The evidence showed that at approximately 6 p.m. on Oct. 26, 2007, Thomas Simon, Cheryle Simon, George Wiggins and Mary Elizabeth Wiggins were returning to Fleetwood after a day of Christmas shopping in Winston-Salem. Thomas Simon was driving his 2002 Chevrolet Avalanche north on U.S. Highway 421 near Wilkesboro. Cheryle Simon, George Wiggins and Mary Elizabeth Wiggins were riding in the car as passengers.
At the same time, defendant Curtis Mondy was operating his 2004 Freightliner tractor truck and attached trailer south on U.S. Highway 421. Defendant Mondy was hauling limestone from Virginia through North Carolina for delivery in Florida. Defendant Mondy and his company, CIM Enterprises, Inc., were hired and dispatched by Golden Logistic Services, Inc., a motor carrier located in Tampa, Fla., to transport the load despite Mondy’s extensive criminal record and history of traffic violations. Moreover, Mondy and CIM Enterprises, Inc.’s motor carrier authority had been revoked by the Federal Motor Carrier Safety Administration.
The stretch of Highway 421 before the location where the wreck occurred consists of approximately five miles of steep 8 percent grade and sharp curves. There are numerous warning signs approaching this stretch of highway alerting tractor trailer drivers of the steep hill, sharp curves, the 30 mph speed limit and that truckers should place their trucks in low gear. From the top to the bottom, this stretch of highway contains approximately 11 signs showing the speed limit for trucks to be 30 mph and contains two runaway ramps.
At the time that Mondy drove his tractor-trailer down the mountain, a trooper with the North Carolina Highway Patrol was on the side of the road with his lights flashing after stopping another tractor trailer for speeding. The trooper observed Mondy and his tractor-trailer pass him going 60 mph, or double the speed limit. At the very last curve on this steep hill and less than half a mile past the last runaway ramp, Mondy’s tractor-trailer turned over and slid across the median directly in the path of and slamming into the Chevy Avalanche occupied by the Simon and the Wiggins couples.
Thomas Simon, George Wiggins and Mary Elizabeth Wiggins were killed at the scene of the wreck. Cheryle Simon survived the wreck and was taken to Wake Forest Baptist Medical Center where she fought to recover from her significant injuries; however, she did not recover and, on Nov. 8, 2007, she succumbed to her injuries. The decedents, all of whom were in their early to mid-60s, were survived by numerous children and grandchildren.
After the wreck, Mondy was charged with and pled guilty to four counts of involuntary manslaughter and is currently serving a prison sentence. In addition to the negligent driving of Mondy, plaintiffs alleged that defendant Golden Logistic Services, Inc., had negligently hired and selected Mondy.
All four cases were consolidated for trial and, immediately prior to the trial, the defendants stipulated to liability and a bench trial was conducted on compensatory damages only. Plaintiffs agreed to dismiss their punitive damages claims. Furthermore, plaintiffs entered into a covenant by which plaintiffs agreed not to enforce judgment as to Mondy and by which Mondy agreed to assign to plaintiffs all claims for bad faith pursuant to a general liability policy issued to Golden Logistic Services Inc.
Mondy declared Chapter 13 bankruptcy prior to the filing of the cases. Moreover, Mondy and CIM Enterprises, Inc. had no insurance coverage at the time of the wreck. Therefore, these cases were complicated by a complex insurance situation involving two liability insurers of Golden Logistic Services, Inc., both of which denied coverage under their respective policies, and by multiple UM/UIM policies.
Golden Logistic Services, Inc. was insured under a general liability policy and a vehicle policy. The policies afforded coverage in the amount of $1 million each. Aequicap, the vehicle insurer, initially denied coverage due to the failure of Golden Logistic Services, Inc. to report that Mondy and his tractor-trailer were being dispatched by Golden Logistic Services, Inc. to transport goods in interstate commerce, among other things. Transportation Insurors, the general liability insurer, denied coverage based on an automobile exclusion contained within the policy which excluded coverage for accidents involving vehicles owned by and/or operated by employees of Golden Logistic Services, Inc.
