Howard Trafman Obtains a Voluntary Dismissal in a Wrongful Death Case

Howard Trafman obtained a voluntary dismissal in favor of defendants in a wrongful death/survival lawsuit.

A registered corporation, itself and in the name of its deceased employee, sued a trucking company and its driver. Plaintiff alleged that Defendants were operating a 2016 Kenworth Tandem truck while working at the accident site in Moline, IL.

The deceased employee of the corporation was working at the accident site.  While walking on the site, the employee was run over by the 2016 Kenworth Tandem truck, which was slowly backing up, and suffered fatal injuries.  The lawsuit alleged the truck driver was negligent or reckless in certain acts or failures to act, such as failing to keep a safe and proper lookout for pedestrians.  It was also alleged that the employee was not killed instantly (Survival Action) and that the corporate defendant failed to properly train and supervise its driver.

Plaintiff alleged that it had a statutory right to recover damages for injuries suffered by its deceased employee and for recovery of its workers’ compensation lien pursuant to 820 ILCS 305/5(b), or Section 5(b) of the Illinois Workers’ Compensation Act (IWCA).  Plaintiff further alleged it was entitled to pursue “all damages provided by law, including reimbursement of its workers’ compensation lien on its own behalf, and past and future economic losses and burial and funeral expenses, in the name of its employee…”  Finally, Plaintiff alleged its employee suffered additional damages, including pain and suffering, lost earnings, medical expenses, physical disability and loss of normal life, and that it was pursuing a survival action damages in the name of its employee.

Defendants filed an answer including aggressive affirmative defenses alleging comparative fault on behalf of both the registered corporation, and its employee.  It was Defendants’ position that the truck was being signaled backward by another employee of the registered corporation and that Plaintiff entered the roadway directly in the path of the slow-backing truck.  Plaintiff moved to strike the affirmative defense of comparative fault which focused on the negligent actions of the deceased, himself, and the court denied the same.  At the same time, the defense propounded tailored written discovery at Plaintiff which required Plaintiff to further investigate the accident and provide information on the same to the defense – some of which was going to be less than favorable to Plaintiffs.  Plaintiff voluntarily dismissed the lawsuit and continued to defend its denial of the workers’ compensation claim filed against it by the deceased employee’s family.