T h e C o t o p a x i a n P r e s s
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This page will feature the details of Ed Reigel's backing accident on October 9, 2006.
I realize that a restructure of this page is needed. It is currently quite a mess, and I hope to present the info here in a concise manner someday. But for now...
The Samuria Saga
On Oct. 9, 2006 Ed backed the State loader, into my 1986 Suzuki Samurai.
His initial comment "at least it still runs" led me believe that he had no intention of addressing the issue and so I contacted the Colordo State Patrol, to report the accident, in where a SGT Holt, via a dispatcher, directed me to contact the State's Risk management division via my supervisor, to report a claim, which I did. McMillan Claim Service handles those claims.
CDOT, or rather the State of Colorado, has refused to pay for the damages. Their refusal is based on their interpretation of the law, specifically that the loader is not a motor vehicle and thus does not meet the requirement to waive the Government Immunity Act.
Although I did not have an accident, I was required to fill out a variety of accident report forms and provide and Employee Statement of Accident.
Rather than repeat everything in a second place, here is the link to my Employee Statement of Accident, where in I was required to state the events of the accident, what I thought caused the accident, who was to blame, and how it might have been prevented.
A day or so after the accident I placed a call to my supervisor (TMIII), Chuck Decker...he wasn't in and I was forwarded to Chuck Bennett (LTC OPS I), also a supervisor (actually higher in the CDOT hierarchy than C. Decker, and to some in CDOT, this hierarchy thing is very important, so I'll mention it here). In our conversation about the accident, Chuck Bennett took offense at the way I was speaking to him. In response to my comment that we did not have a designated parking area, I believe he said that the Superintendent could make us park outside of the yard, and I said that was irrelevant...and that made Chuck angry. I asked Chuck where we were supposed to park in that case and he said he didn't care, that wouldn't be his problem.
(btw, The irrelevance is that no matter where a vehicle is parked, the operator is responsible for his driving. This in ingrained upon us in all of our training. Also, I was immediately struck by the likelihood that if I was denied parking on State property then so too would all other State employees be likewise denied. I thought that this was very unlikely to occur.)
Bennett demanded that I come to his office ASAP, and gave me a time of 45 minutes to complete this approximately 75 mile drive. I told him that I would need at least an hour and a half, and he conceded to this. Hey, I made it but only because I hit all the lights on green...except a couple in Pueblo.
It seems sometimes I come across wrong to some persons in conversations....or demeanor...and it isn't intentional. Side bar: back when I was a young wild man, I went to bars on occasion. Often I would for no reason apparent to me be accosted for some inferred slight. This got old. When I turned 21, going to bars lost a lot of their thrill, so I pretty much stopped going to them, and hence, got along better with those types of folks. I usually try and stay out of the office....
In the following meeting, with Chuck Decker present, C. Bennett told me that I should not have an attorney write RISK management a letter indicating I would sue for damages. He said it would make them mad, and that it would make him mad. This came up because I had mentioned to Ed that I imagined a lot of times that's what it took to get paid in a case like this. According to C. Bennett, Ed had called him and told him I was going to sue the State.
Chuck B. said I was being a smart-ass (or something to that effect) and he wasn't going to put up with it. I apologized and said it wasn't my intent to upset him.
I could see that Bennett was upset with me. I get upset sometimes too, so I can relate. Sometimes people get upset. It's ok.
However, Chuck B.'s words weighed heavily on me for awhile. In his position at CDOT he has a say on my performance ratings and promotional ratings. He seems like a decent guy. He will get in a truck and help out plowing snow, and that says a lot. All of our current foremen will do that, and I think it's a good thing. So I have quite a bit of respect for Chuck B, and in fact I like both of these guys. However, it appears that I should not speak as frankly with Bennett as I have been, and that's ok too.
I also like what my father used to say; "I'd rather be right than President".
Words to live by.
Chuck Decker said that I needed to write a detailed account of the accident - the Employee Statement of Accident. I complied and this can be viewed at the following link:
My Employee Statement of Accident (You will need to read this page in order to follow along below.)
Afterward, around October 19, I received a letter from McMillan Claim Service, to whom Claims against the State are referred to.
Click here for a copy of that letter.
Within was a form that I filled out and sent by Registered Mail (required) to the State's Attorney General. I included two repair estimates; one from Linder Chevrolet in Canon City, CO for $1745.84, and another from Zimmerman's Body Shop, also in Canon City, for $1070.52.
