OREGONLIVE: Oregon jury awards $26.5 million against truckers in road rage episode
Oregon jury awards $26.5 million against truckers in road rage episode that ended in woman’s death:
A federal jury in Oregon has awarded nearly $27 million in a road rage case against two trucking companies and their drivers who were involved in a dangerous cat-and-mouse game on U.S. 20 that killed a 30-year-old motorist in 2016.
There was a twist that is not uncommon in multi-party litigation:
Shortly before the verdict, Allison’s estate [the estate of the deceased motorist] reached a settlement with Smoot Brothers [one of the trucking companies], though the jury wasn’t aware of the agreement when it made its damage award. Smoot Brothers agreed to pay $900,000 to settle the claims against it, leaving Horizon Transport [the other trucking company] responsible for the bulk of the $26.5 million verdict.
Another twist, because I think this occurred in Oregon [Note: I may be wrong about that. UPDATE: It happened in Oregon.]:
U.S. District Judge Patricia Sullivan allowed the jury to award damages beyond Oregon’s wrongful death cap of $500,000, by applying the law from the victim’s home state of Idaho, which sets no limitations on noneconomic damages in such cases.
– DRJ
I think the judge made the right choice-of-law call: The victim was from Idaho, the accident happened there, giving Idaho the “most significant relationship” to the case, even though the case was filed and tried in Oregon. If the reason for that was explained in the news article, I missed it, and I’d have to do some PACER digging to figure it out.
DRJ’s exactly right — I’ve seen many settlements while the jury was out, some of which had been agreed to on a wink-and-nod basis but never put in writing until the jury was out specifically so that the jury would still think the settling party was at risk. My guess is Smoot Brothers had a $1M policy and is otherwise judgment-proof, and therefore its insurer settled for just under policy limits, and would have before trial. But the estate’s lawyers wanted to time the settlement to best hook Horizon, which probably had either a bigger policy or is otherwise a company with substantial assets that could be seized and sold to satisfy a big judgment.
Beldar (fa637a) — 5/25/2019 @ 1:20 pmThanks for the correction, Beldar.
DRJ (15874d) — 5/25/2019 @ 1:30 pmMaybe I missed it, but the accident occurred “just east of Burns”, which is comfortably within Oregon state lines. I don’t think this occurred in Idaho, but I could be wrong.
Munroe (ec74bc) — 5/25/2019 @ 1:41 pmWow
Dustin (6d7686) — 5/25/2019 @ 1:43 pmWell, obviously I don’t know my Idaho-Oregon geography, Munroe. Was I wrong the first time or the second?
DRJ (15874d) — 5/25/2019 @ 1:43 pmGoogle Maps says there are towns named “Burns” in both states.
Beldar (fa637a) — 5/25/2019 @ 1:47 pmBurns Idaho is nowhere near Highway 20. Burns Oregon is right on it.
Munroe (1ef2c5) — 5/25/2019 @ 1:50 pmI was mistaken in my assumption (#1) that this accident was in Burns, ID. I’ve confirmed that it did indeed happen outside Burns, OR, based on the plaintiffs’ pleadings via PACER. That flips my choice of law comment in #1 on its head.
Oregon apparently has a choice of law statute, unlike most states (including Texas) which instead follow the Restatement of Conflicts 2d as a matter of state common law. Horizon submitted a pretrial memorandum arguing that Oregon law should apply in all respects, and indicates that the plaintiffs were also arguing in the alternative to apply either Utah or Indiana law — obviously to escape the damages cap. Smoot Brothers’ pretrial memorandum likewise indicates that the plaintiffs seemed to be trying to invoke Utah law, and argued that Oregon law applied.
There is no written memorandum from the court explaining its decision to choose Idaho law. Normally the domicile of the plaintiff is traditionally a weak factor in an accident case. Without a written explanation (which may come in due course, perhaps in response to post-verdict pre-appellate motions), I can’t say for sure that it got the choice of law call wrong, but I can say that I find it surprising and improbable.
There’s also pretrial briefing on the jury being kept from hearing of Smoot Brothers’ separate settlement. I was, again, mistaken in an assumption that the deal was finalized while the jury was out. It wasn’t; there was a signed covenant not to execute, a true “Mary Carter” deal (where the nominal co-defendant who made the deal is actually a puppet of the plaintiff). Mary Carter deals are now deemed void from the outset, as a matter of public policy, in Texas and many other states. But even if this settlement wasn’t void from the outset, it’s a financial string affecting credibility that the jury should have been told about.
