Maryland’s Preventive Maintenance Program Takes a Step in the Right Direction

/in /by Maryland’s Preventive Maintenance Program Takes a Step in the Right Direction

Maryland’s Preventive Maintenance Program (“PMP”) for commercial vehicles, Md. Code Ann., Transp. § 23-301 et seq (West 2021) is one of the strictest in the country. Until recently, the PMP required Maryland registered commercial trucks be inspected annually or every 25,000 miles, whichever comes first. Federal law only requires annual preventive maintenance inspections regardless of miles, and no other states have a mileage-based requirement. This requirement has created a disincentive for companies to register their trucks in Maryland and puts Maryland motor carriers at a disadvantage compared to their out-of-state counterparts, who run trucks through Maryland but are not subject to the same stringent requirements.

In January 2021, Maryland State Delegate David Fraser-Hidalgo sponsored House Bill 250 (“HB 250”) seeking to make Maryland’s truck inspection laws less strenuous by increasing the mileage at which Class F vehicles and certain Class E vehicles must be inspected, maintained, and repaired. Under HB 250, Class F tractors less than five years old would be subject to preventive maintenance inspections every 35,000 miles or every 12 months, whichever comes first. The thought was that increasing the mileage requirement for inspections on tractors to 35,000 miles would ease the financial cost to long-haul trucking companies by reducing the average inspections per year. Additionally, because zero-emission vehicles (“ZEVs”) require less maintenance than internal combustion engine vehicles, HB250 also sought to increase the inspection mileage requirements for ZEV straight trucks (Class E) to every 50,000 miles, or every 12 months, whichever occurs first.

On May 30, 2021, Governor Larry Hogan signed HB 250 into law, and it became effective on October 1, 2021. Therefore, as of  October 1, 2021, Maryland vehicles are now subject to the following Preventive Maintenance Inspection requirements: annually or every 35,000 miles (whichever comes first) for Class F tractors if they are no more than five years old; annually or every 50,000 miles (whichever comes first) for Class E straight trucks if they are no more than five years old and powered by a zero-emission fuel source; and annually or every 25,000 miles for vehicles that are older than five years, consistent with the law before HB 250.

Maryland’s recent PMP requirements will help Maryland become a more viable state for motor carriers to conduct business. These requirements will promote public safety and environmental health by encouraging companies to invest in newer, more reliable, and fuel-efficient trucks equipped with modern safety features. Even with these revisions, which only affect trucks less than five years old, Maryland still has one of the strictest preventive maintenance programs in the country. However, the enactment of HB 250 is a step in the right direction.

For more information, contact Stephen J. Marshall.

Can Employers Require Vaccination?

/in /by Can Employers Require Vaccination?

The short answer is yes. Because this issue is developing, states are looking to Federal agencies (such as the Equal Employment Opportunity Commission) for guidelines. The EEOC has opined that they can require vaccination so long as a private employer also makes exceptions for individuals under the ADA, Title VII of the Civil Rights Act, and accommodations for religious exemptions.

However, many private employers have taken a less forcible approach. Rather than mandating vaccines, private employers are reaching out to employees with incentives to encourage vaccines so as not to mandate them. This is permissible, so long as the incentives are not coercive.

Employers of emergency personnel are taking a different approach. Employers who employ emergency personnel, such as hospital workers, have now begun to mandate vaccination as a requirement for maintaining employment. In response to this mandate, some employees have initiated lawsuits against their employers challenging the mandate.  So far, none of these cases have been fully litigated. One argument advanced by the employees centers around the position that the vaccine remains in emergency authorization status. Conversely, the argument advanced by the employer is that COVID 19 is a direct threat to all employees in the workplace, and they need to ensure the safety of employees and customers or clients. The EEOC has taken the position that the vaccine’s status with the FDA does not affect an employer’s mandate.

Because rules involving COVID mandates are constantly evolving, it is important to confirm the most recent recommendations from the EEOC and their adoption by an employer and jurisdiction. Currently, the EEOC has determined that private employers are within their rights to mandate that employees be vaccinated. While the litigation employees have filed against employers for these mandates continues to make its way through the judicial system, it appears, for now, the guidelines from the EEOC are being upheld. Although it is expected additional House Bills will be submitted in an attempt to protect employers from lawsuits by employees and employees from having to provide proof of vaccination or from being terminated for not being vaccinated, any additional Bills will likely suffer the same fate.

Written by Theresa L. Teixeira.

Delaware Courts Continue Recognition of Difficulty in Removing Snow and Ice from Premises

/in /by Delaware Courts Continue Recognition of Difficulty in Removing Snow and Ice from Premises

Delaware courts have been busy this year addressing cases involving slip and falls on ice and snow.  This spring, the court reaffirmed the Continuing Storm Doctrine holding that landowners and tenants do not need to take measures to remediate snow and ice until a reasonable time after a storm subsides.  As a result, landowners are not required to even attempt to remove snow and ice while a storm is ongoing.  Snow removal companies have been quick to pick up on the Court’s holdings, adding language to contracts that they will not respond during snow and ice events unless specifically asked to do so.

