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Federal
Agencies
DOT:
Electronic on-board recorders for Hours-of-Service Compliance.
FMSCA:
Hours of Service driver rules, record-keeping requirements,
rules of practice for civil penalty proceedings.
Congress
HR
3: Transportation Equity Act, dedicated truck lanes, driver
fatigue.
S
95: SHIPA limits trailer length.
Contributing
Articles
MCS-90 Endorsement, Trailers
Ninth
Circuit Household Goods shippers Attourney Fees in All Litigation
State Legislation
IN:
Certain indemnity agreements in motor carrier contracts are
against public policy, thus void and unforceable
MO:
Tort reform to limit punitive damages, eliminate joint liability,
etc.
OH:
SB 80 tort reform law
TX: SB 1074 hours of service laws, medical standards, driving
records.
State Agencies
California
Trucking Assoc. employee meal breaks.
FL
DOT “no-zone” trucking blind spots
NY
DMV periodic vehicle inspections
Decisions
and Opinions
CA:
Personal injury, new 2-year statute of limitations in certain
cases
IN:
MCS-90 endorsement on loan receipt
NY:
Disclaiming coverage on late notice
PA:
Claims adjustment, discoverable
TX:
Defending international accident
VT:
MCS-90 interpretation on tractor-trailer
Jury
Verdicts
CA:
“Motorcyclist claimed trailer was too long for mountain.
road
IL: “Woman drove through town with husband clinging to
car.”
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MCS-90 Endorsement, Trailer Insurers
Contributed by For the Defense,
an article by Tamara B. Goorevitz, Mark W. Flory and Henry
S. Kim from the Feb. 2005 issue |
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Any accident involving the tractor-trailer
combination when the tractor and trailer are owned by different
companies and insured by different policies will raise tort
and insurance issues…The basic question is whether the
MCS-90 endorsement to the insurance policy on the trailer creates
a duty on the part of the insurer of the
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trailer to indemnify a permissive user of the trailer, for
injuries caused by the permissive user’s negligence, even
though the user is not a named insured? The MCS-90…is
a federally mandated endorsement to an insurance policy for
the purpose of protecting members of the public. Suffice it
to say, the courts
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Ninth Circuit Grants Household
Goods Shippers Attorney Fees in All Litigation
Article contributed by: Gordon
McAuley, Partner, Hanson Bridgett Marcus Vlahos & Rudy. |
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On June 7, 2005, the Ninth Circuit
ruled that a household goods shipper may recover attorney fees
in a suit, even if they do not first go to the arbitration required
under 49 U.S.C. 14708(d). I am stunned by the decision in Campbell
v. Allied Van Lines, et. al, 05 C.D.O.S. 4790(9th Cir. 2005).
The facts are not unusual. The plaintiff shippers had complaints
against the moving companies that moved their household goods.
Rather than proceeding with arbitration under 49 U.S.C. section
14708, the shipper filed a court case against the carriers. A
trial resulted in an award of $15,000 in compensatory damages,
and $31,000 in emotional distress damages. The decision does not
disclose why the emotional distress damages were not preempted
by the Carmack Amendment. The court also awarded the plaintiffs
$15,400 in attorney fees and costs, based on one-third of the
total award amount. The moving companies appealed, arguing that
attorney fees are only available under 49 U.S.C. section 14708
if the carrier does not offer arbitration, or if the shipper prevails
in such court action; and a decision resolving the dispute is
not rendered through arbitration under this
section within 60 days after receipt of dispute by arbitrator;
or the court proceeding is to enforce an arbitration award rendered
under this section.The Ninth Circuit held that "nothing in
section 14708(d) limits attorney's fees to shippers who engage
in arbitration. The subsection applies to ‘any court action’ involving disputes between a shipper of household goods and a carrier,
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and entitles shippers to attorney's fees
if they meet the first two requirements of (d)(1) and (d)(2)(timely
submitting a claim and prevailing in court), and are not barred
by (d)(3)--which merely excludes those claims in which a timely
arbitration decision is reached and does not necessitate court
enforcement. In other words, (d)(3) prevents shippers from receiving
attorney's fees if the arbitration program ‘works’ as intended by swiftly resolving the dispute. It has no effect
on shippers, such as the Campbells, who did not engage in arbitration."
This split decision (dissent by Justice O'Scannlain) changes everything.
Most of us regarded section 14708 as the incentive for carriers
to offer arbitration: failure to do so would allow a prevailing
plaintiff to attorney fees if suit was filed. It ensured that
cases could be resolved economically by the shippers and carriers,
without need for hiring attorneys or filing suit. This decision
turns that concept on its head. Now, there is little financial
incentive for a shipper to go to arbitration. Now, the amount
in controversy should be no disincentive for filing suit because
the plaintiff attorney will get his or her fees regardless of
the amount in controversy, if the plaintiff prevails.
Presumably an award to plaintiff of even $1 makes them the prevailing party and
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would allow the plaintiff attorney to recover its fees and
costs. (I presume, but do not know, that state law offers of judgment
might affect the definition of prevailing party under this federal
statute. However, I doubt that the courts will grant carriers
their attorney fees if they beat an offer of judgment). I truly
believe this is an industry-changing decision, and both shippers
and carriers need to be concerned about its long-term ramifications.
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©2005 McElfish Law Firm.
The McELfishLaw, LLC Web Site contains information of general
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