Employer NOT Vicariously Liable for Employee Actions

Suppose you have a scenario where an employee injures a patron under circumstances  in which:

1. the employee's shift had ended and she had clocked out.

2. the employee's boyfriend came to pick her up, but he gets into a fight with a patron

3. heated words are exchanged and then, without sufficient provocation, the much larger patron slaps the smart-aleck boyfriend  in the face knocking him to the ground.

4. the employee, who had clocked out and her shift was over, involved herself briefly in the fracas only to try to protect her much smaller boyfriend from a beating at the hands of the much larger, much more aggressive patron.

5. It should be noted that the employee was 4' 9" and weighed 115 pounds at the time of the incident.

Was this employee in the course and scope of employment ?

DETERMINATION OF COURSE AND SCOPE

In 2005, an employee of the Walmart in Bossier City was involved in a car crash in the parking lot of the store. The employee had just clocked out and was leaving to go home.  The trial court awarded a significant amount of damages and determined that even though the employee had clocked out ‘‘there is a reasonable period while an employee remains on the employer’s premises which is regarded as within the course and scope of employment.’’

The Appellate Court acknowledged that an employer is liable for a tort committed by its employee if, at the time, the employee was acting within the course and scope of her employment. The Court explained, however, that there is a "course and scope employment test" which is applicable to determining whether employer is liable for tort committed by its employee. The test refers to time and place, and scope of employment and refers to the employment-related risk of injury.

 

For the employer to be vicariously liable for an employee’s conduct, the employee’s tortious conduct must be so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.

In the instant matter, it cannot be argued that rescuing her boyfriend from a beating in the parking lot is related to the employee's duties. She was off the clock and on a purely personal mission. The employer cannot be liable for her actions. Fortunately, even IF the employer had been on the clock, if her actions were purely personal, the employer would NOT be vicariously liable.

Merry Christmas 2011

From all of us at firm, we wish you ALL a very Merry Christmas!

Front:

Chris Baker, Mark Perkins

Back Row:

Susie Master, Kelli McNaughton, Amanda Conant, Tiffany Peters-Lewis, Tara Hoffman, Rosalyn Hall

Surge of 18-wheeler Accidents in Northwest Louisiana

As you know, most of my practice is devoted to representing trucking companies involved in accidents. Although most accidents happen in South Louisiana along Interstate 10 between Houston, Texas and Mississippi, there are still a number of accidents occurring in North Louisiana along the I-20 corridor on the northern part of the state and along I-49 which runs north-south on the west side of the state.

In the last few two weeks, the following incidents have occurred just in parishes of Caddo, Bossier and Webster parishes:

Accident A:

A woman is seriously injured following a wreck late Wednesday (December 14, 2011) night on I-220 in Bossier city, and the driver of the car police originally were told she was driving has been cited.

The crash happened at about 11 p.m. Wednesday night on I-220 at Benton Road involving a car and an 18-wheeler as they were both traveling westbound. An investigation indicates the car, a 2000 Ford Taurus, cut in front of the 18-wheeler and made contact with the rig's front bumper. That caused the car to spin and strike the inside guardrail of the Benton Road overpass. A passenger in the Taurus, 27-year old Victoria Gillins of Shreveport, was ejected from the car and sustained what appeared to be life threatening injuries. Her 3-year year old son, Loyal Gillins, was also injured as was the driver, 29-year old Jim Ware of Shreveport.

All three occupants of the car were taken to LSU Hospital by Bossier City Fire Department personnel. None were wearing safety restraints.

The driver of the 18-wheeler was not injured. Ware initially told police that Victoria Gillins was driving the car at the time of the crash but later confessed that he was actually behind the wheel.

Accident B:

The eastbound on ramp to I-20 from I-220 is closed due to a single vehicle rollover crash involving an 18 wheeler with a full load of apples.

Eastbound traffic on I-220 is now being temporarily detoured onto Highway 80 to accommodate the wrecker crews while they work to upright and haul off the 18-wheeler.

According to Bossier City Public Information Officer Mark Natale, the driver lost control of his rig as he was traveling on the ramp resulting in his load shifting, causing the rig to rollover onto its side.

The driver was shaken up but not injured. A heavy duty wrecker has been dispatched to the scene to upright the rig and haul it away.

The load of apples did not spill as a result of the crash.

Accident C:

I-20 westbound in Webster Parish will be closed for the next few hours as crews clean up an accident involving an 18-wheeler.

The wreck happened about 7:00 a.m. Monday morning (December 11, 2011). Louisiana State Police say the truck driver somehow lost control of the semi, flipping it over onto its side. The truck spilled its load of rubber products, which crews are working to clean up. At the moment, I-20 at the Dixie Inn exit (exit 44) is closed. Drivers are being diverted at the Dixie Inn exit to Highway 80.

Accident D:

Two Halliburton 18 wheelers collided on Tuesday, November 29, 2011 in a chain-reaction semi truck accident in Bossier City, LA.

Accidents E and F:

Over the weekend of December 10, 2011, Two separate 18-wheeler accidents on Interstate 20 over the weekend claimed two lives. One of the victims was a four-month-old infant.

The crash on Sunday happened about three o'clock on Interstate 20 eastbound in Bossier Parish just past the I-220 exchange. That accident killed a female driver and sent her passenger to LSU Hospital with critical injuries. Sgt. Joseph Mondello with the Louisiana State Police said, "The tractor-trailer driver did not see the traffic stop and ran into the rear of a Ford Taurus and the driver was killed on the scene."

"It's a really tragic day here on I-20. it's supposed to be a festive time of year, but this is anything but." That was the response from Shreveport Police Spokeswoman Kacee Hargrave said about the first accident on Saturday. In that crash, a Lincoln had slowed down on the interstate in the westbound lane near the Hearne Avenue Exit because of construction. An 18-wheeler driven by Milton Dawkins hit the back of the Lincoln, killing the four-month-old baby boy and putting his mother, 26-year-old Claudia Salley to LSU. She remains in critical condition as of Sunday night.

