DECEMBER 25, 2000

VIRGINIA LAWYERS WEEKLY

COMPANY HELD RESPONSIBLE FOR GUEST IN COMPANY TRUCK

Published: December 25, 2000
Section: A-1
Source: DAWN CHASE, ASSOCIATE EDITOR

© Lawyers Weekly Inc.

A wrongful death case in which a woman was killed in a crash while riding in a tractor trailer driven by her boyfriend has been settled for a payout expected to reach almost $27 million.

The settlement came after a Richmond circuit judge's pretrial ruling that the defendant driver's employer could be liable even though the boyfriend had violated his own company's policy and federal regulations by carrying an unauthorized passenger on his route.

And the case was unusual in the value agreed to, given that the victim was 22, an unemployed mother of four with little work history and a welfare recipient in subsidized housing.

The case, Bell, settled after voir dire, just before the trial began Dec. 14.

The case was one for the bar exam," said an attorney who represented the defendant company in the suit.

Lead plaintiff's attorneys were Brenda L. Page of Richmond and Jeffrey A. Breit of Norfolk.

According to the motion for judgment, the facts of the case were these:

On August 16, 1999, the victim, 22, was riding in a tractor-trailer driven by her boyfriend, who was driving to Pittsburgh to deliver a load of beef. Townsend ran a red light in Fauquier County and struck another tractor-trailer.

The woman was killed. The boyfriend pleaded guilty to reckless driving.

The victim had four children, ages 10 months, 2, 5, and 6 at the time of the wreck. The 2-year-old was disabled from a brain injury sustained as a baby.

The defendant driver was granted custody of his children -- the two youngest. The father of the two oldest no longer was involved with the children -- custody of those children went to their paternal grandmother, who also was the administrator of the victim's estate.

The wrongful death suit, which demanded $20 million, was filed in Richmond, where the defendant driver and victim cohabitated and where the defendant company had an office.

During a December 7 hearing before Judge Randall G. Johnson, the plaintiff asked for a summary judgment that the trucker was acting in the scope of his employment when the accident occurred.

The defendant company argued that respondeat superior did not apply, because the company had a policy that prohibited passengers. Also, federal regulations prohibit unauthorized passengers in commercial vehicles, the defense argued.

"Why can't an employer direct its employees not to run red lights?" Johnson asked, according to a transcript of the hearing. "Anytime you run a red light, you're acting outside the scope of your employment."

In his ruling in favor of the plaintiff, Johnson focused on the fact that, even though the driver had deviated from his assigned route to pick up the victim, the driver was on his route when the accident occurred.

"[W]here there is a mixed motive . . . the employee is still acting within the scope of his or her employment," Johnson said.

Another issue debated before trial was whether certain potentially prejudicial information would be put before the jury. Ultimately, Johnson rules that the defense could not introduce evidence that the victim had received welfare and lived in subsidized housing unless the plaintiff opened the door to the subject while making its case.

He also rules that the jury could be told that one of the children has a brain injury and required special care. "If loss of services were to a special-needs child, then the jury gets to hear it," Breit said, summarizing Johnson's decision.

The case involved numerous complexities. In his pretrial judgments, Johnson was filling in for the trial judge, who was ailing. The defendant driver would not allow the plaintiff's expert witnesses to interview his children, even though the children potentially could benefit from the expert testimony.

And the driver's dual role as defendant and the custodian of two of the children was confusing. A prospective juror questioned during voir dire whether, if a verdict for the plaintiff were awarded, the defendant driver would have a role in handling the money.

Miller said he believes that Johnson's ruling on respondeat superior would not have stood up on appeal.

However, the case settled as the jurors sat in the box.

According to Page and Breit, the settlement required $4.25 million in cash up front. Payouts for the children's lifetimes will be guaranteed at $9.2 million. The expected payout will be $26.9 million.

In apportioning the money among the four children, the funds were divided into sixths. The brain-injured child will receive three-sixths of the funds, and the others will receive one-sixth each.

Page and her associate, Alan F. Duckworth, handled the case until the last month, when she brought in Breit and his associates, John L. Watts and Oscar L. Gilbert.

Awarded: $27,000,000