Carmack Excludes Personal Injury Claims, Right?

I know, the first thing an attorney will say is that Carmack does not apply to bodily injuries; it only applies to cargo damage.

Guess what? You're wrong! It's okay though, you're not alone.

I scoured the nation and abroad for anyone who had dealt with this issue. Very few people have, but thanks to Marianne Sauvey, I was directed to some little known cases that apply the limitations of Carmack to personal injury claims.

Obviously, the factual scenarios will be very narrow: the claimant must have an injury directly related to the cargo delivery and not to an accident causing the release of hazardous cargo. Let me expound on that point. Suppose a truck driver is involved in accident in which he was driving too fast, hit the rear of another vehicle and caused the release of hazardous chemicals injuring bystanders, then the Carmack exclusions and limitations would not apply because the negligence pertains to driving and involves parties unrelated to the shipper or receiver.

Some disagree with me and argue that Carmack would still apply, but try to win that argument with a local judge.

On the other hand, let's suppose that the delivery of hazardous chemicals  caused an injury to a recipient of the cargo? Suppose the driver did nothing out of the ordinary in route, but the cargo was apparently was damaged in route anyway. Would the Carmack exclusions apply?

Yes!

By the way, there was a very interesting argument in this case that I will address in another blog:

If the driver smelled something unusual when he opened the trailer and failed to stop the delivery or call some state or federal agency did he breach some duty under any state or federal regs?

I will cover that another time. Let's continue discussing Carmack.

The 1906 Carmack Amendment to the Interstate Commerce Act was meant to eliminate the negative effects on interstate commerce stemming from conflicting state laws regarding the relationship between interstate shippers and carriers. Taylor v. Mayflower Transit, Inc., 22 F. Supp. 2d 509, 510 (W.D.N.C. 1998). The Amendment States:

A carrier providing transportation or service . . . shall issue a receipt or bill of lading for property it receives for transportation . . . . That carrier and any other carrier that delivers the property and is providing transportation or service . . . are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported . . . .

         49 U.S.C. § 14706 (West 2010).

Adams Express Co. v. Croninger, 226 U.S. 491 (1913) dealt with the scope and effect of the Carmack Amendment on the previous patchwork of state laws regulating interstate carrier liability. Previously, carrier liability in interstate shipments was enforced under either federal common law or various public policy considerations of the several states.

The Carmack Amendment’s preemption of state action has been extended beyond mere physical damage to property being shipped.

In Tayloe v. Kachina Moving &Storage, Inc., 16 F. Supp. 2d 1123 (D. Ariz. 1998), the plaintiff’s relocated from Illinois to Arizona for employment reasons. Plaintiff’s employer arranged for Mayflower transit to transport plaintiff’s belongings to Arizona and placed them in long term storage, until the plaintiff’s moved into their new home. Later, Mayflower issued a bill of lading covering the transportation of the plaintiff’s goods. The goods were then transported and placed in a storage facility in Arizona maintained and owned by defendant, Kachina. Upon delivery of the items to the plaintiff’s Arizona home, plaintiffs alleged that certain items were missing and damaged by water and mold. In addition, exposure to the mold allegedly resulted in a severe allergic reaction requiring hospitalization of plaintiff Vicki Tayloe.

The plaintiff’s filed suit containing multiple allegations including claims of personal injury by Vicki Tayloe. In a pretrial dismissal of the plaintiff's case, the court reiterated that "[t]he Carmack Amendment preempts all state law claims arising out of the interstate transportation of household goods by a common carrier. The court found that all of the plaintiff’s claims, including the personal injury claims, arose out of the transportation of plaintiff’s goods across state lines from Illinois to Arizona and, as such, were preempted by the Carmack Amendment.

Likewise, Strike v. Atlas Van Lines, Inc., 102 F. Supp. 2d 599 (M.D. Pa. 2000), involved the transport of plaintiff’s belongings, including  a pickup truck in defendant’s moving van. While in transport, the gas tank of the plaintiff’s pick up ruptured and gasoline spilled into the van contaminating plaintiff’s belongings. When the contaminated boxes of belongings were moved into the plaintiff’s home, both plaintiffs were forced to obtain medical treatment from exposure to gasoline fumes. The plaintiffs filed suit for damages, including personal injuries and loss of consortium.

