Author: The Lane Law Letter

Successes in 2023

The Lane Law Letter

We look back at some of our successes in 2023.

Summary Judgment in Quadriplegic Accident

A severe accident on the Cross-Bronx Expressway involved a Jeep Grand Cherokee, a Honda Odyssey, and two tractor-trailers. An occupant of the Jeep was rendered a quadriplegic and brought suit in Bronx County against the operators of the other vehicles. The Court granted summary judgment for our trucking company client after seven years of litigation. This high-exposure case will proceed against the owners of the Honda and the other tractor-trailer.

Summary Judgment, Indemnity and Insurance Coverage

An accident on a state highway in New Jersey led to debilitating injuries to the driver of a small delivery truck when his vehicle impacted a truck operated by a company retained by our client, a broker. The injured man sued our broker client and the trucker involved in the accident. The trucker’s insurer denied additional-insured coverage for our client and commenced a declaratory judgment action to avoid that coverage. We represented the broker in both actions. In the personal injury action we obtained summary judgment dismissing the complaint and enforcing contractual indemnity against the trucker. That double victory led to a settlement of both actions. The insurer settled the personal injury claim in full and made reimbursement to our client for legal fees and expenses incurred in both cases.

Voluntary Dismissal in Alleged Roadway Distraction Claim

Plaintiff’s car was struck in the rear by co-defendant’s vehicle, from which plaintiff suffered spinal injuries requiring surgery. Co-defendant claimed he had been distracted by a truck that was weaving from lane to lane, and even coming close to tipping over. His identification of the truck, which he said bore the name of our client, a popular food service transporter, started out as very sketchy and became virtually worthless after depositions. Plaintiff was persuaded that the phantom truck, if it existed, was not owned by our client. Plaintiff voluntarily dismissed the claim against our client.

Settlement, Exoneration, and Insurance Coverage

A small outdoor recreation business was sued by a young man injured in a rope incident in a state park in New Jersey. The man suffered spinal fractures and had a lengthy hospital and treatment course. He sued our client in state court. Our client made timely notification to its general liability insurer, but the insurer reserved rights as to coverage and commenced a federal declaratory judgment action. We defended that suit, counterclaimed for coverage, and impleaded the client’s insurance broker. After nearly seven years of litigation, the insurers moved for summary judgment. We defeated those motions and a motion to amend the complaint. The insurers succumbed. Together they settled the personal injury case in the high six figures, and then paid the majority of our legal fees and expenses incurred over nearly seven years of federal court litigation.

Summary Judgment Under Graves Amendment and Independent Contractor Doctrine, Indemnification against Subcontractor

An accident at an intersection in Yonkers, New York resulted in shoulder and back injuries. Both injuries resulted in surgical intervention. The injured party brought suit against our client, a freight forwarder, and its subcontractor, who was operating a tractor-trailer involved in the subject accident. The trailer was owned by our client. We obtained summary judgment under both the Graves Amendment and an independent contractor defense. We also obtained summary judgment for contractual indemnity on our cross-claim against the subcontractor.

Voluntary Dismissal in Severe Injury Case

A New Jersey municipal employee was injured while unloading cargo from a trailer, allegedly caused by an ice condition on the product being unloaded. The injured employee sued several parties, including our client, a freight broker. After completion of discovery, and without the need for motion practice, we persuaded our client’s subcontractor to settle the case and obtain a release for our client, while also agreeing to reimburse our client for attorneys’ fees and expenses incurred defending the case.

Plaintiff’s Bad Faith Delay of Defendant’s Removal to Federal Court

Plaintiff sued in state court in New York after an accident on the Cross-Bronx Expressway. His injuries were not serious and treatment was scant. His attorney refused to negotiate a settlement, but he wanted to avoid a federal removal. When we obtained an order that plaintiff provide a written demand, the attorney delayed as long as he could and then provided a written demand of $74,000, just below the $75,000-plus minimum for jurisdiction. Later, counsel served discovery responses that surreptitiously increased the demand to $2,000,000, but that was beyond the one-year limitation for removal. We removed anyway, citing an exception in the statutory deadline provision. The federal court retained jurisdiction, finding that “plaintiff acted in bad faith in order to prevent or delay defendants from removing this action.” The case settled in two weeks for what it was worth – next to nothing.

Moral: Never give up!

The Lane Law Letter will continue to bring you updates on matters of pertinent law in New York and New Jersey.

Peter Bobchin to present at TIDA Webinar on Preventability Determinations

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Peter Bobchin will be presenting at a webinar on Tuesday, November 1st, sponsored by the Trucking Industry Defense Association. The webinar, entitled “FMCSA, Preventability Determinations, and How to Navigate These Issues at Deposition,” will explore FMCSA requirements for reporting accidents, addressing protections afforded under 49 U.S.C. § 504(f), and whether preventability determinations fall under the protections.

The program will review how some state courts handle the admissibility of preventability determinations at trial, and how to address the issue in preparing a safety supervisor to testify at a deposition. The webinar will also discuss the FMCSA’s voluntary Crash Preventability Demonstration Program.