Just before trial, Aequicap agreed to pay its limits of $1 million; however, it did not do so under the policy. Rather, Aequicap continued to take the position that there was no coverage under the policy itself. Instead, payment was made pursuant to the MCS-90 endorsement to the policy. Aequicap provided the defense for the defendants.
Transportation Insurors, on the other hand, provided no defense in the case in addition to denying coverage. Plaintiffs’ counsel repeatedly contacted this insurer to notify them about important dates such as mediation and trial, and invited their attendance. At one point, an adjustor who said he had just inherited the file interrupted a phone call with plaintiffs’ counsel regarding mediation to say that he had to end the call because a fire alarm had just gone off and that he would call back. He never did.
Plaintiffs’ counsel subsequently mailed the judgments to Transportation Insurors and informed it of their intent to pursue a bad-faith action in Florida, where venue was appropriate and where bad-faith law is favorable for third-party plaintiffs. Plaintiffs’ counsel was soon contacted by Florida counsel for Transportation Insurors’ underwriters. Florida counsel conceded that the claim had been mishandled by the insurance company but argued that the automobile exclusion would likely apply if the issue was taken to litigation.
Plaintiffs’ position was that the exclusion did not apply because defendant Mondy was an independent contractor. Florida counsel agreed to settle the bad-faith claim for $3.73 million, which represented the $1 million limit of the policy, plus $2.73 million , which was the full amount of the pre- and post-judgment interest on the judgments totaling $18 million.
Even though plaintiffs recovered pursuant to these two liability policies, plaintiffs argued that these claims were uninsured motorist claims under three UM/UIM policies owned by the decedents. Plaintiffs’ arguments were based on the fact that Aequicap denied coverage and only paid pursuant to the MCS-90 endorsement, while Transportation Insurors denied coverage and made payment only to settle a bad-faith claim. Plaintiffs recovered the full limit of $300,000 under one UM/UIM policy because it was a Florida policy not subject to subrogation. The two remaining UM/UIM policies each provided coverage in the amount of $500,000. Plaintiffs negotiated a payment under these policies for $188,500 and $300,000, respectively, based on arguments involving the common fund doctrine, as well as the argument that these were uninsured cases.
Thus, despite the apparent lack of liability coverage for the limited amount of $2 million total for four estates, counsel for plaintiffs ultimately managed to recover a total of $5,518,500 for their clients.
Type of action: Wrongful death
Injuries alleged: Wrongful deaths of four friends and in-laws arising out of tractor-trailer collision
Case name: The Estates of Thomas Cameron Simon, Cheryle Cotter Simon, George Wesley Wiggins, and Mary Elizabeth Wiggins v. Curtis Isaac Mondy, CIM Enterprises, Inc. and Golden Logistic Services, Inc.
Case numbers: 09 CVS 93, 09 CVS 92, 09 CVS 95 and 09 CVS 94
Court: Wilkes County Superior Court
Judge: Hon. Richard L. Doughton
Verdict or settlement: Verdict – non-jury trial
Date: Nov. 29, 2010
Amount: $18 million ($4.5 million for each estate)
Insurer: Aequicap and Transportation Insurors
Were liability and/or damages contested? Yes
Was the opposing party represented by legal counsel? Yes
Has the plaintiff been successful in actually collecting the judgment or settlement? Yes
Plaintiff’s attorneys: Thompson Comerford Jr., Kevin J. Williams and John Kenneth Moser, all of Comerford & Britt (Winston-Salem); and Stuart Teeter of The Teeter Law Firm (Winston-Salem)
Editor’s note: The information in Lawyers Weekly’s verdicts and settlements reports was submitted by the counsel for the prevailing party and represents the attorney’s characterization of the case.