F&P Workers’ Comp Team Spotlight – John K. Archibald and Jamere T. Gainers

/in /by F&P Workers’ Comp Team Spotlight – John K. Archibald and Jamere T. Gainers

John Archibald joined Franklin & Prokopik in 2012. He focuses his practice in workers’ compensation defense, employers’ liability, and commercial law.

John attended Fordham University and graduated in 2007 with a Bachelor of Arts in philosophy. While attending college, John was part of the debate team, where he honed his oral argument skills. He also played intramural tennis and picked up running as a hobby.

After graduating from Fordham, John attended law school at the University of Maryland School of Law. While attending law school, John participated in a legal clinic where he did work for the National Association of the Deaf. His work focused primarily on possible violations of the Americans with Disabilities Act. He found this work extremely rewarding, and also eye-opening. While working for this clinic, John gained first-hand knowledge about the struggles that people with disabilities face with equal access to everyday activities that we take for granted.

After graduating from law school, John served as a law clerk for the District Court of Maryland in Baltimore County from 2010 through 2012. While working in this position, John worked for thirteen different judges, and gained practical experience in a variety of different practice areas including landlord/tenant, domestic violence, criminal law, contract law, and auto torts.

In addition to his case work working for Franklin & Prokopik, John is also a member of the Maryland Defense Counsel Workers’ Compensation Section. John also speaks at seminars on issues involving commercial litigation and employers’ liability. In addition to speaking on these topics, he also writes articles for the Business Law and Workers’ Compensation Newsletters covering new legal developments in these areas of practice.

John is just as active in his personal life as in his professional life. He is a member of his neighborhood Board of Directors for the HOA and is an avid runner (he is looking to participate in the Boston Marathon for the second time next spring). John also enjoys traveling and playing the guitar.

Jamere Gainers joined Franklin & Prokopik as a paralegal in 2016. Her work is focused in the area of workers’ compensation defense.

Prior to joining Franklin & Prokopik, Jamere attended Frostburg University from 2006 through 2010, where she majored in Political Science and Criminal Justice. In her last year, Jamere made the decision to work in the legal field and began an internship with a law firm that specialized in bankruptcy and foreclosure. Jamere displayed an aptitude for legal work and, upon completion of her internship and graduation from college, she was hired by a law firm specializing in representing foster care children in Baltimore City and Montgomery County. Jamere continued to work with this law firm from 2010 through 2016, when she was hired by F&P.

In her free time, Jamere enjoys spending time with her family and cooking. Although she rarely watches television or movies at home, she is an avid fan of going to the movie theater.

F&P Case Spotlight: Jury Returns Favorable Defense Verdict at Recent F&P Trial

/in /by F&P Case Spotlight: Jury Returns Favorable Defense Verdict at Recent F&P Trial

After a six day trial and ten hour jury deliberation, F&P attorneys Imoh Akpan and Renee Bowen recently secured a defense verdict in the United States District Court for the District of Maryland in the case of Gardner v. Demby.  The case arose out of a motor vehicle accident involving a commercial vehicle and involved significant injuries to the Plaintiff, Robert Glad (“Plaintiff”), including a fractured hip, neck and back injuries, and traumatic brain injury.

The facts of the accident are as follows: on a clear afternoon in April of 2013, Plaintiff was driving his vehicle on Route 301 in Maryland with a passenger in the front passenger seat.  At the same time, a dump truck, operated by the Defendant, Markeith Doron Demby (“Defendant”) was driving in the same direction after making a “J” turn in a designated turn-around area of the highway.  After Defendant had made his turn and was traveling in the same direction as the Plaintiff, the Plaintiff struck the Defendant’s vehicle in the rear while traveling at 62 mph.

At trial, there was no dispute as to the Plaintiff’s injuries; liability was the only issue. Plaintiff alleged that Defendant had made an improper “J” turn, violating Plaintiff’s right of way and causing the accident. Through the effective and strategic presentation of evidence, Defendants were able to show that Plaintiff had sufficient time to see Defendant’s vehicle and react, had failed to apply his brakes or take any evasive action, and argued that Plaintiff had fallen asleep behind the wheel, thus causing the accident.

Ultimately, while the jury found the Defendant negligent, the jury also found Plaintiff negligent. The jury therefore issued a defense verdict in favor of Defendant and no damages were awarded.