The next question became what constitutes a reasonable measure for removing snow and ice when remediation measures are taken after a storm subsides.  In Ridgeway v. Fox Run SC, et al., the Delaware Supreme Court recognized that there are occasions when a lay person is able to determine when the measures were not adequate (when no measures are taken or they are incredibly poorly performed), but that there are also occasions when lay persons are not able to make a qualified determination and expert testimony may be needed.  The Court had previously not delved into requiring expert testimony, but in Ridgeway, it was faced with a fact pattern that called into question a lay person’s ability to determine if the measures taken were reasonable.  In Ridgeway, a snow removal company performed plowing and de-icing of a business premises multiple times over three days.  The property was a large parking lot for a shopping center. The owner of the snow removal company testified to the plan used to plow and de-ice in order to best move snow to locations to protect those using the premises from melting and refreezing.  On the day of the fall, the plaintiff drove to shop at a grocery store on the premises mid-morning of the third day.  She exited her car and took two steps before she fell.  Video showed a discolored surface where she fell which was debatably ice or salt residue.

The plaintiff chose not to retain an expert and argued that her description of the ice she fell on was sufficient to create an issue of fact of whether the snow and ice remediation performed was reasonable since there was still ice on the premises.  The Court disagreed, recognizing that some injuries are not the legal fault of anyone, they just are the result of the reality that nothing in life is entirely safe. The Court held that when there is substantial evidence of reasonable measures having been taken to perform snow and ice remediation, the plaintiff must produce some evidence that a breach of duty occurred and cannot rely on the mere fact that a fall occurred; “It is not enough to point to a slip and fall and the existence of snow and ice in the area.”  Where remediation measures were performed multiple times over three days, the plaintiff will need to produce expert testimony that the landlord/tenant breached a duty owed an invitee by not taking reasonable steps to make the premises reasonably safe.

The issue of timing is set aside since the Courts have been inconsistent in what actually constitutes a reasonable amount of time after a storm that remediation measures need to be taken.  However, based on Ridgeway, where a landowner and/or snow removal company can show that reasonable measures were taken in accordance with a plan to perform snow and ice remediation in an effort to make a premises safe for business invitees, then a business invitee who falls will need to produce some evidence that the measures did not conform to industry standards and a duty owed to the injured party was breached.  This should require expert testimony.

For more information about this article, please contact Eric Scott Thompson at 302.594.9780 or ethompson@fandpnet.com.

 

Maryland Law and Ride-Sharing Apps

/in /by Maryland Law and Ride-Sharing Apps

In today’s age of convenience, ride-sharing apps like Uber, Lyft, and Sidecar have made taxi-hailing a thing of the past. As the number of these drivers has increased exponentially over the last few years, so has the question of who’s ultimately financially responsible for accidents resulting from these unique services.

The manner in which ride-sharing companies classify their drivers is not only a crucial aspect of these companies’ hiring processes but also has huge ramifications for Maryland motorists. Instead of becoming an “employee” of the company, these drivers are identified as “independent contractors” or even “third party providers.”[1] At common law, the distinction between an employee and an independent contractor rests on the degree of control exercised by the hiring party. An employer controls the work and its instrumentalities and circumstances to a greater degree than does a hiring party in an independent contractor relationship. The Fourth Circuit applies a twelve-factor “hybrid test” in its employee/independent contractor determination, which combines the common law element of control by the hiring party over the hired party’s work with an analysis of the degree of economic dependence of the worker on the putative employer. However, the common-law derived control element is the most important factor.

By categorizing their drivers as independent contractors rather than employees, ride share companies attempt to save on costs while protecting themselves from the typical responsibilities that an employer would usually embody through vicarious liability principles. For instance, under the well-developed doctrine of respondent superior, an employer can be held responsible for the negligent acts of its employee or agent that are committed during the course and scope of the employee’s or agent’s employment. Such liability does not exist in the employer-independent contractor relationship.

Not only does this mean that Uber does not have to pay for traditional workers’ compensation insurance, but it also makes suing Uber directly much more difficult. For instance, in terms of motor vehicle insurance coverage, Uber requires all of its drivers to carry their own personal automobile insurance. It is only in particular situations that the company’s own tiered coverage is triggered. Specifically, an Uber driver will not be covered by Uber’s policy if involved in a car accident while her app is turned off as she is off duty. This accident would be covered by her personal automobile insurance. However, from the time that the driver turns on her app and accepts a passenger’s ride request to the time that the driver drops the passenger off at their final destination, the Uber driver is covered under Uber’s policy. However, claimants’ difficulties lie in cases with catastrophic losses that cannot be fully satisfied through these limits, such as wrongful death cases.

While Philadelphia and Florida courts have found that drivers for Uber are independent contractors, other states like California and New York have determined drivers are employees under those states’ laws. Maryland courts have yet to make a formal determination as to whether ride-sharing drivers are officially to be recognized as employees. The litigation surrounding these issues will continue to reflect the complicated nature of this growing market. One thing is for certain, the times they are a-changing when it comes to this competitive and revolutionary field.

For more information about this article, please contact Miranda Russell at 410.230.1092 or mrussell@fandpnet.com.

[1] “Uber shall not be liable for indirect, incidental, special, exemplary, punitive, or consequential damages, including lost profits, lost data, personal injury, or property damage related to, in connection with, or otherwise resulting from any use of the services, regardless of the negligence (either active, affirmative, sole, or concurrent) of Uber, even if Uber has been advised of the possibility of such damages.” Uber’s U.S. Terms of Use, effective December 13, 2017.

