$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
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,
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.