Arguments at Texas Supreme Court recap liability and blame apportionment in fatal 2014 accident
John Kingston
Deadlines are looming for all briefs to be filed with the Texas Supreme Court as it decides whether to review the enormous verdict against Werner Enterprises growing out of a 2014 fatal wreck. With interest, the sum now stands above $100 million.
A primary brief was filed in October by attorneys for the Blake family, which suffered one death, one catastrophic brain injury and other injuries in the Dec. 30, 2014, West Texas crash.
On Feb. 15, attorneys for Werner (NASDAQ: WERN) filed a brief for the company, and earlier this month the Texas Trucking Association filed a friend-of-the-court brief.
The Supreme Court’s page dedicated to the case lists March 6 as the final date for any respondents to file with the court.
Werner’s legal brief reviews well-trod ground on the accident and what happened in a lower court in 2018, when the decision against Werner was first handed down.
But it and the Blake brief also weigh in on the issue of extending liability out to Werner, as it appears clear that the trucking industry is concerned that precedents set in the case could impact future verdicts against carriers.
The facts of the accident are not in dispute. A pickup truck heading east on Interstate 20 in West Texas driven by Trey Salinas and ferrying members of the Blake family hit a black ice patch, streaked across a more than 10-yard-wide median and crashed into a westbound Werner truck driven by Shiraz Ali. Winter storm watches were in effect. One of the Blake children died, and a second was severely injured. Other passengers had less serious injuries.
The Blakes’ core argument is that Ali had not sufficiently slowed his truck to compensate for the weather. If he had, the Werner truck would not have been where it was when the pickup driven by Salinas crossed the median.
In its brief, Werner’s attorneys summed up the trial court’s ruling as saying that Ali “owed a duty to reasonably foresee that the Blakes’ vehicle might careen into his path.”
In apportioning blame, the lower court jury assigned 70% to Werner on one of the key questions of liability and 30% on another liability issue. On the former question, Salinas’ blame was assessed at 16%.
The arguments leveled against Werner by attorneys for the Blakes in their attempt to put blame on the carrier involved such disparate issues as driver training (along with a borderline personal attack on the person who filled the company’s role as head of training), the demand for on-time delivery, and the lack of a control system that could have instructed Ali to get off the road.
Appeals court upholds lower court ruling
The lower court award of just under $90 million was appealed, and ultimately the full Court of Appeals for the 14th District of Texas grabbed the case before a three-judge appellate court panel could issue its ruling. In a 5-4 decision, the justices ruled in favor of the Blakes. (Interest fees on the initial award resulted in the case being worth more at every stop through the judicial system).
The briefs filed by attorneys for the Blakes and for Werner both provide significant discussion of the “Admission Rule.” Attorneys for the Blakes describe the rule as “[barring] derivative-liability claims like negligent training and supervision when the employer concedes vicarious liability.”
They said the rule was “once the majority rule [but] the modern trend is to reject the rule.”
The Admission Rule is a “relic” of a period before juries could hand down very specific proportionate blame for an accident, according to the Blakes’ attorneys, and “conceals all the ways the employer contributed to the harm except its driver’s conduct, resulting in a fictional apportionment where much of the employer’s responsibility is redistributed among other parties.”
Dissent cited by Werner on issue of Admission Rule
Justice Randy Wilson, in a dissent to the 5-4 vote, wrote that the Admission Rule holds that if an employer acknowledges one of its employees “was acting in the course and scope of his employment when the employee allegedly engaged in negligent conduct (that) bars a party allegedly injured by the employee’s negligence from pursuing derivative theories of negligence against the employer.” His minority argument was that the Admission Rule should have barred the enormous liability claim against Werner, which employed Ali.
Attorneys for Werner concur and say the issues in the case could be precedent-setting. The brief says the “question [has] never [been] definitely resolved by this Court: whether a claimant injured by a person acting in the course and scope of employment may pursue derivative negligence theories against an employer” if the employer concedes the worker was performing duties for the employer.
Werner’s brief called Wilson’s dissent “powerful” but conceded that while courts recognize the Admission Rule, they aren’t in agreement on what its impact can be.
By not limiting liability down the line, the Werner attorneys argue, it effectively defined a driver’s duty as “one owed to the whole world.” “If affirmed, the trial court’s judgment will establish that a driver and his or her employer may be held liable for injuries to other motorists no matter how improbable, fantastic, or farfetched,” Werner said in its brief. “Because that result has no basis in Texas law, reversal of the trial court’s judgment is necessary.”
In its amicus brief, the Texas Trucking Association says the Admissions Rule helps provide “appropriate boundaries for argumentation on employer liability and reduce the likelihood of error.”