The court specifically stated that preemption under the Carmack Amendment extended to personal injury claims stemming from "changes made to shipped goods through the negligence of the carrier . . . ."

Because the plaintiff’s injuries resulted from damage to their property during interstate shipment, their claims were not sufficiently separate from the damage to the goods in order to escape the reach of Carmack’s preemption.  Also, you may want to see  the discussion in footnote 2 of Kashala v. Mobility Services Intern., LLC, 2009 WL 2144289 (D.Mass. 2009) (unreported). See also McGinn v. J.B. Hunt Transport, Inc., 2010 WL 4363419 (E.D.Wis. 2010) (slip copy).

Well, what if the injury is not to the "shipper", but someone on the receiving end (the "consignee" in trucking lingo). No problem. Courts have recognized the extension of the Interstate Commerce Act and the Carmack Amendment to parties other than the shipper.

Harrah v. Minn. Mining and Mfg. Co., 809 F. Supp. 313 (D.N.J. 1992), involved a suit filed by a recipient and legal owner of photographs shipped by 3M. The court stated that, if the plaintiff had any right to sue, it must arise under the Interstate Commerce Act.  The court observed that persons to which the right to sue had been extended included not only shippers, but also buyers and consignees because the definition of a consignee provided in Black’s Law Dictionary:

   "one to whom the carrier may lawfully make delivery in accordance with the contract of carriage.’"

Under this definition, the court concluded that the plaintiff would have a right to sue ONLY under the Interstate Commerce Act. Though the court ultimately determined that the plaintiff could not maintain his suit due to his non-compliance with the shipping contract, id. at 318-19, the court’s opinion demonstrates that the reach of the Interstate Commerce Act,  Carmack Amendment, extends beyond the rights of the shipper to other parties involved in the shipping transaction.

So you say, what's the big deal whether a person can sue under a state law cause of action or whether he MUST sue under Camack? Glad you asked that.

Carmack limits the scope of damages to what is allowable by statute (usually a specified dollar amount based on the weight of the cargo)  and precludes ALL claims under state law, such as mental anguish, pain and suffering, lost wages, loss of earning capacity, medical expenses. Now, you get the picture.

In our case, the circumstances surrounding the plaintiff's exposure were the result of an integral part of the transaction of goods in interstate commerce. This was  not simply a case where the supposed negligence of a common carrier resulted in some accident which injured bystanders having no connection to the shipper, recipient, or carrier.

The plaintiff was an employee of the Chemical company receiving the cargo and he was acting in the course and scope of his employment at the time he was exposed. It would have been  impossible to contend that the delivery to the consignee did  not constitute  and integral part of the transaction in interstate commerce. Since the Carmack Amendment preempts all state law claims arising from the transaction of goods in interstate commerce, the plaintiff's  state law claims against the trucking could not survive.

As always, there are practical problems of proof in cases like this. So before you go out there and make some half-cocked argument about applying Carmack to every personal injury claim associated with cargo, let's remember some important points:

• the claimant must have an injury directly related to the cargo delivery and not to an accident causing the release of hazardous cargo;
• the injury must be related to the cargo; not from a motor vehicle accident, for example;
• the claim does not involve "bystander" (or the general public)  having no connection to the shipper, recipient, or carrier.
• Tne bill of lading needs to specifically apply Carmack (I've never seen one that didn't)

•   Does the receipt of the goods show damage to the cargo? It may not matter, but if the goods were not shown to be damaged upon receipt, the plaintiff has a problem with arguing that Carmack does not apply (ie not damaged ipon receipt) AND arguing that the cargo WAS damaged (thus causing the injury)

So these are just a few thoughts on the issue. What do you think? I would love to hear your counterarguments, if you have any.

* Special thanks and recognition to Whitney Morgan, Andy Sievers and Chris Baker in providing information for the blog.

Excluding Evidence of Wealth of Trucking Company

Undoubtedly, there would be substantial prejudice against a trucking company if its wealth was admitted into evidence. Usually, this will be rare; however, when making a claim for punitive damages, the plaintiff's bar will do all they can to get this information before the jury.

In Louisiana, a claim for punitive damages is allowed only if the defendant driver was under the influence of drugs or alcohol at the time of the accident AND that his/her drunken state caused the accident.