How to Avoid Being Involved in an 18-wheeler accident:

Unfortunately, many people assume that big-rigs can maneuver as quickly and as easily as a passenger vehicle. That is simply not true and you must give the rigs room to maneuver.

A Complicated, Egg-Head, Politically Incorrect Argument to Apply Mexican Law to Derivative Claims Arising from Accident In the United States

The derivative loss of consortium claims arose  from an occurrence that took place in Louisiana when Florencio, Evangelio, Samuel, and Alfredo  were involved in a motor vehicle accident on Interstate 49 when their 1996 Dodge 1500 pick-up truck rear-ended a 1996 International tractor-trailer driven by John.

At all pertinent times, John  was an agent acting within the scope of his authority with D.T., L.L.C.

Florencio, Evangelio, Samuel, and Alfredo were in America illegally. Alfredo died as a result of the accident. Should Alfredo's family, who had never been to the United States, benefit from the state laws of consortium?

The Louisiana Supreme Court defined the elements of damage for a wrongful death action in Hill v. Shelter Mutual Insurance Company. The Supreme Court stated, "The elements of damage for a wrongful death action are loss of love, affection, companionship, services, support, medical expenses and funeral expenses. Additionally, the courts have allowed damages in wrongful death actions for mental pain, suffering, and distress resulting from the death of the victim."

The laws of Mexico would allow the five wrongful death beneficiaries and the thirteen personal injury beneficiaries in this case more limited recovery.

Mexican law expert,  Roberto Calvo Ponton,  asserts that, under Mexican law, the Plaintiffs would have a strict liability claim which allows recovery of compensatory damages up to certain amounts ("caps") fixed in Mexican Federal Labor Law.

Pursuant to Article 1773 of the [Michoacan] Civil Code the remedy in strict liability cases, as well as other causes of action, shall consist in the re-instatement of the situation prior to such damage, and when that is impossible, it shall consist in the payment of damages. Pursuant to Article 32 of the Criminal Code of Michoacan, when the damage is caused to the individuals and produces the death or the total or partial disability, temporary of permanent, the amount of the indemnity shall be fixed applying the provisions and the tariffs established in the Federal Labor Law [of the Republic of Mexico].

Applicable provisions of the Mexican Federal Labor Laws that state the caps on damages for the derivative claims of the Plaintiffs. In addition to these "material damages", the laws of the State of Michoacan and Mexico allow for recovery of "moral damages".

Pursuant to Article 1774 of the Civil Code for Michoacan, the Court may grant in favor of the victim an indemnity for moral damages, which in no event it may be greater than one third of the indemnity for material damages. It must be noted that a Court may only grant a compensation for moral damages when there has been an illicit conduct, which not necessarily occurs in the strict liability cases.

The United States Court of Appeals for the Fifth Circuit discussed damages for derivative claims under Mexican law in Ramirez v. Autobuses Blancos Flecha Roja, S.A. De C.V.

The Court of Appeals stated, "The law of Mexico does not allow damages for pain and suffering or physical injury in the common tort suit but rather provides compensation for lost wages calculated through a formula based on the injured party’s former wages and the Mexican federal labor wage standards.

Damages known as ‘moral reparations’ are also available." "Moral reparations" under Mexican law are "designed to compensate for humiliation, injury to reputation, and mental anguish".

The substantially different recoveries allowed for derivative claims in tort under the law of Louisiana and the law of Michoacan, Mexico present a conflict-of- laws issue regarding damages. The Court must resolve this conflict according to the rules set forth in Book IV, Title VII of the Louisiana Civil Code. These rules direct the Court to apply the damages law of the State of Michoacan, Mexico to determine the Plaintiffs’ recovery for their derivative claims in tort.

The United States Fifth Circuit Court of Appeal has also used issue-by-issue choice-of-law analysis to apply, in a single case, the law of one state to the merits a wrongful death claim and the law of another state to issues concerning damages. For example, in Transco Leasing Corporation v. United States of America, the U.S. Fifth Circuit Court of Appeals held that the law of Texas, the place of the alleged negligent conduct and injury, applied to the merits of a wrongful death action instituted under the Federal Torts Claims Act in a Texas court , and the law of Louisiana, the domicile of the decedent and his beneficiaries, applied to issues of damages in the case.

The merits of the Plaintiffs’ derivative claims should be governed by the law of Louisiana. However, the Court must engage in a separate and different choice of law analysis to determine whether Louisiana or Mexican law governs the damages to be awarded to the derivative claimants in this case should they prove the merits of their claims. The applicable choice-of-law analysis pertains to issues of loss distribution and financial protection and, as is discussed extensively below, directs the Court to apply the law of damages of Mexico to the Plaintiffs’ derivative claims.

In this tort case, the Court must choose a rule of decision from two differing laws regulating damages. Laws regulating damages pertain to issues of loss distribution and financial protection. Loss distribution and financial protection rules "prohibit, assign, or limit liability after the tort occurs."

Louisiana Civil Code Article 3544 specifies the law that should generally be applied in cases involving conflicts of loss distribution laws. Louisiana Civil Code Article 3544 states:

Issues pertaining to loss distribution and financial protection are governed, as between a person injured by an offense or quasi-offense and the person who caused the injury, by the law designated in the following order:

(1) If, at the time of the injury, the injured person and the person who caused the injury were domiciled in the same state, by the law of that state. Persons domiciled in states whose law on the particular issue is substantially identical shall be treated as if domiciled in the same state.

(2) If, at the time of the injury, the injured person and the person who caused the injury were domiciled in different states: (a) when both the injury and the conduct that caused it occurred in one of those states, by the law of that state; and (b) when the injury and the conduct that caused it occurred in different states, by the law of the state in which the injury occurred, provided that (i) the injured person was domiciled in that state, (ii) the person who caused the injury should have foreseen its occurrence in that state, and (iii) the law of that state provided for a higher standard of financial protection for the injured person than did the law of the state in which the injurious conduct occurred.

