A $11.37-million default judgment a Wyoming federal judge recently awarded to a Nebraska man for injuries resulting from Salmonella poisoning should be voided, according to lawyers representing Ovation Brands.
Casper, WY, attorneys Scott P. Klosterman and Keith J. Dodson appeared in court Nov. 6 to defend Ovation Brands and Buffets Inc. (doing business as Old Country Buffet) for the first time, a couple of weeks after the $11.37-million default judgment was ordered by the court.
Chris and Heather Gage sued in October 2014, and the case proceeded over the following year to a default judgement without the restaurant chain putting up any defense. Since weighing in, however, the Casper attorneys have been very busy in an attempt to erase the entire amount owed.
They’ve filed a motion to void the court’s jurisdiction over Buffets Inc. because they say the Gage’s claim was discharged in bankruptcy and they want the default judgement award set aside. In their arguments, they also explain the confusion that left the defense table empty while the Gage’s complaint was litigated.
On behalf of Ovation Brands, one of the nation’s largest restaurant businesses, the Casper lawyers are making a number of arguments to get the company out of paying the default judgment. One says that Old Country Buffet, which was in business in Cheyenne from 2005 to 2012, was owned and operated by OCB Restaurant Co., a wholly-owned subsidiary of Buffets Inc.
The defense attorneys say the plaintiffs made an error by not naming OCB directly and that the U.S. District Court for Wyoming has no jurisdiction over Buffets Inc. because the company does not have enough of a substantial connection with the state.
“Buffets Inc. is not liable for any alleged acts, errors or omissions of its wholly owned subsidiary OCB Restaurant Company, LLC.,” states the newly filed defense motion.
Brent Mortensen, a risk manager for the Buffets Inc. unit of Ovation Brands in Eagan, MN, learned of the Gage lawsuit when it was originally filed in 2014. He sent it on to lawyers and insurance carriers handling the Buffets Restaurant Holdings Inc. bankruptcy, which was underway in Delaware. However, no Wyoming counsel was obtained until after the default judgment.
“Mr. Mortensen believes the case mistakenly fell off the radar,” the defense lawyers now say.
However, the “Gage claim” was discharged in that bankruptcy proceeding.
Attorneys for the Gages have not yet responded to the defense motions to strike the $11.37-million judgment.
Since dining at that now-closed Old Country Buffet on Oct. 1, 2010, which was located in the Frontier Mall in Cheyenne, military veteran Chris Gage has continued to suffer one of the most severe aftermaths to Salmonella poisoning on record.
He continues to experience persistent nausea, vomiting, balance and coordination issues, cognitive deficits, emotional control issues and speech and language problems. His gastrointestinal issues brought on by the Salmonella infection were especially severe because of a 1997 surgery he had to control reflux disease.
Health officials recognized the local Salmonella outbreak in 2010 and said that Old Country Buffet was the source. At the time, OCB was insured with a $25-million limited liability policy and a $500,000 cap per incident.
Based in Greenville, SC, Ovation Brands has 350 locations with 18,000 employees and $900 million in annual revenues.
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