WSDOT Tort Liabilities & Exposures Six Years: 1998-2003 Material for Management Review AG/WSDOT Risk...

WSDOT Tort Liabilities & ExposuresSix Years: 1998-2003

Material for Management Review

AG/WSDOT Risk SummitApril 5, 2004

Overview

WSDOT Tort Liability PaymentsSix Years: FY 1998-2003

Total: $52.1 million on 3,554 claims paid

1

$0.0 $5.0 $10.0 $15.0 $20.0 $25.0 $30.0 $35.0

Civil Rights; Employment

State Vehicle BI/PD

WSF Rich Passage

WSF Passenger BI/PD

WSF Crew Injury

Highway Design/Maint

No. Claims Paid500 1,000 1,500 2,000 2,500 3,000

$ Paid (in millions)

2,210 Claims

396 Claims Paid

229 Claims Paid

590 Claims

1 matter/110 Claims Paid

19 Claims Paid

$34.0 Million

$9.7 Million Paid

$3.7 Million Paid

$1.6 Million Paid

$4.5 Million paid, includes $2.95 million from commercial liability insurance

$1.6 Million

Highway Design and Maintenance

WSDOT Highway Design and Maintenance ClaimsSix Years: FY 1998-2003

Where do these claims and liabilities come from?

By Amounts Paid2,210 Claims

By Claims Filed6,326 Claims*

2

Flooding (17)

$0.58 M

Ice (29)$2.03 M

Water in Rd (6)

$1.70 M

Other* (996)

$5.48 M

Rocks/Grvl(1,132) $0.78 M

Design (58)

$23.38 M

Total Paid$34.0 mil

69 %

*Other includes - debris in road or from equip, paint ops, potholes, manholes/covers, construction zone debris, pavement surface/edges maintenance, etc.

Design (273)

Ice (115)Water in Rd (27)

Flooding (34)

Rocks/Gravel (2,616)

Other (3,261)

6,326 Claims

*The number of paid claims and the number of claims filed in the period are not the same because of time lags between claims filings and resolutions and because denied claims closed with zero payment are not included in paid claims.

Over 6 years, 31 cases (2% of 2,210 total paid claims) with payments over $200,000 accounted for $28.7 million (84%) of total liability

WSDOT Highway Design and Maintenance Tort PaymentsSix Years: FY 1998-2003

Each year just a few cases accountfor most of the dollar liability payments

3

Total value of payments from

cases shown resulting in loss

less than $200,000

Total value of payments from

cases shown where loss exceeded

$200,000

0.0

1.0

2.0

3.0

4.0

5.0

6.0

7.0

8.0

9.0

1998 1999 2000 2001 2002 2003

Fiscal Year

$ Paid(in millions)

3

4

67

74

515

368

375

298

351

25797-99 = $7.5 million

99-01 = $14.5 million

01-03 = $12.0 million

WSDOT Highway Design and Maintenance Tort Payments Six Years: FY 1998-2003

The 31 significant cases each over $200,000 that accountedfor 84% of the general liability payments are classified below:

By Dollar Value of Cases Paid By Number of Cases Paid

In the large paid cases involving the highway system, “design” issues were three times as costly and involved twice as many cases as “maintenance” issues.

4

Negligent Maint

$5.4 mil (8)

Ice Maint $1.5 mil (2)

Channelize Design

$0.9 mil (1)

Hydraulic Design

$2.2 mil (2)

Intersection Design

$9.9 mil (8)

Barrier Design $8.8 mil

(10)

$28.7 mil (31)

Maint. = $7.0 mil (24%) Design = $21.7 mil (76%)

Barrier Design (10)

33%

Intersection Design (8)

26%

Hydraulic Design (2)

6%

Channelize Design (1)

3%

Ice Maint (2)

6%

Negligent Maint (8)

26%

31 Paid

Maintenance Cases=10 (32%) Design Cases=21 (68%)

WSDOT Highway Design and Maintenance Tort Payments Six Years: FY 1998-2003

Many major cases involved “Joint and Several Liability”Most of these cases are settled rather than tried

Because of significant financial risks in trying cases (69% or $19.8 million of these significant cases were joint and several) the trend has been to settle these cases 5

31 Significant Cases Paid 18 of these cases were “Joint & Several” and only one of these was tried. The rest were settled.

Number* Amt Paid

Barrier Design 10 $8.8 5 $5.8

Intersection Design 8 $9.9 8 $9.9

Hydraulic Design 2 $2.2 0 $0.0

Channelization Design

1 $0.9 1 $0.9

Subtotal Design 21 $21.8 14 $16.6

Negligent Maintenance

8 $5.4 3 $2.5

Ice Maintenance 2 $1.5 0 $0.0

Subtotal Maint. 10 $6.9 3 $2.5

Totals 31 $28.7 17 $19.1

*One joint & several case on barrier design was tried ($.7 million)

Joint & Several SettledTotal Cases

Total Pymts

Negligent Maint

$5.4 mil (8)

Ice Maint $1.5 mil (2)

Channelize Design

$0.9 mil (1)

Hydraulic Design

$2.2 mil (2)

Intersection Design

$9.9 mil (8)

Barrier Design $8.8 mil

(10)

$28.7 mil (31)

Maint. = $7.0 mil (24%) Design = $21.7 mil (76%)

WSDOT Highway Design and Maintenance Tort PaymentsSix Years FY 1998-2003

The post 2003 period includes 18 pending casesposing financial risk exposure >$200,000

6

18 Cases*

*These cases have been selected into this category simply by reference to the amount prayed for by the plaintiff(s). Summarizing them here and listing them on any subsequent pages does not indicate that a risk of >$200,000 amount has been determined, assigned or acknowledged by WSDOT or the Attorney General’s Office.

