February 17, 2004, began like a normal day for Claudia Avila. The 43-year-old went to work, and then began traveling home as a passenger in a car traveling south on I-95 in Delray Beach. She was on the way to meet her eldest daughter, Fernanda Avila, then 26 years old, for lunch. At about 12:45 p.m., as the car approached the Congress Road exit, a 34-pound metal plate flew into the windshield of the car, and struck her in the head. She died several weeks later from the injury.
No one came forward. The Avila family took to the television and newspapers, seeking information about the accident, but had no luck. The Florida Highway Patrol investigated, and then closed the case as they were unable to determine the metal’s origin. Ms. Avila’s daughters and son, Fernanda, Renata and Cicero, hired attorney Marc A. Wites of Wites & Rogers, and months later the law firm solved the mystery.
The firm discovered that in the early morning of February 17, Tarmac America, a concrete block manufacturer, had packaged for shipment thousands of the unique metal plates at its Melbourne plant and then loaded the cargo onto several flat-bed tractor trailers, and that the trucks then headed south on I-95 toward Fort Lauderdale. Tarmac produced a surveillance video showing the trucks, and disclosed that it had sold the plates to a scrap metal company called IGM, which in turn disclosed that it had hired trucking company EM Transfer to transport the cargo.
The Avila family filed a wrongful death lawsuit against the 3 companies in late 2004. Along the way, the scrap metal company settled with the family, as did the trucking company. The Avila family went to trial against the remaining defendant, Tarmac. They argued that Tarmac was negligent in failing to properly package the cargo of metal plates for shipment, by either failing to secure the metal plates to the wooden pallets on which they stacked, or by securing the metal plates to the pallets with banding that Tarmac knew was not strong enough to contain the plates during highway transportation on a truck. Mr. Wites argued to the jury that Tarmac’s failure to properly package the cargo resulted in the metal plate coming off the truck and killing Ms. Avila.
On September 17, 2008, after an 8-day trial in Palm Beach County Circuit Court, the jury agreed and returned a verdict of $6,098,000. The jury apportioned 28% of the liability to the remaining defendant, Tarmac. The verdict, which included $2,000,000 in damages for pain, suffering and loss of parental support to each of Ms. Avila’s three adult children, and medical expenses, will be reduced by the 72% of liability the jury apportioned to the trucking company.
Lead trial attorney Marc Wites said that the family was relieved that the trial was over, and was grateful for the opportunity to have their day in court. While it obviously won’t bring back their mother, the family feels that the verdict recognizes Tarmac’s role in the incident, and they are hopeful that the case will send a message to those that package and transport cargo to consider the public’s safety before sending their cargo on America’s highways.
