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Landmark Lands on Legal Landmine–Times of Trenton Landmark American Insurance Company v. Rider University report: House Manager Not Covered by Insurance in Hazing Case at Ryder; School was insured

Insurer can’t duck Rider defense costs in hazing fatality
Thursday, July 09, 2009
BY LINDA STEIN
SPECIAL TO THE TIMES

A federal judge has ordered an insurance company to pay up to $1 million to defend Rider University, which was sued by the family of a student who died of alcohol poisoning during a fraternity initiation ritual that resulted in charges of hazing against students and administrators.

The insurer, Landmark American Insurance Co., last year filed a lawsuit in U.S. District Court asking the court to relieve it of its contract to insure the Phi Kappa Tau fraternity and Rider, arguing that costs related to hazing were excluded.

Gary DeVercelly Jr., an 18-year-old freshman from Long Beach, Calif., died after drinking most of a bottle of vodka during a March 2007 PKT initiation ritual called “Big Little Night.” His parents, Gary Sr. and Julie DeVercelly, allege negligence, misconduct and wrongful death and are asking the court for $75 million. That case, filed in 2007, remains pending before Superior Court Judge Andrew Smithson.

Julie DeVercelly, Gary’s mother, said she could not comment about the federal case.

Asked about the time it’s taken for her family’s case against the Lawrence university to be resolved, she said, “I have nothing to compare it to. The outcome of anything will not change that our son is still dead, the impact on our family, the harm it’s done to our family still stays. We’re still adjusting. It’s still very difficult for us. We’re still learning how to live without Gary in our lives.”

DeVercelly said Gary’s two younger siblings, Emily, 15, and Noah, 13, miss their big brother terribly.

“They both need their big brother in their lives more than ever,” she said. “He’d be very proud of them. They miss him as their brother and adviser. It’s hard. It’s been a little over two years since we’ve seen him last.”

Every year at the anniversary of her son’s death, the family has a memorial gathering. This year it was at a baseball field where Noah plays. Gary Jr. also played baseball and had secured an athletic scholarship to Rider. About 60 people, friends and family, attended the memorial.

“We’re very blessed and fortunate that his friends on a regular basis come and call us and fall into place as if he were still here,” she said.

The DeVercellys hope to make the country aware of the dangers of hazing, she said.

“What happened to Gary should have never happened,” his father said. “We’re looking to make changes, not just at our house and not just at Rider, to address the Greek system nationally so another tragedy doesn’t happen.”

In an unprecedented move, a Mercer County grand jury had criminally indicted two college administrators for hazing in DeVercelly’s death, along with three of the PKT fraternity brothers.

Eventually, the prosecutor dismissed the hazing charges against the two administrators. Dominic Olsen, 23, of Kenilworth, the pledge master, and Adriano DiDonato, 24, of Princeton, the house manager, were allowed to enter the Pretrial Intervention Program, a program for first-time, nonviolent offenders that will allow their criminal records to be erased.

Fraternity president Michael Torney, 22, of Randolph, who was denied PTI due to a previous marijuana conviction, pleaded guilty to hazing, a disorderly persons charge and was sentenced to probation by Superior Court Judge Mitchel Ostrer.

Torney, who was also a defendant in the DeVercelly lawsuit, settled with the family for $150,000 and is expected to testify for the plaintiffs if the civil case goes to trial. Another defendant in the civil case, DeVercelly’s fraternity big brother, Vincent Cagulero, settled for $375,000, according to court records.

The DeVercelly lawsuit against the university, two administrators, the fraternity and several fraternity brothers who were allegedly involved in the hazing remains pending before Superior Court Judge Andrew J. Smithson. Previously, Smithson ruled the Mercer County Prosecutor’s Office must release its investigative report to the attorneys involved.

That report tells the story of the Big Little Night on March 27, 2007, in vivid detail. DeVercelly, a promising athlete who came to Rider on a baseball scholarship, was given a bottle of vodka to drink with his big brother to cement their relationship. Each of the big brothers obtained a bottle for their little brothers, dubbed a “family drink,” according to the police report.

