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What can Todd Bertuzzi teach us about the Oregon bus crash?

Remember Steve Moore vs. Todd Bertuzzi, originally filed in Colorado State court? That case tells us a lot about what NOT to do when contemplating a lawsuit between parties of different jurisdictions. These lessons are also instructive for potential litigation arising out of the tragic December 30th Oregon bus crash which killed and injured many Canadians and Koreans.

The simplest lesson is this-Don't file a lawsuit until you've determined which jurisdiction's laws provide the most favourable outcome, both in terms of proving liability and maximizing damages. When courts consider whether plaintiffs chose the wrong forum, and dismiss suits to other jurisdictions, these plaintiffs get stigmatized as "forum shoppers." When that same analysis is considered prior to filing, to consciously decide the most appropriate court in which to do so, it's considered good lawyering.

Steve Moore apparently didn't realize that Colorado's Citizens' Access to Colorado's Courts Act, ยง13-20-1001, et seq. required that he be a resident of Colorado, and not Thornhill, Ontario, in order to proceed with a case there. Noting that British Columbia provided a more appropriate forum, since all of the defendants either resided or did business here, the Colorado Court declined to find personal jurisdiction over Bertuzzi, Orca Bay, Marc Crawford or Brian Burke, and ordered Moore to pay costs for their defense. Rather than heeding that court's suggestion (and probably assuming that he'd be denied a fair trial in Canucks country), Moore proceeded to file in Ontario, alleging that the Ontario Court had appropriate jurisdiction since Moore's parents watched the hit on TV in Ontario and suffered nervous shock there. As of this writing, the Ontario Court has yet to rule on that case.

Over the past two weeks, we've read that four people injured in the Oregon bus crash have now filed suit, just weeks after the crash-two Korean students in Washington having filed there and two BC residents having filed here. I'm left asking "Why?". Sure, BC and Washington both have some connection to the parties in the case, but only Oregon is ideal from both a liability and damages perspective. Washington State law does not allow for punitive damages. BC compensatory damages are subject to the cap on non-economic claims, as controlled by the Andrews trilogy, as well as conservative judges. Moreover, BC products liability claims are subject to a negligence standard as opposed to the more favourable strict liability theory available in the US. Most importantly, neither Washington nor BC have personal jurisdiction over one of the more critical parties to the case-the Oregon State Department of Transportation.

Let's examine what we know so far about the crash. Nine people killed. 39 others injured. A BC bus company operating a tour through Southern California on a 1998 Prevost bus not equipped with seatbelts. The driver allegedly driving for longer periods than he was allowed to drive under the law. Whether or not that is so, his actions in steering the bus surely imply that he was negligent, and therefore, a foregone conclusion that the driver's insurance will be exhausted. It will be further alleged that the bus company is vicariously liable for the negligence of its employee, and perhaps a further conclusion that its fleet of buses and the insurance umbrella covering that fleet will be exhausted.

So imagine you're one of the people injured in this crash, incurring medical expenses, unable to work, and interested in receiving compensation for your losses. How many other claims will you be competing with? Even with $10 million in company insurance, how much will that leave per claim? And consider that nine people were killed. Unlike in BC, wrongful death claims in Oregon allow the decedent's estate to recover the decedent's entire future lifetime earnings, subtracting the amount they would have consumed-in most cases, this represents at least a million dollar claim. For a high wage earner, it could be four times that. It should be obvious that there will be insufficient insurance and assets to satisfy all of the injury and death claims.

Or will there? Not to say that the driver and the bus company aren't to blame, but how does a bus roll down a steep embankment on an icy stretch of highway known as "Deadman's Pass"? Presumably, the State of Oregon is aware that this highway becomes treacherous in the winter, that buses and cars tend to fishtail, that it's reasonably foreseeable that a vehicle will hit a guardrail there. (Why was a guardrail there in the first place?) So why wasn't a guardrail erected by the State that was fit for its intended purpose? Viewed with these questions in mind, this tragedy was preventable. And the Oregon Department of Transportation cannot be sued in Washington, nor in BC. Victims seeking compensation would be wise to sue in Oregon. I will be doing so for my BC clients.

I guess we'll wait to see what the Ontario Court says about Mr. Moore's claim. But by my way of thinking, that whole incident was precipitated by the NHL's fighting rules, which discouraged retaliation in the immediate aftermath of the Naslund hit during the clubs' previous meeting. Evaluating that case before it was filed, one would learn that those rules were promulgated in New York, where the NHL "resides", a jurisdiction which allows for punitive damages and has no cap on pain and suffering. Mr. Moore sued Bertuzzi, Crawford, Burke and Orca Bay in Ontario, a jurisdiction with a spurious connection to any of these defendants. Why not add the NHL and sue in New York Federal Court? Unfortunately, doing so now might be less advantageous, since Mr. Moore could be seen as a forum shopper.

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