The Uncertain Future of CSA Scores and Safety Rating

/in /by The Uncertain Future of CSA Scores and Safety Rating

To the extent that courts continue to impute liability to brokers for the negligent acts of the contracted motor carriers, the problem is compounded by the current, uncertain state of the FMCA’s system for collecting motor carrier data and publishing safety assessments of motor carriers.  Ever since the FMCSA, in 2010, first instituted Compliance, Safety, Accountability (“CSA”), the program by which the FMCSA measures motor carriers’ safety performance, it has been subject to a range of criticism from key stakeholders.  Following a mandate from the Fixing America’s Surface Transportation Act (“FAST Act”) of 2015, the FMCSA authorized a replacement of the CSA’s Safety Management System (“SMS”), and authorized the National Academy of Sciences (“NAS”) to conduct a thorough study of the efficacy and integrity of the CSA program.   In particular, the NAS was tasked with addressing various key criticisms of the system, such as how to collect more and better data regarding motor carrier safety, the need for a better and more statistically sound data-collection methodology than the SMS, and the need for better user interface for stakeholders to access information and results on the FMCSA’s websites.

The NAS, comprised of a 12-member elite panel of researchers, published its report in mid-2017 at the end of a 15-month study.  The NAS concluded that generally the SMS system for identifying high-risk motor carriers was “conceptually sound” and had good overall goals, but it recommended sweeping changes, including a more detailed, “more statistically principled approach” to data measurement in the form of an alternate methodology to SMS, called “Item Response Theory” (“IRT”), a data measurement model that has been successfully used to analyze a range of social issues.  Under the SMS, safety scores relied on seven Behavior Analysis and Safety Improvement Categories (or “BASICs”).  The NAS recommended that the FMCSA adopt this new methodology model, but suggested that the agency take its time testing and incorporating it into its current system.  The FMCSA has signaled its adoption of the IRT system, and one year into its evaluation of its two-year planned study of IRT, the agency has said that it is making progress, but that it is too soon to say whether the new methodology could improve on the CSA program.  The agency said it will complete its full evaluation by the Fall of 2019.

One issue of concern is that the new system, even if statistically improved, involved greater complexity that will create challenges for stakeholders used to the simpler (if substantially flawed) CSA system.  Another concern for stakeholders in the transportation industry is precisely which data will be collected moving forward, and whether the data-collection methods will accurately reflect which motor carriers are at-risk carriers, and which are not.

For example, many motor carriers have complained that in the past, drivers have not been given credit for “no violation” or “clean” roadside inspections by federal inspectors, whereas their negative inspection results do get recorded.  In addition, much concern has been voiced from the industry that safety results published by the FMCSA tend to misrepresent the safety risks of motor carriers by failing to eliminate “non-preventable” crashes from the agency’s safety scores.  In response, the FMCSA instituted a Crash Preventability Demonstration Program in August 2017, whereby motor carriers could file requests for data review (“RDRs”) with the agency, regarding motor carrier crashes where the carrier’s driver was clearly not at fault.  As of now, the new program has experienced some growing pains. However, this is one sign that the agency has become more responsive to legitimate concerns from within the trucking industry that the safety ratings made public by the FMCSA mislead the public into thinking that a motor carrier presents a higher risk to safety than it actually does.

For more information regarding this article, contact Stephen J. Marshall.

Changes to Driver Qualifications

/in /by Changes to Driver Qualifications

The commercial transportation industry continues to experience a shortage of qualified drivers and the issue has risen to one of the industry’s top concerns. The driver shortage can be attributed to a multitude of factors, including continued industry expansion and retirement of older drivers without sufficient interest from younger potential drivers to replace them.  In an effort to combat the driver shortage plaguing the commercial transportation industry, the Federal Motor Carrier Safety Administration (“FMCSA”) has implemented a number of changes to driver qualifications with the goal of increasing the number of individuals who qualify to become commercial drivers.

