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Archive for Tuesday, November 15, 2011

$100K settlement reached in fatal accident

The parents of Mary Paez, left, who was killed in a 2010 car accident, have reached a $100,000 settlement with the insurance carrier of the driver, Sean Barrett Walker, right.

The parents of Mary Paez, left, who was killed in a 2010 car accident, have reached a $100,000 settlement with the insurance carrier of the driver, Sean Barrett Walker, right.

November 15, 2011

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The parents of a 19-year-old Lawrence woman who died in a 2010 crash in west Lawrence have reached a $100,000 settlement with the insurance carrier for the other driver involved, a 23-year-old Overland Park man, according to Douglas County court records.

Lawrence attorney James Wisler earlier this month filed a petition asking a Douglas County judge to approve the settlement between his client, Cecilia Paez, mother of Mary Grace Paez, who died in the Oct. 14, 2010, crash, and Geico Insurance, carrier for the other driver, Sean Barrett Walker. Paez’s father, Vincent Paez, would also receive part of the settlement, according to the filing.

Lawrence police have said Paez died when her Nissan Sentra that was southbound on Inverness Drive was struck by a 2001 Jeep Grand Cherokee driven by Sean B. Walker, 23, of Overland Park, that was headed west on Clinton Parkway at 1:30 a.m. that day.

Investigators at the time of the accident said they believed Paez made a complete stop at a flashing red light when she pulled into the intersection and the Jeep entered the intersection on a flashing yellow light. Walker was treated at the scene for a head injury.

The proposed civil settlement comes as Douglas County prosecutors are still reviewing whether to file criminal charges against Walker, who is currently serving a prison sentence for a probation violation in an unrelated 2006 Johnson County attempted robbery and battery case, according to the Kansas Department of Corrections and Johnson County court records. Douglas County District Attorney Charles Branson said Monday the 2010 accident was still under investigation.

A key piece of evidence will be blood-alcohol test results for Walker, which have not yet been made public. However in one police report, Officer Shawn Gross, who was first on the scene, wrote he observed Walker “staggering around” after Walker got out of his vehicle. Gross also wrote that he observed Walker’s eyes were “bloodshot, droopy and glazed” and that he observed a moderate odor of an alcoholic beverage on Walker’s breath.

Gross also said Walker’s speech was slurred. Walker refused all field sobriety tests and a request to submit to a blood test, so Gross obtained a warrant from Chief District Judge Robert Fairchild. A Lawrence Memorial Hospital phlebotomist drew Walker’s blood two hours after the crash, according to Gross’ report.

Gross just before the accident had completed a U-turn in the intersection and was headed east on Clinton Parkway when he heard a loud collision followed by the squealing of vehicle tires.

The toxicology report for Paez, a 2010 Lawrence High School graduate, was negative for alcohol and drugs, according to her autopsy report.

Fairchild has scheduled a settlement hearing in the civil case for Dec. 5.

Comments

kawrivercrow 3 years, 1 month ago

Yeah, the genius cop immediately recognizes impaired motor control and cognition as alcohol-induced in someone who just had a closed head injury. Brilliant....NOT. Nor am I convinced about anything involving the cop's subjective reports of alcohol odors.

Produce a tox report or shut up.

As an aside, I am sorry for the loss of the young lady's life. However that is a separate issue.

Daniel Speicher 3 years, 1 month ago

Refusal of sobriety tests and a BAC draw make the witness questionable at best. The warrant was rightly obtained and smart money would be on that BAC being well over the legal limit. Officer Gross is a competent officer and a good man. The chances of him fabricating a story to ensnare a suspect seem off base without knowing him and downright ridiculous if you do.

My heart goes out to the Paez family. The settlement will not bring Mary back, but it will help ease a lot of outside stressors that could exacerbate the tragedy.

--Danny Speicher

kawrivercrow 3 years, 1 month ago

You don't get it. A closed head injury (CHI) supercedes alcohol as a cause of impairment. Very few CHIs know who, what or where they are are in the immediate time frame after the injury. Officer Gross doesn't have to fabricate anything. He merely has to misinterpret it.

Don't believe me? Let someone coldconk you and then see how you do an a neurological exam. 'Smart money' has nothing to do with it

Neomarxist123 3 years, 1 month ago

Does CIH cause "a moderate odor of an alcoholic beverage on Walker’s breath."

