1.25 Million Dollar Ice Cream Sandwich

A homeless man who was struck from behind while riding his bicycle last April has reached a pre-trial settlement totaling $1.25 million, his attorney reports.

Michael J. Levine of the Levine Law Group, PA reports that Norman Kelly was riding his bicycle down Williamson Road in Mooresville, North Carolina when he was hit by a vehicle driven by David McCraw. Both Kelly and McCraw were returning home – Kelly to his tent in a section of woods adjacent Ponderosa Circle and McCraw to his parent’s house on the same road. The impact threw Kelly from his bicycle while McCraw continued driving. Emergency personnel responded to the scene after a passing motorist noticed Kelly and his bike lying beside the road and dialed 911.

Kelly suffered multiple traumatic bodily injuries, including several fractures in his cervical spine, which permanently and severely limited the use of his legs, arms, and hands. He now uses a powered wheelchair for mobility and requires around-the-clock care.

At the time of the accident, Kelly was already represented by Thomas W. Gooden of the Levine Law Group in a claim for disability benefits from the Social Security Administration. Gooden was contacted on behalf of Mr. Kelly by Steve Byrd, a member of the Cove Church in Mooresville. Over the past several years, Mr. Kelly had volunteered at the Cove Church and developed strong friendships with many of its members. “My heart sank when Steve told me about the accident,” Gooden said. “I knew that helping Norm had just become a far greater challenge.”

Under deposition, McCraw stated that prior to the accident he attended a gathering of friends and then stopped at a local QuikTrip for snacks. He was opening the wrapper of an ice cream sandwich when he felt his vehicle strike what he believed was a mailbox. McCraw drove further down the road before he turned into a residential neighborhood and stopped due to a flat tire. McCraw called his father for help changing the tire and, while waiting on his father, finished his ice cream sandwich. The McCraws changed the tire and then drove home, despite seeing emergency vehicles responding to the area of the collision. Later that night, they eventually returned to the scene and the responding police officer charged David McCraw with reckless driving and a hit and run.

Due to the permanent nature of Kelly’s injuries, Levine Law Group contacted Cynthia Wilhelm, Ph.D. to prepare a Life Care Plan, documenting that the anticipated cost of Kelly’s future care was in the millions of dollars. However, the McCraw’s insurance carrier, Allstate, refused to make any settlement offers and responded only with a request that Kelly waive his right to civil litigation and agree to arbitration.

“Mr. McCraw couldn’t be bothered to stop at the scene and Allstate couldn’t be bothered to make an actual offer,” said Levine. “Litigation was the only way to get them to take this seriously.” The reply to the complaint denied that Kelly had a compensable claim, asserting that he was contributorily negligent due to a lack of proper lighting. However, further investigation revealed that the witness who first dialed 911 noticed Kelly because of the blinking light from his bicycle.

“Allstate thought this was just a bum on a bike at night and that he didn’t have a case,” said Levine. “But it wasn’t that at all. The night he was hit, Mr. Kelly was returning from a church member’s office, which he was paid to clean and had his own key. He was trusted with access to churches and businesses and given gifts for things he needed. Unfortunately for Allstate, one of those gifts was a light for his bike, which they pretended didn’t exist. But it existed when the witness saw a blinking light by the road. And it existed when police took pictures of the scene.”

At the end of an all-day mediated settlement conference, the parties agreed to settle Kelly’s case for $1.25 million upon proof that such a settlement exhausted the applicable insurance coverage. “Mr. Kelly’s case shows how if you stay persistent, if you keep digging, you can find some justice,” said Levine. Kelly’s settlement funds were placed into a special needs trust, managed by his church friends, to ensure his continued access to the best possible treatment and care.

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