Such rules focus less on territorial factors such as the place of conduct and more on the parties’ contacts with the involved states, particularly the domicile of the parties.

Importantly, in this case, the Plaintiffs asserting derivative claims were domiciled in the Michoacan, Mexico at the time of, and since, the accident. They had never set foot in the United States. Defendant John, the alleged tortfeasor and driver of the 18-wheeler tractor-trailer that collided with the truck occupied by the Plaintiffs asserting direct personal injury claims, was domiciled in Louisiana at the time of the accident and continues to be a Louisiana domiciliary. Consequently, paragraph (2) of Article 3544 applies since the Plaintiffs asserting derivative claims and Matthew were domiciled in different states at the time of the accident.

Laws regulating damages express a state’s policies concerning the distribution of loss resulting from tortious acts and what financial protection or limits on liability should be afforded. Domicile is the primary factor in issues relating to loss distribution and financial protection.

In this case, the Plaintiffs asserting derivative claims were domiciled in Michaocan, Mexico and have no connection to Louisiana. The alleged tortfeasor, Mr. Matthew, and his employer, DT, are Louisiana domiciliaries. Thus, no legitimate interest or policy of the state of Louisiana would be served by the application of its unlimited damages rule.

Moreover, application of its law in this case would impair Louisiana’s interest in protecting Louisiana tortfeasors from unfair and burdensome damage awards. In contrast, Mexico has a interest in applying its law of damages to the derivative claims in this case because the claimants are Michaocan domiciliaries and should be afforded the protections of Mexican law. This was the holding of the United States Fifth Circuit Court of Appeal in Vasquez v. Bridgestone/Firestone, Inc.

Louisiana has no legitimate interest in applying its law on damages so as to provide the plaintiffs with a higher recovery than that allowed by the law of the plaintiffs’ domicile.

In Transco Leasing Corporation, the U.S. Fifth Circuit Court of Appeals held that the law of the plaintiff’s domicile, rather than the law of the state of conduct and injury, applied to determine the proper amount of nonpecuniary damages awarded to the plaintiff in a wrongful death action.

In Transco Leasing, the plaintiff was a Louisiana citizen who filed a Federal Torts Claim Act wrongful death suit in a Texas federal court for the death of her husband and daughter (both Louisiana citizens) in a collision of two private planes over Texas. The district court held that Louisiana law should be applied to the issue of damages suffered by the plaintiff. The plaintiff urged the Court of Appeals to reevaluate the amount of the damages awarded to her under Louisiana law in light of the higher nonpecuniary damage awards affirmed under Texas law for similar losses. The Court of Appeals rejected the plaintiff’s argument that Texas law should govern the issue of damages since Louisiana’s interest in ensuring the adequate compensation for its citizens would be satisfied if the higher standard of protection afforded by Texas law were applied. The Court of Appeals stated, "Texas, however, has no interest in the amount of wrongful death damages awarded to Louisiana residents."

Article 1773 of the Michoacan Civil Code which provides the remedy available to tort victims expresses this same policy. It says that such remedy "shall consist in the re-instatement of the situation prior to such damage, and when that is impossible, it shall consist in the payment of damages."

While the recoveries allowed under the damages law of Louisiana and Michoacan, Mexico are different, the policies on which they are based are the same. Therefore, Louisiana’s policies are not impaired by the application of Michoacan’s law on damages.

A state’s law on damages is designed to protect its citizens. That is, the purpose of a state’s law on damages is twofold:

First, through its law regulating damages, a state seeks to ensure that its citizens who are injured by the tort of another are adequately compensated and do not become public charges.

Second, a state’s law on damages seek to ensure that its citizens who commit torts are protected either from liability altogether (e.g. workers’ compensation immunity for employers) or from excessive or burdensome damage awards.

Like this case, the issue in Vasquez was whether the law of Mexico or Texas should govern damages in a suit filed in Texas state court by Mexican plaintiffs against American citizens for the wrongful death of Mexican citizens. The decedents died in an automobile accident in Mexico. In Vasquez, the U.S. Fifth Circuit Court of Appeal held that Mexican law, not Texas law, should govern issues of damages. The court stated, "We are mindful of the disparate levels of wrongful death damages provided under Texas and Mexican law and the incentive for plaintiffs to sue in the United States. Given that all decedents and plaintiffs are Mexican, however, there is little justification for applying Texas law, which seeks to protect the rights of its citizens to adequate compensation."

In this present case, the plaintiffs asserting direct personal injury claims were present in the U.S. illegally at the time of the motor vehicle collision from which their claims, and those of the plaintiffs asserting derivative claims, arise. Also, the direct claimants were unauthorized to work in the U.S. Thus, the direct claimants were directly contravening explicit congressional policies and committing criminal fraud at the time of the accident. The United States has a direct interest in not contravening its own immigration policies. Applying Louisiana law in this case, rather than the required Mexican law and awarding damages based at least in part on illegal workers’ future wages in the United States which could only be obtained by criminal fraud, would not only "trivialize federal immigration laws."

Safer Roads Despite Increased Traffic

 

Photo Credit: Kansas City Star

The following is a Guest Post by Garrick Infanger, Armstrong Forensic Engineers *

As always, we hope this information is helpful
to our clients. We welcome your input.

Mark Perkins

Over the past six decades the number of miles of paved roads in America has grown tremendously, but the number of traffic fatalities has actually fallen in the same span. Highway fatality rates were at record lows in 2009 according to federal transportation commission, reaching the lowest point since 1949 at 1.1 fatalities per 100 million vehicle miles driven.

Improved safety in both roadways and cars are cited as the leading reasons for the decline in deaths. Examples include rumble strips and guard cables on highways and the presence of anti-lock brakes and multiple air bags in most new cars.