“Had Ali been driving outside the course and scope of his employment, [the Blakes] may have been able to use derivative liability theories like negligent hiring, training, entrustment, or supervision to find Werner responsible for Ali’s actions,” the association writes. “But when an employer stipulates to course and scope — as Werner did here — the employer’s negligence is no longer in doubt, so long as the employee is found to have been negligent.”
Werner attorneys also are raising the issue of the charge to the lower court jury, saying it improperly mixed issues that they believe should have remained separate, affecting the final verdict.
FMCSA Requests Comments on Application for Certificate of Registration for Foreign Motor Carriers and Foreign Motor Private Carriers ICR
On Feb. 16, the Federal Motor Carrier Safety Administration (FMCSA) requested comments on the Application for Certificate of Registration for Foreign Motor Carriers and Foreign Motor Private Carriers information collection request (ICR). Foreign for-hire and private motor carriers are required to file an application if they wish to register to transport property within municipalities in the United States on the U.S.-Mexico international border or within the commercial zones of such municipalities. Comments are due by April 16.
FMCSA Requests Comments on Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ICR
On Feb. 16, FMCSA requested comments on the Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ICR, which allows for ongoing, collaborative and actionable communication between FMCSA and its customers and stakeholders. Feedback may also contribute directly to the improvement of program management. Comments are due by April 16.
FMCSA Requests Comments on Impact of Driver Detention Time on Safety and Operations ICR
On Feb. 16, FMCSA requested comments on the Impact of Driver Detention Time on Safety and Operations ICR. This research study will collect data on commercial motor vehicle (CMV) driver detention time representative of the major segments of the motor carrier industry, analyze that data to determine the frequency and severity of detention time, and assess the utility of existing intelligent transportation systems solutions to measure detention time. Comments are due by March 18.
FMCSA Requests Comments on Truck Leasing Terms and Conditions
On Feb. 16, FMCSA requested comments and information to assist the agency’s Truck Leasing Task Force (TLTF) in reviewing such leases to identify terms and conditions that may be unfair to drivers. The TLTF is tasked with examining the terms, conditions and equitability of common truck leasing arrangements, particularly as they impact owner-operators and trucking businesses subject to such agreements. Comments are due by March 18.
U.S. DOT Announces Upcoming DOT Advisory Committee on Human Trafficking Meeting
On Feb. 13, the U.S. Department of Transportation (DOT) announced a virtual meeting of the U.S. DOT Advisory Committee on Human Trafficking which will be held March 13. Pre-registration is required, and those interested in attending should email their name and affiliation to trafficking@dot.gov by March 5.
U.S. DOT Requests Comments on Updates to Department-wide Learning Agenda
On Feb. 13, the U.S. DOT requested comments on the Department-wide Learning Agenda for Fiscal Years 2022-2026 (Learning Agenda). The U.S. DOT seeks public input regarding potential updates to the published Learning Agenda. Comments are requested by April 9.
FHWA Requests Comments on Truck Parking Facilities ICR
On Feb. 12, the Federal Highway Administration (FHWA) requested comments on the U.S. DOT Survey and Comparative Assessment of Truck Parking Facilities. The goal of the survey is to evaluate the capability of the states to provide adequate parking and rest facilities for CMVs engaged in interstate transportation. Comments are due by April 12.
U.S. DOT Publishes Unified Agenda of Federal Regulatory and Deregulatory Actions
On Feb. 9, the U.S. DOT published the Unified Agenda of Federal Regulatory and Deregulatory Actions (Regulatory Agenda). The Regulatory Agenda is a semiannual summary of all current and projected rulemakings, reviews of existing regulations, and completed rulemaking actions of the U.S. DOT. The Regulatory Agenda provides information about the agency’s planned regulatory activity for the next 12 months.
FMCSA Requests Information on Efforts to Study Sexual Assault and Harassment in the CMV Industry
On Feb. 8, FMCSA requested information on efforts to study and quantify the prevalence and severity of sexual assault and sexual harassment experienced across the CMV industry. FMCSA specifically seeks information on how to best approach this study holistically in terms of statistical sampling, study design and administering the appropriate data collection efforts. Comments are due by March 11.
By Alyssa Adams
The moment an accident occurs is not the time to put your company’s accident response plan into place. Having an accident response plan in place, including training your dispatchers on the policy, will allow you to act as soon as an accident occurs. The faster you act, the better prepared you can be to prevent a lawsuit or claim, and the better prepared you will be to defend yourself in the event of a lawsuit. Also, by acting fast and taking a proactive approach, you can potentially save money and litigation fees. Even if a suit is filed, taking a proactive approach gives you the opportunity to collect evidence from the scene, surveillance, statements, or social media evidence to use in your favor at trial. Below are the top 5 tips for you to keep in mind when preparing to respond to an accident.
