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$275K death settlement reached while jury was deliberating

A grieving mother and father refused to believe that their 17-year-old son was responsible for the car crash that ended his life.

But the defendant driver stood by his story that the teen passenger’s rash action caused him to run his vehicle off the road in Brunswick County.

After extensive discovery, numerous motions and two full jury trials, the parties agreed to settle the wrongful death case for $275,000, according to Richmond attorney W.F. Drewry “Drew” Gallalee, who represented the family of the decedent.

In August 2007, around 9 p.m., Timothy Baird and his friend David Lively were on the way to pick up another friend. Lively was driving and Baird was a front seat passenger. They were traveling on a four-lane highway divided by a wide grassy median.

What happened next remains unclear.

Evidence shows that the vehicle, which was traveling in the left lane, shifted into the right lane, then off the road and over an embankment. The car hit a mailbox before flipping over and coming to a rest on its roof. Baird died at the scene.

Lively was able to escape from the vehicle. He was taken to the emergency room for evaluation, but did not suffer any life-threatening injuries. He was not charged with a traffic offense.

In a handwritten statement to police, Lively claimed he was traveling just under 60 mph in a 55 mph zone. He alleged that Baird was joking around and grabbed the steering wheel, turning it to the right.

Baird’s family was offered $25,000 to settle the case. They filed suit instead, refusing to accept Lively’s version of the accident.

“They did not believe [Timothy] would have engaged in that kind of conduct,” said Gallalee. “It was contrary to his personality.”

The physical evidence also appeared to be inconsistent with Lively’s account, Gallalee said. According to Lively, Baird had grabbed the wheel at the 12 o’clock position and turned it 180 degrees to the right. But the tire marks at the scene of the crash did not indicate that the vehicle made a sharp right turn. Instead, the skid marks were straight, veering gradually to the right.

Baird’s fingerprints were not found on the steering wheel. There were no witnesses to the crash, and no other evidence supported the defendant’s account.

The defendant’s motion to strike and the plaintiff’s motion for summary judgment were denied and the case went before a jury in June 2010. Judge Samuel E. Campbell presided over the trial.

Gallalee alleged that speed was a contributing factor to the accident. Tire marks left by the defendant’s vehicle suggested a speed of more than 60 mph.

“The jury could well believe he was greatly exceeding the speed limit,” he said.

Lively was barred from sharing his version of the accident with the jury based on the “dead man’s statute.” This statute, Virginia Code § 8.01-397, prohibits certain testimony against a decedent’s estate unless the testimony is corroborated. In this case, the judge ruled that there was insufficient corroboration to show that Baird had grabbed the steering wheel.

The odds of winning the case appeared to be stacked in the plaintiff’s favor. But after less than 30 minutes of deliberations, the jury returned a verdict for the defendant.

“Given the evidence, the verdict was surprising, if not shocking,” Gallalee said.

After trial, Gallalee spoke to a juror and discovered that Lively’s police statement, which had been proffered but ruled inadmissible under the dead man’s statute, was inadvertently allowed to go back to the jury room for review during deliberations.

On plaintiff’s motion and without an evidentiary hearing, Campbell set aside the verdict. He initially ordered a retrial on liability and damages, but Gallalee submitted a motion and brief asking the court to rule that the defendant was liable as a matter of law. The judge granted the motion and ordered the case to be retried on damages only.

The second trial took place in August 2011.

The only testimony presented to the jury focused on the emotional damages suffered by the decedent’s family. Baird’s mother, father and older brother each took the stand to express their grief.

Baird had graduated high school only a couple months prior to the accident. While he was looking into taking classes at a community college, his real passion was music. He had played horn in his school band and also played guitar in a band he had formed with friends. His dream was to have a career in the music industry.

Photos of Baird, from his childhood up until his death, were presented as evidence during trial. Gallalee said the photos helped portray him as a considerate, responsible young man, well-liked by those who knew him.

“The family showed a lot of courage,” Gallalee said, noting how they persevered through two separate trials, determined to vindicate their son. “They took it personally.”

On the plaintiff’s motion, the court eliminated any testimony from the defendant, including evidence that the Lively and Baird were friends and that Lively was the son of a minister.

Gallalee asked the jury for $1,000,000. However, he took into account that the defense would likely appeal an award of this size, based on the judge’s ruling on liability as a matter of law and on the denial of the defendant’s testimony.

The jury was out for about 30 minutes and had not yet returned when the parties agreed to settle.

The defendant’s insurance carrier, State Farm, tendered its limits of $100,000. Erie, the UIM carrier, contributed $175,000.

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