 

Alternative/Experimental Medical Treatments in Virginia Liability

/in /by Alternative/Experimental Medical Treatments in Virginia Liability

Whether it’s a personal injury from an automobile or trucking accident, a slip and fall, or any other liability claim, Virginia permits recovery of damages for loss of income and earning capacity, past and future pain and suffering, disfigurement, inconvenience, and past and future medical expenses.

In addition to traditional medical expenses, sometimes alternative or experimental medical treatments, also known as “common alternative medicine”, will be included in a plaintiff’s medical expenses. These alternative treatments can be used on their own or in conjunction with traditional medicine. More importantly, they could be considered by a jury in determining how much to award a plaintiff or they could be part of a plaintiff’s demand package and therefore need to be evaluated/considered by an attorney, an adjuster, or a third-party administrator (“TPA”) in evaluating a claim for settlement.

Chronic pain management is a medical expense typically seen in a plaintiff’s  future medical expense calculations. Chronic pain management usually involves main medications/narcotics, but as pain medication addition is becoming more prevalent, plaintiffs and their doctors will likely seek alternative means to manage chronic pain.

Physical therapy is a common alternative treatment, but there are many others. Water aerobics, acupuncture, and chiropractic treatments can be part of a long-term pain management plan in addition to physical therapy. Some evidence suggests that stress management and relaxation therapy can improve pain symptoms as well. This evidence is based on the idea that when stressed, our bodies go into fight-or-flight mode, which causes an increase in blood pressure, heart rate, and tense muscles. As such, it would not be surprising to see more stress reduction techniques included as part of a plaintiff’s future medical expense plans. Some alternative treatments, related to stress reduction, include yoga, hypnotherapy, guided imagery, biofeedback, massage therapy, and herbal remedies or natural supplements.

Medical marijuana may be gaining traction as a potential alternative pain treatment as well. Proponents of marijuana and cannabis oils as alternative treatments say the medicine helps to relieve pain, inflammation, seizures, muscle spasms, and nausea—all symptoms common to plaintiffs with serious personal injuries.

This year (2018), Virginia lawmakers expanded legislation first passed in 2015 which gave medical marijuana users an affirmative defense for the possession of cannabis oils for treatment of severe epilepsy. This protection has now been expanded to allow doctors to recommend the oils for patients with any medical condition that can be treated by it. By the end of this year, Virginia plans to issue licenses to five companies that will be permitted to produce cannabidiol (more commonly known as “CBD”) or tetrahydrocannabinolic acid (“THC-A”) oil for medical use (though Virginia will limit the THC levels of these oils to five percent).

Because the oil products will be dispensed to patients who have a written recommendation from a doctor to treat the symptoms of any diagnosed condition or disease that could be treated with the oil, there is a potential for expenses associated with medicinal marijuana use for chronic pain management from personal injuries to make their way into future medical expense plans.

From a litigation standpoint, it will be important to continue to evaluate personal injury/liability claims on a case by case basis while keeping in mind that a jury could consider any alternative treatment propounded by a plaintiff as part of his/her future medical expenses in awarding damages—including medical marijuana. Attorneys, insurance adjusters, and TPAs should be prepared to do the same in analyzing the value of a claim for settlement purposes.

For more information about this article, please contact Elena G. Patarinski at 804.932.1996 or epatarinski@fandpnet.com.

 

To Stop or Not to Stop? West Virginia’s Law Concerning the Duties for Motorists to Yield the Right of Way to Emergency Vehicles

/in /by To Stop or Not to Stop? West Virginia’s Law Concerning the Duties for Motorists to Yield the Right of Way to Emergency Vehicles

From the time we started driving, we were always taught and instructed to pull over for emergency vehicles no matter the circumstances. However, rarely are we informed of what happens if we fail to move over for an emergency vehicle or if we simply did not notice that there was an emergency vehicle coming from behind. Recently, these questions, along with others, were answered by the Supreme Court of Appeals of West Virginia in Miller v. Allman, 240 W. Va. 438, 813 S.E.2d 91 (2018).

Miller was an appeal concerning, among other issues, whether the circuit court properly instructed the jury on the duty to yield to an emergency vehicle and the standard of care a police officer must use in operating an emergency vehicle. The facts of Miller stemmed from a motor vehicle accident that occurred when a police officer was responding to an apparent distress communication of another officer. Specifically, the police officer was traveling at a very high rate of speed with his siren and lights activated when he approached an intersection, at which time the plaintiff turned onto the same street and directly into the path of the police officer. The police officer attempted to stop by slamming on his brakes, but he was unable to avoid rear-ending the plaintiff’s vehicle.

First, the Court analyzed West Virginia Code § 17C-9-5 (1971) and held that the requirement that a motorist “yield the right-of-way to an emergency vehicle is contingent upon the motorist having a reasonably opportunity to hear the emergency vehicle’s siren or see its flashing light to allow the motorist sufficient time to yield the right-of-way.” Id. By holding such, the Court found that the evidence supported the given jury instruction because there was sufficient testimony that the plaintiff did not have time to hear the police officer’s siren or to see the flashing lights of the police officer’s vehicle.