One such recent change relates to the requirements of a driver’s physical health. Previously, insulin-dependent diabetic drivers were prohibited from operating commercial vehicles in interstate commerce without an exemption from FMCSA.  However, the FMCSA recently issued a final rule to allow certified medical examiners the discretion to decide whether an insulin-dependent diabetic driver is qualified to drive without seeking an exemption.  Beginning November 19, 2018, medical examiners are now able to issue a diabetic driver a one-year medical certification if the driver’s primary health care provider submits a completed assessment form indicating the individual maintains a stable insulin regimen and proper control of his/her diabetes to the medical examiner.

In addition to changes in regulations related to a driver’s physical health, the increased shortage of drivers has led to a rejuvenated push to lower the CDL age requirement.  Under current law, individuals must be at least 21 to drive a commercial vehicle interstate; however, some states allow individuals under 21 to driver intrastate. In March 2018, the DRIVE-Safe Act was introduced in the House of Representatives and introduced in August 2018 in the Senate. The DRIVE-Safe Act would allow individuals age 18 to 20 who possess a CDL to drive interstate upon completion of 240 hours of on-the-road experience with an experienced truck driver and certain safety features such as automatic active-breaking systems.  The DOT is also launching a three-year pilot program to permit individuals age 18 to 20 who possess the U.S. Military equivalent of a CDL to operate large trucks in interstate commerce.

While the FMCSA is looking to increase the number of qualified drivers, it is also maintaining its focus on ensuring that drivers are adhering to established safety regulations and standards.  Part of ensuring safe roadways is ensuring that commercial drivers are free from drugs and alcohol.  To that end, commercial drivers are required to undergo drug tests, including pre-employment, random, and, under some circumstances, post-accident drug tests.  As of January 1, 2018, four new drugs have been added to the DOT drug testing panel requirements: hydrocodone, hydromorphone, oxymorphone, and oxycodone.

Currently, urinalysis is the only federally-approved drug testing method for commercial drivers. However, the FMCSA is moving towards permitting drug testing through hair sampling. Proponents of the hair sampling method point to the method’s longer detection window, increased accuracy, and decreased ability to cheat the drug test as benefits. On October 28, 2018, President Trump signed into law the SUPPORT for Patients and Communities Act which directs the Secretary of Health and Human Services to provide an estimated date for completion of the final guidelines for hair follicle drug testing under the FMCSR.  Although the precise situations in which the hair sampling method will be permitted and the precise guidelines for same are not yet determined, it is clear that hair sampling will soon be a permissible drug testing method in at least some circumstances under the FMCSR.

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

Browne, et al. v. PAM Transport; Eat, Drink, and Be Wary: Hidden Costs in the Sleeper Berth After New FLSA Ruling

/in /by Browne, et al. v. PAM Transport; Eat, Drink, and Be Wary: Hidden Costs in the Sleeper Berth After New FLSA Ruling

A recent decision issued in Browne, et al. v. PAM Transport, a class action lawsuit brought under the Fair Labor Standards Act (“FLSA”), may signal further national litigation and additional labor costs for time commercial drivers spend off the road.  In the US District Court for the District of Arkansas, a group of truck drivers sued their employer, P.A.M. Transport (“PAM”), alleging they should have been paid for 16 hours out of every 24-hour period pursuant to the FLSA, even though DOT regulations require drivers to spend no more than 14 hours on the road.

The FLSA recognizes that certain employment positions require employees to have periods of down time where they are not necessarily actively performing any employment duties.  The FLSA mandates that employers pay those employees an amount at least equal to minimum wage for those periods of down time. Typically, this applies to receptionists, firefighters, waiters, or other employees who respond to variable workloads. In the context of the transportation industry, the FLSA payment mandate applies to drivers who must wait at certain pickup and delivery points to be loaded and unloaded. For employees who are required to be on duty for 24-hour periods, the FLSA requires employers to pay their employees for their down time, including time spent eating and sleeping, during the full 24-hour period. An employer and employee can enter into an agreement that permits a maximum of eight hours in a 24-hour period to be unpaid. However, an employer must compensate an employee who is required to be on duty for 24-hour periods for a minimum of 16 hours under the FLSA, regardless of whether the employee spends more than eight hours eating and sleeping.  In the absence of any agreement to exclude any portion of the 24-hour period from an employee’s compensation, an employer must compensate the employee for the full 24 hours.

