Caging the Reptile: McNamara v. Navar

/in /by Caging the Reptile: McNamara v. Navar

Plaintiffs use of the “Reptile Theory” in trucking cases has undoubtedly led to many so-called nuclear verdicts but, and arguably worse, it has also provided a basis to leverage inflated settlements in countless more cases. Sure, defendants can attempt to counter the Reptile Theory with arguments regarding admissibility backed by promising motions in limine, for which solid legal precedent exists, but the bad chemistry following a battering reptile deposition of a driver or safety manager is often indelible. Many mediations are consumed by plaintiffs touting deposition responses to Reptile Theory questions advancing the lofty higher calling of public safety. Plaintiffs pursuing this theory relentlessly attempt to point to and highlight the disparity between commitments to safety and the apparent lack of implementation through the use of mismanaged hypotheticals. The pursuit of tort justice is hijacked by notions of protecting the community at large from danger by holding defendants accountable with punishing settlements and threats of nuclear verdicts.

Courts around the country are certainly wising up to the Reptile Theory and seeing it as the “Golden Rule” end run that it is. There is now ample authority to support motions in limine that prevent plaintiffs from encouraging jurors to view compensatory damages as punitive in nature. Courts are weary of plaintiffs turning civil trials into a safety arena where broader societal issues are to be remedied[1]. But, until recently, defendants have been left to fend for themselves in the face of plaintiffs’ Reptile Theory tactics throughout discovery and at mediation. A recent opinion from the United States District Court for the Northern District of Indiana in The Estate of Richard McNamara, III v. Jose Navar, 2020 WL 2214569, offers some hope to defendants seeking to cage the reptile at the outset of litigation, thereby avoiding, or at least limiting, its impact on the discovery process and settlements.

McNamara v. Navar was a wrongful death action premised on the tort of negligence arising out of a tractor-trailer accident. Defendants filed a Motion for Protective Order in advance of the deposition of the defendant driver seeking to prohibit Plaintiff from asking reptile theory questions, including hypotheticals, regarding knowledge and the purpose of various safety rules for tractor-trailer operation on the basis that such questioning would create confusion around the applicable duty of care. Against Plaintiff’s opposition, the Court granted Defendant’s Motion for Protective Order.

The McNamara Opinion rested on Rule 26(c)(1) of the Federal Rules of Civil Procedure, which provides, in pertinent part, that “[a] party or person from whom discovery is sought may move for a protective order” and that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense….” The Court recognized that reptile-trained attorneys look for ways to attempt to communicate to juries that “safety” is “the purpose of the civil justice system,” and that “fair compensation can diminish . . . danger within the community.” Further, the Court recognized that the defining purpose behind reptile tactics is to “give jurors [a] personal reason to want to see causation and dollar amount come out justly, because a defense verdict will further imperil them. Only a verdict your way can make them safer.” The Court ultimately reasoned:

Navar has not been designated as an expert by the defense. His testimony, as a lay witness, is limited to one that is rationally based on his perception, helpful to clearly understanding his testimony or to determining a fact in issue, and not based on scientific, technical, or other specialized knowledge. Federal Rule of Evidence 701. Accordingly, asking Navar about alleged “safety rules,” including generalized hypotheticals, would fall outside the scope of permissible discovery. The purpose of a deposition is to discover the facts. Hypothetical questions are designed to obtain opinions and are beyond the scope of the deposition of a lay witness.

In reaching its decision, the McNamara Court expressly rejected Plaintiff’s argument that the anticipated line of questioning related to safety rules was likely to produce discoverable information as conclusory and unsupported.

Other courts had previously declined to go as far as the McNamara Court. In Beach v. Costco Wholesale Corp., the United States District Court for the Western District of Virginia, 2019 WL 1495296, in response to a similar motion for protective order, reasoned that the discovery phase of litigation is not the proper stage for rulings on disputes over what material may ultimately be presented to a jury, reasoning:

While I acknowledge Costco’s concerns that the overarching “Reptile Theory” strategy can be employed in the discovery process, I decline to issue a ruling preemptively barring the use of a strategy that Beach’s counsel has not expressed any intent to employ, and I make no finding as to the propriety of such a strategy…even if a ruling on “Reptile Theory” strategy were appropriate at this stage, I am inclined to agree with Beach that “it is impossible to conceive of what an order granting Costco’s motion would proscribe.

