Terry & Tina Gray
Salt Creek Golf Resort
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Jon K. Stowell
Law Offices The Cincinnati Insurance Company
PNC Center, East Tower
101 W. Washington Street
Indianapolis, IN 46204
John Schuerman and I represent Terry Gray and Tina Gray. For the serious personal injuries they suffered on September 27, 2015, I am extending an offer to settle for $4 million dollars on behalf of Terry Gray and $400,000 on behalf of Tina Gray. This offer is open until April 4, 2017.
Your insured is the Salt Creek Golf Retreat. Salt Creek operates an 18 hole golf course, condominium style hotel, event facility, and pro shop at 2359 State Road 46 East in Nashville, Indiana. Your insured was organized as “Nashville Golf, L.L.C” in 1999 by Mark Gabriel. Ben Van Ness is the current registered agent. Nashville Golf still owns the land at Salt Creek.
Salt Creek also operates the “19th Hole Sports Bar” in the event facility. The bar is open “all year around, 7 days a week”, providing live entertainment on weekends. It “offers coolers of beer and other beverages” and carryout for its entire beverage menu. On Sundays the 19th Hole offers a $2.50 drink special on domestic bottled beer. Tony VanNess is currently the bar manager. (http://www.saltcreekgolf.com.)
You have graciously provided me with two separate policies of insurance which provide liability coverage for Salt Creek. The first is a general commercial liability policy, policy number GCC 000 28 24, with a per occurrence liability limit of $1 million dollars. The second is a commercial umbrella liability policy with what appears to be the identical policy number, which also provides a per occurrence liability of $1 million dollars. In making this offer, we are assuming that there are no other policies that might be applicable to your insured and that the total limits of liability coverage are $2 million dollars. The value of the Grays' claims exceed the $2 million limits.
Matthew J. Schad
Facts of the Crash
The 19th Hole was open on Sunday, September 27, 2015. One of the bar patrons that day was a Mr. Brent M. Anderson. Mr. Anderson was a native of Indianapolis who was staying with his sister, Mary Anderson, in Nashville. Mr. Anderson was a “regular” at the 19th Hole. (Supplemental police report, page 6).
The bartender at the 19th Hole was Abigayle K. Gore. When later questioned by police, Ms. Gore stated that she “could tell Brent was getting intoxicated because she could tell that Brent was starting to slur his words.” (Supplemental police report, page 6). Ms. Gore served Mr. Anderson at least three beers.
We are in possession of the receipt for Mr. Anderson’s order which shows “3 Amber Bock pints” and an order of chicken wings at 5:51 PM. (Reciept order #56209, ticket #83). A pint is at least 16 fluid ounces of draft beer. Most beers are 12 fluid ounces. Michelob Amber Bock is a dark lager beer that is 5.2% alcohol by volume, higher than most American lager beers. Mr. Anderson left before eating the wings he had ordered.
There are other employees of the 19th Hole who were also familiar with Mr. Anderson. On several occasions 19th Hole employees or bartenders, including “Lorraine” and “Lil”, drove Mr. Anderson home. (Investigator Recorded statement at Salt Creek Inn, October 1, 2015). Your insured was aware that Mr. Anderson had the propensity to drink past the point of intoxication.
Mr. Anderson left the 19th Hole driving his sister’s 1986 blue Chevrolet truck. Salt Creek Golf Resort maintains a private road which leads from its facilities to State Road 46. The road is .4 miles. State Road 46 is a two lane rural highway with a speed limit of 50 m.p.h. at the intersection. There was no stop sign at the intersection with S.R. 46 advising drivers to stop. There was a sign that said “exit carefully”. There is a Shell gas station across the highway. Traffic leaving the private driveway has the duty to yield to the highway traffic.
Witnesses and bystanders at the gas station report that Mr. Anderson failed to yield and continued across the highway. (Indiana Officers Standard Crash report, p. 2). His truck blocked oncoming traffic on S.R. 46 from both directions. One of the witnesses was Amanda Kuhfahl, a Brown County Probation Officer.
Terry Gray was driving his 2005 Harley Davidson motorcycle eastbound on SR 46. Tina Gray was his passenger. Mr. Anderson pulled directly in front of them, causing Mr. Gray's cycle to crash into the driver's side of the Anderson truck. Mr. Gray's body went went airborne, thrown forward at a velocity of 40mph. When Mr. Gray's legs reached the cycle fork and handle bars, his legs and pelvis were forcefully torn apart. Helanded in the back of the truck. Ms. Gray was found lying in the road. Mr. Anderson’s truck continued on into the gas station, where he struck a parked car, forcing it into a nearby creek. He had severe injuries to his pelvis, genatalia, bladder, and abdomen.
