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?

Updates on Broker Liability In Trucking Defense Litigation

"The Impact of Sperl" posted on this blog in March 2012 remains one of the most viewed posts. Undoubtedly the impact of the Sperl decision of over $23 million against of the largest, if not THE largest, trucking broker remains a hot topic.


As recently reported by excellent panelists at the Trucking Industry Defense Association Annual Conference in San Antonio, Texas, aggressive plaintiffs, dissatisfied with the minimal cargo insurance ($750,000) mandated by the FMCSA, seeking additional "deep pockets" under innovative theories of liability. Brokers ordinarily are not liable for the negligent conduct of the independent contractors they hire, i.e. motor carriers.*

In recent years aggressive plaintiffs have concocted new theories upon which to fix liability on transportation brokers for casualty losses:

– Motor carrier violations of the FMSCRs
– Common law negligence
– Respondeat superior
– Vicarious liability–Negligent hiring/retention
– Negligent entrustment
– Joint venture /alter ego

Some Signs of Improvement

The Continued Debate on Discoverability of Social Media

The following is just another case (one of the most recent in Louisiana federal courts) on the issue: Are a plaintiff’s Facebook pictures discoverable when they are asserting a personal injury claim for neck injuries?

Farley v. Callais & Sons LLC, No. CIV.A. 14-2550, 2015 WL 4730729, (E.D. La. Aug. 10, 2015) addresses the issue of the extent of a person’s Facebook page that is discoverable square on.

The opinion follows a motion to compel filed by the defense after the plaintiff objected to the defense’s interrogatory and request for production. In short, the court did not compel the plaintiff to sign a Facebook release or to provide log-in information. The court did compel the plaintiff to produce some information and documents because the Court found the following categories of information discoverable from the plaintiff’s Facebook account, from the date of accident to the present:

1) postings by Farley that refer or relate to the accident in question;
2) postings that refer or relate to emotional distress that Farley alleges he suffered as a result of the accident and any treatment that he received therefor;
3) postings or photographs that refer or relate to alternative potential emotional stressors or that are inconsistent with the mental injuries he alleges here;
4) postings that refer or relate to physical injuries that Farley alleges he sustained as a result of the accident and any treatment that he received therefor;
5) postings that refer or relate to other, unrelated physical injuries suffered or sustained by Farley; and
6) postings or photograph that reflect physical capabilities that are inconsistent with the injuries that Farley allegedly suffered as a result of the accident.

 

The Farley court directed the plaintiff’s postings be made immediately available to plaintiff’s counsel for review for plaitniff’s counsel, not the plaintiff himself, to determine whether the Facebook postings fit into one or more of the categories outlined by the court. The court went on to say this is not particularly a complicated or unusual personal injury case and accordingly the limits placed on the social networking sites ("SNS") discovery was appropriate. This case also cites authorities from other jurisdictions:

 

Boudwin v. General Ins. Co. OfAmerica

In Boudwin v. General Ins. Co. OfAmerica. 2011 WL 4433578 (La. App. 1 Cir. 9/14/2011). Plaintiffs' Facebook pages were used to show routine physical activities. Entries were made regarding running or jogging, P90X, working out, exercising, and playing sports.

Mouton v. Old Republic Ins. Co.

In Mouton v. Old Republic Ins. Co., 2011-458 (La. App. 3 Cir. 10/5/11), 74 So. 3d 1245, 1248 writ denied, 2011-2490 (La. 2/3/12), 79 So. 3d 1028, the court of appeal held the trial court did not commit error for allowing testimony about a Facebook page despite the defense’s failure to list the Facebook page as an exhibit on their exhibit list, because the plaintiff failed to object to its admission at trial. Oddly, the court of appeal found the plaintiff objected to introduction of the Facebook page into evidence. That objection was sustained.

 

This ruling is somewhat confusing. What appears to have happened was the defense attempted to introduce the Facebook page into evidence but the plaintiff objected. The trial court sustained the objection, but the court of appeal opinion does not state why. It could very well have been because the defense failed to list the Facebook page as an exhibit on their exhibit list.