Perhaps the McNamara decision will portend to a broader movement to eliminate “Reptile Theory” tactics at important depositions. At a minimum, it will serve to pave the way for defendants to create an early record of the objectionable conduct and bring the court’s attention to the Reptile Theory issues well in advance of trial.

[1] See Woulard v. Greenwood Motor Lines, Inc., 2019 U.S. Dist. LEXIS 131701 *6-7 (S.D. Miss., Feb. 4, 2019) (holding that any mention of non-specific “safety rules” at trial would be irrelevant to the issues before the court and “even if marginally relevant, the probative value of such evidence or argument would be substantially outweighed by the dangers of unfair prejudice, confusing the issues, misleading the jury, and wasting time.”); Pracht v. Saga Freight Logistics, LLC, 2015 U.S. Dist. LEXIS 149775, 2015 WL 6622877, at *4 (W.D.N.C., Oct. 30, 2015) (granting defendant’s motion to preclude “reptile” arguments at trial); J.B. v. Mo. Baptist Hosp. of Sullivan, 2018 U.S. Dist. LEXIS 19689 2018 WL 746302, at *6-7 (E.D. Mo., Feb. 7, 2018) (sustaining defendant’s motion to preclude plaintiff’s use of “reptile” theory argument); Brooks v. Caterpillar Global Mining Am., 2017 U.S. Dist. LEXIS 125095, 2017 WL 3401476, at 24-25 (W.D. Ky., Aug. 8, 2017) (granting motion to preclude “reptile” theory arguments and noting its similarity to “send the message” or conscience of the community arguments).

Written by principal Andrew Stephenson.

Highway Robbery: Excessive Invoices for Nonconsensual Tows and What You Can Do About Them

/in /by Highway Robbery: Excessive Invoices for Nonconsensual Tows and What You Can Do About Them

Following a commercial motor vehicle accident, motor carriers are often held responsible for the cleanup, towing, and storage costs. Often, the towing and recovery efforts are “nonconsensual tows”, i.e. the tow is performed at the direction of a law enforcement agency without the consent or authorization of the owner or operator of the vehicle.

The cost of nonconsensual towing and recovery services has recently skyrocketed, largely as a result of a shift in billing practices within the towing industry. The purpose of this article is to provide you with (1) a brief background of the issues motor carriers face with respect to nonconsensual tows leading to excessive bills; (2) some best practices to avoid excessive towing and recovery bills; and (3) information as to how to challenge excessive tow bills and other illegal practices.

Background of the Issues

Maryland law enforcement agencies at both the state and local levels maintain lists of towing companies approved by that law enforcement agency to provide nonconsensual tows within the agency’s jurisdiction. While some local law enforcement agencies in Maryland establish permissible rates for nonconsensual tows, the majority of jurisdictions, including the Maryland State Police (“MSP”), do not have any rate regulation, leaving the towing companies free to set their own rates for non-consensual tows.

Historically, charges for nonconsensual towing have been by the hour based on the type of equipment and the number of individuals needed to perform the services. Recently, in jurisdictions that do not have price regulation, towing companies have developed new formulas where they charge for their services on a per-pound basis based on the weight of the subject vehicle and cargo. The shift to per pound billing has led to outrageous and excessive towing bills for motor carriers.

At Franklin & Prokopik we have seen many examples of this abusive practice with our motor carrier clients. In one example, we saw two separate invoices from the same towing company for nonconsensual towing in which the services provided by the towing company were, for all intents and purposes, identical. The first invoice, dated May 18, 2019, was for a total of $24,559.00 and is based on billing at an hourly rate for the equipment used. The second invoice, dated August 28, 2020, from the same company and for identical services, was for a total of $144,975.00 and is based on a per pound billing rate for the weight of the vehicle and cargo. By switching from hourly to per-pound billing, this particular towing company has managed to increase the cost for its services by almost six times the amount within the period of a little more than a year.