- Act Fast and Be Prepared
- The faster you act, the better you can respond.
- To effectively respond, you must start well before an accident occurs.
o The best place to start is by training your dispatchers on how to respond when an accident call comes in. Train your dispatchers on:
- What they should be asking the driver,
- What information to obtain, and
- What additional individuals, including attorneys or field adjusters, to contact to help with the response.
- Do not takes statements from your driver
- Do not have your driver make any written or recorded statements regarding the accident.
- Advise your driver not to give any statements to anyone or talk to anyone else about the accident.
- One thing that you can do to completely protect your driver’s version of events, is to immediately have an attorney speak to the driver.
o Everything said to the attorney would be confidential and protected by attorney-client privilege and could not be used later against the driver.
- Bring in outside help
- You may want to have an attorney speak with your driver so that it is protected by attorney-client privilege.
- You will want to hire an independent adjuster to help investigate the accident.
o Hire an independent adjuster to call the other driver and witnesses to obtain their statement.
o If you believe that there may be security cameras in the area, from other businesses or entities, you can have the adjuster go out to the scene to try to obtain any videos that have footage of the accident.
o Hire an independent adjuster to go out to the scene and take photographs.
- Hire an accident reconstructionist to inspect the vehicle, do a download of the black box of the vehicle, and to review the accident site for to determine how the accident happened.
- Social Media
- Have you or your attorney’s office search for information concerning the accident.
o Check Facebook and other social media.
- Family members of the person hurt in the accident may comment on news articles or post about their loved one’s injuries.
- Have your attorney or independent adjust run a public record search and a social media search for the claimant.
o Make sure to keep checking on social media to see if they mention their injuries.
- Usually once the claimant retains an attorney, they will be told to take their social media down, so it is important to find it immediately, if you think there could be future litigation.
- Social media is very important and can sometimes be the piece of evidence that you need to prove the claimant is not injured. However, you must act fast on this. If you wait until a lawsuit is filed, it may be too late.
- Preservation of evidence
- Make sure to preserve any evidence from the accident.
o This would include pulling the driver’s logs for the week before the accident.
- If a preservation letter is received from the claimant’s attorney, make sure that you save anything that is included in the letter so that you are prepared in case of potential litigation.
o If not saved, you can be accused of spoliation and may have sanctions issued by the Court.
o If a preservation letter is received, have counsel send your own preservation letter to have the claimant preserve any evidence they have regarding the accident.
This is not an exhaustive list and assumes accident response measures are planned prior to the happening of the accident. We would be happy to provide accident response packets, forms, and checklists for free – just send an email to Alyssa Adams at aa@saxtonstump.com .
The U.S. Department of Labor (DOL) finalized its regulation for determining employee or independent contractor status under the Fair Labor Standards Act (FLSA), the federal statute governing minimum wage and overtime pay. The final rule repeals and replaces a prior regulation put in place by DOL at the end of the Trump administration in favor of a less predictable framework that increases the likelihood of an employee determination. The regulation will be formally published in the Federal Register on January 10; its effective date is March 11.
The rule considers six factors to determine whether independent contractor status is present. The DOL has adopted a totality of the circumstances analysis, and additional factors may be considered. The six factors are:
- Opportunity for profit or loss based on managerial skill.
- Investments by the worker and the potential employer.
- Degree of permanence of the relationship.
- Nature and degree of control.
- Extent to which the work performed is an integral part of the potential employer’s business.
- Skill and initiative.
Some notable positive changes in the final regulation include:
- Costs borne by a worker for equipment to perform specific jobs are not deemed entrepreneurial and instead are indicative of employee status. However, in response to comments, the final rule recognizes leasing a truck to be able to provide truck driving services may be capital investment or entrepreneurial in nature, even if leased from a trucking company and not an independent third party.
- The regulation introduces a comparison of the worker’s investment relative to the putative employer’s investment in the business. In a change from the proposed rule, the final rule calls for comparing the investments in a qualitative manner (to consider the nature of the investment not merely its comparative cost) rather than solely using quantitative comparisons, pointing to a trucking example in the preamble.
- The final rule includes a change so that actions taken for the sole purposes of compliance with a specific law or regulation are not indicative of control. However, actions beyond compliance with a specific law or regulation and those taken for the putative employer’s safety or quality control standards may be indicative of control.
- A driver with a CDL has a specialized skill that, combined with business initiative, weighs toward independent contractor status under the skills and initiative factor.
A few other troubling aspects of the proposed rule:
- Contractual right to control or supervise will be considered indicative of employee status, even if in practice that right is never exercised by the putative employer.
- Exclusivity of a working relationship is considered indicative of employee status under this factor as well as under the control factor.
