Eagles lose challenge of toddler verdict
Judge refuses to toss $8 million award in death of Hartland boy
By Karen Bouffard / Special to The Detroit NewsHOWELL -- The national Fraternal Order of Eagles has lost its challenge of a jury's $8 million judgment in the death of Kegan McClelland, a 2-year-old Hartland Township boy who drowned in a septic tank during a family picnic at the Howell Eagles' lodge on April 29, 2000.
Livingston Circuit Judge Daniel Burress rejected motions Wednesday to throw out the November 2001 verdict, saying the case was fairly tried and the judgment is justified by the horrific nature of the boy's death.
On behalf of Kegan's parents, Southfield attorney Geoffrey Fieger successfully argued last fall that the organization was grossly negligent for improperly covering the tank's three-foot-wide opening. Eagles attorney John P. Jacobs of Detroit failed to convince the jury that the national organization shouldn't be held liable for the actions of its local chapters.
Jacobs argued Wednesday that Burress erred at trial by entering a default judgment against the Eagles, in part for failing to provide accurate information about the extent of the organization's insurance coverage. He also implied that an attorney for the local Eagles chapter -- which admitted fault and agreed to a settlement in the case -- colluded with the plaintiffs to deflect blame onto the national organization.
Jacobs said attorney Charles Cheetham's "hang-dog look and appeasing guilty silence" was designed to provoke the jury's anger against his client.
"I am deeply wounded by the alliances that were not made known to the jury," Jacobs said. "I believe I'm entitled to a new trial. This is going to be a (Michigan) Supreme Court case."
Burress responded: "There was no collusion. The testimony was some of the most compelling I've heard in the court. At times there was not a dry eye in the house, including myself. It was the facts, presented ably, that convinced the jury to make the awards that they did."
Jacobs argued that the judgment against the Eagles should be limited to $300,000 -- an amount equal to the maximum the Howell chapter could be held liable for under its settlement agreement. If not, Jacobs argued, the judgment should be no more than $1.5 million. Burress disagreed.
"For all of us who sat through the trial, this is a case that will be with us for many years to come," Burress said. "There are facts about it that won't leave me -- the testimony of the EMS driver, the diver who went down into the tank, the fact that this was witnessed by Mrs. Harter, who wanted to jump into that tank to bring her child back.
"Was ($8 million) within the limits a reasonable person would consider an appropriate award in this case? I would say yes."
Attorney Robert Giroux, of the Fieger law firm, said he hopes the Eagles will choose to negotiate a settlement, rather than prolonging the parents' suffering through a lengthy appeals process.
The boy's parents, Lacy Harter and Mike McClelland, have received no compensation in the case. They said there was no joy in the hearing's positive outcome. What they hope to win is justice.
"It takes just a few minutes to lose your life," McClelland said. "But years for punishment to happen."
Fieger wins $8 million for parent of toddler who drowned
National fraternity attorney wants verdict thrown out
By Karen Bouffard / Special to The Detroit News - 7/26/02 Source: http://detnews.com/2002/livingston/0207/25/c05l-545419.htmHOWELL -- Attorneys in the case of Kegan McClellend -- a Marion Township toddler who drowned in an unsecured septic tank at the local Eagles' lodge in April 2000 -- continued the fight Wednesday over a jury's award of $8 million to the 2-year-old's parents.
John P. Jacobs, an attorney for the Grand Aerie of the Fraternal Order of Eagles, the group's national organization, claimed the verdict should be thrown out because the Grand Aerie isn't responsible for the actions of its local chapters. He also said Circuit Judge Daniel Burress "overreacted" and made several errors during the November trial.
Southfield Attorney Geoffrey Fieger, representing the parents, called Jacobs' arguments "absurd" and said the Eagles' attorney invented a "new theory of case law" to substantiate his claims.
Appearing exasperated, Judge Burress demanded Jacobs provide detailed evidence -- including times, dates and witnesses -- to substantiate Jacobs' arguments that their were errors in the original trial. He adjourned the hearing after three hours, saying it would resume in about two months to allow time for further "discussion."
"I want a fully developed record of everybody involved, what they know, and when they knew it," Burress told Jacobs. "I want everybody put to the test with cross examination, and I'll do it here in this courtroom."
Kegan's parents, Mike McClellend and Lacy Harter, and Harter's sister Tracy Pellegrino, appeared downcast during the hearing, which was the first step in an appeals process that could take as long as 10 years. The parents have not received any money from the judgment.
"They (the parents) don't want to go back through trial," Pellegrino said. "That's the worst thing."
In a motion to have the case retried, Jacobs said the local chapter, located on South National in Howell, is completely independent of the Grand Aerie. The Howell group admitted responsibility for the incident, which occurred during a family fun day at the facility, and agreed to pay the parents $300,000 in damages.
"The (local chapter) had utterly no dominion or exercise of control by the Grand Aerie," Jacobs said. "As a matter of policy, we don't make national organizations responsible for local activities.
"I've defended a lot of major corporations such as Sonoco and McDonald's based on the fact they have a global network of franchises, but that doesn't make them responsible for the actions of every franchise," he added.
Fieger rebutted Jacobs' arguments, saying the Grand Aerie's constitution states it has the right to control the activities of local chapters -- even if it doesn't choose to exercise that right.
"McDonald's just last week paid me an incredibly large amount of money for the actions of one of its franchises," Fieger said.
Jacobs also said the verdict against the Grand Aerie should be limited to $300,000, the amount the local chapter agreed to pay to avoid being sued. He said Burress "overreacted" by declaring a default judgment against the national Eagles' after being misinformed about the extent of the organization's liability insurance coverage.
The court was initially told the Eagles' coverage was limited to $1 million by its primary carrier, Legion Insurance Company. It wasn't informed about additional excess coverage provided by Ohio Casualty.
Jacobs said that to hold the Grand Aerie responsible for the mistakes of the insurance companies would not "serve justice" for the Eagles.
Burress asked, "How about the Harters' need for justice?
"You are entitled to your opinion that I went into orbit on this," Burress said. "But my approach to this was thoughtful, cautious and measured."