Eight days shy of what would have been her 48th wedding anniversary, Nell Davis hung upside down beside her dying husband in their flipped-over Jeep Grand Cherokee.
Another motorist had run a stop sign, clipped the back of the Jeep and set off a chain of events that led it to flip over, killing Jimmie Davis when the roof crushed in.
His 68-year-old widow sued Chrysler, maker of Jeep vehicles, last August, claiming the roof support design made their vehicle defective.
But as she and hundreds of others with similar claims are finding out, their cases may be effectively wiped out by Chrysler's bankruptcy, in which Italian automaker Fiat gained control of the company. According to one attorney, there as many as four dozen similar cases in Georgia.
The suits were frozen when Chrysler went into Chapter 11 bankruptcy protection April 30. Because of the way Chrysler's exit plan was structured, Fiat will not be exposed to pre-existing suits. Lawyers say that will remove any incentive for settlements, the most common outcome in such suits.
Chrysler said its vehicles meet or exceed federal safety standards.
"Chrysler is saddened anytime someone is injured in one of our vehicles," Chrysler spokesman Michael Palese wrote in an e-mail response to The Atlanta Journal-Constitution. "The reality is that automobile accidents are unpredictable and dangerous events where bad things sometimes happen. An injury resulting from an accident or contact with a motor vehicle is not evidence that a vehicle is defective."
Meanwhile, plaintiffs' attorneys also are concerned that General Motors could also use the bankruptcy process to freeze such lawsuits. Together, GM and Chrysler face about 1,000 product liability cases nationwide that seek a collective $1 billion in damages.
Moreover, the Chrysler-Fiat deal absolves the company of any future liability claims from motorists who might be injured in a Chrysler vehicle they purchased before the bankruptcy.
"With the bankruptcy now, it's relieved them of any responsibility for any deaths or injuries," said Davis, who lives in the Middle Georgia town of Hawkinsville. Her case never advanced beyond a settlement proposal from her lawyer, John Ramsey of Houston, to Chrysler.
Dennis J. Connolly, a partner at Alston & Bird and head of its bankruptcy group, said any effort to transfer liability to the post-bankruptcy company could have killed a deal that's credited with saving the automaker.
"If Chrysler had required Fiat to assume all tort claims as a part of the deal, the pricing likely would have changed dramatically or the deal would not have worked," he said.
Still, consumer advocacy groups are lobbying Congress, which has given Chrysler billions in aid, for some form of relief. They also have filed court appeals seeking to overturn the liability absolution. But lawyers for plaintiffs against Chrysler agree they have few options left, since the Chrysler-Fiat deal is done.
Lawyers note Chrysler will continue to honor product warranties.
"If these companies assume the warranty claims, you need to also assume the tort claims," said Lance Cooper, a Marietta attorney with two pending cases against GM and Chrysler. "It's the same thing; it's responsibility for a defective product."
His GM case involves the family of a man killed when he was ejected from his rolled-over pickup. The family alleges a faulty seat belt failed to secure him. In the Chrysler case handled by Cooper, a woman sued the auto maker as well as the dealer, Jasper Jeep, following a recall to replace a malfunctioning part that allowed gear shifters to come out of place. She alleges that after the part was replaced, her vehicle's shifter was not fixed and she became disabled when her own car ran over her.
With the lawsuits essentially frozen, plaintiffs in such suits become unsecured creditors with claims against Chrysler. They're among the last in a line of companies and individuals with claims.
That's not unusual in such bankruptcy cases," said Jonathan Macey, a bankruptcy law expert and deputy dean and law professor at Yale University's law school.
"If you have a company and it merges or acquires another company, they are liable for all the debt and liabilities of the predecessor company," Macey said. "But it's not a merger here. Fiat is simply becoming an investor in Chrysler."
Had the accident occurred after the bankruptcy filing, Davis would have stood a better chance of getting some compensation because she would have ranked higher in the creditor hierarchy, Macey said.
Ramsey argues that allowing Chrysler and GM to reorganize and ditch liability claims for pre-bankruptcy vehicles puts consumers at risk.
"How can someone relinquish their rights to a potential claim without even knowing if there's something that could happen in the future?" Ramsey said.
Consumer advocates say that creates two classes of people: Those with rights because they purchased vehicles after Chrysler and GM filed for bankruptcy protection and those with fewer rights because they bought theirs before the filings.
According to National Highway Traffic Safety Administration data, 11,942 claims were filed with GM between the third quarter of 2003 and the fourth quarter of 2008, or 38 percent of the U.S. total against all automakers. The GM claims involved 15,284 deaths or injuries. Chrysler had 2,464 claims linked to 3,497 deaths or injuries in the same period, or 9 percent of the total.
Many of the cases allege common problems: weak roof supports, seat-back collapses in rear-end collisions, fire hazards from placement of gas tanks, seat-belt failure or non-deployment of air bags.
Bankruptcy has removed pressure on Chrysler to resolve potential problems, said Sean Kane, president Safety Research & Strategies. The Rehoboth, Mass.-based firm studies auto safety trends and advocates for stricter regulation.
"What incentive do they have to recall a product they have no liability for?" he said.
Nell Davis was settling into retirement with her husband after he turned over the family X-ray service and supply business to their three children.
She said Chrysler should be required to purchase retroactive insurance or set aside money for claims like hers.
"They got all their taxpayer bailout money and now they're not responsible for anything?" she said.