Compounding the emerging issue of excessive invoices, many of these towing companies engage in a pattern of seizing the vehicles and cargo, subject to nonconsensual tows, until the motor carrier pays the exorbitant bills. This tactic is designed to force motor carriers to quickly and quietly pay the excessive invoices to secure a return of their vehicle and cargo. In essence, the towing companies leverage the vehicle owners’ need to obtain a quick return of the vehicle and cargo by holding it hostage unless and until the bills are paid. In many instances, the towing companies are also continuing to charge daily storage fees as additional leverage to secure payment. In most instances, however, the towing companies do not have a legal basis to assert a lien on vehicles or cargo subject to nonconsensual tows. In fact, holding a commercial motor vehicle hostage, unless and until the invoice is paid, violates both Maryland and federal law under most circumstances.

Even in the few Maryland jurisdictions that have regulations governing rates for nonconsensual tows, motor carriers can still receive excessive bills. Usually, a law enforcement agency responding to an accident involving a commercial vehicle does not know what type of equipment is needed for the cleanup, which leads to the towing company responding to the scene with improper or unnecessary equipment or excessive personnel. Responding to the scene with excessive personnel and/or unnecessary equipment leads to an increase in cost even in the absence of per-pound billing, as the charges are typically based on an hourly rate for each particular piece of equipment that responds to the scene and the number of personnel required to respond.

The billing and business practices of companies performing nonconsensual tows are not unique to Maryland. It is a problem facing the trucking industry nationwide. While the issue should be addressed on a large scale, there are actions that motor carriers can take when traveling within or through Maryland.

Best Practices to Avoid Excessive Towing and Recovery Bills

In situations such as these, it is always better to be proactive than reactive. Having a predetermined plan for when one of your drivers is involved in a motor vehicle accident is the best way to avoid getting hit with an excessive towing and recovery bill.

Although law enforcement agencies have a list of “approved” towing companies, they will usually allow a motor carrier to use its own towing company if the company can make it to the scene quickly. As such, motor carriers should select a reputable and trusted towing company that it intends to use to perform towing and recovery services in the event of an accident. Upon notification of an accident, the motor carrier should immediately contact its selected towing company to (1) request that the towing company responds to the scene to perform the towing and recovery services, (2) determine the time it will take for the towing company to arrive at the scene, and (3) have the towing company contact the particular law enforcement agency involved to advise that the company is on the way at the request of the vehicle owner and provide the estimated time of arrival. The motor carrier should also instruct its driver to inform the responding police officers that a towing company has been called and is already on the way. This will also allow you to communicate with the towing company the type of vehicle and cargo involved and the nature of the accident so that the towing company can respond to the scene with the necessary equipment and personnel.

Assuming that your selected towing company can arrive at the scene with the proper equipment within the same time period as the law enforcement agency’s approved towing company, the law enforcement agency will typically allow your selected company to perform the services, which will enable you to know the rates for the services in advance. It is important to note though that, while no authority allows a towing company performing a nonconsensual tow to assert a lien and hold the vehicle pending payment of its invoices, a towing company performing those services at the request of a motor carrier does have a statutory right to assert a lien on the vehicle pending payment of its invoices. Therefore it is incumbent upon motor carriers to obtain information related to the towing company’s rates and billing practices before requesting that the company undertake any towing and recovery services.

Best Practices When Faced with an Excessive Bill for Nonconsensual Tows

As stated above, although some towing companies are attempting to assert liens over vehicles and/or cargo subject to nonconsensual tows, there is no authority by which the towing company can continue to hold a vehicle pending payment of its invoices. To do so, in most instances, violates both Maryland and federal law. When faced with an excessive towing and recovery bill and the towing company is still in possession of the vehicle and/or cargo, a motor carrier should immediately demand the return of the vehicle and/or cargo. This is a critical first step not only because the towing company’s refusal to return the property after a demand for its return is usually a clear violation of applicable law, but also because a towing company cannot continue to assess storage fees after a demand for the return of the property. If a towing company refuses to return the vehicle and/or cargo, a motor carrier should consult with an attorney regarding immediate actions that can be taken to secure the return of the property. It may be necessary to initiate legal proceedings against the towing company to secure the return of the property or to challenge the towing company’s invoices. We have seen recently, however, that many towing companies will fold quickly once our office becomes involved and will immediately release the property and significantly lower their invoices to avoid legal proceedings. You should consult with an attorney familiar with these issues to determine your particular situation’s best course of action.

