The parents of a Chevy Chase teenager killed in August 1997 when a dump truck overturned on his car will collect $4.6 million from a hauling firm and the Upper Marlboro excavation company that loaded the truck the afternoon of the accident.
An out-of-court settlement reached with attorneys for J&D Byrd Inc., the hauler, and B&T Contracting, the excavation company, ends a hard-fought lawsuit over the death on Military Road NW of Benjamin E. Cooper, an accomplished 17-year-old senior at Georgetown Day School.
Cooper's high-profile parents--Richard M. Cooper is a lawyer at Williams & Connolly, Judith C. Areen is dean of the Georgetown University Law Center--have spent two years trying to wring some good from their grief. They hope the case and the settlement will convince excavators and contractors that such tragedies are preventable and the cost of failure is high.
"The focus should not be on us. The focus should be on the industry, because that's where changes can be made to improve public safety," Cooper said. "We filed the lawsuit because we want Ben to be remembered for good things--for contributions to worthy institutions, and for improving public safety."
The payment, to be donated to four causes that mattered to Ben, will come primarily from the excavation company, which argued long and hard that the blame belonged to the owner of the unsafe truck and its speeding driver, who had a long record of traffic violations.
Cooper family attorneys contend that sworn statements prove B&T employees overloaded the truck in violation of D.C. regulations, ignored indications that J&D Byrd was an unfit hauler and failed to act on a complaint about overweight trucks on the very street where Ben died.
At least 16 times in 1997, B&T Contracting paid fines for overloaded trucks, the Cooper family attorneys said. In each of eight District cases, loads were more than 6,000 pounds over the legal limit--an amount comparable to the alleged overloading in the Cooper case, the lawyers maintained.
To raise safety awareness and standards, Cooper and Areen wrote last month to dozens of Washington area contractors and excavators. Their letters asked company executives to do a better job of monitoring trucking companies and drivers and to be careful about setting routes, travel time and load size.
The couple suggested eight steps they said would be simple to administer and inexpensive to apply, including such basics as ensuring that trucks are inspected and drivers are licensed. They asked the companies to add the code to their contracts.
"I think they are good ideas," said Jim Davis, who heads James G. Davis Construction Corp., one of the area's largest builders. He said the firm intends to add "some of these thoughts" to documents spelling out the requirements of subcontractors.
Virginia State Police, in a recent indication of safety problems in the trucking industry, conducted spot inspections of 138 trucks one day last week and found 112 with violations. They immediately ordered 41 trucks, mostly hauling garbage, out of service. Violations included bad brakes and overweight loads.
In the Cooper case, B&T Contracting's insurer negotiated the $4.6 million settlement "for its own business reasons," B&T executives said in a written statement. They said they hope the payment "will bring some solace to Ben's family and will be used to help disadvantaged residents of the District."
While the legal battle raged, B&T's attorneys maintained that the company did nothing to make the fatal crash more likely. They denied that the 1985 Diamond Reo truck driven by Willis Curry was overloaded, although it weighed at least 57,160 pounds--more than 7,000 pounds over the weight permitted by D.C. regulations.
"Ben Cooper died because Willis Curry was speeding and J&D Byrd did not maintain the truck he was driving," wrote lawyers from the D.C. firm of Steptoe & Johnson, which represented B&T. "The B&T defendants did not cause his death and are not legally liable."
On Aug. 12, 1997, Curry was hauling a load of dirt and rocks from Parc Somerset, a construction site in Friendship Heights, when he steamed through a stoplight at Military Road and Nevada Avenue NW. The truck slammed into a Cadillac and overturned on Ben Cooper's sky blue Plymouth Acclaim.
A D.C. Superior Court jury convicted Curry of manslaughter after hearing evidence that he was driving too fast and had failed to pay attention to his faulty brakes. He is serving 10 to 30 years in prison.
Testifying in his own defense, Curry told the jury that he stood on the brake pedal and pulled the emergency brake in vain: "It got soft on me. It got softer, and I pumped 'em again and it went to the floor."
Curry, 64, who had crashed the same truck one month earlier, was driving that afternoon in violation of driver's license restrictions that called for him to be off the road by noon. D.C. authorities, who granted him a license despite at least 31 previous traffic citations, disciplined two motor vehicle department supervisors in the case.
After the accident, the Federal Highway Administration closed the Byrd trucking firm, a two-truck operation based in Fort Washington, citing 274 violations of federal regulations.
