8333035 in which the Internal Revenue Service ruled that knowledge of the cost of the package does not constitute constructive receipt, as follows:

PRIVATE LETTER RULING

The following is a Private Letter Ruling from the I.R.S. on the subject of structured settlements received on May 16, 1983.

LTR 8333035, May 16, 1983

***

This is in reply to a letter of April 5, 1983, submitted on your behalf by your authorized representative, requesting a supplemental ruling that disclosure by defendant of the cost or present value of annuity to be purchased to fund its monthly settlement obligation will not cause you to be in constructive receipt of the present value of the amount invested in the annuity.

***

You have asked for a clarification of the above ruling because of your concern that your knowledge of the existence or cost of the annuity might cause you to be in constructive receipt of that annuity.

***

Based on the language in § 1.451-2(a) of the regulations, the Service has consistently taken the position that knowledge is not determinative in deciding a question of constructive receipt, but that unqualified availability is decisive. Rev. Rul. 68-126, 1968-1 C.B. 194; Rev. Rul. 73-99, 1973-1 C.B. 412; Rev. Rul. 74-37, 1974-1 C.B. 112 and Rev. Rul. 76-3, 1976-1 C.B. 114; all set forth conclusions consistent with this position.

***

Based on the information submitted in the original ruling request, we conclude that disclosure by defendant of the existence, cost or present value of the annuity will not cause you to be in constructive receipt of the present value of the amount invested in the annuity.

***

Thus, we can save a lot of each other's time by eliminating all of the usual verbiage concerning constructive receipt which generally transpires in a structured settlement negotiation.

D. MINIMUM REQUIREMENTS

If you are agreeable to the following conditions, we will proceed with negotiation of a structured settlement herein:

1. Plaintiff reserves the right to approve the life insurance company from which the annuity is purchased. This must be an A+ (Superior) XV A.M. Best rated company.

2. We agree to use a §130(c) Qualified Assignment; however, Plaintiffs reserve the right to approve the Assignee. It is our usual position not to approve a mere shell company as an Assignee. However, this may be subject to approval based upon the strength of the annuity company.

3. We will consider a guaranteed 30, 40 or 50-year certain and life annuity in this particular case.

4. We will alternatively consider annual inflationary increases of 3%, 4% or 5% and compare the increases in cost in order to determine the best overall utilization of funds for the Plaintiffs' benefit.

5. The cost to the liability insurance carrier of the Defendant's proposed package must be disclosed to the independent structured settlement specialist utilized by the Plaintiffs herein in order to provide a basis for comparative shopping of the structure so that the maximum benefits may be achieved for the Plaintiff.

If you have any question with respect to any of these prerequisites to negotiation of the structured settlement, please feel free to call on us and we will attempt to reach a mutual understanding so that the insurance carrier's structured settlement specialist and the independent specialist utilized by the Plaintiff will be shopping for the same type of structured settlement. It has been our experience that if we can have a clear understanding in the beginning as to what the Plaintiffs' minimum requirements are with respect to a structure, this will save a considerable amount of wasted effort by your structured settlement specialist shopping for the wrong type of annuity and will also expedite the resolution of this claim.

XII - SETTLEMENT DEMAND SYNOPSIS

A. Sally Waymond
1. Personal Injury: Self $ 3,000,000
2. Wrongful Death: Spouse $ 1,500,000
3. Wrongful Death: Son $ 350,000
4. Personal Injury: Daughter $ 300,000
TOTAL: Sally Waymond $ 5,150,000

B. Lee Lynette Waymond
1. Personal Injury: Self $ 4,800,000
2. Wrongful Death: Father $ 725,000
3. Personal Injury: Mother $ 25,000
TOTAL: Lee Lynette Waymond $ 5,550,000

C. Wendy Germaine
1. Personal Injury: Self $ 4,500,000
2. James Germaine $ 345,000
3. Judy Germaine $ 50,000

D. DEATH OF ANNETTE RAWLINS
1. Krystle Rawlins: Death of Annette $ 1,450,000
2. Estate of Annette Rawlins $ 375,000

E. DEATH OF LEE Leonard WAYMOND
1. Robert Earle Waymond:
Death of Lee Leonard Waymond		 $ 425,000
2. Gregory Wayne Waymond:
Death of Lee Leonard Waymond		 $ 400,000
3. Christian Lyn Waymond:
Death of Lee Leonard Waymond		 $ 400,000
4. Delores Waymond:
Death of Lee Leonard Waymond		 $ 250,000
5. Estate of Lee Leonard Waymond $ 375,000

F. DEATH OF TIMOTHY BENJAMIN
Estate of Timothy Benjamin Waymond $ 375,000

XIII - CONCLUSION

The Germaine, Waymond and Rawlins families have indicated that they would like to reach an amicable resolution of this lawsuit so that they can achieve a sense of closure and not be forced to relive these horrible experiences in court. However, each member of these three families has expressed an absolute willingness to prosecute this case to the fullest, if necessary.

After consultation with each of the clients, we have prepared the video settlement brochure, made full disclosure on discovery and are presenting this settlement demand letter in the spirit and in the interest of an amicable resolution of this case at mediation on January 6, 1998.

We are presenting you with the video tape and the demand letter almost one month prior to mediation so that we have the opportunity to provide any other information that you may need. If there is anything else you need in order to fully evaluate this claim, please feel free to call on me. With kindest personal regards, I remain

Yours very truly,

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