Aftermath of deadly Lamborghini crash: Lawsuits, charges and fight over fault

April 06--In the yellow Lamborghini Murcielago, fitness club mogul Roger Wittenberns gripped the wheel after a late lunch and cocktails at a downtown Delray Beach restaurant.

In the silver Buick Enclave, Uber driver and retired real estate agent J. Gerald Smith had dinner waiting at his Boynton Beach home.

At 4:36 p.m. Sept. 21, 2016, the sports car slammed into the SUV in the intersection of Federal Highway and Northeast First Street. The crash shattered lives and metal, leading to ongoing court battles over who's at fault for the crash that claimed Smith's life, and who should pay.

Among the notable court actions:

-- Wittenberns' trial on DUI manslaughter and other charges could be scheduled during a hearing later this month. He remains on house arrest at his $2 million estate home in Delray under the terms of a $450,000 bond.

-- Uber's car insurance company sued to force Wittenberns, 62, to reimburse at least $250,000 already paid to Smith's widow. In December, a judge denied Wittenberns' attempt to get this lawsuit tossed and ordered him to respond to the claim.

-- A civil attorney for Wittenberns, also in December, argued negligence in the crash is shared by: the 82-year-old victim for a right-of-way violation cited in a police report; Uber for distracting Smith for an alleged service call; and the city of Delray Beach for failing to correct a "known dangerous intersection."

-- Wittenberns last year paid Smith's estate an undisclosed financial settlement in a wrongful death lawsuit.

Wittenberns acquired his wealth in the health club business, from his start with fitness guru Jack LaLanne in the 1970s to his ownership of Lady of America and later his leadership of a company that used to control The Zoo Health Clubs.

His longtime friend and attorney Manuel Kushner says Wittenberns is an "honorable person" caught up in "a very unfortunate situation."

"He feels horrible about what happened," he said.

The crash

Wittenberns, an exotic car connoisseur, began the day of the fatal crash with a trip to his doctor for back pain injections. He later stopped at a body shop to pick up the Lamborghini.

Then, at 2:30 p.m., he arrived at City Oyster on Atlantic Avenue for a meal and drinks with his now-wife Peggy Ann McQuiggin. She drove separately, in a yellow Porsche.

The table check listed three Long Island iced teas, and "3 Cosmo, 3 Goose 4 oz." The couple continued on to the bar, purchasing another Long Island iced tea, a vodka martini and a "Goose 4 oz," records show.

The pair paid the bill at 4:20 p.m. and left several minutes later.

Police say Wittenberns and McQuiggin, in their sports cars, headed east on Atlantic and then north on Federal, which has a posted 35 mph speed limit. Witnesses said both cars blew by, which Wittenberns later disputed.

"At my age, you buy a Lamborghini because it looks cool. Everybody knows it goes fast, there's no question. But you don't have to be a jackass and go fast, so I was going maybe 30 [mph]," Wittenberns told police.

But investigators determined the Lamborghini reached at least 75 mph when Smith's SUV pulled out from a stop sign at Northeast First Street.

The front end of the Lamborghini plowed underneath the Buick SUV, sending it spinning. The Lamborghini then hit a parked Mercedes, pushing it backward.

Smith died within minutes. Wittenberns went to the hospital, where doctors treated cuts on his head, face and legs.

A blood sample taken by a nurse less than an hour later showed a 0.15 blood-alcohol level, nearly twice the legal limit of .08, reports show. A blood sample obtained through a court warrant, more than nine hours after the crash, showed no presence of alcohol.

Defense attorney Marc Shiner said while the case is a "horrible tragedy," the police report states Smith "failed to yield right of way." However in Wittenberns' arrest report, police said he drove in a "grossly negligent manner without concern for the safety of others and caused J. Gerald Smith's death."

And it wasn't Wittenberns' first trouble behind the wheel. His driver's license was suspended for six months after a 1999 DUI arrest for a blood-alcohol level of 0.15, according to state records.

The lawsuits

The James River Insurance Co., which insured Smith's driving for Uber, sued Wittenberns in Broward and Palm Beach County circuit courts. Lisa Smith, the victim's widow, filed a separate claim.

In the Broward action, the insurance firm accused Wittenberns of moving quickly after the crash to sell mortgages on his properties in Lighthouse Point and Fort Lauderdale to someone he knows, to "fraudulently" keep assets away from potential recovery over the crash.

Wittenberns' lawyer also took aim at the city of Delray Beach, for not making "this intersection safer" with a traffic light and by taking no action to remove an illegal, temporary fence "which obstructed motorists view of the intersection."

City Attorney R. Max Lohman said he was not aware of the allegation, and it's possible the city will have to "vigorously defend" its interests.

"City was not negligent in this matter, neither commission nor omission," he wrote in an email.

Traffic signals are controlled by the state Department of Transportation, which studied the intersection after the crash and a public outcry for a light.

While engineers determined a traffic signal still isn't warranted, the agency made other improvements including relocating street signs, and installing two new signs warning that "traffic on Federal Highway does not come to a stop at the intersection," spokesperson Guillermo Canedo said.

Wittenberns said he had no warning of danger.

"The next thing you know, a car comes out of God knows where on the right-hand side, crosses the street," Wittenberns told an investigator less than 12 hours after the crash. "There's a car in front of me, and I could not stop or slam on the brakes or anything."

But Wittenberns, in a sworn statement, said he had been looking to unload one of the properties and got a decent offer from a buyer he had never met before. Wittenberns also said he's free to do what he wants with his real estate holdings and money, until he's ordered by a court to pay a judgment.

He said he pocketed $4.9 million in a "fair market" deal.

For reasons not stated in the court file, the insurance company ended the lawsuit in January. Attorney Jaime Pozo did not respond to multiple calls to his Miami office.

But the firm continues to pursue a suit against Wittenberns in Palm Beach County, contending the Lamborghini driver is on the hook for the car insurance policy payout.

In response, Wittenberns' attorney, Michael Robb, wrote the claim is improper for numerous reasons. Among them: the Uber driver's negligence for violating Wittenberns' right-of-way, and Uber's negligence for distracting Smith to the point the retiree pulled into traffic.

Uber's media office did not respond to a request for comment.

[email protected], 561-243-6642 or Twitter @marcjfreeman

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