Or are you just ignoring one of the officer's observations out of obtuseness?

Daniel Speicher 3 years, 1 month ago

And also the blatant refusal of tests. If you're looking for reasonable suspicion as to the cause of him "staggering", one shouldn't look much further than not cooperating in a field sobriety test... No matter what the other circumstances (CHI or otherwise) are.

impska 3 years, 1 month ago

My best guess is that since flashing yellow is 'proceed with caution' and he instead did not proceed with caution, but proceeded at a speed that made the collision deadly he is at least partially at fault. Geico and the family's lawyer may also have knowledge of the tox screen, even though it has not been made public.

Ron Holzwarth 3 years, 1 month ago

I have had only one experience with Geico. They were very quick to pay to have my car repaired.

It was a very interesting accident. I have never been involved in an accident that involved as many vehicles as that one did.

The Geico policyholder was attempting to make a right turn when he ran a red light in downtown San Diego in front of a very large number of witnesses. He collided with a city bus, careened off it, collided with my car which stopped at a red light and was not moving at all, and then in a spinning mode, he collided with the side of a small pickup truck and totaled it.

Fortunately, there were no injuries, only 4 wrecked vehicles, one of which was a City of San Diego transit bus that was full of passengers.

Geico Insurance was very nice about it. They contacted me right away, and were very anxious to get my car repaired for me, which was done to my satisfaction in very short order.

That accident has always led me to believe that Geico has a large number of high risk policy holders, but I really don't know.

tanaumaga 3 years, 1 month ago

why would you refuse sobriety test if you were sober? kaw up another river crow. another young life cut short.

Ron Holzwarth 3 years, 1 month ago

tanaumaga, here's why people refuse to take a sobriety test: It's because of the one year mandatory suspension of your driver's license if you do so.

Some people love the feeling of thrill and exhilaration of driving with a suspended license, when danger lurks whenever they see a police car or the potential of an accident, in which case the investigating officer will ask for a driver's license.

And, some people just can't wait to spend some quality time with their very best friend Bruno in their very own private room, paid for by the state!

As for me, I'm going to refuse a sobriety test - NOT!

skinny 3 years, 1 month ago

If Paez was drunk at the time of the accident he would be partially at fault and would serve (more) prison time.

skinny 3 years, 1 month ago

I meant if Sean Walker was drunk, not Paez, sorry.

princess81 3 years, 1 month ago

Big did you read the article? She had a flashing red light and proceeded through after she made a complete stop. She is not at fault.

jlzack 3 years, 1 month ago

hey princess, red is stop. Proceed when clear, obviously it was not clear.

somebodynew 3 years, 1 month ago

new - that is why there is insurance. I know I don't have $100k just lying around and most others don't either. Particularly this guy who is in prision.

And I would like more details of the accident before understanding it, but keep in mind that insurance companys can assign degrees of fault (i.e. one driver was 40% at fault and the other 60% at fault). Don't know if this is the case here.

iron_outlaw 3 years, 1 month ago

That's the point of insurance. To pay if something goes wrong.

Rae Hudspeth 3 years, 1 month ago

newmommie,

The insurance that you pay for.. liability, (and medical, personal injury) is for exactly this reason, that is why you have to carry it. Perhaps it is different in Brazil. Insurance companies often refuse to make settlement or payment, and in nearly every case, even though it is called a "lawsuit", it is the normal procedure for the injured to recoup their expenses and what is also called pain/injury and/or personal suffering.

It is because the driver pays insurance that it is not out of their own pocket, unless, of course, the limits of the liability policy are exceeded by the settlement. It's always good to have enough insurance to cover any tragic situations like this.

Ron Holzwarth 3 years, 1 month ago

I have never, ever had a problem collecting from an at fault driver's insurance company. I called them, explained the problem, and then they sent an adjuster that reached a settlement very quickly. Then, a check was in the mail real fast, no lawsuit necessary.

They never did bring up the subject of a rental car for my use while mine was out of service, though. Apparently they hoped that getting a check to me in the mail very quickly would prevent me from remembering that they owed me that.