Delaware’s Revitalized Rule 16.1 Returns, Requiring Mandatory Non-Binding Arbitration at Election of Plaintiffs’ Counsel

/in /by Delaware’s Revitalized Rule 16.1 Returns, Requiring Mandatory Non-Binding Arbitration at Election of Plaintiffs’ Counsel

In 2008, Delaware abolished Rule 16.1 of the Superior Court Rules of Civil Procedure, which provided an avenue for mandatory non-binding arbitration (“MNA”) for select civil cases that fell below a perceived value threshold of $100,000. The repeal date was effective March 3, 2008, and, for the past ten years, Superior Court practitioners typically proceeded to alternative dispute resolution (“ADR”) based on the terms of a trial scheduling order governing each particular action.

Just shy of ten years later, a committee with members from both sides of the bench and bar collaborated to revive Rule 16.1, and the new iteration of MNA effectively made its debut on January 1, 2018. Albeit similar to the past version of the Rule, the revived Rule 16.1 provides a relatively new framework for proceeding to mandatory non-binding arbitration within the Superior Court. Under Rule 16.1, MNA is available for those civil cases where (1) trial is available; (2) monetary damages are sought; (3) any nonmonetary claims are nominal; and (4) counsel for the claimant elects MNA on the civil case information sheet at the inception of the litigation.

In addition to the preliminary qualifications for the utilization of the Rule, it also provides for relatively strict filing requirements in order for a party to avail itself of MNA. Within five days of the filing of the defendant’s Entry of Appearance, the plaintiff must serve all Rule 3(h) medical records and accompanying reports on the defendant. Within five days of the filing of the Answer to the Complaint, the plaintiff must provide a HIPPA-compliant medical authorization, as well as provide all expert reports in existence at the time of the filing of the Complaint. Within 20 days of the close of initial pleadings, the Rule requires the parties to meet and confer to select an arbitrator. In the event an arbitrator is not selected within the prescribed 20-day time frame, the parties are not permitted to utilize Rule 16.1 MNA.

Other provisions of the Rule include the requirement that arbitration testimony must be under oath unless waived by the parties. Additionally, the arbitrator must file his or her written order within five days of the hearing. Following the filing of such order, either party is permitted 20 days to file a written demand for a trial de novo. The effect of such a filing essentially brings the case back to the same position as if MNA had not been elected; however, testimony from the MNA hearing may be utilized as if it were deposition testimony taken under oath. In the event the party requesting the trial de novo fails to obtain a verdict or judgment more favorable than the outcome of arbitration, that party shall be assessed the costs of arbitration in addition to the arbitrator’s total compensation. If the verdict is for the defense, defense costs may be assessed, whereas a plaintiff’s verdict would permit the assessment of interest on the judgment.

While the revitalized Rule 16.1 might prove to be a good vehicle to more quickly resolve relatively minor cases prior to the incurrence of more significant litigation costs, potential pitfalls remain. Rule 16.1 may be applied to cases where expert testimony is essential, but not required by the Rule, therefore resulting in a potentially superfluous step for cases that would most likely be returned to the court for a standard trial scheduling order on a request for a trial de novo. As the most recent iteration of the Rule only recently went into effect, the pitfalls and positives of the use of MNA will likely be forthcoming as more plaintiffs elect to proceed under Rule 16.1.

For more information about this article, please contact Noelle B. Torrice at 302.594.9780.

Landlord’s Liability for Tenant’s Dogs: Control is Key

/in /by Landlord’s Liability for Tenant’s Dogs: Control is Key

For the most part, it is relatively well known that dog owners are liable for injuries resulting from their own dog’s aggressive behavior. However, to what extent landlords are liable for their tenants’ dogs’ assaults on guests may not be considered.  Most states have clearly defined laws, and in Maryland, the element of control plays a key role in analyzing these types of cases.

The controlling case on this issue is Andrew Ward v. Stephen A. Hartley, et al., 168 Md. App. 209 (2006). Andrew Ward was bit by a dog owned by Maconio Alston while Ward was on a premises rented by Alston from Stephen A. Hartley and his wife. Ward brought negligence and strict liability claims against the Hartleys and the Alstons in Baltimore City Circuit Court. The Hartleys filed a motion for summary judgment, which was granted by the Court. Ward filed a timely appeal.

