Four trucking industry defendants have agreed to
a $2 million settlement in a case stemming from an April 2004
accident in central Pennsylvania that left one motorist dead and
two others seriously wounded.
Two defendants in Shives v. Stewart Transport - related
Erie-based companies specializing in freight brokerage - are not
involved in the settlement, which featured a pro tanto release as
to the participating defendants, according to attorneys involved in
the case.
Ara Avrigian of Saltz Mongeluzzi Barrett & Bendesky. who
represents two of the matter's three groups or plaintiff's. said he
hopes the nature of the settlement will result in greater exposure
on the part of the nonsettling defendants than would have resulted
with a more common pro rata release.
A pro tanto release, as described by various Pennsylvania
Supreme Court opinions and law review articles paves the way for
any trial award against a maner's nonsettling defendants to be
reduced by the full amount tendered by the settling defendants.
If a pro rata release is agreed to, any trial award for the
plaintiff is reduced by the settling defendants' apportioned share
of liability.
Christopher Pakuris of Margolis Edelstein, who represents the
settling defendants in Shives, declined to comment on the potential
impact of the release. but did say that his clients are still
expected to appear at a trial that has been tentatively scheduled
for early October, with Judge rnold L New to preside.
Christopher McCabe of Jacoby Dunncr, who is defending the case's
nonsettling defendants, declined to comment on how the pro tanto re
lease might affect his clients' trial strategy.
Avrigian, who worked on the case with partner Michael Barrett,
said he believes that if the matter does ultimately proceed to
trial, the patties will request that the judge specifically
instruct the jury to apportion the defendants respective
percentages of liability.
McCabe said that his clients have filed cross-claims against the
settling defendants.
According to court papers in Shives, Nancy Shives and Rose Marie
Rowles , both in their mid-60s in 2004, were traveling on a divided
highway outside Harrisburg when a tractor trailer being driven in
the opposite direction by defendant Brian Redd allegedly came
around a curve in the road at a high speed , causing the contents
of the trailer to flip over the dividing barrier and land directly
in front of Shives and Rowles.
The plaintiffs claim Rowles' 1998 Buick Riviera struck the
debris - concrete and wood that had been recently collected from a
Philadelphia demolition project - and was sent on a 40-foot roll.
Shives, who had been thrown from the vehicle, died at the scene.
Rowles suffered a broken neck.
In addition to his clients, Avrigian said John Pauline Jr. of
Hazleton - who was driving an ice cream truck in the same direction
as, but a short distance behind, Rowles and Shives - was also
injured in the accident and is now permanently disabled as a
result. (Pauline is being represented by Hazleton attorney Edward
McNelis.)
Pauline, Rowles and Shives' survivors filed suit against Redd ;
Marion Center-based Stewart Transport, which had leased the tractor
trailer; and Andrew Gallo and Gallo Trucking of Creekside , the
owner of the tractor trailer (and Redd 's employer.)
Also named as defendants in Shives are U.S . Bulk Transport Inc.
and U.S. Transportation Services Inc. , Erie-based freight brokers
who are being represented by McCabe.
That Redd 's excessive speed had caused the accident was not
disputed by the defense: McCabe noted in court papers filed on
behalf of his clients that a Pennsylvania State Police
investigation had resulted in Redd's pleading guilty to involuntary
manslaughter in April.
The settlement as to Pakuris ' clients was reached in March and
approved by Philadelphia Orphans' Court Administrative
Judge Joseph D. O' Keefe in April. According to Avrigian,
Stewart Transport had a $1 million policy with Stratford Insurance
Co., while the Gallo defendants were covered up to the same amount
under a policy with Progressive Northern Insurance Co. The nearly
$2 million available pursuant to the settlement will be split
evenly between Pau line and his wife, and Rowles' and Shives'
survivors.
Last month, Judge Gregory E. Smith denied a U.S. Bulk / U .S.
Transportation motion for summary judgment.
McCabe, the attorney for those defendants, said that he
anticipates a heated motion in limine battle over the plaintiffs '
ability to introduce at trial information posted on a federally
funded database that is no longer accessible by the public..
McCabe said the plaintiffs have asserted that if U.S. Bulk / U
.S. Transportation had consulted the U.S. Federal Motor Carrier
Safety Administration's SafeStat database prior to the accident,
they would have learned of Stewart Transport's poor safety
record.
But McCabe said that members of the general public haven 't been
allowed to view SafeStat since early 2004, when a U.S. Department
of Transportation report identified problems with the accuracy of
SafeStat's data.
McCabe said the Shives litigation is expected to "raise novel
issues of liability on the part of a freight broker."