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					                                                                                                           Volume 2009 Issue 1 (Winter)




                                      TRANSPORTATION
A regular publication of the ALFA International Transportation Practice Group
                                                                                                 Update
ALFA International Transportation Practice Group Reports from around the country
concerning Legislation, Regulations and Decisions of Interest.


  EDITORS’ NOTEPAD

  The Transportation Practice Group of ALFA International has published the
  Transportation Update for about seventeen years. Please note that in addition to
  this issue of the Transportation Update we have an archive of many recent issues
  on the ALFA website at ALFA Transportation Update archives.

  If your first contact with the Transportation Update is through our website, you can
  be added to our email distribution list by contacting us through Katherine Garcia
  (kgarcia@alfainternational.com). Please add the Transportation Update to the
  subject line, and we will email the current issue and each subsequent issue to
                                                                                                                    WILL H. FULTON, ESQ.
  you as it is published. If you want to receive the Transportation Update in hard                                  Co-Editor
  copy format, contact an ALFA attorney listed at the end of this newsletter, and                                   WOODWARD,
                                                                                                                    HOBSON & FULTON, LLP
  they can provide this service for you.                                                                            101 South Fifth Street
                                                                                                                    Suite 2500
                                                                                                                    Louisville, Kentucky 40202
  Our primary method of distribution of the Transportation Update is by email.                                      (502) 581-8000
                                                                                                                    wfulton@whf-law.com
  Electronic publication allows us to include hyperlinks for the use of our                                         www.whf-law.com
  readers. 1 We encourage you to use the hyperlinks feature and our section
  headings to quickly get to the information that is most interesting to you. The
  section headings are as follows: ALFA Member Publications and Speaking
  Engagements; Cases, Regulations, and Statutes; Verdicts and Settlements;
  Practice Tips; and Articles.

  Under the Cases, Regulations, and Statutes section of the Transportation
  Update, we report to you about developments in the statutory, regulatory, and                                     MARC HARWELL
  common law around the country that are of general interest to the trucking                                        Co-Editor
                                                                                                                    LEITNER, WILLIAMS,
  community.                                                                                                        DOOLEY & NAPOLITAN
                                                                                                                    801 Broad Street, 3rd Floor
                                                                                                                    Chattanooga, Tennessee 37402
  The Verdicts and Settlements section addresses the results of litigation affecting                                (423) 265-0214
                                                                                                                    marc.harwell@leitnerfirm.com
  the trucking industry. We encourage you to report to us about any verdict or                                      www.leitnerfirm.com
  settlement that you think is of interest to the trucking community. You may report
  all such results to the editors of the Update or to Michael K. Sheehy. Michael can
  be reached as follows: msheehy@plunkettcooney.com.

  The Practice Tips section of the Update features articles which address matters
  of practical interest to those who manage litigation for motor carriers and those
  who represent them. The essays in this section generally have widespread
  application throughout the country. In this issue, we have My Driver’s Name is
  “Jesus”, 3 Must-Do’s to Defend Spanish-Speaking Truck Drivers in Litigation by
  Cynthia Huerta, The Tort of Spoliation and Trucking Litigation by Marty Diamond
  1 All hyperlinks are in blue. Hyperlinks can be activated by placing the cursor on them and left clicking with
  the mouse. Links in the contents go to specific points in the newsletter; links to websites take you to the
  website; and links to email addresses open an email addressed to that person.
                                                                                      continued on next page
ALFA International   |   TRANSPORTATION UPDATE    |   Volume 2009 Issue 1 (Winter)                      [ Return to Contents ]



 EDITORS’ NOTEPAD                                WILL H. FULTON
                                                 WOODWARD, HOBSON,
                                                                                     CONTENTS
 (CONT.)                                                                             The following links are to
                                                 & FULTON, LLP                       sections of this newsletter.
                                                 101 South Fifth Street              Activate a link by clicking on
 and M. Scott Owen, a book
                                                 2500 National City Tower            desired link:
 review: Beware “Rules of the
                                                 Louisville, KY 40202
 Road”, Recent Liability Tactics
                                                 Tel: (502) 581-8009                 1. EDITORS’ NOTEPAD
 of the Plaintiffs’ Bar by Peter
 Doody, and Potential Sources of
                                                 MARC HARWELL                        2. FUTURE EVENTS
 Electronically Stored Information
                                                 LEITNER, WILLIAMS, DOOLEY AND
 in a Truck Accident Case by
                                                 NAPOLITAN, PLLC                     3. ALFA MEMBER
 Curtis N. Stambaugh
                                                 801 Broad Street, 3rd Floor            PUBLICATIONS AND
                                                 Chattanooga, TN 37402                  SPEAKING ENGAGEMENTS
 Articles provide in depth analysis
                                                 Tel: (423) 424-3908
 of issues, developments, and
 concerns that are relevant to                                                       4. SPECIAL NOTE
 the transportation industry. In
 this issue, we have Allocation of               Regional Directors of
                                                                                     5. FUTURE ISSUES OF
 Financial Responsibility Among                  Transportation Update Content          TRANSPORTATION UPDATE
 Insurers Based on the MCS
 90 Endorsement by Dennis                        WEST: TBD                           6. DISCLAIMER
 B. Keene and Recent Cases
 Involving Spoliation, Sanctions,                CENTRAL: Martin Diamond,            7. “FREE” TRAINING
 Sanctions, Sanctions by Will                    BUTT THORNTON & BAEHR PC,              MATERIAL FROM THE
 Fulton and Laura Berger.                        Albuquerque, NM                        FEDERAL GOVERNMENT
 The Directory of Member Firms                   SOUTH: John Tarpley,                8. CASES, REGULATIONS
 at the end of the newsletter                    LEWIS, KING, KRIEG                     AND STATUTES
 offers a current list of all the                & WALDROP, P.C.,                       All Jurisdictions (Federal)
 individuals who are active in the               Nashville, TN                          North Carolina
 ALFA Transportation Practice                                                           Pennsylvania
 Group by firm at the end of the                 MIDEAST: Robert Burke,                 South Carolina
 Transportation Update for a                     JOHNSON & BELL, LTD.,                  Tennessee
 number of years. In this issue                  Chicago, IL
 we have included for the first                                                      9. VERDICTS AND
 time a photo of each attorney on                EAST: Curtis Stambaugh,                SETTLEMENTS
 the list so that you can see that               MCNEES WALLACE & NURICK LLC,           Missouri
 individual before your call them if             Harrisburg, PA                         New York
 you use the list in this way.
                                                                                     10. PRACTICE TIPS
 We welcome comments,
                                                                                         My Truck Driver’s name is
 suggestions for improvement,
                                                                                         “Jesus”, 3 Must-Do’s to Defend
 and topics which you would
                                                                                         Spanish-Speaking Truck
 like for us to address in future
                                                                                         Drivers in Litigation by Cynthia
 issues. It is our goal to provide
                                                                                         Huerta
 timely relevant information
 to members of the trucking
 community. Our editors can be                                                           The Tort of Spoliation of
 contacted as follows:                                                                   Trucking Litigation by Marty
                                                                                         Diamond and M. Scott Owen




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ALFA International   |   TRANSPORTATION UPDATE    |   Volume 2009 Issue 1 (Winter)                            [ Return to Contents ]



 10. PRACTICE TIPS (CONT.)                       FUTURE EVENTS                             you would like to suggest, please
     Potential Sources of                                                                  contact Peter Doody by email or
     Electronically Stored                       Every year, the Transportation            phone.
     Information in a Truck Accident             Practice Group of ALFA
     Case by Curtis N. Stambaugh                 International presents a multi-
                                                 day seminar for members of
       Book Review: Beware “Rules                the Trucking Industry. The 2009
       of the Road”, Recent Liability            Transportation Seminar will be held
       Tactics of the Plaintiffs’ Bar by         in Coronado (San Diego), California
       Peter Doody                               at the Hotel del Coronado from
                                                 May 6, 2009 to May 8, 2009.
 11. ARTICLES                                    Their official web site of the hotel is
     Allocation of Financial                     http://www.hoteldel.com/.
     Responsibility Among                                                                  Our Chairman of the
     Insurers Based on the                                                                 Transportation Practice Group
                                                                                           for 2008-09 is Paul T. Yarbrough
     MCS-90 Endorsement
                                                                                           of Butt Thornton & Baehr PC,
     by Dennis B. Keene
                                                                                           Albuquerque, New Mexico, who
                                                                                           can be reached at (505) 884-
      Recent Cases Involving                                                               0777 and ptyarbrough@btblaw.
      Electronic Discovery:                                                                com. Our Vice Chair is Danny
      Sanctions, Sanctions and                                                             M. Needham of Mullin Hoard &
      more Sanctions by Will                     Both beach lovers and golf lovers         Brown, LLP, Amarillo, Texas, who
      Fulton and Laura Berger                    will be delighted with this wonderful     can be reached at (806) 372-
                                                 facility. Our Program Chair for           5050 and dmneedham@mhba.
                                                 the 2009 seminar is Peter Doody           com. Please contact any of these
 12. TRANSPORTATION                              of Higgs, Fletcher & Mack, LLP,           individuals or the editors with any
     PRACTICE GROUP                              San Diego, California, who can be         suggestions for the program.
     DIRECTORY OF                                reached at (619) 236-1551 and
     MEMBER FIRMS                                doody@higgslaw.com.                       For more information, please
                                                                                           also consider contacting Katie
                                                 Our 2009 program is titled                Garcia, the practice group and
                                                 “Practical Solutions for Issues           event coordinator at kgarcia@
                                                 Effecting the Trucking Industry.”         alfainternational.com and (312)
                                                 The topics that will likely be            642-2215.
                                                 covered are as follows: 1) How
                                                 to Deal Effectively with the Case
                                                 of a Disappearing Driver; 2)
                                                 State of the Art Technology and
                                                 How to Preserve and Protect
                                                 ESI; 3) Keeping a Close Eye
                                                 on How the Plaintiff’s Bar is
                                                 Targeting the Trucking Industry;
                                                 4) Strategies to Protect Work
                                                 Product and Post-Accident Review
                                                 Following a Trucking Accident; 5)
                                                 Insurance Issues Surrounding
                                                 the Catastrophic Accident; and
                                                 6) Case Valuation and Resolution
                                                 Strategies. If you have a topic that


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ALFA International   |   TRANSPORTATION UPDATE    |   Volume 2009 Issue 1 (Winter)                       [ Return to Contents ]



  ALFA MEMBER                                    Transportation Lawyers will be        FUTURE ISSUES OF
                                                 speaking on the program and
  PUBLICATIONS                                                                         TRANSPORTATION
                                                 ALFA will be sponsoring a portion
  AND SPEAKING                                   of the event. We will have more       UPDATE
  ENGAGEMENTS                                    information on this event in our
                                                 next newsletter. Please hold the      The Spring issue of
  Our ALFA attorneys are putting                 date.                                 Transportation Update will be
  together an excellent program                                                        published in April 2009.
  that we encourage you to
  attend from May 6 – 8, 2009                    OF SPECIAL NOTE
  at the Hotel del Coronado in                                                         DISCLAIMER
  San Diego. Peter Doody is the
                                                 IN THIS ISSUE:
  Program Chair. The brochure                    ALFA’S GO TEAM HOTLINE
                                                                                       The ALFA International
  is now available and Katherine
                                                 The ALFA Transportation Practice      Transportation Update does
  A. Garcia at ALFA International
                                                 Group now presents a new service      not create an attorney-client
  would be happy to send it to you.
                                                 for its transportation clients, THE   relationship between the reader
  She can be reached at kgarcia@
                                                 ALFA GO TEAM HOTLINE. ALFA            and any attorney nor does it
  alfainternational.com.
                                                 knows that its transportation         render legal advice on any
                                                 clients must often confront time-     specific matter. No reader
  On March 26-27 Peter Doody
                                                 sensitive emergencies. The ALFA       should act or refrain from acting
  is speaking on a panel
                                                 GO TEAM HOTLINE is designed to        on the basis of any statement
  regarding ECM download data
                                                 offer ALFA clients immediate legal    in the ALFA International
  at the Association of Southern
                                                 and other support services, 24        Transportation Update without
  California Defense Counsel
                                                 hours a day and 7 days a week.        seeking advice from qualified
  annual meeting in Los Angeles.
                                                                                       legal counsel on the particular
  Finally he is also speaking at
                                                 Here’s how the service                facts and circumstances
  the Transportation Lawyers
                                                 works. An ALFA client needing         involved. Readers are
  Association annual meeting
                                                 immediate legal support calls         responsible for obtaining such
  on FMCSA regulation and its
                                                 the ALFA GO TEAM HOTLINE              advice from their own legal
  impact on casualty litigation and
                                                 at 1-866-540-ALFA (2532),             counsel.
  damages, this meeting is in La
  Costa CA. on April 28-30th.                    an ALFA operator will provide
  Will Fulton is presenting                      location-specific contact
  a biomechanist on direct                       information about experienced
  examination in “Presenting the                 transportation lawyers, accident
  Biomechanical Witness” at the                  reconstructionists, and other
  Kentucky Defense Counsel/                      transportation industry experts.
  Kentucky Justice Association                   When you contact the ALFA
  Trial Practical Skills Seminar on              GO TEAM HOTLINE, you are
  the Seat Belt Defense on April                 connected to a full-service
  17 and 24, 2009 in Lexington                   emergency response team, when
  and Louisville, KY respectively.               you need it. Contact your ALFA
                                                 lawyer today for more details
  The American Trucking                          about the ALFA GO TEAM
  Association will hold its annual               HOTLINE. But remember that
  Forum for Motor Carrier General                number, 1-866-540-ALFA (2532).
  Counsels at the Pan Pacific
  Vancouver Hotel in Vancouver,
  B.C. on August 26-29, 2009.
  (http://www2.panpacific.com/
  index.html) Several ALFA

                                                                      4
ALFA International   |   TRANSPORTATION UPDATE     |   Volume 2009 Issue 1 (Winter)                        [ Return to Contents ]



  “FREE” TRAINING                                CASES, REGULATIONS,                     Commercial Services, Inc., 537
                                                                                         F.3d 1184 (10th Cir. 2008).
  MATERIAL FROM THE                              & STATUTES
  FEDERAL GOVERNMENT
                                                 –––––––
  The Federal Railroad
                                                 ALL JURISDICTIONS - FEDERAL
  Administration (FRA) released
  in January 2009 an educational
  video for truck drivers designed               Tenth Circuit holds that Truck
  to promote safety at highway-                  Driver Employment Reports Are
  rail grade crossings. The video                Not Subject to the Fair Credit
  reviews the legal responsibilities             Reporting Act.
  of drivers as they approach and                                                        Bruce A. Menk
  travel over highway-rail grade                 USIS Commercial Services Inc.           HALL & EVANS, LLC
  crossings and is available in                  (“USIS”) compiles records of            1125 17th Street, Suite 600
  both English and Spanish. The                  the employment histories of             Denver, CO 80202
  video is downloadable from the                 commercial truck drivers and            Tel: (303) 628-3348
  website listed below and should                makes these records available           menkb@hallevans.com
  be of interest to your safety                  to trucking companies (for a fee)       www.hallevans.com
  and training personnel. We                     who wish to perform a background
  expect the Plaintiffs’ bar and                 investigation before hiring new
  “transportation safety” experts                drivers. The records contain
  hired exclusively by Plaintiffs will           comments regarding the quality          –––––––

  now assert in crossing cases                   of a driver’s work and reasons for      NORTH CAROLINA
  that your company had a poor                   leaving the company. The records
  safety program if your driver had              are submitted by the driver’s           North Carolina Court of
  not seen this material prior to                previous employer.                      Appeals Holds Responsibility
  the accident. http://www.fra.                                                          for Proper Loading and
  dot.gov/us/content/2109                        Plaintiffs, individual truck drivers,   Securing of Cargo a Question
                                                 sued USIS, contending that              of Fact for the Jury.
                                                 the employment records were
                                                 consumer reports subject to the         The North Carolina Court of
                                                 federal Fair Credit Reporting Act       Appeals recently considered
                                                 (“FCRA”). Although the FCRA             whether the duty to ensure cargo
                                                 does encompass consumer                 is properly loaded and secured
                                                 reports used for employment             rests with the carrier or shipper
                                                 purposes, it specifically excludes      in Hensley v. National Freight
                                                 reports prepared by an employer         Transp., Inc., ____ N.C. App.
                                                 concerning direct interactions with     ____, 668 S.E.2d 349 (2008).
                                                 its employees. The United States        In Hensley, the motor carrier’s
                                                 District Court for the District         driver drove a flatbed truck to
                                                 of Colorado held that the USIS          the shipper’s facility where he
                                                 employment records fell within this     supervised the shipper’s forklift
                                                 exception and therefore were not        operator loading the truck. The
                                                 subject to the requirements of the      cargo consisted of four pallets
                                                 FCRA. The United States Court           of zirconium wire coil, with three
                                                 of Appeals for the Tenth Circuit        pallets containing a single coil
                                                 affirmed. Full text of opinion . .      and a fourth pallet containing
                                                 . Owner-Operator Independent            four coils stacked on top of one
                                                 Drivers Association v. USIS             another. The driver instructed
                                                                                         the shipper’s forklift operator on
                                                                                         where to place the pallets on the
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ALFA International   |   TRANSPORTATION UPDATE    |   Volume 2009 Issue 1 (Winter)                           [ Return to Contents ]



  truck and, unhappy with the pallet             carrier may not require or permit         on the driver’s testimony that
  containing 4 coils, instructed the             a driver to operate a commercial          the shipper’s forklift operator
  forklift operator to remove the                motor vehicle unless . . . [t]            informed the driver the coils
  pallet and band the coils. The                 he commercial motor vehicle’s             were stacked on top of each
  driver then directed the forklift              cargo is properly distributed and         other because “that’s the way
  operator to replace the coils and              adequately secured[,]’” and places        they wanted them shipped[]”
  the driver secured the coils with              an affirmative duty upon the driver       and the driver’s testimony that
  additional straps. The driver then             “to ensure the truck’s cargo is           although he requested the
  inspected the load and signed a                properly distributed and adequately       coils be banded, he could not
  bill of lading indicating the truck            secured before he operates the            tell the shipper’s workers how
  had been “’loaded and braced in                vehicle.” 49 C.F.R. 392.9(a)(1),          to band the coils. The Court
  accordance with the truck drivers’             (b)(1). The court also looked to          of Appeals held this testimony
  instructions.’”                                federal precedent holding motor           served as evidence that the
                                                 carriers have the primary duty to         shipper maintained the ultimate
  Three days later, while the truck              ensure the safe loading of property       responsibility in determining how
  was being driven by another                    with the exception that a shipper         the coils would be packaged and
  driver, one of the coils fell off              who assumes the responsibility of         shipped and therefore a genuine
  the truck and onto the road. A                 loading is liable for “’defects which     issue of material fact remained
  motorcycle traveling behind the                are latent and concealed and              as to which party bore the
  truck was unable to avoid the coil             cannot be discerned by ordinary           responsibility for the loading of
  and the decedent, a passenger                  observation by the agents of the          the truck. The court dismissed
  on the motorcycle, was ejected                 carrier . . . . ‘” U.S. v. Savage Truck   the shipper’s argument that any
  onto the road and struck by an                 Line, 209 F.2d 442, 445-46 (4th           improper loading was apparent
  oncoming truck. The decedent                   Cir. 1953); Franklin Stainless Corp.      in a footnote holding whether the
  died as a result of the injuries               v. Marlo Transport Corp., 748 F.2d        improper loading was apparent
  sustained in the accident.                     865, 868 (4th Cir. 1984). Where           was a question for the trier of
                                                 a shipper’s improper loading is           fact. Thus, the court concluded
  The issue before the Court                     apparent, the carrier will be liable      there was sufficient evidence for
  of Appeals was whether the                     notwithstanding the negligence            the jury to determine the duty to
  shipper was entitled to summary                of the shipper. Franklin Stainless        ensure the cargo was properly
  judgment in light of the driver’s              Corp., 748 F.2d at 868.                   loaded and secured rested with
  supervision of the loading and                                                           the shipper.
  securing of the cargo. Noting                  Despite the fact the driver
  North Carolina’s adoption of the               supervised the loading of the
  Federal Motor Carrier Safety                   truck, instructed the shipper’s
  Regulations applicable to the                  workers on where to put the coils,
  loading and securing of cargo,                 directed the shipper’s workers
  the court looked first to the                  to remove some of the coils,
  applicable federal regulations,                requested that the removed coils
  stating that while such                        be banded before being placed
  regulations are not dispositive,               back on the truck per his direction,
  they are “indicative of the proper             and inspected the load before
  allocation of duty as between a                signing a bill of lading indicating       David M. Duke
  common carrier and a shipper                   the truck was loaded and braced in        Michael S. Rainey
  for the proper loading of goods.’”             accordance with his instructions,         YOUNG, MOORE &
  Rector v. General Motors Corp.,                the Court of Appeals, in a 2 to 1         HENDERSON, PA
  963 F.2d 144, 147 (6th Cir.                    decision, held a genuine issue            3101 Glenwood Avenue, Suite 200
  1992); 49 C.F.R. 392.9(a)(1)                   of material fact existed as to            Raleigh, NC 27612
  (2007). The applicable federal                 whether the shipper had a duty            Tel: (919) 782-6860
  regulation states that “’[a] driver            to ensure the cargo was properly          Fax: (919) 782-6753
  may not operate a commercial                   loaded and secured. The Court             dmd@ymh.com
  motor vehicle and a motor                      of Appeals based its holding              www.ymh.com
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ALFA International   |   TRANSPORTATION UPDATE    |   Volume 2009 Issue 1 (Winter)                         [ Return to Contents ]