Negligent Maint (2)

Ice Maint (7)

Traffic Control

Plan Design (2)

Intersection Design (3)

Barrier Design

(4)

*Five of these cases have settled up to December 1 in FY 2004


Details on 21 >$200,000 highway design liability cases for FY 1998-2003

7

Name RegAccident

Date Liability Theories/Allegations AmountsThompson, Velma

NWR 8/27/98 Southbound SR 18 plaintiff struck by northbound negligent co-defendant turning left to westbound I-90, suffering quadriparesis and wheel chair confinement. Alleged defect was no traffic control signal or other temporary measures used. Negative pre-trial court comparative fault ruling. Settled in FY 03.

Prayer $10,000,000

Settled $2,700,000

Stevens, Ed SWR 11/1/94 Westbound SR 14 plaintiff's 18-wheeler struck a large boulder on centerline, ran through the guardrail over a steep bank to the Columbia River. Alleged defect was no barrier and inadequate catch basin for rock fall containment. Two mistrials and negative trial court rulings regards allowable evidence. Applicable design standards at issue. Settled in FY 03.

Prayer $7,500,000

Settled $800,000

Whaley, Heather and Dustin

NCR 6/18/00 Eastbound SR 2 plaintiff and 5-year old son spun off road into guardrail end after striking vehicle pushed into her lane by negligent co-defendant (towing 5th wheeler) rear ending vehicles waiting left turn at T-intersection. Alleged defect was inadequate guard rail end treatment and warning. Settled in FY 03.

Prayer $3,000,000

Settled $800,000

Evans, James

OR 4/23/98 Southbound I-5 plaintiff struck by northbound negligent co-defendant's vehicle forced over median barrier by second negligent co-defendant making illegal lane change. Alleged defect was wrong slope and barrier caused vehicle launching. Evans' trial judge allowed application of negligence percentages from trial involving first and second co-defendants. Minimal insurance proceeds. Settled in FY 03.

Prayer $2,500,000

Settled $675,000

Considered Tried

8

Name RegAccident

Date Liability Theories/Allegations AmountsPruitt, Walter and Dianna

NWR 11/8/97 Eastbound Torpedo Rd plaintiffs and 8-year old son (killed) rear ended by negligent co-defendant while waiting to merge onto SR 20. Alleged defect was intersection design and advance warning at location which region had conceded in correspondence to complainers was poorly designed. Settled in FY 03.

Prayer $2,000,000

Settled $500,000

Letzring, et al.

SWR 11/1/94 Flooded Wynoochie Valley property owners (7) off SR 12 damaged in March 97 and December 99 floods. Alleged defect was hydraulic design in a mid 80's bridge removal/culvert placement from unlicensed/ unqualified designer's conclusions. Settled in FY 02 and also bought properties for $1,404,000.

Prayer $12,000,000

Settled $1,863,429

Brenners, Manson and Bragg

NWR 6/17/98 Eastbound Lundeen Parkway plaintiffs' daughter killed crossing SR 9 by opposing left turn negligent co-defendant. Alleged defect was inadequate intersection signalization. Left turn arrow phasing installed after accident. Settled in FY 02.

Prayer $3,000,000

Settled $800,000

Coulter, Audrey

OR 7/8/99 Plaintiff's husband driving their Northbound SR 101 5th wheeler struck the rear portion of a log truck pulling out to go SB. The speeding negligent co-defendant husband failed to see the truck and intersection warning signs. Alleged defect was intersection sight distance and sign placement. Settled in FY 02.

Prayer $2,500,000

Settled $475,000

Williams, Gregory

NWR 1/13/99 Plaintiff's 18 year-old daughter rear ended at high speed on Northbound SR 9 turning left on 42nd St NE by 16 year old negligent co-defendant looking down to change a CD. Alleged defect was intersection lacked signalization or temporary channelization at HAL. Settled in FY 01.

Prayer $20,000,000

Settled $3,300,000

Brock, Cecil

ER 11/18/98 Rear seat passenger plaintiff Eastbound on SR 2 rear-ended by negligent co-defendant while turning left into a restaurant parking area. Alleged defect was no left turn lane channelization or left turn warning caused the co-defendant to run into the vehicle. Settled in FY 01.

