$2.185 Million Settlement

Construction Zone Accident

Type of Action: Automobile accident

Type of Injuries: Death

Court/Case Number/Date: Nodaway County Circuit Court CV705-165CC/(Irsik/Boyer)November 16, 2006, (Douglas) December 1, 2006

Caption: Irsik and Boyer vs. Estate of Douglas; Loch Sand Construction Co.; Missouri Highway Transportation Commission; Foster; Mid-Century Insurance Co. (intervenor) and American National Insurance Co. (intervenor)

Judge, Jury or ADR: Mediation

Name of Mediator: Rich McLeod

Special Damages: Irsik $58,814 medical expense, $6,653 funeral expense; Boyer $201,000 medical expense

Verdict or Settlement: Irsik $1,300,000 settlement; Boyer $550,000 settlement; Douglas $335,000

Allocation of Fault N/A

Last Demand: N/A

Last Offer: N/A

Attorneys for Plaintiff: (for Irsik) James Montee, Montee Law Firm, P.C., St. Joseph, MO; (for Boyer) Ryan Cox, The Law Offices of Ryan R. Cox and Associates, LLC, St. Charles, MO; (for Douglas) Robert Bosslet, Jr., Bosslet & O'Leary, Ltd., Granite City, IL

Attorneys for Defense: (for Estate of Douglas) Beth Boggs, Boggs, Boggs & Bates, LLC, St. Louis, MO; (for Loch Sand and Construction Co.) John Bordeau, Sanders, Conkright & Warren, LLP, Overland Park, KS; (for Mo. Hwy. Transp. Comm.) James Sloane, Mo. Hwy. Transp. Comm., Lee's Summit, MO; (For Foster) Michael Matteuzzi, Waldeck, Matteuzzi & Sloan, Kansas City, MO; (for Mid-Century Ins. Co.) James Morrow, Morrow, Willnauer, & Klosterman, Kansas City, MO; (for Am. Int'l Ins. Co.) Carlton Callenbach, Armstrong & Teasdale, LLC, Kansas City, MO.

Insurance Carriers: (Estate of Douglas) Madison Mutual Insurance Company

(Loch Sand and Construction Co.) St. Paul Fire and Marine/Travelers Indemnity

(Mo. Hwy. Transp. Comm.) Self-insured;

(Foster) Northland Insurance & Continental Western Ins. Co.; (Mid-Century Ins. Co.) Mid-Century Insurance Co.; (Am. Int'l Insurance Co.) Am. Int'l Insurance Co.

Plaintiffs' Experts: Bruno Schmidt, Springfield, MO (accident reconstruction); Fred Hansom, Markham, VA (traffic controls); John Glennon, Overland Park, KS (traffic controls); Deborah Weems, St. Joseph, MO (emergency medical care); David Stopper, Broad Run, VA (accident reconstruction, human factors); Anne Herring, St. Louis, MO (neuropsychologist); Robert Margolis, St. Louis, MO (neurology).

Defendants' Experts: Joseph Blascke, College Station, TX (traffic controls); Geoffrey Loftus, Seattle, WA (visual recognition and perception); Michael Ryan, Shawnee Mission, KS (neurology); Brad Mathison, Kansas City, MO (photos and computer animation); Robert Brackett, Jr., College Station, TX (traffic control); William Kennedy, Wichita, KS (accident reconstruction); William Hampton, Cape Girardeau, Mo. (accident reconstruction); Gerson Alexander, Philadelphia, PA (human factors); Bernard Abrams, Overland Park, KS (neurology); Scott Stottlemeyer, Jefferson City, MO (traffic control); Larry Jacobson, Maryville, MO (traffic plans).

Three college engineering students from University of Missouri-Rolla were on a weekend trip visiting friends at Northwest Missouri State University in Maryville, Missouri when their 1997 Honda Civic ran a stop sign and pulled into the path of a tractor trailer hauling a load of corn. The collision occurred in a construction zone, a newly opened route which had been closed just two days prior to the accident. The collision resulted in fatal injuries to the car driver Emily Douglas, and her front seat passenger and boyfriend Daniel Irsik. The backseat passenger and best friend, Paul Boyer, survived the crash with major injuries. A resulting lawsuit by Paul Boyer and the parents of Daniel Irsik and Emily Douglas was settled after four years of litigation.

