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Court Upholds Decision to Reduce Wrongful Death Payout, Denies Retrial

— June 14, 2018

Court Upholds Decision to Reduce Wrongful Death Payout, Denies Retrial

The Massachusetts Appeals Court has upheld a decision to reduce the award in a wrongful death lawsuit against Cumberland Farms over a woman who was killed after a car crashed into one of its stores in Chicopee back in November 2010.  The original ruling in favor of the family of 43-year-old mother Kimmy Dubuque was made in August 2016 and followed the court’s reduction in payout from $32.3 million to $20 million.  This reduction reflects the “actual damages caused by Cumberland Farms’ negligence and gross negligence,” according to the court.  In the same decision, a request submitted on the company’s behalf for a new trial was dismissed.

After the initial award was granted, Stephen Spelman, one of the four attorneys who represented the family, said, “We are very grateful for the attention the jury paid to the facts.  Unfortunately, this award will not bring back Kimmy Dubuque.”  However, in its decision to reduce the award, the appeals court said the jury made mistakes and failed to follow direction when it handed down the original $32.3 million.  The decision to reduce was a more logical one.

The court also stated of the request for retrial, “Cumberland Farms submits that, in light of the judge’s finding that the jury was influenced to some degree by passion, partiality, or prejudice, it is entitled to a new trial on all findings.  As we have already concluded, however, that finding was, to a considerable degree, without support in the record.”

Photo by j on Unsplash

Dubuque was the director of finance at a MassMutual Center in the Springfield area and was killed suddenly on November 28, 2010, when an elderly man crashed his SUV at more than 70 mph into the store.  The driver, who suffered a stroke at the time of the accident, was never prosecuted.  The victim’s family decided to focus on the negligence of Cumberland Farms, instead, claiming the site was dangerous and barriers should have been installed to prevent such accidents.  This would have prevented Dubuque death.

With convenience stores from Maine to Florida, Cumberland Farms had the corporate assets to spend on safety precautions, John J. Egan, a second lawyer who represented the family, said.  The victim’s husband, Albert Dubuque Jr., and young teenaged daughter, Jillian, attended the trial.  “We’re very grateful for the family,” he added of their support.

Attorney Paul Weinberg, who also represents the Dubuque family, issued this statement on their behalf: “Kimmy’s family is gratified by the decision of the Appeals Court and sincerely hopes that no other family ever suffers such a loss.”  He added, “They stood firm in this, they weathered the whole trial.”

Defense attorney Richard P. Campbell said there were no federal, state, or local laws in place requiring his client to install such safety barriers.  Cumberland Farms originally purchased the location in 1974, and never had an accident that damaged the store until that point in time.

However, the appeals court considered the family’s loss and stated, “We hope Cumberland Farms will acknowledge this as an opportunity to honor the life of Kimmy Dubuque by investing time and money in the safety of its guests and employees.”


Chicopee family awarded $32.3 million in wrongful death suit against Cumberland Farms

Court upholds $20 million award over crash that killed Chicopee Cumberland Farms customers

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