They went into a basement bar inside the now defunct frat house to drink. Meanwhile, in the hallways of the PKT house, other fraternity brothers were drinking at a “Hump Night” party. Neither event was authorized by the university, administrator Cassie Iacovelli told police. Iacovelli, assistant dean for student life, is named as a defendant in the lawsuit, along with Ada Badgley, director of Greek Life.

At the Big Little Night there was a “kind of race to see who could finish the bottle first,” the police report said. During the party DeVercelly appeared to be holding his liquor but then became “increasingly ill,” according to the lawsuit. He was taken upstairs to a dorm room by some of the brothers, placed on a futon with a towel and a bucket under his mouth.

The frat brothers tried to get DeVercelly to vomit, they told police, but he had no gag reflex. Then they held him upside down over a bucket, trying to get him to rid himself of the vodka he’d consumed. One pledge wanted to call for assistance, but other fraternity brothers disagreed, leaving DeVercelly to sleep it off, police said.

Then DeVercelly’s lips turned blue and he began to foam at the mouth. A fraternity brother called Rider security and an ambulance was summoned. Two days after the party, DeVercelly was pronounced dead of alcohol poisoning.

The suit said that DeVercelly “lay dying in the PKT fraternity house over a period of several hours, unable to vomit, struggling to get oxygen to his brain and unable to protect himself without assistance from defendants.”

When EMS personnel arrived, DeVercelly opened his eyes for a moment, then his heart stopped, the suit said. Revived at a hospital, he remained in a coma until his death.

Had DeVercelly received prompt medical help, he would have survived, the suit said.

In a sworn affidavit, Torney claimed that he tried to get university officials and a representative of the national fraternity to help him prevent the traditional hazing of pledges at PKT earlier that school year.

Torney contended that Iacovelli and Badgley at first agreed to help him, then reversed themselves, telling him to handle the problem himself. He made a similar allegation against the fraternity’s liaison to the national group.

In an attempt to stop the hazing on his own, Torney sent fraternity members a letter that was later discovered on his computer when it was seized by police.

“We cannot afford to haze,” Torney wrote. “I cannot afford to let the house haze.” He told the brothers there would be random checks by the national fraternity and college administrators for hazing.

“If hazing allegations were to arise against the house, no physical or empirical evidence would be needed to revoke our charter, only suspicion,” Torney wrote. “If hazing allegations were to come against the house, my criminal liability, along with that of the brothers involved, would also be charged to our families. … The grave reality of this situation threatens to shatter our house.”

The DeVercelly lawsuit alleges that the university and national fraternity should have known that dangerous hazing activity would take place and that they were negligent in failing to prevent it.

Meanwhile, in court documents, the fraternity and university deny any wrongdoing. The university also said it is protected by the Charitable Immunity Act.

In her opinion in Landmark American Insurance Co. v. Rider University, U.S. District Court Judge Freda J. Wolfson found that Landmark must pay to defend Rider and its employees once $77,500 in self-insurance is exhausted. But she found that Landmark was not responsible for fraternity member and house manager DiDonato’s legal bills.

“The court finds that Landmark has a concurrent obligation to defend Rider and its employees,” Wolfson wrote.

A spokesman for Landmark could not be reached yesterday. Neither Daniel Higgins, a spokesman for Rider, nor Douglas Fierberg, a lawyer for the DeVercelly family, would comment about the case.

©2009 Times of Trenton
© 2009 NJ.com All Rights Reserved.

By Hank Nuwer

Hank Nuwer is the Indiana-based author of Broken Pledges: The Deadly Rite of Hazing, High School Hazing, Wrongs of Passage and The Hazing Reader. He has written articles or columns on hazing for the Sunday Times of India, Toronto Globe & Mail, Harper's Magazine, Orlando Sentinel, The Chronicle of Higher Education and the New York Times Sunday Magazine. His new book is Hazing: Destroying Young Lives from Indiana University Press.

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