I-390 bus crash

Windsor Wildcats win Court of Appeals case

The victims of a bus crash six years ago on I-390 near Geneseo will receive $2.25 million in damages as a result of a New York State Court of Appears decision yesterday.

The court reversed two lower court rulings that determined the Canadian victims of the Jan. 29, 2005  crash would not see more than their country’s  $326,000 liability cap.

The southbound bus was carrying members of the Wildcats Junior Girls Hockey Team from Windsor to the Swain Ski resort via Rochester. At the Groveland Road overpass, the bus veered off the highway and struck a parked tractor trailer. Four persons died and 18 were injured.

On Thursday, June 30, all seven of the Appeals Court judges agreed that the Canadian award limit was not valid for the accident in New York. However, there was dissension among the judges was over the liability of the bus company, Coach Canada, based in Canada versus the liability of the truck company, J & J Hauling, based in Pennsylvania.

Two of the judges said neither company could use the Canadian law to keep the damages at or below $326,000. However, five of the judges prevailed in deciding that the Canadian bus company — which is providing the awards to the occupants and owners of the tractor trailer — could limit its payouts to $326,000. The Pennsylvania trucking company — which is providing awards to the occupants of the bus — could not.

Therefore the insurer for the trucking company will be paying all awarded damages in excess of the Canadian cap — even though the insurers for J & J Trucking and Coach Canada had agreed before the trial to apportion damages in a 10-to-90 ratio with Coach Canada carrying the greater responsibility.

Under New York’s joint liability statute, the tractor trailer defendant/insurer will have to pick up all awards over the $326,000 Canadian cap. The 10-to-90 liability agreement was among the defendants, not the plaintiffs.

The immediate result of the Court of Appeals decision will be that three victims who received jury-determined damages totaling $2.25 million in March  2010 will actually see their awards. They are Windsor Wildcat hockey players Carly Labadie and Tory Gault and assistant coach Jason Mailloux. In addition to suffering orthopedic injuries, all three were diagnosed with post-traumatic stress disorder.

The plaintiffs were represented by Marc Albert, partner in the Manhattan firm Seeger Weiss LLP.

“We got a just result and it’s going to have a very big impact on the rest of the case,” said Albert. “This can have an effect on [all] our clients receiving just compensation.”

Seeger Weiss represents an additional seven victims on the Coach Canada bus as well as Sheila Edwards, wife of coach Richard Edwards, 46 and mother of Brian Edwards, 13, both of whom were killed in the crash.

Albert commented that the decision has been a great relief to his clients, more than six years since the accident occurred and after two years of litigation over this specific issue.

Court decisions and accident in review

In the original case in Livingston County Supreme Court, Judge Thomas Van Strydonck had determined that Canadian law would apply to both the truck and bus defendants, capping any awarded damages or settlements at $326,000. His decision was upheld by the Appellate Division, Fourth Department, but was reversed on Thursday by the Appeals Court, which has said that New York law, not Canadian law, must apply to the tractor trailer defendants (that is, the bus occupants).

The accident occurred when a tractor trailer driven by Ernest Zeiset, 43, of Womelsdorf, Pa. had pulled off the highway so that his two dogs could relieve themselves. The trailer was struck at the rear by the Coach Canada motor coach driven by Ryan Comfort, then 24, of Peterbough, Ontario, Canada.

Comfort had drifted onto the shoulder allegedly because of drowsiness. He was an inexperienced driver, having worked for the company for only a month. At the time of the 4 p.m. accident, Comfort had been driving continuously for eight of the past 12.5 hours, having been allowed a four hour break in Rochester.

Investigations brought to light that Comfort may have been doing other work before driving the coach. Comfort himself told investigators that his coach felt like it had struck something in the highway, forcing it to the right, into the parked trailer.

Upon impact, the rear axle set of the trailer separated and the left wall of the trailer penetrated the passenger compartment of the motor coach. When the vehicles came to rest 300 feet beyond the overpass and down the embankment of the highway, the motor coach had been impaled by the trailer for two-thirds of its length, along the line of right side passenger seats.

Zeiset, who was standing outside, in front of the trailer cab, was crushed to death when the vehicles passed over him. Of the 21 persons occupying the bus, none escaped unscathed.

Comfort suffered a knee injury. He later faced only minor penalties, paying a small fine in Geneseo Town Court after pleading guilty to moving and logbook violations.

Zeiset’s wife, who was a passenger in the tractor, did not suffer serious injury.

On the bus, besides the three fatalities, one girl suffered coma and brain trauma; three others have permanent disabilities from massive orthopedic injuries, requiring multiple surgeries; and another victim suffered compartment syndrome and has permanent disability.