A Washington State family obtained a verdict of $8,169,512.84 in their favor from a jury in the United States District Court for the Southern District of Illinois, nearly 12 years after the event giving rise to their initial claims.
On August 21, 2005 the family of six was traveling cross-country from Washington to New York state. At that time, a portion of Interstate 24 in Illinois was being re-paved by E.T. Simonds Construction Company of Carbondale, Illinois, and Southern Illinois Asphalt Company, Inc. of Marion, Illinois. While traveling through the construction zone, the family’s vehicle left the roadway and rolled several times. Aleksey Turubchuk was ejected from the vehicle and sustained fatal injuries. Irina Turubchuk sustained physical injuries that required she be transferred via helicopter to Barnes-Jewish Hospital in St. Louis, where she underwent twenty-four surgical procedures, nearly losing her right arm. The remaining four occupants, including two minors, sustained serious mental and physical injuries as well.
In March 2007 the family filed a Complaint in the Southern District of Illinois against E.T. Simonds Construction Company and Southern Illinois Asphalt Company, Inc. under Cause No. 3:07-cv-00216 alleging failure to erect appropriate barricades, creation of an unreasonably dangerous condition, and failure to warn. The defendants were represented in that matter by Richard Green of Feirich, Mager, Green, Ryan in Carbondale, Illinois. In the 2007 case the defendants claimed they were operating as a joint venture at the time of the rollover incident. On May 15, 2007 Green served Rule 26 Initial Disclosures on behalf of the Defendants pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(iv) listing a single policy of insurance in the amount of $1,000,000 from Bituminous Casualty Insurance Company that insured the supposed joint
venture.
Following service of the Rule 26 disclosures, the parties agreed to settle the claims at issue in exchange for the policy limits of the Bituminous policy. The settlement was approved in the Southern District of Illinois on February 20, 2008. At no point between serving the Rule 26 Initial Disclosures and approval of the settlement did the defendants supplement their disclosures regarding insurance coverage.
In May 2012 the family filed a new Complaint in the Southern District of Illinois against E.T. Simonds Construction Company and Southern Illinois Asphalt Company, Inc. In this case, the Plaintiffs alleged Defendants negligently misrepresented the actual amount of insurance coverage available that may have been liable to satisfy all or part of a possible judgment in the 2007 action. E.T. Simonds Construction Company was represented in the 2012 action by William Knapp and Mark Dinsmore of Knapp, Ohl, and Green in Edwardsville, Illinois. Southern Illinois Asphalt Company, Inc. was represented by Charles Schmidt and Megan Orso
of Brandon and Schmidt in Carbondale, Illinois. Discovery in this new case revealed that while the defendants were insured as a “joint venture” in the amount of $1,000,000 at the time of the 2005 incident, the parties were also insured individually, collectively, for an additional $65,000,000 which was never disclosed to the Plaintiffs.
Judge Staci Yandle’s rulings prior to the March 19, 2018 trial date for the case filed in 2012 established the Defendants were in fact not operating as a joint venture in 2005 under Illinois law. Judge Yandle further ruled as a matter of law the defendants negligently violated Rule 26 when they disclosed only a singly policy of insurance in the amount $1,000,000 in the 2007 lawsuit. In addition, the pre-trial rulings established the Defendants were responsible for the negligent acts of their attorney, Richard Green, and the Plaintiffs were justified in their reliance on the trust of the Initial Disclosures in 2007.
At trial, Plaintiffs’ attorneys Jamie Boock and Matt Rossiter were tasked with proving the false statements were made with the intent to induce the Plaintiffs to settle the 2007 lawsuit for the sum of $1,000,000, and that the Plaintiffs suffered damages as a result of their reliance. The Plaintiffs reached a settlement agreement with E.T. Simonds Construction company on the day of trial prior to commencement, and proceeded against southern Illinois Asphalt Company, Inc. only. The Plaintiffs presented expert testimony from their attorney in the 2007 case regarding conversations he had with Richard Green regarding the available insurance and Green’s insistence that he would file his Rule 26 Disclosures almost 45 days before they were due in order to prove to Plaintiffs that only $1,000,000 were available in insurance coverage. In support of their damages argument, the Plaintiffs presented a demand letter prepared by their attorney in May 2007. This 15-page correspondence provided an analysis of the 2005 crash, the scene
where it occurred, and the liability in that case. It also provided a comprehensive calculation of the Plaintiffs’ injuries and damages sustained as a result of the rollover incident, claiming total damages in the amount of $8,169,512.84. The Plaintiffs’ expert testified that although Plaintiffs’ damages far exceeded $1,000,000, they settled for that amount because they believed it was the only insurance coverage available that applied to their case.
During closing, Jamie Boock argued Plaintiffs’ damages were the number their attorney had calculated in his 2007 demand letter. If the proper steps had been taken pursuant to Rule 26, he reasoned, the Plaintiffs would have had no incentive to settle their claim in the 2007 case.
After less than two hours of deliberation, the jury returned a verdict in Plaintiffs’ favor in the exact amount requested.
