TP crashes in building, part 2

[LPC]

Every time Hunter/Ross offers an explanation, they make less and less sense. From the Daily Texan:

Valerie Hunter explained why she is suing the state agency in a written statement attached to a lawsuit filed against the widow of Joe Stack and the Travis County Medical Examiner’s Office.

Her husband, Vernon Hunter, died when Joe Stack purposefully flew his plane into an Internal Revenue Service office Feb. 18 in an attempt to express his frustrations with the federal agency.

The suit, filed electronically on Monday at 4:22 p.m., seeks to prevent the public disclosure of the examiner’s autopsy report on Vernon Hunter and collect liability insurance claims Joe Stack may have left behind.

“My family and I are devastated by Vernon’s death,” said Valerie Hunter in her statement. “This is an extremely difficult time for me and my family, and the release of the autopsy report to the public will cause me and my family severe and irreparable emotional distress.”

Daniel Ross, a lawyer who represents Valerie Hunter, said the suit partly targets Joe Stack’s estate. Texas law requires a defendant be named in legal cases, and Sheryl Stack was placed on the suit as the remaining representative of her late husband.

“The primary purpose of the lawsuit was to restrict the release of the autopsy report of Mr. Hunter,” Ross said. “In order to do that, we had to put a defendant. This is not some vindictive thing. [Valerie Hunter] has a great deal of empathy to Mrs. Stack and to all those whom [her husband] hurt.”

The night before Joe Stack flew his plane into the building, his wife checked into a hotel. The suit claimed that since Sheryl Stack felt threatened by her husband, she had the responsibility to warn others of his dangerous intentions.

“Defendant Stack owed a duty to exercise reasonable care to avoid a foreseeable risk of injury to others including the decedent,” the suit reads. “Defendent Stack breached that duty resulting in the death of Vernon Hunter.”

The suit claims an unspecified amount of money as compensation and will be presided over by Judge Suzanne Covington in the 201st Judicial District Civil Court.

Sarah Scott, chief administrative officer for the Travis County Medical Examiner’s Office, said Vernon Hunter’s report is not available to the general public because the report itself is not ready for release. The medical office also received a temporary injunction because of the pending investigation.

Sheryl Stack announced last week she would not comment on the incident.

[wserra]

Now, an alternative is that the suit is against the widow in representative capacity - a perfectly reasonable suit, given the existence of estate assets - and the lawyer threw in a claim for her personal liability. May not be warm and fuzzy, but I doubt that the family of the dead IRS employee (whom the lawyer would represent) is in a warm and fuzzy mood.

From the Daily Texan:

Daniel Ross, a lawyer who represents Valerie Hunter, said the suit partly targets Joe Stack’s estate. Texas law requires a defendant be named in legal cases, and Sheryl Stack was placed on the suit as the remaining representative of her late husband.
...
The night before Joe Stack flew his plane into the building, his wife checked into a hotel. The suit claimed that since Sheryl Stack felt threatened by her husband, she had the responsibility to warn others of his dangerous intentions.

“Defendant Stack owed a duty to exercise reasonable care to avoid a foreseeable risk of injury to others including the decedent,” the suit reads. “Defendent Stack breached that duty resulting in the death of Vernon Hunter.”

The first excerpt from the Daily Texan piece makes perfect sense, the second no sense. Still, it's unclear to me why so many folks here are exercised over this suit. The c of a against the widow personally is subject to dismissal on the papers, but including it is hardly malpractice.

[LPC]

Still, it's unclear to me why so many folks here are exercised over this suit. The c of a against the widow personally is subject to dismissal on the papers, but including it is hardly malpractice.

If the suit were merely against the estate, Mrs. Stack would have a choice about whether to get involved. If she decided that the estate was insolvent, she could stand aside and let the plaintiff fight with the insurance companies. (Unless Texas law is very, very strange, the widow is NOT the "representative" of the estate until letters of administration/testamentary have been granted to her, and she doesn't need to apply for them unless she wants them. She can renounce her right to serve as personal representative of the estate, and it is exceedingly premature to sue her before she has made that choice.)

And by naming her personally, the plaintiff has forced her to either run the risk of personal liability based on a frivolous theory, or to pay money to a lawyer to secure dismissal for failure to state a claim. THAT is what p's me off.