  –––––––                                        2. Bus, school bus, or school          The statute does not apply to
  PENNSYLVANIA                                      vehicles idling for no              vehicles running a qualifying
                                                    more than 15 minutes in             auxiliary power unit (“APU”).
  Pennsylvania Passes                               a continuous 60 minute              The law is clearly designed to
  Anti-Idling Law                                   period to provide heat and          encourage the installation of
                                                    air conditioning to non-driver      APU’s. In a February 6, 2009
  On October 9, 2008, Governor                      passengers;                         statement, John Hanger, the
  Ed Rendell signed into law the                                                        Secretary of the Department
  Diesel-Powered Motor Vehicle                   3. Occupied vehicles with              of Environmental Protection
  Idling Act. The new law is                        a sleeper berth idling for          (“DEP”), stated that “[t]here
  also very broad in its reach,                     purposes of heat or air             are affordable alternatives to
  and several of its provisions                     conditioning when the               idling, and I encourage all vehicle
  are applicable to nearly every                    temperature is below 40o or         operators to take advantage
  business in the Commonwealth.                     above 75o during a rest or          of them.” DEP administers
                                                    sleep period. (Note that this       the Small Business Advantage
  The Anti-Idling Law applies to                    exemption expires on May 1,         Grant program that may provide
  any diesel-powered motor vehicle                  2010); and,                         funding toward the installation
  with a gross weight of 10,001                                                         of an APU. For more information
  pounds or more. The 10,001                     4. Vehicles actively engaged in        on the grant program, see the
  pound weight class is the most                    solid waste collection or the       DEP website at www.depweb.
  inclusive level of regulation of                  collection of source-separated      state.pa.us and use the keyword
  commercial vehicles that is                       recyclable materials.               “SBAdvantage.”
  used in Pennsylvania law or
  regulations. The law prohibits                 Enforcement of the law includes
  such vehicles from idling for                  the possibility of conviction for
  more than a total of 5 minutes                 a summary offense, with fines
  in a continuous 60 minute                      ranging from $150 to $300
  period when they are engaged                   plus costs. Additionally, the
  in commerce. Significantly,                    Pennsylvania Department of
  the new law applies not only to                Environmental Protection may
  owners and operators of such                   issue a penalty of $1,000 per day
  vehicles, but also to “owners and              for each violation.
  operators of locations at which .                                                     Curtis N. Stambaugh
  . . [such vehicles] load, unload or            Of major significance is a provision   McNEES WALLACE
  park.”                                         in the law that requires an owner      & NURICK LLC
                                                 or operator of a location where        100 Pine Street
  There are multiple exceptions                  vehicles subject to the act load or    P.O. Box 1166
  and several exemptions from                    unload, or a location that provides    Harrisburg, PA 17108-1166
  the law. The law does not apply                15 or more parking spaces for          Tel: (717) 237-5435
  to motor homes, implements of                  vehicles subject to the act, to        cstambaugh@mwn.com
  husbandry, farm equipment or                   erect and maintain a permanent         www.mwn.com
  farm vehicles. The exemptions                  sign to inform drivers that
  include, among other things:                   idling is restricted by law in the
                                                 Commonwealth. In January,2009,
  1. Vehicles forced to remain                   PennDOT published specifications
     motionless because of on-                   for the sign, which can be found
     highway traffic, an official                on their website at ftp://ftp.dot.
     control device or signal,                   state.pa.us/public/PubsForms/
     or at the direction of a law                Publications/PUB%20236M/
     enforcement official;                       r7_100.pdf


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ALFA International   |   TRANSPORTATION UPDATE    |   Volume 2009 Issue 1 (Winter)                          [ Return to Contents ]



  –––––––                                        another letter, enclosing a copy        determine the status of the
  SOUTH CAROLINA                                 of a complaint he prepared in the       settlement negotiations. After
                                                 matter and indicating his intent to     counsel’s staff would not divulge
  Default Judgment Upheld                        “proceed to litigation” if the matter   any information, the insurance
  Where Meritorious Defense                      was not soon settled. The draft         carrier contacted New Prime
  Not Pled                                       complaint named only Ann McClurg        to confirm New Prime had not
                                                 as a plaintiff and New Prime as a       been served with a summons
  A recent South Carolina opinion                defendant, and alleged New Prime        and complaint in the matter. On
  provides the transportation                    was vicariously liable for Deaton’s     October 7, 2005, the insurance
  industry’s claims handlers and                 actions and was also liable for         carrier received by certified mail
  attorneys with important guidance              its negligent hiring, retention, and    a copy of the default judgment
  on how to handle the surreptitious             training of Deaton. On October          entered against Deaton. After
  entry of default against carriers              18, 2004, the insurance carrier         the services of several private
  when settlement negotiations are               contacted counsel, who agreed           investigators were engaged,
  ongoing. This lesson comes at                  to delay filing suit while the          Deaton was finally located on
  the cost of a sobering outcome                 insurance carrier reviewed the          January 23, 2006. On that date,
  in McClurg v. Deaton, Opinion No.              settlement demand. Between              Deaton executed an affidavit
  4458, Filed November 20 (South                 November 2004 and June 2005,            denying he was served with
  Carolina Court of Appeals).                    the insurance carrier and counsel       a copy of the summons and
                                                 exchanged telephone messages            complaint, or received notice
  Plaintiff Ann McClurg submitted                in regard to settlement, but did        of the entry of default or the
  a claim against New Prime and                  not reach a final agreement on the      default judgment hearing, and
  its driver, Harrell Deaton, for                matter.                                 stating he did not notify New
  personal injuries sustained in a                                                       Prime or the insurance carrier
  motor vehicle accident involving               What the insurance carrier did not      of the above because he never
  McClurg’s tractor trailer and                  know was that plaintiff’s counsel       received notice. Thus, it was
  McClurg’s personal vehicle. The                had filed a summons and complaint       undisputed that neither the
  accident occurred on August 5th,               on April 27, 2005, naming only          insurance carrier nor New Prime
  2002, and after a brief period                 Deaton as a defendant. Plaintiff        was aware a complaint had been
  of investigation New Prime’s                   had obtained service on Deaton,         filed in the matter until October
  liability carrier, began settlement            in Texas, via certified mail, but       7, 2005, when the insurance
  negotiations with Plaintiff’s                  only after considerable difficulty in   carrier received a copy of the
  counsel. Shortly thereafter,                   locating him. Upon Deaton’s failure     default judgment entered against
  Deaton left New Prime’s employ.                to appear, default was entered          Deaton. Notably, on May 11,
                                                 against him. Notice of a damages        2005, after the summons and
  On April 23, 2004, the insurance               hearing was sent to Deaton, but         complaint were already filed
  carrier received a proposed                    he again failed to respond or to        by counsel and sent by the
  settlement package from                        appear. In September 2005,              Department to Deaton at the
  plaintiff’s counsel; subsequently,             judgment was entered against            first address, counsel continued
  on June 28, 2004, plaintiff’s                  Deaton in favor of Ann McClurg          the path of negotiation with the
  counsel sent the insurance carrier             in the amount of $750,000 and           insurance carrier, sending the
  a letter requesting settlement                 in favor of Steve McClurg in the        insurance carrier an additional
  within the next week and stated,               amount of $50,000 for a total           medical report concerning the
  “If I haven’t heard from you by                judgment of $800,000.                   underlying cause of action.
  that time, I will file suit and serve
  the Defendant and send you a                   Shortly after plaintiff obtained        Deaton moved to set aside the
  courtesy copy of the pleadings.”               this substantial judgment against       default judgment pursuant to
  On October 6, 2004, counsel                    Deaton, the insurance carrier           Rules 60(b)(1) and 60(b)(3) of
  sent the insurance carrier                     contacted counsel’s office to           the South Carolina Rules of Civil
                                                                      8
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  Procedure. New Prime filed a                        carrier], most notably the           the burden of presenting
  motion to intervene and likewise                    representations made by              evidence proving the facts
  moved to set aside the judgment                     counsel to [the insurance            essential to entitle him to
  pursuant to Rules 60(b)(1) and                      carrier], the conduct of the         relief. Bowers v. Bowers, 304
  60(b)(3). The trial court granted                   McClurgs’ counsel in failing to      S.C. 65, 67, 403 S.E.2d 127,
  New Prime’s motion to intervene,                    simply notify [the insurance         129 (Ct. App. 1991).
  but denied both New Prime’s and                     carrier] of the complaint
  Deaton’s motions to set aside                       filed against Deaton raises        New Prime’s specific problem
  the default judgment, and both                      serious concerns for this court    was that at the hearing on its
  Defendants appealed.                                and quite possibly satisfies       motion—which evidently focused,
                                                      the misrepresentation and          almost entirely, on the surprise/
  The Court of Appeals provided                       misconduct envisioned by           excusable neglect/misconduct
  an exhaustive review of the                         Rule 60(b)(3). Accordingly,        issues—New Prime had failed
  pertinent case law relating to                      we believe the trial court         to present any evidence of
  whether an insurer is entitled                      committed error in finding         a meritorious defense. So
  to have a default set aside                         the evidence did not, at           concerned were the parties with
  when it has engaged in good                         least, support relief based on     decrying the conduct of plaintiff’s
  faith negotiations only to have                     mistake, inadvertence, surprise    counsel, on the one hand, and
  a default judgment sprung                           or excusable neglect.              defending it, on the other, that
  upon it due its not having been                                                        they did not reach this absolutely
  informed that the insured has                  Less comforting, however, is that       necessary component of the
  been served. Reassuringly, the                 the Court nevertheless denied           analysis. On this basis, the Court
  Court recognized and admonished                New Prime’s appeal, holding             of Appeals affirmed the trial
  plaintiff’s counsel’s chicanery:               that New Prime had failed to            court’s denial of the motion to
                                                 present evidence that it enjoyed a      set aside the default.
    Based on counsel’s                           meritorious defense, such showing
    conduct and actions, it was                  being necessary for a defendant         New Prime attempted to argue
    reasonable for [the insurance                to be relieved of default under         that it had presented evidence
    carrier] and New Prime to                    Rule 60(b). The Court noted that        of a meritorious defense on the
    believe that any suit filed                  the meritorious defense burden is       amount of damages, by directing
    would include New Prime as                   more than a formality:                  the appellate court’s attention to
    a defendant or, at the very                                                          the insurance carrier’s affidavit
    least, that counsel would                         It is clear…that a meritorious     indicating that the plaintiff had
    provide [the insurance carrier]                   defense is more than merely a      made a pre-suit settlement
    a copy of any pleadings in the                    factor to consider under certain   demand of $170,000. Yet the
    matter when filed. Thus, at a                     60(b) grounds for setting          court was not swayed, noting
    minimum, the facts show New                       aside default judgments. In        that the affidavit had been
    Prime was taken by surprise                       particular, our courts have        presented not to show a defense
    when counsel filed the action                     held that in order to obtain       on the amount of damages, but
    solely against Deaton and                         relief from a default judgment     simply to prove that at the time
    failed to inform [the insurance                   under Rule 60(b)(1) or 60(b)       plaintiff surreptitiously filed suit
    carrier] or New Prime of this                     (3), not only must the movant      negotiations had been ongoing.
    action, thereby meeting                           make a proper showing he is
    the surprise or excusable                         entitled to relief based upon      The lesson for the industry
    neglect requirement under                         one of the specified grounds,      is clear: in instances where
    Rule 60(b)(1). Additionally,                      he must also make a prima          plaintiff’s counsel’s creativity
    given this history of contact                     facie showing of a meritorious     has exceeded what those on
    and negotiations between                          defense…A party making a           the defense side consider
    counsel and [the insurance                        motion under Rule 60(b) has        appropriate—in the context of
                                                                       9
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  obtaining a default or in any other            –––––––                                 Rothenberg, at his own request,
  scenario—it is imperative that                 TENNESSEE                               entered into negotiations with
  sight of the applicable analytical                                                     the chief financial officer of Exel,
  ball not be lost. Certainly the                Tennessee Court of Appeals              Andrew Hadland (“Hadland”),
  circumstances of this default                  Affirms Trial Court’s Dismissal         concerning the settlement
  judgment were distasteful, but the             for Lack of Personal Jurisdiction       of Pinnacle’s debt. Id. at
  showing that an appellate court                                                        *4. Hadland and Rothenberg
  will need to see does not change               Exel Transportation Services, Inc.      negotiated via e-mail, facsimile,
  based on the degree of outrage                 v. Inter-Ego Systems, Inc. d/b/a        and telephone from their
  experienced by the defendant.                  Pinnacle Loudspeakers a/k/a             respective offices in Memphis,
                                                 Pinnacle Speakers, No. CH-06-           Tennessee and Plainview, New
                                                 0427-3, 2008 Tenn. App. Lexis 735       York. After reaching an agreement
                                                 (Tenn. Ct. App. Dec. 18, 2008)          with Pinnacle, Hadland returned
                                                                                         the matter to McDonald, so that
                                                 Exel arises out of a contractual        a letter defining the terms of the
                                                 dispute between Exel                    agreement could be drafted and
                                                 Transportation Services, Inc.           sent to Rothenberg. Id.
                                                 (“Exel”) and Pinnacle Speakers
                                                 (“Pinnacle”). Exel, 2008 Tenn.          In April 2005, McDonald sent a
                                                 App. Lexis 735 at *1. Exel, a           letter to Rothenberg stating the
  Duke R. Highfield
                                                 Delaware corporation with its           terms of their agreement. Upon
                                                 primary place of business in            receipt and review of the letter,
                                                 Memphis, Tennessee, contacted           Rothenberg made changes and
                                                 Pinnacle, a New York corporation        returned the same to McDonald.
                                                 with its primary place of business      Ultimately, McDonald executed
                                                 in Plainview, New York, in              the letter agreement as altered
                                                 December 2002 in order to discuss       by Rothenberg. Id. at *4-5.
                                                 providing transportation services
                                                 for Pinnacle. Id. Pinnacle ultimately   Subsequent to execution of the
                                                 reached an agreement for                agreement, Exel discovered that
  Benjamin A. Traywick                           services with Exel and submitted        additional amounts were owed by
  YOUNG CLEMENT RIVERS, LLP                      a credit application to Exel’s          Pinnacle. Id. at *5. Exel sought
  28 Broad Street                                credit department in Memphis,           recission or reformation of the
  P.O. Box 993
                                                 Tennessee. Id. at *3. The               agreement by filing a lawsuit in
  Charleston, SC 29401
                                                 application was approved, and Exel      the Chancery Court of Shelby
  Tel: (843) 720-5456
                                                 provided transportation services        County Tennessee. Id. at *6.
  Fax: (843) 579-1330
                                                 pursuant to the credit arrangement
  dhighfield@ycrlaw.com
  btraywick@ycrlaw.com                           until January 2005. Id.                 Pinnacle sought and obtained
  www.ycrlaw.com                                                                         dismissal of the matter in
                                                 In February of 2005, Pinnacle           Chancery Court for lack of
                                                 became delinquent in its payments       personal jurisdiction. Pinnacle’s
                                                 to Excel. Along those lines,            motion to dismiss was granted
                                                 an account manager in Exel’s            after the court reviewed affidavits
                                                 Memphis office, Gale McDonald           on behalf of both parties. The
                                                 (“McDonald”), placed a telephone        trial court stated as follows:
                                                 call to Pinnacle’s New York office
                                                 and was connected with the                This cause came to be
                                                 vice president, Marc Rothenberg           heard upon the Motion of
                                                 (“Rothenberg”). Id. Subsequently,         the Defendant [Pinnacle],
                                                                      10
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    Response of the Plaintiff                    which has been interpreted to            nor systematic. Therefore,
    [Exel], Defendant’s Reply to                 have “expanded the jurisdiction of       it would be improper to
    Plaintiff’s Response, Plaintiff’s            Tennessee courts to the full limit       exercise general jurisdiction
    Sur Reply, briefs of the                     allowed by due process.” Id. at *11-     over Pinnacle to adjudicate a
    attorneys, and exhibits filed                12, (quoting Masada Inv. Corp. v.        cause of action that did not
    herein, the case authorities                 Allen, 697 S.W.2d 332, 334 (Tenn.        arise out of these attenuated
    cited and the entire record,                 1985) (citing Shelby Mut. Ins. Co.       contacts.
    from all of which it appears to              v. Moore, 645 S.W.2d 242, 245
    the Court that the Defendant                 (Tenn. Ct. App. 1981)). Accordingly,    Id. at *17-18
    did not purposefully avail itself            the Court’s analysis was based
    of the privilege of conducting               primarily on the Fourteenth             Specific jurisdiction was also
    business in this state. The                  Amendment to the United States          inappropriate in Excel according
    Court further finds that the                 Constitution. See id. at *12; see       to the Tennessee Court of
    quality, nature and extent of                also Riggs v. Burson, 941 S.W.2d        Appeals’ analysis, which was
    the Defendant’s contacts with                44, 51 (Tenn. 1997). In reaching        guided by the Tennessee
    this state are not sufficient to             its decision, the Court discussed       Supreme Courts opinion in J.I.
    subject the Defendant to in                  the basic principles of personal        Case Corp. v. Williams, 832
    personam jurisdiction in this                jurisdiction as defined in Int’l Shoe   S.W.2d 530, 532 (Tenn. 1992).
    state.                                       Co. v. Washington, 326 U.S. 462,        Exel at *18. J.I. Case Corp.
                                                 (1985) and its progeny, followed        offers three factors that should
  Id. at *6-9.                                   by a more detailed discussion of        be considered when making a
                                                 general and specific jurisdiction as    determination about specific
  Following the Chancery Court’s                 applied to the instant case. Exel,      jurisdiction: “(1) the quantity of
  decision, Exel brought an appeal               2008 Tenn. App. Lexis 735 at *13-       the contacts, (2) their nature and
  before the Court of Appeals of                 22.                                     quality, and (3) the source and
  Tennessee. On appeal, Exel                                                             connection of the cause of action
  argued that there were sufficient              The Court first analyzed whether        with those contacts.” J.I. Case
  grounds for both general and                   there were facts sufficient to          Corp., 832 S.W.2d at 532.
  specific jurisdiction. In support              exercise general jurisdiction. Id. at
  of its position, Exel stated the               17. In determining that Pinnacle’s      The Court of Appeals focused on
  following:                                     contacts with Tennessee were            the fact that “the negotiations
                                                 not sufficient to justify general       were initiated by Exel, and the
  (1) Pinnacle sought the letter                 jurisdiction, the Court focused on      only aspect of them that took
  agreement with Exel, located                   Pinnacle’s contacts with Tennessee      place in Tennessee occurred
  in Tennessee; (2) Pinnacle                     prior to the execution of the letter    on Exel’s end.” Id. at *20.
  negotiated the letter agreement                agreement. Id. Despite the fact         Furthermore, the agreement did
  with Exel in Tennessee; (3)                    that Pinnacle’s credit application      not contain any sort of forum
  Pinnacle Changed the letter                    was sent to Exel’s Memphis              selection clause or an indication
  agreement to add the mistaken                  office and Pinnacle speakers            as to the forum in which the
  term; and (4) Pinnacle sent the                were available for purchase via         agreement was reached. Id.
  changed letter to be signed by                 authorized dealers in Tennessee,
  Exel in Tennessee.                             the Tennessee Court of Appeals          The Court of Appeals went on to
                                                 concluded as follows:                   distinguish the facts in Exel from
  Id. at *10.                                                                            William W. Bond, Jr. & Assocs.,
                                                      …Pinnacle’s contacts with          Inc. v. Montego Bay Dev. Corp.,
  The Tennessee Court of Appeals                      Exel’s Memphis office prior        405 F. Supp. 256 (W.D. Tenn.
  noted that personal jurisdiction in                 to the negotiations leading        1975), which was cited by Exel
  the present case is controlled by                   up to the letter agreement at      because jurisdiction over the
  Tennessee’s Long Arm Statute,                       issue, were neither continuous     foreign defendants was found to
                                                                      11
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  comport with due process. Id.                  parties should give significant        you? For what? Does the law
  at *20-22. In Bond, the plaintiff              consideration to the use of a          require you to compensate her for
  was a Tennessee corporation                    forum selection clause. Such           her trauma?
  that entered into a contract                   would particularly be the case for a
  for services with Maryland                     Tennessee entity entering into an      Recently, in the case of Eskin v.
  defendants. Bond, 405 F. Supp.                 unsolicited business arrangement       Bartee, the Tennessee Supreme
  at 257. Unlike Pinnacle, the                   with a foreign corporation.            Court opened the door for claims
  defendants in Bond actually                                                           of negligent infliction of emotional
  solicited the business of the                                                         distress by family members who
  plaintiff, a Tennessee corporation.                                                   observe an injured loved one
  Exel, 2008 Tenn. App. Lexis 735                                                       shortly after an injury-producing
  at *21. Also, the Court pointed                                                       accident. In an opinion which
  out that the written agreement                                                        tracks the law of many other
  in Bond clearly stated that “it                                                       jurisdictions, the court created
  was negotiated in Tennessee,                                                          new guidelines for evaluating
  and that it was to be construed                                                       bystander claims. Defendants
  in accordance with Tennessee                   John R. Tarpley                        beware – a new class of plaintiffs
  law.” Such was not the case in                 Matthew P. Stephens                    has been created and your
  the agreement between Exel and                 LEWIS, KING, KRIEG,                    potential exposure just went up.
  Pinnacle. Id. at *22.                          & WALDROP, PC
                                                 P. O. Box 198615                       The Eskin case arises out of
  The Court of Appeals affirmed                  Nashville, TN 37219                    unfortunate facts wherein young
  the trial court in the instant case,           Tel: (615) 259-1366                    Brendan Eskin was struck by
  stating:                                       jtarpley@lewisking.com                 a mini-van as he stood in the
                                                 mstephens@lewisking.com                “pick–up” line at his elementary
    From the affidavits submitted                www.lewisking.com                      school awaiting his ride home.
    by the parties, we cannot                                                           Brendan’s mother and brother,
    say that, in negotiating                                                            Logan, arrived at the scene
    and executing the letter                     –––––––                                shortly after the accident.
    agreement, Pinnacle directed                 Emotional Distress Claims              Although they did not observe the
    its activities at Tennessee                                                         events of the accident, they found
                                                 Expanded
    such that it should reasonably                                                      Brendan lying on the pavement
    anticipate being “haled into                 The collision was horrific. The        in a pool of blood. According to
    court” in Tennessee. Masada,                 injuries were gruesome. The            Mrs. Eskin, her son was not being
    697 S.W.2d at 334. Under                     lawsuit will be huge and,              attended to and he appeared to
    these circumstances, we find                 unquestionably, the injured party      be lifeless.
    no error in the trial court’s                will recover enormous sums. You
    decision to decline to exercise              have come to terms with the fact       Brendan sustained permanent
    jurisdiction over Pinnacle.                  that you will owe for the serious      brain damage as a result of
                                                 physical impairment suffered by        being struck by the automobile.
  Id.                                            the other party, but wait . . . that   Both Mrs. Eskin and Logan
                                                 may not be all. Now the injured        filed suit against the driver of
  CONCLUSIONS                                    party’s mother is making a claim .     the mini-van claiming they had
                                                 . . the panic-stricken mother who      been “emotionally traumatized
  Exel seems to indicate that in                 arrived quickly at the accident        by the event” and they had
  Tennessee, when a local entity                 scene only to find her precious son    suffered “fright, serious shock,
  is negotiating a contract with                 lying helpless in a pool of blood.     and serious emotional injuries”
  a foreign defendant that has                   Does she have a claim against          including loss of enjoyment
  few contacts with the state, the
                                                                      12
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  of life and expenses for                       by any close relative who visually      apparent death or serious
  medical, psychological, and                    or audibly witnesses an accident        physical injury of another caused
  pharmaceutical services. The                   in which one near and dear is           by a third party’s negligence;
  Eskin’s uninsured motorist carrier             injured. Thereafter, the court then     (2) the existence of a close and
  opposed the claim relying on                   adopted a general negligence            intimate personal relationship
  Tennessee precedent requiring                  approach allowing recovery by           between the bystander and the
  “contemporaneous” viewing of                   bystanders who are actually in          deceased or injured person; (3)
  the accident itself in order for               the “zone of danger” and suffer         the bystander’s observation of
  a third party to recover for the               “serious or severe” emotional           the actual or apparent death
  tort of negligent inflection of                distress. However, when faced           or serious physical injury at the
  emotional distress.                            with a complaint by a son who           scene of the accident before
                                                 was not in the zone of danger but       the scene has been materially
  In analyzing the issues presented              witnessed an automobile strike          altered; and (4) the resulting
  in Eskin, the Tennessee court                  and kill his mother, the court          serious or severe emotional injury
  conducted a comprehensive                      expanded the “zone of danger”           to the bystander caused by the
  multi-jurisdictional review of the             concept, reasoning that close           observation of the death or injury.
  history of the law associated with             family members should be entitled       However, the court has pointedly
  bystander distress. The court                  to recover even if they are not in      reserved the right to allow
  recognized that virtually all states           harm’s path.                            additional recovery for bystanders
  (excluding only Arkansas and                                                           who witness the injury producing
  New Mexico) recognize the tort of              Recently, the court further             event even if they do not
  negligent inflection of emotional              extended the scope of protection        demonstrate a close or intimate
  distress, and a majority of states             by allowing a mail carrier to recover   personal relationship with the
  permit recovery by bystanders                  for negligent infliction of emotional   deceased or injured person.
  who witness the negligent                      distress when she watched a
  infliction of physical injury to               homeowner shoot his wife and then       The latest erosion to the law
  another person.                                commit suicide while delivering         regarding bystander recovery for
                                                 mail on her route. In that case, the    emotional distress is best stated
  When the tort of negligent                     court allowed recovery even though      in the words of the Tennessee
  infliction of emotional distress               the plaintiff was not in the “zone of   court:
  was initially recognized in                    danger” and did not have any sort
  Tennessee nearly 90 years ago,                 of personal relationship with the        [W]e have determined that it is
  the court expressed concern                    victim of physical injury.               appropriate and fair to permit
  about the potential for meritless                                                       recovery of damages for the
  claims and limited recovery to                 Given this steady and consistent         negligent infliction of emotional
  those persons who suffered                     expansion of the class of                distress by plaintiffs who have
  some physical manifestation of                 individuals entitled to recover for      a close personal relationship
  the trauma. However, exceptions                bystander distress, the court’s          with an injured party and who
  to the “physical manifestation”                decision in Eskin is not surprising.     arrive at the scene of the
  rule were quickly granted                      Once again, the initial legal concept    accident while the scene is in
  and, in the last half century,                 has been eroded in order to further      essentially the same condition
  the safeguards designed to                     expand the class of legitimate           it was in immediately after the
  prevent meritless claims have                  plaintiffs.                              accident.
  been systematically eroded by
  Tennessee courts.                              Now the court will allow a              And so it continues . . . the
                                                 bystander to recover even if            expansion of the law to include
  For example, in 1978 the                       he did not witness the injury-          another class of potential
  Tennessee Supreme Court                        producing event, provided that          plaintiffs. From this point
  opened the door for recovery                   he can show: (1) the actual or          forward, when evaluating a
                                                                     13
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  horrible accident, look not only               VERDICTS, APPEALS AND                 Jarrow of the Baker Sterchi
  at the immediate injuries of the                                                     Cowden and Rice, LLC firm.
                                                 SETTLEMENTS
  obvious parties, but consider
  also the bystanders as they arrive
  upon the scene. Their claims are               –––––––
  now recognized under the law.                  MISSOURI
  They are real and they may prove
  to be costly!                                  Defense Verdict