It is against this backdrop of the FLSA that a group of truck drivers sued their employer, PAM, alleging that PAM was required under the FLSA to pay them for a minimum of 16 hours of every 24-hour period, even where some of those 16 hours were spent in the sleeper berth.  The US District Court for the District of Arkansas was tasked with determining whether a commercial truck driver who is in the sleeper berth and therefore “off duty” for purposes of the Federal Motor Carrier Safety Regulations (“FMCSR”), is still “on duty” for purposes of application of the FLSA and therefore entitled to payment of at least minimum wage for time spent in the sleeper berth.

In parsing out the applicable FMCSR and FLSA provisions, the court ultimately determined that commercial drivers not “on duty” under FMCSR hours of service regulations are, in fact, “on duty” for FLSA purposes and therefore entitled to compensation for time spent in the sleeper berth.  In reaching its decision, the court determined that the purpose of the FMCSR is to “make our roads safe,” while the FLSA regulations govern issues related to compensation. Therefore, the court determined that the FLSA provisions as to whether a driver is “on duty” should apply in order to determine appropriate compensation.

While this order is not binding on other courts, it is an indication of potential additional litigation and future risks related to employer liability.  The Browne case highlights the importance of motor carriers having an agreement in place with their employee drivers to exclude the eight hours permitted under the FLSA for time spent in the sleeper berth from a driver’s compensation, in order to reduce the amount of time and wages potentially at issue.

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

Trending Anti-Indemnification Statutes

/in /by Trending Anti-Indemnification Statutes

Traditionally, motor carriers and shippers used contracts to set forth their respective obligations, which included shifting the risk of liability from one party to the other.  Shippers have notoriously had more leverage in this situation, placing motor carriers in the precarious position of contractually assuming all the risk of liability, including liability for the shipper’s own negligence.  In the last ten years, states have taken notice of such inequitable contracts and by 2016, 42 states had passed some form of an anti-indemnification statute, restricting the anti-indemnification clauses in shipper/motor carrier contracts.

The purpose of these statutes is twofold: to protect individuals and entities from assuming all liability for accidents in shipping contracts and to protect motor carriers from bearing the liability of a shipper’s own negligence.  There are four categories of anti-indemnification statutes:

Category of Anti-Indemnification Statute States Enacted in
Statutes that prohibit motor carriers and shippers from contracting to indemnify the shipper against the shipper’s negligence-based and intentional-based liability. Alaska

New Mexico
Statutes that prohibit unspecified third parties, such as a shipper, broker, etc., from requiring the motor carrier to indemnify the third parties for any negligence-based or intentional-based liability. Hawaii

Oklahoma

South Dakota
Statutes that use boilerplate promisor and promisee language to prohibit indemnification for negligence-based or intentional-act based liability in any provision that affects a motor carrier agreement or contract. Arkansas

California

Colorado

Connecticut

Iowa

Kansas

Louisiana

 

 Massachusetts

Montana

New Jersey

New York

Oregon

Tennessee

Utah

Wyoming
Statutes that use boiler plate promisor and promisee language to prohibit any non-motor carrier from requiring motor carriers to indemnify the non-motor carrier for its negligence-based and intentional-based liability. Florida

Georgia

Idaho

Illinois

Indiana

Kentucky

Maine

Maryland

Michigan

 

 Minnesota

Missouri

Nebraska

Nevada

North Carolina

Pennsylvania

South Carolina

Virginia

West Virginia

Wisconsin

There are five (5) states (Alabama, Arizona, North Dakota, Texas and Washington) with unique anti-indemnification statutes that do not fit in the four above categories.  In 2016, there were only five (5) states (Delaware, Mississippi, New Hampshire, Rhode Island and Vermont) without transportation anti-indemnification laws.

These statutes generally prohibit indemnification provisions that shift risk between parties irrespective of fault; they do not prohibit provisions that shift risk to a negligent party. Additionally, if an indemnification provision is found in violation of an anti-indemnity statute, the provision will be held unenforceable.  There is little case law regarding challenges to states’ anti-indemnification statutes at this time.  However, there is a possibility that such statutes are preempted under federal law 49 U.S.C. 14501, which prohibits states from enacting or enforcing a law, regulation, or other provision related to price, route or service of any motor carrier with respect to transportation of property.

