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December 2017

Submitted by: Sheila T. Kerwin, Nilan Johnson Lewis

 

Happy Holidays!

 

I hope everyone is enjoying a joyous and peaceful holiday season. 

 

Upcoming Events

 

It is not too soon to register for the FDCC Winter Meeting that will be held in Amelia Island on February 25-28 at the Omni Amelia Island Plantation Resort.  The Transportation Section will be holding its section meeting on Wednesday, February 28 at 7:45 am.  Here is a description if the program:

 

"The Defense of the Trucking Company for Alleged Liability for a Rear End Collision with a Slow Moving and/or Stopped Vehicle in the Travel Lane of a Highway:  A Case Study"

 

When the driver of an 18 wheeler rig travelling at highway speed suddenly confronts a slow moving or stationary vehicle in the same lane of travel, resulting in a catastrophic injury to the occupant, the attorney for the trucking company must reach deep into his tool bag to provide a plausible defense.  This presentation provides tactical consideration and insights to the issues confronted with this challenge. 

 

We will hear from Robert Biggs of the Ingram & Solop firm in Jackson, MS and Andy Irwin from Scientific Analysis, Inc in Dallas, TX. 

 

We hope you can join us.

 

News and Noteworthy

 

Please send to Terrence Graves (tgraves@sandsanderson.com) and/or Marc Harwell (marc.harwell@leitnerfirm.com) notice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.

 

Membership

 

If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Terrence, and he will assist with the admissions proposal process.

 

 

 


 

 

November 2017

Submitted by: Sheila T. Kerwin & Matt Murphy

 

 

Incoming! Despite Lack of “Ice Missile” Laws in Some States, Trucking Companies Still Potentially Liable for Negligence

 

If you are a resident of a northern state, the sight of ice and snow flying from the roof of moving vehicles is not unfamiliar.  These incidents have the potential to cause severe injury or death to drivers.  For example, in 2005, a Pennsylvania woman was killed when a chunk of ice flew off the roof of a passing tractor-trailer and crashed through her windshield.  See http://articles.mcall.com/2006-01-01/news/3661129_1_visit-family-family-s-sport-utility-vehicle-father.  Last winter, the Minneapolis Star Tribune reported a similar incident in which a suburban Minneapolis driver sustained minor injuries.  See http://www.startribune.com/local/east/295037111.html.  Other such incidents were reported throughout the East Coast last winter after record snowfalls. http://www.mprnews.org/story/2015/03/04/npr-clearing-snow-off-your-car.

 

While there are no specific federal regulations requiring drivers to clear snow and debris from the roof and hoods of their vehicles, some states have passed such “ice missile” laws.  For instance, Connecticut requires that all motor vehicle operators remove all accumulated ice or snow from their hood, trunk, and roof before operation or face penalties of between $200 and $1,200 for each offense. Conn. Gen. Stat. § 14-252a.  New Jersey and Pennsylvania have similar laws.  See N.J. Stat. § 39:4-77.1; 75 Pa. Stat. § 3720.

 

Even in states that do not have specific ice missile laws, law enforcement officers may still have authority to issue citations if they believe the accumulation of snow or ice renders the equipment unsafe. For example, in Minnesota, it is unlawful to drive, or knowingly permit another to drive, “on any highway any vehicle or combination of vehicles which is in such unsafe condition as to endanger any person.” Minn. Stat. § 169.47. Perhaps more significantly, a driver or trucking company who fails to clear away ice or snow could be held liable for ordinary negligence if debris from the vehicle causes an accident which a jury later determines was reasonably foreseeable. See Alaska Freight Lines v. Harry, 220 F.2d 272, 275-76 (9th Cir. 1955).

 

So, before hitting the road, make sure your drivers clear the snow off the hood and roof of their vehicles. And, if you are an employer, make sure your snow removal techniques do not violate workplace safety provisions. There are a number of methods for removing snow and ice from trucks that do not involve your drivers climbing onto the roof of their rigs!

 

 

 

October 2017

 

I hope that you are planning to attend the Insurance Industry Institute Symposium on November 9 and 10 at the Sheraton New York Times Square! Register now please by clicking on the following: https://thefederation.site-ym.com/events/register.aspx?id=961677&itemid=dde892a7-b586-4b38-94c7-045e4bfb2a3b.

