How To Write A Million Dollar Demand Letter

The pretrial report from the defense’s expert witness, Kevin O’Connor, blamed the cause of the fatal accident on roadway deficiencies, rather than the negligence and recklessness of the defendant driver, Kenneth E. Smith.

Nonsense, replied Scott A. Bennett Esq. of The Beasley Firm; it was Kenneth E. Smith who was responsible for the fatal accident.

“Given such a laughable contention,” Bennett wrote the defense lawyer on Feb. 24, 2009, “I can only assume that Mr. O”Connor has been smoking the same drugs that Mr. Smith was smoking. If you truly believe that someone operating a motor vehicle while under the influence of marijuana on the wrong side of the road bears no responsibility whatsoever, I can only hope that you will actually advance such a nonsensical contention at trial.”

At 8 a.m. on April 24, 2007, Smith was driving a 2002 Volvo dump truck owned by The Top Soil Depot, Inc. eastbound on Route 530 in Pemberton Borough, Burlington County, N.J., when he lost control of his truck, crossed over the center line, and struck head-on a car driven by Patricia Henderson. Henderson, 57, a evangelical minister who lived in Lindenwold, N.J., was on her way to her day job as a beautician.

Henderson died instantly of multiple injuries that included massive bleeding from her aorta and left lung. Bennett filed a civil lawsuit on behalf of Henderson’s five adult children.

Further complicating Top Soil’s case was that since the accident, the company had not been able to locate Smith. He did leave behind a web posting, however, that said of Top Soil, “They don’t check your license, no drug testing.”

A toxicology test taken six hours after the accident showed that Smith had a 2.6 blood level of Delta-9-THC, a marijuana constituent.

“The eyewitness testimony and police investigation show that Mr. Smith, for his part, conducted himself with a shocking indifference to Ms. Henderson’s safety,” Bennett wrote Brian Calistri, the defense lawyer representing Top Soil.

“His decision to become inebriated by marijuana prior to operating a dump truck is an act of recklessness,” Bennett wrote. “His decision to drive his large truck on the wrong side of the road into oncoming traffic is an act of utter carelessness and callous disregard for safety. Your client has responded to these unforgiving facts by concocting a specious defense which heaps all of the blame on the State of New Jersey and Pemberton Township. You will need Chelsea Sullenberger to make that defense fly.”

Sullenberger is the hero pilot who successfully ditched US Airways Flight 1549 in the Hudson River on Jan. 15, 2009, saving the lives of all 155 passengers on board.

“At the time of the accident, Ms. Henderson was simply innocently driving to work,” Bennett wrote the defense lawyer. “She suffered an unnecessary and agonizing death. The collision was so violent that Ms. Henderson’s vehicle rotated nearly 180 degrees following impact and came to rest 33 feet east of impact onto the law of a residence,” according to police.

In his letter, Bennett reminded the defense lawyer about his client’s comforting nature, and how that might play on a jury’s sympathies.

“I have provided you with numerous heartwarming, nurturing notes and cars from Ms. Henderson, written to her children . . . exhibiting extraordinary support, guidance and counsel,” Bennett wrote. He reminded the defense lawyer that New Jersey law says that damages are recoverable “for the loss of a mother’s training and nurture” even “after the child reaches majority.”

One of Ms. Henderson’s children, Nacole, was particularly dependent on her mother as she suffered from post traumatic stress disorder after a 2003 car accident.

“My mother was very, very, very loving, very caring,” Nacole Henderson testified in her deposition, as quoted by Bennett. “When I got in my car accident in 2003, I lived with my mother. She took care of my children. She cooked, she cleaned, she washed my clothes and my children’s clothes. She transported me back and forth to numerous doctors’ appointments. She helped out in any way that she saw a need, whether that was to babysit or not.

“My mother was an evangelist,” Nacole Henderson continued, “so that meant prayer for myself and my children. For approximately two years, she took care of me and my daughters as I went through the recovery process . . . I still need assistance, to be honest with you. I got that assistance up until the time she died.”

Bennett reminded the defense counsel that “a jury award for Nacole Henderson alone” could dwarf the company’s liability coverage.

“Anyone objectively reviewing this case with regard to coverage would certainly conclude that your client is woefully underinsured for this claim,” Bennett wrote. “Generally, it is our firm’s practice not to levy on the personal assets of defendants in situations where a defendant has consented to settle and has made a bona fide attempt at amicable resolution. However, in circumstances where a defendant does not display any good faith effort to resolve a case, which should be resolved, we certainly have no qualms whatsoever in proceeding against personal assets.” Bennett added that any punitive damage award by a jury would be paid from the personal assets of Top Soil.

“Litigation is all about managing risk,” Bennett concluded in his letter. Without a settlement, if the case went to trial, Top Soil would be “open to financial ruin, and your principal subject to bad faith claims. Please be guided accordingly.

“Very truly yours, The Beasley Firm, LLC; Scott A. Bennett, Esq.”

The case settled for $1,175,000.