TRANSPORTATION DISPATCH

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1 TRANSPORTATION DISPATCH THE TRANSPORTATION NEWSLETTER OF FRANKLIN & PROKOPIK Editor: Colin Bell Fall 2015 Franklin & Prokopik UPCOMING EVENTS October 22, 2015 District of Columbia Workers Compensation Seminar Hunt Valley, MD November 3, 2015 Labor & Employment Seminar Turf Valley, MD April 19, 2016 Maryland Workers Compensation Seminar Hunt Valley, MD See website for more details on all of our events. Inside this issue: Maryland Case Law Update 2 Virginia Insurance Law Update 2 Virginia Case Law Update 3 West Virginia Case Law Update 5 On the Road Again 6 Attorney Direct Dial 7 CLARIFICATION OF RECENT ARTICLE ON MARYLAND S NEW LAW ALLOWING FOR POTENTIAL It appears that a recent article in our Summer 2015 Newsletter (one we thought to be extremely innocuous), may have created a degree of confusion for which we sincerely apologize. We had reported on the conclusion of Maryland s 2015 Legislative Session that a measure had passed to amend Section (e)(2) of the Transportation Article to the Maryland Code, increasing the maximum allowable speed limit in the State from 65 to 70 miles per hour. The change potentially implicates only interstate highways and expressways and became effective October 1, The amended law was not going to have any immediate effect on the speed limit of any particular road. Rather, the amendment grants local authorities permission to alter the speed limits of affected highways and expressways in the State and increase the maximum from 65mph to 70mph. Our article had referenced that certain specified classes of vehicles are precluded from being on a road where the top speed of the vehicle is less than 5mph above a maximum posted speed limit. Obviously if a new allowable maximum speed were to be set for a given road could well implicate whether those classes of vehicles can travel on that road. Finally, our article had gone on to point out that many motor carriers INCREASED MAXIMUM SPEED LIMIT operate vehicles with a governed maximum speed, simply for the purpose that a potential increase in speed limit may warrant an increase in governed speed as an operating efficiency when traveling on any roads in Maryland with the new higher speed limit. Having been contacted by a number of our readers and on review of the article we realize that it was inartfully drafted and extremely ambiguous, potentially suggesting that commercial motor vehicles were in those classes required to travel at least 5mph above a posted speed limit which in turn potentially suggested that commercial motor vehicles may require any governed speed to be 5mph above the posted speed limit. This was not in any way the intent of the article and it is absolutely not the case that a commercial motor vehicle requires to have a top speed above any maximum speed limit posted in Maryland (the specified classes of vehicles are passenger vehicles and registered multi-purpose vehicles and DOES NOT include commercial vehicles). Again we apologize unreservedly for any confusion, consternation and/or inconvenience caused to our readership by the article. If anyone has any questions in regard to this clarification please contact Colin Bell at cbell@fandpnet.com or Quality Representation, Personal Service Phone: The B & O Building, Two North Charles Street, Suite 600, Baltimore, MD Facsimile: Easton MD Hagerstown MD Herndon VA Martinsburg WV Tampa FL Wilmington DE

2 FALL 2015 Page 2 MARYLAND CASE LAW UPDATE SUMMARY JUDGMENT DENIED TO DEFENDANTS EVEN WHEN PLAINTIFF ADMITTED NOT SEEING TRACTOR-TRAILER PRIOR TO COLLISION In 2011 Plaintiff was traveling in the far right lane northbound on I-95 in Prince George s County, Maryland. At the same time and place, Defendant driver was operating a tractor and hauling a trailer, also northbound on I-95. Defendant driver was an employee of named Co-Defendant motor carrier who owned the tractor. Defendant driver was acting in the course of his employment at the time and in the furtherance of the business of motor carrier Defendant. At some point as both vehicles were proceeding, some part of the front of the tractor came into contact with some part of the rear of Plaintiff s vehicle. Plaintiff then veered to the left, spinning across all lanes and finally striking a crash barrier off the far left travel lane. Plaintiff filed suit against Defendant driver claiming negligent driving and against Defendant motor carrier claiming it was vicariously liable for the negligent driving of its employee and also was independently negligent in entrusting Defendant driver with the tractor unit to drive. Defendant driver claimed he was in the second lane from the right and never merged, veered, encroached into any other lane, or otherwise moved out of the lane in which he was driving. He also claimed he saw Plaintiff veer to the left colliding with the tractor and then Plaintiff spun out of control. In contrast, at deposition Plaintiff