In considering Ward’s appeal, the Maryland Court of Appeals reviewed the lease between Stephen Hartley and the Alstons, the police report concerning the incident, discovery answers filed by Ward and Hartley, and excerpts from the depositions of Ward, the Alstons, and Stephen Hartley. The Court ultimately found in the landlord’s favor, however, it is important to note the three-part test the Court used to determine whether landlords should be liable for their tenants’ dogs’ attacks:

            1) The landlord controlled the dangerous or defective condition.

            2) The landlord had knowledge or should have had knowledge of the potential danger.

            3) The harm suffered was a foreseeable result of that condition.

Many landlords think that they can avoid this precarious situation by placing “no pet” clauses in their leases. However, these provisions do not actually absolve them from responsibility.  In most situations, each new provision that landlords place in the lease increases their own obligation to control that premises. A “no pet” clause opens the door to the landlord being able to terminate the lease upon discovery of the animal. By including this language, landlords allow themselves to be in a position to rectify the potentially dangerous condition.

That being said, even if a landlord knew of a dog’s improper existence on the property, he/she would still have to be made aware of the dog’s propensity for aggression. The landlord would need to have either actual or constructive notice that the dog had caused harm or had exhibited warning signs of vicious behavior. Lack of knowledge is the strongest premises liability defense in these cases, but this does not mean that a landlord should bury his head in the sand when he hears that Apt. 2B’s schnauzer almost attacked old Mrs. Grady.

Some advice for landlords moving forward: keep your premises reasonably safe and be aware of your tenant’s pets and their behavior.

For more information about this article, please contact Molly K. Evans at 410.230.3631.

Wild and Wonderful Sports Wagering: What it Means from a Liability Perspective for West Virginia Casinos

/in /by Wild and Wonderful Sports Wagering: What it Means from a Liability Perspective for West Virginia Casinos

With the recent passage and enactment of West Virginia Senate Bill 415, as well as the United States’ Supreme Court’s recent decision overturning the Professional and Amateur Sports Protection Act, sports wagering is coming to the Mountain State. There has been much discussion on the issue, but ultimately, the West Virginia legislature opted to provide the citizens of the State with the opportunity to place bets on certain sporting events. Much of the discussion has been centered on whether opportunity will be detrimental or beneficial to the citizens. Other discussions have taken place regarding whether or not sports wagering will provide enough money to the state to compensate for the potential detrimental impact on the citizens. However, one area that has not been discussed is the potential liability for casinos to guard against the specter of compulsive gambling claims.

The West Virginia Supreme Court of Appeals decision in Stevens v. MTR Gaming Grp., Inc., 237 W. Va. 531, 788 S.E.2d 59 (2016) provides substantial guidance on the issue of whether a lawsuit for compulsive sports wagering and gambling would stand. Mr. Stevens, a frequent customer at MTR’s casino in Chester, West Virginia, had committed suicide after he embezzled money from his company and exhausted all family funds to feed his gambling addiction. His wife, Ms. Stevens, acting in her capacity as personal representative of Mr. Stevens estate, brought action against the casino where her husband had frequented and the makers of slot machines and video terminals for negligence, premises liability, products liability, intentional infliction of emotional distress, and wrongful death.

The Stevens case stemmed from a certified question from the United States District Court for the Northern District of West Virginia, which asked:[1]

[w]hat duty of care exists as to each defendant given the allegation that the slot machines or video lottery terminals are designed through the use of mathematical programs to create the illusion of chance while instead fostering a disassociated mental state, to protect casino patrons from becoming addicted to gambling by using these machines or terminals

Id. at 534, 62. The Court began its analysis by first explaining what creates the existence of a duty. The Court found that the West Virginia legislature’s “deliberate and detailed proclamation of public policy through” the legalization of video lottery terminals and slot machines created a “clear legislative intent to foreclose judicial interference” with the operation of such in the State. Id. at 535, 63. Specifically, the Court reached four conclusions regarding West Virginia statutory and regulatory scheme governing lottery terminals: (1) The machines exist in West Virginia for the express purpose to create an economic boon; (2) The State thoroughly integrated itself into the provision and operation of the machines in a macro and micro sense that it cannot be divorced from the licensees and suppliers; (3) The societal costs of permitting gambling on the video lottery terminals was clearly weighed by the legislature; and (4) An administrative scheme was developed to assist compulsive gamblers with a protocol that created an “exclusion list” in which either the individual with a compulsive gambling disorder or the Director of the Lottery Commission (for specifically stated reasons) may exclude individuals of the opportunity to gamble. Id. 537-38, 65-66. Thus, because of the heavy regulation provided by the West Virginia legislature, the Court found that

[n]o duty of care under West Virginia law exists on the part of manufacturers of video lottery terminals, or the casinos in which the terminals are located, to protect users from compulsively gambling, … an action in negligence against the manufacturer or the casino may not be maintained for damages sustained by a user of the terminals as a result of his or her gambling.

