Coming up empty

Doors slam on an accident victim. Then a $134, 000 State Farm bill arrives.

By TOM ZUCCO
Published July 8, 2007

Walter "Buddy" Shiver with his mother Donna Shiver at their home in Perry. Shiver was paralyzed from the waist down when he was thrown from a truck that his friend was driving in 2004. The Shivers lost their lawsuit against State Farm and now the insurance company is coming after the family for $134,000 in court costs. Buddy's father is in a nursing home because of a massive stroke he suffered a week after the accident due to stress.

[Martha Rial | Times]

PERRY

Donna Shiver spread the documents across the coffee table and tried to figure out where to begin. It was an affidavit from the lawyers acknowledging what everybody in town already knew.

That she and her family have no money.

State Farm knew that, too. But it was still coming after the Shivers for $134, 000.

The window air conditioner in her mobile home struggled with the heat, and Donna Shiver did the same with the forms.

"I just don't understand, " she said, "how we lost."

State Farm has an answer. An impartial jury looked at the facts and made its decision. And Shiver and her son didn't need to lose.

"In this case, it would've been cheaper and easier to pay the claim, " said State Farm spokesman Chris Neal. "Unfortunately, it didn't work out that way.

"Really, nobody won. And that's the sad part."

On the morning of March 10, 2004, Shiver's son Buddy was a passenger in his friend Luis Roca Jr.'s pickup truck. Shiver was 18, Roca was 20, and they were headed to Roca's uncle's house to help him repair his truck.

According to a police report, Roca lost control going into a turn on a dirt road outside of town and the truck rolled over. Although neither was wearing a seat belt, Roca stayed inside the cab and was not seriously hurt.

Buddy Shiver was.

He was thrown from the truck and his spine was crushed, leaving him permanently paralyzed from his chest down. A week after the accident, Walter "PeeWee" Shiver, Donna's husband and Buddy's father, had a debilitating stroke brought on, Donna believes, by the stress.

Now Buddy is in a wheelchair, hooked to a catheter, PeeWee, 52, is in a nursing home, hooked to a feeding tube, and Donna Shiver, 51, a diabetic who makes $40 a shift as a cashier at Pouncey's diner, is trying to figure out how to pay the bills.

A settlement offer

Both State Farm and the Shivers agree on one thing - it should not have come to this. Buddy Shiver was willing to accept a $100, 000 settlement from Roca's insurance company, State Farm. But David Frank, the Shivers' attorney, said State Farm tacked on conditions and terms to the offer. As the judge in the case later agreed, those conditions meant State Farm effectively pulled its offer off the table.

And that, Frank said, forced the Shivers to sue Roca for negligence.

In order to win in court, the Shivers would have to prove Roca was negligent, which is defined as the failure to use reasonable care. "Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances, " Taylor County Circuit Judge James Roy Bean told the jury, "or in failing to do something that a reasonably careful person would do under like circumstances."

If any case seemed like a slam dunk, Frank thought, this was it: The jury would find Roca negligent and make State Farm pay for the medical bills, physical therapy and rehabilitation Buddy Shiver will need for the rest of his life, an amount estimated at $4-million to $7-million.

Frank argued that not only did police ticket Roca for careless driving, but Roca also acknowledged that he had a problem with the steering in his truck, and that he knew he needed to use extra caution because his truck's body was raised a foot above its standard height. Instead, Roca took the turn at about 40 mph, or about 10 mph above the speed limit.

State Farm's attorneys convinced the jury that Roca was not negligent, and the verdict was upheld by a state appellate court.

Buddy Shiver would get nothing. And since State Farm won, it was allowed by law to recover court costs and attorney fees. By mid June, those costs had reached $134, 000.

Buddy Shiver's insurance was limited to the $10, 000 personal injury protection coverage on his mother's auto policy, money the doctors and the hospitals ate up in the first few weeks after the accident. His only source of income is a $643 monthly Social Security disability check.

Everything led back to the papers on the coffee table.

George Rasky and Anthony Russo, attorneys who represented Roca and State Farm, did not return calls for comment. The case is highlighted on the Web site for Rasky's law firm as one of its "challenging cases."

Some see the case as troubling.

"This whole story is Exhibit A as to why Floridians are sick of big insurance companies, " said professor Lee Coppock, a former trial attorney who teaches at Stetson University College of Law. "Push a man overboard and while he's drowning, they State Farm toss him an anchor."

Four days after State Farm tacked an extra $30, 000 to the amount it sought from the Shivers, and a day after a Times reporter began calling jurors and court officials, State Farm reversed itself last month and dropped its request to make the family pay costs.

"But they managed to get their message out, " Coppock said.

State Farm denied that there was any message or that media interest factored into its pullback.

