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Kalka & Baer Goes the Distance in Settling a Claim for a Minor Who Broke Her Leg Due to Unsafe Conditions at Carnival

Kalka & Baer Goes the Distance in Settling a Claim for a Minor Who Broke Her Leg Due to Unsafe Conditions at Carnival

Details of the Incident Resulting in Injury

In 2012, when our client was nine years old, she was injured riding down a large inflatable slide at a local community carnival. Our client was hurt due to the fact that the vendor who supplied the inflatables failed to properly train its attendant to follow basic safety rules – specifically that the slide accommodated only one rider at a time. Instead, the attendant allowed a 19-year old woman to ride down immediately behind the young girl, crashing into her at the end of the Inflatable.

The Aftermath: Growth Plate Injury

The force of the impact caused our client to suffer a fracture in her tibia bone in her left leg, right at the growth plate which is known as a Salter-Harris Type 2 fracture. Doctors initially thought it would heal with limited medical intervention. More than a year after the injury, our client’s mother noticed that the left leg did not appear to be growing at the same rate as the right leg.

Two years after the injury, when our client turned 11, a pediatric orthopedic confirmed that the she ultimately would need surgery to lengthen her left leg once she reached skeletal maturity. By the time she had the surgery, four years later, there was over a 1 and ¼ inch height difference between her left and right leg.

Statute of Limitations for Minor’s Injury Claim

At this point, our firm got involved in the case. Georgia has a two-year statute of limitations, which means that injury claims are typically barred unless suit is filed within two years. Fortunately, the statute of limitations tolls (or does not run) for a minor’s injury claim until the minor reaches the age of majority, which in Georgia is 18; however, the parent has the claim for medical bills up until the age of majority.

Thus, we could recover money damages for the daughter’s pain, suffering, physical limitations and any permanent impairment associated with her injury; however, we would not be able to recover any of her medial bills associated with her treatment, including limb lengthening surgery.

Identifying the At-Fault Party

The first thing we had to do was identify the vendor which supplied and staffed the large inflatable attractions. We looked on the website for the festival and identified the entity that organized the festival. Unfortunately, they were not responsive to our letters requesting any information and we were not able to get any additional information from them and ultimately, we filed suit against the festival organizer.

Through discovery in the lawsuit we identified the vendor that supplied and staffed the large Inflatables and were able to add them in as a party defendant. We also identified the manufacturer of the Inflatable. In this case, we believed that the way the Inflatable was attended was to blame, not a defect in the Inflatable itself, so we did not sue the manufacturer.

We were able to get helpful information from them, including a deposition from the owner himself who talked at length about the attendant’s duty to ensure only one person at a time – otherwise children get hurt, just like our client. In discovery, we also identified the actual attendant on duty when our client was injured. At his deposition, he admitted he never went through training which the vendor said they provided all of their attendants.

Issues With the Vendor’s Insurance

Our case against the vendor was looking strong and we were positioned for a relatively early and favorable resolution in the form of a settlement. There was only one problem: their vendor’s insurer claimed there was no coverage for our client’s injuries and the vendor itself had little assets from which to recover, other than large Inflatables.

The basis for the coverage dispute was that in the process of applying for coverage, the vendor’s insurance broker described the vendor’s business as “Event Planner” as opposed to “Inflatable Operator.” According to the insurer, they would not have provided insurance coverage to the vendor had the vendor’s insurance agent adequately described the insurer’s business.

The insurer filed a separate lawsuit in federal court on the coverage issue, which had to be litigated simultaneously with the underlying case against the vendor. We took depositions in South Carolina, North Carolina, California, and Connecticut.

The court in the coverage case granted the insurer’s motion that the policy issued to the vendor did not afford coverage to injuries arising out of the operation of Inflatables.

What could we do next? A money judgment is only as good as the ability to recover.

Pursuing a Claim Against Insurance Broker

We were not about to throw in the towel and give up on this girl after nearly four years of litigation. Furthermore, our client, who was now 15 years old had recently had limb lengthening surgery which was done using an internal Precise Nail Device.

With the help of an outside visual team, we created an animation of the surgery as well as a presentation demonstrating the progression of her injury. We then proceeded to pursue a claim against the insurance broker for negligent procurement of insurance coverage while simultaneously preparing for trial in the underlying case against the vendor.

Legally, the insurance broker was under no obligation to do anything until we had:

  1. gotten a jury verdict and money judgment against the vendor; and,
  2. (ii) proved the insurance broker’s professional negligence in yet another lawsuit.

Fortunately, the insurance broker saw the handwriting on the wall so to speak and was motivated to step in and resolve before having to incur sizeable defense costs.

Settling the Claim for Our Client

Ultimately, we recovered enough for our minor client to more than pay for any college of her choice once she finishes high school. The funds were put into an annuity that will begin making payments once the minor client reaches 18 years of age. She continues to thrive and has maintained all “’A’s” since returning to school fulltime.

Our team at Kalka & Baer, LLC is happy to have been able to help out this young girl and her family.

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