Insurers file counterclaims against Wal-Mart in Tracy Morgan settlements

By Greg Grisolano, Land Line associate editor | Monday, November 16, 2015

The legal battle between retail giant Wal-Mart and a group of insurance companies over payouts stemming from a fatal crash involving one of the company’s tractor trailers and actor-comedian Tracy Morgan is heating up.

At issue are claims arising from the June 7, 2014 fatality crash involving Wal-Mart driver Kevin Roper and a limousine van carrying actor and comedian Tracy Morgan and six others. One passenger, comedian James “Jimmy Mack” McNair, died as a result of the collision and all the other passengers in the limousine sustained injuries. Wal-Mart announced a settlement with Morgan and other limo passengers on May 27, and with McNair’s family in January. Terms of the settlements have been kept confidential.

In October, Wal-Mart filed suit in Benton County, Ark., Superior Court against six insurance providers – Liberty Insurance Underwriters Inc.; The Ohio Casualty Insurance Co.; QBE Insurance Corp.; St. Paul Fire & Marine Insurance Co.; The Travelers Companies Inc.; and XL Insurance America Inc. – for bad faith and breach of contract for failing to reimburse the company after it reached confidential settlements with Morgan and other victims and their families.

A day after Wal-Mart filed suit in Arkansas, Ohio Casualty and Liberty Insurance Underwriters filed their own claim against and three of the other insurers in New Jersey Superior Court, alleging among other things that the settlement amount of the Morgan lawsuit was unreasonable, or that Wal-Mart provided insufficient documentation to the companies to justify the amount, and that any monies used to settle punitive damage claims asserted in the Morgan lawsuit would be by definition, uninsurable.

The retailer filed a motion to remand the New Jersey litigation to federal court, and seeks to reclaim costs and attorneys’ fees for having to defend itself.

On Monday, attorneys for the St. Paul Fire & Marine Insurance Co., and the Travelers Companies filed their answers to the Arkansas suit, alleging among other things that Wal-Mart did not cooperate with the companies nor did they obtain consent to the settlement before agreeing to terms.

According to Wal-Mart’s claims, the defendants acted in bad faith by making “harassing and pretextual demands for more and more information” as part of what they allege was an intentional scheme to avoid paying the claims.

According to an investigation by the National Transportation Safety Board, the failure of Morgan and other passengers in the limo to wear seat belts contributed to the severity of their injuries when the vehicle was rear-ended by Roper’s tractor-trailer. None of the passengers in the back of the 10-seat limo, nor the driver, were wearing seat belts.

The NTSB report also stated that Roper had been awake for at least 28 hours prior to the crash, the fatigue from which resulted in his delayed braking to avoid traffic that was slowing and stopping in an active work zone. Immediately before arriving in Delaware for work, Roper had driven more than 800 miles from his home in Georgia to the distribution center, where he reported for duty without rest, the NTSB investigators stated.

In September, Roper’s attorney filed a motion in New Jersey court asking for criminal charges against his client to be dropped because he believes the level of media coverage has made a fair trial impossible. He faces one count of death by auto and four counts of assault by auto in connection with the crash.

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