American commerce depends heavily on the roadway system, specifically the Interstate Highway System, and the thousands of semi-trucks and commercial trucks moving goods.  The news of these safety improvements will only encourage continued growth in commercial trucking and transportation.

One rising area for concern is ‘distracted driving’ that includes texting or using smart phones while driving. Some reports suggest that 20% or more of drivers are engaged in distracted driving. Impaired driving continues to be an area of concern as a high number of accidents related to drug and alcohol abuse.

The roads definitely safer—now if we can just tackle rush hour traffic.

 
–

* Garrick Infanger writes for the Forensic Engineering Hub, an engineering-focused blog sponsored by Armstrong Forensic Engineers.

Highway Fatalities Fall to Record Low; Truck-Related Deaths Rise

U.S. highway deaths fell to the lowest level in 2010 since 1949, but truck-related fatalities rose for the first time since 2005, the Department of Transportation said Thursday.

Fatalities involving large trucks increased rose 8.7%, DOT’s National Highway Traffic Safety Administration said in its annual report.

NHTSA said that 3,675 people died in truck-related accidents in 2010, an increase of 295 over the 2009 figure of 3,380, ending a three-year decline in fatalities in truck-involved accidents. American Trucking Associations said that in the 10-year period from 1999 to 2009, the number of large trucks involved in fatal crashes dropped by 35%, while injury crashes dropped by 48%. At the same time, the number of registered big rigs rose by more than 3 million, or 41%, ATA said in a statement, and ATA President Bill Graves cautioned that policymakers should not jump to conclusions about the fatality figures.

“Every fatality on our highways is a tragedy, and the uptick in the 2010 preliminary report concerns up deeply,” Graves said in a statement. “Without more information and analysis, though, it is difficult to draw conclusions about what this preliminary data means.”

Overall, fatalities in both trucks and automobiles declined to their lowest number — 32,885 — since 1949, when 30,246 people died, DOT said.That led to the lowest fatality rate ever recorded, with 1.10 deaths per 100 million vehicle miles traveled, down from 1.15 deaths per 100 million vehicle miles traveled in 2009.

By Transport Topics

Staff Reporter Eric Miller contributed to this story.

Effect of Summary Judgment Dismissal on Comparative Fault

As you may know, Louisiana is a "pure comparative" jurisdiction, meaning that even an immune NON-PARTY can be assessed fault, reducing the percentage of fault of 

other defendants.

However, what happens if there is summary judgment and one of the parties (or even a non-party) is deemed NOT at fault?

This post is to clarify some concerns regarding Act 690 of 2010, which amended Article 966 of the Code of Civil Procedure dealing with summary judgment and the application of comparative fault. The courts have not yet addressed this amendment and there was some discussion of whether the amendment could prevail if in conflict with the substantive comparative fault statute La. C.C. art. 2323; however, a close reading of the amendment demonstrates that there is likely no conflict.

The important portion of the amendment adds the following language to La. Civ. P. art. 966:

(F) When the court determines in accordance with the provisions of this Article, that a party or non party is not negligent, not at fault, or did not cause, whether in whole or in part, the injury or harm alleged, that party or non party may not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or non party nor shall the issue be submitted to the jury. This Paragraph shall not apply when a summary judgment is granted solely on the basis of the successful assertion of an affirmative defense in accordance with Article 1005.

As the amendment states, it is not the fact that a party is dismissed on summary judgment, but the reason that the summary judgment is granted, which removes them from consideration in the allocation of fault.

Could He See In The Dark? (or Conspicuity Issues)

A few weeks ago, I discussed a case in which night visibility evidence was addressed and the testimony of an expert was excluded. The following is follow up to that post, giving you some ideas on issues to cover to lay a foundation for Daubert challenge.

The trial court is charged with a"gatekeeping responsibility" to ensure that all expert testimony is "not only relevant, but reliable." The factors to be considered by the trial court in determining whether the reasoning or methodology underlying an expert’s testimony is scientifically valid and can be applied properly to the facts at issue include: 

1. The "testibility" of the expert’s theory or technique;

2. . Whether the theory or technique has been subjected to peer review and publication;
The known or potential rate of error; and

3. Whether the methodology is generally accepted in the scientific community.

"Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment--often of great consequence--about a particular set of events in the past. We recognize that in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes."

If an expert has never performed any night visibility study, how can he make a determination as to what drivers should or should not have seen? There is no way to test the reliability of his methodology for reaching his conclusions, because he did not employ any such methodology. Accordingly, the "methodology" does not meet the reliability standards set forth in Daubert and Foret. Therefore, it is impossible to determine whether his opinions and conclusions were formed in a scientifically credible manner or are nothing more than speculation and conjecture unsupported by reliable scientific evidence.

The following are just a few foundational questions that may be useful in evaluating if night visibility photography can pass muster in a Daubert challenge.

New Motor Carrier Form: What Language Should be Avoided in Agreements?

What language should I use or avoid in drafting owner-operator agreements, access agreements, shipper-carrier contracts, broker-carrier contracts, and equipment leases in order to maximize coverage under the New Form?

The New Form does not look at operating authority to determine who is an insured under the policy and the priority of coverage. Instead, it looks to the lease agreement between the parties. As a result, the owner-operator must be certain to have a written lease agreement with the motor carrier under whose authority they are operating and also make certain that the lease agreement does not require that the owner-operator hold the carrier harmless. If the lease agreement requires the owner-operator to hold the carrier harmless, or if there is no written lease agreement, then the owner-operator will be the primary for any loss.

New Motor Carrier Form: Does the New Form treat "other insurance" as primary or excess?