Rae Hudspeth 3 years, 1 month ago

It sounds like you've been fortunate to not have been injured in those accidents. When it comes to medical bills and liability, it changes everything.

impska 3 years, 1 month ago

I suspect the insurance company settled exactly because of the photo shown above. In front of a civil jury, the crying parents and a side-by-side photo of their beautiful dead daughter next to the mug shot of the guy who killed her could become costly. Especially since the jury will feel sorry for the parents and even if they aren't biased against him, they know his giant, corporate insurance company will cover it.

otto 3 years, 1 month ago

Even if she was at fault for the collision it is pretty standard for the insurance company to pay the 100k just to settle and move on.

otto 3 years, 1 month ago

When there is a death involved - I should have added.

otto 3 years, 1 month ago

Dont need statistics, have nothing to prove to you. I've lived it, proof enough for me. Have you lost a family member in an accident?.

kimk 3 years, 1 month ago

How was Walker at fault here? She drove into him. He had the right of way. Yhey have no other evidence at this time to prove that he was intoxicated. Just because he was staggering around after the accident does not mean he was drunk, he had a head injury that he was treated for. Even if he was intoxicated, she ran the red light and hit him, not vice versa. Still not seeing how Walker was at fault in any way.

Ron Holzwarth 3 years, 1 month ago

It's possible that you don't see why Walker was at fault because not all of the facts were presented here. There is not a single mention of Walker's previous driving record, and that would be a very big subject to be covered during the course of the trial. And, while that was being covered, all of the lawyers would be getting paid by the hour.

Insurance companies are in business to make profits, not losses. Apparently after their lawyers reviewed the case, they determined that allowing this case to go to a jury trial would be a very big financial mistake.

Because in the end, they would be very likely to have to pay the $100,000 anyway, which was probably the policy limit, in addition to all of their legal costs.

Perhaps you should call a few law offices and find out how much it costs to hire the services of an experienced trial attorney. That should very quickly clarify a few things for you.

Daniel Speicher 3 years, 1 month ago

As far as the settlement and why he was put at fault when she had a flashing red and he had only a yellow, there are many factors that can play into who is primarily at fault. Some of the factors that can play into this are malfunctioning equipment (broken headlights or headlights not on); excessive speed of the accused driver; intoxication of the accused driver; etc., etc. Now, I will say that the strip of road that Mr. Walker was traveling does give a driver who would be going southbound on Inverness a long line of sight prior to the intersection. However, extenuating circumstances often are the reason for such responsibility assessments by insurance companies and even more often are not talked about in the media. The truth is we do not know the entire story, but the officer and, subsequently, the insurance company does and a settlement was granted based on this information and the best interest of the insurance company.

--Danny Speicher

Ron Holzwarth 3 years, 1 month ago

At no point in the article is it claimed that Mr. Walker was "put at fault".

The only claim made in the article was that his insurance company paid the settlement in order to end their involvement in the matter after reviewing the history of the driver who held a policy with them, examining the accident report, interviewing Mr. Walker, and then making an attempt to determine the legal cost of defending an almost hopeless case.

Legal defense is very, very expensive, and in the case of a fatality, juries are not at all sympathetic to an intoxicated driver, which was possibly the case.

Car insurance is a business, and after making a cost/benefit analysis, a decision was made that defending this case would be very expensive, and winning the case would be not at all likely.

In that case, they would lose all of their legal costs, as well as the very top limit of the liability policy. Geico made a decision to limit the loss to the very top limit of the liability policy that was held.

Only civil liability was settled. From this point on, Geico is no longer involved, and can lose no more money on this unfortunate event.

Berkshire Hathaway is the sole owner of Geico. Reading Warren Buffett's letters to the shareholders of BRK will shed some light on the subject of how businesses work.

It's all about investment, procuring tangible machinery and items to be used for production, skilled workers to design and later others for production to add value to the company's product, producing a product that consumers want to purchase, and then distributing that product.

Of course, not all of those apply in all businesses, and certainly not in the case of the insurance business.

Now that Geico has realized that Mr. Walker was not a good investment, they are no longer involved.

Legal culpability is the next thing that will be considered. The outcome of that will determine whether Mr. Walker is "put at fault".

Ron Holzwarth 3 years, 1 month ago

"Car insurance is a business," and I'm a good customer. I pay and pay and pay, and haven't made a claim for decades.

