Domino's 60 percent at fault for driver accident
By Sharon Brooks and Kevin King
As the school year begins and young people look for part-time employment, a fatal accident in 2012 and the resulting lawsuit could cause jobseekers to think twice about accepting a position as a delivery driver.
A recent civil suit and an investigation by The Examiner found that in Texas, if you or a child who you insure is driving a personal vehicle for work to deliver pizzas, newspapers, court documents or anything at all, you are likely not covered in the event of an on-the-job accident. Josh Balka, 21, of Beaumont thought he was covered but found out much too late that was not the case.
Balka’s problems started when he went to work at Domino’s Pizza at 240 Dowlen Road in Beaumont. A low-wage worker who relied heavily on tips, Balka said he was considered one of the fastest drivers at the store, even being commended by management for his delivery time. He said he was thrilled to get the job but had no idea what tragedy would follow and how seriously it would affect his future.
Aug. 11, 2012, Balka set out to deliver a pizza on what he described as an average workday. On the fateful evening, rain beat down on the pavement as he traveled southbound on Major Drive in Beaumont. It was about 7 p.m., and the intermittent precipitation pooled on the road’s surface. Balka was driving approximately 55 mph down Major in his 2002 Ford Explorer on a bald tire with “absolutely no tread,” according to the accident report. When he encountered the standing water on the road, he hydroplaned and lost control of his vehicle, his SUV swerving headlong into oncoming traffic. Balka’s Explorer collided with a 2011 Honda Accord carrying Dr. Ruth Christopher, 65, and her husband, Devavaram Christopher, 70.
Balka said he doesn’t remember the details of the accident. He only remembers waking up in the hospital. While Balka said his injuries were substantial — four fractured vertebrae, a ruptured spleen and a punctured lung — his suffering was overshadowed by what the Christophers would go through.
Ruth Christopher, a doctor and Christian missionary, clung to life for hours but ultimately died as a result of the accident having suffered multiple ruptured organs, which lawyers described in closing statements as being “turned to mush.” Devavaram Christopher survived but suffered a permanent traumatic brain injury making him unable to care for himself, struggling with the most basic of tasks. Physical therapist Raghurami Reddy, Ruth Christopher’s brother, cared for Mr. Christopher for weeks on end, helping him to regain his memory using photographs during his stay at the hospital. He was initially unable to identify his own wife. YouTube videos documenting Mr. Christopher’s recovery show him even unable to remember the death of his own mother, who died many years prior to the accident. The educated businessman turned missionary who once traveled the world administering aid and ministering the Christian faith no longer possessed the reading and writing skills of an elementary school student and had to undergo toilet training at the age of 70.
As for Balka, after a week-long hospital stay and weeks of recovery, he said he attempted to return to his job but that the Domino’s Pizza store owned by MAC Pizza Management Inc. told him they had “already replaced” him.
Balka, who said he had no medical insurance and whose auto insurance refused to cover the accident, now has thousands of dollars in outstanding medical bills and could be stuck with more than $3 million in liability per a jury’s ruling in the ensuing civil suit that resulted in a $32 million verdict, reportedly one of the largest settlements against Domino’s ever awarded. Balka was found 10 percent responsible for the accident, MAC 30 percent responsible and Domino’s corporate 60 percent.
However, according to Texas Doctrine of Modified Joint and Several Liability laws, “in distributing the financial liability of multiple defendants in a personal injury case: each defendant who is less than or 50 percent at-fault for the plaintiff’s injury can only be held responsible for paying their percentage share of the damages, but if any defendant is found to be anything more than 50 percent at-fault for the plaintiff’s injury, that defendant can be held responsible for paying the full amount of the damages.”
Paul “Chip” Ferguson, the attorney representing Reddy, confirmed that the jury’s findings made Domino’s responsible for the full amount of the damages. He also confirmed that MAC settled out of court before the trial began, which Ferguson said “discharges their 30 percent (responsibility).” In the settlement, MAC specifically excluded Balka, Ferguson added.
Although Ferguson said that he would most likely not pursue Balka as a “primary source” of responsibility for the damages, he did suggest that Balka should seek legal counsel.
