By Joe Gerrety
Journal and Courier - 2/13/00

The parents of two Illinois people killed in a traffic crash caused by a drunken driver have settled their lawsuit against the bar that served the driver 10 drinks in 21/2 hours before the crash.

Dan and Margie Towery of Lafayette and Earl and Jodie Smith of Riverton, Ill., have entered an out-of-court agreement with the Mirage's liability insurer for $500,000, the limit of the former south Lafayette tavern's insurance coverage.

After attorney fees and expenses are deducted, the Towerys said Friday, each family will wind up with about $158,000.

Not a lot, compared to the lives of a 24-year-old woman and a 20-year-old man, the Towerys said.

Sarah Towery, 24, of Auburn, Ill., and her boyfriend Chip Smith, 20, of Riverton, Ill., were killed March 21 when a pickup truck driven by Jeffrey Pedone Trout, 39, of Lafayette, went left of center and crashed head-on into their vehicle on County Road 350 South.

Dan and Margie Towery, who were traveling ahead of Sarah and Chip, witnessed the fatal crash in their rearview mirrors.

Trout, who also was killed in the crash, had a blood-alcohol content of .27 percent, nearly three times the legal limit for driving in Indiana. He had had several prior convictions for drunken driving, and his license was suspended at the time of the wreck.

Surveillance video taken at the Mirage the afternoon of the crash indicated that a Mirage bartender, James Irwin, had served Trout 10 mixed drinks in 2 hours and 26 minutes until he left the bar, 17 minutes before the crash.

Irwin faces criminal charges for allegedly serving Trout after he was intoxicated. That case is scheduled for a jury trial April 11 in Tippecanoe County Court 2.

Last November, the Towerys and Smiths settled a lawsuit against Trout's auto insurer for nearly $300,000.

"In our society, basically, this is how we settle issues. It doesn't replace Sarah and Chip. It never will. No amount would," Dan said.

"But this amount is particularly pathetic," Margie said of the $158,000 each family will receive.

"If either (Sarah or Chip) had survived with serious injuries, this wouldn't have been anything. I don't know what our families would do, financially."

The Towerys said they had little choice but to settle with the Mirage's liquor liability insurer, Clarendon American Insurance, after trial preparations revealed that the Mirage's debts were far greater than its assets.

They believe Mirage owner Rodger Heer should have had $2 million to $4 million in liability coverage based on the amount of business he was doing before March 21. Heer lost his liquor license shortly after the fatal crash.

"It all goes back to accountability," Dan Towery said. "With him (Heer) being an insurance agent, it borders on negligence."

Heer operates an insurance agency next door to the Mirage. He has since converted the Mirage to an all-ages entertainment spot that does not serve alcohol, and declined to comment about the settlement.

Indiana law does not require businesses that serve alcohol to have liquor liability, so-called dram shop insurance. So in some respects, the Towerys said, they're fortunate there was some coverage.

State legislation requiring taverns to have liquor liability coverage is one of several legal reforms the Towerys are advocating in their developing role as advocates against drunken driving.

So far this year, they've already successfully lobbied the Indiana Senate for passage of laws that call for stricter sanctions against bartenders who serve alcohol to intoxicated patrons and for greater controls on who can obtain a bartender's license.

Sen. Ronnie Alting, R-Lafayette, a former restaurant owner, is sponsoring those bills.

Part of the reason for the settlement, the Towerys said, was that the Mirage's insurance policy required that the business's own legal fees be paid out of any settlement or judgment paid by Clarendon.

Michael Langford, the Indianapolis attorney representing the Towerys and Smiths, said defense attorney fees accumulated during a jury trial would have made a serious dent.

"The harder we fought against the Mirage, the more they would incur attorneys' fees," Langford said.

"We felt that we could take that money and use it for something more positive and towards a larger objective than just the local publicity that a trial would generate," Margie Towery said. "We could do something bigger and better."

That "something" will include a large donation to a memorial scholarship fund in Sarah's name at the University of Illinois-Springfield, where Sarah would have earned her bachelor's degree this spring.

The Towerys also plan or have made smaller donations to the Lincoln Library and the Lincoln Memorial Garden in Springfield and the Tippecanoe County Humane Society.

And a portion of the settlement will be used to pay expenses associated with Sarah's death, some of which continue.

The Towerys still are attempting to sell Sarah's house in Auburn. Many of her belongings are still in storage in Lafayette.

And they continue to see a counselor to help them deal with the trauma of watching their daughter die in the violent crash.