                                                 December, 2008, Eldon, Missouri.
                                                 Swift driver Mr. Destry Strange
                                                 was charged with careless driving,    James R. Jarrow
                                                 a Class A Misdemeanor, when           BAKER STERCHI COWDEN &
                                                 he was involved in an accident        RICE L.L.C.
                                                 while driving his tractor home        Crown Center
                                                 after dropping his trailer. He was    2400 Pershing Road, Suite 500
                                                 traveling under the speed limit at    Kansas City, MO 64108-2533
                                                 night, on a two lane highway. It      Tel: (816) 471-2121
  Richard W. Krieg                               was raining at the time. He lost      jarrow@bscr-law.com
                                                 control of the tractor, crossed
                                                                                       www.bscr-law.com
                                                 over the center line, and struck
                                                 an oncoming pickup truck with an
                                                 extended cab. Tragically, the 11
                                                 year old child in the left rear was
                                                 killed. The pickup was driven by
                                                 an off duty State Trooper, and the
                                                 child was his daughter. At the
                                                 time of the accident, the driver
                                                 told police that he lost control of
  Janet Strevel Hayes                            his vehicle due to oil on the road.
  LEWIS, KING, KRIEG &                           The Missouri Highway Department
  WALDROP P, .C.                                 inspected the road that evening
   .
  P O. Box 2425                                  and found nothing wrong with the
  Knoxville, TN 37901                            road. Photographs taken the day
  Tel: (865) 546-4646                            after the accident by the driver,
  dkrieg@lewisking.com                           and two days after the accident by
  jhayes@lewisking.com                           a defense reconstruction expert,
  www.lewisking.com                              all showed that the area where
                                                 the driver lost control was a chip
                                                 and seal patch that has lost most
                                                 of its gravel, and was mainly tar.
                                                 This accident occurred in August,
                                                 and the tar was extremely soft
                                                 and pliable. Oil could be seen in
                                                 the tar as it was photographed
                                                 following the accident. After a
                                                 highly emotional trial, the jury
                                                 returned a verdict finding the
                                                 driver not guilty. The case was
                                                 handled by the Kansas City ALFA
                                                 International Member James R.

                                                                      14
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  –––––––                                        testimony of Schneider National’s   PRACTICE TIPS
  NEW YORK                                       driver that the’ photographs
                                                 accurately depicted the tractor
                                                                                     –––––––
  New York’s Appellate Division,                 trailer was sufficient to support
                                                 their admission even though the     My Truck Driver’s Name
  Second Department, has
  affirmed a jury verdict in favor of            driver was not present when the     is “Jesus”: 3 Must-Do’s to
  Schneider National Carriers, in                photographs were taken, the         Defend Spanish-Speaking
  an intersection collision involving            photographer was not called as a    Truck Drivers in Litigation
  one of its tractor trailers. The               witness and the vehicle depicted
  case was tried by Harold L.                    was an exemplar tractor trailer.    Hispanics have responded to
  Schwab and the appeal was                      Shalot v. Schneider National        America’s increasing demand for
  written by Harry Steinberg and                 Carriers, Inc. A.D.3d N.Y.S.2d      long haul truck drivers. According
  Steven Prystowsky and was                      2008 WL 5376523 (2nd Dep’t          to the Bureau of Labor Statistics,
  argued by Harry Steinberg.                     2008).                              in 2007 there was an estimated
  Plaintiff claimed that as he                                                       1.6 million tractor-trailer truck
  pulled out into a T-intersection                                                   drivers in America. Twenty-three
  with the traffic signal in his                                                     percent (23%) are Hispanic.1
  favor, his car was hit in the right                                                According to the U.S. Census
  rear quarter-panel. Schneider                                                      Bureau, today there are 44.3
  National’s driver testified that the                                               million Hispanics in the U.S. By
  signal was in his favor and that                                                   2020, the Hispanic population
  as soon as he saw plaintiff’s                                                      is projected to increase to 66.3
  vehicle, he applied his brakes                                                     million. As Hispanic truckers
  but was unable to stop. After                                                      increasingly become part of the
  hearing the testimony of plaintiff,            Felice J. Cotignola                 trucking industry, and involved in
  Schneider National’s driver                    LESTER SCHWAB KATZ &                litigation, defense attorneys are
  and accident reconstructionist                 DWYER, LLP 120                      faced with unique challenges.
  experts for bath sides, the jury               120 Broadway, 38th Floor
  found that Schneider National’s                New York, NY 10271-0071             In litigation, defense counsel must
  driver was negligent, but that                 Tel: (212) 341-4313                 take additional steps to properly
  his negligence was not a                       fcotignola@lskdnylaw.com            defend a Spanish-speaking
  proximate cause of the accident.               www.lskdnylaw.com                   truck driver. For purposes of this
  On appeal, plaintiff argued                                                        article, we will call him, “Jesus”
  that the trial court erred in (a)                                                  [pronounced Heh-Soos]. As
  giving an “emergency charge” in                                                    everyone knows, “Jesus” is a
  defendant’s favor based upon                                                       popular Spanish male name.
  the defendant’s testimony that                                                     Plaintiff lawyers like to attack
  plaintiff suddenly pulled out of                                                   Spanish-speaking truckers for
  the intersection and (b) allowing                                                  being unable to speak English.
  into evidence photographs of an                                                    This is done for two reasons:
  exemplar of the tractor trailer
  based upon Schneider National’s                                                    1) To prejudice the jury against
  driver’s testimony that the                                                           the driver and trucking
  photographs accurately depicted                                                       company and
  the tractor trailer he was driving.
  The Appellate Division rejected                                                    2) To prove that the driver does
  both arguments concluding                                                             not meet the requirements set
  that (a) even if the “emergency                                                       by the Federal Motor Carrier
  charge” was given in error, any                                                       Safety Regulations to drive a
  such error was harmless since                                                         commercial vehicle.
  the jury found that the defendant
  was negligent and (b) the                                                          1- Bureau of Labor Statistics
                                                                     15
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  Also, plaintiff lawyers use the                have a bias against persons living           on this issue. A jury may likely
  driver’s language deficiency                   in the U.S. who cannot speak                 believe plaintiff’s allegation
  to establish negligent hiring,                 English. Some judges do too.                 that “Jesus” is not a qualified
  retention, supervision and training            I once represented a Spanish-                driver, and that the trucking
  against the trucking company.                  speaking truck driver in a suit filed        company was negligent in hiring
  They typically argue that the                  in a small Texas county. Plaintiff           a driver whose English language
  trucking company is liable for                 filed a motion to compel because             skills failed to comply with the
  negligent hiring and retention if              I objected to his request to my              FMCSR. A jury may also find
  it hires a non-English speaker.                trucking company client to produce           the trucking company liable for
  They argue that “Jesus’” inability             any and all training materials ever          negligent retention, training and
  to speak English disqualifies him              prepared by the trucking company.            supervision.
  from operating a commercial                    The main part of the hearing went
  vehicle since he does not                      something like this:                         I have had many a trucker timidly
  meet the minimum language                           Judge (with disapproval):               confess to me that he does not
  requirements set by the FMCSR.                      How do you pronounce his                speak, read or write English.
  Further, plaintiff lawyers typically                name? Dee…Dee?                          Naturally, we then conduct
  argue that a trucking company is                                                            the attorney-client meetings in
  liable for negligent training and                   Me:                                     Spanish. However, the following
  supervision if it provided safety                   Your honor, his name is Jesus           is a typical dialogue that
  training in English to a Spanish-                   Dieguez [Dee-eh-gez].                   demonstrates to me, and more
  speaker. They argue that the                        Judge:                                  importantly, to the trucker, that he
  training was a sham because                         Well, does he speak English? I’d        can speak, read and write English
  “Jesus” did not understand a word                   be interested to know if these          much more than he gives himself
  of it.                                              training materials your client          credit.
                                                      supposedly showed him were              Q: How do you get notice of
  The Plaintiff attorney’s plan is to                 in English or in Spanish. Get              a load?
  diminish or destroy the credibility                 these training materials to             A: Through dispatch.
  of the driver and/or trucking                       plaintiff counsel within 30 days.
  company such that the driver will              The Federal Motor Carrier Safety             Q: Does the dispatcher speak
  have no credibility relating to his            Regulations do not require that a               Spanish?
  accident fact testimony and so                 truck driver be fluent in English.
  that the jury will award enhanced                                                           A: No, English.
                                                 However, the FMCSR do state that
  damages and possibly exemplary                 a person is qualified to drive a
  damages.                                                                                    Q: Do you understand the
                                                 motor vehicle if he/she:                        information you’re given by
  In cases where there already                        Can read and speak the English             dispatch?
  tends to be a bias against                          language sufficiently to converse       A: Usually, yes, and if there is
  trucking companies and truck                        with the general public, to                something I don’t understand,
  drivers, plaintiff lawyers feed                     understand highway traffic                 I’ll ask.
  on the bias against non-English                     signs and signals in the English
  speakers.                                           language, to respond to official        Q: Are you an over-the-road
                                                      inquiries, and to make entries on          driver?
  The following are three important                   reports and records.2
                                                                                              A: Yes.
  steps to prepare “Jesus” for
  litigation and to help make him a              In litigation, if “Jesus” admits that
                                                 he does not speak, read or write             Q: Can you read the road signs
  better witness.                                                                             in
                                                 English, his response can have
                                                 dire legal consequences. Once                   small towns and cities
  ONE: ESTABLISH ABILITY                                                                         throughout the various states
                                                 that admission is made, defense
       TO SPEAK, READ AND                                                                        where you drive?
                                                 counsel is put on the defensive
       WRITE ENGLISH                                                                          A: Yes.
                                                 2 Federal Motor Carrier Safety Regulations
  Let’s face it – some jurors will               section 391.11

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  Q: Do you fill out a log book?                 demonstrates that the safety              Poor communication between
  A: Yes.                                        training provided to him in English       the interpreter and “Jesus” only
                                                 was not a sham.                           makes “Jesus” look bad. Quite
  Q: Do you fill it out in Spanish?                                                        candidly, it can make “Jesus” look
                                                 TWO: HELP THE INTERPRETER                 dumb.
  A: No, English. But it’s not
                                                      HELP “JESUS”
     difficult.                                                                            The use of an interpreter during
                                                 Imagine that you have been
                                                                                           “Jesus’” deposition or at trial
  Q: Have you ever had to talk to a              subpoenaed to appear for a
                                                                                           does not automatically negate
     police or DOT officer?                      deposition someplace outside
                                                                                           his ability to sufficiently speak
                                                 of the United States, and no
  A: Yes, of course.                                                                       English. Spanish is simply his
                                                 one speaks English. Given the
                                                                                           first language, and the one he
                                                 seriousness of the proceeding,
  Q: Do you talk to them in                                                                understands best. An interpreter
                                                 you decide that to best understand
     Spanish?                                                                              will facilitate “Jesus’” full and
                                                 the questions asked of you, that
  A: Well, I prefer Spanish but                                                            complete comprehension in a very
                                                 it would be immensely helpful to
     when I need to I will talk to                                                         important legal proceeding.
                                                 have an English translation. You
     them in English.                            appear for the deposition, and your
                                                                                           Before the start of the deposition,
                                                 interpreter is British, or better yet
  Thorough witness preparation                                                             it is a good idea for defense
                                                 Jamaican. Both speak “English”
  increases “Jesus’” chance of                                                             counsel to ask the translator if
                                                 but their accent, and word usage
  performing well during a cross                                                           he/she is familiar with trucking
                                                 will be different than your American-
  examination on language ability.                                                         lingo. It is also a good idea
                                                 English.
  More often than not, defense                                                             to make a list of terms that
  counsel can assist “Jesus”                                                               are expected to come up so
                                                 The same is true for Spanish.
  overcome his timidity so that he                                                         that the interpreter can have
                                                 People from different Spanish-
  can show a jury that he does,                                                            a handle on the terminology
                                                 speaking countries speak
  indeed, sufficiently speak, read                                                         before the deposition starts. I
                                                 differently. The slang is different.
  and write English. However,                                                              have corrected interpreters who
                                                 The accent is usually different.
  only “Jesus” can refute plaintiff                                                        used the same Spanish term for
                                                 Words can vary in meaning.
  counsel’s presumption that he                                                            “tractor” and “trailer” – imagine
  does not meet the minimum                                                                what a difference that made in
                                                 I recommend defense counsel
  language requirements to be a                                                            the deposition.
                                                 become aware of and make a list
  commercial truck driver. It is                 of interpreters whose Spanish
  defense counsel’s responsibility                                                         In certain cases, if defense
                                                 transcends regions. When it
  to meet with “Jesus” as often as                                                         counsel does not speak Spanish,
                                                 is time to present “Jesus” for
  necessary and to arm “Jesus”                                                             it is advisable to hire your own
                                                 deposition, it will be immensely
  with the confidence and skills to                                                        interpreter to attend “Jesus’”
                                                 helpful to know where the
  give testimony. “Jesus” must be                                                          deposition with defense counsel.
                                                 interpreter is from in order identify
  prepared to discuss not only his                                                         I have been in many depositions
                                                 accents or differences in syntax
  language ability, but also topics on                                                     where the interpreter incorrectly
                                                 that may arise. I always ask the
  company practices and training.                                                          translated “Jesus’” testimony, or
                                                 interpreter where he or she learned
                                                                                           omitted testimony. Once I had to
                                                 to speak Spanish, and advise the
  During litigation, it is critically                                                      suspend the deposition because
                                                 translator where “Jesus” is from so
  important to establish that                                                              the interpreter’s inaccurate
                                                 that he/she will know to use words
  “Jesus” can sufficiently speak,                                                          translations were compromising
                                                 commonly used from “Jesus’” home
  read and write English. It                                                               my client’s testimony.
                                                 country. When possible, arrange to
  makes him a better witness,                    have an interpreter from “Jesus’”
  demonstrates that he meets                                                               When an interpreter makes a
                                                 country of origin.
  the minimum requirements                                                                 mistake in the translation, a
  under the Federal Motor Carrier                                                          jury will not know it was the
                                                 During deposition and trial, the
  Safety Regulations, and also                                                             interpreter’s error. More than
                                                 quality of the translation is critical.
                                                                                           likely, a jury will believe that
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  “Jesus” cannot express himself                 SUMMARY                                   –––––––