testified that she did not see the tractor and trailer at all prior to the collision. Defendants filed a Motion for Summary Judgment arguing that because Plaintiff did not see the tractor and trailer before the collision then Defendant driver was the only witness to the accident and his evidence, that Plaintiff could not rebut, was that Plaintiff moved left and struck the tractor and is dispositive. Plaintiff countered with another part of her deposition where she testified that she never left the right lane prior to the collision (and an interrogatory answer provided she was rear-ended by Defendant driver). The Court found that whether or not Plaintiff moved out of the right lane before the accident was obviously a material fact to the ultimate outcome of the case. Defendant driver claimed Plaintiff did move out of the right lane and Plaintiff denied it, which raised a genuine issue of that material fact thus precluding summary judgment (even if Plaintiff could not affirmatively say the tractor merged right into me or was behind me and rear-ended me which seems to be Plaintiff s likely theory). The federal courts are perceived (with every justification) to be far more objective in rendering decisions and far less afraid to grant summary judgment than state courts. However, despite a fairly novel argument by the defense, that lack of certain facts or knowledge renders an unrebutted version of events to be equivalent to there being no genuine dispute of those material facts, denying summary judgment was probably the correct decision in this case. FMCSA UPDATE FMCSA CONCLUDES DATA COLLECTION FOR COMMERCIAL MOTOR VEHICLE DRIVER RESTART STUDY The Houars of Service Rule rears it s ugly head again! The 2003 Hours of Service ( HOS ) Rule, increasing driving time from 10 to 11 hours but also extending off duty time from 8 to 10 hours spawned a decade of litigation from both the trucking industry and safety advocates, where the opposite sides were both aggrieved by the changes. As a result of the legal challenges, between 2005 and 2011 the FMCSA revised the HOS Rule in attempts to address the competing concerns and issued a Final Rule in December 2011, including altering the restart provision to include two rest periods between 1a.m. and 5a.m. and only being able to use the restart provision once per week (every 168 hours). FMCSA began enforcing the

3 FALL 2015 Page 3 new provisions in July 2013 and in August 2013 the US Court of Appeals for the DC Circuit upheld all but one relatively minor provision of the Rule. However, in December 2014 Congress suspended the new restart provisions through the Consolidated and Further Continuing Appropriations Act 2015 and pending the FMCSA carrying out a naturalistic study of the operational, safety, health and fatigue impacts of those restart provisions. The suspension is in effect until submission of the final report issued by the Secretary of Transportation. Congress required the report to be based on data from a comparison of five-month work schedules of drivers operating under the HOS Rules in effect from July 2013 through suspension in December 2014 and those drivers operating under the HOS Rules prior to July The data is designed to assess safety critical events (crashes, near-crashes and crash relevant conflicts), operator fatigue/alertness and short-term health outcomes of the drivers. More than 220 drivers participated from a broad and diverse group of carriers, as to both fleet size and nature of operations and goods transported. FMCSA announced October 1, 2015 that this data collection had concluded such that it is working towards completing the final report. No preliminary study findings based on the data collection were issued. FMCSA also announced that the final report may be completed by the end of the year. So be aware that the suspended restart provisions requiring two consecutive middle of the night rest periods and only one restart per week may well come back into force, either late this year or early next year. Watch this space...! VIRGINIA CASE LAW UPDATE 12(B)(6) MOTION NOT THE PROPER PROCEDURE IN VIRGINIA FEDERAL COURT TO SEEK TO DISMISS PUNITIVE DAMAGES CLAIMED Two recent cases involving tractor trailer accidents from the Western District of Virginia shed light on the use of a Rule 12(b)(6) motion (dismissal for failure to state a claim upon which relief can be granted) in federal court as a mechanism for dismissing claims for punitive damages in wrongful death actions. The two cases conclude that a 12(b)(6) motion is not the proper mechanism for dismissing claims for punitive damages. In Meeks v. Emiabata et al., Mr. Emiabata was driving a tractor trailer late at night northbound on Interstate 81 in Wythe County, Virginia when the vehicle went out of control, crashing through a guardrail in the median that separated the northbound and southbound lanes. The accident left the cab of his vehicle in the southbound lanes, and large remnants of the