The Court then analyzed the issue raised by the police officer concerning a jury instruction on his standard of care in operating an emergency vehicle. Again, the Court looked to § 17C-9-5 and ultimately held that it was proper for the trial court to instruct the jury that the police officer had a higher standard and duty of care than that of a civilian operating a vehicle. The Court reasoned that it was appropriate to use the phrase “higher standard” because of a prior holding by the Court that stated “it may be assumed that an emergency vehicle driver will have some specialized training in the operations of his [or her] vehicle.” Id., at 101-02 (quoting Peak v. Ratliff, 185 W. Va. 548, 553, 408 S.E.2d 300, 305 (1991)).

In conclusion, it appears that the Supreme Court of Appeals of West Virginia has loosened the reigns a bit when it comes to the obligations of motorists to yield the right-of-way to emergency vehicles. In essence, the Court has confirmed that West Virginia Code § 17C-9-5 allows for a motorist’s subjective sensory perception of an emergency vehicle’s lights and siren to be used to show compliance with the statute even though the motorist did not yield the right-of-way. This is a deviation from the petitioner’s argument in Miller which sought an objective standard. Moving forward, it is expected that the issue of whether a motorist properly yielded the right-of-way to an emergency vehicle will always be a jury question because of the subjective perception that the motorist will most likely have said that he or she did not hear or see the emergency vehicle.

For more information about this article, please contact Landon S. Moyer at 304.596.2277 or lmoyer@fandpnet.com.

F&P Case Spotlight: F&P Secures Defense Verdict in Prince George’s County MV Liability Trial

/in /by F&P Case Spotlight: F&P Secures Defense Verdict in Prince George’s County MV Liability Trial

F&P attorney Imoh Akpan recently obtained a defense verdict following a jury trial in the case Simpson, Cheree v. Butch Lewis Truck Company in the Circuit Court for Prince George’s County. The case arose out of a February 26, 2016 motor vehicle accident that occurred in a traffic circle in Washington, D.C. The Plaintiff, Cheree Simpson (“Plaintiff”), sought damages for injuries she allegedly sustained when Defendant Butch Lewis Truck Company’s driver struck Plaintiff’s vehicle while both were maneuvering through the traffic circle. There was no evidence that the Defendant’s vehicle made contact with the body of Plaintiff’s vehicle; the minimal property damage (totaling less than $1,000) was limited to the passenger side mirror of her vehicle.  Although she did not report any injuries at the scene, Plaintiff sought medical treatment, beginning eight (8) days after the accident, alleging to have suffered injuries to her lower back. Plaintiff sought damages at trial for past medical expenses, past lost wages, and pain and suffering.

At trial, Mr. Akpan was able to show through effective cross-examination of Plaintiff and her medical experts that Plaintiff’s claimed injuries were unrelated to the subject accident. Mr. Akpan effectively highlighted the minimal property damage to Plaintiff’s vehicle, the low-impact nature if the accident, Plaintiff’s eight (8) day delay in seeking medical treatment, Plaintiff’s report of no injuries on the scene, and Plaintiff’s medical expert’s lack of knowledge of Plaintiff’s medical history, significantly undermining the expert’s causation opinion, to obtain a favorable result.

Following the close of evidence and closing arguments, the jury returned its verdict in favor of Defendant, finding Defendant was negligent in the operation of his vehicle, causing the subject accident, but that Defendant’s  negligence was not a proximate cause of Plaintiff’s claimed injuries.

Managing Dashboard Camera Systems (“Dash Cams”) from the Risk Management and Defense Counsel’s Perspective

/in /by Managing Dashboard Camera Systems (“Dash Cams”) from the Risk Management and Defense Counsel’s Perspective

I have devoted my entire legal career to defending commercial transportation companies in civil liability cases. Over the past ten years, the involvement of dash cams in my cases has gone from being very rare to now being the norm. If the current trend continues, I suspect that in a year or two almost every case involving a commercial vehicle will involve dash cams in some respect. As will be discussed in greater detail below, the involvement of dash cams in my cases doesn’t always involve a clip of an accident itself. Sometimes, it’s the absence of a dash cam clip of the accident, or even non-accident related clips from the same driver, that takes center stage. As with any new technology, attorneys (on both sides), risk managers, insurers, and judges have grappled to develop appropriate practices and procedures to best manage dash cams in the claims, pre-suit, litigation, and trial arenas. This article includes observations and recommendations based largely on my own experiences of trial and error.

Although this article is written from the risk management perspective, it should be noted that the primary purpose of a dash cam system is safety management. Risk management is merely a secondary benefit. Dash cam systems are primarily designed and adopted for safety compliance, enforcement, and accountability. Drivers are monitored, unsafe drivers and practices are identified, and corrective action is taken all with a view towards eliminating bad drivers or counseling and retraining others. As such, most dash cam clips do not involve an actual claim. Rather, most clips only involve driver safety issues that may require additional action on the part of the safety department, e.g. driver discipline, retraining, coaching, or termination. Only a small percentage of dash cam clips will involve an accident with another vehicle or some other incident that has claim potential, e.g. pedestrian strike or passenger injury.