  intelligently. Defense counsel                 Plaintiff attorneys aim to show that      The Tort Of Spoliation Of
  needs to be aware of inaccurate                “Jesus” is not qualified to drive         Evidence And Trucking
  translations so that the proper                a commercial truck on American            Litigation
  objection can be made and more                 highways. Plaintiff attorneys
  importantly, so the record is                  also aim to show that a trucking          Courts often use the term
  accurate. Your own interpreter                 company that hires a non-English          spoliation to refer to intentional
  can advise defense counsel when                speaker, i.e. an unqualified driver,      or negligent withholding,
  there has been an error in the                 to operate a big rig, puts other          alteration, or destruction of
  translation so it can be corrected             people’s lives in danger. Plaintiff       evidence relevant to a legal
  during the deposition. It is often             lawyers do this to inflame a jury and     proceeding, and New Mexico
  very problematic to try to do so               to obtain an award for exemplary          courts are no different. Courts
  days after the deposition has                  damages.                                  in New Mexico have the inherent
  been taken.                                                                              power to impose sanctions for
                                                 Defense counsel can mitigate the          a party’s spoliation of evidence.
  Choosing a good interpreter                    bias against “Jesus.” Thorough            Restaurant Management Co. v.
  is critical to “Jesus’” ability to             witness preparation, with an              Kidde-Fenwal, Inc., 1998-NMCA-
  perform well in a deposition or at             emphasis on showing that “Jesus”          101, ¶ 11, 127 N.M. 708, 711-
  trial. Doing this helps “Jesus’”               meets the minimum language                112, 986 P.2d 504, 507-08
  understanding, and enables                     requirements under the Federal            (Ct. App. 1999). Under current
  him to make a better witness                   Motor Carrier Safety Regulations, is      New Mexico law, the severity
  appearance.                                    critical. Defense counsel must also       of a sanction really depends
                                                 make an ally of “Jesus’” interpreter.     on the attendant facts and
  THREE: “JESUS’” CITIZENSHIP                    Lastly, defense counsel should            circumstances surrounding the
         STATUS                                  mitigate the possibility of citizenship   act of spoliation. Sanctions
  I was in a deposition, in a multi-             bias against “Jesus” by not allowing      generally include one of the
  party case, where an attorney                  him to answer questions on                following negative consequences:
  was badgering a trucker over                   citizenship. By accomplishing this,       (1) a separate cause of action
  citizenship. The trucker’s attorney            defense counsel will greatly improve      for damages, or (2) an adverse
  did not object, and under the                  “Jesus’” chances of success during        evidentiary inferences at trial or
  pressure, the trucker confessed                litigation.                               other discovery sanction.
  that he was not in this country
  legally. Later, I learned that the                                                       INTENTIONAL SPOLIATION OF
  trucker had been contacted by                                                            EVIDENCE
  the I.N.S., and he was going to be
  deported.                                                                                New Mexico crafted a separate
                                                                                           damage claim for the most
  The Federal Motor Carrier Safety                                                         egregious form of spoliation –
  Regulations do not require that                                                          intentional spoliation of evidence.
  an individual be a U.S. citizen to                                                       Coleman v. Eddy Potash, Inc.,
  be a truck driver. Nonetheless,                                                          120 N.M. 645, 905 P.2d 185
  plaintiff lawyers love to ask the              Cynthia Huerta                            (1995). Under this theory of
  question during a deposition. I                LORANCE & THOMPSON, P.C.                  spoliation, the existence of a
  instruct all drivers not to answer             2900 North Loop West                      lawsuit is not necessary. Rather,
  questions on citizenship. It is                Suite 500                                 the tort may be successfully
  critically important to discuss this           Houston, TX 77092                         proved by a showing that the
  topic with “Jesus” at the start of             Tel: (713) 868-5560                       spoliating party had knowledge of
  litigation. The deposition is not              ch@lorancethompson.com                    the probability of a lawsuit at the
  the place to discover that “Jesus”             www.lorancethompson.com                   time the evidence was destroyed.
  is not documented.                                                                       Coleman, 120 N.M. at 640, 905
                                                                                           P.2d at 189. Also, to prove intent

                                                                     18
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  on the part of the spoliator, a                sanctions pursuant to New Mexico         Motor Carrier Safety Regulations
  showing of malice on the part of               Rule of Civil Procedure 1-037.           (“FMCSR”). For example,
  the spoliator is necessary. After              The New Mexico Supreme Court             under FMCSR § 395.8(k), a
  all, New Mexico adopted the tort               has characterized the doctrine of        motor carrier is only required to
  to remedy egregious culpability                spoliation of evidence as a flexible     maintain driver logs for a period
  in the form of malicious intent to             doctrine that is both a substantive      of six months after receipt. Id.
  harm. Torres v. El Paso Electric Co.,          rule of law and a rule of evidence       Therefore, where a motor carrier
  1999-NMSC-29, ¶ 50, 127 N.M.                   or procedure. Thus, its application      did not have notice of a pending
  729, 987 P.2d 386 (1999).                      is to be determined based on the         lawsuit, yet destroyed driver logs
                                                 attendant facts and circumstances        after the six month time period
  NEGLIGENT OR NON-                              of each case. Torres, 1999-NMSC-         in accordance with the FMCSR
  INTENTIONAL SPOLIATION OF                      29, ¶ 54. Consequently, the New          and/or company policy, a credible
  EVIDENCE                                       Mexico appellate courts have held        argument may be made that
                                                 that, in exercising a court’s inherent   a claim for damages, adverse
  To remedy less egregious acts                  power to sanction a party for            inference instruction, or other
  of spoliation, New Mexico courts               destruction of evidence, the court       discovery sanction should not
  may craft an adverse inference                 may choose any of the remedies           be allowed. Similar arguments
  jury instruction or impose other               available under New Mexico’s             may be made for other types of
  discovery sanctions. The New                   Rule 1-037 NMRA, which governs           records/evidence based upon the
  Mexico Supreme Court has                       discovery sanctions. These               FMCSR, internal company policy,
  determined that, where the                     remedies include: (1) an order           and/or other considerations. See
  elements of the tort of intentional            that designated facts be taken as        generally, FMCSR § 382.401
  spoliation are not met, a more                 established; (2) an order that the       (alcohol/drug testing records
  appropriate remedy may be an                   spoliating party is prohibited from      retention); FMCSR § 396.3
  adverse evidentiary inference.                 supporting or opposing designated        (inspection, maintenance and
  Torres, 1999-NMSC-29 at ¶ 53,                  claims or defenses or from               repair retention); FMCSR §
  127 N.M. 729, 987 P.2d 386.                    introducing designated evidence;         382.401 (retention of records);
  In determining whether or not                  (3) an order striking out pleadings      and FMCSR §§ 379.3; 379.13;
  to give an adverse evidentiary                 or parts of pleadings, dismissing        Appendix A (Records required to
  inference jury instruction, New                the action, or entering a default        be retained and retention time
  Mexico courts consider: (1)                    judgment; or (4) an order treating       periods).
  whether the act of spoliation                  the destruction of the evidence as
  was intentional (as opposed to                 contempt of court. See, Restaurant       Furthermore, even if a motor
  unintentional loss or accidental               Management Co., 1999-NMCA-101,           carrier was on notice of a
  destruction of evidence); (2)                  127 N.M. 708, 986 P. 2d 504.             potential lawsuit and still
  whether the spoliator knew of                                                           destroyed evidence negligently in
  the reasonable possibility of a                PRACTICAL CONSIDERATIONS                 accordance with the FMCSR and/
  lawsuit involving the spoliated                FOR TRANSPORTATION AND                   or company policy, an argument
  evidence; (3) whether the party                TRUCKING PRACTITIONERS AND               may be made that the destruction
  requesting the instruction acted               MOTOR CARRIERS                           was innocent, and therefore,
  with due diligence with respect to                                                      the court should not award
  the spoliated evidence; and (4)                While New Mexico has not yet had         damages, but instead should
  whether the evidence would have                occasion to decide or consider           impose a lesser sanction, i.e. the
  been relevant to a material issue              a spoliation claim in the context        destruction was not intentional.
  in the case. Id.                               of trucking and transportation           See, Ordoñez v. M.W. McCurdy &
                                                 litigation, we may be able to get a      Co., Inc., 984 S.W. 2d 264, 273-
  In addition to an adverse                      sense of the arguments that can          274 (Tex. Ct. App. 1998).
  evidentiary inference for                      be made against the imposition
  negligent or non-intentional                   of sanctions by considering New          When confronting a spoliation
  acts of spoliation, New Mexico                 Mexico’s application of the tort         claim or developing company
  courts may instead chose to levy               of spoliation and various Federal        policies, it is important to
                                                                                          remember that although New
                                                                     19
ALFA International   |   TRANSPORTATION UPDATE        |   Volume 2009 Issue 1 (Winter)                      [ Return to Contents ]



  Mexico courts consider many                    –––––––                                 21. Digital photos / videos
  variables before imposing                      Potential Sources Of                    22. Vehicle service records
  sanctions pursuant to a claim                  Electronically Stored Information       23. Key employee computers
  for spoliation, the availability of            In A Truck Accident Case                    (dispatcher / safety director)
  or severity of a given sanction
                                                                                         24. Scale / weight records
  ultimately appears to revolve                  I.  IN THE TRUCK / WITH THE
  around the actions of the spoliator                DRIVER
  and the inability of the non-                                                          III. IN THE CUSTODY OF THIRD
                                                 1. ECM Unit from truck                       PARTIES
  spoliating party to proceed with
  their case.                                    2. Freight/load/shipping records        1. Satellite tracking /
                                                 3. Personal email to/from driver             communication
                                                 4. Load/trip email to/from driver       2. Fuel records
                                                 5. Company-wide email to/from           3. Toll Pass Records (i.e. EZ
                                                     driver                                   Pass)
                                                 6. Company to driver email              4. Company credit card records
                                                 7. PDA / Handheld devices               5. PDA / Handheld devices
                                                 8. Driver / passenger cell phone        6. Driver / passenger cell phone
                                                 9. RFI tags on freight                  7. Driver calling card records
                                                 10. Digital photos / videos             8. Land line phone records
  Martin Diamond                                 11. Driver laptop                       9. RFI tags on freight
                                                                                         10. Accident investigation files
                                                 II. IN COMPANY ELECTRONIC                    and communication
                                                     RESOURCES                           11. Digital photos / videos
                                                 1. Dispatch records                     12. Vehicle service records
                                                 2. Freight/load/shipping records        13. Scale / weight records
                                                 3. Personal email to/from driver
                                                 4. Load/trip email to/from driver
                                                 5. Company-wide email to/from
                                                     driver
  M. Scott Owen
                                                 6. Company to driver e-mail
  BUTT THORNTON & BAEHR PC
  4101 Indian School Road, NE                    7. Internal company email
  Suite 300 South                                8. Driver training materials and
  Albuquerque, NM 87110                              records
  Tel: (505) 884-0777                            9. Driver logs and supporting data
  madiamond@btblaw.com                           10. Driver qualification file           Curtis N. Stambaugh
  msowen@btblaw.com                              11. Satellite tracking /                MCNEES, WALLACE,
  www.btblaw.com                                     communication                       & NURICK, LLC
                                                 12. Fuel records                        100 Pine Street
                                                                                         P.O. Box 1166
                                                 13. Toll Pass Records (i.e. EZ Pass)
                                                                                         Harrisburg, PA 17108
                                                 14. Company credit card records         Tel: (717) 237-5435
                                                 15. PDA / Handheld devices              Fax: (717) 260-1747
                                                 16. Driver cell phone                   cstambaugh@mwn.com
                                                 17. Driver calling card records         www.mwn.com
                                                 18. Land line phone records
                                                 19. RFI tags on freight
                                                 20. Accident investigation files and
                                                     communication

                                                                         20
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  –––––––                                        safety manager and driver for         of primary importance to his
  Beware “Rules Of The Road”                     deposition and trial testimony.       company. The plaintiff’s attorney
  Recent Liability Tactics Of The                The trucking defense lawyer can       is encouraged to broadly
  Plaintiff’s Bar                                thus expect to see dog-eared          research an industry looking for
                                                 copies of “Rules of the Road” in      potential rules which could be
  Nationally recognized plaintiff’s              plaintiff counsel’s brief case and    used to pour content into the
  counsel Rick Friedman has                      experience the tactics espoused       notion of “reasonable conduct.”
  recently co-authored a book                    in the book used against him and      This search includes statutes,
  entitled “Rules Of The Road,                   his trucking clients. Thus, to be     trade publications, and internal
  A Plaintiff Lawyer’s Guide to                  prepared for those tactics one        policy.
  Proving Liability.” The text                   has to first have an understanding
  divulges the plaintiff bar’s                   of the underlying premise of the      The applicability of “Rules
  strategy, tactics and techniques               book.                                 of the Road” is particularly
  to prove liability against a                                                         troublesome for the trucking
  corporate defendant. Although                  The foundation of “Rules of the       defendant and defense counsel
  the book does not specifically                 Road” is plaintiff attorneys lose     since the Federal Motor Carrier
  target the trucking industry,                  otherwise meritorious cases           Safety Administration (“FMCSA”)
  the techniques discussed                       because of insidious enemies          provides a treasure trove of
  unfortunately fit particularly well            known as complexity, confusion        rules and regulations addressing
  in the context of a trucking case.             and ambiguity. On the other           trucking safety and conduct.
                                                 hand, the friend of the plaintiff     Additionally, publications by
  The “Rules of the Road” and                    trial lawyer is simplicity and        industry leaders such as J.J.
  its strategy have generated                    clarity. According to Mr. Friedman,   Keller provide a virtual nuts-
  considerable following amongst                 the successful defense trial          and-bolts instruction manual on
  the plaintiff bar. Mr. Friedman                lawyer has made a career of           how to organize and manage a
  is highly regarded by his plaintiff            purposefully confusing the jury and   trucking fleet safety program.
  peers and often emulated. His                  transforming a seemingly simple       Defense counsel should now
  verdicts total over $300 million,              accident case into a fog bank of      anticipate in deposition of
  and he is a member of the                      complexity and ambiguity. The         the trucking company safety
  Inner Circle of Advocates, an                  word “reasonable” which is the        officer that plaintiff’s counsel
  invitation-only plaintiff’s group              standard in any negligence case       will have a firm grasp on
  that limits its membership to                  is so overused and ill-defined        FMCSA regulations and will
  100 of the leading plaintiff’s                 during the life of a trial that it    have reviewed relevant industry
  lawyers in the country. Mr.                    becomes invisible to the jury. The    publications.
  Friedman is an author of several               vagueness of “reasonableness,”
  other plaintiff trial books, and a             according to “Rules of the Road,”     As instructed by the text, once
  sought-after lecturer at plaintiff             plays right into the hand of the      plaintiff’s counsel is armed
  lawyer conferences. “Rules of                  obtrusive defense lawyer.             with the rules of the road of
  the Road” is touted by plaintiff                                                     a particular case, it is time
  damage specialist, David Ball                  “Rules of the Road” combats this      to take the deposition of the
  Ph.D., and the Association                     “reasonableness” problem by           corporate individual who has
  of Trial Lawyers of America                    instructing the plaintiff’s lawyer    been designated person most
  (“ATLA”).                                      to utilize statutes, standards        knowledgeable. “Rules of the
                                                 and principles applicable to the      Road” outlines the deposition
  The purpose of this article is to              corporation’s industry to define      strategy. First, always go over
  discuss the “Rules of the Road”                reasonable conduct. In order to       the industry rules with the
  and to suggest how the defense                 be effective the rule has to be       corporate deponent before
  lawyer can successfully counter                either endorsed by the corporate      talking about the facts of the
  the tactics and stratagem                      defendant or uncontroverted. For      case. Then, get the corporate
  outlined in the book when                      instance, the fleet manager of        representative to endorse the
  preparing the trucking company                 a trucking company would have         rules when talking about the
                                                 to agree that public safety is
                                                                     21
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  basic principles of the industry.              conduct” by utilizing relevant          a particular question. Always
  Not until plaintiff’s counsel has              statutes, and incontrovertible          remember to make your record.
  those principles nailed down will              industry principles. This goal
  he or she move onto the specific               begins and ends with the                Once it becomes apparent to
  facts of the case. “Rules of                   deposition and trial testimony of       plaintiff’s counsel that this will
  the Road” advises the plaintiff                the corporate representative, or in     not be a deposition straight
  attorney that it is far easier                 the context of the trucking case,       out of the “Rules of the Road”
  getting the corporate witness                  with the fleet safety manager. The      handbook, expect counsel
  to agree to broad principles                   author of “Rules of the Road”           to then attempt to “polarize”
  applicable to the industry at                  crows that he is not leaking any        your client. By adopting this
  the beginning of the deposition                trial secrets to the defense bar        approach plaintiff’s counsel
  than later when the deposition                 since he believes there is no           will try to steer the trucking
  becomes more fact-specific and                 effective defense to the rules of       company witness into taking
  adversarial.                                   the road technique.                     extreme positions. For instance,
                                                                                         if plaintiff’s counsel cannot get
  Once the rules are established,                COMBATING THE “RULES                    the trucking witness to agree to
  then the next step is to corner                OF THE ROAD” PLAINTIFF’S                counsel’s pet theory regarding
  or box-in the corporate witness                APPROACH                                truck safety, then counsel will
  and have them admit certain                                                            take the opposite tack and
  rules were breached or violated.               First, when presenting the trucking     attempt to have the deponent
  In the alternative, to at least                client for deposition the defense       admit that public safety is not
  have the witness make specific                 attorney has to develop a tuned         a concern for that particular
  factual statements to seal off                 ear for overly broad questions          trucking company. Coach your
  any escape hatches for later                   by plaintiff’s counsel regarding        witness to expect extreme
  testimony.                                     anything to do with trucking safety,    polarizing type questions and
                                                 the underlying purpose of FMCSA,        how to best respond to them
  If the corporate witness has                   or trucking fatality statistics. In     in the context of the issues of
  the temerity to challenge or                   preparing the trucking witness for      your case. Never allow plaintiff’s
  prove difficult to plaintiff’s                 deposition, it is best for defense      counsel to back your witness
  counsel, “Rules of the Road”                   counsel to outline for the client the   into conceding to a polarizing
  then instructs counsel to                      plaintiff’s counsel’s anticipated       statement. This would play
  shift deposition strategy                      overall strategy and how to be          havoc with every stage of the
  and “polarize” the witness.                    ready for the rules of the road         case should it go to trial.
  Polarization is a tactic whereby               type of questions. The trucking
  plaintiff’s counsel will attempt               witness has to be cautioned not         The other way to defeat the
  to force the witness to take an                to fall too easily into agreement       rules of the road strategy is to
  extreme position. The idea being               with plaintiff’s counsel’s broad        undercut the faulty premise upon
  that by taking such an extreme                 brush statements concerning             which the book is based. That
  position the witness will lose                 safety or industry standards. If it     it is defense counsel’s strategy
  credibility with the jury.                     seems to be a deposition being          to cloud the issues, and make
  The overall theme of the book                  taken by a sophisticated plaintiff’s    the simple complex. The book
  is that good liability cases                   counsel utilizing the rules of          serves as a prism of plaintiff
  are lost because the defense                   the road techniques, defense            counsel’s perspective of the
  successfully is able to confuse                counsel has to be trigger-ready         defense bar. Mr. Friedman is
  the jury and obfuscate the                     with the appropriate objections         somehow under the mistaken
  issues. The standard of                        regarding speculation or legal          impression that it is the end-
  “reasonable conduct” as                        testimony from a lay witness.           game of the defense attorney
  phrased is an enemy of the                     Defense counsel must be able to         to confuse the jury. Nothing
  plaintiff lawyer since it is vague             recite appropriate authority if the     could be further off the mark.
  and amorphous. The aim of                      deposition question has digressed       Any defense trial lawyer would
  “Rules of the Road” is to pour                 to the level where counsel has to       educate Mr. Friedman that
  life into the phrase “reasonable               instruct the witness not to answer      we strive for simplicity, not
                                                                     22
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  complexity, when trying our                    to pick up a copy of a well written
  cases. Thus, an effective                      manual by an industry leader such
  approach is to reinforce our                   as J.J. Keller.
  straightforward themes and clear               The best way to counter these
  message to the jury.                           methods is to learn and then
                                                 anticipate them. Experienced field
  Today, thanks to e-mail list                   generals always have a good idea
  serves and web access to                       what is going on in the enemy’s
  plaintiff attorney organizations               camp. Trucking defense lawyers
  such as ATLA and its local                     should make the investment and
  chapters, the plaintiff’s bar                  purchase and read this book until
  is far more sophisticated and                  it is dog-eared. This way we can
  united than in days past. As                   best prepare our trucking clients
  defense attorneys we experience                for deposition and trial.
  the different waves of theories
  and fashions promoted by the
  plaintiff’s bar. When Gerry
  Spence’s books first came out
  we all heard slightly different
  renditions in closing argument
  about how society spends so
  much money repairing buildings,
  thus it is only morally right to do
  the same for an injured plaintiff.
  When “David Ball on Damages”                   Peter S. Doody
  was published plaintiff attorneys              HIGGS, FLETCHER & MACK, LLP
  began to craft their closings                  401 West A Street, Suite 2600
  to empower a jury to help the                  San Diego, CA 92101-7910
  injured plaintiff and family                   Tel: (619) 236-1551
  instead of simply asking for                   doody@higgslaw.com
  obscene sums of money. Thus,                   www.higgslaw.com
  based on experience we fully
  expect to see more and more
  plaintiff attorneys utilizing the
  techniques set forth in “Rules of
  the Road.”