Deputy Stargell, the officer in charge of the scene, smelled alcohol on Mr. Anderson. Anderson had told EMT Ella Fox that he had consumed twenty beers. (Supplemental Report, p. 6). The EMS crew drew extra blood for testing. The results of the testing were .386% BAC. Mr. Anderson was also driving on a suspended license.
A bystander reporting at the scene told Deputy Stargell that the Anderson truck had left the 19th Hole and travelled through the intersection without stopping. Terry Gray’s motorcycle hit Anderson’s truck on the driver side door. He was thrown over the truck and into the bed. Tina was thrown over the truck into the road.
Deputy Stargell dispatched Nashville Police Officer John Thompson to the 19th Hole to gather more information. It was Officer Thompson who verified that Abigayle Gore had seen that Mr. Anderson was impaired and served him multiple 16 oz beers. Officer Thompson also retrieved the drink receipt.
Mr. Anderson was arrested at the scene. Ultimately he plead guilty to two counts of IC 9-30-5-4(a)(3), Causing Serious Bodily Injury When Operating a Vehicle While Intoxicated. (CCS Summary, 07C01-1509-F6-000299, State v. Brent M. Anderson).
Both Terry and Tina Gray were lifelined from the scene. Mr. Anderson reported at his guilty plea hearing that the did not consume any alcohol at any other bar other than your insured's.
Indiana’s Dram Shop liability statute is codified at IC 7.1-5-10-15.5. When a person or business contributes to the intoxication of a person who cases death or injury, that person furnishing the alcohol is liable if:
- the person furnishing the alcoholic beverage had actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time the alcoholic beverage was furnished; and
- the intoxication of the person to whom the alcoholic beverage was furnished was a proximate cause of the death, injury, or damage alleged in the complaint.
Indiana’s Dram Shop Act “represents a legislative judgment and the declared public policy of this state that providers of alcoholic beverages should be liable for the reasonably forseeable consequences of knowingly serving visibly intoxicated persons. Pierson v. Service America Corp, 9 N.E. 3d 712 (Ind. App. 2014).
Actual knowledge of visible intoxication is not required. It can be inferred from indirect or circumstantial evidence such as “what and how much the person has consumed, the time involved, the person’s behavior at the time, and the person’s condition shortly after leaving.” Marlow v. Better Bars, Inc. 45 N.E. 3d 1266 (2015).
In Marlow, the Indiana Supreme Court held that intoxication is a question of fact for the jury. If even one alcoholic beverage is consumed at a bar, the jury may infer visible intoxication from the BAC alone – even when a patron leaves and consumes alcohol somewhere else. The Supreme Court also rejected the notion that the driver’s criminal act relieves the responsibility of the bar owner. “An OWI is the natural and probable consequence of consuming alcoholic beverages; thus, a tavern should reasonably foresee that an over-served patron will be subject to an OWI investigation”. Id at 1276.
The legislature intended, and public policy supports, “the extension of civil liability to family, friend or acquaintance who merely furnishes ‘one more drink’ to an intoxicated person.” Ashlock v. Norris, 475 N.E.2d 1167, 1169 (Ind. Ct. App. 1985). See Dram Shop Liability in Indiana: Analysis of Ashlock v. Norris and the New Civil Statute, Ind. L. Rev. Volume 19, p. 417.
The Dram Shop Case
These facts present a prima facie, powerful liability case against Salt Creek for three separate reasons. First, Abigayle Gore admitted to a police officer that she could tell that Mr. Anderson was getting intoxicated. Second, Mr. Anderson’s extraordinary BAC proves visible intoxication standing alone. Third, the police investigation confirmed that your insured had failed to place a stop sign on its property where exiting patrons should stop before entering S.R. 46.
Mr. Anderson was visibly intoxicated.
Unlike many dram shop cases, it is undisputed here that the 19th Hole served a visibly intoxicated patron who immediately left and caused devastating harm. Both Ms. Gore’s testimony to the officer and the receipt confirm that he was sold at least three pints of dark lager beer. Ms. Gore said that she could tell he was intoxicated because he was “beginning to slur his words”. Her admission satisfied even the most stringent application of the knowledge and visible intoxication requirements. Mr. Anderson's plea testimony was that he had not drank anywhere else the your insured's bar. Other Indiana cases have determined a plaintiff met her burden under far worse facts.
