BOZEMAN, Mont.—A fully loaded concrete mixer truck barreling down a bustling two-lane country road. A blowout in one of the truck's retreaded tires. Two women dead. The accident May 21 outside Bozeman in a scenic area travelled by tourists and commercial vehicles garnered scant attention outside ``Big Sky Country.'' But it could make the nation's retreading industry sit up and take notice if a lawsuit filed on behalf of the victims' husbands is successful.
Filed Sept. 2 in Montana Fourth Judicial District Court in Missoula County, the litigation seeks unspecified damages for negligence and product liability. The attorneys handling the case also are hoping it will spur efforts nationwide to get retreaded tires banned from use on commercial vehicles' steer axles.
Current federal motor carrier safety regulations ban their use only on steer positions of buses.
The families of Heidi Lee Martinez, 32, and Marisa Wolverton, 41—Jehovah's Witnesses ministers who were on their way to Kalispell, Mont., for additional ministry training—believe their deaths could have been avoided had the 40-ton cement truck not been running a retread on its left front wheel.
When the tire blew, the driver lost control of the truck, went left of center, clipped a flat-bed trailer, then plowed head-on into the women's car. They were pronounced dead at the scene.
Attorneys Monte D. Beck and John J. Richardson of Bozeman filed identical lawsuits on behalf of Robert Martinez and David Wolverton, the women's husbands, and are seeking a jury trial.
Defendants in the suit are Polson Ready Mix Concrete Inc. of Missoula and Les Schwab Tire Centers of Montana Inc. At Tire Business press time Sept. 9, both companies were to be served with the complaints within days. They will then have 45 days to respond.
Attorneys for Polson did not return calls. Carmen Hobbs, a paralegal assisting Messrs. Beck and Richardson with the case, told Tire Business they are still trying to determine which Les Schwab outlet retreaded and/or sold the tire.
Reached at Schwab's Prineville, Ore., headquarters, attorney Tom Freedman said the company ``can't comment on pending or actual litigation—and we haven't even been served with this suit yet.
``But you gain nothing by trying a case in the press.''
Ms. Hobbs said the Montana Highway Patrol and a state Department of Transportation inspector determined the accident was caused by the blowout. The truck's driver was not cited.
``The retread came apart about 100 yards prior to the truck crossing over the center lane,'' she explained. ``There was tire debris from the truck up and down that road.''
``We have general information that these types of (retreaded) tires tend to come apart,'' Ms. Hobbs said. ``...There's still several questions to be answered.
``But our general investigation tells us if you're going to have a retread on a steer axle, you'll have a big problem if it goes. If something happens on the `dualies' in back, you have a flat tire but can still control the vehicle.''
The plaintiffs' attorneys plan to hire an investigator to examine the retread, which disintegrated in the crash. They have a segment of the tire. Ms. Hobbs said it was shown to several local tire dealers, who determined, based on its DOT code, that the tire was retreaded by Schwab. The Highway Patrol in Missoula is holding the remaining pieces as evidence.
However, she said an inspection of the truck showed it had an 11-inch-wide retreaded tire on a 22.5-inch rim on its left front side, and was running a 10-inch-wide non-retread on a 20-inch rim on its right front. Whether that may have contributed to the blowout or crash is not yet known.
The lawsuit states ``retread tires are foreseeably inferior and should not be used on the front axle of commercial vehicles, especially cement trucks. The failed tire...did not match the right front tire of the cement truck in either size or brand.''
``It is foreseeable,'' the suit continues, ``that retread tires will disintegrate, lose their tread, and, if placed on the front axle, create unsafe and hazardous control conditions. Equipping and driving any such vehicle on Highway 93 is grossly unsafe to the traveling public. Such negligence was a substantial cause of the collision.''
Polson Ready Mix was negligent, according to the lawsuit, for allegedly:
Failing to operate the cement truck on the right side of the roadway, in violation of Montana traffic laws;
Violating ``the established and customary industry standards when it installed or allowed to be installed an obvious mismatched retread tire on the front of the vehicle,'' rendering the truck ``unreasonably dangerous...'';
Failing to properly train its employees to follow accepted industry standards for the maintenance, inspection and operation of its trucks; and
Failing to properly train its drivers in the proper measures to take should a tire separation occur.
Les Schwab Tire also was cited in the suit for negligence because allegedly it:
Sold and installed a retreaded tire to Polson for use on the front axle of the cement truck ``in violation of accepted industry standards''; and
Failed to properly train its agents or employees to follow accepted industry standards.
Under the product liability portion of the complaint, it claimed the tire ``was unreasonably dangerous and defective in that it failed under normal, foreseeable loads and disintegrated under normal, foreseeable operating conditions.''
It charged that Schwab breached the warranties of ``merchantability and fitness'' when it sold the retread for use on a heavy commercial vehicle.
In seeking unspecified punitive damages, the suit said the defendants—and others that may yet be determined as liable—``had reason to know'' they were selling and/or installing a retread tire which was ``inherently dangerous, creating a high probability of injuries to other motorists on public roadways.''
``I've done a lot of research on this, and understand the cost-effectiveness of retreads and their environmental value,'' Ms. Hobbs said. ``Our position is: `Fine, then use them on the back axles—not on the front.' If you can't control the vehicle with a blowout, there ought to be some way to protect other people on the road, as well as the driver of the truck.''
``If it had been a school bus he hit,'' she added, her voice trailing off. ``That road does take a lot of kids to school.''
The law firm is attempting to marshall support for its efforts among several consumer and traffic safety groups.
One problem Ms. Hobbs said she has found in researching this case is that databases compiled by such agencies as the DOT, Highway Patrol and National Highway Traffic Safety Administration (NHTSA) are not sophisticated enough to specify whether an accident involving large commercial vehicles was caused by a retread. They often only indicate a crash may have been tire-related.
But Bill Gragg, technical director for the Louisville, Ky.-based International Tire and Rubber Association (ITRA), has seen this type of furor before in the aftermath of a bad accident seemingly caused by retreads.
He still sees no reason why they should be banned from steer axles.
A recent study conducted by a trucking company revealed retreads fail at about the same rate as new tires, Mr. Gragg said. ``That being the case, if you ban retreads on steer axles, then you have to ban new tires, too.''
He sees the problem as being ``lawyers—and our litigious society. I believe that's the reason people are hesitant to put retreads on front axles of vehicles. It's not because of the quality or serviceability of the product....''
If this effort gathers momentum, he said it will produce ``another law that has to be administrated, and will give lawyers more to play with when they want to sue someone.''
Asked why retreads are prohibited on steer axles of buses, he replied: ``I believe it's a situation where they're being ultra-conservative because of liability.''
A blowout in a vehicle's front tire—be it new or retreaded—will cause the same type of handling problem, Mr. Gragg added.
``Every time there's an accident like (this one in Montana), there seems to be some social engineer with a cause who stirs the pot,'' calling for a ban on retreads, he noted. ``You can bet (the Tire Retread Information Bureau) and the ITRA will probably fight that.''