  This book gives plaintiff’s
  counsel a paint by numbers
  approach on how to find industry
  rules and how to best use them
  effectively against the defense.
  The problem is that the trucking
  industry is a particularly ripe
  target for a plaintiff’s attorney
  being guided by this book given
  the hundreds of regulations
  promulgated by the FMCSA and
  its easy web access. If the
  multitude of regulations becomes
  too complex for plaintiff’s
  counsel, he or she simply has
                                                                     23
ALFA International   |   TRANSPORTATION UPDATE     |   Volume 2009 Issue 1 (Winter)                                      [ Return to Contents ]



  ARTICLES                                        Mellon Nat’l Bank & Trust Co.                        to the financial responsibility
                                                  v. Sophie Lines, 289 F.2d 473                        requirements of sections 29
  –––––––                                         (3rd Cir. 1961) (discussing the                      and 30 of the Motor Carrier Act
  A precursor to the following                    confusion caused in identifying                      of 1980 regardless of whether
  article first appeared as an                    the financially responsible party                    or not each motor vehicle is
  invited chapter in the ABA                      of a tractor-trailer accident). The                  specifically described in the
  publication Truck Accident                      amendments effectively place                         policy and whether or not such
  Litigation, Second Edition                      leased vehicles and equipment                        negligence occurs on any route
  2006. It has been rewritten                     under the complete assumption                        or in any territory authorized
  and updated by the author for                   and control of the interstate                        to be served by the insured or
  publication here. It is used                    common carrier (usually the                          elsewhere….it is understood
  by permission of the author                     lessee). 49 U.S.C. § 14102; 49                       and agreed that no condition,
  and the ABA. Truck Accident                     C.F.R. § 376.12(c).                                  provision, stipulation, or
  Litigation, Second Edition 2006,                                                                     limitation contained in the
  a trade paperback book can be                   The ICC amendments and related                       policy, this endorsement,
  purchased through the ABA on                    federal regulations are intended                     or any other endorsement
  their website. The book is highly               to protect the public by requiring                   thereon, or violation thereof,
  recommended. http://www.                        commercial motor vehicle leases                      shall relieve the company from
  abanet.org                                      to contain terms within the                          liability or from the payment
  -The Editors                                    lease that establish financial                       of any final judgment, within
                                                  responsibility criteria. One way                     the limits of liability herein
                                                  carriers can satisfy the financial                   described, irrespective of the
  Allocation of Financial                         responsibility aspect of the federal                 financial condition, insolvency
  Responsibility Among Insurers                   regulations is by having minimum                     or bankruptcy of the insured.
                                                  limits of insurance coverage and                     However, all terms, conditions,
  Based on the MCS-90
                                                  including a Form MCS-90 as                           and limitations in the policy
  Endorsement                                     an endorsement to the motor                          to which the endorsement is
                                                  carrier’s insurance policy. (See 49                  attached shall remain in full
  Many interstate trucking
                                                  CFR § 387.15).2                                      force and effect as binding
  company lease some or all
                                                  The relevant portions of the                         between the insured and
  of their truck tractors and
                                                  MCS-90 endorsement provide as                        [insurer].
  equipment from independent
                                                  follows:
  owner-operators. In many
                                                    …In consideration of the                          49 C.F.R. § 387.15, Illust. 1.
  cases where the owner of
                                                    premium stated in the policy
  the truck is not its driver, the
                                                    to which this endorsement is                      The MCS-90 endorsement’s
  lessor also provides the driver.
                                                    attached, the insurer [] agrees                   primary purpose is “to assure
  These lease arrangements
                                                    to pay, within the limits of                      that injured members of the
  are governed by federal
                                                    liability described herein, any                   public are able to obtain
  regulatory requirements found
                                                    final judgment recovered against                  judgment from negligent
  at Part 376 of Title 49, Code
                                                    the insured for public liability                  authorized interstate carriers.”
  of Federal Regulations. The
                                                    resulting from negligence in                      John Deere Ins. Co. v. Nueva,
  regulatory requirements followed
                                                    the operation, maintenance or                     229 F.3d 853, 857 (9th Cir.
  Congress’s amendments to
                                                    use of motor vehicles subject                     2000). “Basically, the MCS-
  the Interstate Commerce
                                                                                                      90 makes the [motor carrier’s]
  Act that clarified which party                  to the Department of Transportation when the
                                                  ICC was disbanded by the ICC Termination Act        insurer liable to third parties
  would be held liable when a                     of 1995.                                            for any liability resulting from
  leased commercial vehicle is                    2 Motor carriers can also satisfy this financial    the negligent use of any motor
  involved in an accident.1 See                   requirement by a guarantee, a surety bond as        vehicle by the insured, even if
                                                  approved in Form MCS-82, see 49 C.F.R. §
  1 The Interstate Commerce Commission                                                                the vehicle is not covered under
                                                  387.15, or as a qualified self-insurer. 49 U.S.C.
  (“ICC”) retained jurisdiction over interstate
  carriers through the Motor Carrier Act
                                                  § 31139(f). Satisfaction of this financial          the insurance policy.” T.H.E.
                                                  responsibility requirement by any of these
  of 1980, which amended the Interstate
                                                  three means does not require the carrier to
                                                                                                      Ins. Co. v. Larsen Intermodal
  Commerce Commission Act of 1935.
  However, the ICC’s authority was transferred
                                                  have an MCS-90 endorsement.                         Servs., Inc., 242 F.3d 667, 671
                                                                        24
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  (5th Cir. 2001). However, the                  policy. If it is not, and there is          protection of a member of the
  ultimate risk, unlike a typical                more than one potential insurer,            public is at stake, but those
  insurance policy, does not shift               does the existence of the MCS-              facts cannot be invoked by
  to the insurer; rather, the insured            90 endorsement impact the loss              another insurance company
  is required to reimburse the                   allocation among the insurers?              which contracted to insure a
  insurer for any payments that                                                              specific risk and which needs
  would not have been made but                   In response to this question,               no equivalent protection.”
  for the endorsement. Wells v.                  the majority of federal circuits            Carolina Cas. Ins. Co. v.
  Gulf Ins. Co., 484 F.3d 313, 317               have held that the MCS-90                   Underwriters Ins. Co., 569
  (5th Cir. 2007); Canal Ins. Co. v.             endorsement does not affect                 F.2d 304, 313 (5th Cir. 1978)
  Underwriters at Lloyd’s London,                allocation of loss among parties            (on appeal from N.D. Ga. and
  435 F.3d 431, 442 (3d Cir.                     and insurers. Most of the                   decided under Georgia law).
  2006); Travelers Indem. Co. v. W.              courts that have addressed this
  Am. Specialized Transp. Co., 317               issue look to state contract and          Travelers Ins. Co. v. Transp.
  F. Supp. 2d 693, 698-99 (W.D.                  insurance law, as well as the             Ins. Co., 787 F.2d 1133, 1140
  La. 2004).                                     terms of the insurance policies at        (7th Cir. 1986). In short, the
  Although the MCS-90 obliges the                issue, to govern such allocation.         majority view holds that the
  insurer to pay an injured party                After all, the MCS-90 endorsement         MCS-90 is designed to put the
  without regard to any coverage                 is only meant to protect the              public’s interest above that of
  issues, the federal regulatory                 public and does not speak of loss         the insurance companies. It is
  framework does not control the                 allocation.                               not intended to make primary
  allocation of loss between the                                                           the policy into which it is
  lessee and lessor, nor between                 The United States Court of                incorporated. Id.
  their respective insurers. Issues              Appeals for the Seventh Circuit
  of loss allocation are generally               succinctly stated the majority            Application of the Majority
  left to interpretation of state                view:                                     View by Various Federal Circuit
  contract and common law. When                       The purpose of the federal           Courts3
  leased trucks are involved in                       statute and regulations is to        3 In addition to the cases cited, the
  motor vehicle accidents the                         ensure that an I.C.C. carrier        Seventh, Eight and Ninth Circuits have
  issue of loss allocation can                        has independent financial
                                                                                           followed the majority view. For example, in
                                                                                           Travelers Ins. Co. v. Transp. Ins. Co., supra,
  become a central issue in                           responsibility to pay for the        the Seventh Circuit steadfastly refused to
  resulting litigation. This article                  losses sustained by the general      allocate loss amongst insurers based on
  explores the competing views                                                             the presence of an MCS-90 attachment.
                                                      public arising out of its trucking   In a pre-Motor Carrier Act case, the Eight
  adopted among the federal                           operations. However, once it         Circuit focused on the purpose of the
  circuits on the allocation of                       is clear that there are sufficient   federal regulations and the language of the
                                                                                           policy to determine that the MCS-90 does
  loss when one or both of the                        funds available to safeguard the     not make the policy primary as a matter of
  lessee’s and lessor’s insurance                     public, the inquiry changes: “the    law. Wellman v. Liberty Mut. Ins. Co., 496
  policies contain the MCS-90                         pertinent question is whether
                                                                                           F.2d 131 (8th Cir. 1974). In Wellman, the
                                                                                           court noted that an insurance company’s
  endorsement.                                        the federal policy of assuring       obligations as to another insurance
                                                                                           company are contract based. Id. at 139.
                                                      compensation for loss to the         The company’s obligations to the public are
  The Effect of the MCS-90                            public prevents courts from          based on the endorsement. Id. Similarly,
  Endorsement                                         examining the manner in which        in Grinnell Mut. Reins. Co. v. Empire Fire
                                                                                           & Marine Ins. Co., 722 F.2d 1400, 1404-
                                                      private agreements or state          05 (8th Cir. 1983), the Eight Circuit cited
  The presence of the MCS-90                          laws would otherwise allocate        Transamerican, supra: “[w]hile the I.C.C.
  endorsement in a policy makes                       the ultimate financial burden of     regulations do require a motor carrier to
                                                                                           maintain public liability insurance and make
  that insurer financially obligated,                 the injury.” Carolina Cas. Ins.      a carrier liable to the public for negligent
  even when there is another                          Co. v. Ins. Co. of N. Am., 595       acts of the vehicle’s driver whenever
  applicable insurance policy                         F.2d 128, 138 (3d Cir. 1979)         the carrier’s number is displayed, the
                                                                                           regulations do not fix the liability between
  owned by the lessee. This raises                    (emphasis added). We agree           insureds or insurance companies.”
  the question of whether the                         with the majority view that          The Ninth Circuit addressed the allocation of
  policy the MCS-90 endorsement                       “I.C.C. public policy factors are    loss in light of an MCS-90 endorsement in
                                                                                           a case involving an insurer’s duty to defend.
  accompanies is the primary                          frequently determinative where
                                                                      25
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  THIRD CIRCUIT                                     FOURTH CIRCUIT                                     Casualty…” Atl. Cas. & Fire Ins.
                                                                                                       Co. v. Nat’l Am. Ins. Co., 915
  In Carolina Cas. Ins. Co. v. Ins.                 The Fourth Circuit has “adopt[ed]                  F. Supp. 1218, 1222 (M.D. Fla.
  Co. of N. Am., 595 F.2d 128,                      the majority view of [its] sister                  1996).
  138 (3d Cir. 1979), the Third                     circuits that the MCS-90
  Circuit focused on the public                     endorsement does not apply to                      Carolina Casualty v. Underwriters
  policy considerations behind                      determine the allocation of loss                   was a wrongful death action
  the MCS-90, and recognized                        among insurers.” Canal Ins. Co. v.                 against the owners and lessors
  that the insurers cannot free                     Distrib. Servs., Inc., 320 F.3d 488,               of a truck tractor, and the truck’s
  themselves of the federal duties                  493 (4th Cir. 2003). The Fourth                    lessee and sublessee. The truck
  to protect the public. However,                   Circuit based its reasoning on the                 tractor’s insurer (Underwriters)
  the court also recognized that                    express language of the MCS-90                     filed a declaratory action against
  the federal regulations “are                      endorsement. Id.4                                  the lessee’s and sublessee’s
  not so radically intrusive as                                                                        insurer contending that the
  to absolve lessors or their                       FIFTH CIRCUIT                                      latter was the primary insurer
  insurers of otherwise existing                                                                       as a matter of law by reason of
  obligations under applicable                      A 1978 case from the Fifth                         the presence of a predecessor
  state tort law doctrines or under                 Circuit, Carolina Cas. Ins. Co.                    ICC-required endorsement,
  contracts allocating financial                    v. Underwriters Ins. Co., supra,                   the BMC-90. Carolina Cas.
  risk among private parties.” Id.                  is both the benchmark case for                     v. Underwriters, 569 F.2d at
  “So long as the public interest                   the Fifth Circuit on this issue, as                309.6 The court rejected this
  is protected and third parties                    well as the leading case in the                    position stating: “[e]ven if we
  have been compensated for                         Eleventh Circuit.5 Although this                   assume arguendo that the
  their injuries, federal regulations               case predates the 1980 Motor                       Underwriters policy bears the
  permit lessors, lessees and                       Carrier Act, there is “no reason to                ICC endorsement, and assume
  their insurers to allocate risk                   conclude that the advent of the                    that…the Tenth Circuit is saying
  among themselves as they see                      MCS-90 endorsement would                           that such an endorsement
  fit…. [R]esponsibility among the                  bring about a different result from                makes insurance coverage
  motor carriers and their various                  that reached in Carolina                           primary in all circumstances and
  insurers is determined by state                                                                      for all purposes as a matter of
  insurance and contract law,                                                                          law, we decline to follow such a
                                                    4 See also McGirt v. Gulf Ins. Co., 207 Fed.       rule.” Id.7
  not by federal requirements.”                     Appx. 205 (4th Cir. 2006); Canal Ins. Co. v.
  Maryland Cas. Co. v. City                         Distrib. Svcs., Inc., 320 F.3d 488 (4th Cir.       6 The BMC-90 is an endorsement similar
  Delivery Serv., Inc., 817 F. Supp.                2003); Carolina Cas. Ins. Co. v. Transport         to the MCS-90 and was used by the ICC
                                                    Indem. Co., 533 F. Supp. 22, 26 (D.S.C.            prior to 1982. The ICC adopted the MCS-90
  525, 531 (M.D. Pa. 1993); citing                  1981), aff’d. 676 F.2d 690 (4th Cir. 1982)         thereafter in order to join the DOT in its use
  Transamerican Freight Lines, Inc.                 (following Carolina Cas. v. Ins. Co. of N. Am.,    of the MCS-90 at that time. See 132 MCC
  v. Brada Miller Freight Sys., Inc.,               supra and Carolina Cas. v. Underwriters,           948, 1982 WL 28482; 49 C.F.R. § 387.313.
                                                    supra, and holding that “the public policy         Moreover, a majority of courts recognize that
  423 U.S. 28, 96 S. Ct. 229, 46                    of protecting innocent third parties from          the BMC-90 is almost identical to the MCS-
  L. Ed. 2d 169 (1975).                             financially irresponsible truckers does not        90 endorsement. See, e.g., Atl. Cas. & Fire,
                                                    require that the insurer for an ICC certificated   915 F. Supp. at 1222.
                                                    carrier be primarily liable as a matter of law
                                                    in a case where ample coverage is available        7 In addition to T.H.E. Ins. Co., supra
  In Harco Nat’l Ins. Co. v. Bobac Trucking Inc.,
                                                    through the insurer of the owner of the            (holding that state law governs the allocation
  107 F.3d 733 (9th Cir. 1997), the court held
                                                    vehicle”). Two district courts in the Fourth       of liability between insurers) and Carolina
  that an MCS-90 endorsement did not create
                                                    Circuit have similarly held that the MCS-90        Casualty v. Underwriters, supra, other Fifth
  a duty to defend claims that were covered
                                                    endorsement does not render the policy             Circuit cases have followed the majority
  by the endorsement, but not otherwise
                                                    primary. See Am. Alternative Ins. Co. v. Sentry    view. See, e.g., Carter v. Vangilder, 803
  covered by the insurance policy at issue.
                                                    Select Ins. Co., 176 F. Supp. 2d 550 (E.D. Va.     F.2d 189 (5th Cir. 1986) (finding that the
  Id. In so holding, the court flatly rejected
                                                    2001); and Old Republic Ins. Co. v. Canal Ins.     I.C.C. endorsement was intended to protect
  the argument that the MCS-90 endorsement
                                                    Co., 876 F. Supp. 80 (D. Md. 1994).                the public, and an insurance company
  makes the policy primary. Id. at 736.
                                                                                                       that contracted to cover a risk could not
  Although the court was not ruling on the          5 When the Eleventh Circuit Court of Appeals       then shift liability); Empire Indem. Ins. Co.
  issue of loss allocation, the court’s analysis    was formed from the split of the Fifth Circuit     v. Carolina Cas. Ins. Co., 838 F.2d 1428
  of the insurer’s duty to defend indicates that    Court of Appeals, the Eleventh Circuit adopted     (5th Cir. 1988) (finding two insurers whose
  the Ninth Circuit follows the same reasoning      the precedent of the Fifth Circuit prior to        policies contained an I.C.C. endorsement
  as the other circuits: “the purpose of the        October 1, 1981, as its own. See Bonner v.         jointly and equally liable); Canal Ins. Co.
  MCS-90 is to protect the public, not to create    City of Prichard, 66 F.2d 1206, 1207 (11th Cir.    v. First Gen. Ins. Co., 889 F.2d 604 (5th
  a windfall for the insured.” Id.                  1981).
                                                                           26
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  SEVENTH CIRCUIT                                The presence of an indemnity            Minority View: Loss Allocation
                                                 agreement in the lease rendered         Based on the Presence of the
  Applying the same rationale                    Occidental financially responsible.     MCS-90 Endorsement
  reached by the Fourth and                      Id. at 989-90.
  Fifth Circuit Courts of Appeal,                                                        Although clearly a minority
  the Seventh Circuit has also                   ELEVENTH CIRCUIT                        position, various courts (primarily
  recognized that the allocation                                                         within the Tenth Circuit) have
  of coverage among insurers                     The Eleventh Circuit addressed          held that the terms of an
  is determined by state law,                    the issue in Empire Fire &              insurance policy containing the
  not federal regulations, when                  Marine Ins. Co. v. J. Transport,        MCS-90 endorsement must be
  an MCS-90 endorsement                          Inc., 880 F.2d 1291 (11th Cir.          considered when determining
  accompanies an insurance                       1989). Empire Fire began in a           the appropriate allocation of
  policy. Occidental Fire & Cas. Co.             Kentucky district court, which held     loss amongst insurers. Some
  of North Carolina v. Int’l. Ins. Co.,          that the MCS-90 endorsement             courts have limited this view to
  804 F.2d 983 (7th Cir. 1986).                  did not render the applicable           only make the policy containing
  In the instant case, Occidental                policy primary and ordered both         the MCS-90 endorsement
  Fire and International Insurance               insurance companies involved            primary when the policy, by its
  jointly settled a personal                     to contribute to the judgment “in       own terms, is primary (without
  injury claim on behalf of their                the same ratio as the limits of         reference to the endorsement).
  respective insureds, the lessee                their policies bear to each other.”     The courts adopting this view
  and lessor of a tractor trailer. In            Id. at 1292. The endorsement            also have found that when the
  reaching a settlement with the                 holder (Empire Fire) then filed         policy containing the MCS-90
  underlying plaintiff, each insurer             an action in federal court in           endorsement is not the primary
  reserved the right to challenge                Georgia seeking indemnification         policy at issue, it may be
  whether it would ultimately                    and reimbursement from the              deemed to be “co-primary” with
  be liable for the plaintiff’s                  common carrier as well as a             other policies that are deemed
  injuries. The court, in affirming              third party action against the          primary by the very terms of the
  a summary judgment in favor                    second insurance company                policy.
  of International Insurance, held               (Paxton). Empire Fire contended
  Occidental responsible for the                 that Paxton was primarily liable        The Tenth Circuit Court of
  full settlement amount despite                 and responsible for the entire          Appeals developed a trilogy
  the presence of an MCS-90                      amount. Although the Georgia            of cases that support the
  endorsement in International                   district court disposed of the          proposition that the mere
  Insurance’s policy. The court held             case on res judicata grounds,           existence of the MCS-90
  that a federal regulation required             the Eleventh Circuit, in dicta,         endorsement creates primary (or
  only assurance that sufficient                 recognized the public policy            co-primary) coverage as a matter
  resources were available for                   concerns of the regulations. “It        of law: Argonaut Ins. Co. v. Nat’l
  losses suffered by the general                 is clear that while ICC regulations     Indem. Co., 435 F.2d 718 (10th
  public and once that requirement               require the carrier, or its certified   Cir. 1971) (holding that the effect
  was met, private agreements                    insurer, to protect the public from     of the endorsement was to make
  and state law governed upon                    loss due to negligent acts, the         the driver’s insurer the primary
  whom the ultimate financial                    regulations do not alter or affect      insurer); Hagans v. Glens Falls
  responsibility for losses fell. Id.            the obligations between the             Ins. Co., 465 F.2d 1249 (10th
  at 990. Once the underlying                    insured and the insurer, or where       Cir. 1972) (holding that the ICC
  plaintiff’s losses were satisfied              there is more than one insurer,         endorsement attached to policy
  through the settlement, the                    the apportionment of liability          made that policy primary); and
  parties’ lease agreement                       between them.” Id. at 1298; citing      Carolina Cas. Ins. Co. v. Transp.
  and state law determined                       Transamerican Freight Lines, Inc.,      Indem. Co., 488 F.2d 790 (10th
  the ultimate responsibility.                   423 U.S. 28, 39-40 (1975), and          Cir. 1973) (where both insurers
  Cir. 1989), modified on other grounds, 901     Carolina Cas., 569 F.2d at 313.         had ICC endorsements, the
  F.2d 45 (5th Cir. 1990) (ruling that I.C.C.                                            lessor’s policy, which included
  endorsement protected the public and could
  not be used by one insurer against another).
                                                                     27
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  an omnibus clause, was primary                   inconsistent limiting provisions in     not alter its determination that
  because it encompassed the                       the insurance policy to which it is     the lessee’s policy was primary.
  driver). Collectively, these cases               attached, regardless of whether
  hold that the ICC endorsement                    a shipper or a member of the            In Adams v. Royal Indem. Co., 99
  makes the policy to which                        public is involved in the dispute       F.3d 964, 970 (10th Cir. 1996),
  the endorsement is attached                      or whether the dispute is among         the Tenth Circuit reaffirmed
  primary, as a matter of law.                     insurance companies.” Id. at 362.       the approach it took in Empire
                                                   The court was quick to point out        Fire v. Guaranty, and held that
  In 1989, the Tenth Circuit                       that the ICC endorsement cannot         the existence of the MCS-90
  clarified its position in light                  “nullify the effect of other policies   endorsement required that the
  of how courts interpreted this                   that are also primary by their own      court ignore certain limiting
  trilogy of cases and in light of                 terms.” Id. at 363. The court saw       terms of the insurance policy
  the subsequent United States                     such a nullification as a windfall      when analyzing the allocation
  Supreme Court decision of                        for the insurer whose policy, by its    of loss. If the limiting language
  Transamerica Frt. Lines, Inc. v.                 very language, provides primary         remained in the policy the court
  Brada Miller Frt. Sys., Inc., 423                coverage. Id.                           said that it would “subvert the
  U.S. 28 (1975).8 In Empire Fire                                                          purpose of the ICC endorsement
  & Marine Ins. Co. v. Guar. Nat’l                 The Empire Fire holding appeared        of requiring coverage on all
  Ins. Co., 868 F.2d 357 (10th                     to place the Tenth Circuit closer       regulated vehicles regardless of
  Cir. 1989), the court noted that                 in line with the majority view          whether or not they are listed in
  there are three approaches to                    by taking a step back from its          the policy specifically.” Adams,
  how courts have interpreted                      trilogy of cases that held that         99 F.3d at 970.
  the allocation of loss in light of               the existence of the MCS-90
  the ICC endorsement: (1) the                     endorsement made the policy             The extent to which the Tenth
  endorsement makes the policy                     primary as a matter of law.             Circuit’s minority view will survive
  primary as a matter of law; (2)                  However, in Railhead Freight Sys.,      future scrutiny is now the subject
  the endorsement only negates                     Inc. v. U.S. Fire Ins. Co, 924 F.2d     of debate in Carolina Cas. v.
  limiting provisions in the policy                994, 995 (10th Cir. 1991) the           Yeates, 533 F.3d 1202 (10th
  to which it is attached, such                    court recognized that Empire Fire       Cir. 2008). In Yeates, State
  as an excess coverage clause,                    did not address the situation           Farm provided motor vehicle
  but does not establish primary                   where both lessee’s and lessor’s        insurance coverage to Bingham
  liability over other policies that               insurance policies contain I.C.C.       Livestock Transportation, which
  are also primary by their own                    endorsements. Rather, the court         was the underlying defendant
  terms; and (3) the endorsement                   turned its attention to Carolina        in an accident involving a
  applies only to situations in                    Casualty v. Transport, supra, a         Bingham commercial vehicle.
  which a claim is being asserted                  case where the two policies at          State Farm tendered its policy
  by a shipper or a member of the                  issue both contained the ICC            limits to the Yeateses. 533 F.3d
  public and that the endorsement                  endorsement, and held that since        at 1203. Carolina Casualty
  does not apply when allocating                   the lessee’s policy was primary         also insured Bingham with
  liability among insurance carriers               by its own terms, the existence         a general liability insurance
  (majority view). Id. at 361.                     of the ICC endorsement in the           policy covering a variety of
  The Tenth Circuit adopted the                    lessor’s policy would not alter the     claims. That policy contained
  second of these approaches,                      very terms of the lessee’s policy.      an MCS-90 endorsement. After
  but added that “the ICC                          Railhead, 924 F.2d at 996. In so        State Farm settled with the
  endorsement negates any                          holding, the court noted that “[w]e     Yeateses, Carolina Casualty filed
                                                   do not reach the issue of whether       a declaratory judgment action
  8 The United States Supreme Court in Brada
  Miller held that neither federal statutes        an ICC endorsement contained            claiming that it was no longer
  nor regulations prohibited owner-lessor          in a lessor’s policy is effective       liable for any additional damages
  and carrier-lessee from allocating ultimate      when the truck is operating under       arising from the accident once
  liability through indemnification provisions
  in equipment leases so long as the lessee        a lessee’s ICC permit.” Id. The         State Farm settled the claim.
  does not absolve itself from the duties to the   court found no reason to reach          Id. The district court granted
  public and shippers imposed upon it by the
  regulations.
                                                   this issue as such a holding would      summary judgment to the
                                                                       28
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  Yeateses and relied on the                       no application among insurers           proposition.10 However, Integral
  holding in Empire Fire to find                   (approach 3 discussed in Empire         merely involved the application
  that the Carolina Casualty policy                Fire), and instead adopted the          of the MCS-90 endorsement
  provided primary coverage to the                 approach that the MCS-90                against an insured that was
  Yeateses and, as amended by                      endorsement does not establish          vicariously liable for the acts of
  the MCS-90 endorsement, may                      primary liability over other policies   a truck driver. After an accident
  be available beyond the State                    that are primary by their own           involving a leased truck, the
  Farm policy limits to satisfy                    terms. Id. at 1348-49; see also         injured plaintiffs settled with the
  any final judgment. 533 F.3d                     Kline, supra at 455. Rather,            tractor owner, trailer owner, I.C.C.
  1203, 1206. The Tenth Circuit                    both policies could be co-primary.      carrier and the carrier’s agent
  affirmed. 533 F.3d at 1203.                      After excluding the limiting terms      for $1.94 million. Id. at 259.
                                                   of the lessee’s policy, as was          The settlement agreement was
  On October 30, 2008, the                         done in Empire Fire, and since          signed with the understanding
  Tenth Circuit granted Carolina                   both insurers contained identical       that Integral (carrier’s insurer)
  Casualty’s petition for rehearing                apportionment schemes, the Sixth        would contribute an additional
  en banc. 2008 U.S.Lexis 25037.                   Circuit held that liability should be   $750,000, if a court should
  The parties were ordered to                      apportioned on a pro rata basis.        eventually hold that it was
  “specifically discuss the merits                 Id. at 1352.                            obligated to indemnify the
  of the position adopted by most                                                          trailer owner, to whom Integral’s
  other circuits, i.e., that an MCS-               Like the Tenth Circuit, the Sixth       policy contained an MCS-90
  90 endorsement simply creates                    Circuit Court of Appeals may be         endorsement. Id. Ultimately, the
  a surety obligation and does                     moving away from the view that          court affirmed the district court’s
  not otherwise alter the terms                    the existence of the MCS-90             holding that “when a judgment
  of an insurance policy to create                 endorsement makes the policy            is entered against the owner of
  or expand coverage.”9 With the                   primary as a matter of law. In          a motor vehicle insured under
  present briefing schedule for                    Kline v. Gulf Ins. Co., 466 F. 3d       a MCS-90 endorsement, the
  the rehearing, a ruling by the                   450 (6th Cir. 2006), the court          insurer is obligated to indemnify,
  Court could come as early as                     did not address the express             even when the judgment is
  late Spring or Summer 2009.                      issue pertaining to loss allocation     based on a theory of vicarious
  A reversal in this case would                    in light of the presence of the         liability.” Id. at 262.
  overrule Empire Fire.                            MCS-90 endorsement. Rather, it
                                                   held that merely having an MCS-         However, the Integral court does
  At least one other federal circuit               90 endorsement to an excess             not address the issue of priority
  has followed the Tenth Circuit’s                 policy, regardless of whether the       of coverage - a distinction at
  rationale in Empire Fire. In                     endorsement was inadvertently           least one other court has noted.
  Prestige Cas. Co. v. Michigan                    included with the policy when           See Clarendon Nat’l Ins. Co. v.
  Mut. Ins. Co., 99 F.3d 1340,                     issued, does not alter that             Ins. Co. of the West, No. CV-99-
  1346 (6th Cir. 1996), both the                   insurer’s obligation and does not       5461, 2000 U.S. Dist. LEXIS
  lessee’s and lessor’s insurance                  make the policy primary if the          13920, at *22. (E.D. Cal. 2000).
  policies contained identical                     primary carrier or self-insurer is      Thus, whether the Second Circuit
  limiting provisions, but only the                bankrupt. 466 F.3d at 455. The          follows the minority view cannot
  lessee’s policy contained the                    extent to which Kline will develop      be determined from Integral.
  MCS-90 endorsement. Id. at                       in the Sixth Circuit is yet to be
  1346, 1348. The Sixth Circuit,                   seen.
  applying Michigan law, noted that                Parties attempting to persuade
  the Michigan Court of Appeals                    courts that the minority view
  had recently rejected the view                   should be followed have also
  that the ICC endorsement has                     cited Integral Ins. Co. v. Lawrence     10 See, e.g., Prestige Cas. Co., 99 F.3d
                                                   Fulbright Trucking, Inc., 930           at 1348; Reliance Nat’l Ins. Co. v. Royal
                                                                                           Indem. Co., No. 99-Civ. 10920, 2001 U.S.
  9- The Trucking Industry Defense Association     F.2d 258 (2d Cir. 1991), for that       Dist LEXIS 12901 (S.D.N.Y. 2001); Fireman’s
  (TIDA) filed an amicus curiae brief in support                                           Fund Ins. Co. v. Empire Fire & Marine Ins.
  of Carolina Casualty’s position and in favor                                             Co., 152 F. Supp 2d 687, 691 (E.D. Pa.
  of over ruling Empire Fire.                                                              2001).
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  Conclusion                                                                         –––––––

