A Window into Potential Squeegee Liability

/in /by A Window into Potential Squeegee Liability

“Squeegee kids” have existed for decades. While some defend their conduct by noting that these kids are working to provide for their families and that washing windows is better than selling drugs, there has been a recent increase in heated interactions between drivers and squeegee kids.  With this increase, it is important to examine the realm of related civil liability.

During a recent incident between squeegee kids and a Baltimore City driver, a firearm inside the driver’s vehicle discharged.  Another citizen alleges he was punched by a squeegee kid while stopped at an intersection near downtown.  More often, the complaints are tamer, concerning property damage to vehicles by squeegee kids.  City officials claim to be working for a resolution though most are simply sitting by, hoping that the cold weather will put a freeze on the squeegee problem.

The Baltimore City Code expressly prohibits the use of squeegees for panhandling on city streets. Specifically, Article 19, Section 47-4(4) prohibits soliciting “from any operator or occupant of a motor vehicle that is in traffic on a public street, whether in exchange for cleaning the vehicle’s windows or otherwise.”    The Baltimore City Code further prohibits “aggressive soliciting,” which includes “(4) intentionally blocking or interfering with the safe passage of a person or a vehicle by any means, including unreasonably causing a person to take evasive action to avoid physical contact; (5) using obscene or abusive language either during the course of soliciting or following a refusal; or (6) acting with the intent of intimidating another person into giving money or another thing of value.”  Balt. City Code Art. 19 § 47-1.  Despite the city ordinance, a squeegee problem is on the rise.

It is unclear who citizens can turn to for a remedy to any property damage.  Citizens often ask whether they can sue the city for failing to enforce provisions of the code, but the answer is no; the city has discretion in enforcing its code.  However, while there is no cause of action against the city for failing to enforce the soliciting or windowing cleaning prohibitions, there may be a cause of action available to an individual if injured due to the city’s negligence.  The injured party must establish that the city owed them a duty of care, breached that duty of care, and that breach caused the individual injury.  But it is unlikely that a judge is going to find that the city owes any duty to an individual whose vehicle is damaged by an aggressive solicitor on the street.

Citizens could sue the damaging squeegee kid for bodily injury.  Intentional torts such as assault and battery are available causes of civil actions for occurrences that escalate into violence, but if an individual is washing car windows for money, he/she probably does not have the ability to pay a judgment.

An individual’s own automobile collision insurance can assist that person if his/her vehicle is damaged by a squeegee kid.  However, this leaves the innocent driver paying a deductible and the insurance company paying for vehicle repairs that, in theory, could have been prevented.  Importantly, Maryland law requires that the insurer offer collision coverage but there is no requirement for drivers to buy collision coverage.  As such, those who opted out of collision coverage will likely have to pay for their own property damage caused by squeegee kids.

Given the City’s lack of liability or action with respect to the squeegee kids, the best option to avoid unnecessary expenses is to find alternative routes.

For more information about this article, please contact Ellen Stewart at 410.230.2670 or estewart@fandpnet.com.

When Is the Letter to Your Medical Expert Discoverable in Delaware?

/in /by When Is the Letter to Your Medical Expert Discoverable in Delaware?

The attorney-client privilege allows for confidential communication between an attorney and his or her client.  A corollary privilege is the attorney work product doctrine.  The work product doctrine allows for an attorney to draft correspondence, make notes, record impressions, etc., in anticipation of litigation without such materials then becoming available to an opposing party or counsel by demand.  In Delaware, an instructional letter drafted by an attorney and sent to an expert in advance of a Defense Medical Evaluation is typically considered attorney work product and not subject to discovery.  However, there are cases in which the Delaware Industrial Accident Board allows for the discovery of such correspondence at the request of opposing counsel.

In Peter M. Sisofo v. United Parcel Service, No. 977588 (Del. I.A.B., Mar. 3, 1993), the claimant sought to obtain a copy of the employer’s instructional letter to the employer’s medical expert.  The board ruled that the expert’s report could not be “fully understood” without the employer’s letter and ordered that it be produced.  The employer conceded that the claimant could have the letter but wished to withhold it until the expert’s deposition.  Since this decision, claimants’ attorneys have routinely cited to Sisofo in their Requests for Production to ask for all correspondence sent by defense counsel to their experts.

