After Consumers initial denial of coverage, but before its determination that there may be coverage, Charles filed suit against Ranum and entered into a partial settlement whereby Charles agreed to limit his recovery to Ranum’s policy limits without conceding that his damages were limited to that amount.  Immediately after the settlement between Charles and Ranum occurred, Consumers moved to intervene in the action for the purposes of contesting Ranum’s liability and/or Charles’ damages.  Charles did not object to the motion and the trial court allowed Consumers to intervene.  Charles subsequently filed a Motion for Summary Judgment contending that consumers should not be allowed to intervene because it initially denied coverage and, therefore, forfeited any right it had to defend Charles’ allegations against Ranum.  The trial court eventually granted that Motion for Summary Judgment, finding that Consumers had initially denied coverage, but then changed its position.  This, according to the trial court, resulted in Consumers forfeiting its right to intervene.  The trial count then conducted a hearing at which Ranum did not appear to contest Charles’ case and entered a judgment in favor of Charles in the amount of $350,000.  Ranum had only $50,000 in liability coverage.

The Missouri Court of Appeals for the Western District overturned the trial court’s judgment and found that Consumers should have been allowed to intervene.  In doing so, it distinguished between first party and third party claims.  The trial court acknowledged that an insurer may forfeit all of it rights under the contract should it deny coverage on a third party claim.  However, an insurer’s right to intervene in a cause of action when there is litigation which may affect a potential first party claim such as UIM coverage, the insurer’s right to intervene arises out of the Missouri Rules of Civil Procedure rather than the insurance contract.  Therefore, even after an initial denial of coverage, Consumers claim that coverage may apply was sufficient to establish that Consumers had an interest in the litigation to justify its intervention.

This case is important for a couple of reasons.  First, in a potential first party claim situation, an initial denial of coverage will not necessarily prevent an insurer from intervening in underlying litigation against a third party.  Thus, claims representatives should keep in mind that an initial denial of coverage does not necessarily foreclose intervention.  Second, this case also makes clear that an insurer does not have to admit coverage in order to intervene.  The insurer only has to acknowledge that coverage may apply and that the disposition of the underlying litigation may, as a practical matter, impair or impede the insurer’s ability to protect its interests.

Charles v. Consumers Insurance

Presently, the agency considers all recordable crashes involving a commercial motor vehicle occurring in the preceding 24 months as an assessment within its Safety Measurement System, which quantifies the on-the-road safety performance of motor carriers to prioritize enforcement resources.

FMCSA maintains that independent research has demonstrated that a motor carrier’s involvement in a crash, regardless of their role in the crash, is a strong indicator of their future crash risk.

The study examined Police Accident Reports obtained from two national datasets: the National Highway Traffic Safety Administration (NHTSA) Fatality Analysis Reporting System (FARS) and the National Motor Vehicle Crash Causation Survey (NMVCCS). Various statistical and analytical approaches were employed to assess crash weighting benefits including an analysis of motor carriers involved in single-vehicle fatal crashes over time.

According to the FMCSA, changing the crash weights based on a motor carrier’s role in the crash did not appear to improve the ability to predict future crash rates when all crashes are considered.  FMCSA was also concerned about the reliability of using Police Accident Reports to make this determination. The study pointed out that implementing a crash weighting effort on a national scale would require a method for uniformly acquiring final Police Accident Reports, a process and system for uniform analysis, and a method for receiving and analyzing public input.

FMCSA estimates that the annual costs for operating a system to process Police Accident Reports, including the acceptance of public input and reviewing appeals, would be between $3.9 million and $11.2 million. FMCSA has invited the public to review the full report and provide feedback.

For more information, please contact Patrick E. Foppe at 314-621-2939314-621-2939, or at pfoppe@lashlybaer.com, or contact your Lashly & Baer attorney.

Under the previous law, recording anyone against their will in Illinois could be punishable under a Class 4 felony with a one to three years sentence. For eavesdropping upon law enforcement (State’s Attorneys, Police Officers, and agents of the Attorney General) that punishment was significantly higher at a Class 1 Felony punishable with a four to 15 year sentence. SB 1342 reinstates the Class 4 felony for concealing the recording of private interactions between Illinois residents, and actually reduces the punishment for recording law enforcement officials from a Class 1 to a Class 3 felony.

