March 02, 2010
The Austin Pilot, Underlitigating and Litigation Motives
Posted by Christine Hurt

Though corporate law is the subject of my research, I teach Torts for fun, and one issue that fascinates me is why folks litigate losses, particularly insured losses.  Another topic that interests me during the year is "underlitigating" -- the choice to litigate an intentional tort as negligence, presumably because negligent acts are insured acts.  (My favorite case is one known to Texans in my age cohort -- Boyles v. Kerr, in which a young woman whose high school friend intentionally made a certain kind of videotape of them unbeknownst to her and then showed it to all his friends sued him unsuccessfully for negligent infliction of emotional distress.  Texas does not recognize direct NIED.)

These two interests are aligning as Valerie Hunter, the widow of the IRS employee killed when Joseph Stack intentionally crashed his plane into IRS offices, has sued Stack's widow under a theory of negligence.  As we learn in the first weeks of Torts, Stack seems to have committed an intentional battery against Vernon Hunter.  Of course, Stack's estate seems to be light on assets now that he burned down his house and crashed his plane.  But negligence?  Against Sheryl Stack?  The theory seems to be of the duty to control/duty to warn type (Remember Tarasoff?):  Ms. Stack knew that Stack was on the edge because she took her minor child and left him the night before, staying at a hotel for her safety.  I would hesitate to put my money on this cause of action unless we know that Stack told his widow the night before that he was specifically going to do harm to the IRS or the government, or some other identifiable victim.  The facts seem to suggest that the widow was worried for her safety, not the safety of a specific third-party.  (And I have no idea how the rules of evidence fit in here --someone else will have to advise me on spousal privilege in this type of civil case.)

Hunter's attorney claims that though her heart goes out to Ms. Stack, she needed to file the lawsuit to (1) see what types of insurance are available in Stack's estate (probably not homeowner's insurance after the time Stack burned his house down, I would guess) and (2) get an injunction so that Vernon Stack's autopsy report would not be released.  Hmmm.  I wonder what's in that report?

So this leads me to my other curiosity -- why?  Is it just the money?  There doesn't seem to be a lot of money to go around here, and Ms. Hunter, whose children are grown and is also an IRS employee, would seem to a little better off financially than Ms. Stack, who has a minor child but no home or personal possessions to her name and possible lingering mortgages and debts.  Possibly Ms. Hunter could have become very irritated by Mr. Stack's grown daughter (from a former marriage) calling her father a "hero" on Good Morning America and seeing facebook and twitter messages repeating the same misguided meme.

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