Broker Liability in Trucking Accidents After MAP-21

This federal statute was implemented on October 1, 2013.

The section of the statute most important for discussion here is 49 USC §14916. Whereas, prior to passage of this statute, entities using titles such as “transportation managers,” “third party providers,” “3PLs,” or “freight forwarders” may have been able to escape broker regulations, this is no longer the case.

Under MAP 21 if an entity is not a carrier and it gets any money for doing anything related to transportation of goods it is a broker. If it is a broker then it has to register, satisfy the financial security requirements, and otherwise comply with the statute. If it does not comply

with these requirements then the statute provides that it is subject to “Civil Penalties and a Private Cause of Action:

(c) Civil Penalties and Private Cause of Action.—Any person who knowingly authorizes, consents to, or permits directly or indirectly, either alone or in conjunction with any other person, a violation of subsection (a) is liable—

(1) To the United States Government for a civil penalty in an amount not to exceed $10,000 for each violation; and

(2) To the injured party for all valid claims incurred without regard to amount.

The statute goes on to state:

(d) Liable parties—The liability for civil penalties and for claims under this section for unauthorized brokering shall apply, jointly and severally—

(1) To any corporate entity or partnership involved; and

(2) To the individual officers, directors, and principals of such entities.

Suppose a shipper/freight forwarder/carrier having no operating authority as a broker, arranges to haul a load through a common carrier. The carrier then negligently causes the death of a third party. The shipper/freight forwarder/carrier in this example, and their “officers, directors, and principals” is exposed to the risk of paying $10,000 per violation

and claims to the injured third party “without regard to amount.”

The potential scenarios for similar exposure are unlimited. For example, assume that the entity originally brokering the load has proper operating authority, but the carrier chooses to re-broker the load. There is potential exposure unless the re-brokering carrier has proper operating authority as a broker.

The pitfalls for brokers created by this statute are broad. The best defense against these dangers is extensive vetting of carriers and business partners; monitoring carriers and business partners; and updating the vetting processes on a reasonably frequent basis.

15 Trial Tips for Novice Trucking Defense Attorneys (or "Other" Attorneys)

As you may know, I started my legal career as a prosecutor. I literally tried hundreds of  bench trial and scores of jury trials. In five years as a prosecutor, I was fortunate to have tried more cases than most attorneys try in a lifetime.

Recently, I was asked to associate with another attorney who in thirty years of practice had never tried a jury trial. I was honored to assist him. We actually did not go to jury trial; we settled the case. However, I believe because of my experience as a trial attorney I was in a better place to assist with the resolution.

This is not meant to puff up my skills. It is just a reality that trial practice is becoming a lost art. The following are few ideas that I came across. I like these I have shared. Whether you are a defense litigator or plaintiff's attorney, skilled or unskilled, novice or nostalgic, these are some good ideas that you may want to try.

Trial Preparation/Trial

1| Read, Read, Read
"Reread your petition and research the law, so you know what you have to prove," says Ted Horowitz, a member of the College of American Trial Lawyers and a plaintiff's attorney with 50 years' experience in negligence actions.

2| Gut Feelings

"During voir dire if some guy makes you so uncomfortable that you wouldn't want to go have a beer with him, keep him off your jury panel," Horowitz says. "You want only sympathetic jurors. Trust your instincts."

3| Do You Hear What I Hear?

"Ask the jurors, Can everybody hear me?" Horowitz says. "Lots of times the jurors don't even realize they're uncomfortable because they can't hear you or your client. As a result, they become irritated and unreceptive to your case."

4| Make It a Chat Room

"Keep it conversational," Horowitz says. "Know your case well enough so you don't have to read your opening statement or closing argument." The worst thing is to read questions to a witness. "But do keep a checklist of questions for each witness," adds Horowitz, "and make certain you've asked them all before you dismiss him."

5| Look for an Opening

"Never waive an opening statement. You need to win on that, especially in domestic violence cases or family law," Mustille says. "If you are representing the defendant, you cannot afford to give up that first impression after the plaintiff's attorney or prosecutor has made your client look bad. The judge is predisposed on first impression. You need to set a framework, to give the judge a filter by which to hear the case on your side."

