purchase, george & murphey.

purchase, george & murphey.


Hit And Run Fatality Ends In Settlement In Santiago V Averill

July 6, 2010

Erie Times News reporter Ed Palattella reported today that the Erie County Court of Common Pleas approved the settlement of a wrongful death lawsuit brought by the widow of Hector Luis Rios Rivera against Michael D. Averill.

Mr. Rivera was killed in a hit and run accident in January near the intersection of Broad and Fairlane in Erie, PA. There seemed to be little question that the pickup truck which struck Mr. Rivera was owned by Mr. Averill. However, the identity of the driver had not been established because Mr. Averill had refused to speak with investigators. As a result, no criminal charges have yet been filed.

In fact, the criminal case seemed to be stalled somewhat as investigators struggled to come up with evidence that would be sufficient to prove beyond a reasonable doubt who (perhaps Mr. Averill) had been operating the pickup at the time of the death.

Matters grew more interesting when Lilly Santiago, Mr. Rivera’s widow, filed a civil wrongful death lawsuit against Mr. Averill. The civil suit offered some advantages over the criminal case in that Ms. Santiago’s lawyers did not have to prove the identity of the driver beyond a reasonable doubt. To succeed in the civil case, Ms. Santiago would only have to prove that the driver was probably Mr. Averill.

Further, while Mr. Averill was permitted to assert the Fifth Amendment in the criminal case and his assertion of that privilege could not be used against him in a criminal trial, Mr. Averill did not have the same advantage in a civil case. While he could still assert the Fifth and refuse to answer questions, that silence could be held against him by the jury in the civil case. Given that Mr. Averill was the owner of the vehicle, that he lived five blocks away, that he apparently failed or refused to implicate anyone else as the driver and that he refused to testify it seemed likely that a jury would conclude that he was probably the driver.

Whatever dramatic potential the civil case had came to an end yesterday when the insurance company for Mr. Averill settled the civil wrongful death suit. Nationwide Insurance agreed to pay the full amount of the insurance coverage on Mr. Averill’s policy. The paper did not report how much coverage Mr. Averill had but it was reported that the total settlement amount, which included some Underinsured Motorist coverage on another policy, was $125,000.

The story suggests that the settlement does not amount to an admission that the insurance company thought Mr. Averill was the driver. Indeed, Ms. Santiago’s lawyer, Phil Friedman, is reported as having said that the insurance policy on the truck was attached to the vehicle, rather than a specific driver, and so insurance coverage would apply no matter who was behind the wheel.

These statements omit some important reasonable inferences that can be drawn from this settlement. In order for someone injured in a car accident to recover anything in a wrongful death lawsuit they must prove that the named defendant was the person who harmed them. Before an insurance company will pay to settle a liability claim the insurance company owes its shareholders a duty to determine that someone they cover has harmed another. The mere fact that a particular vehicle is involved is not enough to trigger coverage because that fact does not, by itself, trigger liability and because it is possible that the driver would not have coverage if, for example, the driver did not have permission from the owner to operate the vehicle. So, while the language of the settlement may not have directly acknowledged that Mr. Averill was the driver, the payment by Nationwide is tantamount to an admission that Nationwide concluded that Mr. Averill (or someone else to whom they owed coverage) was the operator of the vehicle at the time Mr. Rivera was struck and killed.

Another observation worth making is that $125,000 is pathetically inadequate compensation for the death of a 36 year old man and the loss of a husband. Despite this it seems to me that Ms. Santiago’s personal injury lawyers did all they could reasonably have done for her. The problem here is that the coverages purchased by the participants were inadequate. This is what I call a “Coverage Tragedy,” i.e. a scenario wherein the harms and losses are far greater than the coverage available.

What most people don’t know is that the cost of a large amount of insurance coverage costs only a little more than a little bit of insurance coverage. Unfortunately, when people are buying auto insurance (and when agents or on-line services are selling it) too often people just ask for “full coverage” and what they get is the statutory minimums or some other modest coverage. In our free book, “The Ultimate Guide to Car Accident Cases in Pennsylvania: A Roadmap to Justice ” we explain how you can buy great insurance coverage and spend only a little more.