The oldest (and best) joke in the dash cam claims business is: “the greatest thing about dash cams is that they show you exactly what happened in the accident. The worst thing about dash cams is that they show you exactly what happened in the accident.” Although funny, it’s not accurate. In reality, the greatest thing about dash cams is that they show you exactly what happened in the accident, period. Regardless of whether the clip shows the good, the bad, or the ugly, it is always better, from a risk management standpoint, to know exactly how an accident happened.

One reason that it’s always better to know exactly what happened in the accident is that it should significantly reduce defense fees and expenses. I say “should” because it still requires intelligent decision making and communication between the attorney and his clients. In any emergency response situation, civil litigation, or trial involving a commercial motor vehicle accident, most of the defense resources, at every stage of the investigation, go towards identifying, preserving, and then presenting evidence of how the accident happened. With both sides fighting to develop and prove their version of the accident, in the absence of a dash cam clip showing the accident, it’s up to the attorneys to bring to life their version of events for the trier of fact. This can be a costly endeavor. Pre-suit defense resources are focused on identifying all potential sources of evidence, gathering that evidence, and preserving the evidence, which can include activities such as emergency responses; detailed driver interviews; retention of accident reconstruction experts to download vehicle data; scene and vehicle inspections; police coordination; pursuing witnesses; obtaining 911 calls; etc. Once suit is filed, additional resources are used to continue to gather information that was not otherwise discoverable or obtainable in the absence of formal litigation in the form of written discovery exchange; depositions; additional expert consultation and analysis; and motions. At the trial stage, the question of how the accident happened can involve days of testimony, arguments, and even scene visits by the jury. However, if you have a video clip that unequivocally demonstrates the accident, it eliminates the need for investigation, discovery, and dispute as to how the accident happened. Sometimes it even eliminates the advocacy but, attorneys being attorneys, even in the face of indisputable evidence, there is often still some spin to be made.

Indeed, sometimes we have cases where the dash cam clip accurately reflects the accident but both sides still disagree as to who is at fault. However, even in those instances, with intelligent communication between counsel, the parties can agree that the dash cam clip establishes the facts as to how the accident occurredbut agree to disagree as to the significance of those facts. In those cases, my approach is to reach out to the other side early in the litigation process and suggest that we present the dash cam clip as a joint exhibit to the court as indisputable fact as to how the accident took place with a joint request for summary judgment that defers to the judge’s determination as to the significance of the facts. If the judge refuses to grant summary judgment, we take the same approach at trial with the jury. Either way, having a dash cam clip that establishes the facts of how the accident took place, even when the parties disagree as to the significance of the facts, allows the parties to cut to the chase and allows both sides to bypass the usual discovery, experts, fact witnesses, etc., which is invariably the most costly aspect of litigation. This translates into a massive reduction in investigation and defense resources at every level of the claim.

Some clients, reluctant to employ dash cam systems, bemoan the prospect of a catastrophic accident being captured on camera, proving the negligence of our driver, and perhaps providing evidence of an “aggravating circumstance”, e.g. fatigue, distracted or reckless driving, excessive speed, intoxication, or cell phone use. They don’t want to pay for a system that is going to capture evidence that will later feature as plaintiff’s evidentiary “crown jewel” at trial. That’s a reasonable concern but, in my experience, you would always rather know, and you would always rather be the first to know. Even in the absence of dash cam footage, an experienced plaintiffs’ attorney will usually identify and develop any aggravating circumstances that may exist during the discovery period once litigation commences. At that point, usually two to three years down the road, when you are elbow deep into litigation expenses, it’s much harder to manage the exposure. I have had many horrible dash cam cases revealing aggravating circumstances, several involving fatalities, that we have managed to resolve pre-suit, some within three months of the date of loss (which is extraordinarily fast in the claims world) because we had exclusive knowledge of the dash cam footage. The plaintiffs’ attorneys in those claims never knew, and will never know, that we had their evidentiary crown jewel. Had they proceeded with litigation and discovery, they would have learned that the case was far beyond a simple case of negligence and had aggravating circumstances. In those cases, our exclusive knowledge of the dash cam clips helped us to avoid the increase in both cost and exposure that was inevitable with the passage of time.

On the other hand, we often get cases where a dash cam clip completely exonerates our clients in an accident claim; the veritable “slam dunk” as we like to call it. I have had numerous cases involving fatalities in which, because of the existence of dash cam clips, my clients ended up paying nothing when, in the absence of those clips, I know they would have ended up paying at least $500K-$1M. I even had one client who engaged the Lytx DriveCam system, fleet wide, only twenty days before a fatal accident where the driver struck some disabled vehicles on a dark portion of the D.C. beltway in the very early hours of the morning. It was one of those accidents where many witnesses had many different versions of events and the conspicuity of the disabled vehicles was the factual gravamen. We were so confident about the actions of our driver based on the dash cam footage that we made the strategic decision to voluntarily disclose the clip to the investigating Maryland State Police Crash Team within 48 hours of the accident. The MSP used the clip, and its data, as part of their accident reconstruction and adopted it into their Detailed Crash Investigation Report, which completely exonerated my client. Suffice it to say, that client was absolutely thrilled about its decision to invest in the system, which paid for itself for the next twenty years and more with just that one clip.

