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.