Id. at 538, 66.

Based on the Stevens decision, it seems relatively clear that there is not duty on casinos to protect against compulsive gambling. However, Senate Bill 415 expressly allows for wagering at casinos as well as on any mobile application or other digital platforms that are approved by the West Virginia Lottery Commission. LOTTERY SPORTS WAGERING ACT, 2018 West Virginia Laws S.B. 415. Thus, this mode of wagering creates a very important and noticeable distinction that was not dealt with in Stevens: namely, the act of gambling through a casino while not having to present in-person at the casino. Thus, the “exclusion list” factor in the Stevens decision will be more difficult to successfully implement because if patrons do not have to present in-person at the casino, they would not be checked against the exclusion list and be properly turned away should they be on the exclusion list. Although a mobile app could very well have safeguards to prevent persons from accessing the app to place the bets, one can see how creating fictitious accounts with the intent to evade the exclusion list is a very real possibility.

In conclusion, it appears that the Stevens decision will shed much light on any dispute as to whether a casino should be liable for allowing compulsive gamblers to continue placing sports wagers. However, if liability issues do become pervasive because of the “success” of sports wagering in West Virginia, it is not unthinkable that the West Virginia legislature will come to the rescue of the casinos and others tied to the business of sports wagering. Such steps were taken in the 1980s with the passage of the West Virginia Skiing Responsibility Act (W. Va. Code § 20-3A-1, et seq.) and the Whitewater Responsibility Act (W. Va. Code § 20-3B-1, et seq.), both of which were enacted for the purpose of protecting the contributions that the sports had on the economy of West Virginia.

For more information about this article, please contact Landon s. Moyer at 304.596.2277.

[1] Three questions were ultimately certified and docketed for oral argument. However, the Court did not answer the second and third questions due to its ruling on the first certified question.

Virginia Contracts: Owner as Third-Party Beneficiary

/in /by Virginia Contracts: Owner as Third-Party Beneficiary

The potential for a third-party claim exists in almost any contractual agreement because any time two parties contract, some third party will usually be affected by the performance or breach of the agreement. Third-party beneficiary rights can be, and often are, used to enforce the contract or to pursue remedies for wrongful conduct arising from the contract.

In Virginia, the right to sue as a third-party beneficiary is governed by Code of Virginia § 55-22, which provides, in relevant part, that:

(I)f a covenant or promise be made for the benefit, in whole or in part, of a person with whom it is not made, or with whom it is made jointly with others, such person, whether named in the instrument or not, may maintain in his own name any action thereon which he might maintain in case it had been made with him only and the consideration had moved from him to the party making such covenant or promise. * * *

For example, a property owner can sue a subcontractor as third-party beneficiary of the contract between the general contractor and the subcontractor, if the owner can show that the “parties to the contract clearly and definitely intended to confer a benefit on him. Valley Landscape Co. v. Rolland, 218 Va. 257, 237 S.E.2d 120 (1977). However, “it must be shown that the contract was intended at least in part to benefit the non-contracting party.” Valley Landscape Co., 218 Va. 257 at 259, 237 S.E.2d 120 at 122. A party who is merely an incidental beneficiary to a contract may not sue on it. Richmond Shopping Ctr., Inc. v. Wiley N. Jackson Co., 220 Va. 135, 255 S.E.2d 518 (1979).

Virginia third-party beneficiary claims have also arisen in the following contexts:

  • Where a homeowner’s warranty insurance policy was issued to builder, the purchaser was found to be an intended beneficiary under the contract. See Cobert v. Home Owners Warranty Corp., 239 Va. 460, 391 S.E.2d 263 (1989).
  • In a suit for non-delivery of goods by a carrier, the purchaser was third-party beneficiary entitled to bring suit. See Sydnor & Hundley v. Wilson Trucking, 213 Va. 704, 194 S.E.2d 733 (1973).
  • A judgment creditor who sued an insurance company as a third-party beneficiary was found to have rights no greater than those of the insured under the policy—which was effectively cancelled before the date the judgment creditor’s vehicle was damaged. See Ampy v. Metropolitan Cas. Ins. Co., 200 Va. 396, 105 S.E.2d 839 (1958).

