Virginia Lawyers Weekly VA Lawyers Weekly
‘Try it Racing’ car hit outer wall of track (photo provided by Stephen M. Smith)
A weekend racetrack adventure that led to grievous injuries in 2011 produced a $3 million settlement this year after three separate insurance companies paid the limits of their policies.
The result is a trust that will benefit a man who suffered permanent brain injury in a wreck during an amateur racing experience at Hampton’s renowned Langley Speedway.
The hard-fought case settled after questions arose over a defense lawyer’s representation of both the promoter of the event and the speedway.
The case also featured a skirmish over whether a sanctions fight should be postponed because it could expose trial tactics in a “summary judgment” setting.
‘Racing’ gone wrong
The accident occurred on an overcast Sunday in October of 2011.
Naser Mowfy was not a racing fan. The inventive Chesapeake businessman ran a heating and air conditioning service. A friend had offered an extra ticket to the Speedway event, so he decided to go.
The event was appropriately called “Try It Racing.” Run by one-time race driver Mike Southard, Try It offered amateurs a chance to drive a race car behind a pace car on a real race track.
Langley Speedway is a low-banked oval track that, in 1970, hosted the last “Grand National” race before NASCAR’s premier event was renamed the “Winston Cup” series. The short track remains NASCAR-sanctioned.
Wearing a supplied helmet, Mowfy was strapped into a racing seat as he followed the pace car on the Langley track. While the event was billed as a “racing” experience, there were no other cars on the track and speeds were well below a competition pace.
Something went wrong for Mowfy’s car, however. It dropped off the apron of the track into the infield, spun around, and slid up the track on the opposite side until the driver’s side collided with the outer wall.
The racing seat tilted to the left and Mowfy’s helmet struck either the roll bar or the wall, according to the account of plaintiff’s counsel.
Mowfy spent 19 days in a coma with a fractured skull. No longer able to work, the father of three now reportedly has the emotional status of a young teen.
Two defendants sued
Mowfy’s lawyers – a team of four, from three separate offices – sued both the promoter and the track. They contended the racing seat was not securely mounted to the roll cage and came loose in the collision, causing Mowfy’s injuries.
The lawsuit alleged that the speedway was in a joint venture with the promoter and should share liability. Mowfy’s lawyers pointed to cases cited in the Restatement (Second) of Torts where a property owner could be liable for activities by licensees on the property.
The defendants contended the race car seat was not defective and the injuries would have occurred even if the seat were fully secured in the roll cage. Mowfy’s own negligence caused the accident, the defendants said.
Besides, the defendants claimed, Mowfy had assumed the risk of his injuries when he signed a release.
The track owner – Victory Lane Motorsports LLC – insisted it had nothing to do with staging the Try It event. The speedway merely leased its facility, it claimed.
An early battle involved a procedural dispute. While the parties crossed swords over language in the promoter’s lease, the defendants together filed a motion for sanctions asserting Mowfy had no good faith basis for any claims against the speedway.
Rather than defend their claims against the track, Mowfy’s legal team argued the sanctions motion was misplaced. The maneuver was a summary judgment motion in disguise, they argued, designed to force the plaintiff to put on his case before trial.
“We had witnesses we did not want to divulge, partly because we did not want to reveal our trial strategy,” said David B. Holt of Hampton, one of Mowfy’s lawyers.
In September of last year, Hampton Circuit Judge Bonnie L. Jones agreed to defer the sanctions issue until after trial. She then recused herself from the case. Later, Newport News Judge Timothy S. Fisher took charge of the litigation, as documents filled 12 boxes at the Hampton courthouse.
Two defendants share one lawyer
In March of this year, with trial approaching and settlement terms on the table, the speedway’s insurance carrier asked the judge to allow it to use its own lawyer.
From the inception of the suit, the speedway and the promoter together had been represented by Lynne Jones Blain of Glen Allen. The speedway’s insurer now claimed that Blain and her firm had an irreconcilable conflict of interest.
A March 11 motion by Norfolk attorney Todd M. Fiorella said the judge in the case had questioned Blain’s ability to represent both defendants.
The conflict was highlighted by Blain’s offer to settle the case on behalf of the promoter, which would leave the plaintiff free to proceed against the track, according to Fiorella’s motion.
The promoter had a $1 million insurance policy. The track had $2 million in coverage with two different carriers. Scottsdale Insurance Company had primary coverage of $1 million, another carrier had excess liability coverage of $1 million.
Scottsdale had appointed Fiorella to represent the track in a March 27 letter, Fiorella claimed.
A month later, the plaintiff’s team added fuel to the fire with its own motion. A brief suggested that, since promoter Southard faced obvious exposure, it was in his interest for the track to share liability.
Blain had repeatedly advocated that the track should not share in any liability of the promoter, the brief said.
“On this issue – an issue of fundamental importance to each Defendant – the interests of the Defendants are in profound conflict,” wrote Mowfy’s lawyers.
The plaintiff’s team argued that Blain was irrevocably conflicted from further representation of either defendant.
Blain denied any wrongdoing.
“I recognized the potential conflict at the beginning and I addressed it at the beginning in accordance with the Rules of Professional Conduct,” Blain said.
After it became clear that the clients themselves had agreed to joint representation by Blain, Fiorella withdrew his motion to be substituted as counsel for the track, Blain said.
Blain said she remained counsel for both defendants until the case was concluded.
The case was resolved with payment of the full $3 million in available coverage, according to the plaintiff’s counsel’s account.
Fisher approved a settlement on June 2 and entered an order establishing a trust for Mowfy on July 14.
Blain said the settlement was not forced by the conflict allegations.
“The case settled because there was additional time for certain people to reflect on the potential exposure of Victory Lane,” she said.
“This was an evaluation of risk and it was a payment that reflected the evaluation of risk,” Blain said. “The verdict could have been in excess of the amount of coverage,” she added.
Both sides acknowledged the case was hotly contested.
“It was a close case, it was a tough case. It was vigorously litigated,” Blain said.
“This was one of the most highly contentious pieces of litigation I have ever been involved in,” said Stephen M. Smith of Hampton, who handled the damages aspect of the case. “Everything was disputed,” he said.
Smith and Holt were joined on the plaintiff’s team by Edward E. Scher and Roger T. Creager, both of Richmond.