6| Prove It All Day

 Don't make claims you can't prove. You'll lose credibility with the jurors and the judge.

7| Lie Detecting

 

"The facts are gossamer by their nature," Floyd Abrams says. "It's absolutely essential to know all the facts and the non-facts, too, the false statements. You need to be able to predict as best you can everything someone might say. People frequently say one thing to the police and another in a deposition or in your office, or in trial even if it's not deliberate." People remember one way at one time and another way at another time. "If your witness contradicts himself, don't look surprised," Abrams says.

"But when the other side's witness does it, look stunned."

 

8| Humanize the Company

 

"Jurors are won over by humans, not abstract legal concepts like the First Amendment. Your job is to make the jurors want your guy to win," Abrams says. "If your guy is a publishing giant, focus on his days as a reporter in the field."

 

9| Swing Back

 

"If your opponent is mocking or intimidating you, stand up and strut your stuff," Abrams says.  "When pushed, they shut down. You have to ask the court for everything. Whether you get it or not, what's important is the confidence you show. It's your credibility as a lawyer. Why should the judge or jury take your case seriously if you don't? Act bold not brash even if you don't feel it."

 

10| When you're winning, be quiet

 

"When the judge is on your side, zip it and let him or her talk," says Joe Mosk, partner in Woodstock, Illinois, near Chicago.  "It's a very difficult lesson to learn, but keep quiet after you've won. Same thing in marriage"

 

11| Control Your Temper

 

Whenever an  opponent is rude and raises his voice, don't take the bait and look bad. Lower your  voice and speak more slowly. The louder he gets, the softer you get.

12| Don't Become a Lawyer Joke

 

Drop the legalese and industry lingo. Nobody says "conspicuity" in every day life. They say, I couldn't see it because there was no taillights. Also, always talk to the jurors in a respectful, polite manner.

 

13| Respect the Judge

 

Never argue with the judge on rulings, but don't thank him or her either if you are ruled against. Just say "Note my objection, sit down and shut up. Jurors pay attention to how the judge reacts to lawyers. By the way, rude and nasty judges can antagonize jurors, too.

14| The Soft Sell

 

"Get what you need from the witness and get out," Horowitz says. "The second and third time a lawyer goes over the information, the jurors get bored."

15| Get Over Yourself

Focus on the interests of your client, not your ego. You have to do everything you can for your client, even if you look bad in doing it. For example, maybe you have to apologize for being an ass or you have to settle a case even if you think you can win.

These are just a few thoughts, please feel free to share some of your ideas. If there is anything we can do to assist you in North Louisiana or Northeast Texas, feel free to call day or night.

Mark

 

 

Isn't It Time To Start Filing Sanctions For Dumbass...Frivolous Claims?

Curious? Have you ever requested sanctions for a frivolous lawsuit or meritless defenses?

In Louisiana, the  Code of Civil Procedure article 863(B)(1)  states that no pleading should be presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.

Furthermore legal assertions must be warranted by existing law. Code of Civ. Proc. Art. 863 (B)(2).

Recently I took over the  prosecution of  a plaintiffs' claim for defective construction in a new home. The claim had been pending since June 2012. The insurance company had filed a summary judgment motion in April 2013. The motion was denied, writs were requested and denied in 2013.

As we were preparing for mediation, the defense filed another motion for summary judgment. Nothing had changed in the case except that a few subcontractors admitted that they did not have an indemnity contract with the contractor.

When raising the summary judgment, the insurance carriers did not make the  court aware of Louisiana's  Anti-Indemnity statute when if filed the initial motion  in 2013 and it failed to bring the statute to the court's attention again several years later despite the fact that the anti-indemnity statute was applicable in 2013. Consequently, the legal assertions raised were not and are not warranted by existing law.

The  Code of Civil Procedure Article 863 places the onus on the party asserting the defense to do so based on existing law. Not only did the adverse praise raise the argument once, it raised it twice and nothing had changed in the facts that would make the mandatory indemnity agreements of the insurance policy unenforceable.