For more information regarding defending a third-party beneficiary claim in any of these or other contexts, please contact Elena G. Patarinski in our Richmond, Virginia office at 804.932.1996.

Increased Congestion at the Ports Leads to Problems for the Trucking Industry

/in /by Increased Congestion at the Ports Leads to Problems for the Trucking Industry

With an estimated ninety percent (90%) of global trade carried by sea, coupled with increased demand, worldwide congestion at ports has created significant problems for the trucking industry as motor carriers and port personnel continue to struggle with how to combat increasing turn times. “Turn time” is the time required to complete an activity cycle, which is the time a truck takes to make a trip to the port, to a customer location, and back to the home yard. Historically, truck turn time received little attention from terminal operators because port congestion was never a barrier to their operations. However, the surge and explosive growth in containerized trade has led to increasing problems with congestion, requiring terminals to develop new ways to accommodate the high truck traffic. The rapid growth in cargo volume has also led to serious concerns such as port capacity limits, traffic congestions, pollution, and overall health and reliability of the international supply chain.

The trucking industry in particular has been hit hard by the increasing port congestion. Due to the congestion, drivers routinely sit at the ports waiting for their load for hours at a time. With drivers now spending more time at the port, frustration among drivers is mounting, as drivers are unable to complete the number of trips necessary to earn their living. This frustration will ultimately lead to drivers leaving the industry. In a time where qualified drivers are in high demand, driver retention is a serious concern for motor carriers. Continued inefficiencies at the port and the inability to decrease turn times further complicates the already widespread issues related to the driver shortage.

Severe problems are created at ports when drivers can’t move through terminals effectively. The increase in turn times is, in part, due to a high volume of containers passing through the ports, but is exacerbated by inefficiencies at the ports themselves as the ports struggle to find ways to keep up with increasing container volumes. In an effort to increase efficiency and decrease congestion to reduce turn times, ports across the country are working to implement new systems and procedures.

The Port of Baltimore is no exception. The Maryland Port Administration released a press release on June 11, 2018 indicating that the Port of Baltimore handled 156,991 containers in the first quarter of 2018 alone, an increase of 14% when compared to the first quarter of 2017. This is the most cargo the Port has handled in the Port’s 312 year existence. According to the press release, the Port of Baltimore also handled 1,000,571 Twenty-foot Equivalent Units (TEU) during the 12 month period ending April 30, 2018; the first time the Port of Baltimore has exceeded 1,000,000 TEUs in any 12-month period during its existence. With record-breaking amounts of cargo passing through the Port of Baltimore, it is no surprise that the Port, like other ports around the country, is struggling to find solutions to cope with the increased volume and congestion.

The Seagirt Marine Terminal in Baltimore is experiencing some of the worst issues with congestion and increased turn times. In an attempt to combat the issues and the increasing frustration on the part of intermodal motor carriers and drivers alike, the Seagirt Marine terminal has taken numerous actions. The terminal has announced the implementation of a new web portal that allows drivers, freight forwarders, agents, brokers, and motor carriers to quickly check the status of cargo and transactions. The web portal also gives the option of having alert notifications sent directly to a user’s email address or mobile number when there is an update on the status of cargo. Additionally, the Seagirt Marine Terminal has relocated its chassis depot off site (but in close proximity) in an attempt to cut down on congestion. In January 2018, the Port of Baltimore also purchased 6 new cranes for the Seagirt Marine Terminal in an attempt to alleviate congestion and decrease turn times. While this appears to be a step in the right direction, not all of the cranes were immediately put into use and not all of them have been consistently operating at one time.

Overall, port turn times have been slowing due to congestion, high volume and demand, and overall inefficiencies spent in waiting for loading and unloading of cargo due to capacity limits. Port personnel and motor carriers are struggling to find ways to address the issues. Regular meetings between port and terminal officials and motor carriers are critical in helping to identify inefficiencies within the ports and strategies for addressing them. While many of the strategies for combatting increased turn times are now based on trial and error, studies are being conducted to help formulate and facilitate improved policies to combat slow turn times, and technological developments such as web interface applications and GPS monitoring may help to increase efficiency.

