Copyright 2003 Andrews Publications, Inc.
Tire Defect Litigation Reporter

April 2003

Cooper Granted Transfer To Texas, Denies Liability In Van Rollover

CASE: Wrongful Death: Keith v. General Motors Corp.

Cooper Tire & Rubber Co., having been granted a transfer of a wrongful-death and personal-injury case from Alabama to Texas federal court, has denied liability for the van rollover accident at issue. General Mo tors Corp. is a co-defendant in the case. Keith et al. v. General Motors Corp. et al., No. 03-CV-331-P, answer to amended complaint filed (N.D. Tex., Dallas Div. Feb. 28, 2003).

The case arose June 24, 2002, in Texas, when the tread on the left rear tire of a 1994 Chevrolet Astro van owned and driven by Merton Keith separated and caused the van to roll over. Keith and Ferdona Currie were injured; Nancy Keith was critically injured and died two weeks later.

Suit was filed in Alabama state court and removed to federal court by the defendants on diversity grounds. The suit was then transferred, on Cooper's motion, to the U.S. District Court for the Northern District of Texas.

All of the plaintiffs live in Arkansas. The defendants are Cooper, GM and a dealership, Serra Chevrolet, located in Alabama.

Cooper claims Serra did not sell the van to the plaintiffs and last serviced the vehicle in June 1995 when the mileage was approximately 25,000. The van had more than 130,000 miles when the accident occurred. In addition, Cooper says, the allegedly defective tire w as manufactured after the last time the van was owned or serviced by Serra, and was purchased in Arkansas.

"From the face of the complaint," the tiremaker argued, "it appears Serra was named as a defendant for no reason other than in an effort to destroy diversity. Why else would suit be filed in Alabama state court arising out of an accident which took place in Texas when all eight plaintiffs live in Arkansas"

In answering the plaintiffs' second amended complaint, Cooper denies that the tire was unreasonably dangerous and defective, or negligently designed, manufactured or marketed, and further denies that any condition of the tire in question was a proximate and/or producing cause of the accident.

The tiremaker also says the accident resulted from the negligence of the plaintiffs, and/or "omissions of persons over whom this defendant had no control and for which this defendant can in no way be liable."

Cooper also cites "pre-existing and/or subsequent conditions totally unrelated to the accident," and contends that the suit is preempted by the National Traffic and Motor Vehicle Safety Act and by applicable federal safety standards.

"The tire met or exceeded all applicable marking requirements prescribed by the U.S. Department of Transportation," the answer states.

Finally, the defendant maintains: "Plaintiffs' second amended complaint, to the extent it seeks recovery of punitive damages, violates Article I, Section 13 of the Texas Constitution, and it violates the defendant's rights to substantive and procedural due process as provided in Article I, Section 19 of the Texas Constitution and the Fifth and 14th Amendments of the U.S. Constitution. At a minimum, any award of punitive damages must be based upon clear and convincing evidence."

Cooper is represented by Vincent S. Walkowiak, Jason K. Fagelman and A. Lee Rigby of Fulbright & Jaworski in Dallas.