In Christopher Moore v. Amazon, No. 1427678 (Del. I.A.B., Dec. 12, 2018), the employer’s medical expert issued a report on causation.  The employer then sent the expert additional records and requested an updated opinion.  The expert changed his opinion after reviewing the letter and updated records.  The claimant requested a copy of the letter sent to the expert to investigate what caused the expert to change his opinion.

The board determined the letter had been drafted in anticipation of litigation; therefore, it was attorney work product.  However, the board explained this privilege is a qualified immunity and the letter may be producible if the claimant could demonstrate: 1) there was a substantial need for the letter; and 2) the claimant could not obtain the substantial equivalent of the letter by other means without undue hardship.  The board found the sole purpose of the discovery request was to uncover what evidence changed the expert’s opinion.  The board ruled that such evidence was in the expert’s report – the newly reviewed medical records – and so the claimant did not need the letter itself.  The board did note that to the extent “the letter might contain strategizing or legal theories . . . that sort of information is protected as work product and is not producible nor admissible as evidence.”  The board denied the claimant’s request to introduce the letter.

The lessons that defense counsel and their clients can learn from these cases is to ensure instructional letters provide a map of what information and evidence we (defense counsel) consider relevant to lead the expert where to look but not be the only source of information.  We may include generalized impressions and theories in the letter (e.g., the injury appears out of proportion with the mechanism of injury or this injury may be a recurrence of symptoms from a prior accident) as such writings should be privileged.  However, we should be aware that the letter may ultimately be producible and take caution not to include anything in the letter we wish to keep private.  We should also make certain our experts answer the questions asked.  This can be accomplished by listing our questions clearly and coherently and asking for revised reports when necessary.  Lastly, we should not concede to all discovery requests as doing so may waive a privilege we later seek to raise.

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

Lynn Fitzpatrick Receives Workers’ Comp Honor

/in /by Lynn Fitzpatrick Receives Workers’ Comp Honor

Lynn McHale Fitzpatrick, a principal in F&P’s Herndon office, has received the distinction of being elected to the Fellows of the College of Workers’ Compensation Lawyers class of 2019. The college honors attorneys, in the field of workers’ compensation, who have been practicing 20 years or longer, and are nominated based on “the highest professional qualifications and ethical standards, character, integrity, professional expertise and leadership.” In addition to this, an attorney has also written and/or lectured on the topic of workers’ compensation and has shown to be a scholar in the field.

The annual induction dinner will be held at the Biltmore Hotel in Coral Gables, FL on March 16, 2019 following the Workers’ Compensation Midwinter Meeting and the College of Worker’s Compensation Lawyers (CWCL) Symposium. For more information about the CWCL visit http://www.cwclawyers.org/.

Welcoming New Commissioners

/in /by Welcoming New Commissioners

James R. Forrester

Governor Hogan appointed James R. Forrester to the Maryland Workers’ Compensation Commission in July 2018.  Commissioner Forrester received his undergraduate degree from Randolph-Macon College.  He later graduated from the University of Baltimore’s Merrick School of Business and School of Law, earning a Master of Business Administration in 1995 and a Juris Doctor in 1998, with honors.

Before joining the Commission, in 1999, then-attorney Forrester began work as an associate claims attorney at the Law Offices of Ileen M. Ticer.  Thereafter, he joined the Workers’ Compensation and Employers’ Liability Department at Semmes Bowen & Semmes, P.C., where he was elected principal in 2009.

Commissioner Forrester has concentrated in the area of workers’ compensation and has appeared before all levels of the Maryland judiciary.  He has practiced in the District of Columbia, where he is also licensed.

Commissioner Forrester holds leadership roles in several civic organizations.  He has also served as president and member of the Executive Board of the Baltimore Claims Association as well as co-Chair of the Workers’ Compensation Section of the Maryland Defense Counsel.

Howard L. Metz

Governor Hogan recently appointed Howard L. Metz to the Maryland Workers’ Compensation Commission.  He began his term in January 2019.  Commissioner Metz received his undergraduate degree from American University and his Juris Doctor from Rutgers University.