Jim Perkins
The harsh weather of winter months naturally brings fleet safety more into focus.
At face value, fleet safety is keeping drivers out of harm’s way. Beneath the surface, safety is a key factor in boosting efficiency and decreasing total cost of ownership. Simply put, a culture of safety instilled into all facets of a fleet can be good for the bottom line.
Preventing accidents not only protects drivers and others on the road, but also prevents additional expenses. For example, the Network of Employers for Traffic Safety (NETS) reported on-the-job crashes that result in an injury can cost upwards of $75,000.
Ultimately, a safer fleet relies on systems allowing a more seamless and intentional on-the-road process. In the fleet management industry, there are several services that not only provide worthwhile safety features but also increase efficiency. A commitment to reducing potentially dangerous incidents doesn’t mean a sacrifice in profits.
The following is a list of fleet management tools that not only increase safety, but fleet efficiency as well. Working together in tandem or individually, they can help save fleets money and help reduce costly incidents.
Telematics
The offerings in transportation mobility technology continue to evolve. Telematics solutions emphasize efficiency via safety perhaps more than any other fleet management tool, but also help boost fuel economy and reduce fuel costs. The amount of data available through telematics, increasingly complex safety systems and advanced analytics continue to grow in importance and add to more standard telematics offerings.
According to analysts at Frost & Sullivan, telematics helps fleets save about 20% to 25% on fuel expenses through the promotion of better driving practices, including the reduction of speeding, harsh acceleration and hard braking. Optimizing routes is one of the most used features of telematics. In doing so, drivers are more likely to remain on-task and reduce mileage that could lead to further wear and tear on vehicles.
Telematics also help manage work hours and improve schedules that can help reduce fatigue – a major reason for accidents. Using data effectively can help fleet managers increase productivity by 10 to 15% and reduce overtime by 10 to 15%, decreasing daily driving time by 20 to 30 minutes based on the previously mentioned Frost & Sullivan analysis.
Telematics and in-vehicle cameras can reconstruct accidents, allowing fleet managers to build safety training programs for drivers. Additionally, monitoring driving behavior is a safety-added value that helps prevent on-the-job incidents.
Fleet vehicles can be put through great stress and strain over time. Breakdowns and unplanned maintenance can impact efficiency, and place drivers in dangerous situations. Telematics can alert fleet managers to needed vehicle maintenance, helping keep fleet vehicles safe and ready for the road. In turn, this helps avoid even more expensive repairs or accidents that can occur from inconsistent upkeep.
Fleet cards
Implementing a fleet card program is an easy and popular way to save money on everyday fuel purchases. However, most overlook that safety is built into most fleet cards. For drivers, it eliminates the need to carry cash or personal credit cards to fill up fleet vehicles and helps drivers avoid the need to collect cumbersome paper receipts.
Fleet cards and their software platforms can help avoid fleet fraud, with the ability to track exact fuel spend and set limits on fuel purchases. The ability to quickly activate cards or cancel them at a moment’s notice if lost or stolen is another convenient safety feature. Driver ID technology helps to monitor expenditures for each vehicle driver.
Mobile fueling
Mobile fueling services deliver a variety of fuel options to fleets with trained technicians filling vehicles on site during downtime. This service, in addition to helping save on costs via bulk fuel purchasing, removes the need for drivers to carry cash or personal credit cards to fill up.
Requiring drivers to fill-up vehicles frequently can reduce productivity. According to Geotab, drivers are diverted about two miles out of the way to get gas, spending about 8 minutes at the gas station each time they stop for fuel on average. A fueling trip adds more than 20 minutes to a driver’s shift. Mobile fueling drastically reduces driver fill-ups at gas stations, helping save over 3,000 hours of fueling and over 20,000 miles of fueling trips for a fleet of 100.
For those fleets utilizing the service, safety starts before the first truck delivers a drop of fuel on-site. A mobile fueling provider, such as Shell TapUp walks fleets through the required permitting and guidelines approvals, establishing safety procedures from the onset. Fueling technicians follow strict adherence to safety procedures and protocols on- and off-site, even leading local officials and fleet staff through on-site fueling demonstrations designed to help prevent safety incidents.
Electric vehicles and EV charging
Safety is also an important element among EV fleets. More fleets are turning to electric vehicles (EVs) with each passing year, largely due to their long-term cost savings, federal and local policy, incentives and the push to decarbonize. Safety comes into play when a fleet is assessing EV implementation which also helps fleet operators run a more efficient fleet. Technical and commercial proposals are shared between teams before installation, and technicians follow high safety and security standards on charging station installation days. Following that, online platforms are used to monitor efficiency, and dedicated teams provide ongoing support to answer day-to-day inquiries and keep equipment running.
