Judge denies lawsuit dismissal

Laurel and Michael Middelaer, whose four-year-old daughter Alexa was killed by an allegedly impaired driver in 2008.

Leader file photo

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The Corporation of Delta will continue to face a lawsuit filed by the family of preschooler Alexa Middelaer who was killed by an impaired driver in Ladner four years ago.

The civil suit, which includes multiple defendants, alleges the municipality was negligent in its spacing of speed bumps on 64th St. where the crash occurred. On Monday, a judge denied Delta's application for a summary trial where no witnesses are called.

"The arguments that Delta's counsel raised at the court—they did not deal with every explanation of why the close placement of these two speed bumps was a causal factor in this crash," Middelaer family lawyer David Osborne told the Leader.

Delta chief administrative officer George Harvey offered little comment on the case, saying the lawsuit is "in the courts at this time, as everybody knows, and we will go through the process and await the outcome."

Alexa and her aunt Daphne Johanson were standing by the side of the road, feeding a horse on May 17, 2008. Carol Berner, who was driving north on 64th St., ploughed into a nearby parked car and veered towards Alexa and Johanson. Four-year-old Alexa succumbed to her injuries in hospital, while Johanson sustained serious injuries.

Alexa's mother, Laurel Middelaer, who did not attend Monday's hearing, provided comment to the Leader on the legal proceedings.

"I know that lawsuits always have a funny feel to them," said Middelaer. "But our goal here is not financial, it is to ensure the best and highest standards of safety for our community—and sometimes the only way municipalities respond is if there is a legal consequence."

According to Osborne, it could be 12 to 18 months before Delta has its day in court for the trial, "given the number of lawyers and parties involved."

One of those parties is Johanson, a defendant in the case. The Insurance Corporation of BC, who joined the lawsuit as a third party, claim Berner—who was convicted of impaired driving causing death and impaired driving causing bodily harm—was not properly insured at the time of the accident. It's alleged that Johanson parked her vehicle dangerously close to the side of the road.

"We expect ICBC to try to shift blame to other parties other than Ms. Berner," said Osborne. Following my investigation in this case she [Johanson] should be released from the litigation. I'm just satisfied there is no valid claim of negligence against her. I've made that offer months ago, but ICBC has refused to let her out."

Meanwhile, Berner, is out on bail pending an appeal of her 30-month jail sentence. In November the B.C. Court of Appeal reserved decision in the case.