$2,000,000 – Fatal Trucking Accident

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 & 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 non-settling 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 non-settling 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 Arnold L New to preside.

Christopher McCabe of Jacoby Dunncr, who is defending the case’s non-settling defendants, declined to comment on how the pro tanto release 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 parties will request that the judge specifically instruct the jury to apportion the defendant’s 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 the 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.”

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