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STATE OF NORTH DAKOTA. COUNTY OF CASS IN DISTRICT COURT EAST CENTRAL JUDICIAL DISTRICT Bryan Dean and Trista Curry, on behalf of the heirs-at-law of Camden Rolland Dean and Maxwell Daniel Dean, deceased minors, and as parents and next friends of Avalon Rae Louise Dean, minor, Plaintitts, vs. Pan-O-Gold Baking Company and Michael Soyring, Defendants. Civil No.: 09-2019-CV-03313 FIRST AMENDED COMPLAINT [11] COMES NOW, Plaintiffs, Bryan Dean and Trista Curry, on behalf of the heirs-at-law of Camden Rolland Dean (hereinafter, “C.D.”) and Maxwell Daniel Dean (hereinafter, “M.D.”), deceased minors, and as parents and next friends of Avalon Rae Louise Dean (hereinafter, “A.D.”), minor, and for their claims and causes of action against Defendants, Pan-O-Gold Baking Company and Michael Soyring, state and allege as follows: PARTIES AND JURISDICTION (12] Plaintiffs Bryah Dean (“Bryan”) and Trista Curry (“Trista”) are the surviving father and mother of C.D, and M.D., deceased minors with no spouse or children of their own, and are the proper parties to bring forth this action in accordance with N.D.C.C. § 32-21-03(3).. [13] Bryan and Trista are the parents and next friends of A.D., a minor, and brings this cause of action on behalf of A.D. (14) (15) [16] (7 (18) (19) [110] At the time of the subject incident, Bryan, Trista, C.D.,M.D., and A.D. resided in Fargo, Cass County, North Dakota. Upon information and belief, Defendant Pan-O-Gold Baking Company (“Pan-O-Gold”) is a Minnesota business corporation doing business in Cass County, North Dakota. Its principal office is located at 444 East Saint Germain Street, P.O. Box 848, St. Cloud, Minnesota 56302-0848, with a Fargo based office/warehouse located at SOI N. University Drive, Fargo, ND 58102. Upon information and belief, at the time of the subject incident, Defendant Michael Soyring (“Defendant Soyring”) resided in Fargo, Cass County, North Dakota. At the time of the subject incident, Defendant Soyring was an employee and/or agent of Pan-O-Gold in the Fargo based office/warehouse, and he was acting in the course and scope of his employment with Pan-O-Gold. At the time of the subject incident, Defendant Soyring was operating a commercial motor vehicle, a 2002 Volvo semi-trailer truck pulling a 1998 Great Dane trailer tractor-trailer”), which was owned by Pan-O-Gold. Defendant Soyring is a resident of Cass County, North Dakota, therefore, venue is appropriate in Cass County pursuant to N.D.C.C. § 28-04-03.1. This Court has jurisdiction over the above-named parties and over the subject matter of this action. (ay (112] (113) (114) (915) (m6) GENERAL ALLEGATIONS On March 25, 2018, Trista was driving a 2013 Honda Pilot with her children, C.D., A.D., and M.D., riding as passengers in the backseat, and they were traveling northbound on Interstate 29 just outside of Reynolds, North Dakota. At that same time, Defendant Soyring was driving the tractor-trailer and was traveling northbound on Interstate 29 just outside of Reynolds, North Dakota. Due to the weather conditions, Trista started to lose control of her vehicle and was heading toward the ditch on the right side of the road. Due to the weather conditions, Defendant Soyring was required to exercise extreme caution in his operation of the tractor-trailer. Defendant Soyring failed to exercise extreme caution by driving too fast for the weather conditions and not managing a reasonable following distance for traffic ahead of him, which resulted in him crashing his tractor-trailer into Trista’s car CD. and M.D. were killed by the force of the crash. A.D. was transported from the scene of the crash to Altru Health in Grand Forks, North Dakota, and she was later emergency- transferred to Sanford Hospital in Fargo, North Dakota with life threatening injuries. COUNT 1 - NEGLIGENCE OF DEFENDANT SOYRING/WRONGFUL DEATH OF C.D. (17) (118) AND M.D. Plaintiffs restate and incorporate herein by reference all preceding paragraphs of this Complaint. At the time of the subject incident, Defendant Soyring was a professional tractor-trailer truck driver and was required to have a Commercial Driver’s License (“CDL"). (119) [120] (921] [122] ‘The tractor-trailer that Defendant Soyring was driving at the time of the subject incident was a commercial motor vehicle. The tractor-trailer was involved in interstate commerce and was subject to North Dakota traffic laws and trucking safety regulations and Federal statutes and the Federal Motor Carrier Safety Regulations. Defendant Soyring had a duty to exercise reasonable care to C.D., M.D., and A.D., as well as other drivers on the road, during his operation of Pan-O-Gold’s tractor-trailer on March 25, 2018. Defendant Soyring breached his duty of care by failing to exercise ordinary care in the operation of the tractor-trailer. Defendant Soyring negligently failed to: a. perform the required pre-trip, during-trip and post-trip vehicle inspection; b. properly identify mechanical defects with his commercial motor vehicle’s brakes; ©. operate his vehicle with due regard for the safety of the motoring public; d. appropriately plan his route of travel; €. manage space around his