SB 1342 re-defines “private conversation” as:

any oral communication between 2 or more persons, whether in person or transmitted between the parties by wire or other means, when one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation. A reasonable expectation shall include any expectation recognized by law, including, but not limited to, an expectation derived from a privilege, immunity, or right established by common law, Supreme Court rule, or the Illinois or United States Constitution.

This new law incorporates provisions that do allow citizens to record police in an open and public manner. In addition, in situations that are in public, even if a person is concealing what he or she is doing, the courts have found there is no expectation of privacy for law enforcement. A controversial aspect of the new law remains its list of exemptions, albeit now somewhat curtailed. The new law became effective December 30, 2014.

For more information, please contact Patrick E. Foppe at (314) 621-2939(314) 621-2939, or at pfoppe@lashlybaer.com, or, contact your Lashly & Baer attorney.

Recently, in Mansfield v. Horner, WD76310, 2014 WL 2724854 (Mo. App. W.D.  June 17, 2014), the Missouri Western District Court of Appeals held that Missouri’s statutory caps on punitive damages do not apply to cases brought pursuant to the Missouri Wrongful Death Act. Under Section 510.265 RSMo, “punitive damages” are capped at (1) five hundred thousand dollars; or (2) five times the net amount of the judgment awarded to the plaintiff against the defendant. The Western District concluded that the legislature’s reference to “punitive damages” in section 510.265 was not intended to include within its scope “aggravating circumstances” damages allowed under the Missouri Wrongful Death Act. The Western District rejected the view that “aggravating circumstance awards” and “punitive damages” are statutory synonyms for purposes of Section 510.265. The Western District noted that the term “punitive damages” is not defined in Section 510.265 RSMo. Further, Section 510.263RSMo, which addresses trial procedures when “punitive damage” awards are claimed, specifies that those procedures are equally available where “aggravating circumstances” damages are claimed. The Western District stated that the Missouri legislature: (i) understands that “aggravating circumstances” damages are not synonymous with “punitive damages” as a matter of course; and (ii) plainly knows how to write legislation to express its intent to include “aggravating circumstances” within the scope of “punitive damages” if that is intended. The Western District limited prior holdings of the Missouri Supreme Court, which had previously stated that “aggravating circumstance damages in wrongful death cases are the equivalent of punitive damages,” to merely the context of determining whether damages for aggravating circumstances are subject to due process considerations. Presently, it is unclear whether this decision will be appealed to the Missouri Supreme Court.

For more information, please contact your Lashly & Baer attorney, or Patrick Foppe at 314-621-2939, or at pfoppe@lashlybaer.com.

On March 12, 2014, the Federal Motor Carrier Safety Administration (FMCSA) announced its proposed amendments to the Federal Motor Carrier Safety Regulations (FMCSRs) regarding Electronic Logging Devices (ELDs), formally known as Electronic Onboard Recorders (EOBRs). The American Trucking Association has announced its general support for FMCSA’s proposed mandate for the use of ELDs. The proposed rule purports to address issues raised by the U.S. Court of Appeals for the Seventh Circuit in its 2011 decision vacating the FMCSA’s April 5, 2010 final rule concerning ELDs (see Owner-Operator Indep. Drivers Ass’n v. FMCSA, 656 F.3d 580 (7th Cir. 2011)) as well as subsequent statutory developments.

The proposed rule would amend the FMCSRs to establish: (1) minimum performance and design standards for hours-of-service (HOS) electronic logging devices (ELDs); (2) requirements for the mandatory use of these devices by drivers currently required to prepare HOS records of duty status (RODS); (3) requirements concerning HOS supporting documents; and (4) measures to address concerns about harassment resulting from the mandatory use of ELDs. Specifically, the proposed rule includes provisions designed to:

• Respect driver privacy by ensuring that ELD records continue to reside with the motor carriers and drivers. Electronic logs will continue to only be made available to FMCSA personnel or law enforcement during roadside inspections, compliance reviews and post-crash investigations.

• Protect drivers from harassment through an explicit prohibition on harassment by a motor carrier owner towards a driver using information from an ELD. It will also establish a procedure for filing a harassment complaint and creates a maximum civil penalty of up to $11,000 for a motor carrier that engages in harassment of a driver that leads to an hours-of-service violation or the driver operating a vehicle when they are so fatigued or ill it compromises safety. The proposal will also ensure that drivers continue to have access to their own records and require ELDs to include a mute function to protect against disruptions during sleeper berth periods.