In addition to our “slam dunk” clips exonerating us in terms of liability, dash cam systems can also be beneficial for damages exoneration. Sometimes, we have clips that confirm that we were, in fact, negligent. Take, for example, a simple rear end collision. The clip will confirm our liability, but a rear end collision scenario is one where liability would inevitably have been adverse the existence of the clip notwithstanding. As such, the clip hasn’t necessarily hurt us in terms of liability. However, the clip may still serve to assist us in terms of damages. I recall one case with a rear end collision scenario captured on a dash cam. We were so confident that the severity of the collision, as depicted on the clip, was so minor that no jury could have believed that it resulted in the three-level spinal surgery and $150K in medical expenses claimed by the plaintiff. In the jury trial in Baltimore City Circuit Court, instead of using medical experts to attack the causal relationship between the accident and the ensuing surgery, we relied entirely on the dash cam footage which, with audio, reflected nothing more than a minor bump. We didn’t even bother to attack the plaintiff’s Johns Hopkins University medical experts; we just played the clip in opening, played it during trial, and played it again during closing. Even though we had admitted liability, the jury returned a verdict in favor of the plaintiff in the amount of $0.00 after deliberating for only fifteen minutes on the sole remaining issue of damages. In that case, even though the clip confirmed our liability, it protected us from any exposure. Similarly, I had a jury trial in D.C. Superior Court where the dash cam confirmed a rear end collision where the plaintiff was claiming $500K in damages. We retained an expert in the field of bio-mechanics who was able to use the G-force data from the dash cam clip, superimposed on the damage to the vehicles involved, to calculate the actual forces that would have been generated on the plaintiff’s body within his vehicle. The expert was able to demonstrate to the jury’s satisfaction that the forces were nowhere near sufficient enough to generate any anatomical change in the plaintiff’s body and could not have caused the disk herniations that were present on plaintiff’s post-accident MRIs. Without the G-force data from the dash cam clip, this wouldn’t have been possible. These are just a few of my experiences in which dash cam clips proved to be beneficial to my case even where the clips affirmatively showed that my clients were liable for the accident.

Despite what may appear as my advocacy for indiscriminate installation of dash cams in all commercial vehicles, effective risk management does not end with installing dash cams and calling it a day. Rather, once a dash cam system is in place, managing the system properly and strategically is critical to effectively utilize the system for risk management purposes. The timing and circumstances surrounding disclosure of the existence and content of dash cam clips will vary from case to case. When it comes to the “slam dunk” clips specifically, the trick, from our perspective, is to manage the timing and manner of their disclosure. As a general rule, I advise my clients not to mention, and certainly not to voluntarily share, accident clips with claimants, or their attorneys, during the claims phase. Unless the existence of dash cam footage is disclosed by the adjuster, claimants and their attorneys are not likely to spontaneously enquire about them. The primary reason that we don’t want to automatically disclose the “slam dunk” clips is that we might want to generate a credibility issue in addition to the substantive issues. By credibility issue, I mean that we can get the claimant to commit to a version of the accident, either by recorded statement, allegations in the complaint, description of the accident in written discovery responses, or (best of all) under oath at deposition, that is inconsistent with the dash cam footage. However, sometimes, the “slam dunk” clip is so clearly indisputable that we want to disclose it early on because we are confident it will persuade the claimants and their counsel to drop the claim and walk away. In those cases, many of my clients will send us the clips and have us invite opposing counsel to our office where they can review the clip; we don’t give them a copy of the clip and we don’t allow them to record it but we allow them the opportunity to review the clip and see for themselves that their case is dead in the water.

Every accident clip tells its own story and presents its own unique issues and you must exercise your best judgment on how to best manage the timing and manner of its disclosure. Ultimately, dash cam footage of an accident is always going to be discoverable during the litigation process, but it may behoove you to disclose it before then if you think you can avoid litigation altogether.

Sometimes, investigating officers may demand that you produce the dash cam footage at the accident scene or in the days following up on a serious accident investigation. Just like with a claimant in the claims phase, how to manage an officer’s demand for a dash cam clip is a judgment call to be made based on the unique facts and circumstances attendant to each accident and dash cam clip. That said, I have always taken the position that we are not obligated to produce dash cam clips to the police without a subpoena. We often elect to do so voluntarily, but I always make it clear that we are not obliged to do so. I have yet to encounter any legal authority that imposes a duty on my clients to surrender dash cam footage to the police without requiring a subpoena. If we opt to disclose it without insisting on a subpoena, I always do so subject to a non-disclosure agreement that states that they will agree to keep the footage confidential and to use it exclusively for the purposes of their investigation.

Another important consideration in terms of disclosing dash cam footage, either to police in conjunction with their investigation or plaintiff’s counsel in relation to litigation, is the format in which to produce the clip. Some formats contain more information than others. In addition to footage of the accident, the file in its native format may include additional information such as vehicle speed, direction, engine RPM, braking/accelerating, and G-force, which may not be beneficial to your case. I would also note that, in my experience, the speed indications on dash cam clips, which are GPS based, are invariably inaccurate and often inconsistent with the more reliable ECM download, by + or – 5 mph. If the request is to produce the dash cam “footage” then produce the dash cam footage and only the dash cam footage, not the additional data points. Every dash cam system I have ever encountered allows you to convert the clip from its native format into a format that can easily be viewed on Windows media player or some other traditional media viewer.