I assume the defense then elicited testimony about the Facebook page, but the plaintiff did not object. The court allowed the testimony, but did not allow introduction of the Facebook page into evidence. This case stands for the proposition that if you don’t put an exhibit on the exhibit list, you run the risk of not being allowed to introduce it into evidence. It does not say that Facebook materials are inadmissible.

 

Conclusion

The Farley decision is very recent. It is unknown whether courts will adopt the new standard that limits discovery of Facebook material to pictures and postings directly associated with or contrary to the injury claimed by the plaintiff. Additionally, the time period of the information requested may be limited.

 

Law-speak Translated...

Even if a legal professional may be lucky enough to speak with a client in the native language of the client, the attorney tends to use a special set of words unique to the profession.

Let me start with the obvious and boring stuff:

--speak clearly and efficiently
--simplify complex legal issues
--eliminate clutter
--develop your own unique style
--establish rapport with judges, juries, and clients
--eliminate stale, lawyerly speaking habits--use vibrant, expressive language

Now to the fun stuff (keep reading):

Experienced professionals who have grown comfortable using the words of the profession might want to think about whether they are using words not commonly used by non-professionals.

For example, a real estate attorney might use specific real estate words, easement, etc. unfamiliar to many. Patent attorneys speak a rather unusual language even though it is English. They use words like "prosecution". Most clients unfamiliar with patents, think of prosecution as what a prosecutor does but no, in the patent specialty arena, it refers to the events that occur between filing and issuing a patent application between the government agency and the patent attorney.

The first step in building a good relationship with a client is recognizing that the professional, particularly an experienced one, uses words that are quite often unfamiliar to their client.

The second step is to translate those words into words the client is comfortable with using, without misrepresenting any facts, timelines, or details that are materially important to serving the client.

Recognizing the special language spoken by the attorney, and tuning that vocabulary to communicate on the same level as the client, is critical to the success of the attorney/client relationship. By recognizing differences in vocabulary the attorney can build from a common basis with a client. That common basis is fundamental to building a trust relationship that can last for decades.

The following are examples of lawyer speak translated to common vernacular:

What do Truck Drivers Have in Common with Exotic Dancers?

Other than discouraging  drivers from attending a strip club, most of trucking companies would not be concerned that their drivers have anything in common with exotic dangers. Yet in recent decisions the status of an exotic dancer as an employee, rather than independent contractor, may significantly impact the way trucking companies do business.

 

A few years ago, I posted a blog about the Sperls case in which a major broker was deemed to be an employer because the amount of control imposed on the driver and the trucking company. In Sperls, the broker was found to be vicariously liable for the actions of the truck driver.

 

Many trucking companies hire "independent contractors" and the  United States Department of Labor is closely monitoring IF designated “independent contractors” should be employees.

 

Companies may think that hiring independent contractors rather than employees saves them money.  If you hire an independent contractor, you avoid having to withhold FICA and state and federal income taxes and paying for workers’ compensation, health insurance and other benefits that are otherwise available to your employees. 

 

Of course, not all independent contractors are really employees. In many other cases, however, it is not so easy to tell if someone is an independent contractor or really an employee.    Take exotic dancers.  Strip clubs in Phoenix and elsewhere around the country are being sued by exotic dancers for alleged violations of the Fair Labor Standards Act (FLSA), a federal law that requires employers to pay their employees minimum wages and overtime pay.  These dancers claim that strip club owners have misclassified them as independent contractors and that, because they are really employees, the owners have violated the FLSA and similar state laws by failing to pay them as employees entitled to minimum wages and overtime pay. So what makes them employees and not independent contractors?  

 

 

 

Obviously, there can be far-reaching implications and costs if someone is actually deemed to be an “employee.”  This was the exact  type of issue that caused so many problems for the broker in the Sperls case that I analyzed  a few years ago in the blog site: www.truckingalong-markperkins.blogspot.com. In Sperls the issue was whether the broker exhibited enough control over the day to day operations of the driver to be deemed an employer for vicarious liability purposes, but another important factor is whether  The DOL will make  enforcement a priority and may soon be asking questions at your place of business.