"In this case, we looked at the facts and that there were no assets to recover, " said spokesman Neal. "And he (Shiver) was in our car and was a friend of the driver."

The Shivers' finances, however, were not a late surprise. Buddy Shiver and his father had been receiving Medicaid - federal health insurance for low-income people - for at least a year before the trial.

For Donna Shiver, who's trying to care for both her husband and her son, a larger issue remains.

"The verdict, " she said. "I don't understand it."

The trial begins

Perry has about 6, 800 residents, a water tower with the town's name on it, and the Fair Store, an 82-year-old downtown clothing shop that survived the strip malls and Wal-Mart. Every morning someone from the store rolls a mannequin onto the sidewalk dressed in blue coveralls. The mannequin's name is Roy. No one knows why.

Perry has a median household income of about $27, 000, or about $15, 000 below the state average. It's a Panhandle outpost along U.S. 19 that most travelers pass by on their way to somewhere else.

Pickup trucks in Perry tend to be either very old and carrying melons, or relatively new and tricked-out. The black 2001 Dodge Ram 1500 that Luis Roca Jr. drove on March 10, 2004, was one of the latter.

The trial was in September 2005. It lasted two weeks, and what was done to the truck - and who did it - became the central issue.

Roca's attorneys focused on a faulty Pitman arm, a linkage attached to the steering box that converts motion needed to steer the wheels. Roca had noticed a problem with his steering, bought a new Pitman arm, and had a friend install it in the truck.

Afterward, Roca said he still noticed a steering problem.

"From day one, " Roca attorney Anthony Russo later told an appellate court, "my client has said, "My steering messed up.' "

Russo said Roca's friend improperly installed the Pitman arm, and that, in essence, caused the accident.

"My client was not in a hurry, had driven that road before, had been driving lifted vehicles for several years. He wasn't hotdogging it and was unaware of the speed limit."

It took the six-member jury about three hours to reach a verdict. The first question jurors were asked was whether there was negligence on the part of Luis Roca Jr., which was the legal cause of injury to Walter "Buddy" Shiver.

Jury foreman Luther Turner rose and answered. No.

In an instant, any questions about seat belts, speed and Pitman arms became moot. The trial was over.

In March, when the case came before the district court of appeal, Judge Brad Thomas had a question for Russo that struck directly at the issue.

"The problem is, " Thomas began, "this accident was either caused by the speed ... or the Pitman arm. And your client knew he had a steering problem. So either way, does the jury not have to find your client negligent because he either drove a truck he knew had a steering problem, and in fact it did, or he was speeding, or both?"

The fact there was an accident, Russo answered, does not mean Roca was negligent. "And just because there is negligence, doesn't make (Roca) liable, " Russo added. "That's what's missing. The cause of the accident was not Mr. Roca driving with something he knew was dangerous.

"There was no evidence he knew it was dangerous."

David Frank, Shiver's attorney, suspects jurors felt friends should not sue other friends. He also wonders about the objectivity of a juror who acknowledged before the trial that she was dating Roca's first cousin at the time of the accident.

Frank asked to interview the jurors after the verdict. State Farm objected and the judge denied the request.

Turner, the jury foreman, said the case was decided only on the facts. "We listened very carefully to the judge's instructions and we spent a lot of time going over it, " he said. "Everybody has some sympathy in their heart for the Shiver boy. And it'd be nice for him to have some compensation.

"But Roca's intention that morning was not to cause an accident."

However, nowhere in the judge's instructions was the word "intent" used.

Neal, the State Farm spokesman, said a courtroom is not the best place to take on the nation's largest auto insurer.

"The lawyer (Frank) had money on the table, " Neal said. "We wanted to take care of this guy (Shiver).

"Very few cases end up in litigation. We're not stupid. We'll get creamed if it's even questionable. It makes more sense to pay the claim and settle it. We don't go to court unless our case is extremely strong. We win almost all jury trials."

In May, a Palm Beach County jury heard the case of a father who lost both of his sons in a car crash. The jury found that the son who was driving was responsible for the death of the other, but after the father said State Farm refused to pay a $10, 000 claim for the son who was not driving the car, Charles Turner Sr. sued State Farm and was awarded $10-million.

State Farm has moved to have the verdict thrown out.

Long days

Back in Perry, a group from a local church has built a plywood ramp to the front door of the mobile home, and Buddy Shiver spends his days waiting for his girlfriend to come over.

Pressure sores, urinary tract infections and depression are regular visitors, too.

He has plans: college, and maybe a career as a draftsman.

"I try to stay upbeat, but I'd probably have to move, " he said. "There ain't nothing around here."

Times news researcher Caryn Baird contributed to this report. Tom Zucco can be reached at zucco@sptimes.com or (727) 893-8247.

[Last modified July 8, 2007, 01:01:20]