A word on spoliation of evidence. Retention, in addition to disclosure, of dash cam clips is another important consideration. If you are going to employ a dash cam system it is imperative that you set up a proper protocol as to who will have access to the web portal, who will receive and manage clips, and a retention policy that addresses clip retention and deletion. There is nothing worse than having a dash cam system but, when suit is filed three years down the line, nobody seems to be able to locate the accident clip. That is almost guaranteed to generate a spoliation instruction, likely one regarding negligent spoliation but maybe one regarding intentional. Either one is the death knell for any liability case.

The approach to management and retention should depend on whether the clip is merely a driver safety clip (the majority of clips) or a clip involving an accident or that otherwise has claim potential (the minority). With respect to the former category, I advise my clients that there is no need to retain those clips beyond the brief period required for the safety department to use the clip to take whatever appropriate driver discipline or coaching action may be required. The reason that I advise against extended retention of non-claim related, driver safety clips is that you don’t want to unnecessarily create a visual record of all the poor driving events that your driver has generated during the entire course of his employment. Most commercial transportation liability lawsuits, in addition to claims of simple negligence for the accident, involve allegations of negligent retention and negligent entrustment directly against the company. Essentially, the plaintiff argues that the company should have fired the driver based on his poor record and bad driving history prior to the subject accident. The last thing we want to do is create a permanent library of prior bad driving events for plaintiff’s counsel to play at trial in support of the negligent retention claim, like some sort of NFL highlight reel of worst plays. Once the safety clip has been used for its intended driver coaching or discipline purpose, and no litigation is anticipated at that time, there is no justification for further retention. That is not to say that plaintiffs will not attempt to cry “spoliation” in future litigation based on failure to retain these clips but, if a reasonable, purpose driven retention policy is established and enforced, those claims should not gain any traction. There is a rational cost benefit analysis associated with unlimited data retention and it’s tenuous for plaintiffs to argue spoliation because a company has failed to retain every bit of pre-accident data ever generated.

With respect to retention of clips in the latter category, the accident clips, I advise my clients to develop a safety protocol that involves clip retention for at least the period of twelve months after the expiration of the applicable statute of limitations. All accident clips should immediately be shared with the risk management/claims department and/or the appropriate insurer or claims administrator to ensure preservation and reduce the risk of spoliation.

One of the biggest debates amongst current dash cam users is whether to have two-way, i.e. inward and outward facing cameras on tractor trailers. Obviously, we need the outward facing cameras but many in the industry question the benefit of inward facing cameras as they usually capture some negative behavior on the part of the driver. I have had many accidents where the outward facing view confirmed that we were not at fault for the accident only to find the inward facing view showing our driver was texting, fatigued, or otherwise distracted at the time of the accident. A good plaintiffs’ attorney could turn what should be a “slam dunk” clip into an indictment of the company and driver’s safety practices. When it comes to buses, mobility, or other passenger vehicles this is an easy decision for me – always opt for inward facing. When it comes to tractor-trailers where there shouldn’t be any passengers, I tend to agree that inward facing is a liability more often than a benefit from a risk management perspective. My only caution is that if you elect to have outward facing views only, I would employ a system that only has an outward facing lens and do not use an inward facing lens cap (as many do). Those that go with the inward lens cap can expect to face tough questioning and argument, from plaintiffs’ counsel at deposition and/or trial, about their decision to affirmatively block the inward facing view.

As I stated at the outset of this article, the use of dash cams in the commercial transportation industry is becoming increasingly common and I suspect that trend will continue well into the future. In addition to increased use, the future of dash cams includes the concept of “predictive analytics” which is an additional safety tool that uses various algorithms to predict which of your drivers are most likely to be involved in a serious accident based on their driving behaviors. It’s kind of like Tom Cruise in the film Minority Report. This may sound great from a safety management perspective, but it does present some serious concerns for us in the context of future litigation. Imagine for a second that your dash cam vendor informs you, via the predictive analytics tool, that Billy Bob is your worst driver and that he is likely to be involved in a serious accident based on the applicable algorithms. Billy Bob, however, is a ten-year veteran driver who has a clean MVR and has never been involved in an accident. On paper, Billy Bob is one of your best drivers. The warnings of the dash cam vendor, and its fancy algorithms, notwithstanding, you absolutely do not proceed to terminate Billy Bob. One week later Billy Bob is involved in a triple fatality accident where he was at fault. Imagine now, you are the safety manager responding to questions from plaintiff’s counsel at trial in front of a jury and you must explain why you signed up for this safety management tool, which unequivocally warned you to fire Billy Bob, but you opted to overrule that warning and exercise your own (non-algorithmic) judgment. I can say that I have not actually experienced this particular scenario in my own practice, but I can certainly see it playing out in theory.

I am not employed by any particular dash cam company and I neither endorse nor oppose any one of them. In terms of their efficacy as safety management tools, I don’t have an informed opinion on the matter. In terms of their efficacy as risk management tools, I strongly endorse them. This article is intended for academic discussion only and should not be taken as a substitute for formal legal advice or counsel. Each client, accident, and claim have their own unique characteristics and specific legal counsel should be sought and provided accordingly.

For more information about this article, please contact Andrew T. Stephenson at 410.230.3638 or astephenson@fandpnet.com.

