Wendler still angling to sue Cottrell in Madison County

Steve Korris Dec. 21, 2006, 6:43am

If Fifth District Appellate Judge Terrence Hopkins had lived a little longer, he would have helped decide whether truck drivers can continue suing Georgia trailer maker Cottrell Inc., in Madison County.

Hopkins and two other Fifth District judges heard an appeal of a Madison County verdict in Brdar v. Cottrell, but Hopkins died before they reached a decision.

Cottrell attorney Daniel Nester of St. Louis told Circuit Judge Daniel Stack in a Dec. 11 brief that the appeal may have to be resubmitted.

He wrote, "This has been confirmed by the Clerk of the Fifth District."

Stack at a Nov. 29 hearing had postponed a decision in a Cottrell case after plaintiff attorney Brian Wendler told him a decision in Brdar was imminent.

Stack asked Cottrell to respond in a brief.

Nester responded that, "This conclusion allegedly was drawn from a conversation in the hall with a 'retired Fifth District judge.' This conclusion is mere speculation…"

He wrote that there was no indication Brdar would be decided soon. "In fact," he wrote, "circumstances indicate otherwise."

In the case before Stack, truck driver Gary Clark claims he suffered injuries while loading vehicles on Cottrell trailers.

Cottrell moved to dismiss on grounds of forum non conveniens, arguing that the injury occurred in Tennessee.

Stack granted the motion in September. He wrote that Tennessee law applied and a Tennessee court should hear the case.

On behalf of Clark, Wendler moved in October for reconsideration. He wrote that Stack committed an error and that further evidence had come to light.

Nester opposed reconsideration. He wrote, "Plaintiffs may disagree with the decision of the court, but that disagreement certainly is not an indication that your Honor erred in applying the law to the facts in this case."

At the Nov. 29 hearing Wendler made no headway with claims of error and new evidence, but he caught Stack's attention when he brought up the Brdar appeal.

Stack said putting it off for the Fifth District would take time.

Wendler said, "That is the risk my client is willing to take."

Cottrell attorney Dan Carpenter of St. Louis protested that Wendler had not raised the Brdar appeal in his motion.

Stack signed an order continuing the hearing, but not to await a decision in Brdar. He continued it so Cottrell could write a response on Brdar.

Nester responded in 12 days. He told Stack to stick with his September decision regardless of Brdar.

He wrote, "It just makes more sense for a court in Tennessee to apply Tennessee law."

He wrote, "Cottrell submits that dockets should not 'grind to a halt' depending on what an appellate court may or may not do at some uncertain point in time…"

Under Stack's Nov. 29 order Cottrell will reset the hearing on reconsideration.

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