vehicle; £. maintain reasonable and safe control of his vehicle; g. follow pavement markers; h. maintain his lane of travel; i, make a proper lane change; J. drive ata reasonable and proper speed; 1 t bring his commercial vehicle to a stop within the assured clear distance ahead; keep a proper lookout; ‘maintain a reasonable and safe following distance; drive with the right amount of caution considering the size and weight of his commercial vehicle; drive with the right amount of caution considering the weather conditions; ‘exercise extreme caution due to weather conditions in accordance with truck driver regulatory requirements; match the speed of his commercial motor vehicle to the road surface in accordance with truck driver standard of care guidelines; drive ata speed that would not be hazardous to himself or other traffic; reasonably judge the closeness of the vehicles around him; remain reasonably alert; reasonably anticipate dangerous situations that might be caused by road conditions or other motorists due to road conditio look far enough ahead to avoid hard braking; exercise due care; drive defensively; safely maneuver his commercial motor vehicle; drive without confusion; (123) [924] [125] [126] (27) aa, drive without distraction; bb. maintain a safe route of travel; cc. yield the right of way dd, drive while not fatigued; ec. drive while medically, physically, and mentally fit; and, ff. comply with the minimum safety standards required by the Federal Motor Carrier Safety Regulations. Defendant Soyring was negligent in the care, management and/or operation of his tractor-trailer. Defendant Soyring otherwise failed to act reasonably and prudently as a professional commercial driver would under the circumstances. Defendant Soyring’s wrongful conduct constitutes prima facie evidence of negligence. Defendant Soyring’s negligence was the direct and proximate cause C.D.’s and M.D.’s death, causing significant economic and non-economic damages under N.D.C.C. § 32-03.2-04 to the surviving heirs-at-law, which will likely continue into the indefinite future. As a direct and proximate cause of Defendant Soyring’s actions, A.D. was injured and suffered serious and significant economic and non-economic damages under N.D.C.C. § 32-03.2-04, which will likely continue into the indefinite future. Plaintiffs will, in a separate motion, request the amendment of this Complaint to allow the submission of a punitive damage claim. [128] Plaintiffs have been damaged in an amount in excess of $10,000,000.00 (ten million dollars) as a result of Defendants’ negligence. COUNT 2.= INDEPENDENT DIRECT NEGLIGENCE OF PAN-0.GOLD/WRONGFUL [729] [930] (131) (152) (33) | DEATH OF C.D. AND M.D. Plaintiffs restate and incorporate herein by reference all preceding paragraphs of this Complaint. At all times hereto, Defendant Soyring was an employee and/or agent of Pan-O-Gold, acting within the scope and course of his employment and/or agency. As an employer, Pan-O-Gold was independently negligent in training, entrusting, supervising, and retaining Defendant Soyring in connection with his operation of a commercial motor vehicle and for otherwise failing to act as a reasonable and prudent trucking company would under the same or similar circumstances. Pan-O-Gold knew or should have known of the adverse weather conditions occurring at ‘the time of the crash and, as such, should have directed Defendant Soyring off of the highway and onto a different route or to a place of safety, but negligently failed to act as a reasonable and prudent operator of tractor-trailers would under the same or similar circumstances. Pan-O-Gold knew or should have known that the tractor-trailer involved in the collision was a commercial motor vehicle that required periodic maintenance of safety critical components and that the tractor-trailer should have received reasonable and ordinary inspection, maintenance, and repair, but negligently failed to act as a reasonable and prudent operator of tractor-trailers would under the same or similar circumstances. [934] (135) [136] (B7] Pan-O-Gold was further negligent for failing to equip the tractor-trailer with standard safety equipment that likely would have prevented the collision or aided in the prevention of the severity of the collision. The tractor-trailer involved in the collision was a commercial motor vehicle operated by and under the direct control of Defendant Soyring but was owned and/or leased by and under the control of Defendant Pan-O-Gold and was being used on behalf of and for the benefit of Pan-O-Gold. Pan-O-Gold was, at all relevant times, a motor carrier as defined by the Federal Motor Carrier Safety Regulations and was engaged in interstate commerce. As such, Pan-O-Gold was subject to the Federal Motor Carrier Safety Regulations. The operation, maintenance, and control of the tractor-trailer was governed, licensed, supervised, and regulated by State and Federal regulations, and as such, was operated pursuant to a certificate of authority given to Pan-O-Gold by the Federal Motor Carrier Safety Administration to operate said vehicle on designated routes. As a motor carrier, Pan-O-Gold had certain duties and responsibilities as defined