They were unenforceable when the house was being built. They were unenforceable when the plaintiffs put the insured on notice of defects in construction. They were unenforceable when the arguments were made in 2013 and they are unenforceable now.

The Louisiana Code of Civil Procedure Article 863(D) provides:

"If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees."

 

Do you think the plaintiffs would have been correct in  requesting  that the court sanction the adverse party, and/or its legal counsel, for asserting a legal argument that was clearly in violation of public policy and specifically prohibited by statute?

Who has had the guts to file a sanctions motion? Please share your experience.

Trucking: Bobtail Coverage Course & Scope of Driver on Personal Mission (like going to lunch)

You have a driver delivering a load, but he is about to use up his hours of service. He drops his load, unhitches the trailer and take the tractor on personal mission. In route on the personal mission, he gets involved in an accident.

Is he in the course and scope? What insurance applies?

Suppose he is on a lunch break? Is there coverage?

Course and scope of employment:

Factors under vicarious liability: "course and scope of employment"

Employer is statutorily liable for a tort committed by its employee if, at the time, the employee was acting within the course and scope of her employment. Black v. Johnson, App. 2 Cir. 2014, 137 So. 3d 170.

[A]n employee is acting within the course and scope of his employment when the conduct is the kind he is employed to perform, the conduct occurs substantially within the authorized limits of time and space, and it is activated at least in part by a purpose to serve the employer. Hopper v. Austin, 49,628 (La. App. 2 Cir. 3/4/15), 163 So. 3d 8, 15.

 

Factors useful in determining whether the employee’s act was employment-related include the payment of wages by the employer, the employer’s power of control, the employee’s duty to perform the act in question, motivation for performing the act, and the time, place, and purpose of the act in relation to the employment, the relationship between the employee’s act and the employer’s business, the benefits received by the employer from the act, the employee’s motivation for performing the act, and the employer’s reasonable expectation that the employee would perform the act. Id.

Was employee being paid by employer at the time of injury?

Did employer have control over employee at time of injury?

Was employee supposed to be performing act at time of injury?

Was injury during the time of employment?

Was injury obtained while in a place of employment?

Was injury obtained while performing an employment-related activity?

Was employee acting in a way that related to employer’s business at time of injury?

Did employer benefit from employee’s act at the time of injury?

Why was employee performing activity at the time of injury?

Did employer expect employee to perform activity when injury occurred?

In Hopper, the plaintiff sued an employee, Austin, and Austin’s employer for damages incurred during a motor vehicle accident. . Austin said in an affidavit he was driving in connection with his employment and that he was texting with or in response to a message from his employer at the very moment of the accident. He had left work for a short time to "clear his head" and make plans benefitting the project at work. The Second Circuit reversed the trial court’s grant of summary judgment in favor of the employer that Austin was not in the course and scope of his employment; the appellate court said it was a factual issue triable to the jury.

In Portillo v. Progressive Paloverde Ins. Co., 13-815 (La. App. 5 Cir. 3/26/14), 138 So. 3d 696, the Fifth Circuit Court of Appeal upheld a trial court summary judgment in favor of defendant, Volkswagen, that said the defendant’s employee, Mr. Master, was not in the course and scope of his employment when he rear-ended the plaintiff. Mr. Master was a mechanic for Volkswagen. As part of his employment he test-drove vehicles he worked on. Mr. Master owned a Jetta, which he worked on at Volkswagen to get it running. The Jetta did not have insurance coverage. Mr. Master left work after working on a different vehicle and punching out of the time card for working on that vehicle. Mr. Master left work at lunch time to go to the bank to get money to purchase insurance coverage for the vehicle. He also used this errand to test-drive the Jetta. He rear-ended the plaintiff on the way back to work and before he obtained insurance.

The plaintiff argued Mr. Master was both a customer and employee of Volkswagen regarding his Jetta. The plaintiff argued there was a factual issue of whether Mr. Master was in the course and scope because he was test driving a vehicle he had worked on at Volkswagen.

The 5^th Circuit rejected that argument because he was on lunch and was not paid for his time; summary judgment was upheld for the employer.

In Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507, the La. Supreme Court ruled that an employee, Ms. Silman, who had gone to the post office to refill a postage meter for her employer was not within the course and scope of her employment when she was involved in an automobile accident. At the time of the accident, Ms. Silman was on her way to a bank, some 18 blocks in the opposite direction past her employers' business to cash her Christmas bonus check. Ms. Silman was a clerical assistant for an attorney, and as part of her job she ran errands, including the type of errand she ran on the date of the incident.

"It has been repeatedly held that when an employer either furnishes the means of transportation or pays the employee for the use of his personal vehicle, then the employee is within the course and scope of his employment while going to and from work. Prothro v. Louisiana Paving Company, Inc., 399 So.2d 1229 (La.App. 3 Cir.), writ. denied, 404 So.2d 278 (La.1981)." Hill v. W. Am. Ins. Co., 635 So. 2d 1165, 1170 (La. 3 Cir.) writ denied, 94-1630 (La. 9/30/94), 642 So. 2d 881.

 

Other Considerations:

　

Meal Breaks

Generally, going to and from lunch is not a function in which an employee is employed, for the purposes of vicarious liability. Laird v. Travelers Indem. Co., App. 4 Cir. 1970, 236 So. 2d 561.

The same can be said under 2^nd Circuit jurisprudence: "Generally, an accident which occurs while an employee is going to or coming from work does not occur in the course and scope of employment. **8 Hebert v. Jeffrey, 94-1230 (La.App. 1st Cir.4/7/95), 653 So.2d 842.

Also, as a general rule, an employee is not within the course and scope of employment while going to and from lunch. Hill v. West American Insurance Company, 93-915 (La.App. 3 Cir.3/2/94), 635 So.2d 1165, writ denied, 94-1630 (La.9/30/94), 642 So.2d 881. However, exceptions to these rules are recognized where the employer has furnished transportation as an incident to the employment agreement, either through a vehicle or payment of expenses, and where wages are paid for the time spent in traveling. Hill v. West American Insurance Company, supra; Hebert v. Jeffrey, supra. Tucker v. Ne. Louisiana Tree Serv., 27,768 (La. App. 2 Cir. 12/6/95), 665 So. 2d 672, 677 writ denied, 96-0063 (La. 3/8/96), 669 So. 2d 404 and writ not considered, 96-0100 (La. 3/8/96), 669 So. 2d 404.

Bob-Tail Insurance Coverage?

When a driver is not under dispatch or in the furtherance of transportation duties, there is coverage available, commonly referred to as "bob-tail" because usually only the tractor is being driven for a personal reason.

Yet, there is always an argument to deny coverage, right?

The driver dropped his load at approximately 4 p.m. and called his dispatcher.  The dispatcher advised the driver to take the night off and call him in the morning to see if a load was available.  After speaking with the dispatcher, the driver bobtailed to a truck stop where he ate dinner, watched television, took a shower, and played some slot machines.  In total, the driver stayed at the truck stop for between six and seven hours.  Although the driver usually slept in the cab, his mattress was wet and he decided to go to a motel for the night. On his way to the motel, the driver was involved in an accident.  Under those facts, the court held that the driver was in the business of the motor carrier at the time of the accident – having a driver on standby and available to take a load the next day furthers the commercial interests of an employer.  Mahaffey v. General Security Ins. Co., 543 F.3d 738, 742-743 (5^th Cir. 2008).

 

Driver was dispatched by lessee to pick up a load of machinery. After picking up the load, driver went to the hospital to visit his sick wife. On his return trip, the accident occurred. Based on these facts, the court held that the driver was in the business of the motor carrier at the time of the accident. Robinson v. Guillot, 2008 La. App. Unpub. LEXIS 795 at *11 (La.App. 3 Cir. Apr. 30, 2008).

The Enigma of Getting Medical Records and Depositions From the Veterans' Administration

Our firm would like to depose some of the doctors at the VA who treated a veteran. When contact was made with the VA hospital to get the dates when those doctors were available, the VA informed our firm that we would first have to seek approval for the depositions from the VA’s general counsel, and that he would likely require the plaintiff to sign a release allowing the doctors to give their depositions regarding the treatment the doctors administered.

