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It may be a first. Homeowners’ insurance has funded a $4.25 million settlement that 25 students named as defendants in litigation over the 1999 Texas A&M University bonfire collapse reached with the families of seven victims of that accident. Britton Harris, attorney for five students who settled the claims against them, says the students were covered by their parents’ homeowners’ insurance policies. “If you are insured under a policy and an event is covered by the policy, it doesn’t matter if you’re at home or 90 miles away in College Station,” says Harris, a partner in Brown McCarroll in Houston. Chuck Aris, a Dallas attorney who represents four of the students who settled, says homeowners’ policies typically include liability coverage for claims brought against an insured for injuries suffered outside the home that do not involve on-the-job or automobile accidents. “This is probably the first time [homeowners' insurance] has ever covered a bonfire collapse,” says Aris, a partner in Gwinn & Roby. It also marks the first settlement in the lengthy litigation stemming from the collapse of the bonfire, which left 12 persons dead — 11 A&M students and one former student — and 27 others injured. Fort Worth, Tex., attorney Darrell Keith, who represents the families of students killed in the accident and two students who suffered injuries, announced the settlement on Nov. 18, the fifth anniversary of the accident. “I think it is an excellent settlement with this group of student leader red pots,” Keith says. The red pots — so named because they wore red helmets — were student leaders who oversaw construction of the bonfire that A&M traditionally held before its annual football game against the University of Texas. “We interpret [the settlement] as their willingness to accept some measure of responsibility for their conduct in connection with the bonfire collapse,” says Keith, the principal in the Law Offices of Darrell Keith. “That should not be gleaned or assumed from the settlement by any stretch of the imagination,” says Coleman Sylvan, a principal in Dallas’ Johnson & Sylvan, and attorney for three student-defendants who agreed to the settlement. “We denied liability, and we still very strongly believe that denial is appropriate.” Aris says, “It was a tragedy, and everybody recognized it was a tragedy. I certainly don’t think the students did anything wrong.” “This is something the kids wanted to get behind them so they can get on with their lives,” Aris says, in explaining why his clients decided to settle. Harris says many of the settling defendants’ insurers elected to settle because defending against the litigation has been expensive. Keith says the settlement was reached during mediation that 361st District Judge Steve Smith of Bryan ordered in In Re: Bonfire Cases. Former Texas Supreme Court Justice Deborah Hankinson, the owner of Dallas’ Law Offices of Deborah Hankinson, presided over the mediation, which began in April, he says. “This is a result of settlement negotiations in the mediation process,” Keith says. SAFETY FIRST Keith filed the first bonfire suit, Estate of Jerry Don Self v. Ray M. Bowen, et al., on March 28, 2001, in Tarrant County Probate Court No. 1 on behalf of Jacquelyn Kay Self, whose 20-year-old-son, Jerry Don, was one of the students killed when the 55-foot stack of logs collapsed. Self’s estate will share in the settlement proceeds, as will the families of Christopher Heard, Bryan McClain and Chad Powell, students who died in the accident; and John Comstock of Richardson, Dominic Braus of Halletsville and Matthew Robbins of Hidalgo County, who are among the injured students. Harris says suits also were filed in other state courts in Tarrant, Bexar and Harris counties as well as in the U.S. District Court for the Southern District in Galveston. The suits filed in state courts named more than 60 defendants. “We spent three years going through procedural issues,” Harris says. Harris says the judges in each of the state courts where the suits were filed granted the defendants’ change of venue motions and transferred the cases to the 361st District Court, where Judge Smith consolidated the cases for discovery. Although the mediation process continues, Keith says approximately 35 defendants who have not settled with the plaintiffs — including Bowen, A&M’s former president, as well as other A&M officials and student bonfire leaders — face a trial set for March 28, 2005, before Smith. Geno Borchardt, attorney for Powell’s family, says his clients are pleased that a part of the case has been resolved. “But they will continue to pursue the case against Texas A&M officials to make sure if and when the bonfire returns, the bonfire will not result in the deaths of young men,” says Borchardt, a partner in Fort Worth’s McGartland & Borchardt. The plaintiffs allege in their ninth amended petition that in its inception the bonfire stack consisted of little more than “piles of wood and trash” but evolved over the years into “a mammoth, complex and risk-significant structure.” According to the petition, the 1999 bonfire was more than 55 feet high and weighed more than 3 million pounds. In the petition, the plaintiffs further allege that, beginning in 1997, A&M officials failed to provide a faculty adviser trained in construction science to assist students in designing and building the bonfire. The plaintiffs allege that the student leaders eliminated safety features that had been used in constructing previous bonfires. In their petition, the plaintiffs allege negligence on the part of all the defendants with regard to construction of the 1999 bonfire. Jerry Strickland, spokesman for the Texas Office of the Attorney General, which represents the former and current A&M officials named as defendants, declines comment because the case is still in litigation. Strickland says the OAG filed a general denial of the plaintiffs’ allegations. Harris, who also represents eight defendants who have not settled with the plaintiffs, says his clients have raised affirmative defenses under Texas Education Code �51.937, which provides immunity from liability for volunteers, and under the Charitable Immunity and Liability Act, Chapter 84 of the Civil Practice & Remedies Code, as well as other defenses. U.S. District Judge Samuel B. Kent of Galveston has twice dismissed six federal suits brought by bonfire victims and survivors, based on the state-created danger theory. In May, Kent held in Howard Scanlan, et al. v. Texas A&M University and the other suits that the victims’ constitutional rights to be protected against a state-created danger have not been clearly established by the 5th U.S. Circuit Court of Appeals. An appeal of Kent’s ruling is pending at the 5th Circuit. Keith says the suits are not just about money and that the plaintiffs in the state district court action have filed a motion for an injunction that requires Texas A&M to design, construct and burn any future bonfire structures on the university’s campus in a way that will promote safety. Notes Keith, “If A&M brings bonfire back, it should be done in a reasonable and prudent manner.”

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