[The Observer]

The c of a against the widow personally is subject to dismissal on the papers, but including it is hardly malpractice.

I don't recall anyone accusing this attorney of malpractice. I think what everyone is accusing him of taking advantage of a tragic situation and creating even more pain and anguish when there is no real chance of this suit even getting off the ground - at least in regards to Mrs. Stack. The very fact that Ross felt he had to justify the suit to the media, an explanation that made no legal sense to any of the legal eagles here, seems to support the general disgust and disfavor that Ross is generating.

And regardless of whether Ross has a legal right to file such a suit, it does nothing to help improve the reputation of lawyers among the hoi polloi. I think every other lawyer in the country who can the moral wrong and right of this situation should be publicly condemning Ross's decision, especially in regard to how it affects his client's reputation.

[LPC]

“My family and I are devastated by Vernon’s death,” said Valerie Hunter in her statement. “This is an extremely difficult time for me and my family, and the release of the autopsy report to the public will cause me and my family severe and irreparable emotional distress.”

Am I the only one who thinks that the lawsuit that has been filed, and the interviews and press releases that have been issued, will make it MORE LIKELY that the autopsy report will get public attention, and not less?

Before the lawsuit was filed, I doubt if anyone would have bothered to look at it. Now, a lot of people might get curious.

They seem to be begging not to be tossed into the briar patch.

[The Observer]

A couple of recent media op-eds:

Politico
February 23, 2010

Democrats Blast Rep. Steve King on IRS Remarks
By MARIN COGAN

Democrats say Rep. Steve King has some explaining to do about his comments regarding “imploding” IRS offices. On Monday, Talking Points Memo, a liberal news site, reported that King told a crowd of conservative activists at the CPAC conference that he could "empathize" with the man who flew his plane into an IRS building in Austin last week.
According to the story, which was sourced to an unnamed staffer from the liberal media watchdog group Media Matters, King encouraged the crowd to "implode" their IRS offices.
When asked about it during a House vote last night, King didn't exactly deny making the comments, but he implied it by challenging the Media Matters to find the video.

"Get the video and put it on YouTube," King told POLITICO. "No one should be going out and conjecturing when they can go out and get the whole story." King's office was looking for the video last night. So far it has not materialized, and King's office followed with another response today.

"As a founder of a small business who has endured IRS audits, I understand the deep frustration with the IRS. In the early days, my company could not run without me on the job,” King said. “I once had to shut it down just to be in the room with the IRS. I did not get a fair shake, but I channeled my frustration the American way and ran for office. Americans looking for an outlet for their frustration should join me in calling on Congress to pass a national sales tax and abolish the current federal tax code and the IRS.”

One democratic aide called King's remarks, "a disgusting attempt to justify a domestic suicide attack" and said "Such words must be repudiated immediately and unequivocally by his leadership." There is no word yet on weather the Democratic leadership will ask King to apologize.

King's office did not immediately respond to whether he regretted those comments or condoned violence.

Austin-American Statesman
February 24, 2010
Editorial

A Family's Loss, a Community's Loss

Once again, Austin's turn at unimaginable tragedy has reminded us of our town's unending grace.

In the past, it's been evidenced when neighbor helped neighbor during a natural disaster or when a community opened its arms and hearts to the families of four young girls slain in a yogurt shop or, longer ago, when a madman opened fired from atop the University of Texas tower.

This time, it began shortly after a misguided pilot expressed his misguided anger by crashing his plane (An oft-asked question around town these days: How bad can life be for a guy who owns a plane?) into a Northwest Austin office building housing local Internal Revenue Service folks.

We saw grace and skill in the first responders. We saw it in passers-by who helped in whatever way possible.

In the days since the crash, we've seen it in the victims, a list that includes the wife of Andrew Joseph Stack III, the pilot who perished in the crash he caused.

In the time from wheels up in Georgetown to crash landing in Austin — and the 53 years it took for him to become a man who could commit such an outrageous act — Stack linked himself in perpetuity to a man he had never met, Vernon Hunter, 68, of Cedar Park, who died in the building.

