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Trucking firm files response in I-81 crash lawsuit


By Sally Voth -- svoth@nvdaily.com

HARRISONBURG -- A truck driver whose rig killed three people on Interstate 81 in Shenandoah County three years ago is asking a U.S. District Court judge to force another trucking company to hand over evidence.

Thomas Troxel Miller, of Three Churches, W.Va., settled three wrongful death suits for $2.175 million following the April 20, 2009 crash. The wreck killed Hilario Guox Vicente, 27, and Ramiro Vicente-Atjun, 35, both of Edinburg, and Dennis Lavelle Fayne, 50, of Brighton, Tenn.

The two Edinburg men had slowed down for a crash between two tractor-trailers near the 284 mile marker on I-81 south.

Miller's truck then struck the Hyundai, killing the men inside and Fayne, who was a passenger in one of the trucks from the earlier wreck and had gotten out of the tractor.
Miller, and his trucking company, Pitt Ohio Express LLC, filed a suit last summer against John Joseph Banik, 31, of Coldwater, Miss.; his employer Pat Salmon & Sons Inc., of North Little Rock, Ark; and William Michael Fewell, of Bedias, Texas, and his employer, C. Bean Transport Inc., of Amity, Ark., blaming them for causing the fatal secondary crash.

In January, U.S. District Judge Michael F. Urbanski dismissed C. Bean Transport, which filed for bankruptcy two years ago, from the suit.

On Wednesday, Pitt Ohio filed a motion to compel discovery and a motion for sanctions against C. Bean, according to online court records.

In an accompanying brief, Pitt Ohio says it asked C. Bean to turn over electronic or satellite movement recordings of Fewell's truck, as well as other documents, including gas receipts, scale receipts, trip reports, dispatch records and food and lodging receipts, but was rebuffed.

"The documents requested by Pitt Ohio relate to the location, speed and movement of the C. Bean truck, and therefore, are all reasonably calculated to lead to admissible evidence," the brief says. "C. Bean's failure to provide this evidence severely prejudices Pitt Ohio."

It says Banik claimed Fewell stopped his truck in a fog bank, while Fewell said he hadn't stopped, but slowed to about 50 mph because of fog. Pitt Ohio also wants to know if Fewell kept accurate driver logs and complied with federal rules regarding hours of service.

If the company can't or won't provide the evidence, Pitt Ohio wants "sanctions for C. Bean's spoilation of evidence," the brief says. "Spoilation is the willful destruction of evidence or the failure to preserve potential evidence for another's use in pending or future litigation."

Pitt Ohio also submitted an April 22, 2009 letter from its attorney to C. Bean's attorney asking that the relevant documentation and GPS information be preserved.

According to a transcript of a deposition of Banik, fog came out of nowhere just prior to the crash. Banik says Fayne got out of the truck after the crash, and less than five seconds after the initial crash, his tractor-trailer was struck "extremely" hard.

"The force of the blow from the rear threw me into the rear of the cab," Banik says in the transcript.

He shouted for Fayne, but didn't get a response, and saw the Pitt Ohio truck sitting on top of the Hyundai. Banik says in the transcript that the car was on fire, and he and two others pulled Miller out of his cab.

In his deposition, Fewell says he also helped pull Miller out, and that Miller said, "Please, please tell me I didn't kill anybody."

On Thursday, Salmon & Sons filed a notice that it wished to withdraw a motion from February asking that it be reimbursed for worker's compensation and death benefits it paid to Fayne's family.






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