Winter 2019

Fox v. Mize: A Bad Case for the Future of Direct Negligence Claims Against Motor Carriers

It is well established that direct negligence actions against a motor carrier are the most effective method for plaintiffs to increase exposure in law suits arising out of motor vehicle accidents involving commercial vehicles. A simple motor tort case can be transformed into an outright indictment of a motor carrier’s entire safety program. Plaintiffs use direct negligence claims to draw attention away from the simple question of driver error and heap it onto the far more sinister business of motor carrier malfeasance. They endeavor to demonstrate that the motor carrier failed to adhere to appropriate safety practices and procedures, compliance with which could have prevented the driver from being on the road in the first place. The direct negligence claims against the motor carrier are also the perfect vehicle for the reptile theory presentation.

Assuming there is a halfway decent factual predicate to support these direct negligence claims against motor carriers, the effectiveness of this approach has been proven by many recent significant verdicts in favor of plaintiffs. Most notable amongst these “nuclear” verdicts was the largest verdict awarded in the history of trucking litigation by a Gilmer, Texas, jury against FTS International in July, 2018 in the case of Patterson v. FTSI, LLC. In Patterson, the jury awarded $101 million dollars against the motor carrier, of which approximately $75 million was for punitive damages, for negligent hiring and retention following a truck accident. The factual predicate in Patterson involved a driver who had received three traffic violations in the preceding three years where company policy made drivers ineligible for continued employment if a driver had received three moving violations within that time period, the driver’s admitted use of methamphetamine and marijuana, and the driver having signed documents attesting to safety training that he never actually received.

One of the only strategies available to and used by motor carrier defendants to counter direct negligence claims is to admit agency, and sometimes even simple negligence, relying upon state law to preclude the direct negligence claims and the associated evidence. However, depending on the applicable standard on a state-by-state basis, a claim for punitive damages can often trump this defense strategy and revive the specter of direct negligence. A recent decision in the case of Fox v. Mize, 2018 Ok, 75 from the State of Oklahoma has further jeopardized motor carriers’ ability to employ this counter strategy. In Fox, the Supreme Court of Oklahoma affirmed the trial court’s denial of the motor carrier’s motion to dismiss a negligent entrustment claim where the motor carrier had stipulated to agency, ruling that “an employer’s liability for negligently entrusting a vehicle to an unfit employee was a separate and distinct theory of liability from that of an employer’s liability under the respondeat superior doctrine. An employer’s stipulation that an accident occurred during the course and scope of employment does not, as a matter of law, bar a negligent entrustment claim.”

The factual predicate in Fox involved a Class A commercial driver whose post-accident drug test revealed that he was taking a lawfully prescribed prescription narcotic that was banned by the FMCSR. The plaintiff, the adverse driver’s estate, filed a law suit, including direct negligence claims against the motor carrier for negligent hiring, training, and supervision and negligent entrustment. The defendant motor carrier stipulated that the subject accident occurred within the course and scope of the driver’s employment and filed a motion to dismiss the direct negligence claims on the basis that it was unnecessary, superfluous, and contrary to public policy in light of the admission as to agency. The trial court granted the motion as to the negligent hiring, training, and supervision claim but denied the claim of negligent entrustment. The defense argued that allowing the claims to proceed simultaneously would unfairly prejudice the defendant driver by allowing prejudicial evidence of his prior bad acts that would normally be excluded if it was just a simple negligence action against him. The court rejected that argument, concluding that motor carriers “employing unfit and unqualified drivers cannot insulate themselves from a negligent entrustment claim simply by stipulating that the employee driver was acting in the course and scope of employment. The Plaintiff has the right to determine the facts she will allege and the claims she will pursue. [The motor carrier] does not get to make that choice for her by stipulating that its employee was in the course and scope of employment at the time of the accident.”

The Fox decision was published on a direct appeal of the trial court’s ruling on the Motion to Dismiss which, in hindsight, may have been a premature strategy by the defendant. Either way, the Fox decision could serve to jeopardize one of the only defense strategies available to motor carriers in avoiding direct negligence claims and the introduction of associated prejudicial evidence that tends to lead to nuclear verdicts against them.

For more information about this article, please contact Andrew Stephenson at 410.230.3638 or