Fallen of­fi­cer’s com­mon-law wife fights for death ben­e­fits

Risk pool of­fi­cials chal­lenge claim for com­pen­sa­tion af­ter fatal crash

Houston Chronicle - - CITY | STATE - By Kristi Nix

The com­mon-law wife of a Pear­land po­lice of­fi­cer killed by a drunken driver must prove for a third time that she is legally en­ti­tled to re­ceive death ben­e­fits from that city’s work­ers’ com­pen­sa­tion fund.

The state as­so­ci­a­tion that han­dles such com­pen­sa­tion has filed a law­suit seek­ing to block pay­ment of death ben­e­fits on be­half of Of­fi­cer Endy Ek­pa­nya, killed on the job when his ve­hi­cle was struck nearly head-on by a drunken driver, Am­ber Willem­sen, on June 12, 2016. She had just left her job as a strip­per at The Ritz on the Gulf Free­way when she drove her car on the wrong side of FM 518, strik­ing Ek­pa­nya’s pa­trol car.

At­tor­neys from the Texas Mu­nic­i­pal League In­ter­gov­ern­men­tal Risk Pool are seek­ing a judge’s rul­ing on whether Lucy Lugo is en­ti­tled to the ben­e­fits. Last March, a ben­e­fit re­view of­fi­cer ruled Lugo was the com­mon-law wife and le­gal ben­e­fi­ciary of Ek­pa­nya.

An ap­peals panel also sided with Lugo, say­ing she pre­sented suf­fi­cient ev­i­dence to prove she was Ek­pa­nya’s com­mon-law wife as de­fined by state law.

Among the ev­i­dence pre­sented by Lugo was a fu­neral pro­gram list­ing her as Ek­pa­nya’s wife and sev­eral let­ters tes­ti­fy­ing that the cou­ple was liv­ing to­gether as hus­band and wife and were plan­ning a wedding. One let­ter was signed by Pear­land Po­lice of­fi­cer Davis Vo and an­other was signed by Ek­pa­nya’s mother, ac­cord­ing to the March 31 rul­ing by the Texas De­part­ment of In­sur­ance Di­vi­sion of Work­ers’ Com­pen­sa­tion.

How­ever, risk-pool of­fi­cials are now ap­peal­ing and have filed a law­suit against Lugo in Bra­zo­ria County District Court, ar­gu­ing in court doc­u­ments that she had “er­ro­neously been de­ter­mined to be a ben­e­fi­ciary of a de­ceased for­mer em­ployee of the city.”

Jen­nifer O’Sul­li­van, the risk pool’s at­tor­ney and as­sis­tant man­ager of sub­ro­ga­tion, wrote in an email that be­cause it “uses pub­lic funds to pay work­ers’ com­pen­sa­tion ben­e­fits, TMLIRP owes a duty to its gov­ern­men­tal mem­bers and to the pub­lic to re­spon­si­bly ad­min­is­ter those funds.”

Three ele­ments

Texas law states that for an in­for­mal or “com­mon­law” mar­riage to be legally rec­og­nized, three ele­ments must ex­ist. In Lugo’s case, a state of­fi­cial ruled all three to be true, ac­cord­ing to the March rul­ing.

“Ms. Lugo’s tes­ti­mony and the ev­i­dence con­vinc­ingly showed that Ms. Lugo and Mr. Ek­pa­nya agreed to be mar­ried, lived to­gether as hus­band and wife, and rep­re­sented to oth­ers that they were mar­ried,” hear­ing of­fi­cer Jac­que­lyn Cole­man wrote.

Rep­re­sent­ing Lugo in the Bra­zo­ria County ap­peal is Pear­land at­tor­ney Greg Hill, who is also a for­mer Pear­land city coun­cil mem­ber.

In an email, Hill wrote the case will be reviewed and de­cided by state District Judge Pat Sebesta of Bra­zo­ria County.

“It’s just sim­ply about money for (City of Pear­land/TML), de­spite the fact that two sep­a­rate judges, and mul­ti­ple wit­nesses, and much ev­i­dence has al­ready shown that Lucy and Endy were in fact mar­ried un­der com­mon law,” Hill said.

Hill is also rep­re­sent­ing Lugo and other fam­ily mem­bers in a wrong­ful death law­suit brought against Willem­sen and the own­ers of the strip club where she worked.

‘Have it both ways’

Willem­sen, 40, a for­mer as­sis­tant prin­ci­pal in Clear Creek ISD, was out on bail on a drug charge when her Chrysler 200 sedan was in­volved in the crash on FM 518 near Lib­erty Drive.

Prose­cu­tors said at her trial last month that the of­fi­cer “took the hit for an­other cit­i­zen who was com­ing be­hind him.”

Willem­sen had vi­o­lated club pol­icy by drink­ing heav­ily dur­ing her shift. On Aug. 5, a jury con­victed her of in­tox­i­ca­tion man­slaugh­ter of a peace of­fi­cer and sen­tenced her to 32 years in prison.

Hill now says the risk pool has es­sen­tially jumped into the mid­dle of the wrong­ful death law­suit via re­cently filed court doc­u­ments in hopes of claim­ing a por­tion of any ben­e­fits paid to Lugo if the case is set­tled in fa­vor of the fam­ily.

“Their pur­pose there is to try to re­ceive sub­ro­ga­tion (re­im­burse­ment) if they lose in Sebesta’s court,” Hill wrote. “They want to have it both ways — not have to pay Lucy money in death ben­e­fits, and get paid back, if they do have to pay her.”

The choice to seek ju­di­cial re­view was made with­out in­put from Mayor Tom Reid, the City Coun­cil or other Pear­land of­fi­cials, ac­cord­ing to city at­tor­ney Darin Coker.

In her writ­ten state­ment, risk-pool at­tor­ney O’Sul­li­van ar­gues that seek­ing to block death ben­e­fit pay­ments to Lugo and at­tempt­ing to re­cap­ture any ben­e­fits paid to her from a pos­si­ble set­tle­ment from the wrong­ful death law­suit is part of her agency’s duty to tax­pay­ers.

The risk pool “also works on be­half of the pub­lic to seek re­im­burse­ment of work­ers’ com­pen­sa­tion ben­e­fits from third par­ties re­spon­si­ble for the em­ployee’s death where ap­pro­pri­ate,” O’Sul­li­van wrote. “By seek­ing re­im­burse­ment through sub­ro­ga­tion, TMLIRP works to shift the fi­nan­cial bur­den from the pub­lic to re­spon­si­ble third par­ties.”

A date has not yet been set for the ap­peal trial.

knix@hc­non­line.com

Ek­pa­nya

Michael Cia­glo / Hous­ton Chron­i­cle file

Lucy Lugo, wife of fallen Pear­land po­lice of­fi­cer Endy Ek­pa­nya, holds their son, Ju­lian, af­ter a 2016 fu­neral ser­vice at Grace Com­mu­nity Church.

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