Practical Considerations for Handling Liability Trucking Claims in Mississippi

Transcription

1 Practical Considerations for Handling Liability Trucking Claims in Mississippi M. Garner Berry, Esq. Markow Walker, P.A. 599 Highland Colony Parkway, Ste. 100 Ridgeland, Mississippi Telephone: Facsimile:

2 I. Preliminary Considerations A. Be Aggressive Early and Often B. Discoverable v. Admissible C. Removal to Federal Court II. Discovery Considerations A. Personnel Files B. Drug and Alcohol Use C. Driving History D. Out of Service Status E. CSA/SafeStat F. Bankruptcy III. Liability Considerations A. Negligent Entrustment B. Vicarious Liability C. Uniform Crash Reports IV. Expert Considerations A. Treating Physicians B. Hired Experts V. Damages Considerations A. Caps B. Lost Wages C. Punitives Table of Contents

3 A. Be Aggressive Early and Often Throughout litigation, you will encounter claims of the plaintiff that often lack proof, even after considerable discovery Lost Wages Punitive damages Negligent Entrustment Don t allow claims to float around unaddressed Attack them early with summary judgment motions, or eventually with motions in limine I. Preliminary Considerations

4 B. Discoverable v. Admissible Miss. R. Civ. Pro. and Fed. R. Civ. Pro. 26 Miss. R. Evid. and Fed. R. Evid. 401, 402, & 403 What may be discoverable throughout litigation may not ultimately be admissible at trial I. Preliminary Considerations

5 C. Removal to Federal Court Often times, regardless of the state in which the accident occurs, the Defendant carrier is incorporated or has its principal place of business in another state Title 28 U.S.C. Section 1441 provides for removal of actions from state court to federal court Absent a federal question, Title 28 U.S.C. Section 1332 provides that a case may be removed when complete diversity of citizenship between the Defendant and the Plaintiff exists, provided that the amount in controversy exceeds $75, However, plaintiffs often do not plead a specific amount in controversy such that you can ascertain whether the amount in controversy exceeds $75, I. Preliminary Considerations

6 C. Removal to Federal Court (Cont.) Draper v. United States Fidelity & Guaranty Company, 2000 U.S. Dist. Lexis 2781 (S.D. Miss. 2000) The Court set forth the proper method for defense counsel to utilize in determining the true amount in controversy where defense counsel believes the damages sought are in excess of $75,000.00, but Plaintiff has pleaded damages in an uncertain amount to avoid federal diversity jurisdiction The Court held the defense can have the Plaintiff admit or deny through a request for admission that they would not seek more than the jurisdictional limit In Draper, the Court went on to state that Plaintiff could have remained in state court with a straight forward response to the request for admission, and in any way failing to answer the request for admission is indicative of an intent to exceed the diversity jurisdiction limit I. Preliminary Considerations

7 A. Personnel files Objections to requests for personnel files are based on the attempt to invade the personnel s right to privacy Clemons v. Dollar General (ND Miss. 2010) EEOC v. HWCC Tunica, Inc. (ND Miss. 2008) Determine whether a Driver Qualification file (FMCSR ) and Personnel file are blended If blended, they are probably considered one and discoverable If Personnel file is separate, some material may be objectionable II. Discovery Considerations

8 B. Drug and Alcohol Use Utz v. Running & Rolling Trucking, 32 So.3d 450 (Miss. 2010) Plaintiff claimed error by allowing testimony of Utz s friend regarding drug use, error which was allegedly compounded by the State Toxicologist s testimony that no meth was found in Utz s system Woolf s testimony was not hearsay because it was based on personal observation and knowledge (R. Evid. 601 & 602) The probative value of Utz s activity prior to the accident outweighed any prejudice (R. Evid. 403) II. Discovery Considerations

9 B. Drug and Alcohol Use (Cont.) Woolf testified that Utz began smoking meth at 4 a.m. and got high He further testified that because of the ether in meth, a user will eventually fall asleep Utz got high again around 6 p.m. and left the home around 11 p.m. Woolf testified that he would not want to ride with Utz because they had been smoking meth and been awake for several days straight Woolf s testimony was relevant because it concerned the type of activity Utz was engaged in prior to the accident and the impact the activity may have on Utz s alertness II. Discovery Considerations

