Facts: An employee at an automatic car wash was crushed by a truck when he jumped in front of it to try and stop it. The insured, civil engineer, designed a grading plan for a car wash over 16 years ago. The named insured acquired another firm and the predecessor firm was an additional insured on the policy. Plaintiff required a tracheotomy and claimed damages in excess of $5 million for future medical, pain and suffering and lost wages.
Claim against the insured: Plaintiff alleged that the engineer’s plans were deficient because they did not accurately reflect what the architect called for. The plaintiff’s theory was that the insured fell below the standard of care by not asking for additional information about the car wash. The theory was that: (1) had this request been made, the insured would have learned about the manufacturer’s recommendation of 20′ of flat; (2) the insured would have incorporated this into the grading plan; (3) the grading would have been done per the insured’s plan and (4) the incident would never have occurred because the truck would have stopped within the 20′ section.
Defenses: The architect’s plans called for 20 feet of level pavement at the exit of the automatic car wash, but only 12 feet was actually level. The facility was not built to plan. When a dimension is not specified on the grading plans, the contractor should refer to the architect’s plans and if he had the contractor would have seen the 20 foot dimension. Engineer was also not retained to do site inspections and was not present during the grading process.
Settlement considerations: Architect was deceased and had no coverage. Plaintiff settled with the contractor, manufacturer and carwash for $2,775,000. Insured was left as last man standing and received a limits demand.
Policy Limit: $2,000,000 per claim, $35,000 deductible.
Resolution: Global settlement $3,725,000. Insured contributed $950,000. Defense costs $243,000.