Employer liability tested in fatal ’05 Metro area crash

 Lawsuit questions firms’ responsibility with drunken workers

 JENNIFER CHAMBERS

The Detroit News

 Hours before Thomas Wellinger climbed behind the wheel of a car and killed a woman and her two young sons in a horrific 2005 drunken driving crash, his boss told the UGS Corp. sales executive that his performance was “unacceptable,” according to a civil lawsuit against the company.

 Wellinger left his Livonia office at 2:45 p.m. to see a psychiatrist about his alcoholism, the lawsuit alleges. Forty-five minutes later, police say, he plowed his SUV at 70 mph into a car carrying Judith Weinstein and her boys, Alex and Sam, of Farmington Hills. His blood-alcohol level was 0.43.

 Did UGS Corp. know that Wellinger, a sales executive, was intoxicated when he left the office? Was he directed to the doctor’s appointment by UGS as a condition of his continued employment?

 Those questions are at the heart of the wrongful death lawsuit filed by widower Gary Weinstein against the company in U.S. District Court in Detroit. On Wednesday, Judge Paul D. Borman is expected to decide whether to send the case to a jury to answer those questions, or dismiss the matter as requested by UGS.

 An even bigger question about Michigan law looms in the courtroom: Can a company be held liable — potentially for millions of dollars — for the conduct of an employee who is intoxicated?

 Attorneys for Texas-based UGS argue no.

 Calling the crash “tragic and avoidable,” attorneys for UGS have stated in court papers that the only person to blame is Wellinger, who is serving a 19- to 30-year prison sentence.

 In his motion to dismiss the case, UGS attorney James Feeney said there is no “absolutely” no evidence that Wellinger was visibily intoxicated at work that day. Seven UGS employees — five of them who saw Wellinger in the hour before the accident — say they did not suspect he had been drinking that day. Feeney did not return calls seeking comment.

 “Michigan courts have consistently held that employers do not owe a duty to the public at large to prevent intoxicated employees from leaving the premises, even where an employer directs a visibly intoxicated employee to leave the premises,” Feeney wrote.

 Feeney also wrote that there is no evidence that Wellinger was ordered to the appointment as a condition of his employment. The company did not make the doctor’s appointment, pay for it or know the name of the physician, Feeney said.

 Weinstein is suing for an unspecified amount of damages. His attorney, Barry LaKritz, paints a different picture of the day of May 3, 2005.

 According to court records, Wellinger started work at 7:25 a.m. He later admitted to authorities that he had drunk 6 ounces of vodka by 10 a.m.

 Wellinger attended an 11 a.m. performance review with his boss, Ed Arlin. At that meeting, LaKritz alleges, Arlin directed Wellinger to go to the appointment and told him questions to ask the doctor and to report back to him.

 Wellinger left the building for lunch — his exact whereabouts remain unknown — and when he came back, he acted strangely, employees testified.

 Francoise Sudres-Kovac, a UGS executive assistant, said in a deposition that after Wellinger returned from lunch “he came behind me and playfully hit me in the back. I turned around, and he was standing, grinning, in a boxer’s stand with his fists up. He looked scary, smiling but with a wild look in his eyes. … He never acted that way before.”

 LaKritz says it was well-known around the halls of UGS that Wellinger was an alcoholic. Four UGS workers have described seeing Wellinger intoxicated at work from December 2004 through the day of the crash, LaKritz says.

 Within 45 minutes of leaving the office, Wellinger’s blood-alcohol level was 0.43, nearly six times the legal limit in Michigan. In order to reach this level of intoxication, experts say Wellinger would have had to consume between 20 and 22 ounces of alcohol — almost the amount in a full fifth of liquor.

 Weinstein, who is expected to have many supporters in court when the decision comes down, declined to discuss the lawsuit with The Detroit News.

 In a previous interview, Weinstein said the death of his wife and two sons, ages 12 and 9, by a drunken driver should be a call to action to everyone, including employers, to be responsible.

 “It was his employer who needed to step up and be responsible and his co-workers who were putting an intervention together that next weekend. It was one weekend too late,” Weinstein said.

 jchambers@detnews.com”>jchambers@detnews.com (734) 462-2289

 Additional Facts

Timeline

Here is a chronology of Thomas Wellinger’s morning on May 3, 2005:

7:25 a.m. Wellinger arrives at his UGS office in Livonia.

10 a.m. Wellinger drinks 6 ounces of vodka before 10 a.m.

11 a.m. to noon : Wellinger meets with boss Ed Arlin, who claims in a deposition he saw no signs of intoxication.

Noon: Wellinger leaves the office for about one hour for lunch.

1:45 p.m. Wellinger and co-worker have exchange in hallway. One woman says, “He looked scary, smiling but with a wild look in his eyes.”

2:45 p.m. Two employees on a smoke break see Wellinger leave UGS offices for his psychiatric appointment.

3:30 p.m. On the way to the appointment, Wellinger strikes the Weinstein car on 12 Mile in Farmington Hills, killing all three occupants.

Source: Court records, police records

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