 

Quote of The Month

 A creative person is motivated by the desire to achieve, not by the desire to beat others. Ayn Rand

 

Featured Member – Kurt Rozelsky

Kurt earned his B.A. in Foreign Affairs in 1990 from the University of Virginia and his J.D. cum laude in 1994 from the University of Georgia. He has handled numerous catastrophic injury and fatality matters and has assisted clients in making difficult decisions with regard to retention of involved personnel, engagement of technical experts, and dealing with the transportation industry's federal and state regulations. Kurt has used his depth of experience to speak at a number of national conferences on issues involving electronic discovery in the trucking industry, direct claims against the motor carrier, and preparation of the corporate witness and truck driver.

 

Kurt is active in the community, especially with education and children's issues. He assists Public Education Partners as an active Board Member, collaborating with educators and elected officials to support and strengthen public education and student achievement in Greenville County Schools. He is also greatly involved with the United Way as a member of the Campaign Cabinet and a former member of the Palmetto Society Board of Directors and Chair of the Young Philanthropists Council.

 

Upcoming Events

For the Winter meeting at Amelia Island: Defense of the Trucking Company: Rear End Collision With a Slow Moving or Stopped Vehicle: A Case Study. If you have other suggestions, please let us know.

 

News and Noteworthy

Please send to Terrence Graves (tgraves@sandsanderson.com) and/or Marc Harwell (marc.harwell@leitnerfirm.com) notice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.

 

Blog Post

Check out our section’s July blog on the FDCC website.  

 

And each quarter thereafter, the Transportation Section will continue to post an informative blog that provides practical advice and information that can only help you in your practice. If you have addressed through brief or otherwise a topic that is particularly relevant and insightful for the Transportation Industry, please send to Terence Graves for consideration.

 

Membership

If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Terrence, and he will assist with the admissions proposal process.


 

SEPTEMBER 2017

 

Our Chair, Terence Graves, has suffered the loss of a family member. So please offer a prayer of comfort for him and his family. And our thoughts are with our many friends in Texas who have been damaged by the flood.

 

I hope to see you at the Corporate Counsel Symposium in Philadelphia September 17 – 19!  Register now please.

 

Quote of The Month

 

Optimism is the faith that leads to achievement. Nothing can be done without hope and confidence. Helen Keller


Featured Member

Sheila Kerwin is an experienced catastrophic injury trial lawyer with the Minneapolis-based law firm of Nilan Johnson Lewis. She serves as national coordinating counsel for clients in transportation and product liability litigation. She also helps businesses navigate risk and manage programs associated with Unmanned Aerial Vehicles (drones), including regulatory compliance, risk analysis and avoidance, and litigation. Sheila is a vice chair of the FDCC Transportation Committee and serves on the transportation and product liability steering committees of ALFA International. She is a member of TIDA and Women in Trucking, and speaks regularly at conferences across the country on product liability and transportation topics.

 

Sheila loves trying cases, so her opponents know she won’t advise a client to settle a case just to avoid trial, unless that is the client’s objective. And when it comes to settlement strategies, Sheila is very adept at never leaving any money on the table, putting her hard-nosed negotiation skills to work for the best deal.

 

During the summer, and when she is not watching her son play hockey in a freezing-cold ice arena or her daughter on the stage, you will find Sheila floating on Horseshoe Lake at her cabin near Turtle Lake, Wisconsin.

Upcoming Events
For the Winter meeting at Amelia Island: Defense of the Trucking Company: Rear End Collision With a Slow Moving or Stopped Vehicle: A Case Study. If you have other suggestions, please let us know.

 

News and Noteworthy

Please send to Terrence Graves (tgraves@sandsanderson.com) and for the next two months Marc Harwell (marc.harwell@leitnerfirm.com) notice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.

 

Blog Post

Check out our section’s July blog on the FDCC website.  

 

And each quarter thereafter, the Transportation Section will continue to post an informative blog that provides practical advice and information that can only help you in your practice. If you have addressed through brief or otherwise a topic that is particularly relevant and insightful for the Transportation Industry, please send to Terence Graves for consideration.

 

Membership

If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Terrence, and he will assist with the admissions proposal process.

 


 

JULY 2017

 

I TRIED THE CASE AND WON (TWICE)—SO WHAT DID I DO WRONG?

By:  Terrence Graves

In the spring of 2014 I tried a case to a jury in one of the circuit courts in the Richmond, VA metropolitan area.  I represented a truck driver and his corporate entity in a lawsuit that had been filed against him by a young man who was operating a motor scooter.  The accident occurred on a 4 lane highway divided by double yellow lines.  The plaintiff was driving his scooter in the right lane headed westbound and had passed over a rise that blocked the ability of  following traffic to see smaller vehicles unless you were directly behind them. 


