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Suit by Michael and Jacqueline Wood Copyrighted September 17, 2018 City of Dubuque Consent Items # 2. ITEM TITLE: Notice of Claims and Suits SUMMARY: Kelly Casperson for vehicle damage, Jerald Kinsella for property damage, Gerald Klein for property damage, Abby McGrane-Ralston for vehicle damage, David Prince for vehicle damage, Steve Ruden for property damage, Daniel Scott for property damage, Sisters of the Presentation for property damage, Brock Tyner for vehicle damage, Morgan Weaver for vehicle damage, Doug Winner for vehicle damage, Suit by Michael and Jacqueline Wood for vehicle damage/personal injury. SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Refer to City Attorney ATTACHMENTS: Description Type Casperson Claim Supporting Documentation Kinsella Claim Supporting Documentation Klein Claim Supporting Documentation McGrane-Ralston Claim Supporting Documentation Prince Claim Supporting Documentation Ruden Claim Supporting Documentation ScottClaim Supporting Documentation Sisters of the Presentation Claim Supporting Documentation Tyner Claim Supporting Documentation Weaver Claim Supporting Documentation Winner Claim Supporting Documentation Wood Lawsuit Supporting Documentation � E-FILED 2018 AUG 29 10:38 AM DUBUQUE - CLERK OF DISTRICT COURT � 1 __ � '�:.;� � ;'-_ w ;.� � , �:_. I J i.�� w IN THE IOWA DISTRICT COURT � ,�,.�.o-� , , ,.1 ,,t� i FOR DUBUQUE COUNTY `"` � ° '°,' �'" �� i MICHAEL GERALD WOOD AND JACQUELINE ) Case No. -''��'� �r��`�� +�.'�f�1C:�=: !, W��, ) x�'; ��` i�'{� '�', '�. �, Plaintiffs, ) , ) v. ) i ) DAVID MCGHEE, PACCAR INC., PETERBILT ) ORIGINAL NOTICE �:' MOTORS COMPANY, A WHOLLY OWNED ) � SUBSIDIARY OF PACCAR, THE CITY OF ) DUBUQUE IOWA, GEICO INSURANCE ) COMPANY, AND UNKNOWN FABRICATORS ) AND MANUFACTURERS - IOWA CODE ) 613.18(3), � ) !� Defendants. ) TO TI�E ASOVE-NAMED DEFENDANT(S): You are notified that a petition has been filed in the office of the clerk of this Court naming you as the respondent in this action. A copy of the petition (and any documents filed with it) is I attached to this notice. The attorneys for the Petitioners are CROWLEY&PRILL,whose address is 3012 Division St., Burlington, IA 52601. That attorney's phone number is 319-753-1330; facsimile number 319-752-3934. �I i a You are further notified that the above case has been filed in a county that utilizes electronic ' filing. Unless,within 20 days after service of this original notice upon you, you serve, and within � a reasonable time thereafter file a motion or answer, in the Iowa District Court for Dubuque ' County, at the courthouse in Dubuque, Iowa,judgment by default will be rendered against you for the relief demanded in the petition. Please see Iowa Court Rules Chapter 16 for information on electronic filing and Iowa Court Rules Chapter 16,division VI regarding the protection of personal information in court filings. � � If you need assistance to participate in court due to a disability, call the disability � coordinator at 319-833-3332. Persons who are hearing or speech impaired may call Relay Iowa � TTY (1-800-735-2942). Disability coordinators cannot provide legal advice. } � 1 � IMPORTANT � YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. � � � a � a � � � 1 � � t � E—FILED 2018 AUG 29 12:14 PM DUBUQUE—CLERK OF DISTRICT COURT j a '� STATE OF IOWA JUDICIARY case^'o. LACV108041 i County Dubuque ' i CaseTitle WOOD ETAL V MCGHEE ETAL 'i; �� 1 � THIS CASE HAS BEEN FILED IN A COUNTY THAT USES ELECTRONIC FILING. Therefore,unless the attached Petition and Original Notice contains a hearing date for your appearance,or unless you obtain an � exemption from the court,you must file your Appearance and Answer electronically. � You must register through the lowa Judicial Branch website at http:!