Mr. Anderson was a regular at the 19th Hole.
This was also, apparently, not the first time that the 19th Hole had served Mr. Anderson to excess. Statements by our investigator from your insured’s staff confirm that there were multiple other occasions where he was driven home as well. Mr. Anderson’s habits and reputation for drunken excess were well known to your insured prior to the crash.
Mr. Anderson's .386% BAC is powerful and compelling evidence of dram shop liability.
Most telling is the insanely high .386% BAC of Mr. Anderson. Indiana’s OWI statute defines criminally impaired at .08%. Mr. Anderson was 59 years old and weighed 200 pounds. It would take 3-4 drinks in a one hour time for him to reach an illegal BAC. Anderson stated that he had drank 20 beers.
At .1 to .19, a drunk will lose gross motor control, stagger and show slurred speech. At .2 to .299, he will exhibit severe motor impairment, possible stupor, nausea, vomiting, and possible loss of consciousness. At .3 to .39, a drunk will lose bladder function, be in a “stuporous state”, lapse in and out of consciousness. Any toxicologist will confirm that at .38, Mr. Anderson would be obviously, visibly drunk.
By its terms, the DSA contemplates one will be strictly liable for harm caused by a person’s intoxication when a visibly intoxicated person is furnished liquor. The Grays dram shop claim does not require proof of “fault” at all because “knowingly” is not listed as one of the mental states encompassed by the definition of “fault” under the Comparative Fault Act. It makes no difference that Mr. Anderson was not served with all of the alcohol he drank that day. “Furnishing” a teaspoon of alcohol (which was never actually consumed) to a visibly intoxicated person who has a designated driver (which might be objectively reasonable) would still give rise to strict liability if the person’s intoxication (not the teaspoon of alcohol) proximately resulted in the death or injury of a third party.
In summation, we believe the Grays will succeed on a summary judgment motion as to liability and the jury will be left only to consider damages.
Injuries & Medical Care
Terry Gray was lifelined to IU Methodist Hospital in Indianapolis after losing consciousness at the scene. On admission, he had the following injuries:
- Open book pelvic fracture with widening of pubic symphysis?
- sacral fracture?
- left SI joint widening?
- large extraperitoneal hematoma with active extravasation?
- bladder hematoma with gross hematuria?
- small right hemothroax?
- inferior endplate T12 with widening of T10-11
His worst initial injury was to his hip. The pelvis was not merely broken – it was pulled apart at the bottom similar to a chicken wishbone. The term “open book fracture” refers to the two opposing sides of the hip opening like a book opening. Mr. Gray’s was particularly bad, with a “complete disruption of the left acroiliac joint, complete disruption of the symphysis pubis with gross displacement, and a vertical fracture through zone 3 of the sacrum”. (Operative report of 9/28/15, Todd McKinley, M.D., IU Health Methodist records p. 001811).
The hip was surgically repaired in an extensive procedure the day after admission by Dr. Todd McKinely. In the surgery he also found a torn rectus. The pelvis was secured with multiple SI screws. During the same procedure, Dr. McKinley turned Mr. Gray over to a team of neurosurgeons waiting to repair his broken spine.
The crash had fractured Terry’s T11-12 vertebrae. MRIs showed a “severe disk disruption with a fracture at the T11-12 level”. (Operative report of neurosurgeon Dr. John DePowell, IU Health Records p. 1813-1814). Dr. DePowell performed an open posterior reduction of the unstable leves at T10 through L1 with metal fixation at each level.
Mr. Gray would remain as an in-patient at Methodist for several weeks until he was discharged on October 15, 2015 to rehab. His significant fractures were not his only injuries, however. Much of the soft tissue in his pelvic region had been significantly damaged, including muscle damage and severe hemorrhage of the penis and scrotum.
At The Waters of Dillsboro-Ross Manor Mr. Gray received therapy until January 27, 2016. During that time he was confined to bed and a wheelchair, with occasional walker assistance to stand. He worked hard to be able to stand again on his own. Their notes indicate he was always pleasant and cooperative with the staff, but that he needed pain medication often.
Mr. Gray's current condition:
- Severe bladder injury causing total urinary incontinence. Without any control over his bladder, he must wear an adult diaper 24 hours a day. During the nights the diaper will not adequately absorb the contents of his bladder and he must change his bedding and mattress pad daily.
- Upper back pain at the site of the thoracic vertebrae fusion, usually constant.
- Residual hip pain from the prying apart of his pelvis, usually constant.
- Low back pain.