Overall, port turn times have been slowing due to congestion, high volume and demand, and overall inefficiencies spent in waiting for loading and unloading of cargo due to capacity limits. Port personnel and motor carriers are struggling to find ways to address the issues. Regular meetings between port and terminal officials and motor carriers are critical in helping to identify inefficiencies within the ports and strategies for addressing them. While many of the strategies for combatting increased turn times are now based on trial and error, studies are being conducted to help formulate and facilitate improved policies to combat slow turn times, and technological developments such as web interface applications and GPS monitoring may help to increase efficiency.

For more information about this article, please contact Renee Bowen at 410.230.3943.

Statutory Cap on Non-Economic Damages Applies to Intentional Torts: Rodriguez v. Cooper

/in /by Statutory Cap on Non-Economic Damages Applies to Intentional Torts: Rodriguez v. Cooper

Courts in Maryland apply a cap on awards of non-economic damages in tort actions. This cap is set pursuant to a statute and is determined based on the date of loss giving rise to the lawsuit. In Rodriguez v. Cooper, the Court of Appeals of Maryland had occasion to address the limits of this cap on non-economic damages, explicitly holding for the first time that the statutory cap on non-economic damages applies to intentional torts and gross negligence.

 In Rodriguez, an inmate was murdered by a fellow inmate in transit to another facility. The murder took place in the presence of two other inmates and five correctional officers, including Sgt. Larry Cooper. The inmate’s estate and parents brought suit in the Circuit Court of Baltimore City, alleging various state and federal claims against the State, several officials of the Department of Public Safety and Correctional Services, and the five correctional officers. The plaintiffs obtained a judgment against the State and Sgt. Cooper, finding that Sgt. Cooper was grossly negligent. The Circuit Court limited the judgment against Sgt. Cooper pursuant to the cap on non-economic damages. Following an appeal process, the issue of the cap’s application to gross negligence was presented to the Maryland Court of Appeals for consideration.

The Court rejected the plaintiffs’ argument that the statutory cap did not apply to intentional torts. The Court initially questioned the plaintiffs’ premise that “grossly negligent” conduct qualified as “intentional tort.” Yet, even accepting that premise, the Court looked to the entire statutory text and found that the statutory cap applies “[i]n any action for damages for personal injury or wrongful death.” The Court noted that nothing in the statutory text “limits the purview of the statute with respect to judgments arising from intentional actions or gross negligence.” The Court further examined the legislative history behind the enactment of the statute finding the cap applies to any “action for damages for personal injury or wrongful death.”

This is an important decision for the insurance industry and defense bar for handling claims involving intentional torts and gross negligence. While clarifying the outer limits of a relevant statute, it also provides certainty in addressing potential exposure and verdict ranges in all tort cases.

For more information about this article, please contact Thomas Morris at 410.230.3575.

Imputed Contributory Negligence: Seaborne-Worsley v. Mintiens

/in /by Imputed Contributory Negligence: Seaborne-Worsley v. Mintiens

Maryland is in the minority of states which apply the legal doctrine of contributory negligence. Under this standard, when a plaintiff’s failure to exercise ordinary care is a proximate cause of the plaintiff’s injuries in any way, the plaintiff is barred from recovery, regardless of whether the defendant’s negligence was also a proximate cause of the plaintiff’s injuries. A recent decision handed down by the highest court in Maryland significantly alters the manner in which a defendant can utilize this defense through a reformation of the doctrine of imputed negligence.

In Seaborne-Worsley v. Mintiens, the Court of Appeals of Maryland examined the doctrine of imputed negligence. In that case, the owner-passenger Plaintiff filed suit against the defendant for bodily injuries sustained in an automobile collision in a parking lot. The plaintiff was a passenger in the vehicle that she owned which was driven by her husband. Plaintiff’s husband had not parked the vehicle in a spot, instead parking it behind, and perpendicular to, the defendant’s vehicle. Defendant’s vehicle backed out and the collision took place. At trial, the defendant argued that the plaintiff’s husband was contributorily negligent, and as such, said negligence should be imputed to the plaintiff. The court ultimately agreed and entered judgment in favor of the defendant. Following the appeal process, the case was heard by the Court of Appeals of Maryland.

Under the classic formulation of the doctrine of imputed negligence, when the owner of a vehicle is a passenger in that vehicle and allows another person to drive, any negligence of the operator of the vehicle may be attributed to the owner. The doctrine is based on the presumption that the owner, although not at the wheel, is in control of the vehicle, or at least has the right to exert control.