In addition, it does not appear that the law enforcement agencies are aware of the scope of the issues motor carriers are facing with respect to companies providing nonconsensual towing and recovery services. It is important for us to make law enforcement agencies aware of the issues and their impact on the transportation industry. Many law enforcement agencies have procedures for communicating and investigating complaints against their approved towing companies. Law enforcement agencies also have disciplinary procedures, which can lead to the removal of a towing company from the agency’s list of approved towing companies, should the agency determine that the towing company is acting improperly. For example, the MSP has a process in place in which a motor carrier can fill out a complaint form notifying the MSP of issues with a towing company on the MSP’s towing list, which will result in an investigation by the MSP and could lead to that company’s removal from the MSP list. If you have experienced issues with a towing company performing nonconsensual tows at the direction of the MSP, you should fill out an MSP complaint form so that MSP can conduct an investigation and appropriate action can be taken. If you have experienced similar issues with a towing company performing non-consensual tows, you should contact that particular jurisdiction to determine its complaint process and follow the procedures specific to that jurisdiction.

If you have had any recent experiences related to excessive towing and recovery invoices and/or a towing company holding vehicles or cargo that were the subject of nonconsensual tows until payment of its invoices was made, or have had any recent experiences involving other similar issues related to nonconsensual tows and you are willing to provide a copy of the invoice(s) or discuss the issues in more detail, please reach out to Renee Bowen, Esq. (410-230-3943 or rbowen@fandpnet.com). Please also reach out to Renee Bowen, Esq. if you have any questions regarding this article or if you need assistance with issues surrounding non-consensual tows.

Digital Freight Brokerages May Impact Liability for Shippers and Carriers

/in /by Digital Freight Brokerages May Impact Liability for Shippers and Carriers

The transportation industry continues to evolve.  With the advent of new technology such as autonomous vehicles, the industry faces new questions pertaining to appropriate regulations, and how these advances may impact the liability of the parties to a transaction.  One of the more recent technological developments is the development and subsequent use of digital freight brokerages such as Uber Freight and Convoy, among others.  These digital freight brokers attempt to remove the human middleman, i.e. the broker, and instead utilize a web-based technology platform to match shippers with a motor carrier that can fulfill their needs on a one-time basis. The shipper provides details on the transaction, and the web-based technology typically utilizes an algorithm or other software to efficiently match the freight and a carrier.  Where the broker normally invests heavily in people, the digital freight brokerage invests in technology.

While digital freight brokerages potentially fill a need in the marketplace, the concept does not come without concerns.  There are specific regulations that both brokers and motor carriers must adhere to, and many transactions are not simple “A to B” trips. When issues arise, it requires the interplay and cooperation between all parties to a transaction to reach a resolution.  Over and above these logistical concerns, the legal ramifications arising from this development are yet to be seen.  As the plaintiff’s bar continues to craft theories of broker liability, the nature of the transaction presents questions.  For example, if the digital freight broker’s algorithm matches a shipper with a carrier that is not able to meet the needs of the shipper- to what extent is the digital freight brokerage liable? Moreover, what if through no fault of the shipper or the digital freight broker, the algorithm or related software malfunctions and fails to find a potential carrier for time-sensitive cargo?  In the same vein, what if, through no fault of the motor carrier, the digital freight brokerage software fails to communicate (or otherwise keep record of) instructions related to a shipment that impact the manner in which the motor carrier must transport the cargo which subsequently causes damage?

These scenarios have yet to be addressed by courts throughout the country and will have an impact on the development of the digital freight brokerage industry.  It is unclear what (if any) regulations may be passed that are specifically applicable to digital freight brokerages as the technology develops and that sector of the industry grows.  Given the uncertainty related to this technology and growing niche within the transportation industry, the parties to a transaction should do their best to account for these potential scenarios with specificity when negotiating agreements, as well as plan ahead to address these potential scenarios.  The transportation industry should also watch closely to see what, if any, regulations are passed specifically to digital freight brokerages to ensure compliance with any such regulations.

Written by associate James Hetzel.

Electronic Logging Devices: Information and Tips on FMCSA Mandate Now in Effect

/in /by Electronic Logging Devices: Information and Tips on FMCSA Mandate Now in Effect

As of December 16, 2019, the Federal Motor Carrier Safety Administration’s ELD mandate has gone into full effect.  Inspectors have now started to fully enforce the ELD mandate and it is imperative that motor carriers abide by the requirements of this mandate.

Who Must Use ELDs?