My client was deadheading (empty trailer) and headed home for the evening.  He was driving his tractor-trailer at 55 mph.  As he came over the rise, he saw the scooter in front of him and realized immediately that he was going a lot faster than the scooter was traveling.  He looked in his left rearview mirror and began braking at the same time.  He could see a set of headlights coming up on his left side, but couldn't tell if they were beyond the rear of his trailer or how close the vehicle was to his trailer, so he couldn't switch lanes and be assured that he wouldn't hit that vehicle.  He continued to brake and worked to maintain control of his vehicle in order to keep it from jack-knifing, while also edging to the left as much as possible in order to hopefully miss hitting the scooter.  He was unable to stop before colliding with the rear of the scooter although he stopped within 4-5 feet after the impact.  The scooter continued forward another 10-15 feet and the plaintiff was thrown off onto the highway.  The point of impact on the front of the tractor was identified by a dent that was approximately 18 inches to 2 feet from the right side of the front bumper.

Plaintiff suffered a concussion, injuries to his back, knees, shoulder and neck.  He was treated by multiple doctors, including an orthopedic surgeon, his primary care physician, and a pain management physician.  He claimed permanent injuries and an inability to work as an auto mechanic any longer. 


At trial, we based our liability defense on the plaintiff's contributory negligence.  We also argued that the client was free from negligence in causing the accident.  Virginia has a statute that provides that "any person operating a…motorized …scooter,  or moped on a roadway at less than the normal speed of traffic…shall ride as close as safely practicable to the right curb or edge of the roadway,…."  Virginia Code §46.2-905.  The argument that we spent the most time on in closing arguments was that the plaintiff was contributorily negligent because he was not riding his scooter as close as "safely practicable" to the right edge of the roadway.  The evidence conclusively showed that the scooter was being operated well into the right hand lane since the collision left a dent that was 18 inches to 2 feet from the right edge of the front bumper and he had obviously violated the statute and was guilty of contributory negligence and negligence per se.  The jury agreed with me and returned a defense verdict after about an hour of deliberation.


The good guys won, justice prevailed and we should all be drinking a beer right about now.  Not so fast.  The plaintiff filed a Petition for Appeal to Virginia's Supreme Court after his motion for a new trial was denied by the trial court.  Appeals to Virginia's Supreme Court are not a matter of right for civil cases.  You have to Petition the Court and argue to a panel of Justices why your case is worthy of their full consideration. 


During the process of briefing his Petition for Appeal, plaintiff's counsel was reviewing the record of the trial court in preparation for having the record forwarded to the Virginia Supreme Court.  It was during this review that he "found" that one of the exhibits, which rightfully consisted of a redacted version of a counseling record, was stapled to the unredacted version of the document.  That unredacted version contained references to the plaintiff's drug use.  We had agreed with opposing counsel that the drug use was inadmissible and that was why the document was redacted.  Plaintiff's counsel immediately fastened upon the idea that the jury was allowed to see this inadmissible information and had somehow been tainted by learning that the plaintiff used illicit drugs.  He filed a motion to stay his Petition for Appeal with the Virginia Supreme Court and simultaneously filed a Petition for Relief From Judgment Pursuant to Virginia Code §§ 8.01-428 and 8.01-677 seeking collateral relief from the trial court's earlier judgement, which was presumably final. 


The Virginia Supreme Court denied his motion to stay and ultimately went on to deny his Petition for Appeal. 

Virginia Code §8.01-428 is generally utilized as a device that allows defendants against whom default judgments have been entered to attack those judgments under the right circumstances. 