Prayer $25,000,000

Settled $900,000

Details on 21 > $200,000 highway designliability cases for FY 1998-2003

9

Name RegAccident

Date Liability Theories/Allegations AmountsHuff, Ronald

ER 2/1/98 Eastbound SR 206 right front passenger suffering partial paralysis at Bruce Rd intersection. Negligent co-defendant ran a stop sign. Alleged defect was no 4-way stop and inadequate warnings. Memo on file indicating 4-way stop design appropriate, and it was not done in realignment project. Settled in FY 01.

Prayer $1,445,000

Settled $700,000

Stafford, Maryann

OR 5/12/96 Northbound I-5 motorist exited car beyond North end of Nisqually River Bridge. Alleged defect was lack of adequate barrier and misleading sidewalk on bridge caused her to climb over barrier and fall in darkness. Trial judge found plaintiff 66% at fault. Paid FY 01.

Prayer $2,000,000 Judgment $217,000

Jensen, et al and Page

SCR 12/15/95 Southbound SR 241 (Rattlesnake Hills) Page lost control on ice, went over 45' embankment, rolled and ejected him and a passenger (both unbelted) and injured 3 other occupants. Alleged defect was lack of guardrail, ice control and warning. Barrier/realignment pending priority array. Settled in FY 00.

Prayer $10,635,000

Settled $1,650,000

Smith/ Lui/Triol

SCR 3/1/92 Eastbound I-90 (Taneum Curves) Wong's right rear axle broke causing collision with cable guardrail system, vehicle tripping, rollover and signifcant injuries to 3 passengers. Alleged defect was failure to replace inadequate guardrail system. Negligent co-defendant performed faulty repairs to vehicle. Settled in FY 00.

Prayer Unspecified

Settled $1,350,000

Tovah Corpo-ratation

NWR 2/8/96 Flooding at I-90 and SR 900 where DOT permitted City of Issaquah ro raise roadway in re-aligning roadway/intersection can and creating a dam effect. Judge dismissed city and ruled DOT had duty to upgrade flow capacity. Settled in FY 00.

Prayer $1,539,318

Settled $325,000

Trenti, Carlo

SCR 8/9/96 Northbound SR 395 negligent co-defendant driver drifted off highway while picking up dropped cassette, struck culver in the clear zone and flipped car ejecting unblelted plaintiff. Alleged defect was lack of barrier protection, erroneous standard for piping in culvert, and maintenance re bent pipe in culvert. Settled in FY 99.

Prayer $13,365,496

Settled $1,500,000


10

Name RegAccident

Date Liability Theories/Allegations AmountsConradi, Shannon

NWR 2/22/94 Westbound SR 2 plaintiff lost control, spun and slid over embankment into a tree. Alleged defect was lack of guardrail where warrants were met. Fix precluded by priority array for reconstruction, but subsequent fix made without major reconstruction. Settled in FY 99.

Prayer $10,000,000

Settled $900,000

Kelly, Karen

SCR 4/28/95 Eastbound SR12 plaintiff rear-ended and killed by negligent co-defendant (looking down/placing coffee) at intersection with Maple St. while waiting to turn left. Alleged defect was no channelization and invalid traffic count data regards left turning actions at this location. A maintenance fix providing temporary channelization was done after accident and prior to a reconstruction project. Settled in FY 99.

Prayer $2,500,000

Settled $750,000

Bunting, Neeta

ER 3/6/89 Eastbound SR 292 passenger injured when negligent co-defendant driver (looking down to light cigarette) drifted off highway, vaulted guardrail and went over a steep embankment. Alleged defect was failure to replace ’51 built guardrail (too short, low and improper end treatment) in a ’77 project. Fix funded in project but left out without sound engineering logic. Settled in FY 98.

Prayer $1,550,000

Settled $514,500

Shirey, Sharon

OR 7/31/94 Negligent co-defendant left turning on to SR 20 at Zylstra Road plaintiffs and oncoming plaintiffs injured in multiple vehicle accident. Alleged defect was intersection sight distance inhibited by a steep embankment and speed signing. Settled in FY 98 and county paid another $300,000.

Prayer $5,094,000

Settled $450,000

Wolfe, Nancy

OR 8/6/92 Northbound I-5 North of Centrallia plaintiff killed when his vehicle slid off highway into a tree. Alleged defect was no guardrail (previous region safety improvement project failed to correct clear zone issues) and inqdequate maintenance (tree in clear zone, signing and highway rutting. Settled in FY 98.

Prayer $2,000,000

Settled $350,000



Details on 9 potentially > $200,000* highwaydesign liability cases pending – post FY 2003

11

Name Reg Acc Date Trial Date Liability Theories/AllegationsPrayer

AmountBeslow, James Sr. NWR 09/18/2000 05/03/2004 Wrongful death of passenger from alleged negligent

design/lack of guard rail on SR 410. J&S exposure with negligent co-defendant driver.

$10,000,000

Broach, Frank R OR 04/05/2003 03/02/2005 Injury from alleged negligent barrier design re walkway on I-5 northbound Nisqually Bridge.