Here is Zimmerman's estimate: Page1 Page 2
Here is Linder's estimate: Page1 Page 2
In my claim sent to the Attorney General I asked for $1070.52. This of course does not account for any other losses this accident has caused to occur to me. I think Zimmerman's estimate was lower in part because they were quoting salvage body part prices. This is ok with me; I'm not trying to gouge the State here, just wanting to get my Sammy fixed.
On November 16, 2006, at about 12:03pm my wife called me at work and asked if an Earl Leake (pronounced "lake") had called me yet. He had called her at our home around 11:30am and told her that he was with McMillan Claim and had a few questions to ask me before he got my claim going.
I called him at 303-433-6579 and got a hold of him about 12:30pm.
He thanked me for my detailed account of the accident.
He said his recommendation to RISK management would be not to pay my claim. Apparently he had "gotten that claim going" without me! He said it would then be up to them (and according to Chuck Decker's comment at my previous meeting with him and Chuck Bennett, this decision is made by Stacy Stegman- spelling?) to make the final decision on whether or not to pay my claim. He said it would take about 10 days or so for that to happen. My understanding was that RISK would then send me a notification of their decision.
Mr. Leake said that I was not guilty of doing anything wrong, and that Ed was at fault for backing the loader into my vehicle. He said I had a right and good reason at the time to park where I did on the day of the accident. He said while I could have tried to warn Ed that I had no duty to do so. He said that he would include this opinion in his letter to Risk Management.
He said the reason for declining my claim was state immunity, specifically regarding the difference of a motor vehicle and a loader. He said a loader was not a motor vehicle. He gave me a couple of anecdotal stories of how the courts had decided in favor of the state. One story went in favor of the state and another did not. I didn't quite understand why he told me that, but I didn't say anything about it.
Mr. Leake offered to give me the name of the statute containing definitions of state immunity, and I accepted and wrote the CRS item down. He said he was just giving me a heads-up on what he was doing, and said it would be ten days or so till I heard back from RISK management.
I asked him, out of curiosity, why a loader wouldn't be considered a motor vehicle if it had a license plate. Mr. Leake gave an explanation...something about tractors are not motor vehicles but require some sort of license... He said he did not know why they were not considered motor vehicles (when they had a license plate) and that he had not looked into that.
I thanked him for the heads-up and said goodbye.
And then, after a long spell, around December 12, 2006, I received another letter from McMillan, signed by Mr. Leake, that stated they had denied my claim.
Click here for a copy of that letter.
As per our conversation earlier, I awaited the final news from the State's RISK management division.
Well, after months of waiting, and no work from RISK, I called Earl Leake and asked him if I would ever hear from them. This was on January 9 around 3:00pm.
Mr. Leake said that I would not get a letter from RISK, just the one from them.
Earl said the reason for the denial was because the state's loader was not a motor vehicle.
I asked him about an appeal process, and he said yes there was one...I asked what was involved and he said I would need to have an attorney file notice of...(well, sue the state). I talked to him a while about the case law and he said that it was a 50/50 decision. I'll try to blog this more in detail elsewhere, but suffice it to say for now he said I had a shot at making an appeal stick. Once again, as in our previous conversation, he said Ed was at fault and even suggested turning it in to my insurance company. !!! Now it's an option? It was not before when I contacted the State Patrol! Of course that would have been easier for Ed and me but it was not an option!
Earl said that I could talk to a lawyer friend about this and perhaps get an opinion. I told him that I don't run in the same circles as lawyers, apparently. However, later I remembered that three of my neighbors are lawyers.
Anyhow he was very nice & I think I was also. I told him I didn't have a big problem (inferring, I hope, that there are some bad connotations associated with a person that sues their employer) with suing the state....(other than my supervisor had already indicated that I shouldn't and that it would make him mad - and the inference that I see may not be there)....if the outcome would be define what was right.
I told Earl that I wasn't sure if I wanted to be the scapegoat, but that it appeared that if there was one more case law in favor of the claim against the state in similar issues, then his 50/50 decision would be 60/40, and easier for the next guy. Actually, case law already mandates a decision in my favor, and I would think Earl knows this, and that RISK mangament knows this - and they know I can not afford an attorney for a $1K claim. And THIS is the "big picture" case. Most people don't know what liberty is, so it makes their job easy.
So I've got to think about this.
I'll put some of the case law links up here...and insert some comments as time allows. I've put some personal comments on each of these pages.
Law search results
Case Law search results
a loader is a motor vehicle search results
Note: state has dated self-insurance on loader, insurance card in vehicle.