Fatal collision case against employer of drunk driver transferred to Michigan

Michelle Massey, East Texas Bureau Oct. 25, 2007, 4:53am

MARSHALL � Two years ago, an accident in Michigan took the lives of a mother and her two young children when a drunk driver employed by a Texas-based firm rear-ended the family's vehicle.

The mother and her children were on their way to an orthodontist appointment. The other driver was on his way to see a psychiatrist about his drinking problem.

A wrongful death suit was filed by the husband and father of the victims in the Eastern District of Texas, but U.S. District Judge T. John Ward has granted the defendant's request to transfer venue to the Eastern District of Michigan.

The litigation originated from an accident that occurred on May 3, 2005, which killed Judith Weinstein and her sons, Alexander, 12, and Samuel, 9.

The Weinsteins were waiting in the left-hand lane to turn into an orthodontist's parking lot, when Thomas Wellinger, executive director of sales for Plano-based UGS Corp., plowed his sport utility vehicle into the back of the Weinsteins.

At the time of the accident, Wellinger was driving at 70 miles per hour with a blood alcohol level of almost 0.40. The legal blood alcohol limit in both Michigan and Texas is 0.08.

According to court records, UGS knew of Wellinger's problems with alcohol. Five months before the accident, UGS Executive Vice President Ed Arlin had two employees confront Wellinger about his drinking.
And although UGS enrolled Wellinger in a five-day rehabilitation program, he returned to work and continued to exhibit signs of alcohol abuse.

On the day of the accident, Arlin had a meeting with Wellinger in which they discussed the alcohol abuse and its effects on Wellinger's job performance. Wellinger was told to go to a psychiatrist's appointment that afternoon and inform UGS of the doctor's recommendations. On the way to the appointment, he caused the accident killing Mrs. Weinstein and her children.

Gary Weinstein filed the original suit on May 1, 2007, against the UGS Corp. The lawsuit states UGS is liable for Wellinger's actions under the doctrine of respondeat superior and for retaining and supervising Wellinger. The doctrine is based on the premise that an employer is responsible for damages caused by an employee.

The plaintiff also believes UGS committed acts of negligence and gross negligence that contributed to the accident. The complaint states that UGS is liable for "negligently controlling a highly intoxicated employee during the workday, including sending him to drive to an appointment despite his state of obvious intoxication. UGS was subjectively aware of the risk created by Thomas Wellinger's drinking problem and its continued employment of Mr. Wellinger in spite of his drinking problem."

UGS responded to the allegations and denied it is liable for Wellinger's behavior or actions. As evidence, UGS states Wellington was found guilty of second-degree murder in Michigan and sentenced to 19 years in the Michigan Department of Corrections. UGS also claims that under a Texas general rule "one person is under no legal duty to control the conduct of another, even if there exists the practical ability to do so."

Also in its response, UGS states the appropriate venue for the litigation is in Michigan, due to the location of the accident, potential evidence and witnesses. In addition, the defendant points out that there are other litigations dealing with the accident, including one in which the plaintiff settled a wrongful death action against other defendants in a Michigan probate court in January 2007.

Judge Ward agreed with the defendant and granted the motion to transfer on Oct. 22. Ward found that because of the amount of Michigan litigation relating to the incident, the plaintiff's Michigan residency and the convenience of the parties that the case should be transferred to the Michigan court.

Individually and as estate representative, Gary Weinstein is seeking compensatory and punitive damages for all pecuniary and non-pecuniary damages, including loss of love, comfort, companionship, and society, mental anguish, loss of care, maintenance, support, services, advice, counsel, medical expenses, funeral and burial expenses, and conscious pain and suffering.

Representing the plaintiff are South Texas attorneys Mikal C. Watts and Francisco Guerra IV from the Watts Law Firm and Gilmer attorney Bren Gourdarzi of the firm Goudarzi and Young.

Case No.: 2:07-cv-173

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