The Court of Appeals of Maryland in Seaborne-Worsley considered whether, assuming the plaintiff’s husband was in fact negligent, whether said negligence could be imputed to the plaintiff. The Court of Appeals ultimately held that said negligence could not be imputed to the plaintiff. The Court stated that the original purpose of the doctrine of imputed negligence was “to extend liability to the owner of this marvel of modern technology was seen as necessary for ensuring compensation for an injured innocent party and for spreading risk.” The Court argued against the application of the doctrine in modern day legal matters stating “the doctrine of imputed negligence, created out of a ‘felt necessity’ for compensating innocent victims of automobile accidents, has lost much of its reason for being while weaknesses in its theoretical foundation have been exposed.”

Therefore, the Court stated it “will no longer indulge a presumption that an owner-passenger who was injured in an automobile accident had operational control over a permissive driver of the vehicle and is therefore responsible for any negligence of the driver.” As such, the Court affirmatively held the doctrine of imputed negligence does not apply to deem an owner-passenger of a motor vehicle contributorily negligent based on the negligence of a permissive driver of the owner-passenger’s vehicle and bar the owner-passenger from recovering compensation from a negligent third party.

Ultimately, this case highlights the potential issues in litigating cases where the plaintiff is a passenger in their own vehicle which is involved in an accident. Based on this ruling, gone are the days that a defendant cannot rely on the presumption that the contributory negligence of a permissive drive is imputed to an owner-passenger injured in an accident. As such, this presents defendants to potential exposure for an owner-passenger where such exposure may not have existed in the past.

For more information about this article, please contact Patrick Wachter at 410.230.3633.

Recent Developments in Trucking Regulations: ELD and Rest-Break Requirements

/in /by Recent Developments in Trucking Regulations: ELD and Rest-Break Requirements

The Federal Motor Carrier Safety Administration (FMCSA) promulgated regulations that require all motor carriers and commercial trucking companies to include Electronic Logging Devices (“ELD”) on their vehicles (“ELD Mandate”). These ELDs are designed to monitor drivers’ hours of service and report that information in real time. The ELD Mandate went into effect on December 18, 2017. There are few exemptions to commercial drivers required to use the ELDs under the ELD Mandate. The cost of implementation and compliance in installing, monitoring, and maintaining these devices could cause undue hardship on smaller commercial carriers.

On May 23, 2018, Representatives Collin Peterson (D-MN), Greg Gianforte (R-MT), and Steve King (R-IA) introduced House Resolution 5948, the “Small Carrier Electronic Logging Device Exemption Act of 2018” (“the Act”). The Act would exempt commercial carriers that “own or operate[] 10 or fewer commercial motor vehicles” from the ELD Mandate. The Act has been referred to the House Sub-Committee on Highways and Transit for assessment and potential hearings.

In the meantime, the FMCSA published a notice in the Federal Register on June 5, 2018, requesting public comment on a potential regulation amendment that would exempt motor carriers with “fewer than 50 employees” from the ELD requirements. The notice from FMCSA confirmed that the small business carriers would remain subject to the hours-of-service regulations and requirements that the drivers maintain paper records of their operation.

Both of these measures are still in their infancy as the public comment phase precedes the ultimate evaluation and decision phase by the FMCSA. Similarly, the Act would likely need a favorable recommendation from the House sub-committee; a favorable vote on the floor of the House of Representatives; and favorable votes in the U.S. Senate.

While the ELD Mandate is designed, in part, to assist in monitoring compliance with the FMCSA’s hours of service requirements, the FMCSA has recently somewhat eased restrictions on commercial carriers of certain petroleum products. National Tank Truck Carriers, Inc., and the Massachusetts Motor Transport Association, Inc., petitioned the FMCSA for an exemption of certain petroleum transporters from the required 30-minute rest break requirement within the first eight hours of operation of the vehicle. The petitioners argued that petroleum carriers are often stopped to deliver product, and during those stops, they are often required to be next to the vehicle for safety requirements. While near the vehicle during an unload, the drivers are not designated as “off duty” under the hours of service requirements. FMCSA determined that these frequent breaks to unload product achieve the same goals as the 30-minute rest break, and exempted carriers of certain petroleum products from the 30-minute rest break requirement. The remainder of the hours of service requirements remain in place, specifically, the limit on 14-hour “duty day” covering most drivers.

Franklin & Prokopik attorneys regularly defend and represent commercial carriers and trucking clients in all aspects of litigation and regulation compliance. For more information regarding this article, please contact Justin Tepe at jtepe@fandpnet.com.