$7,500,000

Doyle, William ER 03/27/1999 11/03/2003 Injury from alleged negligent design of a signing/traffic plan in construction zone on Sprague Ave in Spokane. Tendered to contractor/insurer for construction project. Summary judgment dismissal FY 04 on proximate cause granted.

$1,500,000

Helland, Lisa and David NWR 09/16/2000 Not Assigned Injury from alleged negligent barrier design/signing re SR 2/EB offramp to SR 9.

$1,500,000

Lopez, Blas Est of SCR 09/27/1997 N/A Fatal injury from train/vehicle collision on SR 124 RR crossing from alleged negligent intersection design. Settled FY 04: $425,000.

$5,700,000


Maguire, John NWR 10/01/1999 Pre-trial ruling on appeal

Injury from hit & run driver on northbound I-5 resulting in median crossover from alleged negligent design (absence of barrier). Discretionary review of SJM dismissal pending. J&S exposure with negligent co-defendant driver.

$5,000,000

Martini, Brandon OR 08/09/1997 Div II appeal Injury in construction zone on northbound I-5 where plaintiff rearended truck. Alleged negligent design of traffic control plan/warning. Defense verdict in favor of contractor appealed by plaintiff. J&S exposure with co-defendant trucker.

$10,000,000

Sargent, George & Est. NWR 06/14/2002 08/02/2004 Wrongful death of passenger from rear ending accident on I-90 at Exit 15 due to alleged negligent intersection design at off-ramp end, signing, marking and maint. J&S exposure with negligent rear-ending co-defendant driver.

$7,000,000

Zarate, Rebecca ER 04/01/1998 N/A Motorcycle passenger accident alleging negligent design of intersection regards no-pass stripping/sight distance at SR 2/Wood Rd. J&S exposure with negligent co-defendant motorcycle driver. Settled FY 04: $105,000.

$1,500,000

Details on 9 potentially > $200,000 highwaydesign liability cases pending – post FY 2003 12

• 69% ($23.4 million) of the $34.0 million paid on design and maintenance claims resulted from design liabilities (58 cases), although only 4% (273) of the 6,326 claims filed in the period were for design issues.

• Only 31 paid cases (2% of 2,210 paid claims) accounted for 84% ($28.7 million) of the $34 million paid on these claims in the six years.

• Design issues were three times as costly ($21.7 to $7.0 million) and involved twice as many cases (21 to 10) as maintenance in paid cases of significance over $200,000.

• 58% (18 of 31) of the paid cases of significance involved joint and several liability exposures and accounted for 69% ($19.8 million) of the $28.7 million paid on cases of significance and 58% of the $34.0 million paid on design and maintenance claims.

• Seventeen of the 18 joint and several liability exposure cases were settled because of the significant financial risks in trying these type cases.

DRAFT-CONFIDENTIALWSDOT Highway Design and Maintenance Tort Payments

Six Years FY 1998-2003

Reducing Liability Exposure to Highway Design Tort Payments

13

Traffic Barrier

• Conduct statewide inventory of substandard barrier, and document a plan to replace it to include a prioritized list of substandard barrier to be replaced.

• Conduct statewide inventory of locations warranting barrier, and document a plan to install barrier to include a prioritized list of barrier locations.

• Continue with the statewide barrier program in the I-2 Safety Improvements subprogram (currently $4M for barrier/$2M for bridge rail) and consider its expansion if warranted.

• Clarify maintenance requirements regarding upgrading damaged barrier.

DRAFT-CONFIDENTIALWSDOT Highway Design and Maintenance Tort Payments


Reducing Liability Exposure to Highway Design Tort Payments

WSDOT and the Attorney General should consider taking the following initiatives to enhance safety, reduce exposure and increase litigation success in these cases

14

Intersection Safety

• Develop and implement Signal and Channelization Prioritized list procedures to ensure statewide consistency.

• Develop and implement a consistent practice for restriping turn lanes with low cost enhancement funding to include: an inventory of candidate intersections, a prioritization method, consistent limitations on candidate intersections and a justification with headquarters approval.

• Clarify the Design Manual and Traffic Manual to define required sight distance to be the stopping sight distance on the mainline.

Other Traffic and Design Safety

• Educate employees on proper documentation of safety issues to minimize liability exposures.

• Match preservation projects to High Accident Location review recommendations to look for opportunities to correct deficiencies (e.g. roadway slope, etc.).

15Reducing liability exposure to highway design tort payments

DRAFT-CONFIDENTIAL

• Reevaluate the utility pole location program.

• Conduct Roadway Safety Audits on roadways every four years to address the operational safety of highways.

• Perform after resolution reviews/debriefs on cases of significance to ensure appropriate corrective actions are considered and taken when necessary.

16Reducing liability exposure to highway design tort payments

DRAFT-CONFIDENTIAL

April 5, 2004 AG Risk Summit NotesHighway Design Issues

17

Details on 10 > $200,000 highway maintenanceliability cases for FY 1998 - 2003

18

Name RegAccident

Date Liability Theories/Allegations AmountsSanders, Kenneth

SWR 12/15/00 Northbound SR 97 plaintiff in his empty 18-wheeler on Biggs Bridge (over) Columbia River was blown by a strong gust of wind over the bridge rail into the river 90’ below. Alleged defect was maintenance operations in not closing or adequately warning of severe crosswinds or for monitoring for such conditions. Settled in FY 03.

