Dustin Mueller - MSM&C

Attorney at Mueller, Schmidt, Mulholland & Cooling

Practice Areas: Motor Vehicle Accidents, Workers’ Compensation, Property Insurance Claims

According to investigative reports from the Iowa State Patrol (ISP), James Bergert drove his SUV north up I-35 on August 4, 2021. His wife Joanna rode beside him in the passenger seat.

Around mile marker 141, tow truck driver Anthony Nessa had just picked up a car from the side of the interstate in his flatbed tow truck. He drove on the shoulder, picking up speed, pulling onto the roadway as the tow truck cruised between 30 and 40 mph. Nessa’s speed was too slow to merge. He either did not see or did not care when he failed to yield to the SUV in the right lane.

Bergert swerved to avoid the tow truck, but he could not avoid the left rear of the tow truck’s flatbed. At that rate of speed, the flatbed tore through the passenger side of the SUV like a dull razor, ripping it open, ripping through his wife Joanna. 

Nessa pulled over again and inspected his tow truck for damage. With barely any damage, he climbed back in the tow truck and drove the truck back to his shop. He sent one of his employees back to claim they were driving, and when his ploy did not work, he returned to the scene about three hours later. Nessa already had 26 convictions for traffic violations since 1995.

Joanna Bergert had been killed instantly. James kissed his wife goodbye and gathered himself enough to take care of their dog.

Putting Together the Pieces After Being involved in Accident

James Bergert’s whole life was changed. Joanna was a judge at local dog shows, and in their 10 years of marriage, the couple had traveled together to dog-related functions. Now she was gone, and in her place was the memory of her in that passenger seat as the bed of that truck sliced through her. 

He is still haunted, wakes up in cold sweats, repeating his motions of that day. He clenches his jaw, waves his arms like he is turning an invisible steering wheel, stomps at his sheets like he is slamming the brakes. 

Bergert’s job requires him to be on the road a lot. He travels about 100 miles per day, and most days it is hard for him to climb into the driver’s seat. His employer tries to be empathetic. He gives him days off and allows him to leave early on the rough days, but he is still missing work.

Bergert has filed a lawsuit, charging Nessa is at-fault for the fatal crash because of his negligence in operating the tow truck. He seeks compensatory damages for his injuries, including: 

  • Pain and suffering, both mental and physical for his past and future
  • Medical expenses
  • Loss of earnings
  • Loss of his vehicle
  • Loss of Joanna’s love and companionship

Bergert is also seeking compensation for attorney fees and court costs, and he has sought compensatory damages on behalf of his wife. Those injuries include: 

  • Joanna’s pre-death physical and mental pain and suffering 
  • Burial expenses
  • Loss of value to her estate 
  • Loss of potential earnings and benefits she would have contributed to the relationship

In addition, Bergert seeks fair and reasonable punitive damages that might deter Nessa and others from acting in similar ways during similar situations.

All these damages seem justifiable, but in Iowa, the proof is needed to know exactly how much money was lost directly because of the crash. This proof requires several steps. 

How to Prove Lost Earnings, and Why is it Important?

To understand the true meaning of loss of earnings, the definition needs to be clear. Lost earnings apply to the money that was lost because injuries from a crash have prevented someone from working. A plaintiff seeking compensation for lost earnings must prove to the defense and the jury that the amount being requested is credible. 

Gathering this proof starts with illustrating that the injuries got in the way of work. The best evidence is medical records and notes from doctors who recommended time off to treat the injuries and heal.

After the time off is proven to be linked to injuries, the second step is proving how much the work is worth. This step requires an earnings history like pay stubs and tax returns. Letters from employers describing how the plaintiff was needed at work and how they were limited because of their injuries.

If a person works on commission or owns their own business, proof can get murky. Financial experts can be brought in to examine past records and make an analysis.

In Bergert’s case, James has lost the ability to work the way he did before the crash and losing Joanna has lost any potential earnings she may have contributed to their financial status. 

In cases like this, James may be entitled to damages for loss of future earning capacity. The determination of this calculation considers the ability to earn income or receive benefits of the course of the rest of a plaintiff’s lifetime. 

This involves calculating several variables, including:

  • The severity of the injuries
  • The work performed, specific skills, and experience
  • The age of a plaintiff and statistical/demographic data concerning lifetimes

Iowa is an at-fault or tort state which means at-fault drivers and their insurance pay for other drivers’ expenses occurring because of the crash. All available evidence concerning the crash is examined by police and insurance companies when deciding fault.

This can be described as Modified Comparative Fault. Responsibility for damages falls on individual parties involved in a crash to prove they share no or a lesser percentage of fault. If the evidence compiled, evaluated, and finds that the plaintiff’s portion of negligence adds up to 51% or more, recovering damages gets increasingly limited and often prevented.

Also known as comparative negligence laws, meaning fault can be shared by drivers involved in a collision. One driver can be 75% responsible, and another driver can be 25% responsible for a crash. So, a driver needs to share less than 50% responsibility to receive damages from the other driver. Drivers who are only 25% responsible can recover 75% in damages due to a crash.

Why Do You Need To Consider Working with an Experienced Attorney?

A personal injury attorney can also help negotiate a claim and have a claimant’s back if it goes to court. The Des Moines car accident attorneys at Mueller, Schmidt, Mulholland & Cooling can help. Contact us by calling 1-515-303-2328 or Click Here for a free consultation of your case.

When navigating the complexities of car accident claims, it’s crucial to understand how a pre-existing injury could affect your case. Our attorneys are well-versed in the nuances that pre-existing conditions bring to the table. Additionally, we provide expert guidance on dealing with insurance companies after an auto accident, ensuring you avoid common pitfalls and strengthen your claim. With the rise of electric vehicles on the road, our legal team is also equipped to address the unique risks and legal considerations these vehicles present.

 Still unsure about whether to seek help? You can see the results that the team delivers to better understand the process and see if they are the right fit for you.

Providing Unmatched EXPERIENCE On Your Case When you find yourself in a situation where you’ve been treated unfairly or you’re in the middle of a legal disagreement, it can be difficult to know what your rights are and how to proceed.

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