A PLEDGE DROWNS — $12.6 MILLION DOLLAR VERDICT

Tim Burke, Manley Burke, tburke@manleyburke.com

During the early morning hours of November 5, 2001, Chad Meredith, a pledge of the Epsilon Beta Chapter of Kappa Sigma Fraternity, along with Travis Montgomery, the Chapter President, and David May, the chapter rush chairman, attempted to swim Lake Osceola on the University of Miami campus. Meredith drowned in seven feet of water as he attempted to reach the opposite shore.

Now, May and Montgomery face a $12.6 million dollar jury verdict and the obligation of the fraternity’s insurance carrier to pay the judgment is an undecided question.

Because a hurricane was approaching the Miami area on November 4, 2001, the University cancelled its Monday classes.  Meredith, taking advantage of the unexpected day off, attended a Sunday night rap concert by Ludacris, went to a party afterwards and then spent the remainder of the night socializing at the Kappa Sigma Fraternity house.  During the course of the night at the fraternity house the idea for an early morning swim was hatched.  Although the University prohibits swimming in the lake, Montgomery had swum across the lake while he was a fraternity pledge, and the University’s School of Architecture annually sponsors a cardboard boat race across the lake, resulting in dozens of students swimming in the lake when their boats flood and sink.  Montgomery apparently initiated the idea that night.  May agreed and ultimately so did Meredith, in spite of the fact that another fraternity member refused to join in the swim and told Meredith twice that Meredith did not have to swim the lake if he didn’t want to.

The Miami Herald described what happened next this way:

“The three had been drinking before they stripped to their boxer shorts and entered the chilly waters before dawn on November 5, 2001.”¹

Another news report described it this way:

“As he swam through the wind-whipped water, Meredith started to flail midway across the lake.  The last thing his friends heard were his panicked cries:  ‘Help!  Help!  Help!  Help!  Help!’  Then he slipped beneath the lake’s surface.”²

An additional fact which became important at trial was that while Montgomery had already finished the swim and was standing on shore when Meredith got in trouble, May was near Meredith in the lake.  May took a couple of strokes toward Meredith, but then, fearing for his own life, he turned away and swam to shore.

Investigations following the death determined that Meredith had made it to within about 40 feet of shore and drowned in water barely seven feet deep.  A few feet more and he would have made it to where he could stand.  Blood tests found that Meredith was intoxicated.  (There was evidence that sometime during the night Meredith, though underage, purchased and consumed his own beer.)  While the University and local police investigated the death, both concluded that it did not result from hazing and was not a fraternity activity.

David Bianchi of the Miami law firm of Stewart, Tilghman, Fox & Bianchi, handled the case for Meredith’s father, the executor of Chad’s Estate.  He argued to the jury that the death was fraternity-related.  Ultimately the jury agreed with him, in spite of the fact that the fraternity was not even a defendant in, or present at, the trial.  At the conclusion of the trial, a series of interrogatories were put to the jury.  (Such interrogatories are written questions designed to assist the jury in reaching its verdict.)  One of those questions asked the jury to decide whether or not the defendants in the suit, Montgomery and May, were acting “as fraternity members and on behalf of the fraternity.”  The jury answered that question “yes.”

Following the week-long trial, which concluded on February 6, 2004, after only three hours of deliberation, the jury ordered the defendants to pay $12.6 million dollars in damages to Chad Meredith’s Estate.

Bianchi had argued that Montgomery and May, as leaders of the Chapter, had a special obligation to Meredith, a pledge, not to expose him to harm.  That duty was heightened by the fact that Meredith was intoxicated.  Bianchi acknowledged that under most circumstances an individual does not have a legal obligation to rescue another who is in a hazardous situation.  But he argued that having placed Meredith in the hazardous situation by encouraging him to swim the lake, the defendants had an obligation to come to his aid even at their own peril.  That they failed to do.

The impact of this verdict on the fraternity’s insurance coverage is, at the moment, unclear.  Neither the Chapter nor the National Kappa Sigma Fraternity is incorporated.  They are both unincorporated associations.  In the State of Florida, unincorporated associations are not subject to suit.  As a result, the fraternity was dismissed from the litigation by a Florida appellate court long before the case went to trial.  The fraternity’s insurance carrier denied coverage to the defendants, finding that the defendants’ conduct was outside the scope of the fraternity’s insurance coverage.  Among other things, the fraternity’s insurance coverage does not extend to injuries caused by hazing since hazing is specifically prohibited by the general fraternity.

Whether or not Chad Meredith’s survivors will ever be able to recover some or all of the jury award from the fraternity’s insurance carrier remains to be seen.  With the amount at stake, that determination will likely involve separate litigation.

In the meantime, this case, which appears to be the largest jury award of its kind in the United States, serves to underscore the fact that the American justice system, and the juries that are a part of it, are unlikely to turn a blind eye to what was clearly intended as a harmless lark but which ended with unexpected tragic consequences.

From the standpoint of how the jury viewed the role of the fraternity, unanswered questions are whether or not the jury would have reacted differently had May and Montgomery not been officers of the Chapter or if the late night socializing had taken place someplace other than the fraternity house.

What’s left is the sad fact that alcohol clouded the good judgment of three young men.  They engaged in a dangerous escapade.  Chad Meredith is now dead.  David May and Travis Montgomery, just beginning their professional careers, face an unimaginable debt to compensate for that death.

The jury’s verdict is likely to be appealed.

¹  The Miami Herald, herald.com, Saturday, February 7, 2004.

²  Knight Ridder Newspapers (KRT), Lisa Arthur, 2/4/04.