• Increase efficiency for law enforcement personnel and inspectors who review driver logbooks by making it more difficult for a driver to cheat when submitting their records of duty status and ensuring the electronic logs can be displayed and reviewed electronically, or printed, with potential violations flagged.

Details regarding the proposed rule can be found at: http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/rule-programs/rule_making_details.aspx?ruleid=475. Comments to the proposed rule should reference “Docket Number FMCSA-2010-0167” and be sent by one of following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments;

• Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001;

• Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or Fax: 202-493-2251.

For more information, please contact your Lashly & Baer attorney, or Patrick Foppe at 314-621-2939, or at pfoppe@lashlybaer.com.

On February 12, 2014, the FMCSA announced a proposed rule to establish the Commercial Driver’s License Drug and Alcohol Clearinghouse, a database under the Agency’s administration that will contain controlled substances and alcohol test result information for the holders of commercial driver’s licenses. The proposed rule would require FMCSA-regulated motor carrier employers, Medical Review Officers, Substance Abuse Professionals, and consortia/third party administrators supporting U.S. Department of Transportation (DOT) testing programs to report verified positive, adulterated, and substituted drug test results, positive alcohol test results, test refusals, negative return-to-duty test results, and information on follow-up testing. The proposed rule would also require employers to report actual knowledge of traffic citations for driving a commercial motor vehicle while under the influence of alcohol or drugs. The proposed rule would establish the terms of access to the database, including the conditions under which information would be submitted, accessed, maintained, updated, removed, and released to prospective employers, current employers, and other authorized entities. Finally, it would require laboratories that provide FMCSA-regulated motor carrier employers with DOT drug testing services to report, annual, summary information about their testing activities. The proposed rule can be found at: http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/rule-programs/rule_making_details.aspx?ruleid=471

For more information, please contact your Lashly & Baer attorney, or Patrick Foppe at 314-621-2939, or pfoppe@lashlybaer.com.

FMCSA recently announced that it is extending by one year, until Jan. 30, 2015, a requirement that interstate commercial driver’s license (CDL) holders retain paper copies of their medical examiner’s certificate and continue to make the document available for review upon request at the roadside by federal and state commercial motor vehicle inspectors. In Dec. 2008, FMCSA issued a Final Rule modernizing, streamlining, and simplifying recordkeeping obligations for drivers, carriers and state governments by requiring that a driver’s medical certification record be merged with state-issued CDLs. States received support from FMCSA to implement the necessary IT system upgrades and merge the records into one, online database – the Commercial Driver’s License Information System (CDLIS). FMCSA announced the one-year extension today to protect commercial drivers from being cited for violations because some states are not yet in full compliance with the new system. For a copy of the Federal Register announcement, see: www.FMCSA.DOT.gov.

2)  New Rule to Shut Down Carriers based on Patterns of Safety Violations

FMCSA is expected this week to publish a Patterns of Safety Violations Rule which implements the agency’s authority to shut down a bus or truck company if the company, or a company officer, has a history of purposely violating federal safety regulations. The rule is one of the new enforcement tools that the agency has developed in recent years to target high-risk carriers that endanger travelers by avoiding or covering up their negative history of safety compliance. FMCSA intends to apply the rule in “egregious cases” in which it finds that a motor carrier has committed a pattern of unsafe practices, even if that particular investigation alone does not result in a downgrade of the carrier’s safety fitness rating. The new rule complements a rule adopted by the agency in 2012 to apply out-of-service orders to reincarnated or chameleon carriers and to consolidate their enforcement histories. The new rule goes one step further by authorizing a complete revocation of the motor carrier’s authority to operate. For a copy of the Federal Register announcement, see: http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/rule-programs/rule_making_details.aspx?ruleid=470.

3)  Public Listening Sessions on Knowledge Testing Requirements for New Entrant Carriers, Freight Forwarders and Brokers

FMCSA plans to hold public listening sessions to solicit ideas and information from interested parties on possible knowledge testing requirements for New Entrant passenger and property carriers, freight forwarders, and brokers as follows:

• March 28, 2014 at the Mid-America Trucking Show taking place at the Kentucky Exposition Center in Louisville, Ky.
• April 7, 2014 at the Commercial Vehicle Safety Alliance’s spring conference taking place at the Westin Bonaventure Hotel & Suites in Los Angeles.