Generally speaking, commercial drivers who used to maintain paper logbooks are required to transition to ELDs under the new mandate. However, there are some exceptions to this regulation. The following scenarios do not require the mandatory implementation of ELDs:

  • Drivers that focus primarily on short-haul operations that use the logbook timecard exception (i.e., 100 air-miles for CDL drivers) can continue to keep records of their daily log on paper;
  • Drivers of vehicles that have engines manufactured prior to 2000 as a result of electronic connectivity capability of the engine;
  • Drivers who operate in a driveaway-towaway service in which the vehicle they are driving is a product or commodity being delivered; and
  • Most recently, drivers who have rented a truck for eight days or less.

Of the exceptions above, the short-haul exemption and the 100 air-mile exemption for CDL drivers can be the hardest to understand. Drivers who meet the short-haul exemptions outlined in section 395.1 (e) of the Federal Motor Carrier Safety Regulations are not required to use ELDs under the recent mandate. FMCSA recognizes that these drivers occasionally do not meet the conditions of these exemptions. In those instances, drivers are required to keep a paper log. However, drivers who use a paper log more than eight days in any rolling 30-day period must start using ELDs when they are not operating under the exception.

As for the 100 air-mile exemption for CDL drivers, they are exempt from the ELDs mandate if they meet all of the following criteria:

  • Operate within a 100 air-mile radius;
  • Go off duty within 12 hours;
  • Reports back to the same work location every day; and
  • Have at least 10 consecutive hours off before starting their next on-duty period.

If even one of the above criteria is not met, then the driver will not benefit from the 100 air-mile exemption on that day. It is worth noting, however, that this exemption is optional.

While drivers operating under an exception are not required to maintain detailed logs of their duty status, they are required to keep track of their on-duty time and therefore must maintain an accurate record of:

  • The time they go on duty;
  • The total number of hours they are on duty; and
  • The time they go off duty.

Data Collection and Sharing:

For an ELD to be compliant with the FMCSA, the device must be certified by the vendor and listed on the agency’s online registry. There are some 150 different ELDs that have been registered on the FMCSA website. There are two primary options for data transfer using the ELDs; a telematics option using web-based services or email, or a local option using Bluetooth or USB.

ELDs also must be able to handle one of the two methods for backing up data transfer. You can either choose an ELD with a graphical display that an inspector can view without entering the vehicle, or having an ELD that can print the driver’s log data.

In the event that an ELD malfunctions, the damaged unit must be replaced within eight days of the problem being discovered. During those eight days, drivers are permitted to maintain paper logs until the ELD returns to standard operating procedures.

ELD Enforcement:

It is imperative that companies and their drivers understand the requirements of the ELD mandate as vehicles can be placed out of service for as long as 10 hours for an ELD violation.

Drivers must maintain a weeks’ worth of ELD data for law enforcement review. That includes metadata such as the driver’s name, time, and status. Documentation can also include bills of lading, manifests, dispatch records, expense receipts, and payroll documents. This documentation is essential if a driver needs to support his hours of service.

All jurisdictions are required to document a driver or carrier’s inspection report noting that they are in violation of the ELD regulations, which will lead to subsequent inquiries into compliance on all future stops and inspections.

ELD Unit Malfunction:

If a driver’s ELD malfunctions, a driver must do the following to comply with the new mandate.

  1. Driver must note the malfunction or error of the ELD and provide written notice to the motor carrier within 24 hours of the ELD malfunction;
  2. Driver must reconstruct the record of duty status (RODS) for the current 24-hour period and the previous seven consecutive days, and record the RODS on graph grid paper logs, or electronic software that complies with 49 CFR 395.8, unless the driver already has the records or retrieves them from the ELD; and
  3. Driver must continue to prepare RODS until the ELD is serviced and back in compliance. However, the paper log cannot continue for more than eight days after the malfunction.  A driver that continues to record HOS on a paper log or electronic logging software beyond the eight days may be placed out of service.

Written by associate Patrick Wachter.

US DOT Debuts the FMCSA Drug and Alcohol Clearinghouse

/in /by US DOT Debuts the FMCSA Drug and Alcohol Clearinghouse

As of January 6, 2020, the U.S. Department of Transportation (DOT) activated the Federal Motor Carrier Safety Administration (FMCSA) Drug and Alcohol Clearinghouse (Clearinghouse) through publishing a new rule codified at 49 U.S.C. 31306(a) with an eye toward the reduction of commercial motor vehicle crashes and fatalities. This web-based system (https://clearinghouse.fmcsa.dot.gov), will provide employers with information to identify drivers who have received DOT drug and alcohol violations. The Clearinghouse will also ensure that all DOT regulations are met before a driver is permitted to operate a commercial motor vehicle.