In January of 2002 the Missouri Highway and Transportation Commission contracted with Loch Sand & Construction Company to improve certain portions and intersections of Missouri Route 71 in and around Maryville, Missouri. At the intersection of Route V and Route 71 in Maryville, a bypass was installed around the existing intersection so that the intersection could be reconstructed. Due to conditions unanticipated by the MHTC in design and planning, it was determined that on October 4, 2002 the bypass would be closed , and the original intersection would be temporarily re-opened so work could be done on the southbound lanes of Route 71 in the area where the bypass joined Route 71.

On Friday, October 4, 2002 Loch closed the bypass and erected a stop sign at the re-opened intersection and placed traffic control barrels and barricades in the area. The intersection functioned without incident Friday and Saturday.

On Sunday morning October 6, 2002 at 10:30 a.m. Emily Douglas disregarded the stop sign and drove her vehicle into the path of a southbound tractor trailer driven by Defendant Carroll Gene Foster. Since Emily Douglas and Daniel Irsik did not survive, no one knows what she was doing, where she was looking, or why she did not stop. The back seat passenger, Paul Boyer, had no memory of the accident.

Plaintiffs brought suit against the MHTC and Loch Sand & Construction Co. alleging that the thirty-six inch stop sign erected on Friday afternoon was a deviation from the Missouri Standard Plans for Highway Construction. Plaintiffs alleged that the construction contract adopted the MHTC requirement that all stop signs placed in a construction zone be forty eight inch signs. Plaintiffs also alleged that the barrels and barricades approaching the stop sign created visual confusion and obstructions for Emily Douglas as she approached the intersection.

Loch and the MHTC responded that Emily Douglas' view was not obstructed, and there was no requirement for a forty-eight inch stop sign. Additionally, Loch claimed that it was following the directives of MHTC and all traffic control devices were approved by MHTC and therefore the contractor could not be held liable.

Plaintiffs claimed that Foster, the driver of the semi truck failed to keep a careful lookout or take adequate evasive action when it was apparent the car was running the stop sign. The semi truck did not apply pre-impact braking and after the collision the plaintiffs' Honda Civic was attached to the cab of Foster's truck and drug 650 feet to their final position. A commercial vehicle inspection of Foster's tractor trailer at the accident scene resulted in the issuance of four citations, two for being overweight and two for out of adjustment brakes.

Foster denied that he had sufficient reaction time to avoid the collision and three defense experts were retained to advance the theory that the driver had insufficient time to detect and recognize the approaching hazard, decide what evasive maneuver to take and complete the action before colliding with the Honda Civic.

As a result of the accident driver Emily Douglas sustained immediately fatal injuries. Front seat passenger Daniel Irsik survived the collision for forty eight hours in a coma and expired as a result of head trauma. Rear seat passenger Paul Boyer sustained a collapsed lung, C2 fracture and multiple rib fractures.

At the time of the accident Daniel Irsik, age 21, was in his junior year at University of Missouri-Rolla majoring in mechanical engineering. The Irsik family had five household vehicles all insured by the same Farmer's Insurance agent. One week after the accident the Irsik's attorney requested certified copies of all household policies and placed Farmer's Insurance on notice of underinsured motorist claims. After suit was filed Mid-Century Insurance, a member of the Farmer's Group, intervened to protect the underinsured policy in which Daniel Irsik was the rated driver.

In 2006, more than three years after requesting certified policies, Farmer's Insurance complied and produced four Irsik policies written by Farmer's Insurance and one policy written by Mid-Century Insurance, both companies are part of the Farmers Insurance Group. All five Irsik policies contained $500,000 of underinsured motorist coverage. Later in 2006 during depositions of corporate agents for both Farmer's and Mid Century new certified policies were produced with different endorsements for underinsured motorist coverage. The corporate agent for the Farmers Insurance Group admitted that in 2002, the year of the accident, Farmer's had a computer software problem that created underinsurance at the $500,000 level without any endorsements further defining the coverage. The Irsiks claimed that as a result of ambiguity in policy language they had five policies of UIM for $500,000 each resulting in stackable coverage of $2.5 million.

At the time of the accident Paul Boyer had underinsured motorist coverage and his carrier, American International Insurance also intervened in the lawsuit.

Plaintiffs initially filed suit in Jackson County, Missouri and the Court transferred the action to Nodaway County. Plaintiffs dismissed the lawsuit and refiled again in Jackson County after appointing a Jackson County resident as the administrator of the Illinois Estate of Emily Douglas. Plaintiffs again lost their venue claim and the case was transferred to Nodaway County. All parties attempted mediation in the Spring of 2006 and failed to resolve any claims. Expert discovery proceeded and in October 2006, two months prior to trial, all plaintiffs agreed to settlement.