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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

WINDING v. MCGRUDER et al

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Case Number: 
2:15-cv-04648 Search Pacer
ACE Group party(s): 
Opposing Party: 
Devona Winding
Court Type: 
Federal
US District Court: 
Eastern District of Louisiana
Date Filed: 
Sep 23 2015

WILLIAM J. MCGRUDER,
WERNER ENTERPRISES INC. OF NEBRASKA'
AND ACE AMERICAN INSURANCE CO
FILED:    

PETITION FOR DAMAGES
The petition for damages of Devona Winding, a person of the full age of

majority residing in the Parish of Orleans, State of Louisiana, respectfully represent :
I.
Defendants, William J. McGruder, upon information
lull age of majority residing in the City of Fultondale, S&ttfPtjfiiftLlakanta, Werner
Enterprises, Inc. of Nebraska, upon information and belief,l,iI MfM'^rf^bffioration,
authorized to do and doing business in the State of Louismnafan^Ace American
Insurance Company, upon information and belief, a forgi^n^i^^rance company,
authorized to do and doing business in the Parish of Orleans, State of Louisiana, are
justly and truly indebted unto plaintiff, jointly, severally and in solido, for damages
reasonable in the premises herein, despite amicable demand on defendants to no
avail, together with legal interest thereon from the date of judicial demand, until paid,
and for all court costs incurred in these proceedings, for the following reasons, to wit:
II.
On or aboutNovember 26,2014, plaintiff, Devona Winding, was operating her
2002 Chevrolet Impala, in a safe and cautious manner, and was proceeding along I-10
near Downman Road, in the Parish of Orleans, State of Louisiana, when suddenly and
without warning, a 2010 Freightliner tractor trailer, owned by Werner Enterprises,
Inc. of Nebraska and operated by William J. McGruder, improperly passed and/or
changed lanes striking the vehicle of Devona Winding, causing plaintiff personal
injury and severe property damage all as is hereinafter set forth (see photos attached
hereto listed as Exhibit I).
III.
Plaintiff shows that the aforementioned accident and resulting damages were
caused solely andproximately by the negligence of defendants, William J. McGruder,
and Werner Enterprises, Inc. of Nebraska, in that they:
As to William J. McGruder, he:
1.    Negligently failed to keep a proper lookout;
2.    Negligently failed to see what should have been seen, or seeing,
failed to heed same;
3.    Negligently failed to keep his vehicle under proper control;
4.    Operated his vehicle at an illegal, unlawful, excessive and unsafe rate
of speed for existing conditions;
5.    Negligently operated his vehicle in a careless, reckless and wanton
manner;
6.    Negligently failed to stop his vehicle in sufficient time to avoid
hitting plaintiffs vehicle, in turn striking plaintiffs vehicle;
7.    Negligently failed to sound a warning of his approach;
8.    Negligently changed lanes, improperly passed and/or lost control of
his vehicle and crossed lanes and failed to yield the right-of-way,
striking plaintiffs vehicle traveling in the right lane of the I-10-
Interstate, in violation of the statutes of the State of Louisiana and
the ordinances of the Parish of Orleans;
9.    Failed to exercise proper caution and thereby avoid said collision;
10.    Negligently changed lanes striking plaintiffs vehicle in the rear
causing an accident;
11.    Was operating his automobile in a dangerous manner as he was
unable to stop his vehicle in time to yield the right of way to plaintiff
who had the right of way, thereby causing an accident;
12.    Drove at excessive speeds;
13.    Was inattentive;
14.    Was distracted inside the vehicle, such as by loud music, cell phone
usage or eating while driving;
15.    Used inadequate defensive driving techniques;
16.    Made incorrect assumptions about other drivers; and
17.    Failed to use the proper care and caution under the circumstances
then prevailing both in the maintenance and operation of his vehicle.
As to Werner Enterprises, Inc. of Nebraska they:
1.     Negligently allowed a person to operate their vehicle who they knew
or should have known to be an incompetent and/or careless driver;
and
2.    Failed to maintain their vehicle in proper operating condition as to
make it safe upon the highways of the State of Louisiana.
IV.
The above-mentioned acts of negligence are merely illustrative and are in
addition to other acts of negligence which shall be shown at the trial of this matter.
Furthermore, the above-mentioned acts of negligence are in violation of the laws of
the State of Louisiana and the Parish of Orleans, all of which laws and ordinances are
pleaded in full as if copied herein in extenso.
V.
As a result of the foregoing accident, plaintiff, Devona Winding, sustained
injuries to her mind and body, as plaintiff s vehicle was struck by defendant’s vehicle
on the left rear side and trunk, plaintiff was jolted about, resulting in injuries
including, but not limited to, injuries to plaintiffs neck, back and left side of her
body, including left shoulder and left rib cage, all injuries caused and/or aggravated
by said accident, causing her to seek medical attention and incur medical expenses,
further causing her to suffer a loss of wages and earning capacity both past and future,
with a potential loss of wages and earning capacity both past and future. MRI testing
shows disc herniation in the cervical spine in the C2-3, C3-4, C5-6, and C6-7 with
lumbar MRI indicating disruption of the disc space at L3-4 and bulging at L5/S1,
which findings were caused or aggravated by the accident herein.
VI.
Plaintiff avers that defendant, Werner Enterprises, Inc. of Nebraska, maintains
automobile public liability insurance with defendant, Ace American Insurance
Company, and pursuant to the provisions of the Louisiana Direct Action Statute, the
said Ace American Insurance Company is specifically named and pleaded as a
defendant herein, liable jointly, severally and in solido with its insured, Werner
Enterprises, Inc. of Nebraska, for the damages sustained by plaintiff herein.
VII.
Plaintiff lacks information as to whether the driver of the defendant vehicle,
William J. McGruder, has other liability insurance coverage which will protect and
indemnify him for damages sustained by plaintiff herein, and plaintiff therefore
reserves all rights herein to amend and supplement the petition in the event that
William J. McGruder has liability insurance with another insurance company other
than that on the vehicle in which he was driving, said vehicle owned by Werner
Enterprises, Inc. of Nebraska and insured by Ace American Insurance Company.
Plaintiff avers, upon information and belief, that William J. McGruder was operating
the 2010 Freightliner tractor trailer vehicle with the express consent and permission
of Werner Enterprises, Inc. of Nebraska as he was operating said vehicle in the course
and scope of his employment.
VIII.
Plaintiff itemizes her damages as pain and suffering, past, present and future,
mental anguish, inconvenience, humiliation, frustration, loss and/or restriction of
activity and the enjoyment of life, medical transportation and other miscellaneous
general damages, medical expenses, past, present and future, loss of wages and
earning capacity, past, present and future, together with property damage and/or
diminution of value to her vehicle, a 2002 Chevrolet Impala, and plaintiff prays for
a judgment awarding her damages as are reasonable in the premises herein.
Plaintiffs damages may exceed that sum necessary to maintain trial by jury.
IX.
Plaintiff further avers amicable demand on defendants to no avail.

WHEREFORE, plaintiff prays that her petition be filed, that all defendants
be duly cited to appear and answer same, that after due proceedings be had there be
judgment herein in favor of plaintiff, Devona Winding, and against defendants,
William J. McGruder, Werner Enterprises, Inc. of Nebraska and Ace American
Insurance Company, jointly, severally and in solido, for damages reasonable in the
premises herein, together with legal interest thereon from the date of judicial demand,
until paid, for all court costs incurred herein, and for all other general and equitable
relief as the law and the facts may warrant.
 

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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