Guardian responds to lawsuit

By NATE HUBBARD/Staff

In legal math, a charge doesn’t equal a conviction.
It’s a proof that Guardian Ambulance Services is hoping a jury will accept as it seeks to fight a $12 million lawsuit.
Guardian filed a response Monday to the lawsuit submitted last month seeking the hefty sum from the combined assets of it and two other defendants, former Guardian Ambulance Services driver Alton Kenney Davis and LogistiCare, a medical transportation company that sub-contracted work to the Wytheville business.
As of Thursday afternoon, neither Davis nor LogistiCare had submitted an answer to the suit.
The civil case was filed in Wythe County Circuit Court by Carla Shantell Davis of Wytheville, a woman paralyzed from the waist down who says she was sexually assaulted by Alton Davis during his duties as a Guardian driver.
Guardian fired Alton Davis, a 56-year-old Ivanhoe resident, after he was arrested on the criminal sexual assaults charges in January.
A grand jury certified the charges to Circuit Court and he remains incarcerated in the New River Valley Regional Jail as he awaits his Aug. 20 criminal trial on the sexual assault allegations.
Guardian’s response to the lawsuit, however, hinges on an earlier criminal charge of sexual misconduct brought on Alton Davis – one that the lawsuit argues should have been a warning to the company as it made its decision to hire him.
Charge, though, not a conviction, Guardian’s objection emphasizes.
“Plaintiff has alleged as her only fact in support of punitive damages that the defendant hired an employee who had previously been ‘charged’ with a crime involving sexual misconduct with a minor but the Complaint fails to allege any prior convictions,” states Guardian’s demurrer filed by attorney Dale Webb.
A demurrer is a legal form of objection where a defendant argues that the case is without merit even if certain contested facts turn out to be true.
“The allegations of a prior charge, without supporting evidence of a conviction is insufficient to support plaintiff’s negligent hiring and negligent retention claims,” the response adds.
Webb didn’t return multiple phone and e-mail messages left Thursday and Friday seeking additional comment.
The lawsuit claims that Alton Davis disclosed his prior sexual misconduct charge to Guardian before he was hired. Although most of Guardian’s response to the lawsuit argues that the lawsuit is without merit even if the disclosure did occur, the company also formally denied that assertion in its answer.
According to court documents, the child molestation charge occurred in 1991. That charge eventually was reduced with Davis being convicted of assault.
Carla Davis’ lawsuit asks for $8 million in compensatory damages for actual harm suffered from the incidents and $4 million in punitive damages.
Guardian’s response particularly objected to the punitive damages, pointing out that the $4 million sought exceeds the $350,000 cap placed by the state of Virginia on punitive claims.
Terri Bowles, the attorney for the plaintiff, said she was well aware of the Code of Virginia section dealing with the cap when she filed the lawsuit.
She said, though, that the statue only restricts how much a judge can award, not how much a plaintiff can request.
“The jury shall not be advised of the limitation prescribed by this section,” the code states. “However, if a jury returns a verdict for punitive damages in excess of the maximum amount specified in this section, the judge shall reduce the award and enter judgment for such damages in the maximum amount [$350,000] provided by this section.”
By asking for more than the maximum, Bowles said it emphasizes the egregious nature of the alleged sexual assaults.
“That’s part of the message sending that people are outraged by this behavior,” she said.
Guardian, however, also argued that it can’t be held punitively liable even if the sexual assaults did occur, saying that the lawsuit only claims that it was “vicariously liable” for Alton Davis’ actions.
“Plaintiff, nowhere in the pleadings has alleged that the defendant ratified or authorized the alleged conduct of Alton Davis,” the lawsuit response states. “Punitive damages cannot be awarded against an employer who is vicariously liable unless the employer authorized or ratified the conduct.”
Guardian also argued that it had no legal responsibility to warn any of the people Alton Davis drove about his prior criminal history.
In addition, the response dismisses Carla Davis’ claims that Guardian should have known that “Defendant Davis possessed known traits and propensities of a criminal sexual nature making him dangerous to the public.”
“The plaintiff does not allege that any information in the background check demonstrated the propensity of defendant Davis to molest women,” the response countered.
In summary, Guardian asked for a dismal of “the plaintiff’s claims in its entirety with prejudice,” meaning the claims addressed in the suit would be dropped and barred from being used against Guardian in the future.
Bowles said Guardian’s response in no way alters her strategy or her belief in the legitimacy of her client’s case.
“We’re certainly not surprised by anything contained in it,” she said. “This is exactly what we expected to get.”
Nate Hubbard can be reached at 228-6611 or .