/www.iowacourts.state.ia.us/Efile and obtain a log in and i password for the purposes of filing and viewing documents on your case and of receiving service and notices from the court. ' i FOR GENERAL RULES AND INFORMATION ON ELECTRONIC FILING,REFER TO THE IOWA COURT RULES CHAPTER I 16 PERTAINING TO THE USE OF THE ELECTRONIC DOCUMENT MANAGEMENT SYSTEM: httq://www.iowacourts.state.ia.us/Efile I ij FOR COURT RULES ON PROTECTION OF PERSONAL PRIVACY IN COURT FILINGS,REFER TO DIVISION VI OF IOWA ; COURT RULES CHAPTER 16:http://www.iowacourts.state.ia.us/Efile � I i Scheduled Hearing: IIi If you require the assistance of auxiliary aids or services to participate in court because of a disability,immediately call your district � ADA coordinator at(319)833-3332 . (If you are hearing impaired,call Relay lowa TTY at 1-800-735-2942.) � �are iSSUea 08/29/2018 12:14;20 PM �� .��- a ��p{� � y I * (it�i � i tF � � �C�.�, K`%� � 3 !7 '� i4 District Clerk of DUbUqUe County ii /s/ Jessica Recker ;ry �� ,d � �� P 1 E-FILED 2018 AUG 28 3:59 PM DUBUQUE -CLERK OF DISTRICT COURT i IN THE IOWA DISTI2ICT COURT FOR DUSUQUE COUNTY I MICHAEL GERALD WOOD and JACQUELINE ) Case Na � W�O�, ) ; Plaintiffs, ) ' � i v. ) i ) ',I DAVID MCGHEE, PACCAR INC., PETERBILT ) PLAINTIFFS FIRST AMENDED i MOTORS COMPANY, A WHOLLY OWNED ) PETITION AT LAW �, SUBSIDIARY OF PACCAR, THE CITY OF ) ' DUBUQUE IOWA, AND GEICO INSURANCE ) � COMPANY,AND UNKNOWN FABRICATORS ) (JURY TRIAL REQUESTED) ; AND MANUFACTURERS-IOWA CODE 613.18(3) ) �� Defendants. ) COMES NOW the Plaintiffs,Michael G.Wood,and Jacqueline Wood by and through their attorneys and in support of their claims against the Defendants states: ' SECTION I. � FACTUAL ALLEGATIONS COMMON TO ALL COUNTS , � 1. At all times material hereto, Michael Gerald Wood, (born Ol/29/1948) and �'� �I i Jacqueline Wood (born 01/11/1939) were and still are residents and citizens of the State of Arizona. At all times material hereto, Michael G Wood was employed by JMJ Equipment Transport, Inc. as a semi-truck driver. At all times material hereto, Michael G Wood and '; ; Jacqueline Wood have been husband and wife. � 2. At all times material hereto, defendant David McGhee was and still is, a resident � '� and citizen of the State of Iowa. i , 3. Paccar Inc.,was and still is, a corporation, organized and existing under the laws of 1 , the State of Washington,with its principal place of business in Bellevue,Washington. At all times � �� material hereto, Paccar, Inc. has owned Peterbilt Motors Company as a wholly owned subsidiary of Paccar Inc. ,, � ,, �� y , 1 j 9 i � E-FILED 2018 AUG 28 3:59 PM DUBUQUE- CLERK OF DISTRICT COURT i 1 I ; ll 4. At all times material hereto, Peterbilt Motors Company has been owned by Paccar, �', �I Inc., with Peterbilt's principal base of operations in the United States in Denton, Texas. (Herein after Faccar/�eterbiltj 5. At all times material hereto, Defendant Paccar/Peterbilt have been engaged in the ,� I design,testing,manufacturing,marketing and selling of inedium and heavy-duty trucics throughout ' the United States, Canada and outside the United States through its subsidiary brands, including 'i, Peterbilt Motors Company, Kenworth and DAF. � 6. At all times material hereto,Paccar/Peterbilt were engaged in the business of selling semi-trucic tractors, parts and service throughout the United States and Canada via a networlc of ll i Peterbilt Trucic dealerships. 7. At all times material hereto,Peterbilt Motors Company had a number of authorized i Peterbilt Motars Company truck dealers throughout the United Sates including multiple � dealerships located in both Arizona and Iowa. I 8. Paccar/Peterbilt designed, tested, manufactured, sold and marlceted a 2018 model 579 (style TT)with vehicle identification number 1XPBD49X4ED217277 purchased or leased by JMJ Equipment Transport, of Yuma, Arizona. '� i 9. On or about September 12,2016, at approximately 10:15 a.m.,Plaintiff Michael G. ��i Wood was operating the Peterbilt semi-tractor identified herein in the course and scope of his employment for JMJ Equipment Transport. Plaintiff Jacqueline