Date: 11-15-2013

Case Style: Dallas Kent v. Derek Moon Thompson

Case Number: CJ-2012-5720

Judge: Rebecca B. Nightingale

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: G. Steven Stidham

Defendant's Attorney: W. Joseph Pickard for Kent Dallas and Cindy Jenkins Kent

Walter D. Haskins, III and Keith B. Bartsch for Helmerich & Payne, Inc.

Description: Dallas Kent and Cindy Jenkins Kent, husband and wife and as parents and next of kin to Joseph Newton Jenkins Kent, decased, sued Derek Moon Thompson, William Charles Birdshead and Helmerich & Payne, Inc. on auto negligence wrongful death theories claiming:

1. Plaintiffs are and were at all relevant times residents of Blackwell, Kay County, Oklahoma.

2. Defendant Derek Moon Thompson (“Thompson”), upon information and belief, is a resident of Calumet, Canadian County, Oklahoma.

3. Defendant William Charles Birdshead (“Birdshead”), upon information and belief, is a resident of Pawnee, Pawnee County, Oklahoma.

4. The motor vehicle collision from which this action arises occurred on September 14, 2012, at State Highway 18 in Pawnee, Pawnee County, Oklahoma.

5. This Court has jurisdiction over the parties and the subject matter.

6. On September 14, 2012, the deceased, Joseph Newton Jenkins Kent was a passenger in a car driven by Defendant Birdshead. Birdshead was traveling north bound on State Highway 18 when he crossed left of center into the south bound lane for unknown reasons.

7. Also on September 14, 2012, the Defendant Thompson was traveling South bound on Highway 18 when he crossed left of center into the north bound lane for unknown reasons.

8. As a direct and foreseeable consequence of the breach of duty and negligence of Defendants, the vehicle driven by Defendant Thompson collided with Defendant Birdshead’ s vehicle causing the vehicles to collide right front to right front.

9. As a direct result and consequence of the collision between Defendants’ vehicles, Joseph Newton Jenkins Kent was killed upon impact.

10. Plaintiffs are entitled to judgment against Defendants for an amount sufficient to compensate them for the wrongful death of their son. Upon information and belief, Defendant Thompson was intoxicated and grossly negligent entitling Plaintiffs to punitive damages.

WHEREFORE, Plaintiffs pray judgment against Defendants for their damages, which they allege shall exceed Ten Thousand Dollars ($10,000.00), together with interest, costs, punitive damages and attorney fees and for such other relief as this Court may deem appropriate.

Defendant, Helmerich & Payne, Inc. appeared and answered as follows:


I.

This Defendant demes generally and specifically each and every matenal allegation rn-the First Amended Petition of the Plaintiffs, except that which may be hereinafter admitted

II.

For further answer and defense, this Defendant admits the allegation of Paragraphs 4 and 6 of the First Amended Petition.

III.

For further answer and defense, this Defendant states that it is without knowledge as to the allegations of Paragraphs 1, 2, 3, 5, and 7 of the First Amended Petition, and therefore denies the same, demanding strict proof thereof.

IV.

For further answer and defense, this Defendant specifically denies the allegations in Paragraphs 8,9, 10, 11, and 12.

V.

For further answer and defense, this Defendant states that Plaintiffs have failed to state a claim against this Defendant upon which relief may be granted.

VI.

For further answer and defense, this Defendant states that if it were guilty of negligence, a fact which is not admitted, but which is specifically denied, that Plaintiffs’ decedent, Joseph Newton Jenkins Kent, was guilty of comparative negligence which is to such an extent as to bar Plaintiffs’ recovery herein.

VII.

For further answer and defense, this Defendant states that Plaintiffs’ claims for punitive damages are barred and limited by the applicable provisions of Oklahoma state law, the Oklahoma State Constitution, and the Constitution of the United States of America.

VIII.

For further answer and defense, this Defendant pleads all affirmative defenses available to it which may be applicable upon the evidence as adduced during discovery.

IX.

For further answer and defense, this Defendant reserves the right to plead additional affirmative defenses upon the completion of discovery or as the facts may warrant.

WHEREFORE, having answered, Defendant Helmerich & Payne, Inc., prays that judgment be rendered in its favor and against the Plaintiffs, together with this Defendant’s costs, and such other and further relief as the Court deems just, fair and equitable.

Helmerich & Payne moved for summary judgment in its favor stating:

This action arises from an accident occurring on December 7,2008, at Defendant’s residence in Osage County.’ (Ex. “1”, Affidavit of Teddy Atkins, ¶ 3). Defendant’s niece, Plaintiff Mahayla Silliman alleges she was attacked by wolves maintained as pets on Mr. Adkins’ property. She filed this action on November 7, 2012, for actual and punitive damages, under theories of intentional infliction ofemotional distress, strict liability, negligence, negligence per sc, and attractive nuisance, seeking actual and punitive damages. Service appears to have been effected upon Defendant, Teddy Adkins, at his home in Osage County, on December 4, 2012. (Ex “2”, Summons; Ex. “1”, Aff, ¶ 3).

