Father settles wrongful death lawsuit with Franklin County after daughters' 2020 drownings

FRANKLIN COUNTY — A Laurel, Indiana father has reached a settlement with Franklin County following the 2020 drowning death of his daughters 4-year-old KyLee and 7-year-old Elysium.

Josh Mosier filed a wrongful death lawsuit against Franklin County and the sheriff’s department on Jan. 11, 2021 alleging they were negligent when they failed to notify the traveling public about the washed-out Sanes Creek bridge and roadway.

On March 20, 2020, KyLee, Elysium, their 13-year-old half-brother Ethan and their mother Felina Lewis drowned after their vehicle got swept away from the Sanes Creek bridge.

Shawn Roberts and Burton Spurlock also died that day after the floodwaters carried away their vehicle.

WRTV Investigates uncovered several concerned citizens called 911 or the sheriff’s department warning the bridge was covered in water, yet the county did not dispatch a deputy or road crew to the area.

Nearly all of details of Josh Mosier’s settlement with Franklin County are confidential.

However, through a public records request, WRTV has learned Franklin County’s insurance carrier paid $1.3 million to Mosier and his attorneys for the deaths of KyLee and Elysium.

“No County funds were used to pay the settlement,” said Libby Roberts, a Fishers attorney representing Franklin County in the lawsuit, in an email to WRTV. “The insurance carrier had sole authority to negotiate a settlement and the County did not participate in the settlement discussions or process.”

Mosier’s attorney, Jeff Gibson of Carmel law firm Wagner Reese, confirmed Mosier’s lawsuit has been resolved as to Franklin County and the sheriff’s department, but declined to comment further citing the confidential nature of the settlement agreement.

Mosier’s claim against Copperhead Excavating of Laurel is still pending.

PREVIOUS | 911 operators failed to follow policy, court records allege

Mosier’s lawsuit claims Copperhead Excavating contracted with Franklin County to perform shoring services around the Sanes Creek bridge.

The lawsuit claims Copperhead Excavating was negligent by failing to properly place, anchor or secure the stone blocks to prevent the approaches to the bridge from washing out during times of high water.

Copperhead Excavating denied it was negligent and blamed an “Act of God” for the injuries and/or property damage.

“I hear them call, and I can’t get to them”: Father lost two daughters

Josh Mosier’s ex-girlfriend Felina Lewis was driving her kids to the babysitter on her way to work the morning of March 20, 2020, when her van got swept away by floodwaters on Sanes Creek bridge.

Mosier lives near the creek and found his daughter’s bodies, but it was too late.

“It definitely makes it hard to sleep,” Mosier said. “It's almost like I hear them call, and I can't get to them."

PREVIOUS | County highway workers lived near bridge where six people died

"There's a better way to handle a 911 call,” Mosier said. “That's what they're there for, it's an emergency phone call. This wasn't an accident; this was something that could have been prevented."

A memorial alongside the creek serves as a reminder of what happened that day.

WRTV Photo

Mosier rarely comes to the spot where it happened, even though it’s close to his home.

“I just blow them kisses and give silent words as I go across the bridge,” Mosier said.

KyLee and Elysium loved playing in the creek, and it was once the family’s happy place.

“It is something I’ve loved my whole life, catching crawdads, and now it has a whole different meaning for me,” Mosier said.

WRTV Photo

Citizens called 911 and Sheriff about bridge, creek flooding

What Mosier didn’t know when he found his daughters’ bodies is that several people called 911 and the Franklin County Sheriff’s Department hours before Felina Lewis and the kids went into Sanes Creek.

The first call came in at approximately 3:17 a.m. from a woman who lives near the bridge.

• 911 Operator: 911 what's your emergency?
• Caller: Uh, Sanes Creek Road is flooded.
• 911 Operator: OK, is there an emergency? Is someone stuck?
• Caller: No, we was just going down the hill and we turned around but yeah it's flooded bad.
  

Another caller contacted 911 an hour later, at around 4:18 a.m.

• Caller: The bridge here on Sanes Creek at the bottom of Sanes Creek hill is completely washed out. It's gone on one side. Somebody better get down here and block it off before someone goes into the river.
• 911 Operator: OK, I’ll let them know.
• Caller: Thanks.

A third person called the Franklin County Sheriff’s Department at 4:46 a.m. after her son had trouble getting to work.

• Caller: The water is so deep. He drives a red GMC truck. He said the water is so deep, it went halfway up his headlights and it is moving very fast and almost took him down the creek.
  

New information suggests tragedy could have been prevented

Since WRTV Investigates first told you about this case back in April 2021, a lot has happened behind the scenes, including depositions of the 911 operators who worked that morning as well as the 911 supervisor.

Mosier’s attorney said what those depositions revealed is proof this tragedy could have been prevented.

Through a records request, WRTV Investigates obtained a copy of the county’s policy and procedure manual which states, “When Franklin County Dispatch receives a call of any type of obstruction or failure to a Franklin County road, ie trees down, flooded water, etc, the appropriate County Highway Supervisor will be notified."

In an October deposition as part of Mosier’s wrongful death lawsuit, Franklin County 911 Supervisor Jon Hundley testified it is policy for county highway and a sheriff’s deputy to be notified, if a deputy is available.

But that didn’t happen.

Hundley testified a dispatch trainee and her supervisor both heard the 4:18 a.m. call, about 40 minutes before Felina Lewis’ van went into the creek.

• Caller: The bridge here on Sanes Creek at the bottom of Sanes Creek hill is completely washed out. It's gone on one side. Somebody better get down here and block it off before someone goes into the river.
• 911 Operator: OK, I’ll let them know.
• Caller: Thanks.