Answer:

a) The policy is primary for the named insured’s covered autos that another motor carrier hires or borrows if a written agreement between them requires that the named insured as lessor hold the motor carrier as lessee harmless. However, it is excess over any other collectible insurance if the written agreement does not have this requirement.

b) With respect to trailers, coverage is provided on the same primary or excess basis as the liability coverage provided for the power unit if it is a covered auto. However, it is excess if the power unit is not a covered auto.

c) Coverage is primary for any Trailer Interchange Coverage provided in the policy.

d) Except already noted, this policy provides primary insurance for any covered auto the named insured owns and excess insurance for any auto not owned by the named insured.

e) Under hired auto physical damage coverage, a covered auto the named insured leases, hires, rents, or borrows is considered an owned covered auto. The only exception is when such auto comes with a driver.

f) Coverage is always primary when liability is assumed in an insured contract, regardless to the above provisions.

g) The insurance company pays only its share when any other insurance covers the loss on the same basis, regardless of whether that coverage is on a primary or excess basis. Its share is the proportion that this limit of insurance bears to the total of all limits of all coverage forms and polices that apply on the same basis.

New Motor Carrier Coverage Form - Verbal Lease Agreement/ Other Insurance Primary?

Does a verbal lease agreement affect the scope of coverage?

Answer: Yes.

There must be a written agreement between the lessor of a covered auto and an insured for coverage to apply. If there is no written agreement, coverage will be disputed. For Hired Auto Physical Damage, expenses for which an insured becomes legally responsible to pay for loss of use of a vehicle rented or hired without a driver will be paid if there is a written rental contract.

 

Secret Recording: What Do You Do?

So what happens when there are secretly recorded audiotapes of an employer by an employee?

Although the employee may be able to make the recording, it MUST be produced before the witness is deposed. Pass on the following cases if you know someone facing this issue:

Walls v. Int'l Paper Co., 192 F.R.D. 294 (D. Kan. 2000):

A female plaintiff brought suit against her employer for alleged sexual discrimination and violation of the ADA. The plaintiff secretly tape recorded conversations between herself and her supervisor, and subsequently filed for a protective order to postpone production of recordings of conversations until after the deposition of her supervisor. Plaintiff alleged that the tapes are privileged work product that she prepared in anticipation of litigation. Subsequently, she admitted that they were not privileged because the statements were made by a named party, entitled to  production. The Court denied plaintiff’s protective order, and ordered plaintiff to produce the tape recorded statements at the time of the defendant’s deposition.

It should be noted the Court made a clear distinction in this case, that if an individual surreptitiously tapes a conversation with an unsuspecting partner, upon advise or direction from

Sorry about that last post...

Somehow after the page break all the information was deleted. I will try and update it soon.

Have a great weekend.

Video Attempting to Show Visibility Inadmissible

This post involves an accident that occurred on a dark night in February at the intersection of North Market Street and Havens Road in Shreveport, Louisiana.

The defendant, driving a flatbed trailer,  was hit by passenger vehicle that was travelling north on the dark highway. The truck driver was pulling onto the main highway and would have been looking south as the plaintiff approached.

The defendant driver had nearly completed his maneuver on to the highway when his trailer was hit on the left rear tandem. There was speculation that the plaintiff driver was under the influence of alcohol and that he was moving from the inside lane to the outside lane, but the initial investigation by the police was inadequate.  

Plaintiff’s accident reconstruction  expert purported  to represent the conditions of North Market Street at the time of the accident by a video that was  not an accurate representation of the road conditions at the time of the accident and would  likely confuse the jury.

Plaintiff’s accident reconstruction expert recorded a video of the accident scene on a Sony Digital 8 after dark allegedly from the vantage point of each of the vehicles that were involved in the accident. His stated purpose for taking the video was:

(1) "to show the visibility of one vehicle from the vantage point of the other for each vehicle" and (2) "to show the movement of traffic through the intersection." 

The expert's deposition testimony revealed that he took no real precautions to ensure that the video accurately depicted  the conditions of the night of the accident. Relevant portions of the deposition secured the exclusion of the video:

New Motor Carrier Coverage form - Affect of an Indemnification Agreement

Could an indemnification provision in a lease agreement affect coverage?

Answer: Perhaps.

Section II(B) covers exclusions of coverage. Specifically, the New Form states that the policy does not apply to certain designated situations. Included in those situations is number 4:

Employee Indemnification and Employer’s Liability. The policy does not apply to bodily injury arising out of and in the course of employment by the insured or while performing duties related to the conduct of the insured’s business. The policy also does not apply to any spouse, child, parent, or sibling of that employee that is injured while on the job.

This exclusion to coverage applies whether the insured may be liable as an employer or in any other capacity AND to any obligation to share damages or repay someone else who may damaged because of the injury.

The exclusion  to coverage has two exceptions (don't you love exceptions to exclusions? It's like a double negative):

The first is that coverage does apply to bodily injury to domestic employees who are not entitled to worker’s compensation.

The second is that coverage applies to liability assumed by the insured under an insured contract.

I know all of this is frustrating, but I will soon past the differences between the old and new forms.

Take care.

  

 

The New "Motor Carrier Coverage Form" - Who is an insured?

The ISO’s new Motor Carrier Coverage Form (New Form) has required several changes in insurance policies as new policies are being written. Some common questions about the new form are answered below in as simple language as I can make it.

1. How does the New Form change the definition of "insured"?

Answer: The New Form modifies several exceptions to the definition of an "insured." One change is that "trucker" has been replaced with "motor carrier."

Who is an insured?

A. the named insured is an insured for any covered auto

B. Anyone else using a covered auto the named insured owns, hires or borrows with the named insured’s permission - with some exceptions.

The following persons are NOT insureds:

1. When the named insured borrows a covered auto, the party the auto was hired or borrowed from, is not an insured,

2. The named insured’s employees or agents are not insureds if the employees, agents or members of their households own the auto,

3. A repair person is not an insured when the auto is being repaired if that repairperson is in the business of selling, servicing, repairing, parking, or storing autos. The repair person IS insured if the named insured owns the business.

