Saturday, August 3, 2019

Simpsonville sports bar settles in deadly DUI crash, jury awards $7.5M from driver

A Greenville County jury took the opportunity to send a message about driving under the influence when it ordered a woman to pay $7.5 million to the estate of a man killed in a DUI-related wreck.

The civil case revolved around whether a Simpsonville sports bar failed to responsibly serve alcohol to a woman who ultimately killed a motorcycle driver soon after she drove from the establishment.

In the end, the restaurant, Full House Sportzaria, settled for an undisclosed amount before the jury returned its verdict against the driver.

In motions leading up to the trial, a copy of text messages between Gibson’s personal representative in the case, Rachel Gibson, and associates asked to testify in the trial indicate the monetary amounts negotiated between Full House and the estate.


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In a text message, Rachel Gibson tells recipients that the restaurant offered to settle for $600,000 at mediation then later offered $1 million, but the offer was declined with a demand for no less than $5 million.

Marka Jean Fuller pleaded guilty to felony DUI in the January 2016 death of David Gibson and has awaited a deferred sentence since summer 2017 as the civil case has lagged on.

Later that fall, Gibson’s estate sued both the restaurant and Fuller for wrongful death.

The jury recently rendered a verdict of $2,523,500 in actual damages, then tacked on $5 million in punitive damages, according to court records.
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Marka Jean Fuller (Photo: Greenville County Detention Center)

The award is one that an attorney for Gibson’s estate, Wally Fayssoux, said sends “a firm message from the community on drunk driving.”

The Greenville News attempted to contact attorneys for the sports bar, with Greenville firm Gallivan, White & Boyd, through phone calls and received no response. The restaurant denied the allegations in an answer to the lawsuit.

Fuller's attorney, Ryan Beasley, told The Greenville News that a judge deferred her sentence so that she would cooperate in the civil trial and be available for depositions.

Beasley said Fuller is remorseful and wanted to reach out to the apologize to Gibson's family but wasn't allowed. He said she wanted to help the family receive monetary compensation.

“She was always sorry for the whole situation and wishes she could have done something to change the outcome, and unfortunately she couldn’t," Beasley said.

Beasley said he expected Fuller to be sentenced sometime soon.

The lawsuit lays out a similar case made in Fuller’s criminal proceedings.

Shortly after dark on Jan. 29, 2016, Gibson was driving a Honda motorcycle on SE Main Street in downtown Simpsonville and stopped to turn into a business parking lot.

David Gibson was killed in a January 2016 DUI crash. (Photo: Provided)

Fuller, then 43, was drunk and was driving a 2013 Ford 4S and slammed into the rear of the 58-year-old’s motorcycle, causing him to be ejected and killed on the scene.

Fuller “miserably failed all field sobriety tests and ultimately registered a blood alcohol level over twice the legal limit several hours after the wreck,” according to the suit.

In her criminal proceedings, Greenville County Sheriff's deputy Andrew Reese testified that Fuller's blood-alcohol content was .168. The legal limit is .08.

Fuller failed a field sobriety test outside of the hospital, and she declined to take a breathalyzer test, Reese said. The blood test revealed Fuller had at least five types of medication in her system, he said.

According to the civil suit, Fuller began drinking at a Fountain Inn bar at about 1 p.m. the day of the crash. Then two hours later, she went to Full House and was admitted despite an “obvious state of intoxication,” according to the suit.

At Full House, Fuller was served several glasses of wine and liquor shots and was seen harassing other patrons and taking from their plates while struggling to walk, according to the suit.

The suit alleges that Full House employees failed to follow standards designed to prevent over-serving alcohol and at no point did the bar’s employees refuse service or question how much she had drank before arriving.

When Fuller left with a friend, no one at the bar questioned their ability to drive nor offered alternative transportation, the suit alleges.


Wednesday, March 13, 2019

Blind Rabbit ruled not liable in death of restaurant worker

JACKSONVILLE, Fla. - A jury determined the former owners of the Blind Rabbit were not liable in the death of Daniel Rowe, a worker who was gunned down during a robbery in 2015 while taking out the trash at the Riverside restaurant.

The estate for Daniel Rowe, 20, filed a negligent security civil lawsuit against 901 King Street LLC and Accubuild Developers, saying the owners of the building were aware of crime problems in the area, but didn't take sufficient security measures to protect the restaurant workers.

The jury ruled in favor of the defendants on Wednesday, concluding the trial that began March 4.

An attorney for the defendants said his clients are gratified after the verdict, which was returned after about two hours of deliberations. Neither Rowe's family nor the family's attorney immediately made comment on the verdict.

After two years of denying any role in Rowe's death, Erron Coleman pleaded guilty to murder and was sentenced last year to life in prison. Devonte Hanford was sentenced to second-degree murder and is serving 20 years in prison for his role in Rowe's death.