Before joining the Commission, Commissioner Metz was a litigation attorney representing clients in state and federal courts in Maryland, the District of Columbia, Pennsylvania and New Jersey.  Prior to starting his own firm in Frederick, Maryland, Commissioner Metz was a non-equity partner & associate at Ashcraft & Gerel, LLP from 1987 – 2000.  Prior to that he was an associate at Jacobs, Todd & Bruso from 1985 – 1987.    He has also served as a court-appointed mediator by Circuit Court for Frederick County since 2000 and by Circuit Court for Washington County since 2008.

Commissioner Metz is involved in a plethora of pro bono and volunteer activities, including Frederick County Veterans’ History Project, Pro Bono & Justice for All Committee, and the Bar Association of Frederick County. 

Allan H. Kittleman

Governor Hogan recently appointed Allan H. Kittleman to the Maryland Workers’ Compensation Commission. He began his term in January 2019.  Commissioner Kittleman received his undergraduate degree from University of Maryland, Baltimore County (UMBC).  He obtained his Juris Doctor from the University of Maryland School of Law in 1988.

Before joining the Commission, then-attorney Kittleman was admitted to the Maryland Bar in 1988 and began his legal career as an associate with Smith, Somerville & Case. He was also an associate at Herwig & Humphreys, LLP from 1991 to 1996; he was promoted to partner in 1996 and left there in 2003.  In addition, he worked part-time for the law firm formerly known as Godwin, Erlandson, MacLaughlin, Vernon & Daney since 2008.

A Maryland native, Commissioner Kittleman is perhaps most well-known for his political life.  He was Howard County Executive from 2014 to 2018, a Maryland State Senator from 2004 to 2014 (representing the 9th district covering Howard and Carroll Counties) and State Senate Minority Leader from 2008 to 2011, and a member of the Howard County Council from 1998 to 2004.

Calvo v. Montgomery County: Special Errand Exception Recap

/in /by Calvo v. Montgomery County: Special Errand Exception Recap

Calvo v. Montgomery County, 459 Md. 315 (2018), a May 21, 2018 decision by the Maryland Court of Appeals, did not establish new law, but instead clarified the bounds of the law of the “special mission” or “errand” exception to the going and coming rule.  The going and coming rule generally prohibits accidents taking place during an employee’s trip to and from the workplace from being a compensable work accident.  The special mission exception, however, may allow an accident occurring during that trip to or from the workplace to be compensable under workers’ compensation law.

As noted in Calvo, the special mission exception has long been recognized by Maryland courts to allow a trip not normally covered under the Workers’ Compensation Act to be brought within the course of employment.  A trip may be considered a special mission when “the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances is itself sufficiently substantial to be viewed as an integral part of the service itself.”  Calvo, 459 Md. 315, 333–34 (2018).

To qualify for the exception, the journey must have been required by the Employer.  In determining whether a journey qualifies as a special mission, the following factors and bounds are at issue:

  1. Regularity or usualness of journey, in the context of the normal job duties.

The Court clarified that the existing bounds show that journeys that occur once a month, or are part of regular job duties, are not unusual. A journey on hours or days that are not normally worked could be unusual.

  1. Onerousness of the journey compared to the service performed at the end of the journey.

The conditions of travel, distance of travel, and whether the journey was on a normal work day and hours all should be balanced against the task at the end of the journey. Some employees may have a more onerous regular job such as being on call constantly, but that is insufficient in that case to bring about the special errand exception.

  1. Suddenness or urgency of the mission.

The Court minimized this factor so much that it made clear it is not necessary for a finding of the special errand exception. Factors that could show suddenness and urgency include the timing of notice given and a deadline on the same day.

For more information about this article, please contact April M. Kerns at 410.230.2975 or akerns@fandpnet.com.

Delaware Case Law Update: Roos Foods v. Magdalena Guardado, 153 A.2d 114 (Del. 2016) Termination of Temporary Total Disability Benefits for Undocumented Workers

/in /by Delaware Case Law Update: Roos Foods v. Magdalena Guardado, 153 A.2d 114 (Del. 2016) Termination of Temporary Total Disability Benefits for Undocumented Workers

In Delaware, an employer seeking to terminate a claimant’s temporary total disability benefits has the initial burden to demonstrate the claimant is no longer physically unable to work at any capacity.  The burden then shifts to the claimant to prove if they are a displaced worker.  A worker can be prima facie or actually displaced.  Prima facie displacement is based upon a variety of factors including physical impairment as well as the worker’s age, education, and work background.  Actual displacement deals with a reasonable but unsuccessful job search, which is attributed to the work injury.  To rebut a displaced worker finding, the employer must demonstrate job availability for the claimant in the open labor market.