Prayer $6,000,000

Settled $450,000

Monson Ranch

SCR 7/1/01 Plaintiffs suffered significant vineyard damages in their 269 acres on either side of I-82 near its intersection with I-182. Alleged defect was maintenance spray operation (trespass by drift of the herbicide) in the spring of 2001 in the right of way between I-82 and the property. Settled in FY 03.

Prayer $695,726 Settled

$300,000

Foster, Joyce

NWR 9/7/99 Northbound I-5 plaintiff struck large boulder (~3' high) landing in front of her vehicle and then hit two vehicles in lanes to her left. Alleged defect was maintenance brush-clearing operation which had dislodged boulder from above in the right-of-way. Settled FY 02.


$450,500

Opatz, Kenneth

NCR 11/4/95 Westbound SR 2 plaintiff lost control and crossed over the centerline in snowstorm. Alleged defect was failure to plow/sand in a snowstorm which commenced between Saturday shifts, after earlier warnings of an impending storm. Trial Court precluded contributory fault negligence since WSP report concluded loss of control was by automatic transmission downshifting. Settled FY 01.

Prayer $1,500,000

Settled $610,000

Prichard, Douglas

OR 7/6/96 This 5-year old child pedestrian was struck running across SR 101 at Sequim Bay, rather than using an underground crosswalk. Alleged defect was poor maintenance for the uninviting darkened/wet tunnel crosswalk and unsafe speed through state park area, and Parks & Recreation negligent volunteer camp host supervision and no fencing at the ballpark area. Settled in FY 01, and P&R paid $4 million..

Prayer $1,000,000

Settled $1,000,000

Details on 10 > $200,000 highwaymaintenance liability cases FY 1998 – FY 2003 19

Name RegAccident

Date Liability Theories/Allegations AmountsStam, Jennifer

NWR 12/26/94 Northbound I-5 plaintiff lost control on wet road and turned over. Alleged defect was maintenance of pavement and roadside slope and design of cross-slope from added freeway lanes caused puddling. Settled in FY 01.

Prayer $15,000,000

Settled $475,000

McLain, Jenny and Richard

SWR 7/30/95 Northbound SR 7 plaintiffs were killed when their motorcycle was struck by negligent co-defendant after improperly towed vehicle left pavement and he overcorrected into plaintiffs' path. Alleged defect was maintenance of pavement edge and design of shoulder width. Settled in FY 00.

Prayer $4,500,000

Settled $1,225,000

Magnus, Mary and Homer

NCR 6/26/95 Eastbound SR 2 plaintiffs (wife passenger killed) lost control of their motorcycle while change lanes in leaking chip seal patch made in the prior fall season. Alleged defect was maintenance of pavement. Settled FY 00.

Prayer $5,750,000

Settled $280,000

Anderson, Andrea

SWR 11/6/95 Southbound I-5 plaintiff lost control near the Kelso weight station in pooling water in a sag vertical curve and struck guardrail end. Alleged defect was maintenance of pavement (rutting) and guardrail end treatment. Evidence proving rut meter calculation problematic. Settled in FY 00.

Prayer $3,000,000

Settled $1,200,000

Divelbiss, et al

SCR 12/5/96 Easbound I-90 plaintiffs (two killed) lost control in Rocky Canyon on black ice, spun into jersey barrier and struck by third injured plaintiff. Alleged defect was maintenance driver's failure to sand icy area where shoulder snow melted across roadway earlier. Settled in FY 99.

Prayer $2,150,000

Settled $950,000

Details on 9 potentially > $200,000* highwaymaintenance liability cases pending – post FY 2003

20

Name RegIncident Date (s) Trial Date Liability Theories/Allegations

Prayer Amount

Amundson, Lucienda SCR 01/05/2001 not set Wrongful death from negligent failure to maintain/warn of pot holes on SR 26/MP 35.6. J&S exposure.

$6,500,000

Cooper/Freepons & Est of Angela Cooper

SCR 12/26/2000 09/27/2004 Wrongful passenger death from alleged negligent ice maintenance on I-182 Keene Rd overpass. J&S exposure.

$2,500,000

LeRoy, James P. OR 02/16/2000 Div I appeal Wrongful death snow/ice on SR 107/MP 6.9. Summary judgment dismissal granted 2/2/03. Case on appeal. J&S exposure.

$1,350,000

Morehouse, Lyle ER 11/01/2000 not set Injury acc from alleged negligent snow/ice maint on I-90 bridge at MP 237.

$10,000,000

Schilliger, Ferdinand/Ida

SWR 12/26/1999 05/24/2004 Quadriplegic injury acc and subsequent death from alleged negligent snow/ice maint SR4/~MP 12.