 

 

Recent “Nuclear Verdict” Highlights Importance of Motor Carrier Compliance with Safety Policies and Procedures: Joshua Patterson v. FTSI, LLC. et al.

/in /by Recent “Nuclear Verdict” Highlights Importance of Motor Carrier Compliance with Safety Policies and Procedures: Joshua Patterson v. FTSI, LLC. et al.

In September 2013, Joshua Patterson (“Patterson”) was driving his pickup truck on US Highway 259 near Ore City, TX, when a tractor trailer operated by Bill Acker (“Acker”) and owned by FTS International Manufacturing (“FTS”) rear-ended Patterson’s truck at a high rate of speed. Patterson, after denying injury, subsequently sought chiropractic treatment and ultimately had back surgery.  Patterson was unable to work due to his injuries. Post-collision drug testing revealed that Acker had marijuana and methamphetamines in his system at the time of the accident. Patterson filed suit seeking compensatory damages for personal injuries sustained as a result of the accident. Of note, Patterson also sought punitive damages.

The jury ultimately found both Acker and FTS liable and awarded $101 million dollars, $75 million of which was punitive. The verdict is the largest civil award ever in a motor vehicle accident involving a tractor-trailer, reflecting the magnitude of risk involved in the trucking and transportation industry.

The trial had less to do with Acker’s culpability in causing the accident than it did with FTS’s procedural failures in the hiring and training of its truck drivers. Specifically, an FTS policy dictated that if a prospective driver had three or more moving violations in the 36 months prior to the date and time of hire, the driver was ineligible for employment. Over the course of the trial it was revealed that Acker had been convicted of three moving violations within the 36 months prior to his hire date, which would have disqualified him from employment. Further, it was determined that FTS fabricated some of Acker’s prior drug test results and credited Acker with training he never completed. These facts, in conjunction with the presence of controlled substances in Acker’s system led to the jury award, which is the largest civil award ever in a motor vehicle accident involving a tractor-trailer.

This verdict is a reminder of the potential for “nuclear verdicts” in liability cases involving the trucking and transportation industry.   The case serves as a reminder that policies and procedures alone are not sufficient to reduce liability exposure. Companies must be proactive and consistent in the enforcement of such policies and procedures. Companies providing services in the transportation industry should evaluate their internal policies relating to hiring, training, and supervising of drivers and other employees, as well as assess the consistency of implementation and enforcement of said policies.

For more information about this article, please contact Patrick F. Toohey at 410.230.1085 or ptoohey@fandpnet.com.

Maryland’s New Enhanced Underinsured Law Goes into Effect

/in /by Maryland’s New Enhanced Underinsured Law Goes into Effect

During Maryland’s 2017 legislative session, a significant amendment to the Insurance Article and Maryland’s uninsured (“UM”) and underinsured (“UIM”) law was enacted, which came into force in October 2017 and is applicable to private passenger automobile polices sold on or after July 1, 2018. While this is an important change in the law, it is worth noting that Enhanced UIM (“EUIM”) is not mandatory and simply must be offered to an insured motorist buying a new policy, who has the option to pay for EUIM coverage. Existing Maryland UM and UIM laws remain in full force and effect where EUIM is ultimately declined. The new law only applies to new policies “at the time of purchase” and so EUIM is not required to be offered on a policy renewal. EUIM also only applies to insurance of private passenger motor vehicles, thus does need to be offered when a new commercial policy is purchased by an insured.

Under the prior law, the UM/UIM insurer gets a credit for the liability limits paid by the insurer of the underlying tortfeasor. So, for example, if the underlying tortfeasor has Maryland’s minimum per person liability limit of $30,000, and the injured insured has UIM limits of $100,000, the UIM insurer’s maximum exposure would be $70,000 under existing traditional UIM law. The new law effectively allows for “stacking” of UIM coverage over and above the liability limits of an underlying tortfeasor. For example, the EUIM insurer could be liable for the full $100,000 EUIM limits and the injured insured could recover $130,000 total from available insurance where, under the old existing law, the maximum recovery would be $100,000.

The enhancement was effected by defining “underinsured motor vehicle” to mean “a motor vehicle that has liability coverage in an amount less than, more than, or equal to the uninsured motorist coverage provided under the insured party’s motor vehicle liability insurance policy.” So, flipping our example above, if the underlying tortfeasor had a $100,000 liability limit and the injured insured had a minimum limits policy with $30,000 EUIM limits, she or he could still potentially recover $130,000. Under the prior law, where the underlying tortfeasor’s liability limit was equal to or more than the UIM limit of the injured insured there was, by definition, no UIM and, therefore, no viable claim. Even though the new law is based on a new definition of “underinsured,” a true uninsured situation is also covered, because non-existent insurance by the underlying tortfeasor is technically “liability coverage in amount less than” any EUIM limit

Some significant differences to note between the old existing law and the new law, include:

  • An insured individual cannot completely waive UM/UIM,but can elect to reduce limits to be no less than minimum Maryland liability limits; EUIM cannot be waived or reduced in any way and MUST be equal to the liability limits of the policy.
  • EUIM is not required on commercial auto policies, the law only applying to private passenger motor vehicle policies, even if a commercial policy covers private passenger type vehicles.
  • Traditional UM/UIM gets a credit for workers’ compensation paid and not reimbursed. EUIM has no such similar provision.