New Mexico Injury Attorney Blog

The 10th Circuit Court of Appeals addressed the scope of agency and respondeat superior under New Mexico law in Frederick v. Swift Transportation. The case addressed these issues in the context of a trucking accident involving a truck driver who had ingested methamphetamine.

At trial, the jury awarded the plaintiff $23,500,000. The court reduced the judgment to $15,275,000 based upon the plaintiff's comparative negligence in the accident. Swift Transportation appealed on several grounds including the court's ruling that the driver acted within the course and scope of employment as a matter of law. Based upon this ruling, the court issued a jury instruction that Swift was liable for the negligence of its driver.

Swift argued that the driver was outside the course and scope of employment due to the driver's consumption of methamphetamine. In part, Swift argued that it was a disputed fact whether the meth was ingested prior to or after the accident.

The 10th Circuit relied on New Mexico law citing Ovecka v. Burlington Northern as follows, "whether an employee was acting within the scope of his employment is [generally] a question of fact for the jury." However, the court cited Ovecka further, "when no facts are in dispute and the undisputed facts lend themselves to only one conclusion, the issue may properly be decided as a matter of law."

The Court cited New Mexico's uniform jury instructions which state that an employee is acting within the scope of employment when:

1. It was something fairly and naturally incidental to the employer's business assigned to the employee, and
2. It was done while the employee was engaged in the employer's business with the view of furthering the employer's interest and did not arise entirely from some external, independent and personal motive on the part of the employee.

The Court found that it was undisputed that the driver was acting within the course and scope of employment as set forth under New Mexico law. The Court ruled further that the ingestion of meth did not remove the driver from the course and scope of employment no matter when the meth was ingested. The Court was careful to state that the ingestion of drugs might remove an employee from the course and scope of employment depending on the circumstances. However, in this case, the driver was clearly pursuing the interests of the employer and the use of meth did not meet the exception.

Interestingly, the Court did not mention the widespread use of meth among truck drivers due to the demands of the job. However, it is certainly something to keep in mind for those injured in a trucking accident since it is clear from Frederick v. Swift that the employer is held responsible for this on the job drug usage which in turn may be factored into an award of punitive damages.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Corporate defendants in personal injury lawsuits can be extremely uncooperative and evasive. After all, payment of claims does not fit within their profit model. In trucking accident cases, the level of obstruction will on occasion rise to the level of outright dishonesty and deceit. This is a problem on a national level and New Mexico is not immune to these abusive practices.

In trucking accident cases, the trucking company and its insurance carrier send in their investigative teams immediately. This would appear to be sound corporate responsibility. They call these their "Go Teams" and their mission is anything but responsible.

The Go Teams consist of investigators, accident reconstructionists and of course insurance defense attorneys. From the very beginning, the Go Teams are focused on defending any possible personal injury lawsuit to come. The entire investigation is geared toward defending the lawsuit. Understanding that the insurance company is leading the charge, this is not surprising. It almost too obvious to say that the first instincts of the insurance companies is to deny liability to avoid their financial responsibility for damages to the public they are charged with protecting.

The Go Team will often neglect to identify or obtain statements from witnesses adverse to their defense. Likewise they will often ignore evidence that does not support their position which instinctively is to deny responsibility for the accident. Instead, they will focus only on those witnesses and evidence that supports their position. These investigations are not about bringing the facts to the surface but about defending the claim.

Trucking accidents generally involved very serious injuries or death to the unfortunate drivers on the other end of the collision. A trucking accident, by virtue of simple physics, are typically far more serious that the run of the mill auto accident. A very high percentage of these accidents involves fatalities. Unfortunately, the severely injured or dead are in no position to conduct an on site investigation of their own at the time of the accident. As a result, it is very important to collect as much information as possible as soon as possible after the accident. This is often left to the family, friend or other loved ones of the injured or deceased victim of the trucking accident.

Due to the unique problems and challenges of trucking accident cases, it is important to get an attorney involved as early as possible. By early, I mean immediately. Evidence and witnesses have a way of disappearing for many reasons, some innocent, some not. Make no mistake, the evidence and witnesses not documented by the Go Teams is the evidence most important for a personal injury claim in the trucking accident case.

www.CollinsAttorneys.com

Mobile phones clearly present a danger to the driving public. Mobile phone use causes over 500,000 auto accident related injuries each year. Texting and driving can be almost as dangerous as drinking and driving. Simply talking on the phone also poses dangers which led to Albuquerque and Santa Fe banning all but hands free devices while driving.