$22,000,000

Scholtz, Roberta D NCR 03/06/2002 Tort Claim Injury acc from alleged negligent maint operation of snowplow & WSP activity on I-90/MP 139.4.

$34,300,000


Name RegIncident Date (s) Trial Date Liability Theories/Allegations

Prayer Amount

Silva, Maria M SCR 11/22/2000 not set Injury acc from alleged negligent snow/ice maint on I-82/MP50.

$1,250,000

Smith, Jeffery OR 01/13/2000 N/A Four fatality accident on SR 112/MP 58.8 from alleged negligent snow/ice maintenance and roadway design. J&S exposure. Tried in FY 04: Jury Verdict: $1.124 million.

$12,500,000

Steiner, Amy NWR 01/20/1998 N/A Mother and son injury accident on SR 524/MP 29.8 from alleged negligent snow/ice maintenance. Settled FY 04: $500,000.

$3,000,000

Details on 9 potentially > $200,000 highway maintenance liability cases pending – post FY 2003 21

DRAFT-CONFIDENTIAL WSDOT Highway Design and Maintenance Tort Payments


Reducing Liability Exposure to Highway Maintenance Tort Payments

• Maintenance cases most typically arise from icy, wet or highway shoulder conditions accidents

• Maintenance cases haven’t typically involved “joint and several liability” but usually are cases with seriously or fatally injured parties

• About 2% (115 of 6,326) of the claims filed involved ice treatment related issues, and some success has been achieved in disposing of ice maintenance cases through summary judgment dismissals (Bird vs. Walton)

22

WSDOT and the Attorney General’s Office should consider taking the following initiatives to enhance safety, reduce exposure and increase litigation success in maintenance cases

• Review and refine the 2003 Snow and Ice Plan to ensure that wording is appropriate, and that vague or indecisive verbiage is eliminated.

• Develop a core team to assess the connection between field activities, guidance and training programs offered, and court cases to ensure a solid, defensible position. This 7 to 8 person team should be made up of key AAGs with experience in snow and ice cases, HQ Maintenance personnel, and key region personnel.

• Incorporate adequate maintenance procedures to ensure that field personnel adhere to the Snow and Ice Plan, and make decisions consistent with its priorities.

• Continue to develop the "Snow and Ice" data collection system through handheld PDA equipment with outlying shed connectivity, and enhanced snow and ice database.

• Consider to evaluate, and if warranted and where appropriate consider the advance of the use of anti-icers and de-icers, in lieu of sanding operations.

23Reducing liability exposure to highway maintenance tort payments

DRAFT-CONFIDENTIAL

• Develop criteria for an appropriate balance between the use of emerging weather technologies and the functional responsibilities of highway maintenance programs. Develop meaningful and dependable processes based on the available state-of-the-art weather technologies to achieve integrated snow and ice programs with weather information.

• Continue with the strong public messaging campaign related to drivers’ responsibilities in winter. Develop programs to enhance driver awareness of safety needs for adverse weather conditions.

• Work jointly with the AG/Torts Division to develop/provide effective training programs for maintenance deposed witnesses or maintenance expert witnesses tasked to testify in court.


24Reducing liability exposure to highway maintenance tort payments

DRAFT-CONFIDENTIAL

April 5, 2004 AG Risk Summit NotesHighway Maintenance Issues

25

State Vehicle BI/PD Claims

WSDOT State Vehicle Bodily Injury and Property Damage ClaimsSix Years: FY 1998-2003

How do these claims arise?

By Amounts Paid396 Claims

By Claims Filed

481 Claims

26

Other* $0.2 million

(65)

Backing $0.2 million

(83)

Rear-End $1.3 million

(153)

Hit Pedestrian

$1.6 million (6)

Sideswipe$0.4 million

(89)

*Other includes - striking parked cars/objects, failure to yield and intersection collisions

Note: No. claims paid in ( )

$3.7 million(396)

Other* 90 - 19%

Rear-End187 - 39%

Sideswipe115 - 24%

Hit Pedes-trian 4 - 1%

Backing85 - 18%

481 Filed

*Other includes - striking parked cars/objects, failure to yield and intersection collisions

WSDOT State Vehicle Bodily Injury and Property Damage Claims Six Years: FY 1998-2003

What is the trend in these cases?396 Claims Paid 481 Claims Filed

Over six years, six cases (1.5% of 396 paid) with payments over $100,000 accounted for $2.1 million (57%) of total liability 27

68

101

81

72

92

67

0

20

40

60

80

100

120

98 99 00 01 02 03

Fiscal Year

No. Claims

97-99 = 169

99-01 = 153 01-03 = 159

FY 2001 FY 2002 FY 2003 3-Yr Total

72 67 92 231 Ryder Tampa TribuneMillion Miles Driven 26.082 25.459 27.276 78.817 2002 2000Claims Per Million Miles 2.76 2.63 3.37 2.93 3.55 1.50

Tort Claims Filed

Other Benchmark Organizations

$0.0

$0.2

$0.4

$0.6

$0.8

$1.0

$1.2

98 99 00 01 02 03

Fiscal Year

$ Paid (in millions)

