Nearly 10 years after a triple-fatality drunken driving wreck, an insurer suing in federal court to dodge a $5.3 million DeKalb County jury award has settled its claims with the estate of one of the victims.
Safe Auto Insurance had sought a ruling from the district court that it only owed the $25,000 policy limit for its insured—the owner of the drunken driver’s vehicle—and was not responsible for the excess judgment entered by the state court.
The confidential settlement with the estate of one of the victims, Fatima Bird, came days after the Georgia Court of Appeals upheld several rulings by the trial court, including one barring apportionment of liability to a strip club accused of serving alcohol to the drunken driver, who also died in the wreck.
The settlement ends a web of litigation that involved two trials and three trips to Court of Appeals, along with side trips to other venues, including Cobb County Superior Court and U.S. Bankruptcy Court.
Attorney Trent Speckhals represents Bird’s mother, Lisa Mitchell, who is also the conservator for Bird’s two young daughters.
“I can only report that the matter confidentially resolved to the parties’ mutual satisfaction,” said Speckhals, saying he was also constrained in commenting on whether the Court of Appeals factored in the settlement.
Slappey & Sadd partners Jay Sadd and Rich Dolder, who represented the estate of the deceased drunk driver in the federal litigation, also said they could only say the case resolved to everyone’s satisfaction.
Safe Auto’s attorneys, Tracey Ledbetter and Michael Nelson of Eversheds Sutherland, did not respond to requests for comment.
The case began in the early hours of July 5, 2008, when Otis South was driving the wrong way on Interstate 20 in his stepson’s Lincoln Town Car and plowed head-on into Bird’s Pontiac Sunbird, killing her and her friend Melissa Sinkfield. A third woman, Keondra Brown, was seriously injured.
South’s blood alcohol content was 0.398 percent, almost five times the legal limit.
The Lincoln’s owner, Travius Ryan, had a Safe Auto policy carrying a $25,000 per person/$50,000 per accident limit.
After the wreck, Brown and Sinkfield’s estate settled their claims for $25,000 apiece. Speckhals also sent a settlement offer for the policy’s $25,000 limit, but he requested information about additional insurance coverage and set a 20-day time limit to respond.
Safe Auto provided a copy of its policy, a policy declarations page initialed by a company representative, and a draft for $25,000.
Speckhals requested the additional information again one day before the time limit expired, but it was not forthcoming. He informed the insurer the offer was withdrawn.
In 2009, Speckhals filed suit on Mitchell’s behalf in DeKalb State Court naming South’s executor, Melinda Pillow, and Ryan as defendants. Ryan was later dismissed.
The defense responded with a “motion to enforce the settlement,” arguing the $25,000 tendered the year before constituted a binding settlement. The trial judge denied the motion.
Safe Auto then filed a declaratory judgment action against Mitchell in Cobb Superior Court, arguing it had exhausted its $50,000 per accident limit by paying the other two victims and owed no duty to defend the DeKalb suit or pay any potential judgment.
Judge James Bodiford ruled Safe Auto had exhausted Ryan’s policy limits and was “no longer contractually obligated to make any further payments under the terms” of the policy.
But, he added, “the court is not making a ruling as to any potential bad faith claim which may be the subject of further litigation should there be a verdict in the jury trial before the State Court of DeKalb County.”
In separate litigation Mitchell filed a dram shop complaint against Moreland Avenue strip bar Blazing Saddles, accusing it of serving South alcohol when he was already drunk. Blazing Saddles defaulted and was hit with a $1.75 million judgment in 2011 after a damages-only trial.
The lawyers for Pillow, South’s executor, attempted to apportion liability to Blazing Saddles, but DeKalb State Court Judge Stacey Hydrick refused to allow it and denied defense efforts to introduce evidence of the dram shop case at trial.
Safe Auto filed a declaratory judgment action in the U.S. District Court for the Northern District of Georgia in an effort to head off an excess judgment just before the case went to trial last year.
The complaint noted that Bird “was a young woman and is alleged to have suffered tremendous pain and agony prior to her death.”
“Given the pendency of the jury trial and the substantial likelihood of a judgment against the South estate, a bad faith suit against Safe Auto is imminent,” it said.
In the federal action, Safe Auto reiterated that it had attempted to settle Mitchell’s claims and thus could not be sued for “bad faith failure to settle.”
Sure enough, the jury returned a verdict for $5.35 million against Pillow.
Pillow appealed the verdict to the Georgia Court of Appeals, arguing that Hydrick should have allowed in evidence of the Blazing Saddles judgment and permitted the jury to apportion liability to it.
On May 22, in an unpublished opinion written by Judge Gary Andrews, the state Court of Appeals upheld Hydricks’ rulings excluding evidence and apportionment to Blazing Saddles, finding no direct evidence showing South had been served alcohol when he was drunk or that he had even been to the club the night of the wreck.
One week later, as U.S District Judge Eleanor Ross was considering dueling summary judgment motions in the Safe Auto litigation, the parties requested a stay because they had reached a tentative settlement.
The case was dismissed with prejudice on June 11.
Speckhals said the settlement resolves all claims among Pillow, Mitchell and Safe Auto.
Jonathan Adelman of Waldon, Adelman, Castilla, Hiestand & Prout, who represented Pillow at the Court of Appeals with firm partner Ashley Rice, noted that his firm entered the underlying case shortly before trial.
The issues on appeal “involved rulings before we became involved in the case,” said Adelman, and his team was not involved in the settlement discussions.
“Accordingly, I do not believe we can comment on the matters other than to say that we are pleased that a settlement was reached,“ he said.
As to that 2011 judgment against Blazing Saddles—which is now doing business as The Blaze—the Bankruptcy Court approved a settlement in 2013 whereby Bird’s estate is receiving monthly payments toward the debt.
Speckhals said the labyrinth of litigation is unlike any he’s ever handled.
Asked how many hours he’s put into the case, Speckhals said, “After 1,000 hours, I stopped keeping time.”