10 B. Drug and Alcohol Use (Cont.) Utz s sister was allowed to testify that based on her past experience with meth, she believes the white substance found in Utz s pants after the accident was meth (R. Evid. 701) Per R. Evid. 701, testimony was admissible since the sister was familiar with meth, had smoked it before, knew what it looked like and what it smelled like Her testimony was based on her perception, was helpful to the jury in determining the effects of drug use on Utz, and was not scientific testimony II. Discovery Considerations

11 B. Drug and Alcohol Use (Cont.) Just like plaintiff, Defendant drivers are also subject to the same standards should impairment be an issue FMCSR Fatality Injury requiring medical treatment away from the scene or an accident disabling a vehicle, accompanied by a citation Key is to know when tests are required of drivers and not create information that is discoverable II. Discovery Considerations

12 B. Drug and Alcohol Use (Cont.) Finally, beware of plaintiffs claiming the doctor-patient privilege to prohibit discovery of blood tests Sessums v. McFall, 551 So.2d 178 (Miss. 1989) Scott v. Flynt, 704 So.2d 998 (Miss. 1996) Coleman v. Ford Motor Company, 70 So.3d 223 (Miss. App. 2011) Results of blood test admissible because injuries and treatment placed into issue II. Discovery Considerations

13 C. Driving History Utz v. Running & Rolling Trucking, 32 So.3d 450 (Miss. 2010) Plaintiff claimed Hunter s driving record showed a pattern and practice of violating the FMCSRs Court excluded the driving history, finding the violations in the past were not relevant to the wrongful death and too remote in time Further, the number and severity of the violations did not demonstrate a pattern or practice II. Discovery Considerations

14 C. Driving History (Cont.) Mississippi generally holds that prior driving history is inadmissible for an inference of negligence that the same conduct was negligent on the date of the accident Baxter v. Rounsaville, 193 So.2d 735 (Miss. 1967) Nehi Bottling Co. v. Jefferson, 84 So.2d 684 (Miss. 1995) (negligent entrustment) Washington v. Kelsey, 990 So.2d 242 (Miss. App. 2008) (speeding history) Hood v. Dealers Transport Co., 459 F.Supp. 684 (N.D.Miss. 1978) (prior traffic violations irrelevant with vicarious liability) II. Discovery Considerations

15 D. Out of Service Status Utz v. Running & Rolling Trucking, 32 So. 3d 450 (Miss. 2010) Plaintiff contended, and offered expert testimony, that the truck was out of service due to the lack of reflective tape, and since it was in violation of the FMCSRs, it should not have been on the roadway Essentially strict liability II. Discovery Considerations

16 D. Out of Service Status (Cont.) The Court found that violations of traffic laws do not amount to strict liability The Court further found that plaintiff s experts couldn t render opinions based on sufficient data/ facts that because of the lack of reflective tape, the truck was not visible to Utz; therefore, experts can t opine that this was the cause of the accident They could testify as to what a reasonably prudent driver would have seen The negligence must also be the proximate cause Jones v. USF&G, Co., 8 So.2d 946 (Miss. 2002) Choctaw Maid Farms, Inc., v. Hailey, 822 So.2d 911 (Miss. 2002) II. Discovery Considerations

17 D. Out of Service Status (Cont.) Similarly, maintenance records may become relevant when the cause of action involves mechanical failure Duty, like above, typically is premised on the FMCSRs Proving the second and third element, breach and causation, may involve maintenance records, in conjunction with expert testimony II. Discovery Considerations

18 E. CSA/SafeStat Utz v. Running & Rolling Trucking, 32 So. 3d 450 (Miss. 2010) Plaintiff contended that R&R s rating showed a pattern and practice of not following the FMCSRs and that it was the proximate cause of the accident Court excluded the evidence as too remote to be relevant to the issue at hand Under R. Evid. 401, carrier rating was not relevant to whether or not reflective tape was present at the time of the accident II. Discovery Considerations

19 E. CSA/SafeStat (Cont.) The stated purpose of SafeStat is to prioritize carriers for DOT Compliance Reviews Data has been criticized as unreliable, misleading and incomplete Courts have split on admissibility and use II. Discovery Considerations

20 E. CSA/SafeStat (Cont.) CSA is a response to alleged unreliability of SafeStat Recent studies have found it vulnerable ATA Assumption is that BASIC scores predict future accidents However, the Rules of Evidence are well established that past conduct should not be used to prove present liability 3 of 7 BASIC categories do not identify future crash worthiness Sufficient data to rank only 12% of carriers ATRI concludes it is wrong to assume unranked carriers are safer than those with reported data ATA suggests a more balanced perspective Future involvement in a crash does not currently account for fault of a crash Involvement reflects exposure, not safety problems II. Discovery Considerations