By all accounts, Hunter was an ordinary guy, ordinary in the exceptional ways that make people like him the backbone of communities. He ushered at Austin's Greater Mount Zion Baptist Church. He liked Rudy's barbecue. He did two tours of duty in Vietnam after signing up with the Army after high school. As an African American, he endured the worst of our nation when, while in the service, he was turned away from a boarding house.

Hunter signed on with the IRS after more than 20 years in the Army. He had three children, three stepchildren, seven grandchildren and one great-grandchild.

And as Stack and Hunter now are bound in Austin history, so are their families. "We are not angry at them because they did not do this," the Hunters said of the Stacks. "We forgive Joe for his actions, which took Vern's 'pound of flesh' with him."

It was a reference to Stack's suicide screed, which included this snipe at the IRS: "Take my pound of flesh and sleep well."

On the North Austin street where Stack lived, near the house he apparently torched before the fatal flight, a spokesman for Sheryl Stack, the pilot's widow, read a statement that said, "Words cannot adequately express my sorrow or the sympathy I feel for everyone affected by this unimaginable tragedy."

Despite the sympathies exchanged by the families — and probably inevitably — the tragedy became a lawsuit Tuesday when Hunter's widow sued Stack's widow and his estate, noting that Sheryl Stack felt "threatened enough by Joseph Stack that she took her daughter and stayed at a hotel the night before the plane crash." The suit claims Sheryl Stack had a duty to "avoid a foreseeable risk to others."

We'll let the courts sort that out.

Here's something of which we are sure. It involves a disturbing quote from Samantha Bell, Joe Stack's daughter, who, in a comment she later retracted, called her father a hero.

Not even close.

Vernon Hunter, a hero in the way that ordinary people are, will be honored at a military funeral Friday. He will be buried in the veterans cemetery in Killeen. He leaves a family that honors him and a community that will continue to depend on people like him.

"My dad, in that building, he didn't write the tax laws," son Ken Hunter said. "If (Stack) would have talked to my dad, my dad would have helped him."

We are diminished by the loss of Vernon Hunter and enriched by what he left. If so moved, you can show your respect by contributing to a fund to be established at Austin Telco Federal Credit Union for Hunter's grandchildren.

[The Observer]

Am I the only one who thinks that the lawsuit that has been filed, and the interviews and press releases that have been issued, will make it MORE LIKELY that the autopsy report will get public attention, and not less?.

My question is this: Do such suits allow the plaintiff to stop autopsy results from being released?
To my non-lawyer mind, I don't see why the autopsy results would be germane to the issue of whether Stack's estate, let alone Mrs. Stack, is responsible for the death of Vernon Hunter. I understand that the autopsy would certainly prove that Stack's actions killed Hunter and that Hunter didn't die previous to the incident, but there is quite a bit of evidence out there beside the autopsy to support that finding. I

[Demosthenes]

I agree, Dan. It hadn't occured to me prior to the lawsuit that the autopsy results would be the least bit interesting since it's glaringly obvious how Mr. Hunter died. Now, it looks like the family is trying to hide something.

[Demosthenes]

Depending on how severe the damage was, an autopsy of the pilot might show if there was an organic cause for his actions - lesions or brain tumor pressing/destroying parts of the brain.

Hunter's widow doesn't care about the autoposy of the pilot. She's trying to suppress the autopsy of her husband.

[The Observer]

Hunter's widow doesn't care about the autoposy of the pilot. She's trying to suppress the autopsy of her husband.

Has it been established that this is actually true? Up to this point all I have seen is what Ross is claiming to be the motivation for suing Mrs. Stack. I am not sure that I can believe what Ross is saying. Have there been any motions filed by Ross asking the court to supress the autopsy report?

[Demosthenes]

Hunter's widow doesn't care about the autoposy of the pilot. She's trying to suppress the autopsy of her husband.

Has it been established that this is actually true? Up to this point all I have seen is what Ross is claiming to be the motivation for suing Mrs. Stack. I am not sure that I can believe what Ross is saying. Have there been any motions filed by Ross asking the court to supress the autopsy report?

All I've read is that the seven page complaint was filed electronically and the parties have yet to be served.