But they did not let anyone know, court documents allege. Instead, Hundley testified someone working in the call center consciously converted the 4:18 a.m. call to an I-call.

That means information only, and according to the county’s training manual, an I-call does not have to be assigned or cleared by an officer.

Mosier’s attorney, Tim Devereux of Carmel-based law firm Wagner Reese, said Hundley’s deposition was eye-opening.

"What we didn't realize until we got into these depositions is that the call had to be consciously changed,” Devereux said. “It was changed, and because of that, no actions were taken to prevent the tragedy that occurred."

They also obtained a 5:13 p.m. call from March 20 in which Franklin County Chief Deputy Greg Mehlbauer called into dispatch to have one of his employees review the call log.

During that call, Mehlbauer asked if anyone had reported the bridge was out.

• Mehlbauer: God help whoever didn’t pass that on if it’s in there.
• Dispatcher: Wait, there was a call at 4:18. It says advise the bridge on Sanes Creek Road is completely washed away.
• Mehlbauer: What did they do with it?
• Dispatcher: It looks like it was made an I-call.
• Mehlbauer: Are you f*cking kidding me?

Devereux believes six people would be alive today had the 911 operators followed the county’s policy to contact county highway about an obstructed roadway.

"I was trying to think, how am I going to tell Josh?” Devereux said. “It's difficult to tell him that your worst fears are confirmed, this was preventable.”

The lawsuit also alleged the 911 dispatchers were posting to social media around the same time the calls about the bridge came in, an allegation the county denies.

Mosier’s attorney obtained video from inside the 911 call center.

“When we watched the video, we saw these people were on their phones,” Devereux said. “They were on their cellphones during this time frame."

Laurel company added to wrongful death lawsuit

Mosier and his attorneys filed an amended lawsuit on Oct. 15 naming Copperhead Excavating of Laurel as a defendant.

They claim Copperhead Excavating contracted with Franklin County to perform shoring services around the Sanes Creek bridge.

The lawsuit claims Copperhead Excavating was negligent by failing to properly place, anchor or secure the stone blocks to prevent the approaches to the bridge from washing out during times of high water.

“The blocks that were positioned there were not cemented together, we can't see they were cabled together or that they were secure,” Devereux said. “So that's what we want to do in our lawsuit is dig in to see how that work was done, how it should have been done and possibly how this incident would have been impacted had this been done properly."

In its response to the court filed Nov. 29, Copperhead Excavating denied it was negligent and blamed an “Act of God” for the injuries and/or property damage.

Copperhead Excavating also said in its court filing the work they did in 2017 “was performed in a workmanlike manner,” but the company pointed out it was not involved in the design or construction of the bridge itself.

The company’s attorney Tim Spille declined to comment to WRTV about the lawsuit.

In a court filing, Franklin County denied it was negligent and also denied Copperhead Excavating was negligent.

Franklin County has claimed it is immune from liability in this case under the Indiana Tort Claims Act.

Devereux also said immunity doesn’t apply because the county’s response to the flooded bridge was “willful or wanton misconduct," which is alleged in the lawsuit.

"It is a conscious disregard for the safety of others,” Devereux said. “They knew that no officer would be sent out, there would be no sheriff’s car at the bridge to block it with the lights on. They didn’t send a fire truck. There were options they could have done and didn’t.”

The 911 operators were not named as defendants in the lawsuit.

According to the county’s attorney, one of the dispatchers named in the lawsuit was terminated on March 27, 2020, after a county internal investigation found he gave untruthful statements about a dispatch call the county received on March 20, 2020, the same day Felina Lewis and five others died in the creek.

Another employee listed in the lawsuit is still working for Franklin County and was still in training on the day of the March 20 flood, the county’s attorney said.

We are also still waiting to hear back on whether the county has changed its training, policies or procedures following the tragedy.

The families of other victims, including Shawn Roberts, Burton Spurlock and Felina Lewis, have filed separate lawsuits against Franklin County and those lawsuits are still pending.

A lawsuit filed on behalf of Ethan Williams settled for $625,000.

Attorney Mike Stephenson provided a statement to WRTV regarding the settlement on May 17.

"The Estate of Ethan Williams case was resolved by a payment from the County’s insurance carrier. No County funds were used to pay the settlement. The insurance carrier had sole authority to negotiate a settlement and the County did not participate in the settlement discussions or process. Recognizing the tragedy involved, the law that governs this situation and considering the statutory caps that limit the amount that can be paid in this situation the parties were able to reach a settlement.   At the request of Mr. Williams he has asked that the amount of the settlement not be publicized."

According to Indiana's Public Access Counselor, government agencies like schools and sheriff's departments must disclose the dollar amount of settlements, even when the agreement is confidential.

In April 2021, WRTV Investigates shared the following statement from the Franklin County Commissioners:

Last year on March 19 and 20, Franklin County was hit by severe thunderstorms that included hail, high winds, and a significant amount of rain. The storms caused local streams, creeks, and rivers to overflow, including Sanes Creek. The water level in Sanes Creek quickly rose and the rushing water created a large drift pile in the creek. That drift pile forced water behind one of the supports for the bridge. While the bridge was not damaged, the water washed away the road approaching the bridge. Unfortunately, two vehicles were also washed away by the rushing water and six lives were lost. All bridges in Franklin County are inspected at least every two years. In addition to the regular inspections, the County (via its consultant) conducted a special inspection of the Sanes Creek Bridge after the tragic events of March 20. The inspection found the bridge was structurally sound. The approach to the bridge was rebuilt and the bridge was safely re-opened for travel. Severe weather is unavoidable, and the power of rushing water is devastating. Franklin County Emergency Management and first responders work to make sure Franklin County is ready to respond to emergency situations, including weather-related disasters.