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Westport victims, KCFD driver, fire union sue KCMO in new lawsuit

Westport Crash 2021.jpg
Posted at 4:15 PM, Nov 11, 2022
and last updated 2022-11-11 20:12:40-05

KANSAS CITY, Mo. — A new lawsuit has been filed against the city of Kansas City, Missouri in connection with last December's deadly crash involving a KCFD pumper truck in Westport.

It comes one day after city council members approved $1.84 million in an attempt to resolve four civil lawsuits.

Three people died, another person was injured, and a building partially collapsed when a KCFD pumper truck and an SUV collided near Broadway Boulevard and Westport Road on Dec. 15, 2021.

Michael Elwood, Jennifer San Nicolas, and Tami Knight were killed in the crash.

In the weeks following the crash, their families filed wrongful death lawsuits against the city, fire department, and the driver of the pumper truck, Dominic Biscari.

Knight's boyfriend who was walking with her the night of the crash and the property owners of the damaged building also filed civil lawsuits.

The lawsuit filed on Friday lists Biscari, the families of the three deceased victims, the surviving victim, and the owners of the building as plaintiffs. They are seeking $32.4 million in damages from the city, which was the same amount a judge confirmed for an arbitration award earlier this month.

It claims Biscari initially had legal representation by the city, "but in the weeks that followed, the City reversed its position and withdrew as counsel for Biscari."

The lawsuit alleges the city previously provided legal counsel to employees including firefighters and "created a pattern and practice."

In response, IAFF Local 42, the fire union, filed a grievance against the city. It claimed failing to provide Biscari with an attorney violated the collective bargaining agreement between the city and union.

The KSHB 41 I-Team took the claims of the new lawsuit to University of Missouri - Kansas City Law Professor Jeffrey Thomas. He called the argument unusual.

"So it looks like the argument they're making is that the city by failing to provide a lawyer is in breach and therefore has to pay the full consequences of that failure, which is the $32 million judgement," Thomas said.

Previous court documents obtained by the KSHB 41 I-Team detail a binding arbitration agreement between Biscari and the victims. Both parties appointed Hon. Miles Sweeney to be the arbitrator.

On Oct. 7, Sweeney presided over a full evidentiary hearing.

In court records, the arbitrator said Biscari was negligent and "directly caused" the Westport crash.

The arbitrator recommended a total arbitration award of $32.4 million. It included $29 million to the families of Michael Elwood, Jennifer San Nicolas and Tami Knight.

He also recommended awarding Knight's boyfriend $2 million and $1.4 million to the owners of the building that was damaged by the crash.

A Jackson County District Court Judge confirmed the arbitration award on Nov. 1.

New court documents state Biscari assigned 90% of his claims against the city to the Westport victims on Oct. 27. The records said that gives them standing "to bring this cause of action alongside Biscari for breach of contract."

The lawsuit claims Biscari's lack of legal counsel directly caused "Biscari to suffer damages" including the $32.4 million arbitration award and the judgment against him.

It also alleges sovereign immunity and any limitations on damages do not apply because of the breach of contract claims.

Professor Thomas explained the concept of sovereign immunity.

"The whole doctrine is meant to protect the fiscal resources of the government," Thomas said.

On Thursday, city council members approved a resolution seeking to resolve four civil lawsuits at a price tag of $1.84 million. The amount in the ordinance is the same amount of the state's sovereign immunity limit of $459,893 after it is multiplied by four.

Sovereign immunity limits are, generally speaking, a cap on amounts government entities pay in liability cases.

"It signals to me that the city is trying to move forward and resolve these claims and they're doing so in a way that's fiscally responsible," Thomas said.

"The ordinance authorizes the City Attorney to resolve the matters consistent with state law," the city said in a previous statement.

Along with seeking $32.4 million in damages from the city, they also want a jury trial.

Thomas spoke about a possible impact to taxpayers if the plaintiffs are successful in making their claims.

"It sounds like they're trying to get it from the city and it would be taxpayers through city resources would have to pay," Thomas said.

The plaintiffs did not have a comment to share on Friday. The KSHB 41 I-Team also contacted the city, but has not heard back.

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