Total value of claims exceeding $100,000

Total value of claims under $100,000

97-99 = $1.1 mil

99-01 = $1.4 mil

01-03 = $1.2 mil

58

2

1

1 1

1

56

6976

68

63

WSDOT State Vehicle Bodily Injury and Property Damage Claims Six Years: FY 1998-2003

Details on 6 > $100,000 Cases

28

Name RegAccident

Date Liability Theories/Allegations AmountsHoyle, Don SWR 3/5/97 Southbound I-205 plaintiff killed when rear-ending parked impact attenuator

truck operating as a buffer vehicle for maintenance bridge sign washing in fast lane. Alleged defect was improper maintenance traffic control relative to time needed. Jury found DOT 30% negligent. Paid in FY 03.

Prayer $10,000,000

Verdict $226,463

Heaton, Charles

HQ 6/26/98 A summerhire traffic count employee failed to execute a curve and struck a pedestrian who just exited his parked car on the other side of a sidewalk. Settled in FY 02.

Prayer $1,500,000

Settled $600,000

Bolden, Arthur

NWR 12/1/94 A DOT incident response vehicle struck a maintenance employee in the maintenance yard parking area at work shift end. An Appeals Court ruling removed his status from an L&I covered injury under the parking lot rule to allow DOT employee to sue for injuries. Settled in FY 01.

Prayer $1,000,000

Settled $750,000

Kanzler, Oscar and Laura

ER 8/16/94 A DOT employee rear-ended plaintiffs while they were stopped for a red light on Ruby St. in Spokane. Jury verdict in FY 99.

Prayer $1,000,000

Verdict $146,725

29

Name RegAccident

Date Liability Theories/Allegations AmountsWilliams, Lee NWR 3/5/97 Contractor employee run over by DOT project inspector in an I-5

construction zone while performing manhole inspections.Prayer

$1,000,000 Settled

$250,000

Brumbaugh, Clayton

NWR 4/23/96 Plaintiff ejected from his vehicle when rear-ended by DOT employee on I-5. DOT employee had several prior on-the-job vehicle accidents on his driving record. Settled in FY 98.

Prayer $1,500,000

Settled $121,054

Details on 6 > $100,000 vehicle liabilitycases FY 1998-2003

DRAFT-CONFIDENTIAL WSDOT State Vehicle Bodily Injury and Property Damage Claims

Six Years: FY 1998-2003

Reducing Exposure to WSDOT Vehicle Liability Payments

• WSDOT’s claims experience of 2.93 claims per million miles driven by its vehicle fleet (Class 1-5, light vehicles only) in FYs 2000-2003 compares to Ryder’s 2002 rate of 3.55 (down from 4.71) and the Tampa Tribune’s 2000 rate of 1.50.

• Payment of $1.6 million in four pedestrian accidents and $1.3 million in 153 rear-end accidents accounted for 78% of total payments for these driver inattention accidents, and this indicates emphasis relative to these accidents is needed.

30

• Implement a driver/vehicle program consistent with the December 2003 Risk Management Advisory Committee approved incorporation of a State Vehicles and Drivers chapter into Office of Financial Management’s Statewide Accounting and Administrative Manual (SAAM). Such a program should include:

WSDOT should consider taking the following initiatives to enhance safety, improve performance and reduce vehicle liability

Identification of driver categories based on vehicle usage requirements such as type vehicle and/or frequency/duration of use.

DRAFT-CONFIDENTIAL

31

Establishment of minimal annual supervisory checking/training requirements for all drivers, regardless of driver category (e.g. verifying unsuspended drivers license or CDL, viewing OFM driving video, discussing best driving practices, etc.) during performance reviews.

Establishment of more stringent annual supervisory checking/training requirements for identified high risk categories of drivers (high frequency miles or severity of accident trends).

Reducing exposure to WSDOT vehicle liability payments

• Make job offers to an applicant for a driving duty position contingent upon their providing a current Abstract Driving Record meeting specified requirements.

• Provide executive emphasis on agency-wide adherence to the rules and procedures in Instructional Letter IL 4056, Accident Reporting and Review, to ensure: reporting and investigating of all accidents, management review of specified accidents and appropriate management corrective action against operators.


• Determine and establish, if appropriate, medical and/or loss related criteria or conditions that may foreclose employees/volunteers from operating state vehicles or classes of state vehicles.

April 5, 2004 AG Risk Summit NotesState Vehicle Liability Issues

32

Civil Rights/Employment Law Claims

WSDOT Civil Rights/Employment Law ClaimsSix Years: FY 1998-2003

How and where did these claims arise?By Amounts Paid By Claims Filed

33

ER (2)

NCR (3)

Aviation (2)

Hq (6)SCR (1)

SWR (1)

NWR (5)

OR (9)

WSF (25)

54 NCR (2) $190,747

ER (1) $120,000

Aviation (1)

$128,000

HQ (3) $88,250 OR (1)

$1,472

NWR (1) $30,000

WSF (10)$1,053,222

$1.6 million

Retaliate(7)

Race/Com-bined(8)

Other(4)

Disabil disc/accm

(19)

Sex disc/ harass (16)

54 Claims

Retaliate(1)

$128,000

Other(1)

$1,000

Race/Com-bined (3)$127,000

Disabil disc/accm

(6) $561,000

Sex disc/haras

(8) $794,000$1.6 million

(19)

WSDOT Civil Rights/Employment Law Claims Six Years: FY 1998-2003

What is the trend in these cases?