To access the Clearinghouse, employers will need to first register for an account. Accounts can be created by using the following link (https://clearinghouse.fmcsa.dot.gov/Register). The initial registration will be valid for five years unless terminated by the FMCSA. Annual reporting requirements became effective on January 6, 2020.

Once registered, employers can use the system to 1) verify a driver’s previous drug and alcohol violations; 2) update the status of new violations and 3) perform annual reviews of all employed drivers. In addition to registration with the Clearinghouse, employers, State Driver’s License Agencies, and the National Transportation Safety Board will be required to use the Clearinghouse to notify other agencies of a driver’s compliance with DOT requirements. Moreover, the National Transportation Safety Board and other enforcement personnel will be able to view a driver’s status remotely and will be required to report violations accordingly.

For employers, reporting is required if 1) the driver returns an alcohol test with a concentration of 0.04 or higher; 2) a driver refuses to take a alcohol or drug test; 3) an employer has actual knowledge of alcohol use within four hours of starting duty or prior to post-accident testing; 4) a negative return to duty test, and 5) completion of follow-up testing. In addition, employers are required to run a query through the Clearinghouse before hiring a prospective driver. Moreover, employers are required to run annual testing of each employed driver.

The Clearinghouse will collect the following information in the event of a drug and/or alcohol-related test: 1) the reason for the test; 2) the driver’s name date of birth and CDL number and state of issuance; 3) the employer’s name address in US DOT number; 4) the date of the test; 5) the date of the verified result; 6) the type of test; 7) reporting date; and 8) the result of the test. All information collected will be added to the database.

In sum, the Clearinghouse should expedite the verification and reporting requirements for employers with respect to prospective drivers and those currently employed. The Clearinghouse should also facilitate more accurate information gathering and verification. It is important to note that the creation of the Clearinghouse does not alter any other reporting requirements required by DOT or the FMSCA, and that all information contained in the database is subject to DOT retention procedures and must comply with FMSCA guidelines.

For more information about this article, please contact Adam Shareef at 410.230.3056 or ashareef@fandpnet.com.

F&P on the Road

/in /by F&P on the Road

Bert Randall presented “High Times at Work – Medical Marijuana and the Workplace” at the Carroll County SHRM Conference in Westminster, MD on November 1, 2019.

Steve Marshall attended the DRI Professional Liability Seminar in New York, NY on December 4, 2019

Andrew Stephenson and Steve Marshall are presenting “How to Crack Plaintiff’s Medical Mills” on February 21 in London, England.

Steve Marshall will attend the Complex Torts/Products Mobile in Los Angeles, CA on March 19.

Andrew Stephenson and Renee Bowen will be presenting at the Trucking Claims Boot Camps in Dallas, TX, Phoenix, AZ, Denver, CO, Omaha, NE, Philadephia, PA, Chicago, IL and Atlanta, GA. Steve Marshall will be presenting in Orlando, FL. Boot Camps are held February 11 – May 15.

FMC Investigation into Demurrage and Detention Charges

/in /by FMC Investigation into Demurrage and Detention Charges

An increase in frequency of detention and demurrage charges assessed against port users across the country recently resulted in a Federal Maritime Commission (“FMC”) investigation into the detention and demurrage practices at U.S. ports.  The spike in detention and demurrage charges appears to be the result of factors outside of the control of port users, including increased port congestion and internal port inefficiencies. The increased congestion at ports has led to increased commercial driver turn times, decreased productivity and efficiency, an inability to retrieve an adequate number of containers, and has compounded the already pervasive issue of the commercial driver shortage for drayage motor carriers due to mounting driver frustration.

In September 2018, the FMC commissioner issued an interim report and Notice of Proposed Rule Making for “just and reasonable regulations and practices relating to or connected with receiving, handling, storing, and delivery of property.” The focus of the FMC investigation was to closely examine port practices that are leading to substantial detention and demurrage charges to port users and to provide solutions to move cargo more efficiently through the ports. The interim report revealed that there are differing, often conflicting, standards from port to port with respect to many demurrage and detention practices and recognized the need for uniform standards and transparency.

