Family of Church Music Minister Killed by Off-Duty Officer Wins Judgment Against Birmingham Nightclub
After trial: The Alabama Supreme Court reversed the $37 million judgment against Volcano Enterprises on May 9, 2014 (No. 1121185), holding that service by publication was improper, and remanded the case.
Won by Hare Wynn Newell & Newton and Hare, Wynn, Newell & Newton, LLP.
The widow of Derric Rush, a church music minister killed in a 2009 Birmingham crash by an off-duty police officer, won a default judgment against Club Volcano for serving the officer while intoxicated, after a trial on damages in 2013. The same judgment included $3.25 million against the officer, James Kendrick. The Alabama Supreme Court voided the club's judgment in 2014 because service by publication had not been shown to be justified.
What happened
Derric Edwin Rush, 35, a church music minister, was killed in a 2009 crash in Birmingham, Alabama. The other driver was James Lenoir Kendrick, an off-duty Birmingham police officer. Kendrick was later convicted of reckless manslaughter and sentenced to 12 years.
On August 11, 2011, Rush's widow, Peggy Bender Rush, sued in Jefferson County Circuit Court as administratrix of his estate, on her own behalf and on behalf of the couple's son. The complaint named Kendrick and Volcano Enterprises, Inc., which operated Club Volcano. It alleged that Kendrick met another off-duty officer at the club after his shift, drank heavily in a parked car in the club's lot, then went inside, where he became visibly intoxicated, was served more alcohol and was allowed to leave and drive.
Serving the club was the difficulty. Its owner and registered agent, Daryl Williams, could not be found at his home, which a tornado had destroyed in April 2011. A process server visited the club repeatedly in November and December 2011 and was told by employees that they did not know Williams. On December 19, 2011, the court allowed service by publication, and notice ran in a weekly newspaper over four weeks in early 2012. The club never answered, and the court entered a default against it on April 19, 2012.
A jury trial began on February 25, 2013, on the claims against Kendrick and on damages against the club. Kendrick defended; the club did not appear. The jury found for the family against Kendrick on February 27. On March 1, 2013, Jefferson County Circuit Court entered judgment for $37 million against Volcano Enterprises and $3.25 million against Kendrick. The family was represented by D. Leon Ashford, James R. Moncus III and Bruce J. McKee of Hare, Wynn, Newell & Newton in Birmingham.
The club moved to set the default judgment aside on March 29, 2013, saying Williams had never been properly served and learned of the suit only after judgment. The family answered with more than 30 court mailings sent to his address that were never returned, along with state alcohol board records showing he signed the club's filings. The trial court denied the motion on May 21, 2013, finding parts of his affidavit not credible.
The Alabama Supreme Court reversed unanimously on May 9, 2014. Service by publication requires that a defendant be avoiding service, and the court held that the plaintiff carries the burden of showing it. In its words, the mere inability to find a defendant is not sufficient ground. The server's affidavit showed only that Williams was not at the club, not that employees knew him or could have helped reach him. The judgment against the club was void and the case went back to the trial court. The ruling did not address the separate award against Kendrick.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.Volcano Enterprises, Inc. v. Rush, 155 So. 3d 213 (Ala. May 9, 2014)·Archived copy
- 2.CourtListener, Volcano Enterprises, Inc. v. Rush, Supreme Court of Alabama, May 9, 2014
- 3.ABA Journal, 'Top state court reverses $37M default judgment, calls efforts to serve bar owner insufficient', May 9, 2014·Archived copy
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