54 Claims Filed19 Claims Paid

Over six years, three cases (17%) with payments over $150,000 accounted for $.9 million (56%) of total liability

34

10

7

17

6

8

6

0

3

6

9

12

15

18

98 99 00 01 02 03Fiscal Year

No. Filed

97-99 = 16 claims

99-01 = 15 claims

01-03 = 23 claims

$0.09

$0.02

$0.60

$0.73

$0.09 $0.09

$0.00

$0.10

$0.20

$0.30

$0.40

$0.50

$0.60

$0.70

$0.80

98 99 00 01 02 03

Fiscal Year

$ Paid

97-99 = $.2 mil

99-01 = $.7 mil

01-03 = $.7 mil

35

Name Reg Loss Liability Theories/Allegations AmountsDelaney, Michael

WSF 6/8/00 A mildly retarded part-time janitor (since 1992) was accommodated by eliminating some essential job functions and working with job coaches. On-going performance concerns not well documented. Sought full time in 1995, but WSF stated he could not meet the essential job functions and offered to hire a consultant to evaluate him. His Counsel requested not to do this and WSF acquiesced. Continuing WSF efforts to accommodate him were to no avail. The court denied a summary judgment dismissal motion. Settlement included his termination of employment, a permanent bar on future employment with DOT and a bar from state employment for a 5-year period. Settled in FY 02.

Prayer $2,025,000

Settled $401,408

Pace, Mary

NCR 6/26/98 Plaintiff female plus 3 candidate promoted to Maint Tech 3 as a heavy equipment operator in 1996, after her OEO complaint. Her subsequent allegations included: harassment/discrimination by her male supervisors/co-workers through training, meetings and information exclusions; job reassignments to other male employees; and unwarranted criticism/discipline because she was a woman. A mid-98 OEO complaint took 9 months to investigate, and 3 employees received written reprimands from the RA. Settled in FY 02.


$175,000

Moore, Teresa

WSF 12/1/94 A female assistant engineer was terminated in 1998 for a pushing attack on a stairway against a co-worker whom she alleged had her girl friend’s car towed from the employee parking lot. Her allegations included wrongful discharge (other male employees not discharged in the past for assault) and ongoing civil rights retaliation, discrimination, harassment, and hostile work environment charges. OEO investigators concluded plaintiff’s contentions were legitimate. Settled in FY 01.


$320,000

WSDOT Civil Rights/Employment Law Claims Six Years: FY 1998-2003

Details on 3 > $150,000 Cases

DRAFT-CONFIDENTIAL WSDOT Civil Rights/Employment Law Claims

Six Years: FY 1998-2003

Reducing Exposure to WSDOT Civil Rights/Employment Law Liability Payments

• WSDOT has experienced an upward trend in both claims filings and in the amount paid for these claims.

• Limited liability exposure tends to drive large settlements because of the attorney fees exposure and only three cases accounted for $.9 million (56%) of the total $1.6 million paid.

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WSDOT should consider taking the following initiatives to improve performance and reduce liability

• Review diversity training requirements and/or emphasis for adequacy.

• Provide management emphasis to ensure employee complaints are promptly investigated and appropriately acted upon consistent with WSDOT policies.

• Continue to focus attention on the periodic review and, as necessary, application of progressive corrective/disciplinary actions for current employees.

DRAFT-CONFIDENTIAL

37Reducing exposure to WSDOT civil rights/ employment law liability payments

April 5, 2004 AG Risk Summit NotesCivil Rights/Employment Law Issues

38

Attachment 1 – Exec Tort Info Website

Attachment 1Executive Tort Information Website

The goal of this website is to provide the WSDOT senior leadership team, together with a limited number of WSDOT executives, with current information on WSDOT tort lawsuits and claims assigned to the Office of the Attorney General (OAG) for handling. Security relative to this information is of paramount importance as it is planned as a robust and “dynamic” risk/case management communications tool between these two agencies, as well as the Office of Financial Management’s Risk Management Division. A static pilot test Website is currently available to a limited number of participants with the below menu options, and the active site is under development for interactive use by mid-2004.

Home Page Top Five Lawsuits

All OAG Handled WSDOT Claims

Comments to OAG Claims Trends

Case 1 Case 2

Cases on Appeal New Claims Summaries

WSDOT Automobile Liability Trends

Case 3 New Lawsuits Summaries WSDOT General Case 4 Upcoming Trials Liability Trends Case 5 Statistical & Caseload WSF Trends

Other Priority Lawsuits Summaries Links Under Construction All WSDOT Lawsuits Risk Management Executive Decisions Summit Documents

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