Wood was a passenger in the semi �; ; with her husband. Plaintiff,Michael G.Wood was driving the Peterbilt tractor and pulling a trailer ;{ , northbound on NW Arterial Road near the intersection of Plaza Drive in the city of Dubuque, ;� 3 Dubuque County, Iowa. The intersection of NW Arterial and Plaza Drive,the site of this crash, is � i, : � a 1 2 � i � i ; ; 1 � � . ` � E-FILED 2018 AUG 28 3:59 PM DUBUQUE -CLERK OF DISTRICT COURT � 1 � an intersection of two multi-lane roadways governed by traffic lights suspended from traffic light '; ; poles, including one on the northeast corner of the intersection. !; � 1 u. t�t a11 times maierial 'nereto, the traffic iight poie on the northeast corner ot the � i , intersection where the crash occurred was designed, installed, selected and maintained by the i � Defendant City of Dubuque. The traffic light pole was dangerously close to the traveled portion '�� of the highway, and was not designed as a "brealc away pole" so that it would yield when strucl< by a vehicle. 1l. At approximately 10:15 a.m. on September 12, 2016, as the Plaintiff approached ' the intersection of NW Arterial and Plaza Drive, his semi-tractor was in the left, or through lane between the left turn lane and the right turn lane. As the Plaintiffs began to cross the intersection northbound, driving the Peterbilt tractor and towing a semi-trailer,Defendant Michael D.McGhee was southbound in his Honda CRV on NW Arterial at the same intersection. As the Plaintiff and Defendant entered the intersection from opposite directions, Plaintiff Michael G. Wood was wearing the seatbelt provided in his truck, and had a steady green light to drive straight through the intersection. At the same time that Plaintiffs approached the intersection, Defendant McGhee approached from the opposite direction, (southbound) and attempted to make a left turn in front of the Plaintiffs' oncoming semi-tractor, which had the right of way based upon the condition of the signals at the time the vehicles approached and entered the intersection. Defendant McGhee turned Ji immediately in front of the oncoming semi driven by Michael G Wood and was unable to make � his left turn safely before the Plaintiffs' vehicle, and the Defendant's vehicle collided in the = intersection. When the Plaintiff,Michael G. Wood saw Defendant McGhee turning in front of the � i semi-tractor,Plaintiff attempted to avoid or minimize contact by turning slightly to the right,away fi from the approaching vehicle driven by Defendant McGhee. The Honda CRV driven by � _ i � t 3 � i ; , y � e � i i � E-FILED 2018 AUG 28 3:59 PM DUBUQUE- CLERK OF DISTRICT COURT � I i i Defendant McGhee strucic the oncoming semi-tractor on the (left) driver's side, at or immediately � behind the front wheel. After striking the Honda, Plaintiff's vehicle continued to the northeast and j i siruck ine traific iigni poie on the northeasi corner of the intersection, where it came to rest. ; 12. The crash impacts with the Peterbilt truck, first with the Honda CRV, and then with I, the traffic signal pole on the NE corner of the intersection caused severe,permanent and disabling physical injuries to Plaintiffs Michael Wood and Jacqueline Wood, including, but not limited to , crushing injuries to both of Michael Woods legs, ultimately requiring amputation of Michael Wood's right leg and extensive surgical intervention, (including implanting plate and screws) to the left lower leg. 13. The collision and fault of the Defendants identified herein was a proximate, legal and factual cause of damages to Plaintiffs Michael Wood and Jacqueline Wood, including but not limited to: ; a) Plaintiffs have incurred, and will continue to incur, expenses for doctor, hospital, prescription medicine,medical appliances,home and environment modifications to I accommodate his injuries. b) Plaintiffs have endured pain, suffering and loss of full function of rnind and body in the past and will continue to