The Panel members also include TIDA attorneys Rene L. Bowen of Franklin & Prokopic, P.C., in Baltimore, and Joseph Panatera of Cassiday Schade LLP, in Chicago.

TIDA members can register for the webinar via the link at the bottom of TIDA’s home page, at http://www.tida.org.

Peter has been a member of TIDA for 17 years and his partner, John Lane, has been a member for most of TIDA’s existence. Together, they co-author and update TIDA’s state law summary for New York. The Association includes individuals from the trucking industry, trucking insurance and claims professionals, and attorneys who devote a substantial portion of their practice to the defense of trucking companies.

Partner Peter Bobchin moderates TIDA Webinar

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Peter Bobchin recently moderated a webinar sponsored by the Trucking Industry Defense Association’s Interactive Education Committee.  The webinar titled “Where We’ve Been and Where We’re Heading: Regulatory Updates in the New Administration” explored new regulations affecting the trucking industry by first taking a look back at changes made to trucking regulations at the end of 2020.  The focus then switched to what both trucking attorneys and industry professionals can expect to see under the Biden administration, and the new appointees to head the Department of Transportation and the Federal Motor Carrier Safety Administration. 

Panel members included TIDA attorneys Sarah E. Hansen of Burden, Hafner & Hansen in Buffalo, New York, and Stephen J. Cohen of Copeland, Stair, Kingma & Lovell, LLP in Atlanta, Georgia, doing a superb job of explaining some complex and intricate subjects of importance to the trucking industry.

The webinar covered recent regulatory developments on the issues of hours of service and electronic driver logs, emerging regulations impacting driver training and recruitment, and safety initiatives incorporating new and evolving technology.  Peter has been a member of TIDA for 17 years and his partner John Lane has been a member for most of TIDA’s existence.  Together, they co-author the New York law updates for TIDA.       

John Lane to Speak at TLA Chicago Regional Seminar

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As with so many trainings, meetings, and conferences, the Transportation Lawyers’ Association 2021 Chicago Regional Seminar and Bootcamp, too, will be virtual this year. TLA President John Wilcox will open the Regional Seminar and Bootcamp from Kansas City, Missouri, via Zoom, at 1:00pm CST on January 20th. This online program will feature timely topics that are of interest to attorneys practicing all modes of transportation law. Topics have been chosen based on suggestions received from past attendees as well as recent developments in the law that affect the transportation industry and the practices of all transportation lawyers.

On that opening day, John Lane and Bill Pentecost, of Pittsburgh, will co-chair the Bootcamp segment, “Transportation Law in a Multi-Modal World,” which will address Maritime, Railroad, and Motor Carrier law. In addition, John will give a presentation on Intermodal Law and Commerce, emphasizing the inter-relationship of ocean, rail, and trucking commerce and the rights and liabilities of intermodal equipment leasing companies.

The Bootcamp is designed to introduce transportation law topics to lawyers who are beginning their transportation law careers, but is also attended by seasoned members of the TLA. Other Bootcamp presenters include Dustin Paul of Norfolk (Maritime law), John Fiorilla of New Jersey and Greg Summy of Virginia (Railroad law), and Steve Kennedy of Louisiana, Bridgette Blitch of Florida and Meghan Litecky of Kansas City, Missouri (Motor Carrier law).

The main portion of the Regional Seminar will be conducted on Thursday and Friday, January 21 and 22. The Seminar’s co-chairs are Tom Martin of New Jersey and Jason Orleans of Chicago. Non-members of the TLA are welcome to join us.

To learn more about the 2021 Bootcamp and Regional Seminar and to register, visit https://events.translaw.org/2021/chicago-regional/home/.

Work Continues, At Home And In The Community

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As we in New Jersey enter our eighth week of stay-at-home orders, we hope this finds you and your loved-ones healthy. We continue to work from home, conducting appearances via video-conference with those courts equipped to do so. As always, we can be reached 24/7 by email or by phone (press 2 for John, press 3 for Peter).

While we are able to continue working, not all have been so blessed. Food pantries nation-wide have seen an increase in clientele since the emergence of COVID-19. Northwest New Jersey is no exception. John’s grandson, Josh, has been volunteering at the Sparta Ecumenical Food Pantry for 18 months and has noted a marked increase of first-time clients. He has heard many stories of neighbors finding themselves newly out of work and in need of assistance to feed their families. New Jersey Gov. Phil Murphy highlighted this need and Josh’s work during a recent press conference.

Click on the photo to watch Gov. Murphy’s shout-out

We also invite you to watch Josh’s video, which he created to demonstrate the amazing work being done at the food pantry, as well as the urgent need. We’re proud of you, Josh!

https://www.youtube.com/watch?v=kkMI6hHsZuI&t=14s

Thank you to all who have volunteered your talents to help your neighbors during this time! Thank you to the front-line workers who protect and serve! Thank you to the supply chain workers who keep our country moving!

