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Case of the Month January 2010

Whole Foods to Pay $1.5M After Bus, Tractor Trailer Collide

Estate of Atherton v. Whole Foods Mkt. Group

Wrongful Death - Adult
Vehicle Negligence - Motor Vehicle v. Motor Vehicle
Vehicle Negligence - Truck
Vehicle Negligence - Trailer
Vehicle Negligence - Bus
Vicarious Liability

Specific Liability:
Negligent driving caused semi tractor trailer to overturn, which led to tour bus colliding with semi

General Injury:
Death, conscious pain and suffering, loss of son

Jurisdiction:
State: Wisconsin
Court: Circuit Court of Wisconsin, Tenth Judicial District, Chippewa County.

Related Court Documents:
Plaintiffs' second amended complaint: 2007 WL 6868069
Defendants Whole Foods, Kozlowski and ACE American Insurance's answer: 2007 WL 6868066
Defendant Employers Mutual Casualty's answer and cross-claim: 2007 WL 6868064

Case Name:
Estate of Branden Atherton, deceased, by its special administrator, James Atherton; James Atherton and Patti Atherton, parents of Branden Atherton, deceased, plaintiffs; Shirley Rasmus and the estate of Paul V. Rasmus, by Shirley M. Rasmus, its special administrator, intervening plaintiffs v. Whole Foods Market Group Inc., Michael J. Kozlowski, ACE American Insurance Co., Westchester Fire Insurance Co., Chippewa Trails Inc., Lancer Insurance Co. and Employers Mutual Casualty Co., defendants

Docket/File Number:
2005CV450

Settlement:
Plaintiffs Atherton, $1,500,000.00 from defendant Whole Foods

Settlement Date:
June 8, 2009

Judge:
Frederick A. Henderson

Attorneys:
Plaintiffs: Daniel A. Rottier, Anne MacArthur and Joseph M. Troy, Habush Habush & Rottier, Madison, Wis.

Intervening plaintiffs: None mentioned

Defendants (Whole Foods, Kozlowski and ACE American Insurance): Daniel A. Haws and Stacy E. Ertz, Murnane Brandt, St. Paul, Minn.

Defendants (Chippewa Trails and Lancer Insurance): Jay R. Starrett, Michael D. Rosenberg and Thomas Gonzales, Whyte Hirschboeck Dudek SC, Milwaukee, Wis.

Defendant (Westchester Fire Insurance): Michael Knippen, Traub Liberman Straus & Shrewsberry, Chicago, Ill.

Defendant (Employers Mutual Casualty): Thomas J. Graham Jr., Weld, Riley, Prenn & Ricci, Eau Claire, Wis.

Trial Type:
Settlement

Experts:
Plaintiffs: None mentioned

Intervening plaintiffs: None mentioned

Defendants (Whole Foods, Kozlowski and ACE American Insurance): Michael Cramer Bornemann, MD, sleep specialist, Minnesota Regional Sleep Disorder Center, Minneapolis, Minn.; Elizabeth Ann Davis, MD, FACS, physical medicine and rehabilitation, Minnesota Eye Consultants, Bloomington, Minn.; Arthur Ginsburg, PhD, accident reconstructionist, Vision Sciences Research Corp., San Ramon, Calif.; Gerald Harris, PhD, biochemical engineer, Marquette University, Milwaukee, Wis.; Joseph Morrison, Noblesville, Ind.; Charles A. Scalia, engineer, Scalia Safety Engineering, Madison, Wis.; Ronald R. Vessey, MD, FACP, general practitioner, Minnetonka, Minn.

Defendant (Employers Mutual Casualty): Beckie Januszewski, workers' compensation claims manager, EMC Insurance, Lansing, Mich. Defendants (Westchester Fire Insurance, Chippewa Trails and Lancer Insurance): None mentioned
Breakdown of Award:
$1,150,000.00 to plaintiffs from defendant Whole Foods for decedent's pain and suffering
$350,000.00 to plaintiffs James and Patti Atherton from defendant Whole Foods for wrongful-death/loss of society and companionship

Summary of Facts:
According to the plaintiffs' counsel:

Michael Kozlowski was driving a Whole Foods Market Group tractor trailer when he went off the shoulder of Interstate 94 about five miles south of Osseo, Wis. When Kozlowski attempted to pull back onto the road, the semi overturned, blocking both westbound lanes and the shoulders on either side.

Shortly thereafter, a Chippewa Trails Inc. tour bus, driven by employee Paul Rasmus, collided with the underside of the semi. The bus' passengers, Chippewa Falls high school students, teachers and chaperones, were returning from a band competition in Whitewater.

Five people were killed in the collision, including student teacher and University of Wisconsin Eau Claire student Branden Atherton. The student teacher was ejected from the bus on impact. He suffered a C2 fracture, pelvic fracture, bilateral rami acetabular and public fractures, and an injury to his right internal iliac artery. He was conscious at the scene and survived for two hours. Atherton was 24 years old.

Atherton's parents, James and Patti, sued Kozlowski, Whole Foods, Chippewa Trails and others in the Chippewa County Circuit Court. The Athertons argued Kozlowski's negligent driving caused the bus crash.

The plaintiffs sought compensation for the decedent's injuries, conscious pain and suffering and death, the loss of their son, and for his medical expenses. They additionally requested punitive damages.

The Athertons reached a $60,000 settlement with workers' compensation carrier, Employers Mutual Casualty Co., covering the medical expenses.

Whole Foods admitted Kozlowski was negligent but argued Rasmus was also liable because he failed to see the tractor trailer in time to avoid the collision. Chippewa Trails did not keep the bus' brakes in proper working order, Whole Foods added.

In June 2009 Whole Foods settled with the Athertons for $1.5 million before Judge Frederick Henderson. James and Patti Atherton were to recover $350,000, the statutory cap, for Branden Atherton's wrongful-death, and their loss of his society and companionship. The remaining $1.15 million was for the decedent's conscious pain and suffering.

Whole Foods retained the right to seek contribution from Chippewa Trails.

Court: Circuit Court of Wisconsin, Tenth Judicial District, Chippewa County.

Westlaw Citation:
2009 WL 3248684

West's Jury Verdicts - Wisconsin Reports Citation:
West’s J.V. Wis. Rep., Vol. 5, Iss. 5, p. 5 (2009)