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Date: 06-03-2015

Case Style: Lindsay Smith v. Progressive Direct Insurance Company

Case Number: CJ-2015-1838

Judge: Jefferson D. Sellers

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Gary Eaton

Defendant's Attorney: Brad Roberson and Joy Tate

Description: Tulsa, OK - Lindsay Smith sued Progressive Direct Insurance Company on an uninsured motorist liability theory claiming:

1. Defendant PROGRESSIVE is a foreign insurance carrier doing business in Tulsa County, State of Oklahoma.
2. Pursuant to 12 0.5. § 141, venue for this action is proper in Tulsa -çOunty,
Oklahoma.
3. Pursuant to 12 0,5. § 2004 (F), this Court has proper subject matter jurisdiction.
4. The injuries and damages suffered and complained of herein by Plaintiff LINDSAY SMITI—I’s minor children, ETHAN L. BURK and RYLEN 0. BURK, were caused by the negligence of third parties DERIUS DONOVAN LEDET and ROBERT HUNTER PHILLIPS, who are not parties to this action.
5. LEDET was all times pertinent hereto an uninsured motorist within the meaning of 36 OSA Sec. 3636.
6. PHILLIPS was all times pertinent hereto an uninsured / underinsured motorist within the meaning of 36 OSA Sec. 3636.
7. Decedent ORBERY OTTO “LITTLE JOE” BURK was at all times pertinent hereto an uninsured motorist.
8. Defendant PROGRESSIVE DIRECT INSURANCE COMPANY was at all times
pertinent hereto the uninsured motorist insurer for Plaintiff LINDSAY SMITH, and at all times pertinent hereto it provided such coverage to her sons ETHAN L. BURK and RYLEN 0. BURK in the amount of $25,000 (per claimant) and $50,000 (for all claimants).
9. Decedent, ORBERY OTTO “LITTLE JOE” BURK and Plaintiff LINDSAY SMITH, formerly BURK, were married on 07/29/2005, in Okay, Oklahoma. “LITtLE JOE” BURK and Plaintiff LINDSAY SMITH, formerly BURK were the parents of ETHAN L. BURK’ and RYLEN 0, BURK. “LITTLE JOE” BURK and LINDSAY SMITH were divorced on 08/27/2008 in case no, FD-2008-267, in the District Court of Wagoner County, State of Oklahoma. The Decree of Divorce provided for shared child custody, as well as for shared support of ETHAN BURK and RYLEN BURK.
10. At the time of “LITtLE JOE BURK’s death in March, 2015, he was divorced from LINDSAY SMITH and was the father of minor children, ETHAN BURK and RYLEN BURK,
11. Therefore, Plaintiff LINDSAY SMITH is entitled to bring this action for personal injuries suffered by each of her sons, ETHAN BURK and RYLEN BURK, as well as for their benefit for the wrongful death of father and her former husband, “LITTLE JOE” BURK accordance with 12 OS, § 1053 and 1054.
12. On March 2, 2015, at about 10:00 p.m., “LITtLE JOE” BURK was returning home from a basketball game in Glenpool, Oklahoma, and was driving his motor vehicle in a northerly direction on U.S. Highway 75, approaching its intersection with U.S. Highway 1-44 in Tulsa, Tulsa County, Oklahoma. His sons ETHAN and RYLEN were riding as passengers in his motor vehicle. As he was driving northbound across the overpass of U.S. Highway 1-44, DERIUS DONOVAN LEDET was attempting to exit U.S. Highway 1-44 eastbound in order to enter U.S. Highway 75 northbound, and he drove his motor vehicle into the rear passenger side of “LITtLE JOE” BURK’s motor vehicle and sent it spinning out of control on the roadway. When “LITtLE JOE” BURK’ s motor vehicle came to rest, it was located in the inside northbound lane of travel facing in a west-northwest direction. ‘LITtLE JOE” BURK then exited his motor vehicle in order to tend to his sons ETHAN and RYLEN, who had suffered injuries in the collision and to check on the status of LEDET and the several passengers in his motor vehicle. “LITTLE JOE” BURK set RYLEN upon the right rear trunk of his motor vehicle in order to assess his injuries and tend to him, when another northbound motor vehicle on U.S. Highway 75 operated by ROBERT HUNTER PHILLIPS drove into “LITTLE JOE” BURK’s and his motor vehicle, killing him, further injuring ETHAN, and severely injuring RYLEN.
13. DERIUS DONOVAN LEDET was negligent as follows:
