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Jury awards $25 million in ’99 crash that killed 3

EDIT: Verdict increased from $18M to $25M after appeal to the WV & US Supreme Courts.

Jury awards $18 million in ’99 crash that killed 3

The Charleston Gazette

Friday, June 29, 2001

By: Lawrence Messina

Dump truck involved in wreck was run-in on ‘go-cart slick’ tires

A Lincoln County jury awarded $18 million late Wednesday to the survivors of two Logan County children killed by an overloaded asphalt truck with bald tires.

Besides the tire that blew on that April 1999 morning, at least a dozen safety violations should have kept the 32-ton dump truck off the road, investigators said.

The circuit court jury awarded $12 million of the amount to punish Mountain Enterprises of Kentucky, the company that hired truck. The truck’s owner, Galloway Trucking of Ohio, was ordered to pay $100,000 in punitive damages, and driver Billy Kirk was assessed $10,000 in punitive damages.

The remaining damages are meant to compensate the family of Harley Fitch, 11, and Tyler Fitch, 8, for their loss.

A lawyer for the family said she believes the verdict should send a message to firms that deploy unsafe trucks on West Virginia roads.

“Hopefully, this will tell them that they can’t operate like this anymore,” Letitia Neese Chafin said Thursday. “This is about changing the way these things are done, about acting responsibly.”

The Fitch children died along with their mother, Leigh Ann Poindexter, 38. They were her children from a prior relationship.

Poindexter had just pickup up one of the from their father when they were killed. Her widower filed a separate lawsuit in the crash, settling out of court for an undisclosed amount.

Kirk was 33 and hauling steaming asphalt to a paving job of W.Va. 10 near West Hamlin when the truck’s left front tire blew. The 1987 Freightliner crossed the centerline and crushed Poindexter’s oncoming car.

Mountain Enterprises had hired Galloway Trucking as part of a Division of Highways paving contract. Letitia Neese Chafin and co-counsel Truman Chafin pointed to that contract with the state, which required them to operate safely.

Though the one tire blew, both front tires on the dump truck were “go-cart slick,” in the words of one witness. The truck was replete with worn, broken or otherwise unsafe parts, a Public Service Commission investigator found after the crash.

Officer Mona Dale Koontz, who testified at the five-week trial, compiled a list of safety violations that included rotted steering hoses and rusted through alignment brackets. The front tires were so worn they showed the steel belts within, her April 1999 report said.

Koontz cited 13 violations that should have kept the truck “out of service” before the crash. She also found that Kirk did not have his driver’s licenses, medical examiner’s card, inspection papers and other documents required for the truck.

Kirk and Galloway Trucking were both charged with negligent homicide. Kirk pleaded guilty to one count of the misdemeanor charge, and was placed on probation. He expressed remorse when called to the stand at the trial. The charge against the trucking firm is pending.

The defense challenged the PSC findings, questioning how any pre-existing defects on the truck could be separated from the massive damage caused by the crash. The wreck bent or broke at least three of the truck’s four axels, and snapped the engine mounting.

Mountain Enterprises also argued that it should not be held liable for any actions of Galloway Trucking, which it considered an independent contractor. Judge Jay Hoke rejected that argument before the trial began May 22.

The jury reached its verdicts after deliberating for about five hours. Hoke must now review the $12 million punitive damage award. If he finds it excessive, the law allows him to reduce the amount.

Mountain Enterprises is a major contractor for DOH, responsible for numerous paving jobs in southern West Virginia, an agency official said. Kirk no longer drives for Galloway Trucking, and now lives in Georgia.

Letitia Neese Chafin and Truman Chafin, the Mingo County state Senate majority leader, represented Daniel R. Fitch, the children’s father, and their half-brother, Adam Plumley, now 19.

The defendants are expected to appeal the verdicts, and to ask Hoke for a new trial or a reduced verdict in the meantime. Kirk’s lawyer, John Hoblitzell of Charleston, declined comment until Hoke issues a final order in the case. Mountain Enterprises lawyer Mary Hilton Sanders did not respond to a request for comment Thursday. Charleston lawyer Michael Olivio, who represented Galloway Trucking, could not be reached for comment.

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