The problem with cases involving undocumented workers is how an employer proves job availability for a claimant who cannot legally be employed.  In Roos Foods v. Guardado, 152 A.3d 114, 122 (Del. 2016), the Supreme Court of Delaware considered an employer’s appeal of a decision of the Industrial Accident Board (“Board”) as affirmed by the Delaware Superior Court.  The employer, Roos Foods, had filed a petition with the Board to terminate Ms. Guardado’s total disability benefits on the ground that the worker was no longer disabled and could return to work.  The Board denied the petition, finding that Ms. Guardado was prima facie displaced based solely on her status as an undocumented worker and further finding that the employer had not demonstrated there was work available for Ms. Guardado within her capabilities.  On appeal, the Delaware Superior Court affirmed the Board’s decision.  The employer then appealed to the state’s Supreme Court.

The Supreme Court of Delaware found held that a claimant’s undocumented worker status does not automatically make them a displaced worker but should be considered in the context of actual displacement.  The Court acknowledged the reality that there are undocumented workers in Delaware and indicated employers can use “reliable market evidence” to demonstrate such job availability.  The Court remanded the matter to the Industrial Accident Board.

Upon remand, the employer retained Dr. Desmond Toohey, Assistant Professor of Economics at the University of Delaware, who prepared a report on jobs that exist for undocumented workers in Delaware.  Dr. Toohey estimated there to be 28,000 undocumented workers in Delaware, 80% of which are employed.  He identified the occupations and industries employing such workers and estimated the number of workers in these fields.  Dr. Toohey then compared the jobs identified in the employer’s Labor Market Survey to the number of undocumented workers in the corresponding occupations and industries.  He concluded there were thousands of undocumented workers employed in Delaware in the types of occupations and industries identified in the Labor Market Survey.

The Board still found the claimant to be a prima facie displaced worker based upon her education, experience, and work restrictions but opined that the employer’s Labor Market Survey rebutted her prima facie displacement.  The Board held that Dr. Toohey’s testimony and report met the “reliable market evidence” standard.  The employer’s Termination Petition was granted.  The claimant appealed.

In an unreported decision, which was later affirmed by the Delaware Supreme Court, the Superior Court affirmed the Board’s decision (2018 WL 776422).  The Court explained the burden on the employer is to demonstrate: first, the availability of jobs for the claimant; and second, such jobs are within the categories of occupations and industries employing undocumented workers in Delaware.[1]  The Court found the employer’s Labor Market Survey met the first element and Dr. Toohey’s testimony met the second.

This ruling provides some level of clarity as to what may be required of employers to meet the Delaware Supreme Court’s “reliable market evidence” standard and how to terminate total disability benefits for undocumented workers.  Based upon the current case law, employers should strongly consider retaining an expert in labor and economics to provide evidence on the types of jobs and industries in which undocumented workers are employed in Delaware, as well as a medical opinion on work capabilities and a vocational specialist to generate a Labor Market Survey.

[1] Guardado v. Roos Foods, Inc. 2018 WL 776422 (Del. Super. 2018).

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

F&P Workers’ Comp Team Spotlight – Tony D. Villeral and James M. White

/in /by F&P Workers’ Comp Team Spotlight – Tony D. Villeral and James M. White

Tony D. Villeral joined Franklin & Prokopik as an associate attorney in April of 2016.  He focuses his practice in both Maryland and D.C. workers’ compensation defense.

Tony is a 2005 graduate of Chapman University in Orange, California.  He received a Bachelor of Science in Business Finance Management.  While attending college he also played soccer.  During college, Tony began his career in the insurance industry and interned with Liberty Mutual as a claims adjuster.  After graduating, he began working as a premium auditor for Liberty Mutual, a position which he held through 2007 when he was accepted into law school.

Tony attended law school at Howard University School of Law from 2007 through 2010.  During his summers in law school, Tony worked for Travelers Insurance, focusing primarily on workers’ compensation defense for both Maryland and Virginia.  After a brief period teaching middle school math and social studies in Baltimore City, Tony accepted an attorney position with Travelers.