4. Anyone moving property to or from a covered auto (is not an insured) EXCEPT employees, partners of a partnership, members of a LLC, a lessee or borrower of the covered auto, or their employees.

5. The named insured’s partners or members are not insureds for private passenger autos when those autos are owned by the partner, member, or someone in their household.

C. Owners or others the named insured hires or borrows trailers from are insureds while they are attached to the covered power unit OR if not connected, they are insureds when the trailers are used exclusively in the named insured’s business.

The Illusion of a Phantom Truck

Plaintiffs argued that my clients  owned the truck that impacted them and forced them off of the road. The truck that hit the Plaintiffs did not remain at the scene, and the accident report indicated that the Plaintiffs were not able to describe the tractor-trailer at the time of the accident. Consequently, there were serious questions regarding whether the Plaintiffs could meet their burden of proving that my client's  tractor-trailer was involved in the accident.

The Plaintiffs’ basic story was that after they left the accident scene, they went to the BP truck stop at  the next exit from Ithe location of the accident. There they found the truck that caused the accident, but there were many inconsistencies in the details of their story.

After the accident, the plaintiffs spoke to an eyewitness but there were unable to  describe the tractor-trailer, the driver of the tractor-trailer, a partial tag number on the trailer, or any writing or emblem on the tractor-trailer. The eyewitness gave a difference description of the "phantom vehicle."

Later when the plaintiff's went to the truck stop, they wrote down part of a tag number allegedly from my client's truck.

What we learned for sure is that the tag number described by the Plaintiffs did not match the trailer which was in the area at the time, but description of the tractor-trailer given by the Plaintiffs did, for the most part, match my client's  tractor-trailer which was in the area at the time.

The plaintiff stated that the person she saw getting into the truck at the truck stop was a white male. She assumed he was the driver; however, she stated that when she saw him in his rearview mirror on the road she thought that he looked darker. At the truck stop,however, she saw him getting into a truck and thought that his skin looked white.

The Plaintiffs must have gotten this information from somewhere. Since the accident report did not indicate that client's tractor was involved and the tractor described by the witness did  not match my client's tractor, it was probable that the Plaintiffs first saw the  tractor-trailer after the accident.

The driver logs indicated that the tractor-trailer was at the BP truck stop from 6:00 p.m. until 7:00 p.m. The accident occurred at about 6:15 p.m. According to the police records and the testimony of the witnesses, the plaintiffs probably left the accident scene between 7:00 p.m. and 7:20 p.m.

Based on the above information, the possible theories were:

Biomechanical Evidence Admissible?

Generally, the admissibility of biomechanical expert testimony at trial has been permitted, as long as the Rule 702 requirements of relevance and reliability have been met and he/she qualify under the factors articulated in Daubert.

In recent years, Texas courts have agreed that biomechanics is a science, and an accepted topic in the field of mechanical engineering, as indicated by the existence of conferences and journals devoted to the topic, as well as courses taught at major university engineering departments.

Here are a few Texas cases addressing different parameters of the admissibility of biomechanical expert testimony at trial:

Curry v. ENSCO Offshore Co., 54 Fed. App’x 407 (5^th Cir. 2002)–Safety director was qualified to testify as an expert in marine safety, despite defendant’s arguments that the expert was not qualified as a biomechanical expert, as long as he did not specifically testify as to the cause of the industry, but only about industry safety standards.　

　

Gammill v. Jack Williams Chevrolet, 972 S.W.2d 173 (Tex. 1998) - Mechanical engineer expert was not qualified to testify about design defects in an automobile as cause of injury b/c, as designer of fighter planes and missiles, he had no training or experience in the design or manufacture of automobiles or their relevant components. However, defense additional mechanical engineering expert was qualified to testify based upon his research of vehicular restraint systems, prior testimony in numerous similar cases, and authorship of 100 journal articles, 125 conference papers, 45 technical reports and 2 books summarizing his research.

Gainsco County Mutual Insurance v. Martinez, 27 S. W. 3d 97 (Ct. App. Tex. 2000) - Biomechanical expert permitted to testify about Plaintiff’s existing bone spurs and other evidence to suggest degenerative disc disease, to corroborate expert neurologist’s testimony that Plaintiff’s injury was not related to the accident. Court excluded testimony from biomechanical expert about the length of time it took to develop bone spurs and the immediate symptoms one would expect to see from a significant spinal injury, asserting a lack of medical training on the part of the expert to make this conclusion.

City of Paris, Texas v. McDowell, 79 S.W.3d 601 (Ct. App. Tex. 2002) - Biomechanical expert testimony permitted as long as submission of all requested information relative to the expert was made available to the opposing party in a timely manner. Failure to supplement discovery responses with requested information regarding expert witnesses is grounds for excluding testimony of expert witness under Federal and Texas Rules of Civil Procedure.

Reynoso v. Ford Motor Co., (Not Reported in F. Supp. 2d, 2005 WL 5994183 S.D. Tex., 2005) - Biomechanical expert testimony was reliable, and, therefore, admissible, when expert relied on publications other than his own in forming his conclusions about causation, inspected the subject vehicle and accident scene photos, and performed a test in a simulated driver’s seat to demonstrate causation of Plaintiff’s injury.

Hernandez v. Swift Transp. Co., Inc.(Slip Copy, 2010 WL 3211058 W.D. Tex.) - Biomechanical expert testimony was admissible since expert was not attempting to recreate the accident on the day it happened, but was opining on the injury expected to be sustained by the driver in the accident at bar, and expert had degrees a bachelor’s degree physiology, a PhD. in human physiology and a Bachelor of Medicine and Bachelor of Surgery (akin to an M.D. in the U. S.).

Recap

The testimony of biomechanical experts is admissible and widely accepted in Texas courts, provided the expert meets relevance and reliability standards under 702. Evidence of the expert’s educational background and research and/or work experience in biomechanics, through published books, journals or articles is generally used to prove reliability of an expert’s testimony.