We Are Here For You

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As we continue to work from home, we hope that all of you are doing well, and staying safe, healthy, and self-distanced (a reflexive verb that has entered the lexicon perhaps for as far as we can imagine).  For everyone, our work and world exist on email, phone, Skype, Zoom, and the like.  A Zoom birthday party held this week brought family together from North Carolina and New Jersey, with surprising success.  With courts largely closed for now, we anticipate in-person status conferences and motions moving from the courtroom, past the telephone, and on to Zoom and other videoconference platforms.  Depositions can work well via videoconference in many cases. Mediations, and even arbitrations, are transitioning to video, at least for the foreseeable future, in appropriate cases.  But trials, especially in personal injury cases, are another subject.  Plaintiffs’ attorneys will still want their juries in live courtroom settings . . . until the trial delays bring financial woes to their firms and their clients.  As we prepare for those trials, whenever they resume, we will keep you advised of courts’ changing rules and schedules, and of legal developments of interest.  Stay safe and healthy.

As always, we can be reached 24/7. Our phones will route your calls to John (press 2) or Peter (press 3) at any time, with immediate connection to our cell phones.

Our Courts Are Closed But We Will Be Working

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The courts in New York and New Jersey have closed for hearings, conferences, and jury trials.  Our friends in Pennsylvania report many similar closings.  We even had a Philadelphia mediation postponed. Meetings of 50 or more are prohibited in New York and New Jersey, restaurants and bars are closed, and other non-essential businesses are encouraged to follow suit.  We will continue to work in the office unless ordered to stay home. We are fully able to work remotely without interruption.  Court filings in most of our courts are done electronically, and we receive orders and notifications from the courts in the same manner.  We will receive our emails, of course.  If we are out, or at night, our phones will route your calls to John (Press 2) or Peter (Press 3) at any time, with immediate connection to our cell phones.

We hope this will not last long.  Most important, we hope you all remain safe and healthy.

Federal Court Approves Transportation ADR Council’s Fairness and Procedures

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The Transportation Lawyers Association has established and maintains the Transportation ADR Council, which provides arbitration and mediation services for parties involved in transportation-related disputes. The arbitrators and mediators on the Council are all members of the TLA, must have ten years or more legal experience in the transportation field, and must have extensive training in alternate dispute resolution procedures, including arbitration and mediation.

The U.S. District Court in Nashville, Tennessee, recently ruled that the Transportation ADR Council, or TAC, provides fairness consistent with due process, has procedural rules that guard against bias, and requires each arbitrator to “faithfully hear and examine the matter in controversy and make a just award.” In Byars v. Dart Transit Co., plaintiff brought an employment claim against Dart Transit. On Dart’s motion to compel arbitration before the TAC as prescribed in the parties’ agreement, Judge Waverly Crenshaw, Jr., analyzed the structure and procedural safeguards provided by the TAC’s arbitration rules, and ruled in favor of arbitration.

Plaintiff raised concern because all of the TAC arbitrators are transportation lawyers representing businesses in the transportation industry. That is of course a very wide realm. The Arbitration Rules prohibit any person who has a financial or personal interest in the outcome from serving as an arbitrator, and also give the parties the opportunity to question the arbitrators’ impartiality. Quoting the Sixth Circuit, Judge Ryan held that even if all TAC arbitrators had backgrounds in transportation employer defense work, “a party cannot avoid arbitration simply by alleging that the arbitration panel will be biased.”

The court ruled the parties’ agreement to arbitrate in Minnesota is enforceable under the Minnesota Uniform Arbitration Act, even though the Federal Arbitration Act may be inapplicable under the Supreme Court’s 2019 decision in New Prime v. Oliveira. That case held that the FAA does not apply to disputes involving transportation workers’ contracts.

John Lane is a member of the TLA and currently serves as co-chair of the Transportation ADR Council, with Daniel Fulkerson, Esq., of Houston. Like most TAC arbitrators, John is also a commercial arbitrator for the American Arbitration Association.

LEGISLATIVE UPDATE: Independent Contractor v. Employee

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NJ: Proposed Legislation

NJ State House

It was all but certain to pass. New Jersey Governor Phil Murphy was waiting to sign it. Television ads proclaimed its virtues. But the State’s anti-independent contractor bill (similar to California’s AB5) was pulled from the last legislative session. Groups representing independent contractors in myriad occupations made forceful and practical arguments against the bill. Included were freelance writers, musicians, doctors, various independent teachers, truckers, graphic designers, bakers, and others. Many legitimate independent contractor businesspeople prefer the freedom of owning and operating their own businesses. They do not want to be artificially classified as employees, a move they say would harm their businesses. The legislation was re-introduced on January 14th, and referred to the Labor Committees of both the Senate and Assembly. We are watching developments in both New Jersey and New York, which is also considering similar legislation.

CA: Preliminary Injunction Granted

Much to the relief of many, on January 16th, Judge Benitez granted a preliminary injunction to the California Trucking Association, temporarily stopping the enforcement of AB5 upon motor carriers. In his decision, Judge Benitez writes, “…there is little question that the State of California has encroached on Congress’ territory by eliminating motor carriers’ choice to use independent contractor drivers, a choice at the very heart of interstate trucking. In so doing, California disregards Congress’ intent to deregulate interstate trucking, instead adopting a law that produces the patchwork of state regulations Congress sought to prevent. With AB-5, California runs off the road and into the preemption ditch of the FAAAA.”