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Published: Wednesday, 12/29/2010

Ohio Supreme Court opens way for more payouts in Bluffton bus crash

COLUMBUS -- Nearly four years after a bus crash injured dozens and killed seven people -- including five members of the Bluffton University baseball team -- the Supreme Court of Ohio has opened the door for civil litigation to proceed.

In a 5-2 decision released Tuesday, the Supreme Court ruled that the university's insurance policies extend coverage to those affected by the March 2, 2007, crash on a Georgia highway. The ruling means that as much as $21 million more in insurance money will be available to pay claims.

"It means that those who have suffered injuries are now entitled to move forward," said Toledo lawyer Steven R. Smith, who argued the case on behalf of the estate of David Betts. "This means the money would be available."

The issue argued before the Supreme Court in September was whether Bluffton University "hired" the bus when it contracted with Ottawa-based Executive Coach Luxury Travel, and whether the team's coach gave "permission" to use a company driver to get the team to and from a Sarasota, Fla., tournament.

Previously, the Allen County Common Pleas Court and the 3rd District Court of Appeals in Lima disagreed that the university's insurance companies were responsible for paying the claims. Tuesday, in a seven-page opinion written by Justice Paul Pfeifer, the high court reversed that decision.

"The [insurance companies] contend that they never intended to provide coverage for someone like [driver Jerome] Niemeyer, whom they consider an unforeseen third party. We consider this contention disingenuous," the justice wrote. " … We are not persuaded by the contention that the driver of a bus that Bluffton rented from a company in the business of renting buses is an unforeseen third party, when a clause in the insurance policy covers 'anyone else' driving a hired auto."

According to attorneys representing those affected by the crash, the Supreme Court applied the "plain, ordinary meaning" of the words "hire" and "permission" when reading the contracts signed between the insurance companies and the university. That interpretation means that families can access money from both the insurers of the bus company and the university's insurance companies as well.

Bluffton University, which was not a party in the case, declined to comment on the ruling.

"What this decision means is that there's an additional pool of money that's been made available to the victims of this crash," said James Yavorcik, a Toledo lawyer who represents injured player Tim Berta. "The decision is significant because it stands up for the principle that the terms in an insurance policy should be given their common meaning. That's important for all of us."

Mr. Yavorcik said his client declined to comment on the ruling.

Five university ballplayers were killed when the bus driver apparently mistook an I-75 exit ramp near Atlanta for the continuation of a high-occupancy vehicle lane early on that March morning.

The bus exited the highway at an estimated 65 miles per hour, crossed a street intersection at the top of the ramp, struck a barrier on the far side, flipped over the barrier, and landed 19 feet below back on the highway.

In addition to Mr. Betts, Bluffton students Tyler Williams and Scott Harmon of Lima, and Cody Holp of Arcanum, were pronounced dead at the scene. Also killed were Mr. Niemeyer, the bus driver, and his wife, Jean, of Columbus Grove. Zachary Arend of Oakwood died a week later.

Twenty-eight other players and team staff members were injured, seven of them seriously. Several lawsuits have been filed in Georgia, where the crash occurred, but were put on hold pending outcome of the Ohio case.

Mr. Smith said that the insurance companies can ask the Supreme Court to reconsider its decision.

Gary Nicholson of Galla- gher Sharp in Cleveland, which represents one of the supplemental policy holders, Federal Insurance Co., said that the ruling is under review and would not comment further.

In March, 2009, the state of Georgia paid $3 million, the maximum legal settlement, to the crash victims. State tort law limits the state's liability to $3 million per occurrence, no matter how many people were hurt, according to transportation officials.

John Betts, the father of David, said Tuesday that civil litigation was just one of the routes that his family has traveled down since March, 2007.

While recognizing the importance of the Supreme Court's decision, Mr. Betts said it is the other avenue -- one involving changes in laws governing motor-coach safety -- about which his family is more passionate.

The Betts family members are among those nationally who are championing legislation that would require safety belts in buses, as well as mandate stronger roofs and less glass. It is this law that is in the works, one that Mr. Betts said will help make more sense of the tragedy.

"You just continue to push on. If you look at the fuel for the fire, it becomes rather obvious. And the fuel for the fire started when I had to identify my son at a morgue in Atlanta. That's fairly powerful," he said.

"…We always knew there was a legal route and a legislative route," he added. "We're much more passionate and much more interested in the legislative route."

Contact Erica Blake at: eblake@theblade.com, or 419-213-2134.



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