When trucking or commercial vehicle accidents occur, there is a substantial likelihood of property damage, personal injury, and potential catastrophic harm to drivers, passengers, or pedestrians. When there is a question of fault involved, competing interests between the injured parties, the insurance carriers, and law enforcement will undoubtedly arise. Drivers and their employers may face both civil and criminal litigation contemporaneously. Therefore, the company’s driver and counsel for the trucking company must carefully consider their defense strategy immediately following any accident to protect the varying interests of all involved.

Criminal charges arising from trucking or commercial vehicle accidents can range from minor to severe, varying from marked lane violations, speeding, exceeding allowable weight limits, to vehicular homicide charges. By way of example, MG+M attorneys defended a trucking operator (and parent corporation) when a driver inadvertently struck a tow truck operator who was assisting a disabled vehicle on the Massachusetts Turnpike, resulting in the death of the tow truck operator. The Commonwealth of Massachusetts charged the driver with motor vehicle homicide by negligent driving, among other charges, and shortly thereafter, representatives on behalf of the deceased tow truck operator filed a civil complaint against the truck driver and his employer (for vicarious liability), alleging wrongful death as well. The civil case resolved following a successful mediation with no personal or excess exposure. Diligent and careful cooperation between the civil and criminal defense teams beginning from the time of the crash led to this favorable outcome.


Continue Reading Defending Commercial Vehicle Accident Civil Claims with Companion Criminal Litigation: A Balancing Act

Over the past weeks a majority of states in the United States have experienced severe winter weather that has impacted the lives of millions of Americans. With severe winter weather comes dangerous driving conditions and increases in deadly accidents.

In response to the recent winter storm damage experienced throughout the country and the historic shut downs in Texas, the Federal Motor Carrier Safety Administration (FMCSA) issued a regional emergency declaration covering 33 states and the District of Columbia. The FMCSA was developed to reduce crashes, injuries and fatalities involving large trucks and buses within the U.S. Department of Transportation.[1] Under FMCSA emergency declarations, certain Federal safety regulations, such as hours of service, are suspended for motor carriers and drivers engaged in specific aspects of the emergency relief effort. The most recent declaration in response to the states affected granted relief from Parts 390 through 399 of Title 49 Code of Federal Regulations.[2]

Direct assistance ends when a driver or commercial vehicle is not transporting cargo or providing services supporting emergency relief as it relates to the severe winter storms; or when the motor carrier dispatches the driver or commercial motor vehicle to another location to begin operations in commerce.[3] When the direct assistance ends, the driver and motor carrier are again subject to the Federal Regulations mentioned above, unless returning to the motor carrier’s terminal or the driver’s normal work reporting location when returning empty. The emergency declaration still keeps in place certain regulations for drivers such as those regarding controlled substances, alcohol and testing requirements.
Continue Reading The Legal Impact of Severe Winter Weather on Trucking and Transportation Companies

In the last several months, MG+M’s Transportation Practice Group has been retained to protect the interests of trucking companies whose drivers were involved in significant highway accidents. This is nothing new for the attorneys who comprise MG+M’s robust trucking and transportation counseling and defense practice. However, the recent actions of MG+M’s Emergency Response teams that were deployed to accident scenes have solidified the immense utility to our clients of placing litigators at a truck’s location within minutes of collision. It is almost a truism that a lawsuit will follow any trucking accident that causes personal injury or property damage. Moreover, in the commercial vehicle context, government agencies (most regularly, through a police force’s commercial enforcement unit or “truck squad”) are required to investigate the crash, the truck’s driver, and trucking company policies. Official investigative reports will issue. Those reports play an acute role in determining whether a potential lawsuit will resolve early or if litigation will be hampered by protracted discovery.

In short, when it comes to commercial trucking litigation, “the devil is in the details,” and the earlier litigation counsel becomes involved, the easier it is for a defendant trucking company to meaningfully contribute to an accident’s investigation by providing and preserving critical evidence. Additionally, the presence of counsel at accident scenes benefits clients by having on-the-ground resources for witness identification and management, ensuring that investigators’ questions are free from ambiguity and contained to the scope of the accident, and that company employees understand their rights at the initial investigation stage.
Continue Reading The Critical Role of Litigators in Commercial Vehicle Accident Investigations

Massachusetts General Laws Chapter 93A and 176D have long provided the plaintiffs’ personal injury bar with an exceptionally sharp check on insurance carriers’ settlement practices. While many claims under Chapter 93A/176D appear from the outset to be pro forma, a recent Massachusetts Appeals Court in Chiulli v. Liberty Mutual Insurance, Inc., 97 Mass. App. Ct. 248 (2020) illustrates the perils of Chapter 93A/176D violations in settlement practices and the substantial penalties that may be imposed in the event of a finding of willful and/or knowing violation of good faith and equitable settlement practices.