One time I had a claim in which a driver was operating a company vehicle after normal working hours. He was NOT a truck driver. He was a salesman and he was not making a sales call because he was leaving a bar after midnight on a Sunday morning!

A side note: The FORMER saleman was hostile to the trucking company that  had a very clear policy against drinking and driving, but the plaintiff's attorney was able to locate and "interview" him before he was deposed.

Guess what? His testimony was adverse to his former employer. Surprised?

Because of the nature of the case and possibility of punitive damages, this case was presented to a focus group. The driver's position was NOT favorably considered and the focus groups were generally favorable to the employer.


Anyway, I have digressed.


The Plaintiff’s claim for punitive damages arose from on La. Civ. Code art. 2315.4, which states:

"In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action 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."

The act that subjected our case to the possibility of punitive damages was  the "intoxication" of the driver/salesperson, not any act of the trucking company. The only "bad acts" claimed against the trucking company pertained to the typical negligent hiring, retention, or entrustment.

In a similar case, a plaintiff's attorney argued  that the defendant’s employer was liable for punitive damages under a negligent entrustment theory.  The court rejected the argument, stating:

"It is clear that La. Civ. C. art. 2315.4 requires more than a showing of "wanton or reckless disregard for the rights and safety of others" by a defendant. Accordingly, this Court finds that [the defendant’s] potential liability for damages under the theory of negligent entrustment does not extend to La. Civ. C. art. 2315.4 exemplary damages."

Darby v. Sentry Ins. Auto. Mut. Co., 2007-0407 (La.App. 1 Cir. 3/23/07), 960 So.2d 226

The court also wrote that the  Louisiana Supreme court said:

"[w]e will not construe penal statutes as extending powers not authorized by the letter of the law even if such powers would be arguably within its spirit." Gibbs Const. Co., Inc. v. State, Dept. of Labor, 540 So.2d 268, 269 (La.1989); see also In the Matter of Woodrow Wilson Const. Co., Inc., 563 So.2d 385, 391 (La.App. 1 Cir.1990). "

Consequently, Louisiana law prohibits an expansive interpretation of La. Civ. C. art. 2315.4 so as to impose exemplary damages on an employer simply for entrusting its vehicle to a driver who became intoxicated and caused an accident.

Since the ends of La. Civ. Code art. 2315.4 are to punish and deter drunk driving, then the most important factor in determining the amount of punitive damages will be the degree of reprehensibility of the acts of DRIVER, not the employer.

The only reason wealth is  considered for punitive damages is to further the goals of punishment and deterrence. Thus, it is ridiculous for a jury to consider the reprehensibility of an employee's acts of drunk driving then elevate that award based on the wealth of his employer.

The wealth of a trucking company also has a substantial possibility of influencing the outcome of the case on liability and causation. Jurors would likely evaluate the trucking company employer's liability and the Plaintiffs’ damages based on the depth of  pockets rather than the merits of the Plaintiffs’ case. Jurors would likely be persuaded by the "spin" that the trucking company is a wealthy corporation that has sufficient assets to absorb any financial windfall to the Plaintiffs.

In Rodriguez v. Traylor, 468 So.2d 1186, 1188 (La. 1985) the Louisiana Supreme Court held that:

[T]he wealth or poverty of a party to a lawsuit is not a proper consideration in the determination of compensatory damages. Each litigant should stand equal in the eyes of the law regardless of his financial standing.

The bottomline is that the only justification for offering this evidence against the trucking company is for the plaintiffs to seek a substantial punitive damages award against in light of its assets.

As is typical in complex cases, this case settled (for a very reasonable amount, by the way) so there was no ruling on our motion to exclude the wealth evidence of the employer, but I think we would have won.


Don't you?

I look forward to  your comments  on this issue. 


Special thanks and recognition to Trent Roddy, who is now with firm of Perrier & LeCoste in New Orleans, in helping to craft this argument.

Diabetic Drivers of 18-wheelers

Although I have written about this in Transport Topics and other transportation magazines, the subject of a diabetic driver is still a topic of interest.

Frankly, there are many drivers who have health problems due to poor diet and lack of exercise. If this is not an issue you have addressed yet, it certainly will be an issue in the future.

The federal regulations are clear about diabetic drivers who are insulin dependant. They cannot be medically certified; however, in recent years some exceptions have been enacted that may allow an insulin-dependant driver to get a waiver if very strict protocol are followed.

