COVID-19 Presumption Legislation – Delaware

/in /by COVID-19 Presumption Legislation – Delaware

Delaware does not currently have a statute or law in effect that creates a presumption of compensability for COVID-19 claims, nor are there any laws pending approval.

However, COVID-19 claims are covered under Delaware’s occupation disease laws.  Pursuant to 19 Del. C. § 2301(4), a compensable occupation disease includes all occupational diseases arising out of and in the course of employment only when the exposure stated in connection in addition to that has occurred during employment.

There is a two-prong test for determining compensability.  First, the work conditions must produce the ailment.  In plain English, this means the claimant must have contracted COVID-19 at work.  Second, the nature of the claimant’s employment must pose an increased risk for exposure to COVID-19.  The mere fact that the claimant was infected at work is legally insufficient. Instead, there must be some aspect of the claimant’s employment that increases the chance of infection.  

COVID-19 Presumption Legislation Updates – Maryland

COVID-19 Presumption Legislation Updates – Virginia

COVID-19 Presumption Legislation Updates – D.C.

 

 

COVID-19 Presumption Legislation – Maryland

/in /by COVID-19 Presumption Legislation – Maryland

As a result of the COVID-19 pandemic, the Maryland Legislature has introduced eight bills that seek to include COVID-19 and the related Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) as an occupational disease, as well as expand the classes of employees who are entitled to the §9-503 presumption.  The proposed bills are currently pending second hearings in their respective original chambers.  Each of the proposed bills creates a presumption of compensability as a result of COVID-19 and SARS-CoV-2 for at least one class of employees, and all except for House Bill 1247, Senate Bill 725, and Senate Bill 860 include a provision that permits any covered employee, not within a class contemplated by the bill to file an occupational disease claim with the Workers’ Compensation Commission or a personal injury claim under state law. The bills will be discussed in more detail below.

House Bill 1199 and Senate Bill 813 are the most expansive bills on the table. These bills create a presumption of compensability for firefighters and first responders, childcare workers, education workers, healthcare workers, and essential workers.  The presumption applies so long as the following three (3) elements are met: (a) the employee is suffering from the effects of SARS-CoV-2; (b) the employee has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies; and (c) the employee’s duties required him or her to perform labor or services at a location other than the employee’s home or residence within 14 days of the onset of symptoms.  The bills require that the employee seeking compensation must provide the employer or insurer a copy of the positive COVID-19 test or written documentation confirming the diagnosis.  The presumption created by these bills can be rebutted only if the employer or insurer demonstrates that the employment was not a contributing cause of the disease.  These bills are to be applied prospectively, meaning that the presumption would only be applied in cases that are filed after the bills’ effective dates.

Senate Bill 812 provides for the presumption of compensability for firefighters, first responders, and health care workers only and does not include essential workers or childcare workers.  This bill does not require that employees perform work outside of their home within 14 days of the onset of symptoms of COVID-19 for the presumption to apply.  The presumption created by this bill can only be rebutted if the employer or insurer demonstrates that the employment was not the direct cause of the disease.  Finally, this bill requires employees to notify employers within one year and file a claim with the Workers’ Compensation Commission within two years of either the date on which the employee tests positive for SARS-CoV-2 or the related antibodies or the date on which the employee is diagnosed with COVID-19, whichever is later.  If passed, this bill would be applied retroactively and affect any claim filed on or after January 1, 2020.

House Bill 765 provides for the presumption of compensability in firefighters and first responders. For the presumption to apply, the employee must meet three requirements. The employee must prove that: (a) he or she is suffering from the effects of SARS-CoV-2; (b) he or she has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies, and (c) he or she maintained a position that required him or her to be in direct contact with members of the public.  The bill also creates a presumption of compensability for childcare and healthcare workers, so long as the employee (a) is suffering from the effects of COVID-19, (b) has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies, and (c) maintained a position that required him or her to be in direct contact with patients or children of first responders or health care workers, or occupy, clean, or repair areas occupied by patients or the children of first responders or health care workers.  The presumption created by this bill may be rebutted only if the employer or insurer demonstrates that the employment was not a direct cause of the disease.  This bill does not specify whether it is to be applied retroactively or prospectively.

House Bill 1247 and Senate Bill 725 are the only bills currently circulating through the Maryland Legislature that do not expand the presumption of compensability beyond firefighters and first responders.  These bills create a presumption of compensability in firefighters and first responders, so long as the employee is (a) suffering from the effects of SARS-CoV-2; (b) maintained duties require direct contact with members of the public, and (c) has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies.  These Bills would be applied prospectively.