In December 2018, the FMC commissioner issued a final report on the investigation. The final report concluded that there was a need for greater transparency and consistency in notice, billing practices, dispute resolution and terminology in the ports’ detention and demurrage practices. The final report therefore recommended that the FMC create “Innovation Teams” to establish ways to standardize port practices. The FMC is in the process of reviewing the recommendations of the final report and will either accept or reject the recommendations.

While the standardization of demurrage and detention practices would be a step in the right direction, the underlying port inefficiencies must be addressed in order to combat the growing concerns in the intermodal industry.

For more information about this article, please contact Renee Bowen at 410.230.3943 or rbowen@fandpnet.com.

 

 

Distracted Driving and Nuclear Verdicts

/in /by Distracted Driving and Nuclear Verdicts

The trucking industry has experienced an increase in nuclear jury verdicts since January 2017.  In fact, in the last year, we have seen the two largest jury verdicts ever awarded in the trucking industry.  Large awards are typically attributable to a jury’s desire to send a message or punish carriers and drivers for specific acts.  In other words, in trials that result in massive civil judgments, awards for punitive damages, if sought, far exceed awards for compensatory damages.  As it turns out, the reason for this trend may be rather simple; with an increase in commercial vehicle accidents involving a distracted driving component, the transportation industry has seen an increase in nuclear verdicts.

There are three classifications of distracted driving: visual, physical, and cognitive.  Visual distractions include mobile devices and texting, GPS devices or maps, and even scenic and external distractions.  Mobile devices and texting are also types of physical distractions, based on the requirement that drivers must take their hands off of the wheel to operate them.  Other physical distractions include smoking and reaching for something in a vehicle.  Conversely, cognitive distractions take driver’s minds away from the road.  Loud music, conversation, and stress or fatigue are examples of cognitive distractions.  Driving under the influence of alcohol or drugs combines all three classifications of distracted driving.

In April 2018, a Valparaiso, Indiana jury awarded a motorist $16.5 million for injuries sustained when a tractor-trailer rear-ended a passenger vehicle while it was stopped at a red light in the case of Binkowski v. Grand Island Express. At trial, the defense conceded the truck’s operator was solely responsible for the accident.  In fact, it was determined that the truck driver was text messaging on his cellular phone, which, the driver testified, took his eyes and attention off the road.  Despite testimony from the plaintiff’s employer that the plaintiff’s job performance, which included the operation of a forklift, had not been impacted by the accident, the jury jumped at the opportunity to punish the trucking company.  Whether the trucking company failed to institute preventative policies or adequately train its drivers, its perceived recklessness and inattention struck a chord with the jury – actual, compensable injuries notwithstanding.  Of the ultimate award in this case, $7 million was awarded in punitive damages.

In July 2018, a jury in Upshur County, Texas awarded $101 million to a man who was injured in a rear-end accident by a distracted driver operating a tractor-trailer.  In Patterson v. FTSI, LLC. et al., the plaintiff sustained only soft-tissue injuries and eventually had back surgery, but the ultimate award was not based on the severity of the plaintiff’s injuries.  Rather, $75 million of the verdict was in punitive damages.  Over the course of the trial, it was discovered that the tractor-trailer driver was under the influence of marijuana and methamphetamine at the time of the accident.  Though the operator’s actions themselves were reprehensible, the jury took exception to the actions, or inaction, of the operator’s employer, also a defendant in the case and a large hydraulic provider in the fracking industry.  The operator’s employer was found to have fabricated the driver’s former drug test results and credited him for training he never completed.  The employer had internal policies which, if enforced, would have removed the truck’s operator from the road prior to the accident.  It seems this one procedural miscue drove the jury’s deliberation, but the underlying cause of the accident was distracted driving.

In November 2018, a second jury in Upshur County, Texas awarded $260 million to the family of a deceased motorist who was killed after colliding with the side of a tractor-trailer that was blocking all four lanes of a highway in the case of McPherson v. Jefferson Trucking.  Much like the two cases addressed above, there were aggravating factors that contributed to the jury’s award.  The tractor-trailer driver had been operating his vehicle for approximately 17 hours at the time of the accident, which violated the hours of service regulations.  Therefore, fatigue was a likely factor in the accident.  In addition, the decedent’s family was successful in showing that the driver had a history of reckless driving, likely leading to an increase in the award.