by the Federal Motor Carrier Safety Regulations and industry standards, including the duty to properly qualify Defendant Soyring, the duty to properly train Defendant Soyring, the duty to supervise the hours of service of Defendant Soyring, the duty to properly inspect and maintain its vehicles, and the duty to otherwise establish and implement necessary management controls and systems for the safe operation of its commercial motor vehicles, [738] 1939] [140] (141) (142) [143] [144] Pan-O-Gold was also independently negligent in failing to meet its duties and responsibilities | under the Federal Motor Carrier Safety Regulations and industry standards. As a direct and proximate cause of Pan-O-Gold’s actions, C.D. and M.D. died, causing significant economic and non-economic damages under N.D.C.C. § 32-03.2-04 to the surviving heirs-at-law, which will likely continue into the indefinite future. As a direct and proximate result of Pan-O-Gold’s actions, A.D. was injured and suffered serious and significant economic and non-economic damages under N.D.C.C. § 32-03.2-04, which will likely continue into the indefinite future. Plaintiffs will, ina separate motion, request the amendment of this Complaint to allow the submission of a punitive damage claim. Plaintiffs have been damaged in an amount in excess of $10,000,000.00 (ten million dollars) as a result of Defendants’ negligence. COUNT 3 - VICARIOUS LIABILITY Plaintiffs restate and incorporate herein by reference all preceding paragraphs of this Complaint. At the time of the subject incident, Defendant Soyring was an employee, agent, leased driver, representative, and/or servant of Pan-O-Gold. At all times relevant hereto, Defendant Soyring was engaged in activity that was within the scope of, and during the course of, his agency and/or employment for or with Defendant Pan-O-Gold, which is responsible for his conduct as a matter of law under the principles of respondeat superior. [145] [146] (947] [148] (149) [150] (451) Defendant Soyring was engaged in activity while on duty for Defendant Pan-O-Gold with the knowledge and consent of his supervisor. Atal times relevant hereto, the tractor-trailer described herein was operating under U.S. DOT#116433 registered to Defendant Pan-O-Gold , which is therefore responsible for the conduct of each of its drivers as a matter of law. Asa result of Pan-O-Gold’s business relationship with Defendant Soyring, Pan-O-Gold is vicariously liable for the negligence of Defendant Soyring and is liable for all damages caused to C.D., M.D., and A.D., arising out of Defendant Soyring’s actions and negligence, Inrespective of the employmenticontractual relationship between Pan-O-Gold and Defendant Soyring, Pan-O-Gold is a private motor carrier subject to Federal Motor Carrier Safety Administration (FMCSA) Regulations and State Regulations; therefore, it is responsible for the acts of its drivers as a matter of law, As a direct and proximate cause of Pan-O-Gold’s actions, C.D. and M.D. died, causing significant economic and non-economic damages under N.D.C.C. § 32-03.2-04 to the surviving heirs-at-law, which will likely continue into the indefinite future. As a direct and proximate result of Pan-O-Gold’s actions, A.D. was injured and suffered serious and significant economic and non-economic damages under N.D.C.C. § 32-03.2-04, which will likely continue into the indefinite future. Plaintiffs will, in a separate motion, request the amendment of this Complaint to allow the submission of a punitive damage claim. (152] {953} Plaintiffs have been damaged in an amount in excess of $10,000,000.00 (ten million dollars) as a result of Defendants’ negligence. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that the Court enter its judgment as follows: Recovery of past and future economic damages under N.D.C.C. § 32-03.2-04 in a reasonable sum far in excess of $50,000.00, awarded to C.D."s and M.D.’s heirs-at-law in connection with the wrongful death actions; Recovery of past and future non-economic damages under N.D.C.C. § 32-03,2-04 ina reasonable sum far in excess of $50,000.00 and likely in excess of $10,000,000.00 (ten million dollars), awarded to C.D.’s and M.D.’s heirs-at-law in connection with the wrongful death actions; Recovery of past and future economic damages under N.D.C.C. § 32-03.2-04 in a reasonable sum far in excess of $50,000.00, awarded to A.D.; Recovery of past and future non-economic damages under N.D.C.C. § 32-03,2-04 ina reasonable sum far in excess of $50,000.00 and likely in excess of $10,000,000.00 (ten million dollars), awarded to A.D. Costs and disbursements of this action herein; Interest; Attorney's fees (if allowed by law or equity with respect to any of the claims herein); and Such other and further relief as this Court may deem just and equitable. JURY DEMAND BY JURY OF SIX [154] Trial by a jury of six is herewith demanded pursuant to N.D.R.Civ.P. 38. pated this 2 day of July, 2019. Nathan Severson (ND 1D #06402) ‘Tara Anderson (ND ID #08698) SEVERSON, WOGSLAND & LIEBL, PC 4627 44th Avenue South, Suite 108 Fargo, North Dakota 58104 ‘Telephone: (701) 297-2890 Fax: (701) 297-2896 nathan.severson@swlatiomeys.com swlattomneys.com ‘OR PLAINTIFFS