If the Ninth Circuit agrees with Horizon that Oregon law should apply, but finds no other reversible error, it can simply reform the judgment, enforcing the damages cap. If the Ninth Circuit agrees with Horizon that the jury should have been told about the covenant not to execute — so that the jury could assess whether the settlement had induced the Smoot Brothers witnesses to point the finger at Horizon — then the whole case will have to be retried.
After digging considerably deeper in the court files, then, I think the chances of this verdict holding up, then, are remote.
Beldar (fa637a) — 5/25/2019 @ 2:28 pmI wrote on my own blog in 2007 about being the victim of a Mary Carter gang-bang, before those deals were outlawed in Texas, in this very long war story, which some of you (including DRJ & nk, who left comments) have read before.
Beldar (fa637a) — 5/25/2019 @ 2:34 pmI had forgotten that story, Beldar. Thank you for linking it. It is one of those “true but too good to be true” legal stories.
DRJ (15874d) — 5/25/2019 @ 4:34 pmYou’re welcome, DRJ (#10). That’s one of the blog posts I’m most proud of, and as far as the story it tells, I can count my true “Perry Mason moments” over a 40-year career on one hand, and that was the first. Although it was my first doctor’s deposition, nevertheless, by that point — from my summer clerkships that had included two full jury trials conducted by genuinely brilliant lawyers, and a year of clerkship — I knew from observation how to artfully lay an emotionally powerful predicate for impeachment from prior testimony. But it was still a matter of kismet that what the particular subject the witness chose to lie about was the only one I was really prepared to catch him in a lie upon.
Beldar (fa637a) — 5/25/2019 @ 7:04 pmMunroe, thank you for provoking me to dig further. The case is more remarkable than I thought from the news report.
Beldar (fa637a) — 5/25/2019 @ 7:05 pmThe victim was from Idaho, the accident happened there, giving Idaho the “most significant relationship” to the case, even though the case was filed and tried in Oregon.
Which brings up the question: Why was it filed in Oregon, if it took place in Idaho?
rcocean (1a839e) — 5/25/2019 @ 7:29 pmI think it occurred in Oregon but there is a city called Burns in both states so it caused some confusion.
DRJ (15874d) — 5/25/2019 @ 7:38 pmThe accident definitely happened outside of Burns, Oregon, according to everyone’s court filings. The only connection to Idaho was that the woman killed in the accident, Sara Allison, had lived in Boise at the time of the accident. Ms. Allison’s executor, though, chose to sue in Oregon, in state court. Perhaps that because one or more of the defendants didn’t have sufficient contacts with Idaho to be sued in Idaho, but that’s just a guess; since their trucks were going through Oregon, they definitely all had enough contacts with Oregon to be sued there. The defendants “removed” the case from the Oregon state court system to the U.S. District Court for the District of Oregon based on diversity of citizenship. If my mistaken assumption in #1 — that the accident was instead outside of Burns, Idaho — mislead you, rcocean, I apologize for misleading you.
Beldar (fa637a) — 5/25/2019 @ 8:03 pmNo problem. Thanks.
rcocean (1a839e) — 5/25/2019 @ 9:29 pmBut the estate’s lawyers wanted to time the settlement to best hook Horizon, which probably had either a bigger policy or is otherwise a company with substantial assets that could be seized and sold to satisfy a big judgment.
Wouldn’t Horizon’s lawyers know this, and feel increased pressure to settle before trial?
Kevin M (21ca15) — 5/26/2019 @ 10:10 amOh, never mind. While they knew, they never expected the judge to go so far off-script. I suspect that he was unwilling to let the companies hide behind a damage limitation for intentional, and criminal, acts.
Where any of the truck drivers prosecuted?
Kevin M (21ca15) — 5/26/2019 @ 10:17 amOh, yes, the one who hit her is doing time for manslaughter. Hmm. A “depraved heart” charge might have been valid here.
Kevin M (21ca15) — 5/26/2019 @ 10:35 am@ Kevin M, who asked (#18):
Yup, one individual defendant, a driver (the one I presume to have been most responsible) testified while released temporarily from prison. And to your question in #17:
They did know: The incentives for this kind of deal depend on insurance coverages, which is one of the first things typically disclosed after, and often even before, suit is filed, and on other judgment-worthiness (basically, solvency and ability to pay off uninsured judgment amounts), which is harder to estimate, but often obvious, at least on an orders-of-magnitude basis, and there often is that large a disparity.