At this time, given the lacking information on state challenges, to avoid being left with no protection at all should a provision be found to violate a state’s anti-indemnification statute, parties should consider securing additional insurance coverage when entering such transportation contracts.

For more information regarding this article, please contact Miranda Russell at 410.230.1092 or mdrussell@fandpnet.com.

 

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

/in /by 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 astephenson@fandpnet.com.

Autonomous Vehicles and the Commercial Transportation Industry

/in /by Autonomous Vehicles and the Commercial Transportation Industry

The age of traditional forms of trucking transportation may be coming to an end with the development of autonomous trucks. Companies are infiltrating the commercial transportation industry by introducing software and vehicles that are completely autonomous and do not require a human behind the wheel, or even inside the vehicle at all, begging the question as to how these advancements will affect the commercial transportation industry.

Naturally, the biggest potential effect is how autonomous trucks will factor in determining liability for accidents involving these vehicles. In addition to theories of pure negligence, theories of manufacturing and/or design defects in the autonomous trucks may become more commonplace in lieu of derivative claims of negligence such as negligent hiring and retention. Such a strategy could significantly alter the manner that these cases are litigated, as well as increase litigation costs. Moreover, there is a natural difficulty for a company to defend a pure negligence claim if there is no driver or human in the vehicle.

Outside of the potential effect on litigation, the transportation industry faces practical concerns with autonomous vehicles. Naturally, the first is the cost associated with these autonomous vehicles, particularly in light of the fact that such vehicles are an unknown quantity. There would need to be safeguards such as enhanced monitoring systems and cameras depicting the road from multiple angles. However, these increased costs would be counteracted by reducing the need for commercial drivers and the costs associated with said drivers.

The second consideration is the effect that autonomous (or partially autonomous) vehicles will have on the area of driver restrictions. Indeed, some vehicles, although autonomous, do require individuals to be present in the vehicle while it is operating. Federal regulations will need to evolve to address this gray area and provide the transportation industry with clarity so that companies can make an informed decision. For example, the federal regulations will need to clarify whether the current set of rules regarding driver hours and licensure apply for autonomous vehicles with an individual present in the vehicle or whether a new body of regulations will arise.

One thing is clear with the introduction of autonomous trucks; they are approaching rapidly and transportation companies, and the regulations for the industry, will need to quickly evolve to address this new development.

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

New CMV Safety Technology and Regulation

/in /by New CMV Safety Technology and Regulation

Safety and security initiatives are at the forefront of the Federal Motor Carrier Safety Administration’s rulemaking initiatives. However, the Department of Transportation has placed a number of regulations for commercial motor vehicles aimed at safety on hold for what seems to be an undetermined period of time. These delays in implementation have followed President Donald Trump’s directive that for every new regulation imposed, two existing regulations must be removed. Below is a look at a few of the most recent updates, and stalls, related to safety regulations.

Underride Guards

The Insurance Institute for Highway Safety (IIHS) estimates that underride occurs in approximately 50% of fatal crashes between commercial motor vehicles and passenger vehicles. According to the National Highway Traffic Safety Administration, between the years 1994 and 2004, 4,006 people died from an accident resulting in underride with a commercial motor vehicle.

Currently, federal law requires large commercial motor vehicles to have rear underride guards but not side guards. Studies conducted by the IIHS suggest that strong side underride guards have the potential to reduce the risk of injury in approximately 75% of side impact accidents between passenger vehicles and commercial motor vehicles.

On December 12, 2017, the Stop Underrides Act of 2017 was introduced in both the Senate and the House of Representatives by bipartisan representatives. This bill seeks to amend federal transportation law to require that the Department of Transportation issue a final rule requiring the installation of underride guards on all vehicles weighing more than 10,000 pounds and are manufactured on or after the law’s effective date. The bill has not been set for a vote in either chamber of Congress.

Speed Limiters

Speed limiters have been discussed in the commercial motor vehicle industry for nearly a decade, but it was not until August 26, 2016 that two agencies within the Department of Transportation, the National Highway Traffic Safety Administration and Federal Motor Carrier Safety Administration, published a proposal that all commercial vehicles with a gross weight of 26,000 pounds be equipped with a speed limiting device. A speed limiter would, at all times, prevent equipped vehicles from exceeding a particular pre-set speed setting. Under the proposal, three distinct speed settings were recommended: 60, 65 and 68 mph.

