AUGUSTA — Family members of a grandfather and grandson killed in a crash involving a Budget Truck van 31/2 years ago have lost their wrongful death lawsuit and will not be awarded damages.

The lawsuit was over the deaths of Dennis R. Kay, 62, of Gardiner, and his grandson, 25-year-old Carlton Norwood of Pittston. Both were killed in the accident that occurred on an icy Brunswick Avenue in Gardiner early on Dec. 31, 2011. Investigators said Kay was at the wheel.

Representatives of Kay’s estate, his son Joshua Henderson of Pittston and daughter Stacey Henderson of Augusta, filed a lawsuit in July 2013 against a number of defendants, including the estate of Douglas J. Wiggins, who owned Option Rentals of Farmingdale at the time and functioned as a rental dealer and transfer vendor for Budget Truck. The Hendersons, on behalf of the estate, sought damages under Maine’s Wrongful Death statute. Wiggins died in May 2013 of causes unrelated to the crash, and so his estate was represented by Tressa Springmann of Glenwood, Maryland.

A judge granted summary judgment last week in the Kennebec County Superior Court case. The judgment stands unless an appeal is filed.

“Obviously we’re disappointed with the decision,” said attorney Caleb Gannon, of Lipman & Katz, who represented the Hendersons. “We will be discussing it in more detail with our clients and won’t make the decision about an appeal for approximately 20 days.”

Justice Michaela Murphy concluded that summary judgment was warranted because the Hendersons maintained that Kay was an employee of Wiggins, so the claim was barred by the Workers’ Compensation Act.

“Springmann asserted that Kay was an independent contractor who had done work for Option Rentals and Budget Truck,” the judge wrote.

The judge also concluded “no reasonable juror could find that Mr. Wiggins proximately caused Mr. Kay’s injuries.”

Another of Kay’s grandsons, Thomas G. Bourque, formerly of Randolph and now of Belgrade, who was sitting in a lawn chair in the back of the cargo van, was the lone survivor of the New Year’s Eve crash.

Murphy noted that in several depositions filed in the case, relatives of Kay’s stated, “Mr. Kay would not have taken his grandsons, Messrs. Bourque and Norwood, out on the road that day if he thought the road conditions would be unsafe.”

In the order granting Budget Truck’s motion for summary judgment, Murphy outlined the details surrounding the crash, including an apparent directive by Wiggins to Kay to do a truck transfer run on Dec. 30, 2011, in order to get paid. Kay declined to go that day, citing weather conditions. However, Murphy noted, he made no objection to going the next day.

Murphy noted, “The court finds that an employer does not have a duty to predict localized weather events that create unsafe driving conditions.”

She also wrote, “Mr. Wiggins’ actions did not play a substantial part in bringing about Mr. Kay’s injuries, instead those injuries were brought about due to the annual risks posed by Maine’s relatively harsh winters.”

Budget Truck, through attorney Michael E. Saucier, of Thompson & Bowie, maintained that the icy road conditions were the result of a flash freeze.

In her decision, Murphy wrote that the plaintiffs failed to make the case that conduct by Budget caused Kay’s injuries.

“At most Budget Truck’s alleged negligence gave rise to the occasion that made Mr. Kay’s injuries possible,” she wrote.

Saucier said Monday, “I thought Justice Murphy put together a very thoughtful and exhaustive opinion on a very tragic case that involved intricate factual interrelationship and complex legal issues involving essentially a vehicle owner, Budget Truck; a vehicle driver, Kay; the rental dealer, Option Rentals; and the transfer vendor, Wiggins.”

Bourque filed a separate lawsuit in the same court in July 2014, seeking damages and reimbursement for his medical bills. That case was apparently resolved at a dispute resolution conference early last month, but there is no indication of what that settlement might be in the docket entries in the Kennebec County Superior Court case. Saucier declined to speak about that case.


Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.