What about the present employee driver who is borderline diabetic or who must take medications other than insulin?

What about a applicant who is diagnosed with diabetes?

Suppose a driver is diagnosed with diabetes and denied a medical certification even for a day? Although the evidence may be relevant, it is could be extremely prejudical and misleading.

One time I had case in which the plaintiff's attorney tried to have the POST-ACCIDENT medical condition of the driver admitted into evidence. Essentially, his theory was that if the driver was de-certified six months after the accident then he was more than likely not medically qualified at the time of the accident.

Fortunately, the driver was de-certifed for only day and he was NOT insulin dependant; however, we had a battle over the introduction of this evidence even though there was no evidence that driver's diabetes mellitus contributed to the accident  or that he was not properly certified to drive at the time of the accident.

In fact, the disease was subsequently controlled with medication (not insulin) and the driver  was re-certified to drive the 18-wheel tractor trailer rigs on after ONE day. However, at the time of the accident several months earlier, he was fully certified.

Dr. David Fletcher of Safeworks in Illinois was very  helpful in evaluating and giving us an opinion that the medical certification procedure used before and after the accident complied with federal regulations. The opposition tried to argue the technician who performed the initial medical certification was not properly certified, the procedure used was not proper and the results were faulty. Yet, at the same, they argued that the subsequent medical evaluation WAS proper and should be admissible.

49 C.F.R. § 391.41 governs the physical qualifications for drivers: 

"§ 391.41.(b) A person is physically qualified to drive a commercial motor vehicle if that person–

(3) Has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control;"

Accordingly, a driver is physically qualified to drive a commercial vehicle if that person has no established history or clinical diagnoses of diabetes requiring insulin to control the diabetes. As disclosed by the medical records obtained by the plaintiff’s counsel, our driver's  diabetes did not require insulin and therefore, he was re-certified to drive.

We successfully argued that all evidence regarding the driver's diabetes and driver medical de-certification after the accident should be excluded because there was no link between the accident and the driver's  diabetes or the driver's  medical certification. Obviously, the only purpose to admit the evidence of diabetes or the subsequent driver medical certification would be to confuse the jury as to the primary cause of the accident.

In the last few years there have been some important changes in the laws about drivers with diabetes. in 2005, President George W. Bush signed into law, that there is no longer any need to show previous commercial driving experience, even if a potential driver is on insulin.

However, there are still strict guidelines to be granted the exemption under Diabetes Exemption Program. For example, a  driver must be  evaluated by an Endocrinologist and an Ophthalmologist or Optometrist, and the exemption form has areas that must be filled out by the doctors.

The FMCSA must grant or deny an exemption within 180 days of receiving the  application for an exemption.

According to the law passed by Congress, individuals with insulin treated diabetes will have to demonstrate that they have control of the diabetes while on insulin. 

Drivers with Type 1 diabetes must have been on insulin for two months before they can apply for the exemption. 

Drivers with Type 2 diabetes are required to have been on insulin for at least one month.

I know it's corny, but "keep on trucking."

Seriously? Trucking Company getting a DAC report is unreasonable?

A few years ago, I was defending one of several 18-wheelers involved in a multi-vehicle accident. Honestly, my client was not at fault or at least had minimal fault; however, in Louisiana, even if a party is deemed one percent at fault, he must pay one percent of the damages.

So, if a claim is potentially worth $15,000,000 (right, $15 MILLION), then one percent  is $150,000. Obviously, ten percent fault, would result in a judgment exceeding one million dollars. Consequently, opposing counsel vigorously argued to impose as much responsibilty on my client as possible.

By the way, did I mention that my client had the most insurance coverage?

This was a serious case and at least one of the plaintiffs was terribly injured; however, we were barraged with a multitude of arguments to stack up the fault against our client.

One of those arguments was whether the employer's review of the DAC report was the best practice. The opposition argued that the employer should have investigated the individual State Department of Motor Vehicle records and even  check  the local court records of traffic citations and criminal convictions.

(example DAC Report)

Are you kidding me? Can you imagine how time consuming it would be to check with each State's DMV for each potential driver? It would be even more time consuming to check each parish/county or municipality in which a driver may have been issued a ticket or pled guilty to a crime! Yet, this is the kind of fallacious argument used to impose unreasonable responsibility on trucking companies under the theory of negligent hiring.