- Left shoulder pain with popping and grinding. His orthopedic surgeon, Dr. McKinley, expects him to need surgery.
- Retracted penis from the severe damages to his abdominal.
Tina was lifelined to Columbus Regional Hospital with trauma to her head, abdomen, and right leg. She was later transferred to Indiana Methodist with pulmonary contusion, bilateral atelectasis, right flank soft tissue hematoma, and posterior scalp hematoma. Her scalp was stapled. Her lungs were bruised. She was discharged after observation for pain and deep bruising on September 30, 2015.
Tina had a previous history of fibromalgia and seizure disorder. They were worse after the crash. She also began to exhibit the signs of post-concussion syndrome, including trouble with blurred vision. (Medical Records of Suxanne Martini, M.D. , November 6, 2015). She was followed up by a neurologist for increasing headache and dizziness after her head traums. (Usman A. Siddiqui, M.D., Neurology & Neurodiagnositc Clinic, November 19, 2015). She was diagnosed with concussion syndrome. Her physicians also noted her neck and back pain.
Her records also note hand cramping and pain caused by the accident. Although the x-rays taken of her hand at the time of the crash did not show fracture, her problems are consistently noted in her medical records. (Medical Records of Suxanne Martini, M.D. , March 9, 2015). She presented for occupational therapy at MMCH Outpatient Rehabilitation Center on March 18, 2016. Therapy records note decreased range of motion and strength. She received therapy through April 2016.
Tina continued to consult her neurologist for headaches and neck/back pain. (Usman A. Siddiqui, M.D., Neurology & Neurodiagnostic Clinic, January 16, 2017.) The records indicate that follow up was likely.
Ms. Gray's current condition:
- She continues to suffer pain and burning in her neck which she rates at a more or less constant 7/10.
- Mid back pain that creeps upward toward her neck, with knots and swelling.
- Severe Tarsal Tunnel Syndrome in both feet that causes a burning of the heels on both feet.
- Rib and low back pain.
- Increased, uncontrolled seizures. She had controlled seizures before the head trauma of the wreck.
- Blurred vision.
- Difficulty sleeping.
- Memory problems.
Mr. Gray’s medical bills total $473,350.45. Ms. Gray's medical bill are $28,923.40. Mr. Gray will require additional surgeries, medical treatment, and a lifetime of humiliating adult diapers.
His health insurance has paid a total of $391,763.678. Mr. Gray had coverage through is employer, the City of Cincinnati. Anthem Blue Cross Blue Shield has asserted a subrogation lien for all of the benefits they have paid. (January 17, 2017 letter from Anthem Blue Cross). The Anthem claims itemization provides the best summary of Mr. Gray’s medical bills. Other bills were turned into collection agencies. Mr. Gray's credit reflects the damage of the unpaid bills.
At the time we sent you IU Health’s lien for $420,094.07 on June 17, 2016, Anthem had not yet paid any of the IU Health bills. Since that time Anthem has made payments to IU Health and we expect that lien to be released shortly.
At the time of the crash Mr. Gray worked for the City of Cincinnati as a heavy equipment operator. Mr. Gray was unable to work from the date of the crash until quite recently. He had a disability policy with The Hartford which paid 60% of his lost wages. The Hartford has claimed subrogation rights for the $17,670.00 it has paid through April 29, 2016. (April 29, 2016 email from The Hartford). We estimate Mr. Gray’s current lost wages to be approximately $19,000.00. He returned to work only because he needed eight more months to secure his right to retirement benefits. He could not resume his prior physical duties. Fortunately, his supervisors and co-workers agreed to modify his work so he would not lose his retirement. Once his retirement is vested, Mr. Gray will lose that generous accommodation from his employer and he will need to stop work.
Beginning May 2017, Mr. Gray will begin to lose his annual salary until the normal retirement age of 65. Mr. Gray is still incontinent with his urine. With the extensive pelvic trauma he suffered it is unlikely that he will ever regain full urinary control.
Click any of the links below to view or download:
- Crash Report
- Supplemental Crash Report
- Medical Records from IU Health
- Medical records from The Waters of Dillsboro-Ross Manor
- IU Hospital Bills
- Tri County Ambulance Bills
- Tina Gray Medical records: https://www.dropbox.com/s/uzf9tomgiglrmnm/Records%20-%20Tina%20Gray.pdf?dl=0
- Tina Gray medical bills: https://www.dropbox.com/s/qio2zi445asd711/Medical%20Bills%20-%20Tina.pdf?dl=0