                                                                                     Recent Cases Involving
  The majority of federal courts                                                     Electronic Discovery:
  agree that the mere presence of                                                    Sanctions, Sanctions And More
  an MCS-90 endorsement has no                                                       Sanctions
  effect on the allocation of loss
  between insurers. This view is                                                     This article seeks to address
  based largely on the public policy                                                 several recent issues related
  rationale that the purpose of                                                      to electronic discovery. Even
  the MCS-90 is only to protect                  Dennis B. Keene                     though the Federal Rules of
  the injured member of the                      HUNTER, MACLEAN,                    Civil Procedure and many
  public, not to apportion ultimate              EXLEY & DUNN, P.C.                  courts have tackled related
  financial risk amongst insurers                200 East Saint Julian Street        issues prior to recent changes
  and carriers. Such reasoning                   Savannah, GA 31401                  in the rules on discovery of
  should remain the trend so long                Tel: (912) 236-0261                 electronic documents, the task
  as the loss allocation does                    dkeene@huntermaclean.com            of responding to discovery
  not infringe on the financial                                                      requests involving electronic
                                                 www.huntermaclean.com
  protections afforded by federal                                                    data can be, at the least,
  regulation. The minority view,                                                     daunting. The cases and insight
  on the other hand, has received                                                    provided will hopefully outline
  limited acceptance, and is                                                         the responsibilities of attorneys
  currently being reconsidered                                                       and parties if avoid the pitfalls
  by the very court that primarily                                                   of discovery of electronic
  developed it. Should Empire                                                        information. It is clear from
  Fire be overturned in the Tenth                                                    these cases that companies and
  Circuit, motor carriers and their                                                  their litigation counsel must work
  insurers can avoid inconsistent                                                    together very closely to avoid
  financial consequences based                                                       problems in discovery.
  on potential forum shopping
  and the geographic location of
                                                                                     INTRODUCTION
  a given accident. Only time will
  tell whether a uniform solution to
                                                                                     The advanced era of electronic
  this issue will be achieved.
                                                                                     transcription and electronic
                                                                                     storage of business information
  Dennis Keene is a partner with
                                                                                     has vastly affected the discovery
  the Savannah, Georgia ALFA
                                                                                     process in present litigation.
  firm of Hunter, Maclean, Exley &
                                                                                     What once was merely a transfer
  Dunn, P.C. where he practices in
                                                                                     of paper documents, pictures,
  its business litigation department
                                                                                     and videos has transcended
  with an emphasis in products
                                                                                     to an era involving complex
  liability and transportation
                                                                                     battles over “metadata” and
  law. Dennis represents a
                                                                                     the ability to search and
  variety of trucking companies,
                                                                                     retrieve documents. The highly
  manufacturers and insurers, and
                                                                                     liberal discovery practice has
  has litigated a number of loss
                                                                                     been “sorely tested” with
  allocation issues.
                                                                                     the emergence and lasting
                                                                                     importance of electronic
                                                                                     discovery. W.E. Aubuchon Co.,
                                                                                     Inc. v. BeneFirst, LLC, 245 F.R.D.
                                                                                     38, 41 (D. Mass. 2007).


