Test-drive crash victim receives $5.9 million settlement

Daily Record and the Kansas City Daily News-Press, Jun 8, 2006 by Charles Emerick

A Kansas City firefighter injured in an off-duty accident received a $5.9 million settlement Monday.

Steven Underhill was a passenger during a test drive of a Subaru Impreza WRX on Aug. 9, 2002, from the Jack Miller Oldsmobile dealership in North Kansas City, according to his attorney. Salesman Jonathan Folsom was driving when he lost control and crashed the vehicle.

After the crash, Folsom tested positive for marijuana.

Anita Porte Robb, Underhill's attorney, said the dealership was in violation of industry standards by not drug testing its salespeople.

As a result of what happened to Mr. Underhill, the dealership has now changed its policies to require mandatory drug testing of all its salespeople and also has improved its policies regarding test- drive procedures, she said.

The crash occurred on a residential road several minutes from the dealership at the intersection of Green Hills Road and 52nd Street. Folsom took a curve fast and lost control of the vehicle. The car spun, crashed through a fence and smashed into a tree.

Underhill suffered a severe fracture to his right arm, which required numerous surgeries to repair. His medical bills exceeded $200,000, according to Robb.

Robb said two factors had contributed to the large settlement: The accident left the firefighter incapable of doing some tasks he had performed before the crash, and other Jack Miller dealerships performed drug tests.

It's not only the fact that they didn't drug test; it's that some of their own dealerships at the time were doing it, Robb said. It's really inexcusable.

Jack Miller, the semiretired owner of four Kansas City-area dealerships, admitted in pretrial testimony that he did not supervise or set the policy at the Subaru store.

The case was scheduled to go to trial April 24, but the agreement between the two sides was reached a week earlier. Jack Miller Oldsmobile and Subaru of America will pay the amount.

Attorneys for Jack Miller Oldsmobile and Subaru of America could not be reached for comment. According to Robb, the defendants had claimed that Folsom's reckless conduct was the superceding cause of the wreck.

Folsom, whom the dealership fired three days after the crash, was convicted of second-degree assault in May 2003. He served eight months in prison. Folsom now works as a union glazer.

Case Name: Stephen J. and Jonna M. Underhill v. Jack Miller Oldsmobile et al

Case Number: 03CV208597

Court: Jackson County Circuit Court, Division 1

Judge: Sandra C. Midkiff

Type of Action: personal injury

Injuries Alleged: fractured right arm

Settlement: $5.9 million

Plaintiff's Attorneys: Anita Porte Robb and Gary Robb of Robb & Robb

Defense Attorneys: James C. Morrow and M. Todd Moulder of Morrow, Willnauer & Klosterman for defendant Jack Miller Oldsmobile and W. Russell Welsh and Patricia A. Sexton of Polsinelli Shalton Welte Suelthaus for defendant Subaru of America