A Work Truck Was Backing Against Traffic at 1 mph With Its Front Tire Over the Fog Line in the Live Lane. He Hit It at 65.
After trial: Amended twice by the Louisiana Supreme Court, and the net figure involves one unconfirmed step. The jury returned $18,946,634.65 in January 2021. On June 28, 2024 the Louisiana Supreme Court (No. 2023-C-00788) reallocated fault to 80 percent Barber Brothers and 20 percent Cushenberry and reduced general damages to $5,000,000 and consortium to $400,000 plus $100,000 per child. On rehearing on December 19, 2024 it reinstated the jury's $10,750,000 general-damages award and amended consortium upward to $1,000,000 for his wife and $500,000 per child. The awards that stand total $15,446,634.65, which at 80 percent recoverable comes to roughly $12.36 million. Whether the 80/20 fault reallocation itself survived rehearing is not confirmed from a primary source: the rehearing opinion addressed quantum, and contemporaneous reporting still describes Cushenberry as 20 percent at fault while quoting the total as approximately $15.45 million, which is the pre-reduction sum. Read the figure as approximate for that reason.
Won by Unglesby Law Firm.
Barber Brothers was reopening an I-10 exit in LaPlace after a night of asphalt work. Its supervisor was backing an F-250 against traffic along a shoulder so narrow that the truck's left front tire sat over the fog line in the live lane. Frank Cushenberry hit it at 65 mph in a box truck and left the road with a traumatic brain injury.
What happened
At 5:37 in the morning on March 27, 2018, Barber Brothers Contracting was reopening the eastbound LA-3188 exit on Interstate 10 in LaPlace after a night of asphalt leveling, working under a state Department of Transportation traffic-control plan.
Their traffic-control supervisor, Johnny Scott, was backing a Barber Brothers F-250 against the direction of traffic along the shoulder at about one mile per hour, while a second worker walked alongside moving super-cones off the fog line.
On that three-mile bridge the shoulder narrows sharply. The F-250's left front tire was over the fog line, in the live right travel lane.
Frank Cushenberry was 37 and driving a Freightliner box truck for Capitol City Produce at 65 miles per hour in that right lane. He struck the F-250 near its left rear passenger door, oversteered, lost control, left the roadway, flipped, and landed in the woods.
He sustained a traumatic brain injury along with facial, neck, shoulder, cervical and lumbar injuries, requiring numerous surgeries and more than 300 doctor visits in three years. Whether the work truck's amber strobe light was operating was disputed at trial; it was found lying in the truck bed after the impact.
The jury returned $18,946,634.65 in January 2021. What followed made this the leading Louisiana authority on how far an appellate court may go in cutting general damages.
On June 28, 2024 the Louisiana Supreme Court reallocated fault to 80 percent Barber Brothers and 20 percent Cushenberry, and cut his general damages from $10,750,000 to $5,000,000 and the family's consortium awards to $400,000 for his wife and $100,000 for each child.
Then, on rehearing on December 19, 2024, the court reversed itself. It reinstated the jury's full $10,750,000 general-damages award and amended the consortium awards upward, to $1,000,000 for Robin Cushenberry and $500,000 for each of their two children.
Cushenberry was represented by Lewis Unglesby of the Unglesby Law Firm and Peyton Murphy of the Murphy Law Firm, both of Baton Rouge, as co-lead counsel.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.Barber Brothers Contracting Co. v. Capitol City Produce Co., La. Supreme Court No. 2023-C-00788 (June 28, 2024): the opinion on writ of certiorari from the First Circuit, Parish of East Baton Rouge; the caption naming Frank and Robin Cushenberry individually and on behalf of their two minor children; the 5:37 a.m. March 27, 2018 work-zone facts including the F-250 backing against traffic with its tire over the fog line and the disputed strobe light; and the initial reallocation of fault to 80/20 with general damages cut to $5,000,000
- 2.WBRZ: the Louisiana Supreme Court reinstates the $10,750,000 award on rehearing, describes the total as approximately $15.45 million, reports Cushenberry as 20 percent at fault, and names Lewis Unglesby and Peyton Murphy of Baton Rouge as his attorneys
- 3.Deutsch Kerrigan analysis of the rehearing opinion, confirming the reinstatement of the jury's general-damages award and the upward amendment of the consortium awards to $1,000,000 and $500,000 per child
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