Rowe's family had expressed frustration that it took time to bring charges against Coleman and Hanford, but after Coleman's sentencing, they said they are thankful because they know so many murders go unsolved.


Wednesday, July 25, 2018

Bar popular among St. Louis cops settles lawsuit over woman's death in 2014 shootout

ST. LOUIS • Three siblings whose mother was killed in a 2014 robbery and shootout at a St. Louis tavern popular with police have settled a lawsuit with the bar’s owners and a bartender over the woman’s death.

Diana Lawrence, 63, was fatally shot in December 2014 during a shootout at Pooh's Corner in St. Louis.

August, Jody and Charles Lombardo on Tuesday reached a $450,000 settlement with Pooh’s Corner, 6023 Virginia Avenue, in a lawsuit that blamed the bar for Diana Lawrence’s death. The suit, filed in 2016 by the Lombardos in St. Louis Circuit Court, claimed the bar’s owners failed to provide a guard, surveillance or a secure entry system and didn’t prevent armed patrons from drinking.

The suit named the bar, owners Debra and Leonard King, S&K Holdings Inc. and bartender Kitty Bonny. The settlement, approved Tuesday by St. Louis Associate Circuit Judge David Roither, says the three Lombardo siblings will split $267,864 evenly, with the rest going to their lawyers.

Derreaun Davis, Corey Wade and at least one other man burst in shortly before 11 p.m. on Dec. 2, 2014, and ordered everyone to the floor, police said. One robber fired a shot into the ceiling and a shootout followed.

Lawrence, 63, was hit in the head and died the next day. Three others, including retired St. Louis Officer Danny Atkins, were wounded.

Atkins had been drinking at the bar and shot and wounded Davis and Wade, who are now serving two consecutive life sentences with the possibility of parole.

The suit claimed Atkins was “visibly intoxicated” and that Pooh’s should not have served him knowing he was armed. Debra King has credited Atkins with saving lives, saying in 2014: “I do believe had he not been there, everyone would be dead.”

The suit also claimed Bonny, the bartender, went for her gun under the bar, contributing to what the Lombardos’ lawyer Matt O’Grady called a “wild-west shootout.”

Police were called to the bar 44 times from 2004-14 for incidents including thefts, fights, burglary, assault and arson, the suit claimed. It also claimed an attempted holdup in 2008, when Atkins was bartending and shot one of two robbers.

Jody Lombardo is the mother of Nicholas Gilbert, 27, who died in police custody in December 2015 after struggling with St. Louis officers in a holding cell at the department’s Central Patrol Division. She and the man’s father have a pending federal lawsuit against the city over that, claiming the department and 10 officers were responsible for Gilbert’s death.


Friday, July 13, 2018

Phila. Jury Awards $9.7M in Fatal Motorcycle Club Brawl

A Philadelphia jury has awarded nearly $10 million to the family of a woman killed during a scuffle with members of a motorcycle club outside of a Reading-area restaurant.

According to court records, a jury last week awarded $9.7 million to the estate of Tonya Focht, who had been fatally struck by an SUV during a melee that occurred in June 2015. The fight involved several members of the Iron Order Motorcycle Club.

Although the club had been one of several defendants sued, the club had been let out of the case at the end of trial after it filed a motion for compulsory nonsuit. That decision has been appealed.

McLaughlin & Lauricella attorney Slade McLaughlin, who is representing Focht, said the case was unique because it had to be tried in the Criminal Justice Center, rather than City Hall, for security reasons. He also said he plans to continue to pursue liability against the motorcycle club.

“The client will not have achieved full justice until the Iron Order Motorcycle Club (which is responsible for the actions of its members) is held accountable and liable for the death of Tonya Focht,” McLaughlin said in a statement. “We have filed post-trial motions this week … and we will see this case through all appeals to the very end. The client’s needless death deserves nothing less.”

Brian Grady of Elliott Greenleaf, who represented the Iron Order Motorcycle Club, said there was no evidence that the club had anything to do with the fight.

“The judge was right on the money with the law. We’re extremely comfortable with the rulings he made,” Grady said.

According to the pretrial memo of Brenda Bollinger, who is the administrator of Focht’s estate, on June 19, 2015, Focht and her fiance arrived at Anna’s Bar-B-Q Pit near Reading to meet friends for dinner. The memo said several members of the Iron Order Motorcycle Club began to accost them verbally and physically. Although the two attempted to leave, the members followed them into the restaurant’s parking lot where the conflict escalated, the memo said.

The memo said Focht’s fiance was wrestled to the ground where the members of the club began to “pummel” him. Focht tried to help her fiance, but one of the club members named Timothy Martin allegedly punched her in the face, which knocked her backward and into the side of a moving SUV, the memo said. According to the memo, the vehicle crushed Focht’s skull.

