An additional lawsuit has been filed over the Kansas City triple fatality apparatus accident, this time by the apparatus driver, IAFF Local 42, and the plaintiffs in the three prior lawsuits, claiming the city is responsible for the $32 million judgment that was awarded against the apparatus driver. There is a lot to unpack with this one as a high stakes strategic chess match is underway.
Let’s start with the accident that occurred on December 15, 2021 while Pumper 19 was responding to an alarm. Driving Pumper 19 was firefighter Dominic Biscari, who ran a red light, collided with an SUV, struck several parked cars, and came to rest in a building. The passengers in the SUV were killed as was a pedestrian. The building partially collapsed and was destroyed.
Three suits were filed by the families of the deceased and the building owner naming the city and Biscari, each suit alleging the tort of negligence. Why is that important? We will get to that, but keep in mind that negligence is a tort. The city initially provided Biscari with legal counsel, but apparently decided to withdraw that representation leaving him without counsel. The decision to withdraw legal counsel for Biscari prompted Local 42 to file a grievance against the city. The grievance alleged the city has always provided legal counsel under circumstances like this, and the city’s failure to do so breached the collective bargaining agreement (breach of contract).
Biscari represented himself pro se through the proceedings, and consented to the case being referred to court-approved arbitration. After hearing the evidence, the arbitrator recommended Biscari pay the plaintiffs in the three suits a total of $32 million in damages. On November 1, 2022, the court confirmed the arbitration award, and entered a $32 million judgment against Biscari personally. Last week came news that the city had approved $1.84 million to settle the tort claims of the plaintiffs in the three tort suits. The $1.84 million represents that statutory maximum the city could be liable for under the state’s tort claims act.
The latest twist comes as Biscari, Local 42, and the plaintiffs in the three earlier suits jointly filed suit against the city alleging breach of contract for not providing Biscari with legal representation. The harm (damages) resulting from the breach of contact is the $32 million awarded by the court against Biscari. This raises two equally interesting issues.
First, how do the plaintiffs in the earlier suits have standing to sue alongside Biscari and Local 42 in a breach of contract action? According to Missouri News, Biscari assigned 90% of his breach of contract claim against the city to the plaintiffs in the earlier suits. The new lawsuit contends that the assignment of claims gives the accident victims – the plaintiffs in the earlier suits – a legally cognizable stake in the outcome of the breach of contract suit.
Second, the tort claims caps that have the potential to limit the city’s liability to $1.84 million do not apply to breach of contract actions. Tort claims caps apply to tort claims (like negligence…) not breach of contract. Hence, it is possible the city could be on the hook for the entire $32 million judgment.
A copy of the complaint is not available right now, but will be posted here when it becomes available. Don’t miss our Fire Law Roundup for November 14, 2022 as this case will certainly be one we will be discussing at length. Join us at 1PM on November 14 on YouTube Live.