Antonio Vargas
Antonio Vargas, 22, of Somers Point

A complaint filed by a Somers Point man charged with vehicular homicide claims that the man he is accused of killing was the one driving — and he is now suing the dead man’s estate.

Antonio Vargas, 22, is charged with eight counts, including aggravated manslaughter, for an accident in Somers Point on Jan. 6, 2011, that killed Kevin Botta, of Somers Point. A bystander, Joseph Higbee, of Northfield, was injured in the crash.

Now Vargas is claiming in his complaint, filed in late December in state Superior Court in Atlantic City, that he was a passenger in his own vehicle, “having given authorization and consent for operation of his vehicle to Kevin Botta, now deceased.”

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The complaint varies greatly from the version of events given by prosecutors when they indicted Vargas one year ago, but Vargas’ civil attorney Louis Barbone said his client has always maintained that Botta was driving.

The state indictment alleges that Vargas and Botta had been drinking at Gregory’s Bar and Restaurant when they left to drive to a nearby Wawa. On the return trip, Vargas — who was on his ninth license suspension — was allegedly drunk and travelling 70 mph when he clipped a truck, struck a pole and a fire hydrant and crashed into the bar’s door.

In his complaint, Vargas claims that he did drive Botta to the Wawa, but afterward “(Botta) requested and plaintiff (Vargas) acquiesced in the request that (Botta) be permitted to operate plaintiff’s motor vehicle on Shore Road in Somers Point as the two were returning to Gregory’s Bar from the Wawa.”

The complaint continues that Botta “negligently, carelessly and recklessly” drove Vargas’s car at speeds “exceeding 100 mile(s) per hour … thereby causing a horrific motor vehicle accident.”

Botta and his estate, the complaint states, are “therefore liable to (Vargas) for significant, permanent and debilitating physical damages” including “lifelong pain and suffering.”

Vargas and Barbone are seeking unspecified compensatory damages and attorney’s fees.

Joseph Grassi, who is defending Vargas on his criminal charges, had argued in a bail hearing in May 2011 that there was some question as to who was driving, as Botta was partially ejected and ended up on the driver’s side.

But Assistant Prosecutor Diane Ruberton said at the same hearing that Vargas was pinned behind the wheel and had to be extricated.

Video surveillance outside the store also showed a man in a white sweatshirt, identified as Vargas, getting into the driver’s seat as they left the Wawa, Ruberton said, and Botta was wearing black that night.

A witness also told investigators that a man in a white sweatshirt was driving when the car was stopped at a red light shortly before the crash, Ruberton said.

Vargas’ complaint was filed as he prepares for his criminal trial, scheduled to begin April 1, his 23rd birthday. He remains jailed on $350,000 bail.

This is the second civil complaint resulting from the crash. Higbee, who was celebrating his birthday that night, filed a personal injury complaint against Vargas in 2012.

Staff writer Lynda Cohen contributed to this report.

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