Family sues UPS following hit-and-run death

June 6, 2011 at 1:06 a.m.

The mother and wife of a Victoria man killed after being struck by a United Parcel Service tractor-trailer are suing the international package delivery company.

Plaintiffs Maria Cahue, of Victoria, and Alma Palacios, of Laredo, originally filed the lawsuit in the Calhoun County Court-at-Law No. 1 in April after the death of Christian Emmanuel Gutierrez Garcia.

Garcia was Cahue's common-law husband and Palacios' son.

However, the case was moved to the Victoria federal court May 27, after Atlanta-based UPS filed a motion to transfer venues.

Also named as defendants in the suit are Steven Booker, a UPS employee and driver of the UPS tractor-trailer that struck Garcia, and Coby Cowan, owner of the Port Lavaca-based tow truck company Garcia worked for at the time of his death.

Cahue and Palacios allege the defendants' negligence led to Garcia's death.

Dan McMackin, a spokesperson for UPS, declined to comment per a company policy of not commenting on ongoing litigation.

On March 31, Garcia, 24, was making a call in Refugio County for Colby Auto and Wrecker Service.

According to earlier reports, about 6 a.m. Garcia, a three-time Iraq combat Marine veteran, was loading a disabled vehicle onto his wrecker on the shoulder of northbound U.S. Highway 77 at the Chocolate Swale bridge when he was struck and killed by a UPS tractor trailer driven by Booker, 44.

The vehicle Garcia was loading had been in an accident that was not reported.

After striking Garcia, the lawsuit contends, Booker left the scene without stopping to render aid.

A decision of whether to file criminal charges against Booker will not be made until after a Refugio County grand jury meets in July, said Texas Department of Public Safety Trooper Carl Currie.

The plaintiffs claim Booker was negligent for a number of reasons, including failing to keep a proper lookout; failing to keep the vehicle under control; failing to stop and render aid; driving at an excessive speed under the circumstances; and taking faulty evasive action.

They also accused UPS of failing to properly train Booker on how to use and operate the tractor-trailer, according to the lawsuit.

The lawsuit contends Booker's conduct violated Federal Motor Carrier Safety Administration regulations.

The Advocate's attempt to learn more about Booker's commercial driving record or any investigations against him yielded no results.

Duane DeBruyne, a spokesperson for the Federal Motor Carrier Safety Administration, said he was unable to release individual drivers' records because of federal privacy laws.

The Advocate has submitted a public information request to the Texas Department of Public Safety for both Booker and Garcia's driving records.

Meanwhile, the lawsuit alleged Cowan, whose company is not a subscriber to Texas' worker's compensation coverage program, was negligent for failing to properly train Garcia and failing to provide appropriate safety equipment.

The plaintiffs are seeking personal injury damages that include pecuniary losses, loss of companionship and society and mental anguish.

"We have a woman who lost her husband, and a mother who lost her son," said Gary Laws, attorney for the plaintiffs. "We believe this was avoidable had the driver used a modicum of care."

Cahue declined to comment further on the case.

Messages left for Cowan and the UPS attorney also were not returned.

Although the case is filed in the Victoria federal court, Laws said he plans to file a request to move it back to the Calhoun County court, where it was originally filed.

"We feel it's the best place for the case and the most prudent place to proceed to trial," Laws said.



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