Bob Forer 3 years, 1 month ago

I think we need to consider the possibility that Walker was intoxicated, but that the intoxication was not the proximate cause of the accident. After all, it is theoretically possible that Walker was intoxicated but still driving the speed limit and that the young woman pulled out in front of him, and that the accident could not have been avoided, even if Walker were stone cold sober.

Under Kansas law we have what is known as comparative fault. The problem with applying comparative fault in this case is that while we know the blood alcohol content of Walker, in a few rare cases it is very difficult to establish causation between the intoxication and the cause of the accident. This is such a case. They can measure skid marks, etc, and come up with an approximation of how fast Walker was going, but the margin of error might make it difficult, if not impossible , to prove with certainty that Walker was exceeding the speed limit, or was impairecd to the extent that his diminished capacity prevented him from avoiding the accident despite the fact that the young woman pulled out in front of him.

We can only guess as to the results of the toxicology report. Here are the possibilities:

1) Walker was above the legal limit. If this is the case, a question arises: Why hasn't the DA filed charges? Perhaps he is waiting for a report from an accident reconstruction expert, which could take months. Sure, he might have evidence of a DUI, but if he filed that charge immediately and thereafter obtained a conviction, he would be precluded under the principles of double jeopardy from later prosecuting Walker for vehicular homicide. Conversely, if he filed both DUI and vehicular homicide charges from the outset, but did not have sufficient evidence of causation between the DUI and the accident, then he would stand a strong change of losing the vehicular homicide case at trial even though he has a slam dunk on the DUI.

2) Walker had alcohol in his system, but it was below the legal limit. This would make a DUI prosecution very difficult to prove, but not impossible, as someone can still be illegally impaired but still be under the legal limit of .08. Ironically, if that were the case, he might stand a better chance of winning the vehicular homicide case but losing the DUI in a criminal trial.

(continued below)

Bob Forer 3 years, 1 month ago

Until the results of the toxicology report is made public, it is impossible for us to pass judgment on the DA's handling of the matter.

The fact that Walker's insurance company settled for what is probably the policy limits indicates that the toxicology report was positive for alcohol. Even though the insurance company had a colorable defense that the alcohol was not a proximate cause of the collision, it would be prudent for them to settle the matter for two reasons: (1) Even if they won, the cost of defending this matter all the way through trial would probably be in excess of $50,000. (2) Although the chances of defending the case successfully may have been good, if the jury found any fault on the part of Walker, the total damages would most likely be far in excess of $100,000. Assume, for example the jury found Walker partially at fault, resulting in a judgment against him of $500,000. The insurance company would only be legally liable for paying the victims the policy limits of $100,00, and the excess judgment of $400,000 would be against Walker individually. Although Walker is probably judgment proof (in laymen's terms, "you can't squeeze blood from a turnip") he would still have a bad faith insurance claim against his insurance company for failing to settle for the policy limits and obtaining a full release from the victims. In this scenario, the victims could reach an agreement with Walker where Walker would assign his bad faith insurance claim to the victims, in exchange for their promise not to try to collect on the judgment personally against him.. The victims would then pursue the bad faith claim against the insurance company for the $400,000 excess judgment.

I hope this helps explain why the insurance company may have settled and why criminal charges haven't been filed yet.
] One final thought. Since Walker is in prison right now there is no reason for Branson to "hurry up" and make a decision on whether to prosecute. They know where to find him, so they don't have to worry about him moving away and not being able to find him for arrest or service of a criminal summons.

Ron Holzwarth 3 years, 1 month ago

I have to wonder: If the US Government regularly used a cost/benefit analysis in a general way as TheSychophant explained above, would we have a $14 trillion National Debt today?

Daniel Speicher 3 years, 1 month ago

Much better said than my own post. Thanks for better clarifying the legal standpoint. Well said.

verity 3 years, 1 month ago

Not to argue the merits one way or the other of this case, since we don't know all the particulars, but I would like one thing cleared up by someone who knows how to interpret the law.

