$3,750,000 Verdict in South Bend
A jury in the United States District Court for the Northern District of Indiana, South Bend, returned a verdict on March 24, 2003, at 11 pm, of $3,750,000 for the wrongful death of Timmy Ensz on June 29,1999, on the Indiana Toll Road. Francis Patrick Murphy represented the wife and children of Timmy Ensz in the two-week trial.
On June 29, 1999, Timmy Ensz, 29, Bismarck, North Dakota, an over the road trucker, was killed while he was traveling westbound in a construction zone about the mile marker 83. An eastbound over the road trucker, Edward Lenz, 38, of Edensburg, Pa, was also traveling in the construction zone. A concrete temporary barrier separated the two single traffic lanes. As Lenz entered the area, his 69,580 pound automotive die fell off his flatbed, struck the concrete barrier and then struck Mr. Ensz truck. Ensz’s cargo then exploded through the front of his trailer killing him. The toll road was closed in both directions about 8 hours.
“Although the Federal Motor Carrier Safety Regulations require that cargo should never be allowed to fall from a flatbed, Lenz, claimed that he wasn’t at fault since the shipper, South Bend Stamping, a division of Tecumseh Metal Products, Inc. a corporation, misrepresented the weight of the cargo at 53,850 on the Bill of Lading,” said Francis Patrick Murphy.
The case was tried under the Indiana Comparative Fault Act. The jury had to apportion fault among the driver and his carrier, P.G.T. Trucking Company, a corporation, of Monaca, Pennsylvania; the owner of the die, General Motors Corporation, a corporation; the trailer manufacturer, Transcunningham, L.L.C. f/k/a Transcraft Corp; and the shipper, South Bend Stamping.
South Bend Stamping was closing it’s doors on June 30, 1999, and filed for bankruptcy.
Although the custom and practice in the trucking industry is that drivers rely on the accuracy of the legal Bill of Lading for the weight of the cargo, Murphy and Bingle convinced the jury that the driver had improperly secured the load even at the assumed weight. Coupled with his driving conduct, going too fast into the construction zone even though he was doing the reduced speed limit, the jury found the driver and his company 95% at fault; the shipper 5%; General Motors 0% and Transcunniham 0%.
The verdict will be split among the spouse, Kamala Ensz, 34, and her children, Jordan, 9, and Andrew, 6, of Bismarck, North Dakota. “This young family was decimated by the unsafe practices of a fellow truck driver,” Murphy said. “Our nation’s highways must be safe for all motorists. And that requires strict adherence to regulations. If the industry or company policy allows drivers to assume their weight from Bills of Lading, it must stop! Drivers should be compelled to know the actual weight of their load before exposing innocent users of our highways to dangers of falling cargo,” Murphy concluded.
“Although the president of the carrier, Patrick Gallagher, 48, testified in support of his driver that the shipper was the guilty entity, we convinced the jury that it was driver’s conduct and improper load securement of the assumed weight that killed Timmy,” said Murphy.
The two week trial was before Judge Robert J. Miller, Jr., Chief Judge of the Northern District of Indiana.
Plaintiff was represented by Francis Patrick Murphy of Corboy & Demetrio, P.C. Edward Lenz and P.G.T. Trucking Company were represented by Donald Dawson and Christopher Hagenow of Kightlinger & Grey, Ltd. of Indianapolis, Indiana. General Motors Corporation was represented by James Buchholz, of Miller, Carson, Boxberger, & Murphy, of Ft. Wayne, Indiana. Transcunningham, L.L.C. f/k/a Transcraft Corp. was represented by Francis P. Cuisinier of Hartigan & Cuisinier, Ltd. of Chicago, Illinois.