guardrail in the northbound lanes. Mr. Emiabata was unscathed and coherent immediately after the accident. He was aware his overturned cab encroached into the southbound lanes and that debris, including parts of the guardrail he had crashed through, was encroaching in the northbound lanes. He did not put out flares, fuses, or reflective triangles to warn either northbound or southbound traffic of the dangers in their respective paths. Fifteen minutes later a driver in the southbound lanes was killed when he slammed into the overturned cab. Ten minutes later, Defendant had still not put out warnings, when a northbound driver of a tractor trailer hit part of the guardrail lying in the northbound lanes, ran off the road and was engulfed in flames. Decedent driver was burned to death and his family and estate filed a Complaint alleging known maintenance issues with the vehicle Defendant driver was driving; that it was not equipped with flares and/or reflective triangles as required by federal law; and that Defendant driver was fatigued and fell asleep resulting in the Occurrence. Plaintiffs sought $10,000, in compensatory damages and $500, in punitive damages under a wrongful death claim. Defendants filed a Rule 12(b)(6) motion to dismiss the punitive damages claim because the facts pled did not rise to a level that courts typically find to be willful or wanton (the standard for awarding punitive damages in Virginia). The court denied Defendant s motion. The Court was clear in its opinion that a 12(b)(6) motion does not allow dismissal of portions of a claim, such as relief sought

4 FALL 2015 Page 4 (including punitive damages), but only claims in their entirety, finding that a court should not dismiss a complaint so long as it sets out facts sufficient to support a reasonable inference that the plaintiff is entitled to any relief the court can grant, even if that relief is not specifically requested. A similar issue was similarly decided in another recent Virginia case of Blankenship v. Quality Transportation. On October 2, 2013, employee tanker truck driver of Defendant motor carrier was hauling gasoline southbound on Interstate 81 through Smyth County, Virginia. On that same day, the plaintiff s decedent was working as part of a roadway inspection crew on Interstate 81. At the time of the incident, Decedent was sitting in his pickup truck, which was parked on the right lane of the highway in the southbound direction. The truck was buffered by three (3) cushion trucks around him, with their flashing arrows activated in order to direct approaching southbound traffic to stay in the left passing lane, and thus bypass the inspection crew. The inspection crew work zone was being operated in accordance with pertinent state laws. In the days leading up to the incident, employee tanker truck driver had been driving far in excess of the hours permitted under federal law, with the approval and under the direction of Quality Transportation (editorial note: this was the allegation in the Complaint and not necessarily a fact potentially established in the case). The tanker truck was equipped with a GPS-based tracking system that enabled Defendant motor carrier to track its speeds, locations, and hours of operation. As he approached the road crew, employee tanker truck driver was driving beyond the posted speed limit, with no signs of slowing. While passing through the work zone the tanker truck went out of control, overturned and slid into Decedent s pick-up truck, causing a violent collision in which all three vehicles exploded. Decedent plaintiff and employee driver of the tanker truck were both killed instantly. The Court here also faced a 12(b)(6) motion to dismiss Plaintiffs claim for $350, in punitive damages in a wrongful death action. Defendant again argued that the plaintiff had not alleged sufficient facts to state a claim for punitive damages because the alleged facts failed to support that the driver acted willfully or wantonly. Just as in Meeks, supra, the Federal Court held that a 12(b)(6) motion was a premature means to attack a request for punitive damages, where such damages were theoretically recoverable and categorically available under applicable law. In addition, the Court went even further, finding the Complaint more than adequately pleaded a cause of action for punitive damages as relief. The Court noted that Virginia s punitive damages standard of [w]illful and wanton can be defined as [negligent] action undertaken in conscious disregard of another s rights, or with reckless indifference to consequences with which the defendant is or should be aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another. This standard is highly fact-intensive, with a defendant s entire conduct to be considered in determining whether his actions or omissions present such a question for a jury s determination. That the Complaint in this case alleged that Defendant motor carrier authorized its employee driver