21 F. Bankruptcy Plaintiffs can be judicially estopped from pursuing a claim for omission of the claim in a bankruptcy petition Jethroe v. Omnova Solutions, Inc., 412 F.3d 598, 600 (5th Cir. 2005) A Court shall apply judicial estoppel if (1) the position of the party against which estoppel is sought is plainly inconsistent with its prior legal position; (2) the party against which estoppel is sought convinced a court to accept the prior legal position; and (3) the party did not act inadvertently. Galloway v. Stinger Wellhead Protection, Inc., 446 F. Supp. 2d 655 (2006) Judicial estoppel is designed to protect the judicial system, not the litigants. The District Court took issue that the worker who brought suit against a corporation for an injury failed to amend his schedule of assets twice The Court barred the plaintiff s claim because of the blatant misrepresentations In re Superior Crewboats, Inc., 374 F.3d 330, 334 (5th Cir. 2004) Judicial estoppel is not designed to protect Defendants; it is designed to prevent parties from playing fast and loose with the court system II. Discovery Considerations

22 A. Negligent Entrustment Claims The law in Mississippi regarding claims against an employer for negligent entrustment of a motor vehicle to an employee is clear If the employer admits that the employee was acting within the course and scope of his employment, Plaintiffs cannot present their negligent entrustment claim to the jury Cole v. Alton, 567 F.Supp (N.D. Miss. 1983) Hood v. Dealers Transport Co., 459 F.Supp. 684 (N.D. Miss. 1978) Nehi Bottling Co. of Ellisville v. Jefferson, 84 So.2d 684 (Miss. 1956) III. Liability Considerations

23 A. Negligent Entrustment Claims (Cont.) Davis v. Rocor International, 2001 U.S.Dist. LEXIS (S.D. Miss. Dec. 19, 2001) Judge Barbour ruled that when vicarious liability is admitted by the employer for the employee, presentment of negligent entrustment, hiring, training, and retention is obviated and unnecessary The plaintiffs in that case argued that corporate negligence claims against the employer are separate and distinct causes of action to hold the employer liable for the employees conduct and the Court held that the negligent hiring, training, and retention merge with the negligence claims against the employee III. Liability Considerations

24 A. Negligent Entrustment Claims (Cont.) Walker v. Smitty s Supply, Inc., 2008 U.S. Dist. LEXIS (S.D. Miss. May 8, 2008) Harris v. MVT Services, Inc., 2007 U.S. Dist. LEXIS 65709, (S.D. Miss. Sept. 5, 2007) Granting summary judgment finding the Davis conclusion should be applied to Plaintiff s claims of negligent entrustment, hiring, training and retaining against the Defendant III. Liability Considerations

25 B. Vicarious Liability J&J Timber Co., v. Broome, 932 So.2d 1 (Miss. 2006) Where a plaintiff s suit against an employer is based on respondeat superior, the vicarious liability claim itself is extinguished when the employee is released The Court reasoned that when a plaintiff settles with an employee, and sues the employer through only the theory of vicarious liability (as opposed to independent liability of employer), then the cause of action against the employer is also released Through the circle of indemnity, any future judgment would be collected by the plaintiff from the employer, who would then seek reimbursement from its employee, who would then seek reimbursement from the plaintiff pursuant to the release III. Liability Considerations

26 B. Vicarious Liability (Cont.) Sykes v. Home Health Care Affiliates, Inc., 2012 Miss.App. LEXIS 602 (Miss.App. 2012) Court of Appeals extended the holding in Broome The basis for plaintiff s cause of action against defendant stems solely from the alleged negligent actions of the employer s driver Under Mississippi precedent, since the claims against the defendant were wholly derivative of the actions of its driver, the claims against the employer were barred by the statute of limitations when the driver was not timely served with process during the statute of limitations III. Liability Considerations

27 C. Uniform Crash Reports Typically, a substantial portion of the information contained in the Mississippi Uniform Accident Report is composed of hearsay not falling under any of the recognized exceptions to hearsay within Rules 803 or 804 of the R. Evid. Copeland v. City of Jackson. 548 So.2d 970 (Miss. 1989) The Mississippi Supreme Court held as a general principle under M.R.E. 803(6)--practically identical to Fed. R. Evid. 803(6)-- a police report prepared by someone acting in the regular course of business is admissible into evidence The court qualified this general principle by stating, in holding such report admissible we should not be understood as holding all the contents of the report were necessarily admissible...there may be notations in such a report which are recitations of statements of others, and would be inadmissible III. Liability Considerations

