Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, March 15, 1990 TAG: 9003152706
SECTION: VIRGINIA PAGE: B3 EDITION: EVENING
SOURCE: JOEL TURNER MUNICIPAL WRITER
DATELINE: LENGTH: Medium
Cassell was writing out a report on a car fire when he and another firefighter, Harvey Helm, were struck by a hit-and-run driver on Shenandoah Avenue Northwest. Helm, too, was killed.
Brenda Downs, whose car had caught fire, was standing near the two firefighters. She was killed, too.
The three deaths triggered lawsuits by the victims' families against Roger Lee White, the hit-and-run driver, for more than $5 million.
But a legal question arose during the Cassell lawsuit that has delayed a decision on the suits.
The issue was whether Cassell was "using" the fire truck when he was killed and whether his widow could collect damages from the city's insurance carrier under the state's uninsured motorist law.
White, the hit-and-run driver, had only a "minimal amount of insurance coverage," said Jonathan Kurtin, an attorney for Cassell's widow.
White's coverage was far less than the amount that Cassell's widow felt she should receive. She had sued for $1.25 million in compensatory damages and $1 million in punitive damages.
Cassell's widow contended that the city's insurance carrier should be liable for damages under the state's uninsured motorist law. The city had a motor vehicle insurance policy with Great American Insurance Co. when the accident occurred in 1985.
The insurance company contended that it had no obligation to Cassell, however, because the fire truck was not being used at the time the fire captain was struck and killed.
Former Roanoke Circuit Court Judge Jack Coulter ruled that the city's insurance company was required to make payment to Cassell's widow under the uninsured motorist law.
But the decision was appealed to the Virginia Supreme Court because the insurance company disagreed with Coulter. In a recent decision, the Supreme Court upheld Coulter's ruling.
Even though Cassell was struck and killed while he was standing about 25 feet from the fire truck, the state's highest court said he was "using" the vehicle, thereby entitling his widow to the vehicle's uninsured motorist coverage.
"The mission had not been completed when the mishap occurred," Justice Leroy Hassell said. Cassell was "engaged in a transaction essential to the use of the fire truck when he was killed," Hassell said.
Kurtin, who argued Cassell's case before the Supreme Court, said the fire truck had a fire-fighting mission that was still in progress when Cassell was away from the vehicle to help extinguish the fire and prepare a report on it.
Now that the legal issue of whether the insurance company can be required to make payment under the uninsured motorist law has been resolved, Kurtin said, the lawsuit by Cassell's widow for $2.25 million can proceed. "Now we will go back to the original damage suit."
The families of Helm, the other firefighter who was killed, and Downs, whose car caught fire, also filed separate $1.25 million suits against White.
The city sided with Cassell's widow in the case and filed a legal brief contending that Cassell was using the fire truck when he was struck and killed.
City Attorney Wilburn Dibling said the Virginia Municipal League supported the city's position.
"We had a hit-and-run driver who was under-insured," Dibling said, "which was effectively the same as being uninsured."
The Supreme Court's decision has implications for all cities, counties and towns with fire trucks, he said.
White, who was 18 when the accident occurred, was convicted of hit-and-run and three counts of involuntary manslaughter. He was sentenced to 10 years in prison.
White had been at a Halloween party in Roanoke about a mile away from the accident. Testimony at his trial disclosed that he drank beer at the party, left just before midnight and headed west on Shenandoah Avenue toward his home in Salem.
White's car never slowed after striking the three people, witnesses said.
by CNB