Mobile cuts deal to settle lawsuit over cop-pedestrian fatal accident

The city of Mobile has agreed to settle a lawsuit over a police collision that killed a pedestrian and severely injured the victim's wife on Government Street in 2011.

Mobile County Circuit Judge Rick Stout separately ruled this week that a related claim against the insurance company of Michael and Mary Bragg is liable for up to $1 million. The insurance company, Safeco Insurance Company of America, had argued that the Braggs' underinsured motorist policy capped liability at $500,000.

Attorneys for Mary Bragg and the estate of Michael Bragg, 63, still must make their case at a civil trial. If the jury awards damages, the insurance company will have to pay that amount minus the settlement amount paid by the city. But the insurance company cannot pay more than $1 million.

So if, for instance, the jury were to award $800,000 and the settlement amount was $300,000, the insurance company's portion would be $500,000.

The terms of the settlement were not immediately clear Wednesday.

According to plaintiffs' attorney Charlie Potts, the Braggs were traveling from their home in Kansas to a family reunion in Florida and were spending a night at the Holiday Inn in downtown Mobile.

On July 29, 2011, the couple ate dinner at Spot of Tea Restaurant on Dauphin Street and started to walk back to the hotel. They stepped onto Government Street near the South Jackson Street intersection. Officer Richard Brown, who was responding to reports of shots fired on Macy Place near the midtown Winn-Dixie, drove his patrol car into them.

Potts said evidence indicates that the car was traveling 43 mph in the 35 mph zone. Brown did not have his emergency lights or siren on.

"We contend that what Officer Brown did was a violation of Alabama state law," he said. "I think the record is pretty clear that Officer Brown was speeding and that he did not have his emergency lights and siren on."

A Mobile County grand jury in 2012 cleared Brown of criminal wrongdoing.

Potts said Police Chief James Barber, who was deputy chief at the time, testified at a deposition that the department's policy in 2011 gave officers discretion over when to turn on the emergency lights and sirens. That appears to conflict with a state statute that requires officers to use the lights and sirens when they violate the rules of the road.

The current policy states that the siren and blue light "shall not be used unless dictated by the circumstances." The policy also states that "improper use may also cause disadvantages."

There is some dispute about whether the shots fired call was an emergency. Barber testified that the department does consider it an emergency, according to Potts. But he said Brown testified that he did not consider it an emergency because reports of shots fired usually turn out to be unfounded.

Jarrod White, an attorney for Safeco, expressed sympathy for the Bragg family. "It's a tragic accident," he said. "We all wish it didn't happen."

But White said the Braggs contributed to the accident by stepping into the road from behind an oak tree when Brown had a green light. Eyewitness testimony and video evidence will prove that, he said.

"In other words, they were jaywalking," he said.

Under Alabama law, victims are not entitled to civil damages if they are partially responsible for the accident.

White also contends that Brown and co-defendant Lt. Eldridge Fox, both of whom are covered by the settlement with the city, are immune because they were acting in scope of their official duties. The plaintiffs counter that immunity does not apply because Brown was breaking the law by speeding and failing to use his emergency lights and siren.

Because the Braggs' Safeco policy was in Kansas, that state's law applies in this case. Stout wrote in his order that the language of the policy is vague as to whether it provides a maximum of $500,000 coverage to each victim to a total of $500,000.

"Because of the Court's finding of ambiguity, the Court is bound by Kansas law to find coverage exists for each named insured, Michael and Mary Bragg, in the amount of $500,000 each," he wrote. "Because the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language."

White said he disagrees with the interpretation, adding that it will be an issue on appeal if Safeco loses the case. "We believe the law is very clear," he said.

Attorneys for the plaintiffs and the insurance company said they have discussed possible out-of-court settlement terms. But they agreed they are not close to a deal.

Potts, the plaintiffs' lawyer, sad the Braggs were pillars of their community. Michael Bragg worked for years in the sales department of Goodyear and Mary Bragg was a teacher, he said.

"They were exactly the kind of people that Mobile wants to attract to our city," he said. "They were tourists spending money."

Updated at 6:59 p.m. to correct an error in the name of Government Street.

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