On May 7, 2005 Sean Dernago was driving his employer’s box truck on the George Washington Bridge when, after weaving in and out of several lanes in fairly heavy traffic, he rear ended a pick-up truck and launched it into a minivan driven by Frank Chiara. His wife Venetia Chiara was a front seat passenger and their triplet eight year boys were all rear seat passengers. Mrs. Chiara and one of her sons, Nicholas, were injured.
Dernago was employed by Connecticut Shellfish Company and had been making deliveries to restaurants that day. Towards the end of his route, Dernago stopped at Hooters in Paramus where he drank about 10 beers. He then headed to his last stop in City Island but before he got there he caused the crash with the Chiara family.
Chiara was arrested at the scene and charged with driving while intoxicated. He pled guilty a month later and went to jail for four months.
In the ensuing lawsuit, defense lawyers conceded that Dernago was intoxicated but suggested that the pick-up truck struck plaintiffs vehicle before any impact from the defendant. Dernago did not testify in court but in his deposition transcript he said he heard only one impact and the jurors made short shrift of the defense argument and returned a verdict of full liability against the defendant.
In the damages portion of the bifurcated trial the defendants argued that Mrs. Chiara’s claimed neck injury did not meet the serious injury threshold under Insurance Law Section 5102(d); however, on September 21, 2011, the Nassau County jurors disagreed and returned a verdict for pain and suffering in the sum of $160,000 ($90,000 past – six years, $70,000 future – 28 years). They also awarded punitive damages in the sum of $70,000.
In Chiara v. Dernago (2d Dept. 2015), the threshold determination and the damages awards have been affirmed.
As indicated in the court’s decision, Mrs. Chiara, a homemaker then 47 years old, sustained injuries to her cervical spine that caused disc herniations and left her with significantly decreased range of motion.
Here are the injury details:
- herniated discs at C4-5 and C5-6 with radiculopathy
- bulging discs at C3-4 and C6-7
- physical therapy and chiropractic treatment (about 135 visits) continuing to the date of trial
- trigger point injections
- continuing need for pain medication
- permanent cervical spine range of motion deficit of almost 50%
Although plaintiff did not complain of neck pain at the scene or at the emergency room later that night, she shortly thereafter developed significant spasms and neck pain that she testified continued to the date of trial and limited her abilities to cook, work at a computer, garden, concentrate and play with her children. She admitted, though, that “there’s nothing I cannot do at all.”
Plaintiff’s injuries and treatment were testified to by her neurologist James Liguori M.D.; whereas defendants offered the testimony of expert radiologist A. Robert Tantleff, M.D. who reviewed plaintiff’s MRI and said that there was no nerve root compression, plaintiff’s condition was completely related to degenerative disc disease and she had not sustained an acute herniation.
The award of punitive damages was based upon plaintiff’s claim that not only was Dernago a drunk driver with a blood alcohol test more than two times the legal limit but also that his conduct was so outrageous that it amounted to wanton and reckless behavior that should be punished. The defense argued that drunk driving alone will not as a matter of law support a punitive damage claim (that is correct) and that there was little or no evidence to meet the higher burden needed for punitive damages, especially in view of the fact that Mr. Dernago was pulled over by a police officer for failure to signal a lane change about 10-15 minutes before the crash, was given a field sobriety test and let go without any tickets.
- The claim by plaintiff’s son Nicholas was settled during trial for the sum of $25,000. His injury was minor, essentially some neck spasms treated with physical therapy.
- In summations, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $630,000 ($350,000 past, $280,000 future). Defense counsel argued that plaintiff was entitled to no damage award at all because her injuries did not meet the statutory serious injury threshold.
- Mrs. Chiara’s settlement demand had been $150,000 against an offer of $60,000.