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Wednesday, April 9, 2008
Allsup's, Family Settle Lawsuit
By Scott Sandlin
Journal Staff Writer
SANTA FE A lawsuit over the death of a night-shift convenience store clerk against her employer was settled Tuesday minutes before a jury was poised to award $51.2 million to the victim's family.
Jurors said the verdict they had reached, but never got to deliver, included about $30 million in punitive damages against Allsup's.
Terms of the settlement were not disclosed.
Attorneys for Allsup's and the children of murdered convenience store clerk Elizabeth Garcia reached a settlement, put on the record before District Judge Raymond Ortiz, just before the courthouse shut down at 5 p.m.
"I know you're really frustrated," Randi McGinn, who with partners Allegra Carpenter and Elicia Montoya represented Garcia's children, told jurors as the settlement was announced.
She got appreciative laughter from the jury box, and teared up briefly as she continued, "We couldn't get their (Allsup's) attention until this (trial)."
An apologetic letter from Garcia's mother and legal team to jurors, handed out by the judge's bailiff, told them the case was settled because of a concession from Allsup's.
"Allsup's has promised to never challenge the convenience store safety regulations in New Mexico," the letter said. "This is something Allsup's was never willing to agree to until you the jury entered into deliberations following this two-week trial in which the facts of Allsup's operations became public."
In a statement through its public relations firm, company Vice President Barbara Allsup offered her sympathy to Garcia's family and friends and said, "Safety and security for everyone going into an Allsup's store will always be an important priority."
"The public should know what all of our workers in New Mexico stores know: Allsup's satisfies every safety requirement under state law. Our stores have for years had safety measures before any regulations that are still in place for the safety of all," her statement said.
Garcia, a 26-year-old single mom, was in her fourth day at work and second night at Allsup's Store No. 146 in Hobbs one of 300 in the family-owned, Clovis-based chain when she was abducted, raped and stabbed repeatedly in 2002. Paul Lovett, a man she didn't know, has been convicted of murdering her and another woman at a later date and is serving two life sentences in prison.
Allsup's has paid workers' compensation benefits of about $41,000 to Garcia's three children since her death but denied any liability for her death over the nearly six years the case has been pending.
Nor did Allsup's pay the $7,714 in funeral expenses for Garcia an oversight Barbara Allsup said in the statement she "only learned about recently."
"The family's loss was compounded by the failure of the company we hired to pay for Ms. Garcia's burial expenses. ... Today, I gave our check to Ms. Garcia's lawyers, and we apologize to the Garcia family for this mistake," Barbara Allsup said.
The Atlanta attorney who represented Allsup's at trial, Y. Kevin Williams, argued that no one can predict the violent actions of a meth-crazed killer.
But the family's attorneys produced evidence to show that Allsup's ignored studies showing methods to cut down on robberies and enhance store safety. Meanwhile, it had successfully sued its own insurance carrier in 1994 for $17 million when the insurer failed to share means of reducing claims.
A principal method of preventing robberies, and one McGinn returned to again and again, was something as simple as adding a second store clerk during the night shift. Based on pretrial rulings, plaintiffs weren't allowed to call it the "graveyard shift."
Jury forewoman Jean Lehman, a Santa Fe real estate agent, said in an interview that the jury had prepared a verdict of roughly $21.2 million in compensatory damages and $30 million in punitive damages.
She and juror Elaine Lucero, who works for an executive placement firm, said the jury had been meticulous in trying to be logical and methodical in a case packed with emotion.
"We tried very hard to stay on every point and be impartial. We were very respectful to each other and to the facts of the case, and to Elizabeth Garcia and her family," Lucero said.
But the jury decided Allsup's had willfully caused Store No. 146 to be unsafe defined in jury instructions as the intentional doing of an act with the knowledge that harm may result.
It apportioned blame for Garcia's murder under New Mexico's comparative fault statute 60 percent to Allsup's and 40 percent to Lovett.