28 C. Uniform Crash Reports (Cont.) Lentz v. State, 604 So.2d 243, 248 (Miss. 1992) Reiterated where a law enforcement agency prepares a report as a regular exercise of its duty, the report is admissible under MRE 803 (6), so long as the person who is the source of the information contained in the report was acting in the regular exercise of the agency s duty when he learned of the information However, Bingham v. State, 723 So.2d 1189, 1192 (Miss. 1998) Recognizes the very nature of police investigation reports also requires the taking of statements from parties, witnesses, and bystanders, statements which lack the safeguards outlined within the definition of hearsay and non-hearsay under Rule 801 Fisher v. State, 690 So.2d 268, 273 (Miss. 1997) Holding that the source of the information in the report must come from the person under the business duty Officers typically have a business duty to fill out an accident report; however, plaintiffs and defendants do not have a business duty to record facts surrounding the accident III. Liability Considerations

29 C. Uniform Crash Reports (Cont.) Ware v. State, 790 So.2d 201 (Miss.App. 2001) Fleming v. Floyd, 969 So.2d 869 (Miss. 2007) Hall v. Boykin, 207 So.2d 645 (Miss. 1968) III. Liability Considerations

30 A. Treating Physicians Plaintiffs often file shotgun designations of experts, particularly of treating physicians, that do not meet the requirements of Rule 26 of Rules of Civil Procedure Local Rule 26 provides that an attempt to designate an expert witness without providing full disclosure information...may be stricken upon proper motion, and the designation of treating physicians shall include facts known and opinions held by the treating physician(s) and a summary of the grounds therefor IV. Expert Considerations

31 A. Treating Physicians (Cont.) Robbins v. Ryan s Family Steak House s East, Inc., 223 F.R.D. 448 (S.D.Miss. 2004) Judge Barbour took the opportunity to address Fed. R. Civ. Pro. 26 (a) and Uniform Local District Court Rule 26.1(A) and their requirements regarding the designation of treating physicians as experts The Court found that the traditional requirement of a written report signed by treating physicians designated as experts has been excused, recognizing the difficulty and expense in obtaining the report from treating physicians; however, treating physicians must still be designated in accordance with the procedure in Local Rule 26.1(A)(2)(f) [now subsection d] The Court may allow in some instances that the office records be submitted in place of the report, and in these limited circumstances, the Court stated, the treating physician is limited to testifying only to those opinions expressed in the records, and if opinions not expressed in the records are to be elicited, a written report shall be submitted or be subject to objection and stricken IV. Expert Considerations

32 A. Treating Physicians (Cont.) Plaintiffs may attempt to argue that the treating physicians were deposed and offered up opinions during the deposition; however, Courts have held this is still not sufficient Francois v. Colonial Freight Systems, Inc., 2007 U.S.Dist. LEXIS (S.D.Miss. 2007) Holding that while plaintiffs identified their treating physicians during discovery, they failed to identify them as possible expert witnesses, and the supplemental expert designation of the treating physicians failed to meet the requirements of the Local Rules as they do not disclose the opinions held by these treating physicians or a summary of the grounds therefor IV. Expert Considerations

33 A. Treating Physicians (Cont.) Williamson v. Gowan Company, LLC, 2008 U.S. Dist. LEXIS The Court stated the purpose of providing opposing counsel with experts intended opinion testimony is so that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses The Court found that offering a signed deposition of the purported expert when no written signed report was provided did not satisfy the plain reading of Rule 26(a)(2)(B) IV. Expert Considerations

34 B. Hired Experts Federal Rule of Civil Procedure 26 and Uniform Local District Court Rule 26.1 Provides clear and unambiguous requirements for the proper designation of expert witnesses Local Rule 26.1(A)(2) provides a party shall...no later than the time specified in the case management order, make disclosures as required by Fed. R. Civ. P. 26(a)(2)(A), (which requires the production of a written and signed report at the time of designation) The Local Rule further provides that an attempt to designate an expert witness without providing full disclosure information...may be stricken upon proper motion. IV. Expert Considerations

35 B. Hired Experts (Cont.) Anderson v. Jones, 2006 U.S. Dist. LEXIS (S.D.Miss 2006) Held that plaintiff s designation was woefully inadequate and that the only factor met as required by the Rules was the identification of the witness No expert report is included, much less a signed report, no complete statement of expert s opinions and justification therefor is included, no exhibits or summaries are included, no qualifications of the expert are included, the names of publications authored by the witness are not included, the compensation to be paid to the witness is not included and lists of prior court and/or deposition testimony are not included. The only information that is included in the Expert Designation, other than the name of the witness, is Plaintiff s counsel s expectation of issues to which the witness will testify at trial. IV. Expert Considerations

