Practical Considerations for Handling Liability Trucking Claims in ...€¦ · accident occurs, the...

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 39157

Telephone: 601-853-1911 Facsimile: 601-853-8284

Email: [email protected]

Table of Contents

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

I. Preliminary Considerations

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


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


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 $75,000.00

�  However, plaintiffs often do not plead a specific amount in controversy such that you can ascertain whether the amount in controversy exceeds $75,000.00


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

II. Discovery Considerations

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 391.51) and Personnel file are blended ◦  If blended, they are probably considered one and

discoverable ◦  If Personnel file is separate, some material may be

objectionable


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)


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


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


B. Drug and Alcohol Use (Cont.) �  Just like plaintiff, Defendant drivers are also

subject to the same standards should impairment be an issue ◦  FMCSR 382.303

�  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


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


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


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)


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


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)


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


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


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


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


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

III. Liability Considerations

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. 1084 (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)


A. Negligent Entrustment Claims (Cont.) �  Davis v. Rocor International, 2001 U.S.Dist.

LEXIS 26216 (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


A. Negligent Entrustment Claims (Cont.) � Walker v. Smitty’s Supply, Inc., 2008 U.S.

Dist. LEXIS 37949 (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


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


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


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…”


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


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)

IV. Expert Considerations

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


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


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 93881 (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”


A. Treating Physicians (Cont.) � Williamson v. Gowan Company, LLC, 2008

U.S. Dist. LEXIS 105596 ◦ 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)


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.”


B. Hired Experts (Cont.) �  Anderson v. Jones, 2006 U.S. Dist. LEXIS 40840

(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.”

V. Damages Considerations

A. Caps �  Miss. Code Ann. §11-1-60 ◦  “[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 wrongful-

death action �  Miss. Code Ann. §11-1-65 ◦  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. 09-60651, February

27, 2013 (5th Cir. 2013) ◦  Upholding the Mississippi Legislature’s statutory cap on noneconomic

damages �  Stay tuned for more to come...


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)


C. Punitives �  Miss. Code Ann. Section 11-1-65 ◦  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 226. 233 (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


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


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)

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