MONTOYA | LOPEZ, P.L.

 $2.35 million awarded to mother of bicyclist killed by 18-wheeler

Case: Lisette Martinez, as personal representative of the estate of Enrique Fernandez, v. O&J Trucking Inc., a Florida corporation, and Jose Rodriguez, individually

Plaintiff attorneys: Carlos Velasquez of Carlos A. Velasquez, P.A., Plantation, and Edward Montoya of Montoya & Flavell, Coral Gables
 
Defense attorney: William C. Merritt of Merritt & Sikes, Miami
 
Details: In November 2002, Enrique Fernandez, a 36-year-old landscaper, was bicycling at night along U.S. 1 south of Florida City when he was struck by an 18-wheel truck driven by Rodriguez and owned and operated by Miami-based O&J Trucking.
 
Medical examiners determined that Fernandez, who died at the scene, had a blood alcohol level three times the legal limit in Florida.
 
Fernandez’s mother, Lisette Martinez, sued the truck driver and O&J for negligence on behalf of Fernandez’s estate.
 
Montoya, who was first chair for the plaintiff, said that O&J refused a March 2004 offer to settle the case for $700,000. He said the company offered to settle for “significantly less” than its insurance policy limits, which he said were in dispute and might be a factor in post-trial motions.
 
Plaintiff’s case: Under Florida’s Wrongful Death Act, parents may sue for pain and suffering caused by the death of an adult child if the child, like Fernandez, is unmarried. Montoya said he and Velasquez decided to “simplify” the case and sue only for the emotional losses of Fernandez’s mother, forgoing any claims by the estate for economic losses.
 
At trial, a plaintiff’s expert witness testified that Fernandez was riding near the right shoulder of the road and was struck on the left side of his bicycle. According to Montoya, Velasquez impeached Rodriguez’s testimony a number of times, including statements about the accident’s time and location.
 
Montoya said Lisette Martinez’s testimony about her emotional pain and suffering had a “major impact” on the jury.
 
Defense case: According to Montoya, the defense argued that Fernandez either caused the accident himself or contributed to it. Montoya said Rodriguez testified that he did not see Fernandez and that Fernandez must have “jumped” in front of the truck.
 
The defense introduced evidence of Fernandez’s blood alcohol level. The defense also contended that Fernandez was dressed in dark clothes and had poor reflectors on his bicycle, thus placing himself at risk.
 
Outcome: After a three-day trial the four-juror panel deliberated for two hours and returned a verdict that assigned 90 percent liability to the defendants and 10 percent to Fernandez. The award consisted solely of noneconomic damages of $2.35 million to Rodriguez’s mother.
 
Merritt has filed motions to reduce the judgment and for a new trial.