endure more of the same in the future. c) Plaintiffs have lost income and related benefits in the past and has suffered a permanent loss of earning capacity in the future. :� d) Plaintiffs have each suffered the loss of consortium of a normal,healthy spouse. ,; 14. At all times material hereto, Defendant GEICO insurance company insured the ; I Plaintiff for injuries and damages he sustained in a motor vehicle collision and that he was entitled ; to recover�rom an underinsured motorist. ? ;; 15. The total amount of damages which the Plaintiff is entitled to recover from ;, Defendants David M. McGhee for injuries sustained in this crash exceed the applicable and ; 4 � ; � E-FILED 2018 AUG 28 3:59 PM DUBUQUE - CLERK OF DISTRICT COURT ; I I I ; collectible insurance policy limits of Defendant McGhee, and hence McGhee is an underinsured i motorist within the meaning of the GEICO policy and Iowa Code Section 516A.1. � � S�+�'TYt`jl�i Y�. ', I NEGLIGENCE OF DEFENDANT DAVID M. MCGHEE a 1-15. Plaintiff incorporates paragraphs 1-15 herein as if set forth fully. � 16. The crash described above and the losses and harms described herein, were proximately, legally, and factually caused by the negligence of David M McGhee, including, but not limited to the following acts of negligence: � a) In failing to yield to Plaintiffs' oncoming vehicle before making a left turn in the intersection, in violation of Iowa statutory and common law. '� b) In failing to lceep a proper loolcout in violation of Iowa statutory and common law. c) In failing to have his vehicle under control in violation of Iowa statutory and common law. ' d) By operating his vehicle at a speed greater than safe under the conditions then existing in violation of Iowa statutory and common law. e) In failing to obey an official traffic signal in violation of Iowa statutory and common law. WHEREFORE, Plaintiffs each ask the Court for judgments against Defendant David M. ; McGhee and other defendants jointly and severally in separate amounts as wiIl fairly and � �� ,; ' i reasonably compensate them for the losses and harms they have sustained and will sustain,together ; , with interest and costs as provided by law, and for such other relief as the Court deems equitable �; ; in the premises. j SECTION III. � ,i NEGLIGENCE/STRICT LIABILITY OF DEFENDANT PACCAR INC.AND � PETERBILT MOTORS COMPANY LACK OF CRASHWORTHINESS OCCUPANT ; PROTECTION � 1 � � 5 � � 1' R � i 9 E-FILED 2018 AUG 28 3:59 PM DUBUQUE- CLERK OF DISTRICT COURT � i, i � �, 1-16. Plaintiffs incorporate paragraphs 1-16 inclusive as if set forth fully. { li 17. Defendants Paccar/Peterbilt designed the 2018 mode1579(style TT)Peterbilt semi- i i tractor with vehicle identification number iXF�ii�49X4E�L17277 (Hereinafter the semi-tractor) 1 18. At all times material hereto,Defendants were engaged in the business of designing, testing, marketing and selling semi-tractors, parts and service throughout the United States and Canada, with the express purpose to operate throughout the United States, including the state of Iowa. 19. The semi-tractor was in a defective condition at the time it left Defendants control in one or more of the following ways: a) The semi-tractor lacked sufficient crush zones to absorb energy in a crash. b) The semi-tractor lacked sufficient structural strength and reinforcing to protect the driver in foreseeable crashes. 1 c) The layout of the cab,especially the placement and materials of the steering column created a crush zone for the driver's legs in a foreseeable offset frontal crash. � 20. Plaintiff Michael Wood was using the semi-tractor in an intended or reasonably � foreseeable manner to the Defendants. 