And indeed, the whole point of the deal is to ramp up pressure on the target defendant, so yes, it needs to know it’s the target and see the gang-bang coming. Of course, instead of capitulating, it may resist all the harder.
The term “Mary Carter deal” comes from a Florida case, Booth v. Mary Carter Paint Co. (Fla. App. 1967), which blessed these unholy deals. For most of my career, the leading Texas case was Simmons v. General Motors Corp. (Tex. 1977), in which two senior partners of my former firm, Baker Botts (which I joined as an associate in 1981), had done such a deal on behalf of their client, Feld Truck Leasing Corp., to the detriment of the target defendant, GM, in a vastly larger lawsuit. GM’s lawyers tried to use the deal between Simmons and Feld Truck Leasing to impeach Feld’s witnesses at trial, but the trial court excluded it on the general ground that evidence of settlement agreements, even partial settlement agreements, is irrelevant and inadmissible. But the Texas Supreme Court reversed, holding that because such deals, even if their releases are contingent or limited in some way, nevertheless affect the financial motivation of the parties and their employee-witnesses, they must be disclosed to the other side, and then to the jury, in order that the jury can assess such deals’ impact on the witnesses’ credibility. To do otherwise gives the jurors a fundamentally false, skewed impression of who’s whom and who has what interests, utterly distorting the fact-finding process.
Thus, in my 1983 case mentioned above, where I represented the gang-bangee, i.e., the target (Montgomery Ward & Co., then owned by Mobil), I not only cross-examined my nominal co-defendant’s witnesses about their employer’s sweet, sweet deal, I made a motion asking the judge to force my co-defendant’s lawyer to sit at the plaintiff’s counsel’s table instead of at the defense counsel table by me, just to emphasize to the jury: These guys are in it together. Remarkably enough, it was granted. (“Judge, this ain’t fair!” complained the annoyed plaintiff’s lawyer, “It was Mr. Dyer’s bosses Finas Cowan [later a federal judge] and Richard Josephson who negotiated the Mary Carter deal in Simmons in the first place! They’re estopped from this kind of argument!”)
For many years Texas lawyers presumed that Simmons had likewise blessed the overall legality of Mary Carter deals under Texas law, but it actually didn’t; that point hadn’t been properly preserved for or presented on appeal, and simply wasn’t decided. And thus it wasn’t until Elbaor v. Smith (Tex. 1992) that the Texas Supreme Court — which by then was already substantially more conservative than the same court had been in 1977 — took up the question of whether such deals were even enforceable and decided that in Texas, anyway, they just ain’t — they’re void, as a matter of public policy, as legally unenforceable as, for example, a contract murder-for-hire debt.
I honestly don’t know where Oregon (or Idaho, if this judge has some theory its law governed) is on the question of Mary Carter agreements. But even those states which still allow them nevertheless require, like Texas did under Simmons, that they be disclosed to the jury; and any state which doesn’t, if such exist, is woefully wrong IMHO.
Beldar (fa637a) — 5/26/2019 @ 11:00 am(I guess that now, “most of my career” has been post-Elbaor. Damn I’m getting old.)
Beldar (fa637a) — 5/26/2019 @ 11:02 amTranscript here: https://www.realclearpolitics.com/video/2017/08/09/trump_in_1999_we_better_do_something_now_north_korea_thinks_were_a_bunch_of_dummies.html
Kevin M (21ca15) — 5/26/2019 @ 11:09 amDamn I’m getting old.
I watched those first two Superbowls that Bart Starr won. Now, he’s dead of old age.
Kevin M (21ca15) — 5/26/2019 @ 11:10 amBeldar–
I did answer my own questions shortly there after (mostly by reading your further posts, and the link).
I would guess that the reason that Horizon did not settle was they felt the judgement was capped. ANd it still may be — the Idaho law finding seems weak, both in law and in common sense.
Kevin M (21ca15) — 5/26/2019 @ 11:13 amStarr vs. Meredith in the Ice Bowl was better by far than either of the first two Super Bowls. (Broke my Texas-kid heart, too.)
Beldar (fa637a) — 5/26/2019 @ 11:18 amBeldar @21
You have to plot these things on a logarithmic scale.
Sammy Finkelman (db7fea) — 5/26/2019 @ 11:21 am#22 wrong post
Kevin M (21ca15) — 5/26/2019 @ 11:22 am