The  Federal Motor Carrier Safety Regulations (FMCSR) specifically permits motor carriers to use third parties as agents to obtain motor vehicle driving records from state agencies responsible for the maintenance of such records.

Plaintiffs cannot legitimately assert that using DAC Services, Inc. ("DAC") to obtain the motor vehicle records  demonstrates a failure to comply with applicable regulations. Such an assertion is contrary to the plainly stated language of the regulatory guidance and interpretations published and promulgated by the Federal Motor Carrier Safety Administration.

Further, the ridiculous  argument a trucking company did not comply with 49 C.F.R. §391.23 and §391.25 due to its use of DAC, does not have a tendency to make  the determination of a driver's alleged fault, liability, actions or inactions. Nor does it imply that  hiring, supervising and retaining the driver any more or less probable.



The Federal Motor Carrier Safety Administration publishes and promulgates the "Regulatory Guidance, Interpretations to answer questions regarding the interpretation and application of the FMCSR. The Interpretations address specific sections of the FMCSR and provide guidance in the compliance necessary to satisfy the mandates of each specific section of the Regulations.

The Interpretations specific to §391.23 and §391.25 clearly state that "driver information services or companies acting as the motor carrier’s agent" or "third party agents" may be used to obtain the driving records of driver-applicants or employee drivers. The Federal Motor Carrier Safety Administration has, by use of the Interpretations, promulgated that it deems the use of information service companies by motor carriers to obtain drivers’ records to be compliant with the requirements of §391.23 and §391.25.

We have also found that plaintiff's attorneys often look for the criminal records of the driver and attempt to introduce those records as evidence that the employer SHOULD have looked for them. Because had the employer discovered those records (for example of a DWI), they would not have hired the driver.

Okay, let's get logical here. 

First, hundreds or thousands of potential drivers apply for jobs at a given trucking company each year. The productivity of the company would be locked down if it had to look for criminal records in every county/parish and every municipality of every potential driver. The plaintiff's attorney has the advantage of looking for ONE person's records after the fact and then arguing that the employer could have done the same thing. Absurd!

Second, the admissibility of the criminal conviction is against the rules of evidence that restrict the introduction of past "bad acts" to prove responsibility in a present situation. In other words, just because a person was driving under the influence in his personal car two years before he was hired by the trucking company doesn't mean that he did something wrong in the present case.

We all know that the opposition is simply trying to paint the driver and trucking company as a villain.  We must do all we can ensure fair and just treatment of the driver and his/her employer.

Don't you agree? I would be interested in your thoughts.

　

　

Unfairness of Accident Registers and CSA 2010

Trucking companies are required by the United States Department of Transportation to keep an accident register of all accidents. See (49 CFR 390.15)

Often times plaintiff's attorrneys  attempt to introduce as evidence  the accident registers  without any restriction to the driver in question. Now with the requirement of CSA 2010, what will our opponents try to do?

Admissibility of accidents occurring before and after a specific accident hinder the defense of the trucking by introducing other, non-related, accidents.

Unfair prejudice occurs in the jury knowing that other trucks were involved in other accidents and potentially creates a  tendency to suggest a decision on an improper basis such as emotion, sympathy, punishment or something other than the established propositions of the case.

Evidence of other accidents may threaten the instant case with "confusion of the issues, or misleading the jury" because the proof and the answering evidence by Defendants would create side issues and distract the jury from the main issues."

Does the fact that other trucks, driven by drivers other than the defendant driver in a specifc case, have a tendency to make the existence of negligence on the defendant driver in present litigation more probable?

No, because the accident register address all accidents, no matter the cause.

Even If the issue is whether the trucking company  was negligent in hiring or retaining employees, the inquiry should be limited to whether the trucking company was negligent in hiring or retaining THE PARTICULAR driver in the particular case in litigation, not whether it  was negligent in hiring or retaining any employee who may have been involved in another  accident, particularly since the accident registers give no consideration of the total number of vehicles in use or the total number of miles traveled by vehicles.

Now with the requirements of CSA 2010, we need to be as vigilant to ensure trucking companies and truck drivers are  treated fairly.


I would be interested in your thoughts.