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Stephen J. Lee, Forum News Service, Published December 14 2013

Lawsuit settled in 2010 crash near Grand Forks that killed 2 children

GRAND FORKS — Just a week before they were scheduled to go to trial, the parents of two children killed in a 2010 crash west of Grand Forks settled a lawsuit with the truck driver, his employer and United Parcel Services.

The settlement of the lawsuit brought by Kevin Boyer Jr. and Catana Boyer against driver Steven Nelson and Simplex Leasing, both of Jamestown, and UPS, was filed Tuesday in state district court in Grand Forks.

The suit, filed two years ago, was set for trial next week before a jury.

On Dec. 22, 2010, Kevin Boyer Jr. was driving the family’s van when it was broadsided by a semi pulling empty trailers driven by Nelson, who ran a red light on U.S. Highway 2 at the intersection at the Grand Forks International Airport.

Kaylee-Jo Wyatt, 8, the daughter of Catana Boyer, and Kevin Boyer III, 5, the son of the Boyers, were killed. The couple’s 3-year-old son and Kevin Boyer Jr. were injured. Catana Boyer was not in the van.

The Boyers sought personal injury damages, including medical and emotional costs, as well as punitive damages, against Nelson and Simplex Leasing, which owned the truck and hired Nelson, and UPS, which owned the double-trailer Nelson was towing.

The settlement’s financial terms were not disclosed in court documents.

Kevin Boyer Jr. declined to comment Friday. Attempts to contact the Boyers’ attorney, Patrick Weir of Fargo, were unsuccessful. He was out of the office Friday.

In court documents, the Boyers listed about $116,000 in damages for medical and funeral expenses. Kevin Boyer and his three-year-old son were hospitalized after the crash.

A jury would have been directed to determine how much in compensatory damages, not only for economic damages, but noneconomic damages such as pain and suffering for the loss of the two children and injuries to the three-year-old boy and Kevin Boyer Jr., according to court documents.

The Boyers divorced in 2011, agreeing to split any settlement and put a portion of it aside for their son. According to court documents filed by the Boyers, the boy’s injuries will affect him for years.

In rulings filed Dec. 2, Judge Lawrence Jahnke had allowed the Boyers to seek punitive damages from Nelson and Simplex but excluded UPS from any punitive damages, ruling the company’s control and authority over Nelson’s actions was too tenuous.

In a pretrial statement filed in court, the Boyers said Nelson and Simplex had admitted their liability in the accident, but that UPS denied any liability.

Compensatory damages in a wrongful death suit can take into account the expected lifespan of the children who lost their lives, which in this case were said to be more than 70 additional years, according to court documents.

“North Dakota juries are known for awarding less in damages than other states when it comes to pain and suffering,” said Tom Omdahl, a Grand Forks attorney who works in personal injury cases.

Punitive damages, also called exemplary damages – awarded to punish or make an example in a case where intentional bad acting is determined to have happened – are not common, Omdahl said.

North Dakota, as do a dozen or more states, limits punitive damages. In North Dakota law, the cap is twice the amount of compensatory damages awarded, or $250,000, whichever is greater. State law also prohibits juries from being told about that limit on punitive damages before they make their decisions. Instead, it leaves it up to the judge to later limit any punitive damages awarded to the statutory levels.

Omdahl said it’s typical for such personal injury lawsuits to be settled “on the eve of a trial,” as the defendants decide to avoid a jury’s decision.