Justin B. Shapiro, partner with Leesfield Scolaro. Courtesy photo.

Justin B. Shapiro of Leesfield Scolaro in Miami has secured a $1.25 million settlement for the family of an 84-year-old man who was killed in a September 2019 hit-and-run.

Charles Schelmety Sr. was struck while jaywalking at night, on his way home from Gringos Locos, a taco restaurant in Orlando.

His death triggered a flurry of local media interest, but Shapiro's civil case wasn't looking promising. Police identified Jeffrey Jackson as the owner of the vehicle allegedly involved, although Jackson's son, John Jackman, was reportedly the primary user.

Both pleaded the Fifth Amendment—which protects defendants in criminal cases from self-incrimination—and refused to cooperate with their insurer, Central Mutual Insurance Co., even though they had a $1.25 million policy.

Neither has been charged, and police continue to investigate.

Under those circumstances, any recovery attempts from Schelmety's two adult sons Douglas and Charles Schelmety Jr. could have fallen at the first hurdle, thanks to policy language that gives insurance companies the right to deny a claim if the insured does not cooperate.

Central Mutual Insurance had not officially denied the claim, but Shapiro said he saw it as a likely possibility after discussing the case with an agent.

"If they denied coverage, that's like the Achilles' heel," he said. "When coverage is not involved, you can win the case, you can get a judgment. But if insurance isn't going to pay it, that can present a big problem."

But Shapiro did have some advantages.

His client had been a favorite customer at the taco place he'd visited the day of the crash, so the owners were keen to cooperate and supply surveillance footage, which Shapiro said provided a clear view of what happened.

"It's the most gruesome and heart-wrenching video that I've seen involving an auto case," Shapiro said. "This car comes flying in at what appears to be 40 or 50 miles an hour and just takes out the decedent in the case, Charles Schelmety."

But to have a chance at recovering money, Shapiro had to get creative, demanding that the insurance company retain a lawyer for their insured. That way, the Jackmans would have an attorney-client privilege with their attorney, but not the insurance company itself.

"To protect them from criminal prosecution but also allow them to cooperate in the civil matter, so that they don't lose their insurance coverage of $1.25 million, that would be the most prudent thing to do," Shapiro said.

The effect was swift, according to Shapiro, who said plaintiff counsel received a call from an assigned attorney the next day.

"I don't know what happened behind the scenes, but they ended up tendering the money shortly after that," Shapiro said.

Defense attorney John B. Marion IV of Sellars, Marion & Bachi in West Palm Beach did not respond to requests for comment by deadline.

It's not easy to obtain wrongful death verdicts and settlements on behalf of elderly people, according to Shapiro, as they're not typically expected to live more than a few years.

"The cruel but common argument is, 'Well, hey they're not going to live that long anyway,' " Shapiro said.

That said, Schelmety's children had just lost their mother shortly before the crash, and their father had been enjoying good health for his age. The family had also been close-knit, all living within a few miles of one another.

" These cases are so compelling because of the heinous nature of leaving someone for dead that you really have to throw the rules out the door with respect to life expectancies and values of cases like this, when it does involve a hit-and-run," Shapiro said.

In this case, Shapiro said he sent the defense attorney and insurance company a verdict form from his last hit-and-run wrongful death case, which resulted in a $36.9 million verdict with punitive damages.

Shapiro also secured a $100,000 settlement from GEICO, under his client's uninsured motorist coverage.

Though confident his clients would have prevailed in the case based on liability, Shapiro said he felt the presuit settlement was the right decision, considering how much uncertainty there would have been over any potential verdict and the ability to collect it.

Read the settlement agreement:

 

Case: Charles Schelmety, Jr., individually and as Personal Representative of the Estate of Charles Schelmety, Sr., v. Jeffrey Jackman

Description: Negligence

Settlement date: Nov. 19, 2019

Plaintiffs attorney: Justin B. Shapiro, Leesfield Scolaro, Miami

Defense attorney: John B. Marion IV, Sellars, Marion & Bachi, West Palm Beach

Settlement amount: $1.25 million

 

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