A. Failed to remain alert and give full attention to the safe operation of his motor vehicle on the roadway in violation of the Ordinances of the City of Tulsa and the Rules of the Road of the State of Oklahoma;
B. Failed to keep a reasonable lookout and to exercise that degree of attention, care and caution that a reasonably prudent person would have exercised under the same or similar circumstances;
C. Failed to yield to motor vehicles going straight ahead that were so close as to constitute an immediate hazard to his motor vehicle that was exiting U.S. Highway 1-44 westbound in order to enter U.S. Highway 75 and proceed northbound in violation of the Ordinances of the City of Tulsa and the Rules of the Road of the State of Oklahoma.
D. Operated his motor vehicle while under the influence of and while impaired by intoxicating alcoholic beverage(s) and or chemical substances in violation of the Ordinance of the City of Tulsa and the Rules of the Road of the State of Oklahoma.
LEDET’s negligence caused or contributed to causing the wrongful death of “LInLE JOE’ BURK, as well as injuries to ETHAN and RYLEN.
14. ROBERT HUNTER PHILLiPS was also negligent as follows:
A. Failed to remain alert and give full attention to the safe operation of his motor vehicle on the roadway in violation of the Ordinances of the City of Tulsa and the Rules of the Road of the State of Oklahoma;
B. Failed to keep a reasonable lookout and to exercise that degree of attention, care and caution that a reasonably prudent person would have exercised under the same or similar circumstances;
C. Failed to drive his motor vehicle at a reasonable and safe speed so as to avoid colliding with other motor vehicle(2) that were stopped on the roadway within the assured clear distance ahead and that were so close as to constitute an immediate hazard in violation of the Ordinances of the City of Tulsa and the Rules of the Road of the State of Oklahoma.
D. Operated his motor vehicle while under the influence of and while impaired by intoxicating alcoholic beverage(s) and or chemical substances in violation of the Ordinance of the City of Tulsa and the Rules of the Road of the State of Oklahoma.
PHILLIPS’ negligence also caused or contributed to causing the wrongful death of “LIEfLE JOE’ BURK, as well as injuries to ETHAN BURK and RYLEN BURK.
15. There are liability claims pending against LEDET and PHILLIPS in another related case, CJ-2015-01445, presently pending in the District Court of Tulsa County, State of Oklahoma, for the benefit of ETHAN BURK and RYLEN BURK, and other plaintiffs.
16. At the time of “LITTLE JOE’ BURK’s death he was a healthy and active 33 year old man with a reasonable life expectancy of 47 years and a reasonable work life expectancy of at least 32 years. As a direct result of his wrongful death, Plaintiff LINDSAY SMITH, in her representative capacity as mother and custodial parent of ETHAN BURK and RYLEN BURK, suffered and sustained legally compensable damages as follows:
A. Personal bodily injuries suffered by ETHAN and by RYLEN for:
(1) medical treatment expenses, past and future;
(2) physical pain and suffering, past and future;
(3) mental pain and suffering, past and future;
(4) disability and disfigurement;
(5) loss of quality of life.
B. Grief, loss of companionship, loss of parental affection and guidance, and destruction of parent-child relationship between “LIYI’LE JOE” BURK and his minor sons ETHAN and RYLEN;
C. Loss of financial support for ETHAN and RYLEN from “LITtLE JOE” BURK;
Wherefore, Plaintiff LINDSAY SMITH, formerly BURK prays for the District Court to order allocation and distribution of $50,000.00 in uninsured / underinsured motorist insurance proceeds to LINDSAY SMITH, for the use and benefit of ETHAN L. BURK in the amount of $25,000.00 and for the use and benefit of RYLEN 0. BURK in the amount of

Outcome: Court approved settlement in the amount of $50,000.00. Case dismissed with prejudice.

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