The agency said James Byrd's company failed to review drivers' records, failed to keep proper maintenance and inspection records and failed to buy the minimum liability insurance. The firm is now bankrupt.
Attorneys for Cooper and Areen argued that records in B&T's files showed that J&D Byrd carried only $100,000 in insurance, instead of the required $750,000. The excavation company, according to the lawyers, failed to apply its own "minimum requirements" that drivers be licensed and trucks be in good condition.
B&T employees testified that they were unaware of the company's standards.
The digging firm contributed to the accident in other ways, asserted Cooper family attorneys at Williams & Connolly, where Richard Cooper is a partner. They contended, over objections from opposing lawyers, that B&T overloaded trucks, directed drivers through residential neighborhoods, paid by the load and docked drivers who took too long on their routes.
B&T paid $3,300 in tickets for overloaded trucks in 1997, case records show. Byrd, in fact, testified that his trucks received three tickets in five months while hauling for B&T.
An advisory neighborhood commissioner wrote a letter to a contractor Aug. 5, 1997, complaining about heavy truck traffic and overloaded and uncovered dump trucks on Military Road. On Aug. 6, one week before the accident, Barrett L. Tucker, one of B&T's owners, put his thoughts on paper in response to the letter, which had been forwarded to him.
Tucker, who declined to comment for this article, wrote that the Parc Somerset project was one of four construction sites in close proximity. He noted there are no government rules limiting truck traffic on Military Road. He also said that changing routes would cost the firm $75,000.
As for overloading, Tucker said adding 2,000 pounds to a loaded truck that weighs 65,000 pounds "is like adding salt to your food."
Lawyers dueled aggressively over weight restrictions and loading practices.
The Cooper family's attorneys, seconded by Byrd, showed that the truck was licensed to carry 49,500 pounds. It did not have a permit that would have allowed a weight as high as 65,000. When checked after the accident, the Diamond Reo weighed 57,160 pounds, not counting dirt left on the roadway after the crash.
B&T attorneys countered that Byrd could have qualified for the higher 65,000-pound limit simply by filling out a form and paying $917 to the District. The truck was capable of carrying such a load, and no further inspection would have been required, the lawyers said.
The two sides settled the lawsuit before a judge could rule or a jury could hear evidence. Now Cooper and Areen are hopeful that contractors and haulers will note the tragedy and its price--and take action.
They said in their letters that a company can acquire a Motor Carrier Safety Profile for $27.50 that contains safety ratings of trucking companies, along with accident summaries and inspection results. An online service provides free snapshots of the information at www.safersys.org.
Cooper and Areen also want excavation companies to identify hauling routes that minimize the use of streets through residential areas, and then require truck drivers to follow those routes. Trucks, they said, should not be loaded with more weight than the law allows.
In Ben Cooper's memory, the settlement money will be divided among the Community Council for the Homeless at Friendship Place, Jelleff Boys and Girls Club, Adas Israel Congregation and a lecture series at Georgetown Day School.
"The pain of his death is always there, sometimes with a stabbing intensity," Cooper wrote the judge who sentenced Curry. "We will grieve until we, too, die."
The parents of Ben Cooper, a high school senior who died in August 1997 when a loaded dump truck overturned on his car in Northwest Washington, asked construction and excavation companies to do a better job of monitoring drivers and the trucks they drive. Here are excerpts from their eight recommendations.
1. Before a trucking company starts a project, the excavation company must require documentation of:
All necessary licenses and permits.
Any accidents or citations involving trucks or on-duty drivers for the past year.
The last required federal inspection.
Adequate liability insurance.
Current federal safety report.
A pledge not to pay speeding tickets for drivers.
2. If any of the above information changes or expires during the project, the trucking firm must update its records.
3. Before work starts, the excavation company shall certify that the trucking company has complied. The certification shall be placed on the truck's windshield, with a list of each driver authorized to drive the truck.
4. Before any driver starts work on a project, the excavation company must inspect the driver's commercial license to make sure it is current and appropriate for the job.
5. The excavation company must identify routes for drivers that minimize the use of streets through residential areas.
6. The excavation company must not require or recommend that drivers take any other routes.
7. If the excavation company uses how long a trip takes to measure a trucker's performance, the standard shall be the "reasonable" time it takes to drive the recommended route.
8. The excavation company must not load any truck with more weight than the maximum allowed in any jurisdiction in which the truck is driven.