Caven's Quest, Part One

H. Scott Caven III died five years ago in a gruesome rollover accident on Interstate 10 that also took two other young lives, including his best friend. He was driving home to see his parents one last time before he started his first year as a student in University of Texas at Austin’s prestigious Plan II honors program.

Since that awful Sunday in August 2004, H. Scott Caven Jr., has been on a quest to prove his namesake, Scotty, didn’t cause the tragedy. “We just wanted comfort knowing that while our son died, he was not to blame for two other deaths,” he said.

Initial reports from the Texas Department of Public Safety accident investigation concluded that Scotty, who was speeding and sending text messages to friends, caused the crash. But Caven had reason to believe his son and the other young adults were victims of shoddy brake work, and he set out to prove it. He sued Brake Check, threatened to sue DPS and recruited powerful state officials to plead his case. “Our sole intention was to get the record straight,” he said.

It’s a fight most any father would wage to clear the name of a child lost too soon. But Caven, an appointee to the University of Texas System Board of Regents and a political contributor to Gov. Rick Perry, wasn’t just any father. Over the course of five years, he got advice from the governor, met with the state’s top lawyer and eventually persuaded DPS to change its accident report. There’s no evidence that Caven used his political influence in an untoward way to complete his quest and clear his son’s name, but he was able to accomplish a rare feat: DPS in the last five years has changed the final reports in fewer than 1 percent of fatal crash investigations. “I believe with the same fact situation, someone could do it today, anybody,” Caven said. “What we had was clear evidence which was contrary to the conclusion of the DPS.” 

From celebration to disaster

On Aug. 8, 2004, Scotty was headed home to Houston from Austin where he had attended a rush party and pledged to a fraternity. The 18-year-old history buff, lacrosse midfielder and class officer graduated with high honors from Saint John’s School, a college preparatory program in Houston’s affluent River Oaks neighborhood. He was about to start his freshman semester at UT Austin, the flagship campus of the UT System. “He was, in our view, darn near perfect,” Caven said of his son. “He made almost straight A's through his entire high school career. He was very kind hearted, always helpful to others.”

The fresh-faced redhead — he called his hair “burnt orange,” the school color of his would-be alma mater — got up late that Sunday morning after a long night of fraternity celebration, had some Easy Mac with his buddies, and they hit the road for Houston in the afternoon. He drove his black 2000 GMC Yukon Denali with his childhood friend William “Nick” Finnegan riding shotgun. Another friend drove behind them in his BMW.

At about 5:30 p.m. near Sealy, eastbound traffic on I-10 suddenly slowed. Scotty veered into the other lane to avoid hitting the car in front of him, veered back, and then his SUV flipped over the I-10 median into oncoming traffic. It first landed on a black 1994 Honda Civic driven by 22-year-old Brittany Cune. She died instantly. The SUV kept rolling. It landed on another Honda Civic, whose occupants survived. A truck then hit the SUV before the crash finally ended. Scotty was dead. His friend Nick was critically injured and died later at the hospital.

Twelve days before the accident, Scotty and his dad had taken the SUV into a Brake Check shop in Houston. When he talked to DPS investigators on the night of the crash, Caven said he asked them to inspect the brakes.

From the start, DPS officials knew this accident would be different, not only because of the fatalities and multiple vehicles involved, but because of who was involved. In a deposition three years after the crash, DPS Sgt. John Tucker, the lead investigator on the collision reconstruction team, said when he was contacted shortly after the accident he was told “there was interest from our chief’s office in Austin... Apparently people in Austin knew our chain of command.”

Perry had appointed Caven, an investment banker, to the UT board of regents in 2003. Caven, a former executive at Goldman Sachs, has contributed more than $13,000 to Perry’s campaigns over the years and served as his state finance chairman. He has long been involved in Texas politics, serving as legal and planning assistant to Gov. John Connally from 1968 to 1969, and then being appointed to a variety of positions under Govs. William Clements, Ann Richards and George W. Bush.

