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$22 Million settlement in Brooklyn personal injury case

February 28, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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A woman who was left brain-damaged after a hit-and-run accident has agreed to a $22 million settlement with the driver’s employer.

As reported by the Brooklyn Daily Eagle in December 2008, a Duane Reade truck struck Shirley Miller, leaving her brain-damaged and with very limited communication skills. Miller and her parents filed suit against the driver Henry Lowis and, via the doctrine of vicarious liability, with his employer, Duane Reade. The case was initially assigned to Brooklyn Supreme Court Justice Arthur Schack.

Schack recused himself from the case after a poster was found in his courtroom with a “Wanted” poster displaying a picture of a member of the defense counsel team. The case was subsequently reassigned to Brooklyn Supreme Court Justice Leon Ruchelsman.

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There were a few snags along the path to settlement. In addition to Schack’s recusal, there was an allegation that Duane Reade’s insurance company violated the rules governing contact between plaintiffs and defendants. Claims director Miriam Mosseri, an employee of ACE America Insurance Company (ACE), violated the “no contact rule” when she entered into a conversation with the plaintiffs while their attorneys were in the judges’ chambers discussing settlement negotiations, according to the allegations.

Mosseri, who is fluent in Hebrew, the Millers’ native tongue, accompanied ACE, which acted as insurer for Duane Reade. According to court papers, Mosseri was brought in by ACE to “help humanize the defendants” and make the Millers feel more comfortable.

At some point during settlement negotiations in April, Mosseri found herself alone in the courtroom with the Millers. Mosseri introduced herself in Hebrew and informed the Millers that she was not an interpreter.  Following pleasantries, the conversation quickly turned to the case. Mosseri asserted that ACE had “the best intentions to settle the case” and had already made a series of settlement offers.  

The Millers contend that Mosseri gave a specific dollar amount as to the settlement offer and noted that the Millers’ attorney had declined the offer because of an interest in obtaining as much publicity from the case as possible.

ACE claimed that the “no contact rule” only applies to attorneys and not to non-attorney contact with parties to a lawsuit. As such, ACE asserted, Mosseri’s communication with the Millers was neither improper nor unethical, since Mosseri is not a lawyer.

After assessing the allegations,  Ruchelsman ordered ACE to pay $3,000 to the Millers’ attorneys and $7,000 to the Lawyers’ Fund for Client Protection, finding that Mosseri’s presence in the courtroom “was not merely done to act in a courteous and friendly manner, but was done with a specific and definitive goal and purpose.”  

In fact, Mosseri stated in her affidavit that she was “specifically invited to attend the conference because of her fluency in Hebrew.”

After years of negotiations, the Millers and Duane Reade have announced a settlement agreement. The details of the settlement have not yet been made public as Ruchelsman must approve the final settlement arrangement.

“I honestly thought that this was a large case,” Miller’s attorney, Evan Torgan, told the Brooklyn Daily Eagle. “I just knew that we had to fight hard for her against Duane Reade and its insurance company.”

Deciding what number was an appropriate settlement amount was a difficult task, Torgan noted. “You look at what you think the appellate court will let keep after a jury trial.” The Appellate Division looks at similar cases with similar injuries in an attempt to achieve some level of consistency in settlements, Torgan explained.

“This was a very difficult case to evaluate,” Torgan reflected. “There was not way to quantify it. [You just go with] a number that is fair.”

Duane Reade was represented by Jeffrey O’Hara of LeClairRyan in Newark, N.J., and Eric Berger of Cozen O’Connor.  

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