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  Discovery has always existed to                     sources if the requesting party   information required to be stored
  “secure the just, speedy, and                       shows good cause, considering     and how? Is the metadata
  inexpensive determination of                        the limitations of Rule 26(b)     required to be saved and if so,
  every action and proceeding.”                       (2)(C). The court may specify     in what format? Are deleted
  FED. R. CIV. P. 1 (2008). The                       conditions for the discovery.     files, “residual data,” required
  federal civil rules of discovery                                                      to be stored and produced upon
  provide the way for the “parties               Rule 26(b)(1) (emphasis                request even when neither “the
  to obtain the fullest possible                 added). Parties must disclose          computer user nor the computer
  knowledge of the issues and                    information in electronic form         itself is aware of its existence?”
  facts before trial.” Hickman                   that is “reasonably accessible”        Zubulake v. UBS Warburg LLC,
  v. Taylor, 329 U.S. 495, 500-                  unless the production will result in   217 F.R.D. 309, 313 n.19
  01 (1947). Discovery should                    undue burden or cost. The court        (S.D.N.Y. 2003). The questions
  include all non-privileged matters             determines whether discovery is        appear endless.
  that are “relevant to any party’s              “reasonably accessible.” W.E.
  claim or defense.” FED. R. CIV.                Aubuchon Co., Inc., 245 F.R.D. at      There are many additional
  P. 26(b)(1) (2008). Documents                  42.                                    considerations for attorneys
  must also be produced that                                                            regarding electronic documents.
  are in the party’s “possession,                This demonstrates the uniqueness       Attorneys have to consider not
  custody, or control.” FED. R. CIV.             of electronic discovery as well        only what the client is providing
  P. 34(a)(1) (2008). This has not               as the many challenges it brings       to them for discovery, but they
  changed in the electronic age.                 to discovery. Parties must             also have to take into account
  However, with the continued                    determine what is included in          how the client electronically
  development of electronically                  electronic discovery, what form        searched for that information. If
  stored information, the courts                 is required for the information,       the search was unreasonable,
  and civil rules have struggled                 and the division of the costs of       the attorney could be held
  to keep up with the resulting                  searching and producing electronic     responsible for not disclosing
  challenges.                                    information. These issues are          information that was not found
                                                 not occasional considerations          by the client but could have been
  On December 1, 2006, an                        because the use of electronic          found if a proper search had
  amendment was added to                         information has skyrocketed by         been conducted. Essentially,
  the Federal Rules regarding                    all businesses including motor         the attorney is responsible for
  limitations on the duty to                     carriers.                              satisfying the discovery rules
  disclose electronic discovery.                                                        regarding both the search
  This amendment states:                         The vast number of emails and          and the produced documents.
    Specific Limitations on                      electronically stored documents        Attorneys are now responsible
    Electronically Stored                        affects responses to discovery         for understanding a company’s
    Information. A party need                    of many parties and attorneys. If      computer system so we can
    not provide discovery                        these significant challenges are       assess whether an adequate
    of electronically stored                     overlooked in the discovery of         search has been performed
    information from sources that                these documents it may lead to         by the client. This will cause
    the party identifies as not                  sanctions and fines for violation of   additional inconvenience and
    reasonably accessible because                the discovery rules. For example       expense for clients.
    of undue burden or cost. On                  how can one company field the
    motion to compel discovery or                cost and manpower to search            Attorneys and clients must work
    for a protective order, the party            potentially millions of emails and     together to “ensure that both
    from whom discovery is sought                documents stored on a backup           understand how and where
    must show that the information               system? This is especially difficult   electronic documents, records
    is not reasonably accessible                 when the information is in a non-      and emails are maintained and
    because of undue burden or                   searchable format, such as PDF.        to determine how best to locate,
    cost. If that showing is made,               That, of course, begets the many       review, and produce responsive
    the court may nonetheless                    questions concerning backup            documents.” Qualcomm Inc.
    order discovery from such                    information. How long is the           v. Broadcom Corp., 2008 WL
                                                                      31
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  66932, No. 05cv1958-B, slip op.                during discovery. In other words,    The court ultimately determined
  at *9 (S.D. Cal. Jan. 7, 2008).                Qualcomm did not conduct             that the choices of the attorneys
  Both attorneys and clients                     appropriate searches for relevant    led to the violation of the rules
  also should be aware of issues                 electronic documents, and (worse)    of discovery. Essentially, the
  regarding the cost of recovering               once discovered, Qualcomm did        attorneys
  and searching the electronic                   not produce the information.          chose not to look in the correct
  information and potential                                                            locations for the correct
  spoliation.                                    While Qualcomm claimed that           documents, to accept the
                                                 it “inadvertently failed to find      unsubstantiated assurances
  COURT SANCTIONS IN                             and produce” the requested            of an important client that
  QUALCOMM INC.                                  documents in response to written      its search was sufficient, to
                                                 discovery, the court held this        ignore the warning signs that
  A landmark case involving                      was not the case. Id. at *10.         the document search and
  Qualcomm addressed the                         The court noted that searches         production were inadequate,
  staggering effect of electronic                of electronic information were        not to press Qualcomm
  discovery on both parties and                  insufficient and that more refined    employees for the truth, and/
  attorneys. In Qualcomm Inc.                    searches could have effectively       or to encourage employees to
  v. Broadcom Corp., the federal                 identified the documents.             provide the information (or lack
  district court ordered Qualcomm                The attorneys should have             of information) that Qualcomm
  to pay $8,568,633.24 in                        reviewed the records regarding        needed to assert its non-
  attorneys’ fees and costs                      the searches performed by             participation argument and to
  to Broadcom after the court                    Qualcomm. Specifically, the           succeed in this lawsuit.
  determined that discovery of                   attorneys should have reviewed
  electronic information had                     the locations searched and the       Id. at *13. While the court’s
  been intentionally withheld. Id.               terms utilized to verify that the    ruling brings about great
  The attorneys involved in the                  searches would find the requested    apprehension regarding
  litigation were also sanctioned.               information.                         electronic discovery and the
                                                                                      potential difficulties, this
  This case focused on the                       Further, the court noted that        provides great guidance to
  production of electronic                       Qualcomm had the “ability            parties and attorneys. The
  documents in response                          to identify its employees and        attorneys must be aware of
  to written discovery and                       consultants who were involved…,      “red flags” which indicate the
  the bounds of “reasonable                      to access and review their           existence of documents and
  inquiry” required by attorneys                 computers, databases and             then question the client about
  for discovery of relevant                      emails” to comply with the           those documents. Id. at *16.
  information. Id. Broadcom                      request. Id. at *11. Effectively,
  requested information regarding                the Court determined information     Several courts have also
  “any and all communications”                   was reasonably accessible            addressed electronic discovery
  related to the complaint in                    and, therefore, was properly         and its many pitfalls and provide
  written discovery. Id. at *2.                  discoverable. Qualcomm’s             the following insight. The
  Qualcomm did not search                        response to the written discovery    duty to preserve documents
  the computers of any named                     stating that it would produce all    “encompasses electronic
  corporate representatives.                     the relevant documents further       communications and documents,
  During trial, a search revealed                complicated the issue because        such as emails, or documents
  several electronic documents.                  Broadcom relied upon the             created by computer.” Orrell
  Qualcomm, however, decided not                 statement and did not seek to        v. Motorcarparts of Am., Inc.,
  to produce the newly discovered                have the information compelled.      2007 WL 4287750 (W.D.N.C.
  information. After trial, further              Additionally, the attorneys          Dec. 5, 2007). This duty
  searches retrieved hundreds                    concealed several documents          does not change even if the
  of thousands of pages of                       when the documents surfaced          computer system “crashed.”
  relevant electronic documents                  during trial.                        Id. at *7. However, the written
  that had not been produced
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  discovery requesting electronic                and address many issues prior to      The court then addressed
  discovery can extend too far.                  litigation and discovery.             the shifting of costs to the
  The “wholesale production of                                                         requesting party. Typically, costs
  e-mails” will not be justified                 In the majority of the Zubulake       for answering discovery falls on
  without information regarding                  decisions, the court concentrated     the responding party. When
  the relevancy of the emails to                 on the production of electronic       the discovery seeks information
  the allegations. Williams v.                   data in response to the plaintiff’s   of electronic information that
  Hernandez, 221 F.R.D. 414, 416                 request for “all documents            “imposes an ‘undue burden
  (S.D.N.Y. 2004).                               concerning any communication          or expense’ on the responding
                                                 by or between [the defendant’s]       party,” however, the cost can
  These are but a few of the                     employees concerning Plaintiff.”      be shifted to the requesting
  many cases tackling electronic                 Zubulake v. UBS Warburg, LLC,         party. Id. at 318. Several steps
  discovery sanctions. The                       217 F.R.D. 309, 312 (S.D.N.Y.         analyzing the data must be
  requirements can seem                          2003). The parties had                taken when considering costs.
  immense and overwhelming                       agreed to produce retrieved
  given the astonishing sanctions                documents if possible using the       First, the computer system data
  handed down by the courts and                  defendant’s computer system.          must be identified as either
  rulings continuing and expanding               The defendant had a backup            accessible or inaccessible. If
  the historically liberal discovery             system that essentially took          the data is “active online data,”
  to encompass electronic                        a “snapshot” of all emails to         “near-line data,” or “offline
  documents.                                     and from all employees. Id. at        storage/archives,” the data is
                                                 314. The snapshot occurred            accessible. Id. at 318-319.
  THE ZUBULAKE GUIDELINES                        at pre-determined times and           This includes data stored on
                                                 dates and the information was         hard drives, optical disks, or
  Electronic discovery and its                   maintained for a specified number     removable optical disks. Id. If
  parameters, however, have been                 of days on tapes. The tapes           the data is on backup tapes
  guided by the series of New                    were then recycled to record new      or is “erased, fragmented, or
  York cases involving Zubulakev.                data. Retrieving data from the        damaged data,” the data is
  UBS Warburg, LLC.1 In these                    backup system was costly and          inaccessible and not readily
  seven cases, the federal court                 time-consuming. The defendant         usable. Id. Only the data that
  addressed many issues and                      had never searched the backup         is “inaccessible-but otherwise
  outlined many recommendations                  system.                               discoverable- data” can
  for parties embarking on                                                             overcome the presumption that
  electronic discovery. Specifically,                                                  the responding party must pay
  the court addressed what                       Set against this factual backdrop,    the related costs. Zubulake v.
  information is “reasonably                     the court first held that all         UBS Warburg, LLC, 216 F.R.D.
  accessible” to be encompassed                  relevant electronic data, deleted     280, 291 (S.D.N.Y. 2003).
  by Rule 26 and the responding                  or otherwise, was discoverable
  party’s duty in relation to                    pursuant to Rule 26. Once it          Second, the court can require
  discovery that could involve an                determined that the information       that the responding party
  “undue burden and cost.” From                  was discoverable, the court           produce a small amount of
  these cases, attorneys can learn               focused on the invariable question    electronic data to determine
  the requirements in this new age               of the resulting burden and cost      the costs associated with the
                                                 on the responding party. After        discovery. Then, the court
  1 Zubulake v. UBS Warburg, LLC, 217 F.R.D.
  309 (S.D.N.Y. 2003); Zubulake v. UBS
                                                 all, electronic discovery does not    applies the following seven
  Warburg, LLC, 230 F.R.D. 290 (S.D.N.Y.         merely require general document       factor test to determine whether
  2003); Zubulake v. UBS Warburg, LLC, 216       review as does traditional            the cost should be shifted,
  F.R.D. 280 (S.D.N.Y. 2003); Zubulake v.
  UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y.     discovery. Rather, there are          in whole or in part, to the
  2003); Zubulake v. UBS Warburg, LLC, 229       significant costs in recreating       requesting party:
  F.R.D. 422 (S.D.N.Y. 2004); Zubulake v.        stored data and searching that
  UBS Warburg, LLC, 231 F.R.D. 159 (S.D.N.Y.
  2005); Zubulake v. UBS Warburg, LLC, 382       data.
  F.Supp.2d 536 (S.D.N.Y. 2005).

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  1. The extent to which the                     LLC, 220 F.R.D. 212 (S.D.N.Y.            of discoverable information.
     request is specifically                     2003). The court found that              This will usually entail speaking
     tailored to discover relevant               allegations spoliation of evidence       directly with the key players in
     information;                                will be relevant to discovery of         the litigation, as well as the
  2. The availability of such                    electronic discovery because             client’s information technology
     information from other                      there is a corresponding duty to         personnel. In addition, when
     sources;                                    preserve the evidence. Id. In            the duty to preserve attaches,
                                                 so holding, the court outlined           counsel must put in place
  3. The total cost of production,               the responsibilities of attorneys        a litigation hold and make
     compared to the amount in                   in the process of complying with         that known to all relevant
     controversy;                                the discovery rule so as to avoid        employees by communicating
  4. The total cost of production,               a finding of spoliation. Attorneys       with them directly. The
     compared to the resources                   do not need to “supervise every          litigation hold instructions
     available to each party;                    step of the document production          must be reiterated regularly
  5. The relative ability of each                process and may rely on their            and compliance must be
     party to control costs and its              clients in some respects.” Id. at        monitored. Counsel must also
     incentive to do so;                         435. However, the attorneys have         call for employees to produce
                                                 a duty to monitor compliance with        copies of relevant electronic
  6. The importance of the issues                the rule with much more specificity      evidence, and must arrange
     at stake in the litigation; and             than may typically arise in the          for the segregation and
  7. The relative benefits to the                course of traditional discovery.         safeguarding of any archival
     parties of obtaining the                    Explicitly, the attorneys have a         media ( e.g., backup tapes)
     information.                                duty to “take reasonable steps” to       that the party has a duty to
                                                 “locate relevant information.” Id.       preserve.
  Zubulake, 217 F.R.D. at 323.                   at 432.
  The factors are to be considered                                                       Id. at 439.
  in declining importance and                    The attorneys, furthermore,
  should serve as a “guide” not a                have a continuing duty to ensure        Given the specific nature of
  “matter of counting and adding.”               preservation of electronic              these opinions, attorneys
  Zubulake, 216 F.R.D. at 289.                   information. Id. First, the             have a guideline outlining their
  As a general rule, “where cost-                attorney must initiate a “litigation    responsibilities. If the attorney
  shifting is appropriate, only                  hold” relating to all potentially       does not follow these steps,
  the costs of restoration and                   discoverable information. Then,         sanctions could be given as
  searching should be shifted.” Id.              the attorney must “communicate          seen in Qualcomm. It is clear
  at 290. Once the information                   directly with ‘key players’ in          that discovery of electronic
  is “restored to an accessible                  the litigation” to discuss the          information is much more time-
  form, the usual rules of discovery             preservation duty to each person        intensive and involved than with
  apply.” Id. at 291. Thus,                      individually. Id. at 434. Then, the     traditional discovery.
  because the responding party                   attorney should request that the
  is typically responsible for                   employees produce an electronic         Practice Pointers
  bearing the costs of “receiving                copy of their own files. Id. The
  and producing data,” once                      court summarized these steps by         In addition to using the
  the information is accessible,                 stating:                                guidelines established in
  the responding party will be                        In sum, counsel has a duty to      Zubulake, the following represent
  responsible for the remaining                       effectively communicate to her     some considerations for
  costs. Id. at 290.                                  client its discovery obligations   overcoming electronic discovery
                                                      so that all relevant information   issues before the obstacles
  The court next addressed the                        is discovered, retained, and       arise in litigation.
  failure to preserve missing                         produced. In particular, once
  deleted electronic data.                            the duty to preserve attaches,
  Zubulake v. UBS Warburg,                            counsel must identify sources

                                                                      34
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  •	Organize document                            have set forth guidelines to
    management systems.                          protect both attorneys and clients.
    JESSICA LYNN REPA,                           Unfortunately, not heeding the
    ADJUDICATING BEYOND                          advice provided specifically in
    THE SCOPE OF ORDINARY                        Zubulake and by example in
    BUSINESS: WHY THE                            Qualcomm will lead to disastrous
    INACCESSIBILITY TEST IN                      results. Fortunately, the courts
    ZUBULAKE UNDULY STIFLES                      seem to accept the inherent
    COST-SHIFTING DURING                         difficulties in electronic discovery
    ELECTRONIC DISCOVERY,                        and seek to promote broad
    54 AM. U. L. REV. 257, 298                   discovery within the limitations of
    (October 2004). Prepare a                    electronic information.
    system that allows fast and
    accurate research capabilities.
    Id. Understand the electronic
    system, both its strengths
    and weaknesses. HOWARD
    L. SPEIGHT & LISA C. KELLY,
    ELECTRONIC DISCOVERY: NOT
    YOUR FATHER’S DISCOVERY,
    37 ST. MARY’S L.J. 119, 168
    (2005).
                                                 Will H. Fulton
  •	Organize reasonable document
    retention policies. Repa, 54
    AM. U.L. REV. at 299. This
    should include more than
    merely email. Speight, 37 ST.
    MARY’S L.J. at 168.

  •	Get	involved	with	in-house	
    computer tech support
    personnel early to establish                 Laura E. Berger
    a good working relationship                  WOODWARD, HOBSON
    and better understanding of                  & FULTON, LLP
    the electronic systems of the                2500 National City Tower
    company. Id.                                 101 South Fifth Street
                                                 Louisville, KY 40202-3175
  •	Do	not	merely	issue	one	                     Tel: (502) 581-8000
    “litigation hold.” “Periodically             Fax: (502) 581-8111
    reissue” the hold to ensure                  wfulton@whf-law.com
    compliance with the discovery                lberger@whf-law.com
    rules. Id.                                   www.whf-law.com

  CONCLUSION

  Discovery has changed, and
  with electronic discovery comes
  multiple challenges. The area
  is still “grey,” with many issues
  unresolved. However, decisions
  regarding electronic discovery
                                                                     35
ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                              [ Return to Contents ]



 TRANSPORTATION PRACTICE GROUP                                           ARKANSAS
 DIRECTORY OF MEMBER FIRMS
                                                                         WRIGHT, LINDSEY & JENNINGS LLP
                                                                         Little Rock, Arkansas
                                                                         Tel: (501) 371-0808
  DOMESTIC
                                                                                           Michael D. Barnes
  ALABAMA                                                                                  mbarnes@wlj.com

 BRADLEY ARANT ROSE & WHITE LLP
 Montgomery, Alabama
 Tel: (334) 956-7700

                          William C. McGowin
                          wmcgowin@bradleyarant.com                                        Greg T. Jones
                                                                                           gjones@wlj.com




  ARIZONA
                                                                                           Jerry J. Sallings
                                                                                           jsallings@wlj.com
 RENAUD COOK DRURY MESAROS, PA
 Phoenix, Arizona
 Tel: (602) 307-9900

                          Tamara N. Cook
                          tcook@rcdmlaw.com


                          William W. Drury, Jr.                          CALIFORNIA
                          wdrury@rcdmlaw.com
                                                                         HAIGHT, BROWN & BONESTEEL, L.L.P.
                                                                         Los Angeles, California
                                                                         Tel: (310) 215-7100

                                                                                           Peter A. Dubrawski
                                                                                           pdubrawski@hbblaw.com




                                                                         (continued on next page)




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  CALIFORNIA (CONT.)                                                     COLORADO

  HAIGHT, BROWN & BONESTEEL, L.L.P. (continued)                          HALL & EVANS, L.L.C.
                                                                         Denver, Colorado
                          William O. Martin, Jr.                         Tel: (303) 628-3300
                          wmartin@hbblaw.com
                                                                                           Bruce A. Menk
                                                                                           menkb@hallevans.com




                          Krsto Mijanovic
                          kmijanovic@hbblaw.com
                                                                                           Lance G. Eberhart
                                                                                           eberhartl@hallevans.com




                          Christian Stouder
                          cstouder@hbblaw.com
                                                                                           Peter F. Jones
                                                                                           jonesp@hallevans.com




 HIGGS, FLETCHER & MACK, L.L.P.
 San Diego, California
 Tel: (619) 236-1551                                                     CONNECTICUT

                          Peter S. Doody                                 HALLORAN & SAGE LLP
                          doody@higgslaw.com                             Hartford, Connecticut
                                                                         Tel: (860) 522-6103

                                                                                           Steven H. Malitz
                                                                                           malitz@halloran-sage.com




                                                                         (continued on next page)




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ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                            [ Return to Contents ]



  CONNECTICUT (CONT.)                                                    FLORIDA (CONT.)

  HALLORAN & SAGE LLP (continued)                                        FOWLER WHITE BURNETT P A (continued)

                          Melissa Rotenberg Arcaro                                        J. Michael Pennekamp
                          Arcaro@halloran-sage.com                                        jpennekamp@fowler-white.com




 HALLORAN & SAGE LLP                                                     FOWLER WHITE BURNETT P A
 Westport, Connecticut                                                   Miami, Florida
 Tel: (203) 227-2855                                                     Tel: (305) 789-9200

                          Thomas P. O’Dea, Jr.                                            Christopher E. Knight
                          odea@halloran-sage.com                                          cknight@fowler-white.com

                                                                                          Edward J. Briscoe
                                                                                          ebriscoe@fowler-white.com

                                                                                          J. Michael Pennekamp
                                                                                          jpennekamp@fowler-white.com

  FLORIDA
                                                                         DICKINSON & GIBBONS, P.A.
 FOWLER WHITE BURNETT P A                                                Tampa/Sarasota/Ft. Myers/
 Fort Lauderdale, Florida                                                St. Petersburg/Naples, Florida
 Tel: (954) 377-8100                                                     Tel: (941) 366-4680

                          Christopher E. Knight                                           A. James Rolfes
                          cknight@fowler-white.com                                        ajrolfes@dglawyers.com




                          Edward J. Briscoe
                          ebriscoe@fowler-white.com                      FOWLER WHITE BURNETT P A
                                                                         West Palm Beach, Florida
                                                                         Tel: (561) 802-9044

                                                                                          Christopher E. Knight
                                                                                          cknight@fowler-white.com

  (continued in next column)



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ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                          [ Return to Contents ]



  GEORGIA                                                                IDAHO

 HAWKINS & PARNELL, LLP                                                  GREENER BURKE SHOEMAKER PA
 Atlanta, Georgia                                                        Boise, Idaho
 Tel: (404) 614-7400                                                     Tel: (208) 319-2600

                          Warner S. Fox                                                  Richard H. Greener
                          wfox@hplegal.com                                               rgreener@greenerlaw.com




                          Alan F. Herman                                                 Fredric V. Shoemaker
                          aherman@hplegal.com                                            fshoemaker@greenerlaw.com




                          William H. Major
                          wmajor@hplegal.com                             PAINE HAMBLEN LLP
                                                                         Coeur d’Alene, Idaho
                                                                         Tel: (208) 664-8115

                                                                                         Scott C. Cifrese
                                                                                         scott.cifrese@painehamblen.com


 HUNTER, MACLEAN, EXLEY & DUNN, P.C.
 Savannah, Georgia
 Tel: (912) 236-0261

                          Dennis B. Keene                                                Ausey H. Robnett
                          dkeene@huntermaclean.com                                       ausey.robnett@painehamblen.com




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  ILLINOIS                                                               INDIANA

 BROWN & JAMES, P.C.                                                     BECKMAN, KELLY & SMITH
 Belleville, Illinois                                                    Hammond, Indiana
 Tel: (618) 235-5590                                                     Tel: (219) 933-6200

                          Beth Kamp Veath                                                  Eric L. Kirschner
                          bveath@bjpc.com                                                  ekirschner@bkslegal.com




                          Kenneth M. Burke                                                 Julie R. Murzyn
                          kburke@bjpc.com                                                  jmurzyn@bkslegal.com




                          Sandra Cook
                          scook@bjpc.com                                 BOSE MCKINNEY & EVANS LLP
                                                                         Indianapolis, Indiana
                                                                         Tel: (317) 684-5000

                                                                                           Robert B. Clemens
                                                                                           rclemens@boselaw.com


 JOHNSON & BELL, LTD.
 Chicago, Illinois
 Tel: (312) 372-0770

                          Robert M. Burke                                                  Steven D. Groth
                          burker@jbltd.com                                                 sgroth@boselaw.com




                          Gregory D. Conforti                            (continued on next page)
                          confortig@jbltd.com




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ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                         [ Return to Contents ]



  INDIANA                                                                KANSAS

  BOSE MCKINNEY & EVANS LLP (continued)                                  BAKER STERCHI COWDEN & RICE L.L.C.
                                                                         Overland Park, Kansas
                          Bernie Too Keller                              Tel: (913) 451-6752
                          bkeller@boselaw.com
                                                                                        Hal D. Meltzer
                                                                                        meltzer@bscr-law.com




                          Alan S. Townsend
                          atownsend@boselaw.com
                                                                                        James R. Jarrow
                                                                                        jarrow@bscr-law.com




  IOWA
                                                                                        Shawn M. Rogers
 WHITFIELD & EDDY P.L.C.                                                                rogers@bscr-law.com
 Des Moines, Iowa
 Tel: (515) 288-6041

                          Bernard L. Spaeth, Jr.
                          spaeth@whitfieldlaw.com


                                                                         HINKLE ELKOURI LAW FIRM L.L.C.
                                                                         Wichita, Kansas
                                                                         Tel: (316) 267-2000

                                                                                        J. Philip Davidson
                                                                                        pdavidson@hinklaw.com




                                                                                        Jay Skolaut
                                                                                        jskolaut@hinklaw.com




                                                                    41
ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                        [ Return to Contents ]



  KENTUCKY                                                               LOUISIANA

 HARLIN PARKER                                                           LEAKE & ANDERSSON, L.L.P.
 Bowling Green, Kentucky                                                 New Orleans, Louisiana
 Tel: (270) 842-5611                                                     Tel: (504) 585-7500

                          Marc A. Lovell                                                Louis P. Bonnaffons
                          lovell@harlinparker.com                                       lbonnaffons@leakeandersson.com




                                                                                        Craig M. Cousins
 WOODWARD, HOBSON & FULTON, L.L.P.                                                      ccousins@leakeandersson.com
 Louisville, Kentucky
 Tel: (502) 581-8000

                          Will H. Fulton
                          wfulton@whf-law.com

                                                                                        Stanton E. Shuler, Jr.
                                                                                        sshuler@leakeandersson.com



                          James T. Lewis
                          jlewis@whf-law.com


                                                                         MARYLAND

                                                                         SEMMES, BOWEN & SEMMES
                                                                         Baltimore, Maryland
                                                                         Tel: (410) 539-5040

                                                                                        Thomas V. McCarron
                                                                                        tmccarron@semmes.com




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ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                            [ Return to Contents ]



  MASSACHUSETTS                                                          MASSACHUSETTS (CONT.)