If implemented, speed limiters are estimated to save over one billion dollars a year in fuel costs and significantly reduce the severity of motor vehicle accidents and fatalities. Additionally, speed limiters are predicted to reduce the amount of brake and tire wear on commercial vehicles. Despite this, the issue of speed limiters has garnered its fair share of criticism due to being at odds with the reality of day-to-day life in the commercial trucking industry. Many associations have cited potential issues with implementation, including limiting productivity, increasing traffic, and creating “rolling roadblocks.”

The proposal requiring speed limiters, however, has come to a standstill. It is unknown if, or when, a speed limiter mandate may go into effect, as the Department of Transportation has moved speed limiters to its “long term” agenda item list. The speed limiter mandate has not been officially been withdrawn by the Department of Transportation. But, given the Trump administration’s stance against new regulations and push to cut existing federal regulations, it is predicted that any speed limiter mandate will likely continue to stall.

Window Mounts

Section 393.60(e)(1)(i) of the Federal Motor Carrier Safety Regulations prohibits the obstruction of a driver’s field of view by devices mounted on the interior of the windshield. While this section does not apply to “vehicle safety technologies”, Global Position System (GPS) devices are not considered “vehicle safety technologies” under the definition and thus were not permitted to be mounted on the interior of the windshield and/or the area swept by the windshield wipers.

However, now thanks to the Traditional Trucking Corporation’s application for a limited five-year exemption on behalf of all motor carriers, all operators of commercial motor vehicles can utilize GPS devices that are mounted on the interior of the windshield. In its application, the Traditional Trucking Corporation argued that this exemption was necessary because the dash of a commercial motor vehicle is not suitable for mounting a fixture to hold a GPS unit. Additionally, it argued that GPS units are roughly the same size as various safety technologies and that windshield mounting would prevent a driver from taking his/her eyes off of the road to look down at the dash to view a GPS device.

Motor carriers are now allowed to operate commercial motor vehicles equipped with GPS devices mounted (1) not more than 4 inches below the upper edge of the area swept by the windshield wipers; or (2) not more than 7 inches above the lower edge of the area swept by the windshield wipers; and (3) outside of the driver’s sight lines to the road, highway signs and signals.  The Federal Motor Carrier Safety Administration strongly encourages drivers utilizing GPS devices under this exemption to minimize and avoid possible distractions associated with using these devices by programming the device before starting to drive, stopping to reprogram the device as needed, and enabling voice command on the device to help avoid continuous glancing at the device’s display. This exemption is effective August 22, 2018 through August 22, 2023.

For more information about this article, please contact Heather Rice at 410.230.3617 or hrice@fandpnet.com.

Employee or Independent Contractor? Recent Increase in Employee Misclassification Litigation Requires a Close Look to Ensure Your Workers’ Compensation Coverage Is Sufficient

/in /by Employee or Independent Contractor? Recent Increase in Employee Misclassification Litigation Requires a Close Look to Ensure Your Workers’ Compensation Coverage Is Sufficient

This year has brought an increase in employee misclassification litigation across the Nation with unfavorable decisions against carriers spanning from California to Maryland. This increased national attention as to whether a driver is an employee, or an independent contractor deserves attention to protect against unexpected workers’ compensation liability.

Transportation employers who hire in, operate out of, or routinely service Maryland may find themselves subject to a Maryland workers’ compensation claim from a driver who they believe to be an independent contractor. The Maryland Workers’ Compensation Commission narrowly defines “independent contractor” in the interest of providing benefits to injured workers. The definition is “one who contracts to perform a certain work for another according to his own means and methods, free from the employer in all details connected with the performance of the work except as to its product or result.” Having a driver sign forms that they are an independent contractor, execute a form opting out of workers’ compensation insurance as an independent contractor, or signing contracts stating they are independent contractors is no bar to a finding the driver is an employee.