Nuclear verdicts are trending up.  As noted, there seems to be a common thread between them.  That is, there exists some act leading to distracted driving, whether visual, physical, or cognitive, and an element of preventability and accountability on behalf of the carriers and trucking companies.  There is no dispute that distracted driving significantly increases the likelihood of catastrophic accidents. The recent nuclear verdicts in cases involving commercial vehicle accidents with a distracted driving component, make clear that juries will hold not just the driver accountable, but the motor carrier accountable as well for the safety of the public on the roadways.

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

Traveling Employees and the Going and Coming Rule

/in /by Traveling Employees and the Going and Coming Rule

In Delaware, an injured worker is entitled to workers’ compensation benefits for an injury arising out of and in the course of employment.  The Industrial Accident Board and appellate courts interpreted this language as creating a “going and coming” rule, which prohibits compensation for injuries sustained while traveling to and from work.  The rationale behind the rule is that an employee faces the same hazards as the general public during his or her daily commute.  Application of the rule appears straight forward, however, several exceptions have been created.

The first is the dual-purpose exception.  An employee’s injury may occur while serving both a private and business interest.  The dual-purpose exception looks to whether it is the private or business interest that compels the need for travel.  The second exception is the special errand exception. This exception involves travel with the added element of “special inconvenience, hazard or urgency.”  The third exception is the compensation exception.  This exception states that if the employee is paid for travel, the injury occurred while traveling is compensable.  The fourth is the premises exception.  This exception states that once the employee reaches the employer’s premises, his or her routine travel has ended.  The final exception is the traveling employee exception.  Somewhat related to the compensation exception, the traveling employee exception states that an employee who does not have a fixed place of employment or only a semi-fixed place of employment may not be subject to the going and coming rule.

The Supreme Court of the state of Delaware recently provided a two-step process for how the board should handle the traveling employee and the going and coming rule cases in Spellman v. Christiana Care Health Services.  First, the board must review the employment contract to determine if the contractual terms resolve the dispute of whether the injury occurred in the course and scope of employment.  If the contract is ambiguous or does not answer the question, the board will then consider the applicability of the going and coming rule.

Employers should be mindful of the manner in which employment contracts are drafted to address the “going and coming” rule, particularly where the employee will be subject to different types of travel.  Employers would be best served in specifying how the parties view specific types of travel, i.e., whether that travel would arise out of and take place in the course of employment to remove any potential ambiguity and control risk.

For more information about this article, please contact Robert Hunt at 302.594.9780 or rhunt@fandpnet.com.

 

F&P on the Road

/in /by F&P on the Road

Steve Marshall attended the DRI Products Liability Seminar in Austin, TX from February 5 – February 8.

Lynn Fitzpatrick and Jennifer Helsel attended the Virginia Workers’ Compensation Commission Inn or Court Annual Meeting in Charlottesville, VA from March 12 – March 13.

Lynn Fitzpatrick was inducted into the College of Workers’ Compensation Lawyers at the ABA 2019 Workers’ Compensation Midwinter Seminar and Conference in Coral Gables, FL from March 14 – March 16.

Skip Crawford, Renee Bowen, and Andrew Stephenson attended the ABA Transportation Megaconference in New Orleans from March 20-22.  Andrew presented The Top Ten List:
Recent legal and regulatory developments affecting truck litigation and operation.

Bert Randall will be presenting at Captive Resources, CGI Captive in St. Louis, MO on April 9 and in Nashville on April 11.

Sarah Lemmert will be presenting at Captive Resources, NCI Captive in Salt Lake City, UT on April 11.

Tamara Goorevitz will be presenting “Lawyers: A necessary evil in the supply chain or a blessing!?” at the TIA Capital Ideas Conference and Exhibition in Orlando, FL from April 10-13.

Steve Marshall will attend the Magna Legal Services Seminar in Las Vegas, NV on April 20 – April 22.

Andrew Stephenson and Renee Bowen will be presenting at the Trucking Claims Boot Camps in Dallas, TX, Denver, CO, Chicago, IL, Atlanta, GA, Orlando, FL,  Morrisville, NJ, and Steve Marshall will be presenting in London, England. Boot Camps are held from April 3 – July 1.