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Case of the Month March 2009

State Hwy. 64 Roll Over Yields $2.8M Verdict

Derepkowski v. Secura Ins.

Type of Case:
Vehicle Negligence - Impaired Driver
Vehicle Negligence - Negligent Entrustment-Vehicle
Vehicle Negligence - Passenger
Vehicle Negligence - Rollover
Insurance - Automobile Policy
Insurance - Health
Insurance - Subrogation

Specific Liability:
Intoxicated car owner negligently entrusted vehicle to intoxicated driver who lost control of vehicle causing it to roll over into ditch

General Injury:
Right foot degloving over the dorsum, bilateral calcaneal fractures, right tib-fib fractures, right femur fracture, permanent scarring, disfigurement, disabilities, past and future medical expenses, past and future wage loss

Jurisdiction:
State: Wisconsin
Court: Circuit Court of Wisconsin, Eighth Judicial District, Marinette County

Related Court Documents:
Plaintiff's amended complaint: 2008 WL 4641798
Verdict form: 2008 WL 4640376

Case Name:
Denise A. Derepkowski v. Secura Insurance, A Mutual Company, Acuity, A Mutual Insurance Company, Wisconsin Physicians Service Insurance Corporation

Docket/File Number:
2007CV000110

Verdict:
Plaintiff, $2,824,585.53

Verdict Date:
Sept. 11, 2008

Judge:
David G. Miron

Attorneys:
Plaintiff: Ralph J. Tease Jr., Joseph M. Troy and Byron B. Conway, Habush Habush & Rottier, Green Bay, Wis.
Defendant (Secura): Peter J. Hickey, Everson Whitney Everson & Brehm, Green Bay, Wis.
Defendant (Wisconsin Physicians): Christine M. Witherill, Madison, Wis.

Trial Type:
Jury

Experts:
Plaintiff: Rolf Lulloff, MD, orthopedic surgeon, Green Bay, Wis.; Gregory Schmeling, MD, orthopedic surgeon, Milwaukee, Wis.; John Hijjawi, MD, plastic surgeon, Milwaukee, Wis.; Brad Grunert, PhD, psychologist, Milwaukee, Wis.
Defendant: None mentioned

Breakdown of Award:
$408,085.53 to plaintiff for past medical and health care expenses
$100,000.00 to plaintiff for future medical and health care expenses
$55,500.00 to plaintiff for past loss of earning capacity
$11,000.00 to plaintiff for future loss of earning capacity
$1,000,000.00 to plaintiff for past pain, suffering, disability and disfigurement
$1,250,000.00 to plaintiff for future pain, suffering, disability and disfigurement
The jury attributed 75 percent of the negligence to Noffke, 12.5 percent of the negligence to Burgess and 12.5 percent of the negligence to Derepkowski.

Summary of Facts:
Denise Derepkowski was a belted front-seat passenger Oct. 19, 2005 in a 2005 Chevrolet Tahoe when it rolled-over on State Highway 64. The vehicle was driven by Calvin Noffke and was owned by Thomas Burgess. Noffke was a permissive user of the vehicle, which was insured through Secura Insurance. Derepkowski held automobile insurance with Acuity and group health insurance with Wisconsin Physicians Service Insurance Corporation.

Derepkowski filed an amended complaint Sept. 5, 2008 against Secura, Acuity and Wisconsin Physicians in the Marinette County Circuit Court. She alleged Noffke's negligent driving and Burgess' negligent entrustment resulted in the motor-vehicle collision in which she sustained right foot degloving over the dorsum, bilateral calcaneal fractures, right tib-fib fractures, right femur fracture, permanent scarring, disfigurement, disabilities, pain, past and future medical expenses, and past and future wage loss. According to the plaintiff's attorney, Ralph J. Tease of Habush Habush & Rottier, the plaintiff's past medical expenses were $408,085.53, past wage loss was $58,351.20, future medical expenses expected to be in the range of $47,000 to $64,000 and future lost earning capacity was $6,000 to $11,000. Tease reported Secura's liability limits were $1 million primary and $5 million excess. Derepkowski sought judgment against Secura for compensatory damages and an order declaring the plaintiff's right as paramount to those of the subrogated parties.

Secura filed an answer Sept. 26 alleging Derepkowski knew Noffke and Burgess were intoxicated when she got into the car. The defendant alleged the plaintiff was also intoxicated.
Derepkowski filed an offer May 23, 2008 to settle her claim against Secura for $1,200,000. She also agreed to satisfy all subrogation claims. Secura filed an offer Aug. 11 to settle for $700,000.

The matter went to jury trial before Judge David G. Miron. The panel returned a verdict Sept. 11 attributing 75 percent of the negligence to Noffke, 12.5 percent of the negligence to Burgess and 12.5 percent of the negligence to Derepkowski. The jury found a fair and reasonable award to Derepkowski to be $408,085.53 for past medical and health care expenses, $100,000 for future medical and health care expenses, $55,500 for past loss of earning capacity, $11,000 for future loss of earning capacity, $1,000,000 for past pain, suffering, disability and disfigurement and $1,250,000 for future pain, suffering, disability and disfigurement.

Court: Circuit Court of Wisconsin, Eighth Judicial District, Marinette County.

Westlaw Citation:
2008 WL 4889875

West's Jury Verdicts - Wisconsin Reports Citation:
West’s J.V. Wis. Rep., Vol. 4, Iss. 6, p. 12 (2008)