Senate Bill 756 creates a presumption of compensability in firefighters and first responders, so long as the employee is suffering from the effects of SARS-CoV-2 and has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies.  This bill also expands the presumption of compensability to health care workers, so long as the employee is suffering from the effects of SARS-CoV-2; has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies; and was required to be in direct contact with patients or occupy, clean, or repair areas occupied by patients.  This bill would be applied retroactively and would affect any claim filed on or after March 5, 2020.

Unlike the other pending presumption legislation, Senate Bill 860 creates a presumption of compensability in public school employees.  Under this bill, a public school employee would be entitled to the presumption so long as the following requirements are met: (a) on or after March 1, 2020, the employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at a public school or other assigned workplace outside the employee’s home at the employer’s discretion, and (b) the test was performed, or the diagnosis was made by a healthcare practitioner who is licensed, certified, or otherwise authorized under the Health Occupations Article to perform the test or make the diagnosis.  The presumption created by this bill can only be rebutted if the employer or insurer can show by substantial evidence to the contrary that the employee tested positive for or was diagnosed with COVID-19 for reasons not arising out of and in the course of employment.  This bill is to be applied retroactively and would apply to claims filed on or after March 1, 2020.

COVID-19 Presumption Legislation Updates – Virginia

COVID-19 Presumption Legislation Updates – D.C.

COVID-19 Presumption Legislation Updates – Delaware 

Davis v. Regency Lane, LLC: When Is the Landlord Responsible for Two Fatal Shootings in the Common Area? Not When There Is No Evidence of the Circumstances Behind the Shooting.

/in /by Davis v. Regency Lane, LLC: When Is the Landlord Responsible for Two Fatal Shootings in the Common Area? Not When There Is No Evidence of the Circumstances Behind the Shooting.

A common issue that arises in the context of landlord-tenant relationships is the extent to which a landlord owes a duty to protect tenants and invitees against the criminal acts of third parties. Recently, in Davis v. Regency Lane, LLC, No. 1747, Sept. Term 2019 (Md. Ct. Spec. App. Jan. 28, 2021), the Court of Special Appeals revisited this issue in a reported opinion. The Davis case involved a wrongful death action against an apartment building owner, Regency Lane, LLC, brought by the estates of two teenagers who were shot and killed by an unknown assailant outside an apartment building in the parking lot. Plaintiffs alleged that Regency negligently failed to exercise reasonable care in providing adequate security measures on the premises to protect the tenants and invitees from foreseeable criminal activity. Through the course of discovery, Plaintiffs failed to provide any evidence regarding the circumstances of the shooting. The Circuit Court for Prince George’s County granted Regency’s motion for summary judgment, finding that Plaintiffs had failed to identify a dangerous physical condition that existed, that the shooting was a result of that condition, or that past criminal activities alerted Regency to the foreseeability of the deadly shootings. Plaintiffs appealed.

In its discussion, the Davis court provided a summary of the duty owed. Generally, a landlord has no special duty to protect tenants against crimes perpetrated by third parties on the premises. The landlord does have a duty, however, to exercise reasonable care, under the circumstances, in areas within the landlord’s control, such as common areas. If the landlord knows, or should know, of criminal activity against persons or property in the common areas, he has a duty to take reasonable measures, in view of the existing circumstances, to eliminate the conditions contributing to the criminal activity. The duty in that situation is to provide reasonable security measures to eliminate foreseeable harm.

For a landlord to have a duty to provide reasonable security measures, two things must be shown. First, a landlord must have the knowledge or should have knowledge based on the circumstances, that criminal activity on the premises has created a dangerous condition. Once a landlord has the requisite knowledge, the landlord must take reasonable measures to eliminate the condition contributing to the criminal activity. Second, the particular harm must be foreseeable, i.e., a landlord of ordinary intelligence, based on the nature or past criminal activity, should have foreseen the harm suffered. If the harm is not the type that would be associated with the known criminal activity on the premises, there is no duty to take measures to eliminate that harm.

The court found that there were sufficient facts in the record to support the finding that Regency had knowledge of criminal activity, and that the shootings were a foreseeable harm of that criminal activity. Therefore, Regency owed a duty to the decedents to take reasonable security measures to eliminate that harm. The court noted, however, that the appellants had not shown that a dangerous condition contributed to the shooting. The court held that “where appellants produced no evidence regarding the circumstances of the shooting, appellants could not meet their burden to show that any failure by Regency to satisfy its duty to take reasonable security measures was the proximate cause of the shooting.” The court explained that where the breach of duty is the failure of a landlord to provide security measures against known criminal activity, proximate cause will be found if “the breach enhanced the likelihood of the particular activity.”

