Eighty-six current and former members of the Sigma Phi Epsilon fraternity at Yale are the targets of two new lawsuits over a fatal collision at the 2011 Harvard-Yale tailgate that left one woman dead and two others injured.

Thirty-year-old Nancy Barry, of Salem, Mass., was killed in November 2011 when a U-Haul truck driven by Brendan Ross ’13 — heading toward the tailgate area assigned to the fraternity at the Yale Bowl — accelerated and swerved out of control. Sarah Short SOM ’13 and Harvard employee Elizabeth Dernbach were also injured.

Last month, Short and Barry’s estate filed new suits, identical but separate, individually naming all the students who were members of the Yale chapter of the fraternity at the time of the crash, regardless of whether or not they were present at the tailgate. With Short’s medical expenses exceeding $300,000, Short’s attorney Joel Faxon said he expects a jury to award a sum to Short reaching into seven figures. Paul Edwards, who represents Barry’s estate, said he is looking to recover several million dollars over the death.

The new lawsuit, filed in Connecticut Superior Court in New Haven, is a result of a unique relationship between the national Sigma Phi Epsilon fraternity and the local Yale chapter.

According to Faxon, although Short initially sued the national Sig Ep fraternity in 2012, National Sigma Phi Epsilon Director of Risk Management Kathy Johnston said in a deposition that, legally, the local chapter and national association have nothing to do with each other. Furthermore, the national fraternity’s insurance – Liberty Mutual of Boston – does not cover actions by the local chapter that are not in compliance with the national fraternity’s policies. This, Faxton said, led Short to sue the local chapter itself.

“[The national fraternity and its insurance], to try to save money, are trying to distance themselves from the case,” Faxon said. “[The local chapter] has been thrown under the bus … by the national fraternity, so the only remedy that our client has is to sue the local fraternity.”

Faxon said that in his 20 years of litigation, he has never seen such an arrangement, as national fraternities typically come to the aid of their local chapters. Because of Connecticut law, which defines the chapter as a voluntary association, the chapter can only be sued by way of its individual members.

Seven current and former members of the fraternity declined to comment on the case. Several others did not respond to requests for comment. Johnston also did not respond to request for comment.

“I have no doubt that each and every one of [the members in 2011], in paying dues to the national organization, had an expectation that the national organization was going to get them the insurance coverage they needed and was going to stand with them,” Edwards said.

According to documents filed in Connecticut Superior Court Monday, 84 of the defendants are now represented by Jeremy Platek, an attorney based in White Plains, N.Y.

Edwards said Platek’s representation of the defendants is likely a sign that the national fraternity is beginning to take greater responsibility for the case.

“I would be surprised if all the fraternity members had collectively gotten together and decided to hire one lawyer on such short notice,” Edwards said. “The odds are very high that he was appointed to represent them by the national fraternity.”

Attorney Eric Smith, a colleague of Faxon’s who is also working on the case, said the defendants were notified in late November and early December. The first of the defendants made their initial court appearance on Jan. 6, and the last will do so today.

According to Edwards, though, the cases are likely to remain in the court systems for a number of years.

With these two new lawsuits, the 2011 tailgate collision has now sparked a total of four lawsuits — two from Short, and two from Barry’s estate — against not only the fraternity and its members, but also the University, the city of New Haven and other parties.

Faxon said he expects the four lawsuits to be potentially joined into one in the near future.

In the event of an award of damages or settlement, Faxon said, the fraternity members would likely pay through their parents’ homeowner’s or automobile insurance. Faxon predicted that the defendants’ insurance agencies would in turn sue the national fraternity and Liberty Mutual Insurance. Eventually, he said, the national association would likely take responsibility for any damages awarded by a jury, but the timeline for such an event remains to be determined.

“In the end, there’s not going to be any difference in the outcome of the case,” Faxon said. “[Short] would get the same compensation whether or not we had all these people involved.”

Edwards said he hopes the case is settled before trials are required for each of the defendants. He added that insurance companies often do not come to the settlement table until the eve of a trial.

Short first filed a lawsuit over the incident, naming Ross and the U-Haul company as defendants, in April 2012.

