Law360 (September 30, 2019, 9:06 PM EDT) — A California appellate panel has affirmed a jury’s decision to award about $5.5 million in a suit accusing a SuperShuttle driver of partially causing a motorist’s death and his wife’s severe injuries, saying the verdict was supported by the evidence.
A three-judge Court of Appeal panel on Friday unanimously affirmed the verdict in a wrongful death suit accusing SuperShuttle International Inc. driver Ouramdane Zarour of negligently speeding on a Bay Area freeway and hitting a car driven by John Kim, which had been forced into Zarour’s lane after it was rear-ended by a car driven by Melinda Pourtash.
The SuperShuttle van broadsided the Kims’ vehicle in a “T-bone” collision, causing John Kim’s death and his wife Young Kim’s life-threatening injuries, according to the opinion.
A San Mateo County jury had awarded Young Kim and her two children approximately $5.48 million, finding that Pourtash was 70% responsible, while Zarour and John Kim were each determined to be 15% at fault.
On appeal, Zarour contends that the judgment against him must be reversed because there was insufficient evidence to support a finding that he partially caused John Kim’s death and Young Kim’s injuries.
Zarour had argued that even if he wasn’t speeding, the Kims’ vehicle would’ve hit the highway’s center divider and ricocheted into the van in a “sideswipe” collision, and the couple’s injuries would’ve been the same.
The panel disagreed, saying Zarour’s argument was speculative.
“Zarour’s hypothetical about the Kims’ Honda being crushed between the SuperShuttle van and the median wall is speculation at best and proposes a completely different type of collision than the one that, in fact, occurred,” the court said in an unpublished opinion.
The panel said the case law cited by Zarour — which holds that a “negligible, infinitesimal, or theoretical” factor can’t be considered a substantial factor for purposes of causation — involved product liability cases blaming car manufacturers for minor design defects that purportedly contributed to auto collision injuries.
“We cannot possibly equate a collision between a 7,117-pound van and a 3,337-pound Honda to a tangential design defect,” it said. “Needless to say, the ‘T-bone’ collision between Zarour’s SuperShuttle and the Kims’ Honda which resulted in severe injuries for Mrs. Kim and fatal injuries for Mr. Kim was far from negligible, infinitesimal, or theoretical.”
In addition, the panel said the jury may have considered Zarour’s sideswipe collision hypothesis and reasonably concluded that it would have resulted in significantly less severe injuries.
“We conclude that there is substantial evidence that the Kims would not have suffered the same harm absent Zarour’s speeding, and that there is substantial evidence Zarour’s speeding was a substantial factor in causing the Kims’ harm,” the opinion states.
Conor Kelly, an attorney for the Kim family, told Law360 on Monday that they were satisfied with the outcome.
“The appellate court saw that the jury in the case had ample evidence to make their determination on liability and causation,” he said. “We thought it was a straightforward issue in our favor and the appellate court saw it the same way.”
An attorney for Zarour did not immediately respond to a request for comment on Monday.
Pourtash was not a party to the appeal.
Judges Stuart Pollak, Jon B. Streeter and Tracie L. Brown sat on the panel for the First District.
The Kims are represented by Conor M. Kelly and Michael A. Kelly of Walkup Melodia Kelly & Schoenberger, and Gary L. Simms of the Law Office of Gary L. Simms.
Zarour is represented by Mark A. Hagopian and Steven J. Renick of Manning & Kass Ellrod Ramirez Trester LLP.
The case is Kim et al. v. Zarour, case number A152133, in the Court of Appeal of the State of California, First Appellate District.
By Y. Peter Kang