Tucker and his team of reconstruction investigators went to the crash site about a week after the accident. Tucker, a trooper for nearly two decades, was a collision reconstruction instructor and had extensive training. His team talked to officers who were at the scene at the time of the accident. They analyzed grisly crash photos, read witness statements, measured tire marks on the road and examined crumpled vehicle remains. In their final report nearly two months after the crash, the team noted that Scotty had been exchanging text messages with his friend in the BMW and was driving at least 82 miles per hour. They concluded, “due to driver inattention and failure to control speed... slow-moving traffic caused the driver to take faulty evasive action.”

The report made no mention of brakes.

Caven believed Tucker and his team overlooked the brakes on Scotty’s SUV. So he hired his own experts to find out whether Brake Check's work caused the accident.

Cavens v. Brake Check

Nearly two years after the accident, in June 2006, Caven wrote a letter to Maj. Randy Elliston, who was then chief of the DPS highway patrol division, asking him to change the original accident report based on evidence his experts found showing that bad brake work caused the crash.

The engineer Caven hired found that Scotty wasn’t speeding and that Brake Check mechanics did damage that allowed air into the brake lines and diminished braking. “Prior to this accident, my son, during his entire driving history, had never caused an accident nor had he been charged with a moving traffic violation,” Caven wrote to Elliston. “He had always been a very safe driver for his entire driving career.”

One week after the letter, Caven met with Elliston and pleaded on his son’s behalf for a review of the case. “I never got a response from anybody,” Caven said in a recent interview. He decided to take his case to court.

In December of 2006, Caven and his wife Vivien filed a civil lawsuit against Brake Check alleging the company’s negligent work caused Scotty’s death. He hired his longtime friend Charlie Parker to go after Brake Check. “The mother almost died of grief; she couldn’t function for months,” Parker said. “The father was the same.” They paid engineers, mechanics and accident experts to test the brakes on the smashed SUV and examine evidence from the scene, photos and police reports. They brought in witnesses from the crash.

The experts said that Brake Check mechanics broke off a critical screw, allowing air to become trapped in the brake lines, and that they incorrectly adjusted the rear brakes. The witnesses, a couple traveling behind Scotty, said he was driving with the flow of traffic, not speeding. They said he tried to brake and take the same evasive action other drivers did when the traffic suddenly slowed, but unlike the others he was unable to get his vehicle stopped. “We even called our kids right after the accident and said, ‘You can do the right things and still be involved in an accident, just be so careful,’” Rand Berney said in a June 2007 deposition.

Brake Check brought in their own big guns, including a cell phone expert who determined that Scotty sent 20 text messages in the last hour-and-a-half he was alive. “People are getting killed because they’re using — they’re texting while they’re driving,” Ben Levitan said during his March 2008 deposition. “This is a very serious safety issue and Mr. Caven shows a pattern of a user who does that and does that consistently.”  

The company’s experts said the brake work was well within state and federal safety standards and was unlikely to cause an accident. “My conclusion has to be, and the only conclusion I can see, is that there was no air ... in the Caven vehicle brake lines,” vehicle control systems expert William Rosenbluth said in an April 2008 deposition. And DPS Trooper Tucker stood by his team’s initial investigation that showed Scotty was speeding and inattentive. If he had survived, Tucker said, Scotty would have faced criminal charges for causing the accident.

For nearly two years the Cavens and Brake Check fought in court over who caused the tragic accident. Finally, Brake Check’s insurance company intervened and offered to settle the case. The Cavens received $3.075 million. Brake Check admitted no fault. A judge dismissed the case on June 20, 2008. “All the money won’t replace a child,” Caven said. “This was less about money than about establishing the facts.”

The court fight was over, but in Caven’s mind the matter was far from settled.

Coming tomorrow: Caven takes on one of the largest and oldest state agencies to make sure the official record exonerates his son.