Room locations and times to be announced. To learn more about the New Entrant requirements in the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141) and the types of information FMCSA is requesting through the listening sessions, please see http://www.gpo.gov/fdsys/pkg/FR-2013-12-26/pdf/2013-30875.pdf

If you would like more information, please contact your Lashly & Baer, P.C. attorney, or Patrick E. Foppe at (314) 621-2939, or at pfoppe@lashlybaer.com

If you would like more information, please contact your Lashly & Baer, P.C. attorney, or Patrick E. Foppe at (314) 621-2939, or at pfoppe@lashlybaer.com

The limitation does not apply to passengers in an uninsured driver’s vehicle and does not limit the recovery of benefits provided or economic losses. Recovery of non-economic damages in instances where an insured driver who is at fault because of operating a vehicle while under the influence of drugs or alcohol or who is convicted of involuntary manslaughter or second degree assault will still be allowed under the new law.

If held constitutional by the courts of Missouri, the new law will dramatically limit recovery for injuries in cases to which it applies. Practitioners would be well advised to conduct discovery on these issues. Further, it remains to be seen whether the new law will require juries to complete a special verdict form allocating economic and non-economic damages similar to special verdicts required in medical malpractice cases in Missouri.

The full text of Section 303.390 reads:

1. An uninsured motorist shall waive the ability to have a cause of action or otherwise collect for non-economic loss against a person who is in compliance with the financial responsibility laws of this chapter due to a motor vehicle accident in which the insured driver is alleged to be at fault. For purposes of this section, the term “uninsured motorist” shall include:

(1) An uninsured driver who is the owner of the vehicle;

(2) An uninsured permissive driver of the vehicle; and

(3) Any uninsured non-permissive driver. Such waiver shall not apply if it can be proven that the accident was caused, in whole or in part, by a tort-feasor who operated a motor vehicle under the influence of drugs or alcohol, or who is convicted of involuntary manslaughter under subdivision (2) of subsection 1 of section 565.024, or assault in the second degree under subdivision (4) of subsection 1 of section 565.060.

2. The provisions of this section shall not apply to an uninsured motorist whose immediately previous insurance policy meeting the requirements of section 303.190 was terminated or non-renewed for failure to pay the premium, unless notice of termination or non-renewal for failure to pay such premium was provided by such insurer at least six months prior to the time of the accident.

3. In an action against a person who is in compliance with the financial responsibility laws prescribed by this chapter by a person deemed to have waived recovery under subsection 1 of this section:

(1) Any award in favor of such person shall be reduced by an amount equal to the portion of the award representing compensation for non-economic losses;

(2) The trier of fact shall not be informed, directly or indirectly, of such waiver or of its effect on the total amount of such person’s recovery.

4. Nothing in this section shall be construed to preclude recovery against an alleged tort-feasor of benefits provided or economic loss coverage.

5. Passengers in the uninsured motor vehicle are not subject to such recovery limitation.

• 30–Minute Off–Duty Break, which bars truckers from driving past 8 hours unless they have had an off-duty break of at least 30 minutes;

• Once–Per–Week Restriction, which allows truckers to invoke the 34–hour restart provision only once every 168 hours (or 7 days);

• Two–Night Requirement, which also mandates that the 34–hour restart include two blocks of time from 1:00 a.m. to 5:00 a.m.

The court upheld these new rules, except struck down the 30-minute off-duty break for short-haul drivers only. Even though the court agreed with the ATA that the FMCSA’s justification for the rules had serious flaws, it declined to “second-guess” the agency’s methodologies and interpretations of the evidence, instead taking a “highly deferential” approach to the agency’s presumed expertise, concluding that “FMCSA won the day not through the strengths of its rulemaking prowess,” but rather through “an artless war of attrition . . . .”

Further, the court found no merit in the challenge of the coalition of interest groups that have repeatedly fought to make a working regulation more restrictive, correctly concluding it “would have been unreasonable and unfounded on the record” to reduce the driving day from 11 to 10 hours. The court also rejected the groups’ call to eliminate the restart altogether.

At present, it is unclear whether any party will appeal the court’s ruling. The case is styled: Am. Trucking Associations, Inc. v. Fed. Motor Carrier Safety Admin., 12-1092, 2013 WL 3956992 (D.C. Cir., Aug. 2, 2013).