21. The semi-tractor was expected to and did reach the Plaintiff without substantial change in its condition. li 22. An alternative practicable, safer design was available. r j� �i 23. The nature and extent of the injuries Plaintiff suffered were more severe and went �; � above and beyond that which would have occurred without the design defect. I� !; 24. The enhanced injuries would not have occurred except for the defective design. �I' �� 25. The Defendants were negligent for failing to incorporate sufficient occupant � Il protection into the semi-tractor for foreseeable crashes. �' � y �� 6 '; � t M E} Y i E-FILED 2018 AUG 28 3:59 PM DUBUQUE -CLERK OF DISTRICT COURT y � , ; ;� 26. The defective conditions and negligence complained of herein were a proximate, i legal and factual cause of damage to the Plaintiffs. ;I i WHE�,FC)KE, Ylaintiffs aslc the Lourt for separate judgments, jointly and severally ', against Paccar%Peterbilt and all other defendants, in amounts as will fairly and reasonably compensate them for the losses and harms they have sustained and will sustain, together with ; interest and costs as provided by law, and for such other relief as the Court deems equitable in the premises. SECTION I� II , NEGLIGENCE OF CITY OF DUBUQUE ',', 1-26. Plaintiffs hereby incorporates paragraphs 1-26 inclusive above as if set forth fully. 27. At all times material hereto, the Defendant City of Dubuque designed, constructed and maintained the intersection where this crash occurred, including the traffic light support pole � on the northeast corner of the intersection, where Plaintiffs truck experienced its second impact before coming to a rest. 28. The subject intersection, particularly the choice of location and materials for the traffic light support pole failed to comply with the appropriate standards of safety at the time it was built, and at the time of Plaintiff's crash, in that the pole was too close to the traveled portion of the intersection and the pole was not designed and built as a break away pole designed to yield when hit by a vehicle. � �4 � 29. The combination of poor location and material design created an unreasonable risk ` '� , of harm to motarists in foreseeable motor vehicle accidents in which the vehicle left the roadway � in or near the intersection. The pole was too close to the intersection and was not designed to yield to a vehicle striking the pole. ' � � , , , � , � � , � � � 1 j � � I E-FILED 2018 AUG 28 3:59 PM DUBUQUE -CLERK OF DISTRICT COURT II ,! I I ; 30. The injuries and damages suffered by the Plaintiff were proximately, legally and ' 1 i factually caused by the negligence of the City of Dubuque, including but not limited to the 1 � i foiiowing acts of negligence: �� a. Selecting and constructing a high-speed intersection with a traffic light support pole �, unreasonably close to the traveled portion of the highway that had no ability to yield and break away when hit by a vehicle. ',!, b. After industry standards and regulations were passed requiring break away poles, continuing to maintain the traffic support pole in its original dangerous condition and location. c. Failing to replace the pole with a safer alternative despite actual knowledge that the pole posed a serious hazard for motorist who might be involved in a crash at that intersection. d. Failing to install energy absorbing barricades or bumpers between traffic and the 1, unyielding pole to reduce the likelihood of serious injury in a collision. i i e. Failing to move the pole further away from traffic or to integrate a traffic signal support which could be mounted further bacic from the traveled portion of the I' highway. � i WHEREFORE, Plaintiffs ask the Court for separate judgments against Defendant City of '! ,i Dubuque jointly and severally with other defendants in amounts as will fairly and reasonably I compensate them for the losses and harms they have sustained and will sustain, together with interest and costs as provided by law, and for such other relief as the Court deems equitable in the '; �i �, premises. i ,i � SECTION V UNKNOWN FABRICATORS AND MANUFACTURERS—PRODUCTS LIABILITY '� IOWA CODE 613.18(3) '� �i �S 1-30. Plaintiffs hereby incorporates paragraphs 1-30 inclusive