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JUNE 2017

Drone Registration—What's Next?

By Terrence L. Graves


The United States Circuit Court of Appeals for the District of Columbia recently upheld a verdict on behalf of a drone enthusiast that found that the Federal Aviation Administration's (FAA) rule requiring that individual recreational users of drones register the unmanned aerial vehicles (UAV) and pay a $5 fee.  The registration was good for 3 years and would need to be renewed as long as the UAV was still in use.  Failure to register could result in fines and/or jail sentences.


The FAA's registration rule was initially implemented in December 2015.  The D.C. Circuit Court of Appeals found that the rule in question conflicted with an unambiguous policy first expressed in the FAA Modernization and Reform Act of 2012.  Congress noted in that legislation that the FAA "may not promulgate any rule or regulation regarding model aircraft."  The D.C. Circuit found that drones operated for recreational purposes were "model aircraft" and that the registration rule was in fact a regulation of "model aircraft". 


This ruling does not apply to the operators of UAV's that are operated in the commercial sphere.  The wording in the opinion that states that it applies only to registration of any UAV's  flown while keeping the UAV within actual sight of the operator and if the UAV is also "flown for hobby or recreational purposes" appears to make it inapplicable to most commercial applications of UAVs. 


This leads to the natural question of what's next.  The answer to that question is not really clear.  Congress can amend it's 2012 legislation in such a way that it applies to "model aircraft".  In the alternative, it could stand pat and allow the D.C. Circuit's ruling to stand and apply to regulation of any "model aircraft" moving forward.  I anticipate that there will be a lot of involvement by interested industry groups that will seek to craft legislation that will benefit the various players in this game, including hobbyists, commercial operators, and those responsible for national security. 


If you are a client and you are reading this and operate or plan to operate UAVs for commercial purposes, then you should make sure that your UAVs are registered with the FAA.  If you are a hobbyist, like me, then you don't have to worry about registering your UAV or re-registering it when your current registration expires, unless of course Congress steps in or the U.S. Supreme Court is asked to weigh in.  If you are counsel to commercial operators of UAVs, be prepared to advise your clients about the ins and outs of this ruling.  

MAY 2017

Five Reasons Why You Need to Attend The FDCC Annual Meeting in Montreux, Switzerland

By Terrence Graves


If your 2017 has been anything like mine, you have just looked up and realized that we are almost half way through the year and you don't know where the time has gone.  You have also realized that it is almost time for the FDCC Annual Meeting in Montreux, Switzerland.  Some of you are probably on the fence about whether to attend, so I wanted to take some time to nudge you in the right direction so that you can go ahead and register for what is sure to be a once in a lifetime experience.  Here are my top five reasons why you need to attend the FDCC Annual Meeting in Montreux, Switzerland:


World Class CLE—If you haven't done so, you should go to the FDCC website at and peruse the brochure.  Since this is the transportation section's newsletter article, we have to start with our programming first.  The transportation section will participate in a joint presentation with the drug, device & biotechnology and class action sections entitled From Farm to Table or Felon to Table—How to Know the Difference: FSMA—What it means for foreign suppliers and U.S. importers.  An update on implementation, compliance, litigation and enforcement.  This program will explore the Food Safety Modernization Act (FSMA) and its ripple effects across several industries including transportation.  One of our vice-chairs, Phil Reeves, will be presenting along with Michael Walsh, and Dr. Art Miller of Exponent.  In addition, there will be plenary programs that focus on the following:

  • Living in Switzerland and what makes it a unique place to live;
  • Commercial uses and liability exposures associated with operating drones;
  • Winning in Mediation with Brain Science;
  • Inspirational Leadership by our very own Lewis Collins;
  • The law firm of the future;
  • Trial Masters—Buffalo Airline Crash Part Deux;
  • Keynote Presentation—The Emotional Power of Belonging & Maximizing the Return on Diversity and Inclusion Initiatives;
  • Trial Masters—Trial Technology in Action;
  • Keynote Presentation—Nontombi Tutu will address The Federation.

World Class Scenery—You will be treated to some of the best scenery that Europe has to offer with Lake Geneva and the Alps appearing in many views.  Here are some fun facts about Lake Geneva:  Lake Geneva is 224 square miles in size and it takes 2.5 to 3 hours to drive from one side to the other.  Lake Geneva has an average depth of 507 feet.  Here are some fun facts about Montreux:  Montreux has what is considered to be an exceptionally mild climate and plants associated with the Mediterranean, including pines, cypresses and palm trees grow there.  Montreux is surrounded by vineyards and hosts the Montreux Jazz Festival every June/July, which is world famous.

World Class Fellowship—If you have ever attended an FDCC meeting, you know what I'm talking about.  Enough said.

World Class Social Events—Our convention and program chairs, Ned and Sue Currie and Todd and Debbie Roberts have put together an enviable slate of social events including:

  • The Putt Putt Golf Tournament and Reception;
  • Lunch Cruise on Lake Geneva;
  • The Federation Reunion Reception;
  • A trip to Les Diablerets Glacier 3000;
  • A guided tour of Old Town Bern;
  • A guided tour of Lausanne and shopping excursion;
  • A alpine hike;
  • A wine tasting tour of the Lavaux;
  • A guided tour of Chateau de Chilton;
  • The President's Reception—"Ye Olde Presidential Soiree a Gruyeres Village—Cheese, Castles and Aliens, oh my!";
  • A Stroll with Hemingway;
  • A tour of the Nestle Discovery Center;
  • A chocolate excursion;
  • A tour of the Olympic museum in Lausanne;
  • The theme party reception and blast:  Charlie Chaplin's Black and White Bash;
  • The dessert party;
  • A tour of Rochers de Naye;
  • A trip to the Aquaparc, and;
  • The Count of Montreux Masked Reception and Ball.

