Switch Pays Off For Defense Lawyer

Insurance defense attorney makes rare move to the other side and wins verdict four times pretrial offer

[From The Daily Report, August 2, 2011 issue]

By: Katheryn Hayes Tucker ktucker@alm.com

Insurance defense attorney Matthew G. Moffett of Gray, Rust, St. Amand, Moffett & Brieske “became a switch hitter” and tried a case for a plaintiff in Cherokee County State Court in July. He came away with a $100,000 verdict—four times the highest pretrial defense offer—and a new perspective on the roles played by both sides.

The plaintiff, Marcy Martorana, was driving a Mazda3 coupe on Frey Road in Kennesaw at 7:45 a.m. Jan. 30, 2008, when she was hit from behind by a modified high suspension 1998 Ford Ranger pickup driven by defendant Jason Robert Hendrix, who had just made a left turn out of a Shell station, according to the pretrial order.

The plaintiff requested compensation for past and future pain and suffering, past medical bills of $21,460, future medical bills, lost wages of $1,156, loss of enjoyment of hobby, punitive damages and attorney fees and expenses because Hendrix previously had been cited for improper equipment in his jacked-up truck, as well as reckless driving.

In this incident, Hendrix was cited for an improper left turn.

The case was tried in one day, July 19. The jury awarded the plaintiff $100,000 plus prejudgment interest of $4,181 and post-judgment interest of $17.12 per day until paid in full, according to the judgment signed by Cherokee County State Court Chief Judge C.J. Gober Jr.

The defendant’s insurance carrier, Progressive, initially offered $7,000 to settle, then eventually raised that offer to $25,000, according to Moffett—which, he said, is why he got involved. “I thought the insurance company was making an offer that was way too low,” said Moffett. “We were right.”

Progressive’s defense attorney, Toqeer A. Chouhan of Worsham, Corsi, Scott & Edwards, did not respond to requests for comment.

Moffett said he agreed to evaluate the case for his friend and former Emory School of Law classmate James F. Imbriale of Hartman-Imbriale. He then wound up trying the case with Imbriale.

“I’m a defense lawyer. I’ve always been a defense lawyer. That’s what I do,” Moffett said. But a few times in his 20-year career, he has taken on plaintiffs’ cases, mostly for his insurance clients or their friends and family and sometimes when asked to by his father, plaintiffs’ lawyer F. Glenn Moffett Jr. of the Moffett Law Firm. But this was the first time the younger Moffett can remember trying a plaintiffs’ case to verdict. He does remember plenty of times when, as a defense attorney, he faced plaintiffs’ lawyers in court who know his father and asked him why he went to “the dark side”—which is how he said plaintiffs’ lawyers refer to the defense side.

The draw to switch sides in this one case, Moffett said, was that he didn’t think the defense was making a reasonable offer to settle—which is also sometimes his complaint with plaintiffs’ lawyers.

“I like a lot of plaintiffs’ lawyers, I really do. I think I get along with a lot of plaintiffs’ lawyers,” Moffett said. “But the one thing that bothers me about plaintiffs’ lawyers is that at times they seem to be overcome by their zeal. I tried either six or seven cases for the defense last year, and in every one of those cases, I made significant six-figure offers to settle. And they got nothing. The jury gave them nothing.”

Switching sides in the Cherokee case was a change in perspective for Moffett. “After the jury was impaneled, I said, ‘That’s an awesome jury.’ Then I said, ‘Wait a minute. I’m not the defense lawyer.’”

Moffett said he ran out of strikes before he could remove every juror he thought would be favorable for the defense. He said his first two strikes were for potential jurors who reported they owned “monster trucks and drove them to the courthouse.” His third strike was a juror who expressed “sympathy” for the defendant. The fourth and fifth reported past neck and back pain that they “dealt with.” The sixth was another high-suspension truck fan. So Moffett had to keep a juror he thought would favor the defense because the individual was a 25-year employee of an insurance company.

The jury makeup was all white, mostly male and middle aged, according to Moffett.
Moffett said he learned that lawyers for the plaintiffs have to work just as hard as those for the defense. Also, he said, plaintiffs’ lawyers have to be especially thorough in presenting their case because “the defense lawyer is going to poke holes in it.”

He thinks either side can score points with jurors by respecting their time and by “connecting with them in a reasonable, humble and professional way.”

A lot of the view from the other side was the same. “To me, it was about winning a case for a client,” Moffett said. “I approached it the same way.”

The case is Martorana v. Hendrix, No. 09-SC – 0898.