An expert’s testimony will also be considered more reliable if it is based upon outside sources of information and can corroborate testimony of a medical expert. Relevance will be established by what information the expert has that will assist the trier of fact.

So consider the following factors to help your position:

• Does the expert's training and experience render him more than qualified to testify as a biomechanical expert?
• Does his report rely on outside sources that corroborate his  testimony that the plaintiff's injuries did not result from the accident?  　
• Does he go beyond his expertise and address the diagnosis of the plaintiff?

These are just a few thoughts to consider when evaluating the admissibility of biomechanical evidence; however, I often add the intangible impression that photographs of the accident give to a jury.

If there is a low impact case with minor damage, the biomechanical evidence is helpful; however, if the photographs really look bad, even if the physics prove that the biomechanical forces could not cause the injuries the in question, don't use the biomechanical issues.

Unless, the damages are really out of sight, then you have to use whatever reliable evidence that helps, right?

　

Stipulating to Liability Excludes Facts of the Accident

Suppose the facts of the accident are simply without dispute. Your driver clearly caused the collision and the injuries are really bad.

This post does address the question of disputing liability while preserving the dispute over causing the injuries. This post is about keeping out damning evidence of the accident facts. For now, my points are focused just on the legal issues of excluding all of the facts of the accident which are simply too prejudicial for a jury to see and hear.  

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Federal Rules of Evidence, Rule 403 provides a way that a court may exclude relevant evidence if the probative value of the evidence is substantially outweighed by certain dangers to the litigants, including; unfair prejudice, confusion of the issues or misleading of the fact finder.

Other consideration include undue delay of trial, waste of the court’s time, or needless presentation of cumulative evidence. The courts are granted such power, to exclude relevant evidence, if to facilitate justice or to keep the trial within bounds. For example

Negligently SLOW DRIVERS in Louisiana!!!

While there are statutory maximum speed limits, there are no statutory minimum speed limits in Louisiana. In recent years there have been attempts to institute minimum speed limits but no law has ever been passed setting a minimum speed limit.

The closest thing to a statutory minimum speed limit is set forth in La R.S. 32:64, which mandates that drivers cannot drive so slowly as to impede traffic. The law does not set a specific minimum speed.

32:64. General speed law

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"B. Except when a special hazard exists that requires lower speed for compliance with paragraph A of this section, no person shall operate or drive a motor vehicle upon the highways of this state at such a slow speed as to impede the normal and reasonable movement of traffic. ...."

This  statute essentially mandates that vehicles must  not drive too slowly under the circumstances. Well, thanks but that's not very helpful. There are  few cases that help us understand what is "too slow".

There is one case from 1975 that indicates that operating a tractor at 10 mph in a 70 mph zone was too slow and was a violation of RS 32:64.

Defending A Driver for Marijuana "Intoxication"

As truck driver made an lane change, he collided with a passenger car, which was pushed into a retaining wall.

To add "insult to injury," the truck driver was allegedly under the influence of marijuana. The driver and his employer  were sued for punitive damages.

Obviously, the plaintiff has the burden of proof to demonstrate intoxication of a driver sufficient to warrant an award of punitive damages.

At the time of the subject incident, the truck driver complied with all regulations and testing implemented by the Louisiana State Police, and he candidly informed the police that he had ingested marijuana four days prior to the accident. Louisiana State Police performed a urinalysis on Mr. Stanford, but failed to administer a blood test to prove intoxication at the time of the accident. Plaintiff improperly bases her claim for punitive damages on the results of the urinalysis test.

The mere presence of Carboxy-Delta-9-THC in a urine sample is not sufficient evidence of intoxication or impairment, but rather is only an indication of past marijuana use. There must be a requisite indicia of reliability such that there is no question that the driver was intoxicated at the time of the accident in order for an award of punitive damages to be justified. The plaintiff was unable  maintain a claim for punitive damages because she relied solely on the results of an unreliable form of testing, which did not  conclusively prove intoxication at the time of the accident so as to justify a claim for punitive damages.

Pursuant to La. Civ. Code art. 2315.4, exemplary damages may be awarded upon Plaintiff’s proof that the injuries on which the accident is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication, while operating a motor vehicle, was a cause-in-fact of the resulting injuries. There is no presumption of intoxication in a civil proceeding, and the Plaintiff must prove by conclusive evidence that a defendant was legally intoxicated at the time of the accident.

In order to prevail on a claim for punitive damages under La. Civ. Code art. 2315.4, the Plaintiff must prove three separate elements, but the first element the Plaintiff must prove that the truck driver  was intoxicated or had "a sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties."

A  urinalysis does not provide conclusive proof of intoxication. Althought, the chemical compound THC in the cannabinoid causes intoxication when an individual ingests marijuana, aurinalysis test that only evidencing traces of Carboxy-Delta-9-THC in the body is not indicative of intoxication or impairment, but merely an indication of past marijuana ingestion.

The results of a urinalysis test are not equivalent to the level of reliability present in a blood alcohol test. Particularly, because the urinalysis test is not designed to indicate intoxication or impairment, but rather is designed to demonstrate prior ingestion of THC. In contrast, a blood alcohol test is designed to indicate an individual’s blood alcohol content at  the exact moment of testing.

Thus, one cannot equate the reliability of conducting a blood alcohol test with  a urinalysis because the blood alcohol test is designed to indicate present intoxication and the urinalysis is ultimately only capable of indicating previous marijuana ingestion, not intoxication at the time the urinalysis is performed.

Furthermore, a blood alcohol test will reveal levels of alcohol which may be presumptive evidence of intoxication. The evidence of a controlled dangerous substance does not readily translate to presumptive levels of intoxication used in blood alcohol analysis.