to operate a tanker truck for excessive hours in violation of federal law, knowing this would almost certainly result in undue driver fatigue. While driver fatigue is dangerous enough on its own, the Complaint also alleged that Defendant motor carrier permitted its employee driver to haul a large quantity of gasoline, a highly combustible and dangerous material, in an obviously precariously fatigued state. Further, the employee tanker truck driver was alleged to have driven at excessive rates of speed through a construction zone, causing him to lose control of the vehicle and collide with construction vehicles conspicuously parked in the right-hand lane. Significant to the Court was the fact that employee tanker truck driver was employed as a professional driver who was presumably aware of the dangers of speeding through a construction zone while hauling a hazardous material. Seeking to dismiss punitive damages sought in a case in federal court in Virginia would appear to be a futile exercise at least in the context of claiming a failure to state a cause of action in a suit where punitive damages are theoretically recoverable and cate-

5 FALL 2015 Page 5 gorically available. However, that is not to say that a Rule 12(b)(6) motion to dismiss punitive damages might not be viable, such as where punitive damages are sought in a cause of action where such damages are not even theoretically recoverable (e.g. we often see punitive damages included in a freight/cargo claim, particularly involving household goods being moved, which is in essence a contract claim, where punitive damages are generally not legally recognized). Also, once potential facts have been established in discovery, there may well be basis for a motion for summary judgment on the punitive damages relief sought, based on insufficient facts present to rise to the applicable legal standard of a given State. Meeks v. Emiabata, WL Blankenship v. Quality Transportation LLC, WL For more information on this article contact J. Harrison Baker at hbaker@fandpnet.com or WEST VIRGINIA CASE LAW UPDATE COURT HOLDS THAT PLAINTIFF PLAUSIBLY ALLEGED SUFFICIENT FACTS TO POTENTIALLY SUPPORT AN AWARD OF PUNITIVE DAMAGES On the morning of May 7, 2013, Defendant driver was operating a tractor trailer owned by his employer motor carrier on northbound Interstate 79 in West Virginia. At the same time Plaintiff co-workers were standing on the right shoulder close to a broken down pick-up truck in which they had been traveling. Defendant driver saw the two men standing on the shoulder, and apparently as a result took his attention off of the situation at hand, and almost struck a vehicle in the left lane. He then overcorrected and steered back across the right lane of traffic, at which point he drove the tractor trailer onto the right-hand shoulder, striking both men standing next to the disabled pick-up truck, severely injuring one (the driver) and killing the other (passenger). In the months leading up to the incident, Defendant driver had been written up or cited by his employer for his failure and inability to properly and effectively operate and maintain his tractor trailer. His deficiencies included failure to effectively, properly, and safely use his mirrors, and failure to control his tractor trailer in a safe manner, including use of a cellular device while driving. Of note, Defendant driver was using a cellular device while operating his tractor trailer on the day of the incident (editorial note: it is not at all clear that he was actually on a cell phone at the time of the subject Occurrence, as opposed to having used the cell phone earlier that day while driving. It is also not clear if he had some sort of hands free equipment). The family and estate of Decedent asserted claims in West Virginia state court individually as well as for wrongful death against Defendant driver and his employer. Defendants removed the case to the United States District Court for the Northern District of West Virginia based on diversity jurisdiction. Subsequent to removal, Defendants filed a motion for partial dismissal, asserting that the Complaint failed to adequately plead facts showing a willful, wanton, reckless or malicious act, on the part of Defendants, being the proper standard under West Virginia law to support a claim for punitive damages. Plaintiffs countered that a general disregard of the rights of others, is all West Virginia law requires to seek to establish the punitive standard. The Court, in a well-reasoned analysis, found that punitive damages claims must be specifically pleaded and that a showing of simple negligence is insufficient to secure a punitive damages award in West Virginia. The Court noted that the Plaintiffs in this case had not pleaded a stand-alone cause of action for punitive damages, but rather, simply sought punitive damages in the Complaint. However, the Court went on to note the Complaint alleged that Defendant driver saw the disabled pick-up truck and the two men standing on the shoulder, but nonetheless failed to avoid swerving onto the shoulder and hitting both; that Defendant driver had been repeatedly cited or warned by his employer for his failure to drive safely, including the use of his cellular device while driving; that the employer, despite knowledge of Defendant driver s deficiencies, still allowed him to operate a tractor trailer; that Defendant driver changed lanes at a high rate