An “employee” is determined by evaluating five factors: “(1) whether the employer selected or hired the worker, (2) whether wages were paid to the worker, (3) whether the employer had the ability to discharge the worker, (4) whether the employer has the ability to control the worker’s conduct, and (5) whether the worker’s work is part of the employer’s regular business. These five factors can be boiled down to one – whether the employer has power or control over the driver as to how they perform his/her job.

Unfortunately, each case is a fact specific review of these factors, but noncompete clauses, uniforms, company policies on the manner of carrying out the job, requiring accountability for days not worked, dictating routes used, employer provided training, and providing the means of performing the job tend to tip the scale toward the driver being an employee entitled to workers’ compensation benefits. With more national attention toward employee misclassification, injured drivers may be more likely to contest their own classification and, with liberal Maryland workers’ compensation laws, may be successful. A review of employee classification and an update of your workers’ compensation insurance will help head off unexpected and uninsured liabilities.

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

F&P on the Road

/in /by F&P on the Road

Bert Randall and Tamara Goorevitz presented at the USLAW Network Retail & Hospitality Exchange in Chicago, IL on October 23.  Bert’s topic was “Managing Risk When Your Employee is the Aggressor” and Tamara’s was “Transportation Claims are Not Just for the Trucking Industry.”

Bert Randall presented at the Maryland Association of Counties (MACo) Winter Conference in Cambridge, MD on January 3.

Andrew Stephenson will be attending Trucking Industry Defense Association (TIDA) Advanced Seminar in San Diego, CA on January 23 -24.

Tamara Goorevitz will be presenting at the American Bus Association’s Marketplace in Louisville, KY on January 26.

Andrew Stephenson and Renee Bowen will be attending the Transportation Megaconference in New Orleans, LA from March 22-23.

Bert Randall will be presenting at Captive Resources, CGI Captive in St. Louis, MO on April 9.

Sarah Lemmert will be presenting at Captive Resources, NCI Captive in Salt Lake City, UT on April 11.

Andrew Stephenson and Renee Bowen will be presenting at the Trucking Claims Boot Camps in Dallas, TX, Denver, CO, Chicago, IL, Atlanta, GA, Orlando, FL,  Morrisville, NJ, and London, England from April 3 – July 1.

 

F&P Case Spotlight: F&P Secures Defense Verdict in Prince George’s County MV Liability Trial

/in /by F&P Case Spotlight: F&P Secures Defense Verdict in Prince George’s County MV Liability Trial

F&P attorney Imoh Akpan recently obtained a defense verdict following a jury trial in the case Simpson, Cheree v. Butch Lewis Truck Company in the Circuit Court for Prince George’s County. The case arose out of a February 26, 2016 motor vehicle accident that occurred in a traffic circle in Washington, D.C. The Plaintiff, Cheree Simpson (“Plaintiff”), sought damages for injuries she allegedly sustained when Defendant Butch Lewis Truck Company’s driver struck Plaintiff’s vehicle while both were maneuvering through the traffic circle. There was no evidence that the Defendant’s vehicle made contact with the body of Plaintiff’s vehicle; the minimal property damage (totaling less than $1,000) was limited to the passenger side mirror of her vehicle.  Although she did not report any injuries at the scene, Plaintiff sought medical treatment, beginning eight (8) days after the accident, alleging to have suffered injuries to her lower back. Plaintiff sought damages at trial for past medical expenses, past lost wages, and pain and suffering.

At trial, Mr. Akpan was able to show through effective cross-examination of Plaintiff and her medical experts that Plaintiff’s claimed injuries were unrelated to the subject accident. Mr. Akpan effectively highlighted the minimal property damage to Plaintiff’s vehicle, the low-impact nature if the accident, Plaintiff’s eight (8) day delay in seeking medical treatment, Plaintiff’s report of no injuries on the scene, and Plaintiff’s medical expert’s lack of knowledge of Plaintiff’s medical history, significantly undermining the expert’s causation opinion, to obtain a favorable result.

Following the close of evidence and closing arguments, the jury returned its verdict in favor of Defendant, finding Defendant was negligent in the operation of his vehicle, causing the subject accident, but that Defendant’s  negligence was not a proximate cause of Plaintiff’s claimed injuries.