Focht’s estate sued the restaurant on alleged negligence and dram shop violations. She also sued the Iron Order Motorcycle Club and several members of the club involved in the fight on claims that they were negligent and reckless. The plaintiff also made wrongful death and survivorship claims.

The memo noted that, at the time of her death, Focht was a stay-at-home mother of two minor children, and was studying to be a mental health professional. The memo also said the plaintiff’s medical expert, Wayne Ross, planned to testify that Focht was conscious when the vehicle ran over her head, and that she remained alive for a few minutes afterward.

According to court records, Anna’s Bar-B-Q Pit joined Focht’s fiance and the SUV driver into the lawsuit. However, according to court records, Anna’s Bar-B-Q Pit entered an undisclosed settlement prior to trial.

In its pretrial memo, the Iron Order Motorcycle Club contended that Focht’s fiance had instigated previous altercations with its members, and that Focht and her fiance had instigated the fight that resulted in Focht’s death. The memo also said it has little control over its local chapters regarding who can become a member and how the chapters are run, or managed.

A pretrial memo filed by defendants Douglas and Laree Gottschall, who are Iron Order members involved in the fight, also said Focht’s fiance had instigated the fight. The memo further said Focht’s fiance punched Laree Gottschall, who is Douglas Gottschall’s wife, in the face during the fight, and that both were not near Focht when she was knocked into the SUV. The memo also said Focht punched Martin several times before he struck her.

At the time the trial ended, Martin and the Gottschalls were the only defendants on the verdict sheet. A default judgment had also been entered against Martin.

The jury found them liable and awarded $3.7 in compensatory damages, as well as $2 million on the wrongful death claim and $1.7 million on the survival claim. The jury also found Martin 50 percent liable, and each Gottschall 25 percent liable.

Stephen Scheuerle of Hohn & Scheuerle, who represented Anna’s Bar-B-Q Pit, and Daniel Rucket of Rawle & Henderson, who represented the Gottschalls, each did not return a call for comment. Martin did not have an attorney during trial and The Legal was unable to find contact information for him.


Thursday, June 28, 2018

$20 Million Judgment Against Restaurant That Gave Alcohol To Minor Was Not Covered By Insurance

The U.S. Court of Appeals for the Fifth Circuit has ruled that a $20 million judgment against a restaurant that committed the criminal act of giving alcohol to a minor was not covered by the restaurant’s insurance policy.

The Case

Ajredin Deari, owner of Pastazios Pizza, Inc., allegedly lured an 18-year-old woman to his restaurant, plied her with alcohol despite her protests, and then drove her to a nearby hotel and sexually assaulted her.

Deari later pleaded no-contest to the crime of aggravated assault.

The woman sued Deari (alleging a variety of intentional torts) and the Pastazios restaurant (alleging negligence, gross negligence, Dram Shop liability, false imprisonment, and premises liability).

She obtained a judgment for more than $20 million against Pastazios and Deari. With respect to Pastazios, the court found the restaurant liable for gross negligence, Dram Shop liability, and “negligent” false imprisonment, and imposed punitive damages.

The woman sought to enforce the judgment against the restaurant’s insurance carrier, Century Surety Company, asserting that Century had breached its duties under the policy to defend and to indemnify Pastazios with respect to her lawsuit.

The U.S. District Court for the Northern District of Texas granted summary judgment in favor of Century, and the woman appealed to the Fifth Circuit.

The Century Policy

The Century policy excluded coverage for bodily injury:

arising out of or resulting from a criminal act committed by any insured.

The Fifth Circuit’s Decision

The circuit court affirmed, holding that because all of the woman’s injuries arose out of or resulted from the restaurant’s criminal act of giving alcohol to a minor, the policy’s criminal act exclusion applied and barred Pastazios’ coverage claims.

In its decision, the circuit court explained that, in Texas, it was a Class A misdemeanor to give alcohol to a minor in the absence of her parents. The Fifth Circuit noted that the woman’s complaint against Pastazios stated that she was a minor and that Pastazios, the restaurant itself, had given her more than one alcoholic beverage.

Thus, the Fifth Circuit found, the woman’s bodily injury arose out of or resulted from a criminal act committed by Pastazios, the insured. In fact, the circuit court said, the woman’s complaint was “unequivocal” that all of her injuries arose out of Pastazios’ provision of alcohol.

Accordingly, the Fifth Circuit concluded, coverage was precluded because all of the woman’s injuries arose out of or resulted from Pastazios’ criminal act of giving alcohol to a minor.

The case is Century Surety Co. v. Seidel, No. 17-10026 (5th Cir. June 25, 2018).