Tony continued working for Travelers until January 2013, when he was hired by a large workers’ compensation defense firm located in Baltimore City. While employed with this firm, Tony’s practice was focused primarily in workers’ compensation defense in both Maryland and Washington D. C.  Since joining Franklin & Prokopik in 2016, Tony has enjoyed notable defense successes resulting in his being nominated to the 2018-2019 Rising Stars section of the Super Lawyers.

When Tony is not working, you can find him playing soccer or exploring the culinary arts.  He also enjoys all varieties of puzzles.

James M. White joined Franklin & Prokopik as a paralegal in February 2018.  His work is focused in the area of workers’ compensation defense.

James is a graduate of the Rochester Institute of Technology.  He graduated in 2003 with a Bachelor of the Arts in Industrial Design.  Upon graduating, James worked in the field of graphic design until the end of 2009 when he was recruited by a friend to work in a small law firm in Baltimore City.  The firm’s practice was focused primarily in the representation of children that were in the custody of the Department of Social Services in Baltimore City.  James found this work both challenging and rewarding.  In 2013, James began working for a law firm whose practice was in the area of collections. The firm primarily represented large creditors and lenders.  James was assigned to the Internal Auditor & Compliance Group and was tasked with ensuring that the firm was in compliance with a variety of regulations while pursuing their collection efforts. He continued working with this firm until 2015.

In 2015, James was hired as a paralegal with a small law firm in Harford County that focused primarily in the area of family law. While working for this firm, James was responsible for the preparation and management of case files in anticipation of litigation in the Circuit Court for Harford County.

With such a diverse background in both work history and education, James brings with him an approach to problem solving, creative thinking, and defense preparation that truly makes him an asset to our firm. While working for Franklin & Prokopik, James has familiarized himself in both Maryland and D.C. workers’ compensation defense.

James has several hobbies to fill his time while he is not at work.  Hailing from a small town outside of Boston, Massachusetts, he is a huge fan of both the Patriots and the Red Sox.  The Baltimore Ravens are his second favorite team.  He also plays guitar is his down time, and is a part-time Uber driver, which allows him the opportunity to meet interesting people and learn the roads of Maryland.

The Rise of Falling Off of Dockless Scooters

/in /by The Rise of Falling Off of Dockless Scooters

Major cities throughout the United States have seen a rise in the number of residents using scooters emblazoned with names like “Bird Rides” or “LimeBike”.   The scooters, referred to as “dockless” because they do not have a fixed home location, can be picked up from and dropped off at arbitrary locations within the scooter’s service area.  Users utilize an application on their mobile device to unlock the scooter and to pay for its use, the amount of which is based on the duration of the use.  The mobility of these vehicles makes them largely attractive to commuters and city residents alike as “scootersharing” can be hyper-localized, whereas other forms of shared mobility (think the more commonly known bike share) require set docking stations that are often placed far apart in distance.

However, while convenient, areas that introduce dockless scooters into their communities have seen a spike in scooter related accidents, including “severe” injuries, and in one case, death as a result of blunt force injuries to the head. These injuries are often sustained as a result of “user error”, scooters malfunctioning or flipping over on uneven surfaces or when users are hit by cars or collide with pedestrians.[1]  Such accidents have lawyers across the nation wondering just who is responsible in such situations.

In Maryland, there is little guidance on the issue of liability for scooter accidents.  Baltimore only entered into agreements with scootersharing companies Bird Rides and LimeBike in August 2018, so questions still remain unanswered about the extent of liability, if any, for which the companies will be responsible.  Other areas of Maryland, such as Montgomery County, allow for dockless bikes and are considering expanding to dockless scooters.  During the yearlong pilot program with dockless bikes, the Montgomery County Department of Transportation reported few problems or complaints and a survey of residents showed strong support for continuing the program.  As scootersharing is so new to the state, the Maryland Transportation Code does not contain a provision for or definition of “scooter”, the closest being a provision for “bicycles and motor scooters.”  It remains to be seen whether the legislature will create one so as to include dockless scooters.

Contractually, the use agreements between scootersharing companies like Bird Rides and LimeBike and the City of Baltimore require that the companies indemnify and defend the City against any claims for liability whether in contract or tort.  Each company is required to maintain Commercial General Insurance at limits of not less than One Million Dollars ($1,000,000.00) per occurrence as well as Business Automobile Liability Insurance at limits of not less than One Million Dollars ($1,000,000.00) per occurrence, and each company shall include the City of Baltimore as an additional insured on its policy.