In our case, the plaintiff's claim for punitive damages rested solely on the fact that the urinalysis performed by the Louisiana State Police indicated amounts of Carboxy-Delta-9-THC in his urine. The presence of traces of this compound is not indicative of intoxication at the time of accident. In fact, the truck driver  candidly informed police that he had ingested marijuana four days prior to the accident. Thus, the presence of Carboxy-Delta-9-THC in his urine is consistent with past marijuana ingestion, and the urine test performed on him  by the Louisiana State Police could  be used to indicate or imply intoxication and/or impairment at the time of the accident. 　

It is a medical certainty that levels of Carboxy-Delta-9-THC will remain in the human body longer than the actual chemical THC. It is the THC, not the Carboxy-Delta-9-THC that causes an individual to feel the chemical effects of the drug.Thus, the level of Carboxy THC in the body of an individual who ingests marijuana depends on the individual’s ability to metabolize the cannabinoid THC and traces of Carboxy-Delta-9-THC may subsequently remain in the body for more than a month after ingestion of the chemical.

A blood test provides a far more reliable means of ascertaining whether or not an individual is intoxicated. Plaintiff was unable to offer reliable proof necessary to demonstrate that the insured driver was intoxicated at the time of the accident.

When THC enters the human body it is metabolized into a form known as Carboxy-Delta-9-THC.As every human system is different, each person’s body takes a different amount of time to metabolize THC. In fact, traces of Carboxy-Delta-9-THC could stay in an individual’s system for a month or longer depending on how quickly their body is able to metabolize the chemical.

In the case of Marine Drilling Co. V. Whitfield, 535 So. 2d 1253 (La. App 3 Cir. 1988), the Third Circuit Court of Appeal determined that a urinalysis which indicated the presence of Carboxy-Delta-9-THC in an individual’s system was not proof in and of itself that the defendant was intoxicated or impaired such that he could be deemed to be "under the influence" of the drug. This case involved an employee who was terminated for failing a urinalysis.

Thus, we argued that circumstantial evidence of previous consumption was not sufficient to justify an award of exemplary damages. A plaintiff requesting exemplary damages bears the burden of proving the defendant driver’s intoxication at the time of the accident. The plaintiff could not do so.

Reputation Evidence as Mediation Tactic

A few years ago, we were defending a claim by a volatile plaintiff who claimed to have been injured  by our client's employee. Among the issues we wanted to address was the plaintiff's REPUTATION for violence. In his deposition, he stated that he had never been involved in any other lawsuits, had not been sued or sued anyone and had no criminal record or altercations.

The investigative materials included  a document certified by a deputy clerk listing several lawsuits, including:

1. a property dispute for the subdivision in which he and his wife reside,
2. a divorce petition from his current wife filed by wife,
3. a claim against a nursing home,
4. another claim for "damages,"
5. a petition for breach of contract,
6. a claim against UPS shipment of equipment 
7. a claim that someone was using water from Plaintiffs’ well
8. an injunction against the Plaintiff because was involved in a physical altercation with Plaintiff

We argued that because e all of these lawsuits were before the date of plainitff’s deposition, we could use this information to discredit him at trial. We reasoned that we might  be able to use his history of litigation to show a propensity for using lawsuits to make money because in various cases he:

1. demanded the return of his payment along with all reasonable damages,
2. demanded replacement costs, reprogramming costs, lost profits, aggravation, inconvenience, and other damages.

Also, in the plaintiff's deposition, he said that he has been arrested twice for fighting - one over five years ago and one in the past five years. In the incident involving our client, the plaintiff saids he was not charged in the incident at Quizno’s, however, there was a bill of information filed and a warrant filed for his failure to appear in court. Interesting aside: his attorney representing him in ALL of this cases is the son of the former Sheriff of the Parish where the plaintiff was charged.

Medical records indicated possible dependence on pain medication:

1. Reported taking 14-16 Tylenol per day for cervical spine relief on 2/20/95.
2. Reported on 1/20/98 that Neurontin (used for neuropathic pain) and Lorcet (pain medication) were not effective against his pain.
3. On 2/03/98,  began a course of Lodine for pain.
4. On 7/6/06, he reported that he was having pain and taking Lortab once every three days for the pain.
5. He was given 220 10Mg Lortab pills over a 153-day period (5/01/07 - 9/30/07) at an average of 1.4 pills per day.
6. He was also prescribed 40 Oxycontin (2/13/07) and 10 Fentanyl pain patches on 1/24/07 - during the same 153-day period.

In his deposition, he testified that he had his prescription for Lortab refilled the day before the accident because "it’s something you don’t want to go without" because of the pain. Obviously, if he was on Lortab the day of the accident, we could assert a reckless and wanton disregard for safety because  Lortab can impair thinking and reaction time. He had been taking it regularly for ten months before the incident with our client so he should have been well-aware of the contraindications.

Like the Rules of Evidence in other states, Louisiana Code of Evidence article 404B(1) states that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as ... it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding."

Evidence Code article 405(B) goes on to say "in cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense...proof may also be made of specific instances of his conduct.

By asserting that the plaintiff had a propensity of violence and the that he was the aggressor in the incident comparatively at fault, we anticipated making the the argument that evidence of his other aggressive acts support our defense. We argued we should be able to use specific instances of his conduct - like the fight that he was arrested for in 2008.

Also, if a plaintiff uses any witnesses to testify as to his reputation, the door can be opened to ask the character witnesses about plaintiff’s other altercations. See State v. Guss, 775 So. 2d 622, (La. App. 4 Cir. 12/6/00) .

Louisiana Civil Code article 2323 states that if a person suffers injury  partly of his own negligence and partly as a result of the fault of another person, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury. We argued that at the very least, the plaintiff should be allotted one-half  of the fault as he was involved in the fight. Because he  was the aggressor and was quite larger than his opponents, he  could be found at a greater percentage fault.

What do you think? Would the judge have allowed the prior charges to be admitted in evidence?