6 FALL 2015 Page 6 of speed; and that Defendant driver used a cellular device while operating his tractor trailer. The Court held that all of these sufficiently pleaded facts intending to show wanton, reckless, malicious or willful behavior. It should be noted that this was the denial of a motion to dismiss, which is based on the allegations in the Complaint and so was not a decision meaning that punitive damages would definitely go to the jury at trial. Defendants could (and likely will) file a Motion for Summary Judgment on the punitive damages issue once discovery was complete. However, if the list of facts pleaded in the Complaint as to Defendant driver s operation of the vehicle at the time and his past driving history and perhaps more importantly and more worryingly his employer s knowledge and adverse employment actions as a result of past driving issues, are established in discovery, it seems likely punitive damages could well make it to the jury under West Virginia s standard. The more worryingly aspect is that there are no doubt separate direct causes of action against the employer for negligent hiring / negligent retention / negligent entrustment type claims. These will almost certainly give the other side arguments in closing seeking to inflame the jury for purposes of any non-economic and punitive damages, as to an uncaring business entity being personally (and not just vicariously) liable for its own negligence allowing a driver with such a known history of bad driving to be behind the wheel of a commercial vehicle. This is yet another example showing that a motor carrier has to very carefully consider whether to continue the employment of a driver with a questionable driving record and where an accident down the line may likely lead to direct causes of action that the carrier is personally negligent and liable and possibly subject to punitive damages. This also appears to be another example where alleged distracted driving through the use of a cell phone may well be an issue even though it may not have been in use at the specific time (or hands free) and so not in any way related or relevant to the actual accident. However, with the recent degree of attention to distracted driving from cell phone use (with many states now making this illegal), if this makes it to a jury, is potential further inflammatory evidence as to both liability and especially as to potential non-economic and punitive damages. on The Road again... Andrew Stephenson will attend the ATA Management Conference & Exhibition in Philadelphia, PA October 17-20, Tamara Goorevitz and Andrew Stephenson will attend the TIDA Industry Seminar in San Antonio, TX October 26-28, Maryland s Non-Economic Damages Cap Table Date of Accident Cap October 1, 2011 to September 30, 2012 $755,000 October 1, 2012 to September 30, 2013 $770,000 October 1, 2013 to September 30, 2014 $785,000 October 1, 2014 to September 30, 2015 $800,000 October 1, 2015 to September 30, 2016 $815,000 FRANKLIN & PROKOPIK 24-HOUR EMERGENCY RESPONSE Because accidents don't always happen during business hours, Franklin & Prokopik has a 24-hour emergency response system in place for those situations where immediate action is needed to protect your interests. If you would like copies of our emergency response cards, please contact Joan Hartman, our Director of Events and Communications at or her at jhartman@fandpnet.com and we will be happy to provide them to you Maryland District of Columbia Delaware Florida Virginia West Virginia Speakers Available! We can provide presentations tailored to your specific needs and can satisfy your annual training requirement. Contact Joan Hartman, our Director of Events and Communications, at to make arrangements.

7 FALL 2015 Page 7 trucking and transportation Practice group Arnsdorf, Ralph L. + # Miller, Kara M Randall, Jr., Albert B Skomba, David A Stephenson, Andrew T Bell, Colin Crawford, William A. Δ Dannenberg, Rebecca L Fenner, Natalie S.+ ^ Goorevitz, Tamara B Fowler, Bradley F Marshall, Stephen J Rosen, Kiran Sharma Segletes, III, Theodore J. Δ Akpan, Imoh E. + Baker, J. Harrison Bohrer, Carrie V. + Chiarizia, Emily M. Corso, Scarlett M. Gannett, Matthew J. Hoffman, Joshua M. + McAfee, John P. McChrystal, Lynne K. + # Admitted to CA Bar +Admitted to D.C. Bar Δ Admitted to DE Bar ^ Admitted to FL Bar Admitted to NY Bar Admitted to VA Bar Admitted to WV Bar * Newsletter Authors FirstInitialLastName@fandpnet.com

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