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.


Friday, June 1, 2018

Jury awards $1 million to family of man who died after being punched outside bar

Four years after a Palatine man died of a punch to the head, members of his family cried and embraced Friday afternoon when a jury returned a verdict awarding them just over $1 million.

The jury’s decision, reached after three hours of deliberation, was far less than the $20 million the family of Ryan Flannigan sought. But the family’s attorney, Michael Sorich, insisted it wasn’t about money.

“They just wanted answers for their son’s death, and I think the jury proved that (defendant) Michael Platt was ultimately responsible and he was held accountable for his conduct,” Sorich said.

Flannigan, 26, died 10 days after being punched by Platt on July 18, 2014. Platt was found not guilty of first-degree murder in June 2015 after a trial in which his attorneys argued their client did not intend to kill or seriously injury Flannigan. Jurors were not given the choice of finding Platt guilty of a lesser crime.

Platt’s attorney, Scott Barber, said following the verdict that his client acted in self-defense and that the jury was swayed by Platt’s criminal record.

“I don’t think (those convictions) had anything (with the Flannigan case) other to do than make him look like a bad guy,” Barber said.

In his closing argument, Sorich told jurors that “this is a case about being held accountable for one’s actions.”

He said that even if Platt didn’t intend to kill Flannigan, he did intend to hurt him. And after the punch, Platt walked away and said, “He’s still on the (expletive) ground,” Sorich told the jury.

He noted that Platt is a two-time convicted felon — on drug and theft charges — and had originally lied to police and detectives when questioned about the incident. Sorich worked to undermine Platt’s argument of self-defense by saying that Platt was the only person who claimed that Flannigan lifted his arms as if he was preparing to punch Platt. Witnesses earlier in the trial testified Flannigan lifted his arms but was not about to throw a punch.

Barber said during his closing arguments that while the event was tragic, it stemmed from the drunken and obnoxious actions of Flannigan’s group of friends at Pop’s Bar and Grill. They confronted a physically disabled friend of Platt’s, and Platt moved to defend his pal, Barber said.

After the verdict was announced, Debra Flannigan, Ryan Flannigan’s mother, said, “We’re very happy that justice has finally been served. That’s all.”

Her husband, Tim Flannigan, added, “We were able to finally, after four years, get the results that was justified — that Ryan should’ve got the first time around.”


Saturday, March 17, 2018

Jury awards $1.75M in York City bar murder

The survivors of a man fatally shot in a York City bar while acting as peacemaker have been awarded $1.75 million by a York County jury.

But whether they'll see much, or any, of that amount is unclear, according to attorney Nate Foote.

Jaime Sanabria was gunned down inside the former George's Tavern, 376 Walnut St., on Aug. 17, 2013, by Halim "Budda" Bowen.

Foote and fellow attorney Ben Andreozzi represented Sanabria's estate, including his only child and his mother, Romelle "Mae" Graham.

Sanabria's son, E'maiJ Sanabria, just turned 10 years old, Foote said.

A York County civil jury deliberated about four hours Wednesday, March 14, before announcing their verdict, he said.

Jurors found both Anita's Place Inc. — which owned the tavern — and Bowen negligent in Sanabria's death, according to court records.

90 percent negligent: They determined Anita's Place was 90 percent negligent for Sanabria's death, while Bowen is 10 percent negligent, according to the verdict form.

They awarded $500,000 in damages to Sanabria's survivors; $998,743 in damages for the loss of income Sanabria's death caused; and $250,000 for Sanabria's pain and suffering at the time of his death, the verdict form states.

"The family was thrilled," Foote told The York Dispatch. "They have felt since the criminal trial that something had to have gone wrong."

Anita's Place Inc. carried insurance on George's Tavern, but their policy had an exclusion that exempted the insurance company from being responsible for paying on this type of verdict, according to Foote.

"It puts us in a tough spot," he said. "We do not expect to collect that award. How much, if any, we can collect? We'll have to see."

Attorney L.C. Heim, who represents Anita's Place, could not be reached for comment Friday afternoon. The executive officers of Anita's Place are Georgios and Aristidis Spanakis, according to the lawsuit.

Halim "Budda" Bowen (Photo: Submitted)

The murder: Bowen, 28, formerly of York City, was convicted of first-degree murder in December 2014 and sentenced to life in prison without the possibility of parole.

Testimony from his murder trial revealed Bowen hung around outside George's Tavern for about an hour before finally being let inside. Bouncers were turning away people at the door because the tavern was packed.

Most people simply left, but Bowen persisted, saying he would pay $20 to get in, even though the cover charge was only $2, according to testimony.

After he got in the tavern, a fight broke out that didn't involve him, York City Police have said.

Sanabria, 25, who was called "Butter" by loved ones, was trying to act as peacemaker by breaking up the fight, according to police. Instead he ended up lying stomach-down on the dance floor.

And that's when Bowen saw his opportunity, according to District Attorney Dave Sunday, who was lead prosecutor. Bowen got on top of Sanabria and shot him in the back at close range.