When I have a red flashing light and the other light at the intersection is flashing yellow, do I not have to stop and then proceed only when the intersection is clear and no other traffic coming would have to slow down to avoid hitting me?

somebodynew 3 years, 1 month ago

verity- simply put, you are correct. If you have the flashing red you must stop and proceed only when the way is clear. But there may be other factors involved: sight distance, speed of the other driver, impairment on either party's part and a host of other things that insurance companies will weigh in on the 'comparitive fault' things that Sync talked about.

And even if Walker had the right of way, that doesn't mean he can't be charge with a DUI or that his insurance company won't pay a settlement. It is called a settlement because neither side got completely what they asked for originally.

verity 3 years, 1 month ago

Thank you.

I guess I should have fought a ticket I received. I was driving a pickup and, after having stopped at a blind corner where you had to check the traffic moving a half block away and then wait until any vehicle in that space would have passed, I pulled out and was hit by a small car that I couldn't see, although he should have been able to see me since my pickup could be seen over the cars parked next to the intersection. He was probably speeding and was talking on a cell phone, which he continued to do even after he hit me. The policeman apologized for giving me a ticket---certainly not the first accident that had happened at that corner---but said he had to. Not sure that is true, as I know other times policemen use their discretion on such things.

Bob Forer 3 years, 1 month ago

Just thought of something else. DUI can either be "driving while impaired" or having a BAT of .08 or above within two hours of operating a motor vehicle. The latter is much easier to prove, because all you need is a blood or breath test of .08 or above within two hours of operating a motor vehicle. The alternative" "impairment charge" that a prosecutor may elect to charge under is designed for cases where a BAT is not given because the defendant refused to take one, of the BAT was given but not within the two hour period after driving, or the BAT was given but later ruled inadmissible because the officer didn't strictly follow staandard operating procedures. For example, the officer must wait a full 20 minutes for the testing machine to warm up. 19.5 minutes is insufficient. Also , the officer is required to personally observe the defendant for 20 minutes prior to taking the test to ensure the defendant does not put anything in his mouth. Here for example, if the officer, while watching the defendant, is momentarily called to a cell because another inmate is fighting with an jailer, or is otherwise called away because of an emergency, even momentarily, and thereafter doesn't start a new 20 minute observation period, and the defendant is savy enough to tell his lawyer of this fact, or the lawyer is competent enough to thoroughly interview his client on every nuance and detail of the arrest, and of course, assuming the cop, when called to testify tells the truth and admits that he was momentarily called away, that would be grounds for invalidating the test resuits.

con't

Bob Forer 3 years, 1 month ago

What is interesting here is that the LJW article states the blood was drawn "two hours" after the accident. I am sure that is not the precise time. It was probably around two hours after the accident. The kicker here is that under these circumstances, both a competent nurse and a competent police officer will separately note the exact time of the blood draw. And since the first officer was very close to the scene when the accident occurred,. dispatch records could pinpoint, with a very small margin of error, as to the exact time the accident happened. The two hour rule is strictly construed. If the two hours as stated in the LJW article is actually two hours and three minutes, then the prosecution is out of luck, at least in part. It can still introduce the results of the tests as evidence of impairment, but cannot rely on the luxury of the per se rule, ie., .08 within 2 hours and you are are guilty. This, in turn, allows the defense to introduce evidence and argue that even though he had a certain blood alcohol content, and even though such content is known to impair some people, e.g., those of lesser lesser weight or lesser tolerance to alcohol, it didn't impair this particular driver. This is where field sobriety tests come into play, and here, the defendant refused to take them. The prosecution will argue that his refusal is evidence that the defendant knew he was impaired and refused in order to make his a conviction more difficult. The defendant will argue that he suffered a head injury and didn't understand the request. In sum, simply because the state has a test obtain around two hours after the accident, it may be of little value in obtaining a criminal conviction.

Without more information, it is impossible to draw any conclusions or make any judgments as to why a criminal case has not yet been filed. On this one, anyway, the DA's office is entitled to a pass for the time being.

Dayna Lee 3 years, 1 month ago

I am very sorry for this family's loss. I wonder if the writer of this article really needed to publish the amount. 100,000 is no small amount but it certainly is not enough to share with the whole world. I hope they are able to do something wonderful in their child's memory.

Reuben Turner 3 years, 1 month ago

glad for the settlement, but I wonder if that will make losing the daughter easier? I'm guessing no..

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