$4,400,000 – Dram Shop Case

Area attorneys secured three separate settlements totaling more than $4.4 million in a dram shop case involving a one-car accident that killed two passengers, injured another, and eventually sent the driver to prison after a night of partying at a local Applebee’s restaurant.

In a two-day mediation session that began on Feb. 22, and was overseen by ADR Options co-founder Judge Thomas B. Rutter, the lone surviving passenger and the families of the deceased settled a suit against the restaurant’s franchisee alleging its employees overserved alcohol to the driver. Attorneys from Philadelphia, West Chester, and Kennett Square represented plaintiffs.

According to court documents, Shaun Collins was driving home in October 2005 after a night of drinking at an Applebee’s in Kennett Square, Pa., when his truck struck a guardrail and rolled end-over-end about 80 feet before crashing into the side of a house. Two of the passengers, Joseph Peirson and Toshia Gambill, were ejected from the vehicle and killed. The third passenger, Nicole Stathes, was also thrown from the vehicle but survived despite a number of injuries, including a severe tongue laceration and a number of cuts and broken bones.

At the time of the crash, Collins’ blood alcohol content was between 0.16 and 0.17, double the legal limit, according to court papers. He was eventually sentenced to 15 to 20 years in prison for vehicular homicide.

Stathes and the families of Peirson and Gambill filed lawsuits against Delaware Valley Rose, the operator and liquor license holder for the Kennett Square Applebee’s, alleging it was liable for continuing to serve alcohol to Collins after he was visibly inebriated.

Applebee’s International Inc. and Rose Management Services were also originally named in the suit, but both were dismissed. Collins, who is currently serving his prison sentence, was also named and was represented by counsel from his auto insurance company, Safe Auto Insurance, which agreed to pay $10,000 to each plaintiff.

Delaware Valley Rose, through its insurers Zurich and Discovery, agreed to pay Stathes $1 million, the Gambills $1.9 million, and the Peirsons $1.5 million.

All of the plaintiffs’ pretrial memorandums alleged that Collins was drunk and belligerent that night in the restaurant, angry about a dent in the truck he had recently purchased and loudly arguing with Peirson, Gambill, and Stathes. The documents state that Collins’ behavior and visible intoxication brought him to the attention of several Applebee’s employees throughout the course of that night and eventually resulted in his being escorted to his car at the end of the night by one of the managers.

The plaintiffs claimed that the Applebee’s bartenders violated the company’s policy by serving Collins more than one drink per hour. Stathes’ attorney, David L. Kwass of Philadelphia firm Saltz Mongeluzzi & Bendesky, said the relevance of this claim to the burden of proof was a topic of great debate among the parties.

“The really interesting legal issue in the case, given that the only legal basis for claim under the Dram Shop Act is proving that the driver was visibly intoxicated when served, was whether it was relevant and admissible that Applebee’s didn’t follow its own alcohol service policies,” he said.

In Delaware Valley Rose’s pretrial memorandum, defendant’s counsel attempted to undermine the plaintiffs’ claims that Collins was belligerent because he was drunk by characterizing him as naturally hot-tempered based on testimony from some of his acquaintances, including Stathes, who said it wasn’t rare to see him fight with Peirson and Gambill.

The defendant’s memorandum also claimed Stathes was contributorily negligent for getting in the car with Collins based on testimony in which she admitted to believing he was visibly intoxicated at the time.

Based on testimony by its liability/toxicology expert, the defendant’s memorandum also pointed to empty beer cans found in Collins’ vehicle at the accident scene, which they said was evidence that the four had been drinking in the car, and attempted to establish a difference between visible intoxication and impaired driving ability.

Going into mediation, all three plaintiffs were asking for $10 million each and Delaware Valley Rose had not made any offers.

Kwass, as well as the defendant’s attorney, Jerry E. Marks of Philadelphia-based Marks O’Neill O’Brien & Courtney, and the Peirsons’ attorney, solo practitioner Thomas B. Bellwoar of West Chester, said the mediation process went smoothly due to a professional atmosphere and an adept mediator.

“Tom Rutter had an absolutely extraordinary command of the facts of the law and didn’t let anyone get away with anything because he knew the case cold,” said Kwass.

Marks said he was impressed with the civility of the proceedings.

“Everyone was represented by very professional, very prepared, and courteous lawyers,” said Marks.

Bellwoar said he was pleased with the result and glad that the plaintiffs could now attempt to move on.

“I’m happy for the clients that they can put it behind them,” he said.

Kennett Square attorney solo practitioner William E. Howell III, who represented the Gambills, could not be reached for comment.

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