It provides as follows:

§ 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve party from judgment or proceedings; grounds and time limitations.zzz

  1. Default judgments and decrees pro confesso; summary procedure. Upon motion of the plaintiff or judgment debtor and after reasonable notice to the opposite party, his attorney of record or other agent, the court may set aside a judgment by default or a decree pro confesso upon the following grounds: (i) fraud on the court, (ii) a void judgment, (iii) on proof of an accord and satisfaction, or (iv) on proof that the defendant was, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911. Such motion on the ground of fraud on the court shall be made within two years from the date of the judgment or decree.
  2. Clerical mistakes. Clerical mistakes in all judgments or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notice, as the court may order. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending such mistakes may be corrected with leave of the appellate court.
  3. Failure to notify party or counsel of final order. If counsel, or a party not represented by counsel, who is not in default in a circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the part of that party and (ii) denied that party an opportunity to pursue post-trial relief in the circuit court or to file an appeal therefrom, the circuit court may, within 60 days of the entry of such order, modify, vacate, or suspend the order or grant the party leave to appeal. Where the circuit court grants the party leave to appeal, the computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect.
  4. Other judgments or proceedings. This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322, or to set aside a judgment or decree for fraud upon the court.
  5. Nothing in this section shall constitute grounds to set aside an otherwise valid default judgment against a defendant who was not, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911.

The plaintiff argued that subsections B and D were applicable to this instance.  He posited that the judge's law clerk must have mistakenly stapled the two documents together, which was in his estimation a "clerical mistake."  He fastened on the idea that subsection D allowed him to file this "independent action" in order to relieve him from the judgment previously entered by the trial court. 


Virginia Code §8.01-677 provides "For any clerical error or error in fact for which a judgment may be reversed or corrected on writ of error coram vobis, the same may be reversed or corrected on motion, after reasonable notice, by the court."   Once again, the plaintiff argued that the trial court had the power to "correct" this "clerical error" due to the fact that judgment never should have been entered because of the mistaken provision of the inadmissible document to the jury.


Recently, the parties presented evidence during a bench trial on the issues raised by these statutes.  The plaintiff's goal was to have the judgment from the prior trial set aside and to be granted a new trial.  This was in spite of the fact that his appeal to the Commonwealth's highest court had been denied.  Thankfully, the plaintiff was unable to prove the elements necessary to support a cause of action under §8.01-677.  The test for the use of §8.01 that must be met in order for it to be applicable requires that the alleged error be (1)"an error of fact not apparent on the record, (2) not attributable to the applicant's negligence,  and (3) which if known by the court would have prevented rendition of the judgment."  Commonwealth v Morris, 705 S.E. 2d 503 (VA 2011). 


After the presentation of evidence by the parties, the court found that the plaintiff had failed to prove 2 out of the 3 elements necessary to support a cause of action under §8.01-677, with the only notable element proved being that it wasn't attributable to the negligence of either the plaintiff or his counsel.  The court also found that §8.01-428 (B) and (D) were not applicable to our case as it was intended to deal with matters involving default judgments.


Looking back, it was difficult to figure out what I could have done differently to avoid having to basically try this case twice, however, I would suggest that if you find yourself in a similar situation that you pay attention to a couple of details.  First of all, if the trial judge doesn't offer counsel the opportunity to examine the exhibits prior to closing argument, you should ask to see them.  Look through them and then give opposing counsel the opportunity to do the same.  At the end of the trial in 2014, I didn't review the exhibits, as I was using Trial Director at the time and had all of the exhibits scanned into the trial presentation program.  I didn't think I needed to look at them, but if I had looked at them and the redacted document was stapled to the unredacted document, I would have caught it then before it was ever sent to the jury and avoided having to deal with the independent action to set the judgment aside. 

Secondly, I would have met with opposing counsel when he went to review the record in the trial court when he was getting it ready for his appeal.  In Virginia, it is the responsibility of the appellant to make sure that the record is "perfected" for appeal.  If you are the prevailing party, you typically don't think that it is your burden to make sure that the record is straight, however, you have a vested interest in making sure that everything is done properly and that the parties are on the same page when it comes to the contents of the record. 

 

 

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 www.thefederation.org 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:  https://aws.passkey.com/event/16385114/owner/56395/home .

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


COLORADO ALLOWS EMPLOYER’S ADMISSION OF LIABILITY TO DEFEAT DIRECT NEGLIGENCE CLAIMS

 

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.

 

 

BLOGS

 

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 janderson@dickinson-wright.com or 615-620-1735.

more Calendar

1/22/2018
Webinar - Succession Planning for In-House Counsel

2/25/2018 » 2/28/2018
2018 Winter Meeting - Amelia Island

2/27/2018
Professional Women's Forum 2018

4/6/2018 » 4/8/2018
TechU

5/20/2018 » 5/23/2018
Litigation Management College

Featured Members
Tracy S. PrewittO'Bryan, Brown & Toner, PLLC, Louisville, KY
Jay C. SalsmanHarris, Creech, Ward & Blackerby, PA, New Bern, NC

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