Despite calling for “all courses of action” four months ago to settle the civil suit brought by the mother and estate of Otto Zehm, it appears Mary Verner will step down as mayor of Spokane without resolving the case.
Attorneys Breean Beggs and Jeffry Finer, who represent Zehm’s mother and estate, said they could not comment about negotiations. However, they did say they are still waiting to hear from the city and its insurance underwriter, American International Group.
“I’m not aware of any movement in the case,” Finer said.
Verner said time is running out to reach a settlement before Mayor-elect David Condon takes over.
“Anything is possible,” she said. “I don’t know if it’s likely, primarily because the City Council is adjourning on Dec. 19, and I think it’s going to take more time. With the City Council not able to ratify a settlement agreement, then it couldn’t be considered technically settled.”
As part of its insurance plan, the city is on the hook for the first $1 million in liability litigation. Included in that first million is the $119,000 already paid to attorney Carl Oreskovich’s firm to represent former officer Karl F. Thompson Jr. in the civil case, city spokeswoman Marlene Feist said.
AIG would then pay the next $10 million and the city would be on the hook for anything more than that.
Bob Dunn, a veteran civil attorney who just won a $700,000 jury award in a case of wrongful termination against Spokane police Chief Anne Kirkpatrick, said he is unsurprised by the delay between Verner’s stated wishes and a settlement in the Zehm civil case.
“If there is an insurance company involved, the insurance company is the hang-up,” Dunn said. “They are entitled to have their own lawyers evaluate this thing. I suspect they want the transcripts from the criminal case” and evidence the judge “kept out of the criminal case.”
Thompson was convicted on Nov. 2 of using excessive force and lying to investigators to cover up his confrontation with Zehm on March 18, 2006. After Zehm struggled with Thompson, several other officers hog-tied Zehm and placed a mask over his face. He stopped breathing and died two days later.
Thompson remains out of jail pending his Jan. 27 sentencing. Prosecutors are expected to seek as much as 10 years in federal prison. His defense attorneys have until Dec. 23 to file a motion seeking a new trial.
As for the civil case, Verner announced in August that she would seek a settlement after federal prosecutors filed court documents showing that Assistant Chief Jim Nicks said Thompson violated department policy and detectives improperly investigated the confrontation in which Zehm was struck multiple times with a baton and Tasered at least four times.
Up until then, the city’s only public position on the case came in the 56-page answer to the civil suit that was issued in 2009 just one day prior to Thompson’s indictment in federal court.
In that document, co-authored by Oreskovich and Assistant City Attorney Rocky Treppiedi, the city essentially blamed Zehm for his own death because he resisted Thompson.
As for the current delay, Dunn said he doesn’t think a month and a half is a very long time for the insurance company to evaluate the case.
“The only thing the insurance company is trying to figure out is how many zeroes to put on this settlement,” Dunn said. “It’s going to be seven or eight figures.”
Finer said that if a settlement isn’t reached, he expects that U.S. District Judge Lonny Suko will lift the stay he placed on the civil suit soon after Thompson is sentenced.
In addition to Thompson, the suit names Nicks, retired Detective Terry Ferguson and officers Steven Braun, Zach Dahle, Erin Raleigh, Dan Torok, Ron Voeller and Jason Uberuaga.
If the case goes to trial, the city runs the risk of allowing a jury to decide both actual and punitive damages, which are unlimited, Dunn said.
“It depends on how incensed a jury would be after viewing the videotape,” Dunn said. “And a lot of things not allowed in the criminal case would be allowed in the civil case. The fact that he hadn’t committed a crime may make him much more sympathetic to a jury.”
Finer would not comment when asked if the city is putting itself in greater financial danger if the case goes to trial.
But, he added: “The door for discussions has been open since the month following Zehm’s death.”