YOUNG v. NESTLE TRANSPORTATION COMPANY et al
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"NOW COMES the Plaintiff in the above styled action and herewith states his complaint against the Defendants by showing the court the following:
1. Plaintiff is a resident of the State of Georgia and resides in Kathleen, Georgia.
2. The Defendant Nestle Transportation Co. (hereinafter referred to as "Nestle") is a foreign corporation organized under the laws of the State of Illinois. Said corporation is not registered to do business in the State of Georgia, but does conduct business within the Middle District of Georgia. Said corporation maintains its principal office in Dekalb, Illinois and is subject to the jurisdiction and venue of this court by service of process upon its registered agent, C T Corporation System at 208 S. LaSalle Street, Suite 814, Chicago, Illinois 60604.
3. The Defendant ACE AMERICAN INSURANCE COMPANY is a foreign insurance corporation organized under the laws of the State of Pennsylvania. Said corporation is registered to do business in the State of Georgia and conducts business within the Middle District of Georgia. Said corporation maintains its principal office in Philadelphia, Pennsylvania and is subject to the jurisdiction and venue of this court by service of process upon its registered agent, Mr. Mark G. Irwin, 500 Colonial Center Parkway, Suite 200, Roswell, Fulton County, Georgia 30076.
4. Jurisdiction is proper in this Court pursuant to 28 U.S.C. Section 1332 as there exists a complete diversity of citizenship between parties and the amount of controversy is in excess of $75,000.00. In addition, this case involves federal questions which invoke the jurisdiction of this Court pursuant to 28 U.S.C. Section 1331. Venue is proper in this Court pursuant to 28 U.S.C. Section 1391 as the events giving rise to this lawsuit occurred within this district.
5. On or about December 5, 2010, a collision occurred between the vehicle in which Plaintiff was a passenger and a 2009 Freightliner tractor trailer bearing vehicle identification number 1FUPCDZBXXXPA18424, tag number P690666 with trailer tag number T440545. Said tractor trailer truck was owned by Nestle Transportation Company. Said collision occured in the following manner: At approximately 2:01 a.m., the 2000 Honda Civic in which Plaintiff was a passenger was traveling southbound on Interstate Highway 75 in Peach County, Georgia a safe distance behind the 2009 Freightliner referenced above when suddenly and without warning the drive shaft of the tractor trailer rig became detached from the rig's undercarriage, dropped onto the roadway and collided with the vehicle in which Plaintiff was traveling. The violent impact of the drive shaft destroyed the right front tire and rim of the Honda Civic causing the vehicle to smash into the ditch embankment along the right shoulder of the road.
6. The sole and proximate cause of the aforementioned collision was the negligence of the driver of the 2009 Freightlinger tractor-trailer rig by operating a vehicle in an unsafe state of repair and not in proper working order. The negligent driver of the 2009 Freightliner admitted at the scene that the drive shaft had fallen off of his vehicle and that he made an attempt to remove it from the roadway following the collision.
7. At all times relevant, the driver of the 2009 Freightliner tractor-trailer rig was operating said truck under the authority of and with the permission of the Defendant "Nestle". Therefore, Defendant "Nestle" is liable for the negligence of the driver of their vehicle under the doctrine of respond at superior. At all times relevant, the truck owned and operated by Defendant "Nestle" was insured by Defendant ACE AMERICAN INSURANCE COMPANY as the primary insurer through policy number ISAH08250303 AOS NHL Evidence of coverage was posted as required by the laws of the United States and State of Georgia. Said insurance is required by federal and Georgia law for the protection of the general public against injuries caused by the operation of motor carrier vehicles. Plaintiff is a third party beneficiary to said insurance coverage. Therefore, the Defendant ACE AMERICAN INSURANCE COMPANY is proper party to this action pursuant to O.C.G.A. Section 46-7-12.1.
9. As a result of the forces of energy created by the collision Plaintiff experienced an onset of a throbbing type pain in his right hip, right arm and the right side of his neck. On December 28, 2010, Plaintiff consulted Khalid Al-Sharif, M.D. of Houston Medical Associates. The examination revealed a contusion to the right shoulder with a rotator cuff tear, contusion to the lumbar spine and right SI joint with possible lumbar radiculpathy. Dr. Al-Sharif ordered an MRI after Plaintiff reported continuous pain in subsequent visits. Said MRI was performed on January 19, 2011 and revealed impingement and partial tears of the supraspinatus tendon and subscapularis tendon of the rotator cuff along with joint effusion and subacromial fluid collection related to the rotator cuff pathology. Dr. Al-Sharif then referred Plaintiff to Kinnebrew Orthopedic & Sports Medicine. On June 15, 2011 Todd Kinnebrew, M.D. performed an arthroscopy of the right shoulder with subacromial decompression, Mumford arthroplasty and debridement of the partial rotator cuff tear and biceps tendon tear. Plaintiff subsequently underwent an extensive regimen of rehabilitative physical therapy at Elite Sport & Spine in Hawkinsville, GA. The injuries suffered by Plaintiff are severe and did then, do now and, in all likelihood, will in the future cause him to experience pain and suffering.
10. As the direct and proximate result of undergoing the medical care for the treatment of his injuries, Plaintiff has incurred numerous medical expenses for the treatment of his injuries. To date, Plaintiff has incurred the following medical expenses:
a) Houston Medical Associates $ 850.00
b) Kinnebrew Orthopedics & Sports Medicine $ 8,490.00
c) Perry Hospital/Houston Healthcare $ 11,785.43
d) Robins Anesthesia $ 949.00
e) Elite Physical Therapy $ 1,950.00
11. At the time of the subject collision, Plaintiff was gainfully employed. As the direct and proximate result of his injuries, Plaintiff has been unable to work since the day of the collision and has incurred substantial lost wages. As his injuries are severe and permanent, Plaintiff will, in all likelihood, incur additional lost wages in the future.
12. The sole and proximate cause of the Plaintiffs injuries and damages was the negligence of the driver of the 2005 Freightliner tractor-trailer rig. Under the doctrine of respondeat superior, Defendants are liable for the negligence of the driver.
WHEREFORE, Plaintiff demands a trial by a jury of twelve and prays for judgment against the Defendants, jointly and severally in the amount of $275,000.00 in general damages for Plaintiffs pain, suffering and loss of use of his body; for special damages in the amount of medical expenses and lost wages as shown by the evidence; together with the costs of this action."