[Judge Roy Bean]

This is little more than rank speculation, but the Hunter family may be attempting to head off any potential contributory negligence theory, i.e., that Mr. Hunter had an existing medical condition or impairment or was taking a prescription medicine that materially inhibited his ability to escape from a building that caught on fire after the impact and explosion.

Obviously, the building owner/manager is going to be looked at in terms of what the status and condition of the life-safety facilities and equipment in the building and you can bet their insurance carriers are going to look long and hard at any potential claim from victims.

[Pottapaug1938]

I wonder if this suit would withstand a motion for dismissal due to failure to state a claim upon which relief can be granted....

[Judge Roy Bean]

I wonder if this suit would withstand a motion for dismissal due to failure to state a claim upon which relief can be granted....

I'd have to actually see the pleadings, but I'm guessing this isn't counsel's first rodeo so I would venture to guess, no.

[Arthur Rubin]

I wonder if this suit would withstand a motion for dismissal due to failure to state a claim upon which relief can be granted....

I'd have to actually see the pleadings, but I'm guessing this isn't counsel's first rodeo so I would venture to guess, no.

How about a countersuit for "malicious prosecution"? Or perhaps, if the claim that she should have done something was made outside of court, libel?

Unfortunately, I think the Mrs. Stack needs a lawyer, add she almost certainly cannot afford one.

[Pottapaug1938]

I wonder if this suit would withstand a motion for dismissal due to failure to state a claim upon which relief can be granted....

I'd have to actually see the pleadings, but I'm guessing this isn't counsel's first rodeo so I would venture to guess, no.

How about a countersuit for "malicious prosecution"? Or perhaps, if the claim that she should have done something was made outside of court, libel?

Unfortunately, I think the Mrs. Stack needs a lawyer, add she almost certainly cannot afford one.

I don't know about any countersuit; but I would pay good moey to be in court, at the hearing on the motion to dismiss, when the judge asks the shyster something like "you actually BELIEVE that this piece of cr*p is a legitimate cause of action?"

[LPC]

How about a countersuit for "malicious prosecution"?

I believe that, at common law, there was no action for "malicious prosecution" or "malicious abuse of process" unless there was an "attachment" of person or property. Merely filing a complaint wouldn't cut it. There had to be an arrest or a seizure of property.

At least, that was the law in Pennsylvania until a man named Dragonetti got sued for something he thought was silly, won the original suit, tried to counter-sue, and got even angrier when he lost the counter-suit. He wound up lobbying the legislature and got a law passed that allows counter-suits for malicious prosecutions of civil suits for merely filing a meritless (not necessarily frivolous) complaint. These are now often known as "Dragonetti actions."

The problem is that it can turn litigation into an endless cycle of reincarnation, because lawsuits trigger Dragonetti counter-suits, which then trigger Dragonetti counter-suits to the counter-suits, and so forth, ad infinitum, ad nauseum.

What I have found to be more useful is a slightly different statute, 42 Pa.C.S. §2503(9), which empowers courts to award legal fees against parties for conduct that is “arbitrary, vexatious or in bad faith.” (Sort of the Pennsylvania equivalent of Rule 11.) I've seen that provision applied in estate litigation, and it makes more sense to me to handle those kinds of sanctions as part of the same proceedings, to be decided by the same judge who presided over the case, rather than creating a separate cause of action to be prosecuted as a separate suit.

[Judge Roy Bean]

How about a countersuit for "malicious prosecution"? Or perhaps, if the claim that she should have done something was made outside of court, libel?

Unfortunately, I think the Mrs. Stack needs a lawyer, add she almost certainly cannot afford one.

At least in Texas, my understanding is you can't bring an abuse of process suit unless you've been sued and prevailed.

I agree she needs an attorney.

[Prof]

How about a countersuit for "malicious prosecution"? Or perhaps, if the claim that she should have done something was made outside of court, libel?

Unfortunately, I think the Mrs. Stack needs a lawyer, add she almost certainly cannot afford one.

At least in Texas, my understanding is you can't bring an abuse of process suit unless you've been sued and prevailed.

I agree she needs an attorney.

Correct, JRB.

[LaVidaRoja]

[sarcasm mode on] Surely, if Ms. Hunter could find an attorney to bring her cause of action, Ms. Stack can find one to both defend her and bring a counter-suit.[sarcasm mode off]