In its analysis, the court acknowledged that proximate cause ordinarily is a question of fact. However, the court explained that when plaintiffs fail to meet their burden of showing a viable theory of causation in a negligence case, summary judgment is proper. The court again emphasized that appellants produced no evidence regarding the circumstances of the shooting, how it occurred, or what precipitated it. As such, there was no evidence to support a finding that extra security measures could have prevented the shooting. The court explained that proof of causation could not be based on mere speculation. Based on this lack of evidence, the court determined that appellants failed to show that inadequate security measures caused the decedents’ deaths. Accordingly, there was no triable issue of material fact to present to a jury on the issue of proximate cause. Therefore the circuit court properly granted summary judgment in favor of Regency.

Written by Andrew Stephenson.

 

 

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.

Ramos v. District of Columbia Department of Employment Services Addresses Theory of Causation

/in /by Ramos v. District of Columbia Department of Employment Services Addresses Theory of Causation

In Ramos v. District of Columbia Department of Employment Services, 227 A.3d 1108 (2020), the DC Court of Appeals (DCCA) stated that unless the defense addresses the claimant’s theory of causation, the presumption is not rebutted.  In Ramos, the claimant, Maria Ramos, was employed as a custodian.  She had uncontrolled hypertension and poorly controlled diabetes.  While at work, she suffered a stroke.  The defense’s Independent Medical Examination (IME) stated that the stroke’s major contributory factors were poorly controlled diabetes and uncontrolled hypertension.  The IME doctor said he would not attribute the stroke to the claimant’s employment.  However, upon further questioning from the claimant’s attorney and the Administrative Law Judge (ALJ), the IME doctor testified that physical exertion will increase a person’s blood pressure and that strokes could result from high blood pressure.  The IME doctor also stated that he could not offer an opinion about whether or not the claimant’s job responsibilities would in any way cause her to have the stroke.  The IME doctor stated that he did not have information regarding the specifics of the claimant’s employment (he did not witness what her job responsibilities involved or how heavy duty they were). Therefore, he could not provide an opinion as to that specific question.  The claimant argued in closing that physical exertion of her work aggravated her hypertension and thereby caused her stroke.

The ALJ denied the claim and, the Compensation Review Board (CRB) affirmed.  The DCCA reversed, stated that it was compensable, and remanded for an order consistent with its decision.  The DCCA stated:

  1. The aggravation rule is well-established as a valid theory.  “Whether [the claimant] was teetering on the edge of a stroke independent of her work is thus beside the point; if her work inched her over that edge, however slightly, her injury is compensable.”
  2. The employer did not refute the claimant’s theory of causation.  The defense IME said he did not have an opinion on that.  “If the employer fails to address and rebut the employee’s theory with substantial evidence, the presumption of compensability stands.”

In other cases, the DCCA has held that the claimant is not limited to one theory of causation. The ALJ is obligated to consider other possible theories of causation that the claimant did not raise, including possible causes the claimant did not notice or remember.  Nor does there need to be a discrete traumatic event.

The takeaway:  Defense experts have to address the claimant’s specific theory of causation and other possible work-related theories of causation.  Defense experts should know the claimant’s job duties.  One must be as thorough as possible when defending a workers’ compensation claim in DC.

Written by counsel Naureen Weissman.

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.

Enforcement of Arbitration Provisions in the Context of Wrongful Death Claims in Virginia

