State to pay $2 million in traffic investigation settlement

By Cy Ryan

Monday, April 13, 2009 | 10:13 a.m.

UPDATED STORY: Board approves $2 million settlement in traffic death

CARSON CITY – A 1994 traffic death investigation by the Nevada Highway Patrol will cost the state $2 million.

The state Board of Examiners is set Tuesday to approve the $2 million settlement to Michael Delew, whose wife Erin was killed when her bicycle was hit by a car driven by Janet Kathleen Wagner, the wife of a Metro Police officer.

Delew contends law enforcement covered up the facts in the death. He contended that Wagner was speeding at the time of the accident, was under the influence of alcohol and violated the right of way of Erin Delew. The crash occurred in Las Vegas.

Metro has already settled for $1.4 million.

Stan Miller, claims manager for the state Attorney General, said the case was to go to trial this month when a federal judge, at a settlement conference, advised the state it would be hit for several million dollars.

It will be the largest settlement paid by the state, Miller said, once the federal court in Las Vegas sets the fees for attorneys. The largest previous settlement was $2.5 million, paid when a highway patrol trooper hit a vehicle killing four people.

The case has been to the 9th U.S. Circuit Court of Appeals twice.

After the accident, it was about two hours before the Highway Patrol was called. It was two hours later before a blood alcohol test was performed on Wagner.

The patrol, according to the Delew suit, deliberately failed to preserve physical evidence such as skid marks and relevant debris. And it allowed Wagner to leave the scene of the accident.

Delew alleged it was a defective investigation and there was a conspiracy between the Highway Patrol and Metro because the driver was the wife of a police officer. The state has denied the allegations.

Delew filed a wrongful death suit in November 1994 and the court battle has continued since then.

Miller, in his report to the board of examiners, said “Although it does not appear there was any conspiracy, a jury could be led to believe there was and award a judgment far in excess of the settlement amount.

“This would be a very long and costly trial in which an adverse judgment could have a serious impact on the state’s budget,” Miller said in his report to the board, which is composed of the governor, attorney general and secretary of state.