“There are a lot of very interesting issues,” Ferguson said. “(Balka) thought he was represented by council up until the first day of trial, and then Domino’s basically left him hanging. He might have some right of relief against Domino’s for that.”
Balka said attorney James Ray of Daw & Ray Law Firm out of Houston gave him the impression that Ray would not only represent Domino’s but Balka as well.
“He said I would be with him and we would go into the suit all together,” Balka said. But when it came time for the trial, Balka said that Ray sang a different tune.
“He said, ‘You’re by yourself,’” Balka said.
And so the blame game began.
Tim McIntyre, vice president of communications for Domino’s Corporation, said that it was his understanding that franchisees were required by contract to have coverage such as an umbrella policy or excess liability coverage, and that Domino’s carried such a policy at their company-owned stores. Unfortunately for Balka, no such policy protected him as a MAC Pizza Management employee. MAC Pizza Management did not return calls by The Examiner. Ferguson explained MAC’s position in the case when it came to insurance coverage of its drivers, however.
“(MAC’s) position is … their policy of insurance did not cover their drivers,” Ferguson said. “That was their stated position at the courthouse when we started. I think what the contract says is that MAC has to provide a first layer of insurance for Domino’s, but the MAC people were clear from moment one that they did not have any responsibility under the insurance policy for Josh Balka.”
Without insurance from his employer to rely on, Balka had to fall back on his own personal auto insurance policy for coverage. Balka said he was insured on his mother’s minimum liability policy through Gramercy Insurance Company administered by Atlantis Underwriters Insurance Company and sold by AMTEX. Calls to AMTEX revealed that Atlantis Underwriters Insurance Company is no longer in business. However, AMTEX sales agent Mercedes Vargas said it is standard operating procedure for agents to offer customers a commercial policy when they mention that they will be using their vehicles for commercial use. She added that while she was not the agent who sold the policy to the Balkas, if a customer admitted to using a vehicle for business purposes and opted out of commercial coverage, she would refuse to sell them anything but a commercial policy.
“They are more expensive,” Vargas said. With a commercial policy you go from paying $40 (per month) to $150 to $200 (per month). Anytime someone tells us they are going to be using their vehicle for commercial purposes, we let them know that they cannot purchase just a regular liability policy because it won’t cover them in case of an accident. I’m not sure if his mother opted out of it or failed to inform the agent.”
Vargas added that a customer could easily just ask for a liability policy without mentioning that they would be using the covered vehicle for business purposes.
But according to Balka, his mother did inform her AMTEX agent who sold her the policy that Balka was using his Ford Explorer for business purposes as a pizza delivery driver.
Balka said the agent failed to inform his mother, Melissa Balka, that she would need a commercial insurance policy for him to deliver pizzas. Like most people, he said, his mother trusted her insurance agent and did not bother going over her policy with a fine-tooth comb. But perhaps she should have taken a closer look. In fact, the liability policy she purchased specifically outlined coverage exclusions for vehicles “being used to carry property for a fee or any compensation, including but not limited to delivery of goods, either on a wholesale or retail basis, such as food, publications, money or flowers.”
Jerry Hagin, a spokesperson for the Texas Department of Insurance, said that although it is good customer service, there is “no statutory obligation” outlined in the insurance code requiring an agent to recommend or mandate a commercial policy.
And so with MAC and Domino’s washing their hands of Balka and the responsibility to protect their employee in the case of an auto accident, Reddy was forced to pursue legal action to help pay for his sister’s funeral costs, medical bills, and other expenses for his permanently disabled brother-in-law, for whom he now has guardianship.
More than a year has passed since the tragic accident that claimed the life of Dr. Ruth Christopher and forever altered Devavaram Christopher’s way of life. Reddy has already remodeled his home in preparation to care for his brother-in-law for the rest of his life, if need be. And as for Josh Balka, he will be paying the rest of his life as well, in more ways than one. There are lingering emotional and physical effects from the accident and its aftermath, and those hospital bills will hang over his head for a long time to come.
As Domino’s prepares to appeal the multi-million-dollar case against the company that might forever change the way delivery businesses operate, eyes have been opened as to just how important it is to remain vigilant and attentive to detail when it comes to reading the fine print as both an insured driver and an employee.