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Conklin v. Apollo Express

December 4, 2008

KATIE CONKLIN, ETC., ET AL. PLAINTIFF
v.
APOLLO EXPRESS, INC., ET AL., DEFENDANT
LINCOLN GENERAL INSURANCE COMPANY, PLAINTIFF
v.
KATIE CONKLIN, ET AL., DEFENDANT



The opinion of the court was delivered by: James G. Carr, Chief Judge

ORDER

These are consolidated suits that arise from collisions involving three semi-trailers and eighteen other vehicles on February 3, 2007 near milepost 165 on Interstate 75. Two persons, Richard Searle [Richard] and his wife Debra, died at the scene from injuries suffered in the accident. The representative of Richard's estate, Katie Conklin sued the driver of one of the semis, Keith Boyne, and his employer, Apollo Express [Apollo] in case No. 3:07CV3775 for the damages resulting from Mr. Searles's wrongful death.

Lincoln General Insurance Company, which issued a liability insurance policy to Apollo, brought an interpleader action in case No. 3:08CV475 against Ms. Conklin, Christina Whatley, personal representative of Debra's estate, and other persons whose vehicle had been involved in the accident on February 3, 2007.

Among those others were Justice Hall, Kristin Carifa, and Brooklyn Hall, who were in a vehicle rented from Enterprise Rent-a-Car of Cincinnati and driven by Mr. Hall. Other claimants include Kristen and Phillip Pinciotti, who were traveling together in their van driven by Mr. Pinciotti.

Lincoln General has paid the limits of its policy with Apollo, $1,000,000, into the court's escrow.

Lincoln General has made thorough and diligent efforts to serve all parties believed to have been involved in the accident. Those who have appeared through counsel have agreed, given the indisputable fact that the amount of insurance is substantially less than could adequately compensate the decedents' estates and injured parties, to submit determination of the allocation of the $1,000,000 to me for binding, non-appealable determination.

To that end, Ms. Conklin, Ms. Whatley, Mr. Hall, Ms. Carifa, Mr. and Mrs. Pinciotti, and the owners of other vehicles, including Enterprise Rent-a-Car of Cincinnati, Compass Rose International Transportation, David Hovey and his employer, Target Express, have submitted statements of their damages for my review and consideration. I have reviewed those materials and supporting documentation, and base my determinations on that review.

The events leading to these suits occurred in the early afternoon. The Searles vehicle, being driven by Richard, and the Apollo truck were headed northbound on I-75. Encountering whiteout conditions, Richard slowed his vehicle. As he did so, he bumped into a car ahead of him. The driver of that car had seen the Compass Rose truck partially off the roadway to the right, its driver having pulled there and stopped due to the whiteout. The occupants of the car hit by Richard do not claim damages in this proceeding.

Almost immediately after the collision between Richard's car and the other vehicle, Boyne, driving the Apollo truck, struck the Compass Rose trailer in a glancing manner; he then rear-ended the Searles's vehicle, causing it to spin counterclockwise into the left northbound lane. Almost immediately thereafter, the Target Express truck, driving by Hovey and traveling northbound in the left lane, hit the Searles vehicle.

The Target Express semi, shoving the Searles's vehicle ahead of it, went with the Searles vehicle into the grassy median separating the north and southbound lanes of I-75. The Searles vehicle then struck the vehicle occupied by Justice Hall, Kristin Carifa, and Brooklyn Hall. Their car had been traveling southbound, been struck from behind by another vehicle, and then forced into the median. Their car had come to rest before being struck by the Searles's car as it was being shoved toward them by the Apollo truck.

Ms. Carifa stated that, as the Searles's car was coming toward her vehicle, Debra's eyes were open, and she appeared to have a look of terror on her face. I find from that statement that it is more likely than not that Debra experienced the conscious pain and suffering from the traumas of the injuries suffered by then, and, as well, an awareness of imminent death.

Mr. and Mrs. Pinciotti, traveling northbound, collided with a portion of the Target Express vehicle that was lying in their lane of travel.

Discussion

I find from circumstantial evidence that it is equally likely -- and thus, more likely than not -- that Richard had the same conscious experiences. Photos show that his airbag had deployed; he probably therefore had not died immediately upon the impact of the Apollo truck, which spun ...


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