Settlement almost always means that the plaintiff compromises the full value of the case. However, thanks to the art of creative lawyering, sometimes a plaintiff can get full justice even when settling. This case, referred to us by one of our co-counsel referring attorneys, is the perfect example of how important it is to go past the traditional ways of litigating a case to find the course of action that will best serve our client.
The 28-year-old victim pulled her car into the garage of her Boca Raton townhome where her boyfriend was waiting for her. By the following morning, she was dead, and her boyfriend was unresponsive due to irreversible brain damage. The cause: carbon monoxide poisoning from the vehicle left running in the garage all night. Kelley/Uustal brought suit against the manufacturer of the vehicle. Our complaint alleged that the vehicle was defective in that it failed to provide an adequate warning when the driver exited the vehicle with the motor running, a scenario made possible due to the keyless ignition feature. After several years of litigation, the car company settled.
Even with this part of the case over, we always suspected a crucial fact was missing. The victim’s upstairs bedroom – two floors above the garage, had incredibly high levels of carbon monoxide, even by the time the investigators arrived. We obtained a court order to cut into the garage wall to explore how it was built, and why such high concentrations of the gas were able to travel several floors. We found that the safety wall had been built incorrectly, leaving a gap through which the gas filtered into the home.
With this new information, we sued the general contractor that built the townhome. Discovery revealed that the firewall, which was required to keep fire, gasses, and fumes from entering the home from the garage, existed in the blueprints. However, the contractor and subcontractors made a change in the construction which led to the gap we found. The general contractor defended the lawsuit by claiming that the gap was intentional and acceptable, yet unrecorded, change in the construction plan. We then moved the court for the right to seek punitive damages, and our motion was granted. The defendant settled, agreeing to assign all its rights to subrogation to us in a new case against the subcontractor. This third lawsuit is still pending.
Creative lawyering involves detective skills, new ways of thinking, and the commitment to follow every lead wherever it goes. By thoroughly exploring every aspect of the case and the events leading up to it, we were able to find three different ways to obtain full compensation for our clients.