In regard to individual riders, when downloading the app necessary to use a dockless scooter, users must agree to the company’s terms and conditions which includes a waiver for any liability and damages. Both LimeBike and Bird Rides encourage users to obey traffic laws and wear helmets while riding a scooter and LimeBike requires riders to go through an “in-app tutorial” on helmet safety in order to unlock a company’s scooter for the first time.   However, neither company provides helmets with its scooters.  Ultimately, while it is unlikely that every user understands that they are agreeing to such a waiver by utilizing the dockeless scooter app, riders are contractually responsible for the injuries that they sustain as a result of the ride and may even be found contributorily negligent for failing to ride safely with a helmet.

Of course, there are exceptions to every rule and even if treated like a bicycle, there is potential exposure of liability to a scooter company if the user can prove that his/her injury is a result of a scooter malfunction. In October 2018, a class action lawsuit was filed in Los Angeles Superior Court against Lime and Bird alleging, among other things, products liability and gross negligence.

For more information about this article, please contact Ellen Stewart at 410.230.2670 or estewart@fandpnet.com.

[1] https://www.washingtonpost.com/technology/2018/09/20/fatal-e-scooter-accident-emerges-just-california-legalizes-riding-without-helmet/?utm_term=.b19da64992ea

Chaos in the Supreme Court of Appeals of West Virginia

/in /by Chaos in the Supreme Court of Appeals of West Virginia

The current status of the Supreme Court of Appeals of West Virginia has created much controversy in the Mountain State and has spread across the country with national news reporting on the matter.  How did the Supreme Court of Appeals of West Virginia go from a relatively unknown body to five impeached justices and on the brink of a constitutional crisis? It all started with a desk, a couch, some office renovations, and travel expenses.

In December 2017, the Supreme Court of Appeals of West Virginia was made up of five duly elected justices: Chief Justice Allen Loughry; Justice Robin Davis; Justice Margaret Workman; Justice Menus Ketchum; and Justice Elizabeth Walker.  Reports started surfacing that the justices had spent in the neighborhood of three million dollars of taxpayer money for their office renovations.  Additional reports stated that Justice Loughry had taken furniture from the Supreme Court building to his home, including a leather couch and a desk informally known as a “Cass Gibert” desk, named for the architect of the West Virginia State Capitol.  Following these reports, Justice Loughry was replaced by Justice Workman as the Chief Justice.  However, this was just the tip of the iceberg for the Supreme Court of Appeals of West Virginia.

At the beginning of June 2018, the West Virginia Judicial Ethics Committee charged Justice Loughry with thirty-two violations of the Code of Judicial Conduct.  This led to his suspension from the Supreme Court of Appeals of West Virginia.  Within three weeks of being suspended, the FBI arrested Justice Loughry at his home in Charleston, West Virginia, on a 22-count indictment that included charges for fraud, wire fraud, lying to federal investigators, and witness tampering.  Charges were later added and some were dropped as well.

After Justice Loughry’s arrest, Justice Ketchum retired from the Court and shortly thereafter, it was discovered that federal charges were being levied against him as well.  Specifically, wire fraud resulting from Judge Ketchum’s improper use of a state fuel card, a charge to which the justice pled guilty.

Then came the articles of impeachment.  One by one, the West Virginia House of Delegates voted to impeach each of the remaining four justices for maladministration, corruption, incompetency, neglect of duty, and certain high crimes and misdemeanors.  The House of Delegates lead the way with approving the articles of impeachment against Justice Loughry and at the end of the day, all four remaining justices had articles of impeachment approved against them and they were sent to the Senate for trial.  However, upon receiving word of the articles of impeachment approved against her, Justice Davis resigned from office.

Today, only two of the aforementioned justices remain: Justices Walker and Workman.  Although the two justices were able to keep their seats, they both had their fair share of blows hurled at each of them.  Justice Walker was the first justice tried on the charges of impeachment.  Ultimately, the West Virginia Senate voted 32-1 to acquit her of the impeachment charges, but the West Virginia Senate did vote to pass a resolution to reprimand her.

