A Sacramento jury awarded $3.2 million Friday to a woman who got run over two years ago by a drunken driver, and now it’s the defendant who lost the civil case who is poised to sue – her own insurance company.
Patricia Borders is currently in the women’s facility at Folsom State Prison on a criminal conviction in the June 1, 2012, collision at the intersection of Fair Oaks Boulevard at Howe Avenue, which broke Amy Elliott’s back, one of her legs and a wrist, and left her with a traumatic brain injury.
Personally facing a big payout in the civil case, Borders has retained a lawyer to go after Mercury Insurance Group on grounds that it acted in bad faith in settlement talks with the lawyer who represented the two plaintiffs who filed personal injury lawsuits against her in the drunken driving crash.
Borders, 59, had only $100,000 in insurance coverage, and she is personally responsible for the remaining $3,182,993 the jury awarded Amy Elliott for her past and future medical costs, and pain and suffering.
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The same panel also sustained punitive damages against Borders, but given her status as a state prisoner who makes 65 cents an hour as a clerk, the jury docked her only $2,000 in that category.
Eric Ratinoff, the Sacramento lawyer hired by Borders for the suit against the insurance company, said that Mercury “failed to resolve this case pursuant to terms that would have made the whole thing go away, well within the policy, and they chose not to, and they exposed her to an excess verdict as a result.”
“They had an opportunity early on,” Ratinoff said of Mercury. “Insurance companies have an obligation to not sit back and wait for people to make demands. They have an affirmative obligation to protect the insured, when the evidence is there to support a loss, to make a fair and reasonable offer. And that didn’t happen until it was too late.”
In the civil case, attorney Christopher Wood represented Elliott and her boyfriend, Steven Galvan, who also claimed an injury to his left knee in the collision.
Wood said the plaintiffs were willing to settle the case last year at $100,000 for Elliott and $30,000 to Galvan, but Mercury initially did not want to pay that amount to the boyfriend. Just before trial, Mercury made Galvan a $100,000 offer. He refused it. The jury on Friday awarded Galvan $32,688.
In a prepared statement, Mercury’s national director of legal operations, Tom Yost, said the claims of bad faith “couldn’t be further from the truth.”
“Mercury made several settlement offers to Ms. Elliott and Mr. Galvan prior to trial and all of them were rejected by their attorney,” Yost’s statement said. “Mercury, on behalf of our client, offered Ms. Elliott the policy limit of $100,000 almost immediately as a result of the seriousness of her injuries. Mercury also offered to settle with Mr. Galvan on two separate occasions and each time it was rejected by his attorney. Finally, just before trial we made a final offer to pay the policy limits of $100,000 each to Ms. Elliot and Mr. Galvan. This was also rejected by their attorneys, so we had no choice but to go to trial.”
Testimony in the civil trial began in front of Judge Gerrit W. Wood on Sept. 3, more than a year after Borders pleaded no contest in the criminal case to three felonies and two misdemeanors for the previous year’s collision. A traffic camera video shows Borders’ car smashing into Elliott, 51, and Galvan, 60, as they were preparing to cross Fair Oaks Boulevard on foot at Howe Avenue to go to a Safeway.
A blood-alcohol reading on Borders showed her registering at 0.28 percent, or 3 1/2 times the legal limit to drive, according to evidence at trial. Borders, with two prior DUI convictions on her record, was sentenced to five years and four months in prison.
Borders, who had been a licensed clinical social worker, testified in a deposition prior to the civil trial that she was making crepes suzette and downed a shot of Grand Marnier the morning of the accident. She said she went to bed and doesn’t remember returning to consciousness until well after the collision. She apparently was on her way to pick up her daughter at West Campus High School at the time of the wreck, the plaintiffs’ lawyer said.
The traffic camera showed Borders’ car swinging wide right while trying to make the left-hand turn from eastbound Fair Oaks onto northbound Howe Avenue. She jumped the curb at the corner and bounced Elliott forward across the hood of the Prius. Elliott, an Arden Arcade resident who wasn’t employed at the time of the collision but who had worked as a cleaning woman for more than 20 years, cracked her head on the windshield before flying 10 to 13 feet into the air.
The violent return to the ground on a grass strip at the side of the road fractured her back in several places, her lawyer said. She also broke her left leg below the knee in the collision, as well as her right wrist and eight of her ribs. She suffered a punctured lung and a “diffuse axonal brain injury” that has affected her memory and her balance.
The video showed Galvan, who had a landscape maintenance business, spinning away from the car, but does not conclusively show whether the vehicle struck him. He testified that it did.
After she hit Elliott and possibly Galvan, a police car’s video depicted Borders driving off the grassy strip and hitting another car. She was arrested at the scene.
In his closing arguments Tuesday, plaintiffs attorney Wood asked the jury to award Elliott $6,025,493 and Galvan $762,992, as well as an unspecified level of punitive damages for the two of them.
“Do what this community believes is fair for people who have been put in this position by no decision of their own,” Wood said, citing the injuries sustained by Elliott and Galvan, “but by the decision of someone else.”
Borders’ attorney, John P. Hallissy, who was paid by the Mercury Insurance Group, conceded in his closing argument that Galvan’s medical costs and her pain and suffering amounted to an award worth $1,083,193.
“That is a significant amount that holds Ms. Borders accountable,” Hallissy said.
Hallissy disputed whether Galvan suffered any injuries as a result of the collision. He asked the jury to award him nothing, but if it did find Borders’ liable, to limit Galvan’s damages to a total of $34,880.31.