FC&S Legal Comment

Many other courts have applied a criminal act exclusion to bar liability coverage for damages arising out of providing alcohol to a minor. See, e.g., Allstate Ins. Co. v. Greer, 921 N.E.2d 793 (Ill. Ct.App. 2009); Continental Ins. Co. v. Kovach, No. 05-1152 (W.D. Pa. Aug. 14, 2007); Auto Club Ins. Co. v. Petz, No. 242933 (Mich. Ct.App. Dec. 18, 2003); Davis v. Malcolm, No. 212689 (Mich. Ct.App. Feb. 11, 2000); cf. Coregis Ins. Co. v. School Board of Allen Parish, No. 07-30844 (5th Cir. June 6, 2008); Allstate Ins. Co. v. Blount, 491 F.3d 903 (8th Cir. 2007).

Steven A. Meyerowitz, Esq., is the Director of FC&S Legal, the Editor-in-Chief of the Insurance Coverage Law Report, and the Founder and President of Meyerowitz Communications Inc. As FC&S Legal Director, Mr. Meyerowitz, a member of the team that conceptualized FC&S Legal, provides daily analysis and commentary on the most significant insurance coverage law decisions from courts across the country and news regarding legislative and regulatory developments. A graduate of Harvard Law School, Mr. Meyerowitz was an attorney at a prominent Wall Street law firm before founding Meyerowitz Communications Inc., a law firm marketing communications consulting company.


Sisters reach $1M settlement in suit against bouncers

GRAIN VALLEY, Mo. (AP) — Two sisters have reached a $1 million settlement in a lawsuit that alleged they were handcuffed to the wall of a Kansas City bar and battered because bouncers wrongly thought they had used a counterfeit $50 bill.
The Kansas City Star reports that the sister's attorney, Nick Hinrichs, says he is glad his clients can "finally put this nightmare behind them." The suit says the sisters were confronted by multiple bouncers wearing skull or camouflage masks in late 2016 at the Whiskey Tango bar in Grain Valley, even though they arrived 90 minutes after the counterfeit bill was used.

The suit named as defendants E.I.E. LLC, the company doing business as Whiskey Tango, and five current or former employees. Four of them pleaded guilty to criminal charges or face trial.


Wednesday, June 20, 2018

Families, victim got $2M settlement in ex-Linden cop's wrong-way crash

Three years ago, an intoxicated Linden cop turned the wrong way onto a Staten Island highway, causing a crash that killed two of his companions and critically injured a third.

The officer, Pedro Abad, is now serving a sentence of 8 1/3 to 25 years in prison after being found guilty of aggravated vehicular homicide.

The survivor - former Linden police officer Patrik Kudlac - and the families of the two men who died - Linden officer Frank Viggiano and Linden resident Joseph Rodriguez - are still living with the repercussions.

Kudlac and the estates of Viggiano and Rodriguez in October resolved what may have been the last outstanding legal issue in the case when they settled a lawsuit against Abad and the two bars where he drankbefore the ill-fated crash, according to Kudlac's attorney, David L. Wikstrom.

The three parties received a total of $2,085,000, including $1 million from Curves in Staten Island, New York, and $750,000 from Central Park in Roselle, Wikstrom said in a statement.

He said another $300,000 came from Abad's insurer and an uninsured motorist policy paid $35,000.

The "dram shop" lawsuit, which was the result of a consolidation of three original lawsuits from the victims, alleged negligence against Abad and that Curves and Central Park had served him while he was visibly drunk.


Abad's blood-alcohol content was three times the legal limit on March 20, 2015, when he drove the wrong way on the West Shore Expressway and crashed into a tractor-trailer, authorities have said.

Curves shut down after the fatal crash. Another strip club, called Xcess Gentleman's Club, now stands in its place.

The former managers of Curves could not be reached for comment on the settlement. Curves' attorney in the lawsuit, Steven J. Weiderhorn, did not respond to a phone call.

Central Park in recent years has served more than one off-duty police officer who later caused a fatal crash. Elizabeth officer Romulo Meneses-Alvarez this month pleaded guilty to causing a fatal crash with a motorcyclist while driving drunk on Halloween night. He admitted in court that he had been drinking at Central Park beforehand, his lawyer, Joshua McMahon, previously said.

An attorney for Central Park could not be reached for comment. The bar's manager, Susan Todaro, did not respond to phone calls.

Kudlac, who was 23 at the time of the crash, and the families of Viggiano and Rodriguez, both 28, could not be reached.

At Abad's sentencing last June in New York City Criminal Court in Kings County, Rodriguez's sister said the loss of her brother still haunted her and her father.

"I hate you," the sister, Roseann Rodriguez, told Abad at the time. "I don't feel bad for you. I actually hope you die before it comes time for you to be released."

Viggiano's sister, Kathleen Viggiano, said at the sentencing that her brother was smart and often tried to help other people.

"I can only hope Pedro can live with the knowledge he killed two men and that will be a prison sentence in itself," she said.