as if set forth fully herein. � , � i w � � i 1 8 � i ; � 'i � , � , � ; E-FILED 2018 AUG 28 3:59 PM DUBUQUE -CLERK OF DISTRICT COURT ! � 1 i 31. Despite due diligence on the part of Plaintiff and his counsel, Plaintiff is unable to ' ; identify at the current time, all manufacturers, fabricators and designers of the subj ect traffic { support pole. ,i � '� 32. The unknown Defendants designed,tested,manufactured and sold the traffic signal pole and attachments to the City of Dubuque. � 33. The unknown Defendants were in the business of designing, testing, manufacturing, selling and installing traffic signal support poles such as the one at issue herein. '� 34. The traffic signal pole was in a defective condition at the time it was designed. manufactured and sold to the City of Dubuque in that if failed to incorporate brealc way or yielding technology, was designed to be too close to the highway, and failed to incorporate energy absorbing protective barriers if used near a high-speed intersection. 35. A reasonable safer alternative design could have been practically adopted at the time of sale or distribution. � 36. The omission of the alternative design renders the traffic support unreasonably dangerous or not reasonably safe. ' 37. The alternative design would have reduced or prevented Plaintiff's injuries. 38. The defective design and installation was a cause of Plaintiffs damages. j 39. � Plaintiff invokes the provisions of Iowa Codes Section 613.18(3)until such time as � �I discovery and further investigation allows the identification and naming of the unknown � ,t manufacturers, fabricators and designers. � � � � WHEREFORE, Plaintiffs ask the Court for judgment against the unknown Defendants � � � jointly and severally with all other defendants,in amounts as will fairly and reasonably compensate � � a , � � � � 9 + y ; , 9 ; � , � E-FILED 2018 AUG 28 3:59 PM DUBUQUE - CLERK OF DISTRICT COURT � ; i � I them for the losses and harms they have sustained and will sustain,together with interest and costs �; i as provided by law, and for such other relief as the Court deems equitable in the premises. j sEC i��r�T vi. I � UNDERINSURED MOTORIST CLAIM AGAINST DEFENDANT GEICO. � 1-39. Plaintiffs hereby incorporates paragraphs 1-39 inclusive above as if set forth fully. 40. The harms losses and damages suffered by Plaintiffs exceed the amount of applicable limits of all applicable and collectable insurance. 41. David McGhee is an underinsured motorist within the meaning of the policy and as defined by Iowa law. WHEREFORE, to the extent the award of damages to the Plaintiff exceeds the applicable limits of available and collectible insurance coverage, Plaintiffs ask the Court for judgments against Defendant GEICO in amounts up to and including the policy limits of the Plaintiff's policy, together with interest and costs as provided by law, and for such other relief as the Court deems equitable in the premises. REQUEST FOR JURY TRIAL 42. Plaintiffs here b re uest trial b 'ur for all matters s i � y q y� y ubm ssable to a�ury for i determination in this matter. '; WHEREFORE, the Plaintiffs aslc the Court for a jury trial, and for a judgement jointly and � severally against the Defendants in such amount as will fully, fairly, and reasonably compensate m them for the damages they have sustained and will sustain, together with interest and cost of this � �I action as provided by law, and for such other relief as the Court deems appropriate in the � � , circumstances. j ; i ; io ; � i � u 1 � N �r 1 d E v " � ' I� E—FILED 2018 AUG 28 3:59 PM DUBUQUE— CLERK OF DISTRICT COURT � � � Respectfully submitted, � � I� � � ; Steven J. Crowley AT0001845 Edward J. Prill AT0012435 ' CROWLEY &PRILL 3012 Division Street Burlington, IA 52601 T: (319) 753-1330 �I F: (319) 752-3934 I scrowley@cbp-lawyers.com eprill@cbp-lawyers.com ATTORNEYS FOR PLAINTIFF i ; �i ' i , i .,;i I ;� 19 I� i� � 9 k � p �ig Y3 1 4 �{ d � ) 11 I � , s