World Class Accommodations—The meeting will be held at the Fairmont Le Montreux Palace which is located on the shores of Lake Geneva.  The hotel offers stunning views of the lake and the Alps in the background.   You can reserve your hotel room by clicking or pasting the following URL into your browser: .

How could you not want to be a part of this experience?  It is sure to be talked about for years to come.  Go ahead and take some time to register for the meeting.  You won't regret it.  



APRIL 2017



In a blow to the plaintiffs’ bar, the Colorado Supreme Court, issued an opinion holding that an employer’s admission of respondeat superior liability for an employee’s negligence bars a plaintiff’s direct negligence claims against the employer.  In Re Ferrer, No. 15SA340 (Co.Sup.Ct. February 27, 2017).  In Ferrer, the plaintiff was injured when a taxicab struck her as she crossed a street in Denver.  The cab driver worked for a cab company that owned the cab.  The plaintiff filed suit against both the cab driver and the cab company, alleging that the driver was negligent and the company was vicariously liability under a respondeat superior theory.  The plaintiff also alleged that the company was liable under theories of direct negligence – negligence as a common carrier, negligent entrustment, negligent hiring, negligent supervision and negligent training. 


The company, in an amended answer, admitted that the driver was an employee acting in the course and scope of his employment at the time of the accident.  It then moved to dismiss the plaintiff’s direct negligence claims on the ground that the employer’s admission of vicarious liability bars such claims.  The plaintiff, in turn, moved to amend her complaint to seek punitive damages against both the driver and company.  The trial court granted the company’s motion and dismissed the direct negligence claims and denied the plaintiff’s motion to add punitive damages.  The plaintiff petitioned to the Colorado Supreme Court for relief. 

In a split decision, the Colorado Supreme Court upheld the trial court’s dismissal of the direct negligence claims, relying in large measure on a Missouri case, McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995).  The court, indicating that it was adopting this “majority view”, Ferrer at 12, and the McHaffie Court’s reasoning, held that “to allow multiple theories for attaching liability to a single party for the negligence of another ‘serves no real purpose,’ unnecessarily expends the ‘engery and time of courts and litigants,’ and risk the introduction of potentially inflammatory, irrelevant evidence into the record.” Id. (quoting McHaffie, 891 S.W.2d at 826).


For those looking for a history of the McHaffie rule and a current list of jurisdictions that comprise the “majority” adopting the rule, the Ferrer case is an excellent place in which to start your research.  More importantly, Colorado now joins this majority in placing some common sense restrictions on duplicative theories of recovery.





The U.S. Truck Driver Shortage: Mitigating Risk and Liability

April 2017 - Recently, the Wall Street Journal ran a story declaring what many of us in the industry have known for some time: the United States trucking industry has a serious driver shortage. The latest statistics available from the American Trucking Association also bear that out. In 2015, the country’s for-hire trucking companies were short nearly 50,000 drivers. The gap decreased slightly in 2016, but every indicator points to the problem getting worse in the future, not better. Given that trucks are responsible for moving around 70% of all freight in this country, the driver shortage is worrisome, to say the least. Trucks are the lifeblood of our economy, and that pulse is sputtering. Trucking companies face increased risks as a result of not being able to find enough qualified drivers as they may be forced to rely upon less experienced drivers.

Inexperienced drivers may not be as cautious, know how to deal with difficult road conditions, or take enough breaks to ensure they are rested. An exhausted rookie with a full load driving through a snowstorm is just one poor reaction away from a bad accident. That could expose the trucking company to litigation on several fronts such as personal injury to the driver and others injured or killed in an accident, as well as claims for loss of cargo or property damage.

The driver shortage is undoubtedly an issue for trucking companies, as they must keep trucks on the road and cargo moving. This is no time, however, to turn a blind eye to the inexperience of their drivers. At minimum, trucking companies must ensure their drivers follow FMCSA rules and are experienced enough behind the wheel to not be a danger on the road. Taking these precautions could prevent the potential loss of millions of dollars in damages paid out due to litigation.

John E. Anderson, Sr. is a litigator and the head of the Transportation Practice Group at Dickinson Wright PLLC in Nashville, Tennessee. He can be reached at or 615-620-1735.

more Calendar

7/24/2017 » 7/29/2017
2017 FDCC Annual Meeting/ Bridging The Gap Insurance Summit

9/17/2017 » 9/19/2017
Corporate Counsel Symposium

10/23/2017 » 10/24/2017
2017 Fall Deposition Boot Camp

11/9/2017 » 11/10/2017
I3 Registration

Featured Members
Marjorie J. BergerMarjorie is with American Nuclear Insurers in CT
Bradford D. BoxBrad Box is with Rainey, Kizer, Reviere & Bell in TN

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