 MORRISON MAHONEY LLP                                                    MORRISON MAHONEY LLP (continued)
 Boston, Massachusetts                                                   Springfield, Massachusetts
 Tel: (617) 439-7500                                                     Tel: (413) 737-4373

                          Lee Stephen MacPhee                                            Lee Stephen MacPhee
                          lmacphee@morrisonmahoney.com                                   lmacphee@morrisonmahoney.com

                                                                                         Sean F. McDonough
                                                                                         smcdonough@morrisonmahoney.com

                                                                                         Gareth Notis
                                                                                         gnotis@morrisonmahoney.com
                          Sean F. McDonough
                          smcdonough@morrisonmahoney.com
                                                                         MORRISON MAHONEY LLP
                                                                         Worcester, Massachusetts
                                                                         Tel: (508) 757-7777

                                                                                         Lee Stephen MacPhee
                                                                                         lmacphee@morrisonmahoney.com
                          Gareth Notis
                          gnotis@morrisonmahoney.com                                     Sean F. McDonough
                                                                                         smcdonough@morrisonmahoney.com

                                                                                         Gareth Notis
                                                                                         gnotis@morrisonmahoney.com


                                                                         MICHIGAN
 MORRISON MAHONEY LLP
 Fall River, Massachusetts                                               PLUNKETT COONEY
 Tel: 508-677-3100                                                       Detroit, Michigan
                                                                         Tel: (313) 965-3900
                          Lee Stephen MacPhee
                          lmacphee@morrisonmahoney.com                                   James R. Lilly
                                                                                         jlilly@plunkettcooney.com
                          Sean F. McDonough
                          smcdonough@morrisonmahoney.com

                          Gareth Notis
                          gnotis@morrisonmahoney.com

  (continued in next column)                                                             Michael K. Sheehy
                                                                                         msheehy@plunkettcooney.com




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  MICHIGAN (CONT.)                                                       MISSOURI

 PLUNKETT COONEY                                                         BAKER STERCHI COWDEN & RICE L.L.C.
 Grand Rapids, Michigan                                                  Kansas City, Missouri
 Tel: (616) 752-4600                                                     Tel: (816) 471-2121

                          Timothy Sheridan                                                 James R. Jarrow
                          tsheridan@plunkettcooney.com                                     jarrow@bscr-law.com




                                                                                           Hal D. Meltzer
  MINNESOTA                                                                                meltzer@bscr-law.com

 HALLELAND LEWIS NILAN & JOHNSON
 Minneapolis, Minnesota
 Tel: (612) 338-1838

                          Sheila Kerwin
                          skerwin@halleland.com                                            Shawn M. Rogers
                                                                                           rogers@bscr-law.com




  MISSISSIPPI
                                                                         BROWN & JAMES, P.C.
 DANIEL COKER HORTON & BELL, P.A.                                        St. Louis, Missouri
 Jackson, Mississippi                                                    Tel: (314) 421-3400
 Tel: (601) 969-7607
                                                                                           Joseph R. Swift
                          B. Stevens Hazard                                                jswift@bjpc.com
                          shazard@danielcoker.com

                          J. Wyatt Hazard
                          whazard@danielcoker.com


                                                                         (continued on next page)




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ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                          [ Return to Contents ]



  MISSOURI (CONT.)                                                       MONTANA (CONT.)

  BROWN & JAMES, P.C. (continued)                                        AXILON LAW GROUP, PLLC
                                                                         Missoula, Montana
                          Jeffrey L. Cramer                              Tel: (406) 532-2630
                          jcramer@bjpc.com
                                                                                        Dean A. Hoistad
                                                                                        dhoistad@axilonlaw.com




                          Kurt A. Schmid
                          kschmid@bjpc.com

                                                                         NEBRASKA

                                                                         BAYLOR, EVNEN, CURTISS, GRIMIT & WITT, LLP
                                                                         Lincoln, Nebraska
                                                                         Tel: (402) 475-1075

  MONTANA                                                                               Walter E. Zink II
                                                                                        wzink@baylorevnen.com
 AXILON LAW GROUP, PLLC
 Big Sky, Montana
 Tel: (406) 995-4776

                          Gary D. Hermann
                          ghermann@axilonlaw.com

                                                                         NEVADA

                                                                         ALVERSON, TAYLOR, MORTENSEN & SANDERS
                                                                         Las Vegas, Nevada
                                                                         Tel: (702) 384-7000
 AXILON LAW GROUP, PLLC
 Billings, Montana                                                                      Jack C. Cherry
 Tel: (406) 532-2630                                                                    jcherry@alversontaylor.com

                          Gary D. Hermann
                          ghermann@axilonlaw.com




                                                                                        Jonathan B. Owens
                                                                                        jowens@alversontaylor.com




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ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                       [ Return to Contents ]



  NEVADA (CONT.)                                                         NEW MEXICO

 PERRY & SPANN, P.C.                                                     BUTT THORNTON & BAEHR PC
 Reno, Nevada                                                            Albuquerque, New Mexico
 Tel: (775) 829-2002                                                     Tel: (505) 884-0777

                          Victor A. Perry                                             Paul T. Yarbrough
                          vperry@perryspann.com                                       ptyarbrough@btblaw.com

                          Charles W. Spann
                          cspann@perryspann.com



                                                                                      Martin Diamond
                                                                                      madiamond@btblaw.com


  NEW HAMPSHIRE

 WADLEIGH, STARR & PETERS, P.L.L.C.
 Manchester, New Hampshire
 Tel: (603) 669-4140                                                                  S. Carolyn Ramos
                                                                                      scramos@btblaw.com
                          Marc R. Scheer
                          mscheer@wadleighlaw.com




  NEW JERSEY

 GERMAN, GALLAGHER & MURTAGH
 Moorestown, New Jersey
 Tel: (215) 545-7700

                          Gary R. Gremminger
                          gremmingerg@ggmfirm.com




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ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                        [ Return to Contents ]



  NEW YORK                                                               NEW YORK (CONT.)

 CARTER, CONBOY, CASE, BLACKMORE,                                        LESTER SCHWAB KATZ & DWYER, LLP
 MALONEY & LAIRD, P.C.                                                   New York, New York
 Albany, New York                                                        Tel: (212) 964-6611
 Tel: (518) 465-3484
                                                                                       Felice Cotignola
                          Edward D. Laird                                              fcotignola@lskdnylaw.com
                          elaird@carterconboy.com




                                                                                       Robert N. Dunn
                          John T. Maloney                                              rdunn@lskdnylaw.com
                          jmaloney@carterconboy.com
                                                                                       Melvin Katz
                                                                                       mkatz@lskdnylaw.com


                                                                         NORTH CAROLINA

                                                                         YOUNG MOORE AND HENDERSON P.A.
 DAMON & MOREY LLP                                                       Raleigh, North Carolina
 Buffalo, New York                                                       Tel: (919) 782-6860
 Tel: (716) 856-5500
                                                                                       David M. Duke
                          Thomas J. Drury                                              dmd@youngmoorelaw.com
                          tdrury@damonmorey.com




                                                                                       Shannon S. Frankel
                          Joseph Dunbar                                                ssf@youngmoorelaw.com
                          jdunbar@damonmorey.com




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ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                              [ Return to Contents ]



  NORTH DAKOTA                                                           OHIO (CONT.)

 VOGEL LAW FIRM                                                          CRABBE, BROWN & JAMES LLP
 Fargo, North Dakota                                                     Columbus, Ohio
 Tel: (701) 237-6983                                                     Tel: (614) 228-5511

                          M. Daniel Vogel                                                  Robert C. Buchbinder
                          dvogel@vogellaw.com                                              rbuchbinder@cbjlawyers.com




                          Robert B. Stock                                                  Vincent J. Lodico
                          rstock@vogellaw.com                                              vlodico@cbjlawyers.com




  OHIO                                                                   OKLAHOMA

 FRANTZ WARD LLP                                                         FELDMAN FRANDEN WOODARD & FARRIS
 Cleveland, Ohio                                                         Tulsa, Oklahoma
 Tel: (216) 515-1660                                                     Tel: (918) 583-7129

                          T. Merritt Bumpass, Jr.                                          Joseph R. Farris
                          mbumpass@frantzward.com                                          jfarris@tulsalawyer.com




                                                                                           Thayla P. Bohn
                                                                                           tpbohn@tulsalawyer.com




                                                                         (continued on next page)




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ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                         [ Return to Contents ]



  OKLAHOMA                                                               PENNSYLVANIA

  FELDMAN FRANDEN WOODARD & FARRIS                                       MCNEES WALLACE & NURICK LLC
  (continued)                                                            Harrisburg, Pennsylvania
                                                                         Tel: (717) 780-7850
                          F. Jason Goodnight
                          jgoodnight@tulsalawyer.com                                  Curtis N. Stambaugh
                                                                                      cstambaugh@mwn.com




                          John R. Woodard III
                          jwoodard@tulsalawyer.com                                    Michael R. Kelley
                                                                                      mkelley@mwn.com




  OREGON                                                                              Kandice J. Giurintano
                                                                                      kgiurintano@mwn.com
 COSGRAVE VERGEER KESTER LLP
 Portland, Oregon
 Tel: (503) 323-9000

                          Walter H. Sweek
                          wsweek@cvk-law.com

                                                                         GERMAN, GALLAGHER & MURTAGH
                                                                         Philadelphia, Pennsylvania
                                                                         Tel: (215) 545-7700

                                                                                      Robert P. Corbin
                          Derek J. Ashton                                             corbinr@ggmfirm.com
                          dashton@cvk-law.com




                                                                                      Gary R. Gremminger
                          Robert E. Barton                                            gremmingerg@ggmfirm.com
                          rbarton@cvk-law.com




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  PENNSYLVANIA (CONT.)                                                   SOUTH CAROLINA (CONT.)

 MEYER, DARRAGH, BUCKLER,                                                NELSON MULLINS RILEY & SCARBOROUGH LLP
 BEBENEK & ECK, P.L.L.C.                                                 Columbia, South Carolina
 Pittsburgh, Pennsylvania                                                Tel: (803) 799-2000
 Tel: (412) 261-6600
                                                                                           Christopher J. Daniels
                          Paul R. Robinson                                                 chris.daniels@nelsonmullins.com
                          probinson@mdbbe.com




                                                                         NELSON MULLINS RILEY & SCARBOROUGH LLP
                                                                         Greenville, South Carolina
  RHODE ISLAND                                                           Tel: (864) 250-2300

 HIGGINS, CAVANAGH & COONEY LLP                                                            William S. Brown
 Providence, Rhode Island                                                                  william.brown@nelsonmullins.com
 Tel: (401) 272-3500

                          Stephen B. Lang
                          slang@hcc-law.com




                                                                         TENNESSEE

                                                                         LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC
                          James A. Ruggieri                              Chattanooga, Tennessee
                          jruggieri@hcc-law.com                          Tel: (423) 265-0214

                                                                                           Alan B. Easterly
  SOUTH CAROLINA                                                                           alan.easterly@leitnerfirm.com

 YOUNG CLEMENT RIVERS LLP
 Charleston, South Carolina
 Tel: (843) 577-4000

                          Duke R. Highfield
                          dhighfield@ycrlaw.com                                            Marc H. Harwell
                                                                                           marc.harwell@leitnerfirm.com




                                                                         (continued on next page)

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ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                             [ Return to Contents ]



 TENNESSEE (CONT.)                                                       TENNESSEE (CONT.)

  LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC                            LEWIS, KING, KRIEG & WALDROP, P.C.
  (continued)                                                            Knoxville, Tennessee
                                                                         Tel: (865) 546-4646
                          Steven W. Keyt
                          steven.keyt@leitnerfirm.com                                      Richard W. Krieg
                                                                                           dkrieg@lewisking.com




                          Paul R. Leitner
                          paul.leitner@leitnerfirm.com
                                                                         BURCH, PORTER & JOHNSON, PLLC
                                                                         Memphis, Tennessee
                                                                         Tel: (901) 524-5000

                                                                                           Melissa A. Maravich
                                                                                           mmaravich@bpjlaw.com

 LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC
 Chattanooga, Tennessee
 Tel: (423) 265-0214

                          Gary S. Napolitan
                          gary.napolitan@leitnerfirm.com
                                                                         LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC
                                                                         Nashville, Tennessee
                                                                         Tel: (615) 255-7722

                                                                                           Jim Catalano
                                                                                           jim.catalano@leitnerfirm.com
                          David W. Noblit
                          david.noblit@leitnerfirm.com




                                                                                           Richard Mangelsdorf, Jr.
                                                                                           chuck.mangelsdorf@leitnerfirm.com




                                                                         (continued on next page)



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 TENNESSEE (CONT.)                                                       TEXAS (CONT.)

  LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC                            NAMAN, HOWELL, SMITH & LEE, L.L.P.
  (continued)                                                            Austin, Texas
                                                                         Tel: (512) 479-0300
                          George H. (Chip) Rieger, II
                          chip.rieger@leitnerfirm.com                                    P. Clark Aspy
                                                                                         aspy@namanhowell.com




 LEWIS, KING, KRIEG & WALDROP, P.C.                                                      Michael Thomas
 Nashville, Tennessee                                                                    thomas@namanhowell.com
 Tel: (615) 259-1366

                          John R. Tarpley                                STRASBURGER & PRICE, L.L.P.
                          jtarpley@lewisking.com                         Dallas, Texas
                                                                         Tel: (214) 651-4300

                                                                                         Mark Scudder
                                                                                         mark.scudder@strasburger.com




 TEXAS

 MULLIN HOARD & BROWN, L.L.P.
 Amarillo, Texas                                                                         Samuel J. Hallman
 Tel: (806) 372-5050                                                                     sam.hallman@strasburger.com

                          Danny M. Needham
                          dmneedham@mhba.com




                          Christopher W. Weber
                          cweber@mhba.com




                                                                    52
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 TEXAS (CONT.)                                                           TEXAS (CONT.)

 MOUNCE, GREEN, MYERS, SAFI,                                             LORANCE & THOMPSON, P.C.
 PAXSON & GALATZAN, P.C.                                                 Houston, Texas
 El Paso, Texas                                                          Tel: (713) 868-5560
 Tel: (915) 532-2000
                                                                                           Melanie Cheairs
                          Carl H. Green                                                    mrc@lorancethompson.com
                          green@mgmsg.com




                                                                                           Brian T. Coolidge
                          Darryl S. Vereen                                                 btc@lorancethompson.com
                          vereen@mgmsg.com




                                                                                           Dan L. Fulkerson
                                                                                           dlf@lorancethompson.com
 LORANCE & THOMPSON, P.C.
 Houston, Texas
 Tel: (713) 868-5560

                          Eric R. Benton
                          erb@lorancethompson.com
                                                                                           Ryan T. Hand
                                                                                           rth@lorancethompson.com




                                                                                           Cynthia Huerta
                                                                                           ch@lorancethompson.com




                                                                         (continued on next page)




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 TEXAS (CONT.)                                                           TEXAS (CONT.)

  LORANCE & THOMPSON, P.C. (continued)                                   BALL & WEED, P.C.
                                                                         San Antonio, Texas
                          Roger Oppenheim                                Tel: (210) 731-6300
                          rdo@lorancethompson.com
                                                                                         Larry D. Warren
                                                                                         ldw@ballandweed.com




                          David Prasifka
                          dwp@lorancethompson.com
                                                                                         Mark A. Cooper
                                                                                         mac@ballandweed.com




                          Walter F. Williams III
                          wfw@lorancethompson.com

                                                                         NAMAN, HOWELL, SMITH & LEE, L.L.P.
                                                                         Waco, Texas
                                                                         Tel: (254) 755-4100

                                                                                         P. Clark Aspy
                                                                                         aspy@namanhowell.com
 MULLIN HOARD & BROWN, L.L.P.
 Lubbock, Texas
 Tel: (806) 765-7491

                          Danny M. Needham
                          dmneedham@mhba.com
                                                                                         Jerry P. Campbell
                                                                                         campbell@namanhowell.com




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  UTAH                                                                   VIRGINIA (CONT.)

 CHRISTENSEN & JENSEN, P.C.                                              MORRIS & MORRIS, P.C. (continued)
 Salt Lake City, Utah
 Tel: (801) 323-5000                                                                     Joseph M. Moore
                                                                                         jmoore@morrismorris.com
                          Dale J. Lambert
                          dale.lambert@chrisjen.com




                                                                         GENTRY LOCKE RAKES & MOORE LLP
                          Geoff Haslam                                   Roanoke, Virginia
                          geoffrey.haslam@chrisjen.com                   Tel: (540) 983-9300

                                                                                         E. Scott Austin
                                                                                         scott_austin@gentrylocke.com




  VIRGINIA

 MORRIS & MORRIS, P.C.
 Richmond, Virginia                                                      WASHINGTON
 Tel: (804) 344-8300
                                                                         MERRICK, HOFSTEDT & LINDSEY, P.S.
                          D. Cameron Beck, Jr.                           Seattle, Washington
                          cbeck@morrismorris.com                         Tel: (206) 682-0610

                                                                                         Thomas J. Collins
                                                                                         tcollins@mhlseattle.com



                          Jacqueline G. Epps
                          jepps@morrismorris.com

                                                                                         Andrew C. Gauen
                                                                                         agauen@mhlseattle.com



  (continued in next column)




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  WASHINGTON (CONT.)                                                     WISCONSIN

 PAINE HAMBLEN LLP                                                       WHYTE HIRSCHBOECK DUDEK S.C.
 Spokane, Washington                                                     Milwaukee, Wisconsin
 Tel: (509) 455-6000                                                     Tel: (414) 273-2100

                          Scott C. Cifrese                                             John J. Laffey
                          scott.cifrese@painehamblen.com                               jlaffey@whdlaw.com




                          Troy Y. Nelson
                          troy.nelson@painehamblen.com                   WYOMING

                                                                         MURANE & BOSTWICK, LLC
  WEST VIRGINIA                                                          Casper, Wyoming
                                                                         Tel: (307) 234-9345
 ROBINSON & MCELWEE PLLC
 Charleston, West Virginia                                                             Kathleen J. Swanson
 Tel: (304) 344-5800                                                                   kjs@murane.com

                          Edward J. George
                          ejg@ramlaw.com




                                                                         MURANE & BOSTWICK, LLC
                                                                         Cheyenne, Wyoming
                                                                         Tel: (307) 634-7500
 ROBINSON & MCELWEE PLLC
 Clarksburg, West Virginia                                                             Greg Greenlee
 Tel: (304) 622-5022                                                                   ggg@murane.com

  Stephen F. Gandee
  sfg@ramlaw.com




                                                                                       Loyd E. Smith
                                                                                       les@murane.com




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ALFA International   |   TRANSPORTATION UPDATE   |   Volume 2009 Issue 1 (Winter)                        [ Return to Contents ]



  INTERNATIONAL                                                          CANADA

  AUSTRALIA                                                              BORDEN LADNER GERVAIS
                                                                         Calgary, Alberta
 CORNWALL STODART                                                        Tel: (403) 232-9500
 Melbourne, Victoria
 Tel: 61-3-9608-2000                                                                  Bruce Churchill-Smith
                                                                                      bchurchillsmith@blgcanada.com
                          Elizabeth Guerra-Stolfa
                          e.guerra@cornwalls.com.au




                                                                         FASKEN MARTINEAU DUMOULIN LLP
                          Levent Shevki                                  Vancouver, British Columbia
                          l.shevki@cornwalls.com.au                      Tel: (604) 631-3131

                                                                                      William Westeringh
                                                                                      wwesteringh@fasken.com




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