Correction: Jan. 21.

A previous version of this article incorrectly stated that Kathy Johnston is the University Director of Risk Management. She is the national Sigma Phi Epsilon Director of Risk Management. It also stated that the national fraternity’s insurance — Liberty Mutual of Boston — does not cover actions by the local chapter. In fact, the insurance does not cover actions by the chapter that are not in compliance with the national fraternity’s policies.

 

  • ldffly

    What a horror.

  • Zing Zang

    Fry’em

  • ethanjrt

    In case you’d forgotten what a convoluted mess our justice system can be.

    =======

    With these two new lawsuits, the 2011 tailgate collision has now sparked a total of four lawsuits — two from Short, and two from Barry’s estate — against not only the fraternity and its members, but also the University, the city of New Haven and other parties.

    Faxon said he expects the four lawsuits to be potentially joined into one in the near future.

    In the event of an award of damages or settlement, Faxon said, the fraternity members would likely pay through their parents’ homeowner’s or automobile insurance. Faxon predicted that the defendants’ insurance agencies would in turn sue the national fraternity and Liberty Mutual Insurance. Eventually, he said, the national association would likely take responsibility for any damages awarded by a jury, but the timeline for such an event remains to be determined.

    “In the end, there’s not going to be any difference in the outcome of the case,” Faxon said. “[Short] would get the same compensation whether or not we had all these people involved.”

  • aloob

    Perhaps in this case the attorney could have found a better metaphor:
    “[The local chapter] has been thrown under the bus … by the national
    fraternity, so the only remedy that our client has is to sue the local
    fraternity.”

  • Guest

    86 members fit into one car? come one. Sue everybody! sue everybody who was within 6 degrees of separation from the incident.

    • gtout guest

      No not 6 degrees. 2 degrees are enough. They made bad judgements.

      • Guest

        By becoming members of a fraternity? I hardly think any of those kids, when signing onto Sig-Ep, were making bad judgement calls. The responsibility of a small group doesn’t implicate everyone who was a member of the organization. If a member of the frisbee team got into a car accident on the way to practice, should the victim be able to sue every member of the team?

        • trollalert

          You are absolutely correct.

        • http://BobOnGolf.com Bob Pegram

          From what the article says, the apparent problem is the way Connecticut laws are written. The attorney had no other option than to sue the individual members. The Connecticut law needs to be changed to make sense.

          I was in the Sigma Phi Epsilon fraternity as was my father. At least they are not suing me or my father’s estate. That would make as much sense … which is no sense whatsoever.

  • Jeffrey Gus Felahi

    What is the point of joining a national fraternity if when trouble arises they disown you? I must have a different definition of brotherhood.

    • 305native

      You do realize the depiction of the national fraternity’s lack of support is completely false. Otherwise the “journalist” would have actually contacted the headquarters or chapter members to ask them for a quote.

      • Jeffrey Gus Felahi

        A reply to my comment without a real name will be ignored. My feeling is that with out a name or a photo your credibility is questionable.

        • Guest

          He’s right though. The national fraternity is in fact supporting them through this. I don’t want to name sources because they are in the middle of an active lawsuit, but the national stepped in immediately on this one. The supposition the authors of the article makes that they didn’t wasn’t based on any research or inquiry.

  • Jeffrey Gus Felahi

    I will do my own research, I thought i could trust a publication coming from Yale as being accurate. Why is no one calling them out on this ? I hope this is not the case but I am tired of people with their own agenda attacking fraternities.

  • Jeffrey Gus Felahi

    My apologies for over-posting, but Why would you need a Uhaul truck at a tailgate party ?

    • Guest

      http://yaledailynews.com/blog/2011/11/15/alcohol-reinstated-at-college-tailgates/

      They used to store food an supplies in them, like grills, kegs, etc and serve people out of the back of them. 40 of them would line the student tailgate and partygoers would hop around them. The practice was generally used by every organization and, in fact, was used by university sponsored organizations, such as the residential colleges and on campus clubs, as well. Uhauls were uniform and easier then finding cars to use.