/in /by Enforcement of Arbitration Provisions in the Context of Wrongful Death Claims in Virginia
Arbitration clauses are contained in a variety of contracts including those related to construction, employment, and nursing home care and they purport to require the parties to resolve their disputes through arbitration (outside the courtroom).  Generally, courts hold the contracted parties to their agreed-upon bargain.  The Supreme Court of Virginia has held that the meaning of a contract must be “gathered from all its associated parts assembled as the unitary expression of the agreement of the parties.”  Hale v. Hale, 42 Va. App. 27, 31 (2003) (quoting Berry v. Klinger, 225 Va. 201, 208 (1983)).  It has also held that the various provisions of a contract must be “. . . harmonized, giving effect to each when reasonably possible. . . .”  Schuiling v. Harris, 286 Va. 187, 193 (2013).  In addition to the existence of a plethora of common law about contract enforcement, the legislature enacted a statute aimed at the enforcement of arbitration provisions specifically.  Pursuant to Virginia Code § 8.01-581.02, upon a moving party’s showing of an agreement to arbitrate and upon refusal of the opposing party to arbitrate, the court “shall order the parties to proceed with arbitration” (emphasis added).But the enforceability of an arbitration provision within a contract is not always so simple or straightforward.  One complication arises when a party tries to enforce an arbitration provision within a nursing home contract against a plaintiff making a wrongful death claim.  Many states have refused to enforce arbitration in this context as against public policy, but Virginia does not have much controlling case law on the matter.  Luckily, the United States Supreme Court shed light on this issue by reversing a West Virginia Court of Appeals holding in 2012.  See Marmet Health Care Center, Inc. v. Clayton Brown, 565 U.S. 530 (2012).  In Marmet, three separate nursing home cases were dismissed by West Virginia state courts based on arbitration clauses included in the admission agreements.  In each of the three cases, a family member of a patient who had died sued the nursing home in state court, alleging that negligence caused injuries or harm resulting in death.  In each case, “a family member of the patient requiring extensive nursing care had signed an agreement with a nursing home on behalf of the patient” which included a clause requiring the parties to arbitrate all disputes.  Id. at 531.  On appeal, and after consolidating the three cases, the West Virginia Supreme Court of Appeals reversed the dismissals, holding that the arbitration clauses were unenforceable as a matter of public policy because they were adopted “prior to an occurrence of negligence that results in personal injury or wrongful death.”  Id. at 532.The United States Supreme Court held that that “[s]tate and federal courts must enforce the Federal Arbitration Act (‘FAA’), 9 U.S.C. § 1 et seq., with respect to all arbitration agreements covered by that statute.”  Id. at *530.  The Court further clarified that the FAA does apply to arbitration provisions related to wrongful death suits and that “the Supreme Court of Appeals of West Virginia, by misreading and disregarding the precedents of this Court interpreting the FAA, did not follow controlling federal law implementing that basic principle (emphasis added).”  Id. at 531.  Quoting itself in a prior case, the Court stated that the “statute’s text includes no exception for personal-injury or wrongful-death claims.  It requires courts to enforce the bargain of the parties to arbitrate.”  Id. at 532-533 (citing Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985).Though the Marmet decision sheds light on the United States Supreme Court’s position on the matter, it is hard to tell whether and when Virginia will follow suit.  In the meantime, any arbitration provision (along with the remainder of a given contract) should be reviewed with legal counsel regularly to ensure that each clause remains enforceable over time and with changes in the law.For more information about this article, please contact Elena Patarinski at 804.932.1996 or epatarinski@fandpnet.com.

 

Maryland Intermediate Appellate Court Examines Co-Employment

/in /by Maryland Intermediate Appellate Court Examines Co-Employment

Maryland Intermediate Appellate Court Examines Co-Employment
Uninsured Employers’ Fund v. Tyson Farms, Inc., 2019 WL 6223915 (2019), Maryland Court of Special Appeals, No. 1057, SEPT.TERM, 2018

In Uninsured Employers’ Fund v. Tyson Farms, Inc., the Court of Special Appeals of Maryland considered the issue of simultaneous employment of a chicken farm manager. Mauro Garcia, the claimant, managed a chicken farm owned by Dai Nguyen. Pursuant to a contract with Mr. Nguyen, Tyson Farms, Inc. raised its chickens on the farm. Mr. Garcia was found to be occupationally disabled from hypersensitivity pneumonitis and interstitial disease as a result of his employment.

The claimant initially filed his claim for workers’ compensation benefits against Mr. Nguyen as his sole employer. As Mr. Nguyen did not have workers’ compensation insurance, the Uninsured Employers’ Fund became involved and subsequently brought Tyson into the claim as a co-employer. At a hearing, the commission declared both Mr. Nguyen and Tyson to be co-employers. Tyson appealed the commission’s findings to the Circuit Court for Worcester County. The court determined the issue was one for a jury, rather than a court. The jury found that Tyson was not a co-employer at the time of Mr. Garcia’s occupational disease. The Uninsured Employers’ Fund appealed. Judge Wright, writing for the Court of Special Appeals, reversed the decision made by the Circuit Court.

Although the primary issue in the case was whether the Circuit Court should have let the question of employment go to the jury, the opinion provides a constructive overview of the factors that may be considered in determining a co-employer/employee relationship. The factors include:

The power to select and hire the employee;
The payment of wages;
The power to discharge the employee;
Whether the work is part of the regular business of the employer; and
The power to control the employee’s conduct.
Although the other factors were taken into consideration, the court found the “control” factor to be the most important in establishing whether Tyson was a co-employer of Mr. Garcia. In this case, Tyson could oversee all aspects of the farm including verifying operations in compliance with their contract, establishing instructions and requirements for raising the flocks, sending Tyson’s employees to check on each flock of chickens, and evaluating the welfare of the flock. Specifically, concerning the claimant, Tyson had the authority to compel Mr. Garcia to work on the farm 24 hours a day, seven days a week, and to speak directly with Mr. Garcia regarding adjustments of any kind. Tyson also had the right to terminate the contract if Mr. Garcia did not comply with the terms. Based on these circumstances, the Court found that Tyson’s power to control Mr. Garcia’s day to day operations was enough to establish the company as a co-employer and reversed the decision of the Circuit Court.

For more information about this article, please contact Megan Berey at 410.230.1089 or mberey@fandpnet.com.

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.