How to Dismiss Direct Action Against Excess Insurer When Trucking Company Has Sufficient Coverage

Many excess insurance carriers get nervous when sued under Louisiana's Direct Action Statute and want us to get them dismissed.

 

However, under the Direct Action Statute (La. R.S. 22:1269), a plaintiff can bring suit directly against an insurer if  the insurance policy was issued in Louisiana or if the accident or injury occurred in Louisiana.

 

The Direct Action statute does NOT distinguish between a primary liability insurer and an excess carrier. In fact, the definitions section of the Insurance chapter defines an insurer as “includ[ing] every person engaged in the business of making contracts of insurance, other than a fraternal benefit society.” La. R.S. 22:46. Later in the Chapter, there is an explanation of “stop-loss insurance coverage” which is excess coverage but there is no distinction between an excess insurer and a primary or self-insurer.

 

Though there are few, the cases that include excess carriers do not support dismissal under the Direct Action statute. In fact, all of the reported cases  required an excess carrier to provide coverage even when the limits of the primary or self-insurance policies were not actually paid but when the primary insurer was given credit for paying the limits.

 

 

From the jurisprudence, there is an obvious inference that the courts prefer to find coverage than limit it.  An excess insurer could not be dismissed from  a lawsuit by a  summary judgment under the terms of the Louisiana Direct Action statute; however, summary judgment could be possible under the terms of the policy after additional discovery is conducted.

 

 

For example if the trucking company were  self-insured for $2 million and it was established by admissions that the total damages would not exceed $2 million, then on could show that excess coverage is not necessary. 

 

 

While we typically do  not want to give the plaintiff the information without her asking for it that there is so much coverage available, one could, through requests for admissions, medical records, and possibly experts, a defense attorney could ultimately get the excess carrier dismissed.

 

 

A typical way that claims against insurers (and excess insurers) has been denied under the direct action statute, is make the policy a "claims-made" policy.

 

 

Typical claims-made insurance policies require claims to be both made and reported within the applicable policy period. Under this type of policy, the risk of a claim incurred but not made, as well as a claim made but not reported, is shifted to the insured. See, generally, Bob Works Excusing Non-Occurrence of Insurance Policy Conditions in Order to Avoid Disproportionate Forfeiture: Claims-Made Formats as a Test Case, 5 CONN. INS. L.J. 505, 546 (1999).

 

 

“The purpose of the reporting requirement [in a claims-made policy] is to define the scope of coverage [purchased by the insured] by providing a certain date after which an insurer knows it is no longer liable under the policy.” Resolution Trust Corp. v. Ayo, 31 F.3d 285, 289 (5th Cir. 1994). Thus, once the policy period and reporting period expire, the insurer closes its books on that policy.

 

 

The Louisiana Supreme Court in Gorman v. City of Opelousas, 2014 WL 2937129 (La. Aug. 25, 2014) held that a claims-made policy provision requiring a claim to be made and reported within the period specified by the policy was not violative of public policy because of Louisiana’s direct action statute.The Louisiana Supreme Court in Gorman focused its analysis on its prior decision in Hood v. Cotter, 08-0215, 08-0237, 5 So.3d 819 (La. 12/2/08). In Hood, the plaintiff patient’s claim for medical malpractice was neither first made against the doctor nor reported to the insurer during the policy period as required by the policy.

 

 

In Hood, the Court considered whether Louisiana’s public policy as expressed in the direct action statute would permit insurer’s to deny coverage to the patient where the doctor had failed to properly report the claim to the insurer. In reversing the prior court decision in favor of the injury party in Hood, the Louisiana Supreme Court had recognized that the direct action statute “grants a procedural right of action against an insurer where the plaintiff has a substantive cause of action against the insured.” Hood, 08-1215, 08-0237 at 17-18, 5 So.3d at 829.

 

 

Thus, the Louisiana Supreme Court, as a follow up to the Hood decision has now recognized that in the claims-made insurance policy context the insured’s failure to report the claim as required by the policy will bar coverage irrespective of Louisiana’s direct action statute.

 

If you would like to visit more about the Louisiana Direct Action statute or any other matter pending (or not) in Louisiana or Texas, feel free to contact me.

