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Suit alleges negligence by driver, employer in deadly accident three years ago

A memorial with flowers and stuffed animals marks the U.S. Highway 2-Airport Road intersection west of Grand Forks where Kaylee-Jo Wyatt, 8, and Kevin Boyer III, 5, were killed Dec. 22, 2010, in a two-vehicle collision. Herald File Photo.

The lawsuit by victims of the Christmas crash three years ago west of Grand Forks when a semi-tractor trailer ran a red light and hit a van, killing two children and injuring another and their father, alleges the truck driver violated federal regulations by driving too many hours without rest and using a prescription painkiller that causes drowsiness.

It also argues United Parcel Services of America is liable -- as well as the truck driver, Steven Nelson, and his employer, Simplex Leasing of Jamestown, N.D. -- because the driver was hauling two UPS trailers.

The suit over the 2010 crash is set to go to trial Dec. 16 after more than two years of legal wrangling.

On Monday at the final pretrial hearing, state District Judge Lawrence Jahnke allowed Kevin Boyer and Catana Boyer to seek punitive damages, as well as at least $116,000 medical, personal injury and funeral costs.

While Jahnke didn't grant UPS' strenuous requests to be dropped from the case, he did excuse them from liability for any punitive damages.

The case includes multiple lawyers for four parties -- the Boyers, Nelson, Simplex and UPS -- arguing over who is liable for how much in the horrific accident.

The crash

It was just before 10 a.m., Dec. 22, 2010.

Kevin Boyer Jr. was driving his GMC van north across U.S. Highway 2 at the road into the Grand Forks International Airport, headed home from a medical appointment. While he was waiting for southbound traffic out of the airport to clear, his van was hit by an eastbound Volvo tractor-trailer with a double-trailer rig, empty of cargo, driven by Steven Nelson of Jamestown.

Two children were killed: Boyer's son, Kevin III, 5, was thrown from the van into the snow in the median and his stepdaughter, Kaylee-Jo Marie Wyatt, 8, was found partially ejected through the rear window.

Boyer's three-year-old son, identified in court documents by his initials, was seriously injured, found on the floor of the van. Boyer himself also was seriously injured.

Criminal case

In March 2011, Nelson was charged with two counts of negligent homicide, each a Class C felony with a top prison sentence of five years, and one count of aggravated reckless driving, a Class A misdemeanor with a top jail sentence of one year.

He pleaded guilty and was sentenced in September 2011 to a year in jail with all but 60 days suspended, which he served on electronic home monitoring, and 100 hours of community service.

Kevin Boyer and Catana Boyer, the mother of the children, divorced in 2011, beginning proceedings only weeks after the crash.

In 2012, they filed the lawsuit.

In their divorce the Boyers agreed to split any proceeds from the lawsuit and to set up a fund for their injured son.

This week, a judge issued a bench warrant for Catana Boyer when she failed to respond to a court order over child support and visitation.


There hasn't been much dispute over Nelson's fault in the crash, even from him, but the questions are about who else is liable.

On Monday, Jahnke granted UPS' motion to preclude "certain testimony" from an accident reconstruction expert because, ruling: "The facts in this case speak for themselves, as do the pretrial admissions of Nelson. The triers of fact (the jurors) do not need the assistance of a reconstruction expert to determine the cause of this accident."

The Boyers argue Nelson "directly" caused the accident while Simplex Leasing and UPS are "vicariously liable employers," of Nelson in the case.

UPS argues it wasn't Nelson's employer, because he was paid by Simplex, which owned the truck, and that his hauling of UPS trailers was as an independent contractor.

The Boyers -- and Nelson -- argue he took orders from UPS on how to hook up the trailers, had to report his arrival and departure times to UPS and once was chided by a UPS employee when he was late because of bad winter weather.

The suit claims Nelson didn't have the federally required time off during a three-day stint of hauling twice from Fargo to Minot and back and that he used a painkiller that causes drowsiness, in violation of federal regulations.

Long road

The Federal Motor Carrier Safety Administration restricts the number of hours drivers can stay on the road after off-duty rests, stipulating specific lengths driving times as well as rest times.

According to court documents, this was Nelson's driving schedule over the 48 hours-plus before the accident:

He began the haul leaving Jamestown at 8 a.m., Dec. 20, arrived in Fargo at 10 a.m.; was off-duty 10 hours until 8 p.m., Dec. 20, when he left Fargo for Devils Lake, arriving about midnight.

He took a 30-minute break in Devils Lake, left for Minot, arriving about 3 a.m., Dec. 21. He was in the truck's sleeper berth about four hours, until 7 a.m. when he headed back to Fargo, arriving 11 a.m., Dec. 21.

He was "off-duty," in Fargo nearly eight hours, from 11:30 a.m. to 7:15 p.m., on Dec. 21, and left Fargo at 8:45 p.m. headed to Minot, arriving at 2:30 a.m., Dec. 22, the day of the accident.

He was in the sleeper berth of the truck for about three hours in Minot and at about 5:30 a.m. left for Devils Lake. He was off duty in Devils Lake about 15 minutes before heading toward Grand Forks.

He collided with Boyer's van about 9:55 a.m., Dec. 22, three miles west of Grand Forks at the airport road.

That means in the two full days, actually 50 hours, before the crash, Nelson was driving, or on duty, a total of about 24 hours.

Painkiller use

The Boyers say Nelson violated federal regulations by using Oxycodone. Nelson told investigators he used it for knee pain before scheduled surgery and said he last used it about 1 p.m., Dec. 21, about 21 hours before the crash.

Law enforcement officers on the scene said Nelson did not appear impaired and the state crime lab found no trace of drug in his blood sample taken soon after, UPS argues.

On Monday, Jahnke ruled on most of 17 pretrial motions filed from Sept. 20 to Nov. 1, including nine filed by UPS after Oct. 24. Jahnke wrote that it seemed there was plenty of evidence Nelson disregarded federal regulations on driving and off-duty periods. But he also wrote that there was evidence that the painkiller had no role in the accident.

Call Lee at (701) 780-1237, (800) 477-6572 ext. 1237 or send email to