"Drifting Dan" Carlock wins $1.68 million after being left at sea

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You mean like appearing on the Today Show and on Oprah? Because he did both of those (pre-trial). I don't remember any outrage at the system during those interviews.

Yes, that is what I meant by the (has). I haven't lived in SoCal in 15 years, but I come back frequently to "visit family" and by that I mean "Dive". I think there has been a serious change in procedures on the boats, since we first heard about Drifting Dan. All happened prior to the verdict. So why wasn't that enough, if all he really wanted to do was change the system??
 
That's my understanding as well. The amount of hours the plaintiff's lawyer puts into this case doesn't translate to more money. Only if they win does he get anything at all. It's a percentage of the winnings, not a by-hour fee. (I expect it's something like 1/3, but I'm just speculating, based on what other attorneys I've spoken to have suggested).

My BIL is a personal injury attorney and the contingency fee he uses is 33% if it settles and 45% if it goes to trial. To settle or go to trial is always the decision of the client.
 
I wonder what would have happened if Dan went to the shop and said "look, you screwed up. I'm worried about my health because of this and if it will happen to someone else. Give me $20k for my pain, suffering, PTSD and blistering sunburn on my cheeks and promise to change your procedures. Do that and I'll sign a release."

The funny thing is that many huge awards started off just like that but the defendant refused to accept one iota of responsibility or pay one nickel in damages.

The problem is that if the defendant agrees, he has to pay it out of pocket. He can't call up his insurer and say "hey, I settled a dispute with a customer, cut him a $20k check, please". A claim would have to be filed and the insurer decides whether to pay or deny.
 
I understand that the DM claimed that he marked Dan back from the first dive because someone answered for him. I do not know if this was contradicted at trial or if the jury believed it.

To the best of my knowledge, this claim was not contradicted at trial. In fact, I believe that one or two others also testified that someone said "Here" when Dan's name was called at Eureka. However, no one's ever figured out who that was nor has anyone come forward and volunteered that they were the culprit.

- Ken
 
The problem is that if the defendant agrees, he has to pay it out of pocket. He can't call up his insurer and say "hey, I settled a dispute with a customer, cut him a $20k check, please". A claim would have to be filed and the insurer decides whether to pay or deny.

No, but what he could do is say, "That might be doable but I have to run it by my legal counsel first." Then he notifies his attorney who would notify the insurance company who would advise on whether or not to accept (I assume in this specific case they'd have been very happy to settle for $20K) and the insurance company and the lawayer would draw up papers and take it from there.

- Ken
 
The funny thing is that many huge awards started off just like that but the defendant refused to accept one iota of responsibility or pay one nickel in damages.

Yup, it sounds like that is exactly what happened in the McDonald's case...!
 
Mike, I suspect that you do not know much about the infamous McD Coffee case.

McDonald's knew that the coffee was far more dangerous than the coffee served by other outlets and choose to serve in anyway, without warnings, despite many injuries that had already been caused. They showed what could only be considered callus disregard for safety.

There is a lot of hype about the McDonalds' scalding coffee case. No one is in favor of frivolous cases of outlandish results; however, it is important to understand some points that were not reported in most of the stories about the case. McDonalds coffee was not only hot, it was scalding -- capable of almost instantaneous destruction of skin, flesh and muscle. Here's the whole story.

Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car when she was severely burned by McDonalds' coffee in February 1992. Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drivethrough window of a local McDonalds.

After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. (Critics of civil justice, who have pounced on this case, often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true.)

Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.

The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused.

During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonalds' knowledge about the extent and nature of this hazard.

McDonalds also said during discovery that, based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonalds' quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the "holding temperature" of its coffee.

Plaintiffs' expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

McDonalds asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the companys own research showed that customers intend to consume the coffee immediately while driving.

McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer thirddegree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder" since the location of the writing would not warn customers of the hazard.

The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds' coffee sales.

Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees fahrenheit.

The trial court subsequently reduced the punitive award to $480,000 -- or three times compensatory damages -- even though the judge called McDonalds' conduct reckless, callous and willful.

No one will ever know the final ending to this case.

The parties eventually entered into a secret settlement which has never been revealed to the public, despite the fact that this was a public case, litigated in public and subjected to extensive media reporting. Such secret settlements, after public trials, should not be condoned.

excerpted from ATLA fact sheet. © 1995, 1996 by Consumer Attorneys of California
 
Note and warning for everyone:

Nearly every liability insurance policy has a clause that says that the policyholder cannot voluntarily incur any obligations without the insurance company's consent. The court's interpret this to mean that if the policyholder hires an attorney without the insurance company's consent or agrees to settle a claim without the insurance company's consent, it is the policyholder's own responsibility to pay. There are, of course, some limited exceptions. For example, if something must be filed immediately and the policyholder can't wait for the insurance company, the attorney's fees are payable by the insurance company. And, if the insurance company denies coverage, it cannot later complain that the insured settled without its consent.

Now, here's the interesting part: If there is an offer to settle for a sum that is within the policy limits at a point in time where there is a substantial likelihood of a verdict that is in excess of those policy limits, and the insurance company unreasonably fails to accept it there is a good chance that the insurance company will have to pay an adverse verdict regardless of the policy limits.

So, if Dan had offered to settle for $20K and the shop or boat reported that the the insurance company and the insurance company said to pound sand, it could be responsible for the entire verdict regardless of the policy limits. And, if there were collateral injuries to the shop or boat as a result of the verdict, it could be liable for that, too.
 
Another note and warning in as much as Thal has now described details of the McDonalds case:

There was another somewhat similar case recently in California. The plaintiff drove up the the drive up window of a Jack in the Box and got coffee. As she took the cup from the attendant, the cup fell from the lid, which was not properly attached and poured into her lap. Because of the way the car was situated adjacent to the wall, she could not get out and because of her seat belt, she could not lift herself from the seat. Instead, she had to sit in the scalding coffee and drive forward far enough to be able to open her door and get out. As a result, she suffered severe injuries. She sued Jack in the Box.

Here is the part for people in California to note: The court held that the plaintiff was not entitled to recover for her pain and suffering because she did not have automobile liability insurance and under California law, one who does not have automobile liability insurance cannot recover for pain or suffering arising out of an incident in which he or she is operating a motor vehicle!
 
Mike, I suspect that you do not know much about the infamous McD Coffee case.


Uh... yes, that is why I posted that link giving the same information that you just posted.

Reefhound had said "The funny thing is that many huge awards started off just like that but the defendant refused to accept one iota of responsibility or pay one nickel in damages."

and I pointed out that was exactly what happened in the McDonald's case - McDonalds was in the wrong, they knew that this sort of thing had happened before, Liebeck initially offered to settle for just her medical bills ($20,000), but McDonalds was not willing to admit any guilt or give her any money.


Sorry, maybe you thought that I was making a different point?
 

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