 

Factual Background

Chiulli arose from a physical altercation at a prominent Boston restaurant in 2008. Shortly before the altercation, restaurant staff separated two groups of individuals involved in a spirited argument over the occupancy of a certain barstool but allowed both groups to remain on the premises. Unfortunately, the argument soon turned violent. Chiulli was knocked unconscious and sustained a traumatic brain injury. 

 

Chiulli, in turn, filed suit against the Restaurant, its parent company, and the opposing combatant seeking medical damages in excess of $600,000. He asserted a negligent security claim against the Restaurant and its operating group claiming they failed to reasonably address the initial altercation by not removing the respective parties from the premises and failing to ensure that the factions did not leave the premises together which was bolstered by expert testimony. The Restaurant did not offer its own expert and instead argued that it conducted itself in a reasonable manner in addressing the argument and altercation.

 

The case went to trial in 2012. The only settlement offer extended prior to or during trial was an offer for $150,000 made by the Restaurant’s primary insurance carrier. The three-week trial ended in a plaintiff’s verdict finding that both the Restaurant and its operating company were each 45% at fault for the altercation. The jury awarded Chiulli approximately $4.5 Million in damages.

 

Post-Verdict Claims Handling

After confirming that the primary carrier did not tender its policy limits of $1 Million to the Restaurant’s excess carrier, Chiulli served Chapter 93A demand letters on both carriers 16 days after the verdict. There, Chiulli alleged that both insurers failed to effectuate a fair and prompt settlement of the underlying tort action despite the fact liability was reasonably clear vis-à-vis the jury verdict. Chiulli sought $5.7 Million “to resolve the [underlying tort] case, and to avoid further litigation” wherein he would seek multiple damages under Chapter 93A.

 

Twenty-two days after the underlying verdict, the Restaurant’s primary carrier still had not tendered its policy limits, which resulted in the excess carrier serving its own demand upon the primary carrier. The primary carrier soon acquiesced and tendered its $1 Million policy limit to the excess carrier. During this timeframe, Chiulli served a second Chapter 93A demand on both carriers. This time, he sought $5.7 Million to resolve the tort case and an additional $10 Million demand to resolve putative bad faith settlement claims against both insurers.

 

The excess carrier, taking


Continue Reading Lessons to the Wise in Unfair Settlement Practice Litigation – Recent Massachusetts Appeals Court Decision Illustrates Austere Potential of Chapter 93A/176D Claims

The COVID-19 crisis has had an impact on every court across the nation, both at the state and federal levels, postponing and delaying countless civil litigation hearings and trials. There is still a great deal of uncertainty as to when social distancing guidelines will be relaxed and when states will begin to resume normal business activities. The continued postponement of hearings and trials will result in a tremendous backlog of cases vying for the attention of the courts, as litigators across the nation do their best to zealously advocate for their clients.

As this country battles the continued wave of COVID-19 cases and prepares for the possibility of a second wave of COVID-19 infections in the United States at some point in the not so distant future, litigation has already commenced as a result of the COVID-19 pandemic.

Princess Cruise Lines

At least a dozen lawsuits have been filed against Princess Cruise Lines as a result of passengers affected by the COVID-19 outbreak, and that number continues to climb.

On March 7, 2020, Plaintiffs Ronald Weissberger and Eva Weissberger filed suit in the United States District Court for the Central District of California, alleging negligence and gross negligence by the Defendant, Princess Cruise Lines Ltd., for its “lackadaisical approach” to the COVID-19 pandemic. The Complaint detailed that one of Princess Cruise Lines’ ships, the Grand Princess, departed out of San Francisco on February 21, 2020, and returned to Oakland on March 4, 2020, where it was forced to dock until all passengers could be moved to military bases for quarantine.

On March 13, 2020, Plaintiffs Brian Sheedy and Melanie Sheedy filed an identical complaint against Princess Cruise Lines Ltd., also in the United States District Court for the Central District of California.

Under California law, the elements that must be met to show negligence are “(1) defendant’s obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a reasonably close connection between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual loss (damages).” Corales v. Bennett, 567 F.3d 554, 572 (9th Cir.2009) (quoting McGarry v. Sax, 158 Cal.App.4th 983, 994, 70 Cal.Rptr.3d 519 (2008); Lawman v. City & Cty. of San Francisco, 159 F. Supp. 3d 1130, 1152 (N.D. Cal. 2016).

According to the Weissberger and Sheedy Complaints, none of these Plaintiffs have tested positive for COVID-19. The only alleged damages include exposure to the risk of immediate physical injury, emotional distress and trauma from the fear of developing COVID-19. A cause of action for negligence requires damages in the form of “detrimental physical changes to the body” and this physical injury “for the purposes of parasitic emotional distress damages required actual harm.” Macy’s California, Inc. v. Superior Court, 41 Cal. App. 4th 744 (1995). A plaintiff must prove detrimental change to his or her body to be able to recover for parasitic emotional
Continue Reading COVID-19 Litigation – Fear of Injury and Emotional Distress Claims