John O'Brien Feb. 25, 2013, 7:30am
WHEELING – A federal judge is sending a car crash lawsuit against Cabela’s back to state court, where the defendants will likely introduce evidence that the plaintiff participated in a 20K walk six months after the wreck.
U.S. District Judge Frederick Stamp, of the Northern District of West Virginia ruled Feb. 13 that Erica Tamburin’s lawsuit against the company, which sells outdoor gear and equipment, should be heard in Ohio County Circuit Court.
The lawsuit was filed in 2011. In it, Tamburin said she suffered injuries to her head, neck, shoulders, back, chest, arms, body chemistry and psyche as a result of a collision in the Cabela’s parking lot in November 2009.
“Tamburin has suffered… a diminishment in her ability to fully function, enjoy life and earn a living and will continue to do so in the future,” the complaint says.
It also said her physical injuries are permanent and lasting in nature, but she participated in a 20K walk at the Ogden Newspapers Half Marathon in May 2010. She completed the walk in 2 hours, 43 minutes and finished 50th out of 173 participants.
The results are online here. Tamburin was 27 years old at the time of the walk.
“I’m very pleased to hear that she’s gotten better and has resumed her normal activities,” said Thomas Buck, an attorney with Bailey & Wyant who is representing the driver of the other car.
Tamburin’s attorney, Shane Mallett, said his client was forced to file the lawsuit because the insurance company would not fully reimburse her for the expenses she incurred as a result of the crash.
Mallett, who says he was aware Tamburin walked the 20K, doesn’t expect it to affect the case. He says evidence of her specific injuries hasn’t been handed over yet.
“West Virginia is a notice pleading state,” Mallett said. “You don’t have to get into specific details when filing complaints.”
Since the main issue in the case so far has been which court will hear it, the two sides haven’t gotten around to specific allegations.
Now that the case has a home in Ohio County Circuit Court, discovery can begin.
“It’s certainly going to cause us to do additional investigation,” Buck said of Tamburin’s 20K walk. “What the overall impact will be in the long run, I can’t predict yet.”
Buck is representing Candy Hawkins, a Pennsylvania woman who allegedly failed to stop at an intersection and collided with a car driven by Tamburin.
In Tamburin’s complaint, Cabela’s was charged with failing to maintain and design safe traffic flow patterns.
Stamp said the defendants did not show that more than $75,000 was in controversy – a threshold that allows lawsuits to be heard in federal court.
“The only evidence presented by defendant Hawkins as to the amount in controversy is the requests for admission offered by the plaintiffs, which ask the defendant to admit that damages have been suffered in excess of the jurisdictional amount,” Stamp’s ruling says.
“However, defendant Hawkins denied these requests and made no such admissions. Accordingly, defendant Hawkins relies on nothing more than speculative and conclusory logical jumps that, because the plaintiffs asked the defendant to admit damages over a certain amount, the plaintiffs must be seeking at least that much.”
Tamburin added that she has suffered annoyance, inconvenience, physical pain, mental and emotional anguish and a diminishment in her ability to fully function, enjoy life and earn a living.
Tamburin’s daughter is also a plaintiff in the case. She has suffered the loss of the love, society, comfort, companionship and services of Tamburin, the complaint alleges.
From the West Virginia Record: Reach John O’Brien at firstname.lastname@example.org.