Justice Workman’s impeachment trial was scheduled for October 15, 2018, but on October 11, 2018, the Supreme Court of Appeals of West Virginia (believe it or not), with justices sitting by temporary assignment, granted a writ of prohibition ruling that the Senate did not have jurisdiction over the alleged violations and the allegations of the Articles of Impeachment violated separation of powers doctrine.  Thus, Justice Workman’s impeachment trial has been delayed indefinitely.

Currently, sitting next to Justices Walker and Workman are three new justices, one of which is sitting by temporary assignment.  Two new justices were appointed by Governor Jim Justice, Congressman Evan Jenkins and former Speaker of the House of Delegates Tim Armstead, and they both ultimately won their respective election in November of this year.  Justice Loughry resigned from his position in November 2018, opening up yet another seat on the Court for an appointment to be made by Governor Justice.

Ultimately, the chaos and debacle of the Supreme Court of Appeals of West Virginia dominated headlines in 2018 in the Mountain State.  All levels of government were dragged into the foray, including the Department of Justice, the FBI, federal district courts, state ethics committee, the West Virginia Legislature, and a temporary Supreme Court of Appeals of West Virginia deciding if the Senate had jurisdiction for the impeachment proceedings.  There are those people that believe this was all a political stunt to overthrow the Court in an attempt to have new justice appointees.  Then there are those that truly believe that all of the justices should have been impeached and removed from the Court.  Either way, this chaos and debacle has taken the level of trust in the West Virginia judiciary to an all-time low, which voters in the state echoed on election day with the passage of Amendment 2, which removes the Court’s authority over its own budget and places it with the Legislature.

For more information about this article, please contact Landon Moyer at 571.612.5950 or lmoyer@fandpnet.com.

Liability Implications for Hours of Service Regulations

/in /by Liability Implications for Hours of Service Regulations

When a commercial motor vehicle is involved in an automobile collision, directly or indirectly, the motor carrier and driver often end up as defendants in litigation.  Almost immediately, written discovery leads to requests for the driver’s work hours and log books for the past week, month, or even year. The intent of the Federal Motor Carrier Safety Administration’s (FMCSA) Hours of Service (HOS) regulations is to make commercial motor vehicle (CMV) operation safer by managing the amount of time drivers spend on the road.  As technology has improved, and with the help of an FMCSA mandate, which is currently “phasing in” a requirement of electronic logging devices (ELD) use, more and more carriers are using ELDs to track driver compliance with HOS regulations through data collected by ELDs.  This means that the work hours or log book data plaintiffs seek in discovery is now more readily available.

As a reminder, the HOS rules allow CMV drivers who have been off duty for ten (10) consecutive hours (sleeping or resting) to drive a maximum of eleven (11) hours within a fourteen (14) hour window once back on duty.  In addition, the rules require drivers to take at least 30 minutes off duty no later than eight (8) hours after coming on duty if they wish to continue driving after the eighth hour.  Lastly, the rules do not allow drivers to drive after having accumulated 60 hours of on-duty time in seven (7) consecutive days of any given week, or 70 hours in eight (8) days.  Drivers may restart the 60/70-hour ‘‘clock’’ by taking 34 consecutive hours off duty.

The stringent and outdated (having not been updated in over 15 years) HOS rules have had unforeseen negative effects on drivers—such as forcing them to drive during the heaviest traffic times or counting the time they sit in traffic against their permissible driving hours.  This, in turn, has led to HOS violations— off of which plaintiff’s attorneys attempt to capitalize.  Data gathered by ELD companies indicate that the most commonly violated HOS rules are the 30-minute rest break, the 14-hour overall on-duty limit, and the 11-hour driving limit.  Unsurprisingly, these violations are exactly what plaintiffs hope to find in discovery to bolster negligence claims against drivers and carriers by arguing that a driver was over-worked, tired, or asleep when a crash occurred.

As a result, while the rules may or may not be making CMV operation safer, they have been causing problems for drivers and costing fleet owners and their insurers money in litigation.

On a positive note, the FMCSA is currently considering changing the HOS rules by making them more flexible to eliminate some of the problems they have created for drivers.  In feedback gathered by the FMCSA, from the industry, its CMV drivers have suggested eliminating the 30-minute off duty rule, allowing rest breaks to stop the 14-hour clock, and increasing the 11-hour driving limit.  If the FMCSA succeeds in its HOS revisions, perhaps in time there will be a reduction in the prevalent use of HOS rule violations captured by ELDs as fuel in litigation fires.

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