Following service of summons, Mr. Adkins provided those papers to his insurance agent, Steve Moyer in Skiatook. (Ex. “1”, Aff. ¶ 4). At the time of the accident, Mr. Adkins maintained a mobile home owners policy with Shelter Mutual Insurance Company which he believed would provide coverage for the accident. (Ex. “I “, Adkins Aff., ¶ 4). After providing the suit papers to his agent, Mr. Adkins assumed the claim or suit would be addressed by his insurer, and that he would receive notice if and when anything further from him was required. (Ex. “1”, Adkins Aff., ¶ 5). No answer was filed on behalf of Mr. Adkins. Mr. Adkins received no notice of Plaintiffs Motion for Default, or the Court’s hearing on damages. (Ex. “1”, Adkins Aff., ¶ 6). Mr. Adkins did not become aware of the Court’s entry ofjudgment against him for $1,526,477.70, which included both actual and punitive damages, until after the Decree of Judgment was entered on March 26, 2013. Id.

While Mr. Adkins was unaware ofthe default proceeding against him, Plaintiffs counsel was apparently aware during the pendency of that proceeding that Mr. Adkins was potentially insured, may have been entitled to a defense, and that Mr. Adkins’ failure to appear was most likely in error. Within a day after the judgment was entered against Mr. Adkins, Plaintiffs counsel contacted Mr. Adkins’ insurer to advise of the pending lawsuit. Upon information and belief, counsel’s call was the first effort to contact Mr. Adkins’ insurer to advise of the lawsuit after entry of the default judgment. Though Mr. Adkins is Plaintiffs uncle, it appears no effort was made by Plaintiff or her counsel to advise Mr. Adkins that he was in default, or that a hearing for damages was imminent.

As addressed below, Defendant, Mr. Adkins maintains that the circumstances of this case warrant vacating the Court’s entry of default judgment and resulting judgment decree against him, and allowing Mr. Adkins to defend on the merits of this case. In particular, the irregularity in this judgment, the unavoidable casualty causing Mr. Adkins’ failure to appear, the Court’s lack of venue over this proceeding over events occurring in Osage County, fraud practiced by the successful party in not alerting this Court to the likely availability of a defense for Mr. Adkins and probable mistake in his failure to appear strongly suggest judgment should be vacated. Further, no transcript was made of the Court’s hearing on damages, and the record is devoid of any evidence supporting the $1.5 million judgment entered, hindering Mr. Adkins’ ability to fully address the underlying basis of the Court’s rulings on liability and damages in his Motion to Vacate and any resulting appeal. Despite the lack of record, it also appears, however, that the judgment is void or voidable, based on the fact it awards future medical expenses, damages for permanent injuries, disfigurement, and a potential award for future pain and suffering, without support of testimony of a medical expert, as is generally required under Oklahoma law to support such damages.

Further, Mr. Adkins maintains that the Court’s judgment against it, for actual and punitive damages, based on a finding that Mr. Adkins acted in reckless disregard, without the testimony of Mr. Adkins, indicates excessive damages awarded under the influence of passion or prejudice, and which, at the very least, violate Mr. Adkins’ rights of due process under the circumstances.

Particularly, the judgment against Mr. Adkins awards damages for an intentional tort, and also states that the Court found by clear and convincing evidence that Mr. Adkins acted with reckless disregard for the person ofPlaintiff (Decree of Judgment, March 26,2013). However, Mr. Adkins’ testimony was not provided and Mr. Adkins is unaware of what evidence, if any, was offered on his alleged intent to harm Ms. Silliman. It is important to note that Mr. Adkins does have evidence to present that would dispute a claim of reckless disregard on his part.

Specifically, Mr. Adkins can present evidence which demonstrates that the animals at issue were confined within a secure enclosure which Ms. Silliman was not permitted to and did not enter. (Ex, “1”, Aff., ¶ 8). Ms. Silliman was not bitten by the animals. She approached and reached into the enclosure while wearing a sweatshirt. (Ex. “1”, Aff., ¶ 9). The animals grabbed her loose sleeve and pulled her against the enclosure, which upon information and belief, led to her injury. (Ex. “1”, Aff., ¶ 9). Prior to that time, Mr. Adkins had warned Ms. Silliman not to approach the animals wearing loose clothing, because of the potential that they might attempt to play or grab at such clothing. Mr. Adkins was not aware that Ms. Silliman had gone to the enclosure without him, or that she had donned loose clothing against his warning. Id.

Mr. Adkins did not intend for Ms. Silliman to be injured, did not want her to be injured, and was not aware that it was likely that Ms. Silliman would be injured. (Ex. “1”, Aff., ¶ 10). Yet, the default judgment against him finds him liable for an intentional tort - intentional infliction of emotional distress - as well as punitive damages based on reckless disregard. Likewise, the Court’s award of damages appears to have lifted the applicable cap on noneconomic damages, based on this finding of reckless disregard against Mr. Adkins, without his presence at trial, and without full and fair opportunity to defendant against Plaintiffs allegations or offer his version of events. For this reason to, Mr. Adkins respectfully suggests the Court’s Default Judgment and Decree of Judgment should be vacated, to allow Mr. Adkins to defend himself against these allegations.

Outcome: Dismissed with prejudice as to William Charles Birdshead.

Plaintiff's Experts:

Defendant's Experts:

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