Negotiating Despite the Agression of "Versus"

As a trial lawyer, I take the word "versus"  for granted. It has been in  every caption of every case that I have ever been involved. Sadly, it has become more than part of the caption, it has become synonymous with an attitude of aggression.

 

Look  more closely at the definition and  learn "versus" come from Latin meaning   “against, turned." We  also get the phrase vice-versa: reverse from the way it has been assumed, conversely, inversely.  Copernicus was the first to suggest that the earth revolves around the sun, and not vice versa. Likewise, the way we think NOW may be in error or contrary to reality.

 

Unfortunately, when we see “versus” there is the assumption of stern, belligerence: "North v. South,"  "Wrong v. Right,"  "Us v. Them."  Often things are not as they seem and it’s not until the complete presentation  of all information that we  can come to a conclusion. Even then it may not be "all versus nothing"; it may be “some, but not all.”

 

 

We have to get out of this poor thinking that “she is ALL wrong and I am all right.” Yes, there absolute truths, but NONE of us are absolutely truthful, “…No matter how thin the pancake, there are  still two sides,” to quote Dr. Phil McGraw.

 

How we deal with conflict reveals much about our maturity and character. Is it all about being right, winning at all costs, speaking our mind no matter what the consequence? On the other hand (“vice versa”), do we consider the other side, do we analyze the risk and cost of winning (or losing), do we temper our words to reduce the emotions of the conflict?

 

Yes, we need to be READY to defend or pursue a claim when unjustly treated, but we need to always negotiate fairly and seek compromise. We must do ALL that is within OUR power  to bring about peace. *

 

“Making” peace and “keeping” peace are not the same.  Keeping peace is often docile and overly conciliatory; giving  the other side whatever he wants to “keep the peace.” Making peace requires a level of meekness (strength under control) in zealously presenting your case but always with an attitude of being reconciliatory -- bringing both sides together -- if possible.

 

Unfortunately, even  when we feel like handling a matter peacefully, there are those who push us to “take stand” or “fight back.”   Quiet that noise as you evaluate with clear conviction if you are 100 percent right? Do you really believe you have NO part in where you find yourself? I am not talking about the initial cause, but the present result. Perhaps the ball started rolling because of an initial harm; however, how far the ball continues to roll depends on when you pick  it up.

 

If you don’t want to think beyond your own closed mind, you won’t want someone else’s ideas in there mixing things up. So that makes fertile ground for narrowing your  perspective. It creates a mindset of ubiquitous obnoxiousness. Perhaps when you finally give up the quest to exceed others  in the Guinness Book of Obnoxiousness, you will find a way to say, “We agree.”

 

Once  we agree, let’s not poke the agreement full of "nut words, green cherry words, and little chunks of pineapple word" and  plump it up like we’re  baking a fruitcake. All that butter and rum just to say, “We agree.”

 

Rather than making things simple, we fob it off, and get something like:  

“We would also like to come to complete agreement on a resolution to this matter (but we have to appear combative, ridiculous, uncompromising, and therefore interesting, or we will never get our own TV reality show when we’re through with this gig, and why are we in this if not for that?).”

A better idea would be:

“You have heard that it was said, ‘Love your friends, hate your enemies.’ But now I tell you: love your enemies and pray for those who persecute you, so that you may become the children of your Father in heaven. For he makes his sun to shine on bad and good people alike, and gives rain to those who do good and to those who do evil. Why should God reward you if you love only the people who love you? Even the tax collectors do that! And if you speak only to your friends, have you done anything out of the ordinary? Even the pagans do that!”  Matthew 5:43-47

So the next time you think about those opposing you, remember your attitude in the situation. Don’t seek only to change THEIR mind, but to see from their perspective. All good lawyers/negotiators know that "versus" is just part of the caption; not the final resolution.

 

 

 

 

 

 

 

If there is anything we can do to assist you bringing a dispute to resolution, please feel free to call day or night.

 

Mark Perkins

Perkins & Associates, LLC

318-222-2426

 

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* I am ready, willing and able to try any case that needs to be tried. I have tried more jury trials than most lawyers try in their entire career; however, "discretion is the better part of valor."