Stepped over victim: Tavern patrons reacted to the gunshot by ducking or running for the exit doors, but Bowen didn't react at all, testimony revealed. Video surveillance from inside the tavern showed him calmly stepping over the dying Sanabria and making his way to an exit.

After ripping through Sanabria's chest, the fatal bullet struck tavern patron Tyson Hartzog in the lower leg. In response, he jumped Bowen, according to testimony.

Hartzog testified at trial that he "took (Bowen's) face to the ground a couple times."

Police said Bowen fled the bar after suffering significant facial injuries but didn't seek treatment until after he fled to Albany, New York.

The civil trial: According to Foote, Sanabria's family sued because George's Tavern was required to use a metal-detecting wand to check all customers for weapons, as the tavern had been the site of numerous violent encounters and was considered a nuisance bar.

The requirement was part of the former tavern's provisional license with the state's Liquor Control Board, he said.

Foote said the plaintiffs maintain the security checks weren't done properly by the security guard.

"They had a wand and he may have used it, but the search was perfunctory at best," Foote said. "(Our) argument to the jury was ... just waving it in front of someone's body is meaningless."

He said the security guards should have done thorough searches, and that Bowen simply walked into the packed bar before he was finished being searched. The security guard testified he let Bowen keep walking because he didn't want to leave his post at the front door, according to Foote.

"Our case was strong," he said.

'Loved and cherished': Graham wrote a victim-impact statement that was read aloud at Bowen's sentencing.

In it, she explained she called her son "Butter" because his big smile "always melted her heart," and that even though Sanabria wasn't a perfect child, he was "a loved and cherished one."

Bowen's motive for murdering Sanabria is unknown, officials have said.


Tuesday, January 16, 2018

Florida Student Who Settled With Bar For $3.5 Million Recovers Nothing From Bar’s Insurer

The U.S. Court of Appeals for the Eleventh Circuit has agreed with an insurance company that it had no obligation to pay any part of a $3.5 million settlement reached by its insured, a bar, with a Florida college student who alleged that the bar had served her alcohol although she was underage, which led to her being sexually assaulted.
The Case
The plaintiff in this case, then a 17-year-old student at the University of Miami, alleged that she was at Mr. Moe’s, a bar in Coconut Grove operated by Moheb Inc., with a group of other students who also were under the legal drinking age. According to the plaintiff, Moheb’s employees provided alcoholic beverages to the plaintiff and the other students without requesting or verifying proof of legal drinking age.

The plaintiff asserted that she became so intoxicated that she was unable to fend off older male students who took her to a university dormitory, where she was sexually assaulted.
The plaintiff sued Moheb for negligence. Moheb then sought a defense from its insurer, Hudson Specialty Insurance Company, which had issued Moheb a liquor liability insurance policy.
After receiving notice of the plaintiff’s suit, Hudson denied Moheb insurance coverage based, in part, on the assault and battery exclusion in its policy.
The plaintiff and Moheb entered into a settlement under which Moheb admitted liability and agreed to the entry of a $3.5 million judgment against itself. Moheb assigned its right against Hudson to the plaintiff, and the plaintiff, in turn, agreed not to execute on the judgment.
The plaintiff then sued Hudson, seeking a declaration that Hudson was liable for the amount of the policy limit, damages, and attorneys’ fees.
The U.S. District Court for the Southern District of Florida concluded that Hudson had no duty to defend and, accordingly, granted summary judgment in Hudson’s favor.
The plaintiff appealed to the Eleventh Circuit.
The Hudson Policy
The Hudson policy provided coverage for liability:
imposed upon the insured by reason of selling, serving or giving of any alcoholic beverage at or from the insured premises.
It also provided:
This insurance does not apply to claims arising out of an assault and/or battery, whether caused by or at the instigation of, or at the direction of, or omission by, the insured, and/or his employees.
The Eleventh Circuit’s Decision
The circuit court affirmed.
In its decision, the circuit court explained that the Hudson policy excluded “claims arising out of an assault and/or battery.”
The plaintiff’s complaint, the circuit court observed, specifically alleged a connection between her intoxication, which had resulted from a Moheb employee’s negligent distribution of alcoholic beverages, and the sexual assault. Therefore, the circuit court ruled, the district court had correctly concluded that the exclusion’s language “undeniably” captured the actions and omissions alleged by the plaintiff.
The circuit court was not persuaded by the plaintiff’s argument that she was entitled to coverage under the concurrent cause doctrine, reasoning that because she had alleged a causal connection between her intoxication and the sexual assault, the concurrent cause doctrine was inapposite.
Finally, it rejected the plaintiff’s contention that the efficient proximate cause doctrine led to coverage because the sexual assault, a harm excluded under the policy, had been caused by her intoxication, a harm covered under the policy. The policy covered only one peril, the circuit court concluded – liability related to the sale and distribution of alcohol – and affording coverage in this case would render the exclusion clause “a nullity.”
The case is Doe v. Hudson Specialty Ins. Co., No. 17-11642 (11th Cir. Jan. 12, 2018).