Unfortunately, a great deal of business is conducted in cars on mobile phones every day. All varieties of business activity is conducted by mobile phone from pizza delivery to the highest levels of business. Texting is an epidemic that reaches far beyond teenagers. Perhaps just as bad, email has come to dominate the business days of many. The lure and call of texts and emails is simply too great for many to resist despite the dangers. The problem is growing worse, not better.

So too do accidents, many extremely serious or fatal, continue to grow. The technology has become so widely accepted that drivers do not appreciate or choose to ignore the dangers of texting, emailing or even talking on the phone while driving. Over 500,000 people are injured and 6000 die each year from distracted driving as a result texting, emailing or talking on the phone.

The negligent driver is clearly at fault when they cause an accident due to mobile phone use. His or her employer may also be liable under respondeat superior or agency. In fact, there are businesses that not only encourage this dangerous practice but demand it. The most obvious example, but certainly not the only, is sales where sales personnel are constantly on the move and constantly in communication with their offices, clients and prospects. Rather than discourage the practice, it is as a practical matter required for performance.

In any serious auto or truck accident, it is important to determine the what the negligent driver was doing at the time of the accident. Certainly, it should be determined if mobile phone was involved. It should also be determined if the negligent driver was acting on behalf of an employer. This includes determining not just whether the negligent driver was on the job but whether the person was engaged in activity for the benefit of his or her employer.

If the person was acting on behalf or in furtherance of an employer, the employer may have some liability for the accident. In some cases, the employer's liability may be significant. In cases of serious personal injury or wrongful death, the liability of the employer may provide the only real recovery for the injured person.

This is particularly the case in New Mexico which has a very high percentage of uninsured and underinsured drivers. New Mexico has the largest percent of uninsured drivers in the nation. Just as troublesome for those injured in auto accidents, New Mexico drivers are notoriously underinsured with the great majority carrying only minimal liability limits of $25,000. As a result, the first and often greatest challenge in a New Mexico auto accident case is finding insurance.

Fortunately, most businesses carry a variety of insurance that will kick in cases where their employees or agents have harmed others, including those involved in auto accidents. In fact, the only real coverage may come from the employer's insurance. The very business activity that caused the accident may provide the only net available to those harmed by it.

www.CollinsAttorneys.com

Huge Verdict In Trucking Accident Involving Texting Truck-Driver

A 21 year old college student was awarded $49 million in damages to a Santa Clara verdict for brain injuries he suffered in an auto accident. Drew Bianchi was traveling with friends on a camping trip when two trucks collided on the center line sending one of the trucks careening into the rear of Bianchi's vehicle.

As is the case in many trucking related accidents, Drew suffered very serious injuries including severe and permanent brain injury. He now lives full time in the treatment facility unable to care for himself. It is expected that he will remain in care facilities for the rest of his life.

Bianchi sued both trucking companies and the truckers individually for reckless driving. It was alleged that while one trucker veered recklessly across the center line, the other driver was recklessly texting and inattentive.

The case suggests a trend likely trend in car and automobile accidents. Texting is increasingly common throughout society. Unfortunately, many find the urge to text even while they are driving. Driver inattentiveness is a leading cause of car accidents. This is especially true among younger drivers. The lure of texting to teenagers is not surprising. The lure of texting for truck drivers is both surprising and frightening.

Trucking accidents typically involve far greater injuries, often death, than run of the mill automobile accidents. The physics are clear. Trucks are huge, they are heavy, they are often moving rapidly, and do not easily come to a stop. Driver inattentiveness is a serious concern for all drivers with the incidence of car accidents involving mobile phones and texting rising rapidly. The fact that truck drivers are texting while driving creates a new level of concern. After all, if they are texting, they are also talking on their phones.

The trend in texting and mobile phone use while driving is clear. The case of Drew Bianchi suggests that car accident lawsuits will reflect the trend with increasing numbers of lawsuits filed for recklessness. It is common to allege recklessness in cases involving mobile phone use and now texting. Juries will likely begin to routinely accept these arguments as the accident statistics related to mobile phone use and texting continue to mount.

www.CollinsAttorneys.com