So the nightmare began.

Imagine walking in a hospital  maze trying to find someone willing to show you how to get out. You walk down one dead-end and you're told to turn around, walk 100 feet, take the left door down to level 3A and ask for Lucifer. You do and he smugly tells you that you need a Form 113306 but his office doesn't have the forms and he sends you to the up five flights of stairs, turn right, then down a long corridor until you come to the New Wing, where you will then take the hallway to the left and then the last door on the right where you need to ask Beelzebub for Form 113306. Oh no! You were supposed to have  produced a release in order to get Form 1133606!

You wake up. Thank God, it was only a nightmare!

Then you get to work and realize that you have to make a request for medical records and schedule the deposition of healthcare employees of the Veteran's Administration.

 

Question:

Under federal law, may the VA compel our firm to first obtain and produce to the VA a release from the plaintiff/patient before being allowed to depose the doctors who treated the patient?

 

Answer:

The question presented does not have a definitive answer.

...and so the REAL nightmare maze begins.

Yes, the Veterans Administration is the epitome of worst of government bureaucracy. Getting information from them has to be one of the most exhausting and infuriating recent process of practicing law.

Combining the regulations 38 C.F.R. 14.809 with 38 C.F.R. 1.511, it could be determined that the VA Hospital has both authority and a duty to get a patient’s consent before the VA produces doctors for a deposition regarding that patient. But it is not clear that the requirements found in 38 C.F.R. 1.511, which require consent from the patient, are applicable to depositions, and there is no language found in 38 C.F.R. 14.800 et seq. that would require the VA to receive consent from the patient before producing a doctor for a deposition.

 

The answer to the question presented starts with what is referred to as Touhy regulations. (this is where you will want to move on to another blog post about a celebrity's cat if you aren't really interested in details).

Touhy regulations

“Pursuant to 5 U.S.C.A. § 301, executive branch agencies may prescribe regulations for their own internal governance, conduct of business, record keeping, and document custody. Such regulations are commonly known as “housekeeping” regulations, and do not authorize the agency to withhold information from the public. Housekeeping regulations that create agency procedures for responding to subpoenas are often termed “Touhy regulations,” in reference to the Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951). In Touhy the Court ruled that agency employees may not be held in contempt for refusing to answer a subpoena, if prohibited from responding by a superior.” COMSAT Corp. v. Nat'l Sci. Found., 190 F.3d 269, 272 n. 3 (4th Cir. 1999) (describing the origin of the term “Touhy regulations”).

Touhy regulations have been enacted by many U.S. departments including the VA Hospital. “The VA has promulgated Touhy regulations governing its employees' testimony.”  CCA of Tennessee, LLC v. Dep't of Veterans Affairs, 09CV2442 WQH CAB, 2010 WL 1734953 (S.D. Cal. Apr. 27, 2010), citing 38 C.F.R. § 14.800–14.810.

8 C.F.R. 14.800 – 810 governs the testimony of department personnel and production of department records in legal proceedings.

Section 14.805 sets out the contents of the demand or request made to the VA. “The request or demand for testimony or production of documents shall set forth in, or be accompanied by, an affidavit, or if that is not feasible, in, or accompanied by, a written statement by the party seeking the testimony or records or by the party’s attorney, a summary of the nature and relevance of the testimony or records sought in the legal proceedings containing sufficient information for the responsible VA official to determine whether VA personnel should be allowed to testify or records should be produced. Where the materials are considered insufficient to make the determination as described in § 14.807, the responsible VA official may ask the requester to provide additional information.”

 

Nothing in section 14.805 mentions consent is necessary by the applicable patient for his medical records to be released or for doctors to provide testimony about the treatment of the patient. The only requirement shown in section 14.805 is that we, as attorneys of a party, provide a written statement summarizing the nature and relevance of the testimony requested. In simple bullet point fashion that means we need to:

• Request the deposition in writing
• Tell how the deposition is relevant and needed (summary of the relevance of the testimony)
• Provide the topics which the deposition will cover (covers the nature of the testimony).

What happens if the VA just ignores you?