By Ray Stern
By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
The impact catapulted the economy car and its passengers into a pine tree along Highway 260, east of Payson. It took Jeffery 10 minutes to die amid the dangling mass of mangled steel. Two other passengers in the Mesa resident's car, including a toddler, were killed instantly.
Noack, who had worked 77.5 hours in the previous six days, had been called from his home in Payson to fix a power outage in Young, Arizona, a 45-mile drive up the Mogollon Rim on winding mountain roads.
Noack did not tell the APS dispatcher he had been drinking and smoking pot that day in 1999. The APS dispatcher, in accordance with written APS policy, did not ask if he had been drinking on his day off.
That don't-ask, don't-tell policy is just one of the numerous appalling steps taken by Phoenix-based APS, Arizona's largest and richest utility, that resulted in three dead people and five orphaned kids.
Now, instead of admitting and paying for its negligence, APS is using a mob of attorneys and despicable legal tactics to block a jury from hearing the company's litany of sins, a ploy intended to deny Pauline Jeffery's children the money they'll need to rebuild their lives.
Make no mistake, APS is as guilty as its repairman, John Noack.
Noack committed suicide last year because of his guilt.
APS then used Noack's suicide to try to gut the civil case against the company.
Apparently, APS will allow only itself to be guilty of lacking shame.
As part of a civil suit brought by the dead woman's mother, APS supervisors and employees in the Payson district admitted in testimony that state and federal safety regulations were regularly ignored. One employee testified that it was "common knowledge" that service people could take calls after drinking "if you felt okay." Service people said they regularly went on calls within four hours of drinking, another violation of federal law. In testimony, two supervisors proved themselves profoundly ignorant of the laws imposed on companies in order to protect the public. APS dispatchers even called the utility's employees at local bars when they were short of help.
When the predictable accidents did occur, APS violated federally mandated policies by neglecting to test its drivers in the Payson area to see if they were high on drugs or alcohol. In other words, after problems happened, APS failed to determine whether there was a pattern of substance abuse. APS aggravated this lethal situation by allowing service people to work far more overtime than allowed by federal law, according to employee testimony.
As a result of the deaths of Pauline Jeffery and her two passengers, the U.S. Department of Transportation investigated APS' safety record. The investigation identified thousands of violations of federal regulations under the Motor Carrier Safety Act.
On November 17, 1999, the Department of Transportation slapped APS with an "unsatisfactory" motor carrier safety rating. Two months later, after APS began extensive retraining of company personnel, the company's DOT rating rose to "conditional." By June, the Department of Transportation believed APS had revamped its policies and safety training enough to restore the company to a "satisfactory" rating.
APS, for example, now asks servicemen like Noack if they have been drinking in the previous four hours.
Basically, APS was found to have a problem, then APS fixed the problem.
Now, in court, when it comes time for APS to pony up to Pauline Jeffery's five children for its wrongs, APS claims there was no problem. And amazingly, APS has convinced Superior Court Judge Mark Santana to block a jury from hearing the vast majority of evidence of APS' negligence when the case comes to trial on June 18.
Carol Romano, a lead attorney in the case for APS, declined to comment. She also said that all other APS attorneys would be unable to comment. Calls to APS regarding the issue had gone unreturned by press time.
At issue are punitive damages, the money a company must pay out as punishment for its wrongs. Like fines, punitive damages are intended to punish wrongdoing while sending a message that similar wrongs won't be tolerated in the future.
In this case, APS deserves a public hanging. The company endangered all of us, and Pauline Jeffery and her passengers, as well as Pauline's children, paid the ultimate price. Other companies that put massive trucks on the road need to see APS swaying in the breeze for creating a public hazard.
But it won't happen. APS' attorneys, doing their best impersonations of the worst stereotypes of amoral lawyers, gutted what jurors will see and hear about APS' culpability next month.
"Here's a concept," former Arizona attorney general Grant Woods, representing Pauline Jeffery's five children, said in court. "Why don't we tell the jury the truth?"
The case against APS initially had two components: First, that the family deserves to be compensated for its pain and suffering resulting from the actions of John Noack. Second, that APS should be punished financially for negligence in creating an environment that promoted the actions of its employee, repairman John Noack.
But after Noack committed suicide, APS argued to the court that, according to Arizona case law, the second negligence claim against APS couldn't exist without the employee, Noack, and that the negligence claim was unnecessary, as APS had admitted liability in the first count against Noack.
The judge agreed.
This legal chicanery created a gross injustice. At that point, jurors would only be allowed to see a few accident photos, along with a brief, vague admission by APS that basically said: Yes, we admit John Noack was our employee, and we admit he was drunk and stoned. We stand liable for compensatory damages because we were his employer.
Nothing about the thousands of federal violations. Nothing about the don't-ask, don't-tell policy. Nothing about ignoring federal overtime requirements. Nothing about the pattern of putting drunks into 13-ton trucks on Arizona's roads. No punishment for a company willing to endanger the people of Arizona.
The suit had been gutted. APS seemed to be home-free.
But the Jeffery family did get one bit of good news. After Judge Santana's ruling, the Arizona Supreme Court, in a separate case, said that an employer could be punished with punitive damages as part of a wrongful death suit like in the one Jeffery's mother still had against Noack.
Still, none of the evidence of APS' wider abuses will be heard by the jury.
APS has been successful in blocking all sorts of truth from the jury. For example, when it seemed as though punitive damages couldn't be sought in the case, APS agreed to let the jury see the company's net worth. After the possibility of punitive damages was restored by the state Supreme Court, after it seemed that APS might get punished a bit for its own behavior, APS asked that the jury only hear about Noack's net worth.
That's thousands instead of billions. In this scenario, punitive damages would ensure that APS officials would giggle, not reform.
Santana shot down APS' attempts to edit reality.
Still, the jury will see a badly skewed vision of the truth. Jurors will see nothing of APS' wider pattern of negligence. They will see limited testimony about the accident and hear the story of Jeffery's family. They will see only that Noack was an APS employee who acted deplorably in the death of three people, not that APS promoted a culture that led to Noack acting deplorably.
Which means, simply, that neither truth nor justice will be served.
Pauline Jeffery's five kids have been spread among uncles and aunts on the Navajo Reservation, where Jeffery herself was raised amid stifling poverty. Jeffery was the only mortar holding these children together. Their loutish father had long ago abandoned them.
(APS' attorneys have given indications they'll attempt to impeach Jeffery's character. They might stomp on her grave because she once faced a misdemeanor charge of child abandonment for leaving her daughter in a motel as she went seeking her ex-husband in local bars for not paying child support.)
The kids have severe emotional and behavioral problems stemming from the death of their mother. They desperately need intensive counseling and some financial stability in their lives.
APS' parent company, Pinnacle West, has assets of $8 billion and annual revenues of $4.6 billion. Last year, the company had an income of $327 million.
So let's end this cruel injustice right now.
APS should act as the public steward it so often claims to be. It should stop blocking the jury from seeing the full truth surrounding the death of Pauline Jeffery and her passengers.
Then APS should come forward with a public apology for endangering us and our children and for trying to cover up its negligence.