36 A. Caps Miss. Code Ann [I]n the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for noneconomic damages. The trier of fact shall not be advised of the limitations imposed...and the judge shall appropriately reduce any award of noneconomic damages that exceeds the applicable limitation. Estate of Klaus v. Vicksburg Healthcare, LLC, 972 So.2d 555 (Miss. 2007) Cap on noneconomic damages applies to all plaintiffs who bring a wrongfuldeath action Miss. Code Ann Statutory cap on punitive damages These limits do not apply if the defendant was convicted of a felony, or was under the influence of alcohol or drugs Learmonth v. Sears, Roebuck and Co., No , February 27, 2013 (5 th Cir. 2013) Upholding the Mississippi Legislature s statutory cap on noneconomic damages Stay tuned for more to come... V. Damages Considerations

37 B. Lost Wages Under Mississippi law, plaintiff must prove his damages with reasonable definiteness and certainty The jury is not permitted to speculate regarding damages Bradley v. Findley, 502 So.2d 1181 (Miss. 1986) Holding that to recover for lost earning, there must be evidence from which an amount may be ascertained upon some reasonable basis Plaintiffs may designate an economist to provide testimony concerning economic loss, but utilize some assumed initial estimated earnings number However, what is lacking is the production of any documentation to substantiate the assumed annual earnings An expert opinion must be based on a proper factual basis Treasure Bay Corp. v. Ricard, 967 So. 2d 1235 (Miss. 2007) V. Damages Considerations

38 C. Punitives Miss. Code Ann. Section Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud It is well settled in Mississippi that punitive damages are to be assessed only in extreme cases Gardner v. Jones, 464 So.2d 1144, 1148 (Miss. 1985) The Mississippi Supreme Court has upheld this rule of law in its decisions regarding punitive damage claims arising out of motor vehicle accidents Fowler Butane Gas Co. v. Varner, 141 So.2d (Miss. 1962) In order to warrant the recovery of punitive damages, there must enter into the injury some element of aggression or some coloring of insult, malice or gross negligence, evincing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule V. Damages Considerations

39 C. Punitives (Cont.) Applying this standard, the Mississippi Supreme Court has consistently held that, absent egregious circumstances, cases involving automobile accidents are not suitable for punitive damages. The Greyhound Corp. v. Townsend, 108 So.2d 208 (Miss. 1959) Such award[s] will be allowed only where such injury is attended by circumstances of willful fraud, malice, or gross negligence, and, the mere fact that the act complained of is unlawful is not of itself ground for an award of exemplary damages Yazoo & Miss. Valley R. Co. v. Hardie, 100 Miss. 132, 55 So. 42, 967 Punitive damages are appropriate, only where there has been some intentional wrong, insult, abuse, harshness, or where there has been such gross neglect of duty as to evince reckless indifference of the rights of others V. Damages Considerations

40 C. Punitives (Cont.) Mayfield v. Johnson, 202 So.2d 630 (Miss. 1967) We cannot say that because the appellee put down skid marks on the hard surface road by the application of his brakes which extended 81 feet or approximately five car lengths, and the fact that he did not keep a sharp lookout, coupled with the fact that appellant s station wagon was struck and rolled a distance of 84 feet or more than five car lengths, constitutes such gross negligence as warrants the circuit judge in submitting to the jury the question of whether or not punitive damages should be allowed. If under the facts of this case it can be properly held that punitive damages would be allowed, then there would be deluge of cases seeking punitive damages whenever one vehicle was struck from the rear by another vehicle which was being driven at a speed in excess of the speed allowed and when the driver of the vehicle was not keeping a sharp lookout. We think the fact that the appellee endeavored to stop his car and not strike the rear of appellant s station wagon cannot be disregarded. Such conduct was not so gross as to be the equivalent of willfulness. It does not indicate a reckless or wanton disregard for the safety or property of others but an effort on his part to prevent the damage and injury which his negligence caused. Maupin v. Dennis, 175 So.2d 130 (Miss. 1965) Ulmer v. Bunner, 190 So.2d 448 (Miss. 1966) Aldridge v. Johnson, 318 So.2d 870 (Miss. 1975) V. Damages Considerations