Posted by: Nathan S. Morris
August 19, 2010
Topic: Recent Verdicts

The law firm of Richards Brandt Miller Nelson has a long history of representing the interests of trucking companies, truck drivers, and the insurance companies who insure them. In a recent case entitled Frederick v. Swift (issued on August 10, 2010), the 10th Circuit affirmed a New Mexico jury verdict in favor of the Plaintiffs for a total of $23,500,000. That amount was reduced to $15,275,000 due to plaintiffs' comparative fault. Though the injury claims are unspecified, the jury award included $4 million in loss of consortium damages. Our trucking clients and insurance clients should be aware of the following holdings by the 10th Circuit Court:

(1) Course and scope of employment: A driver who consumed methamphetamines was "engaged in her employer's business with the view of furthering her employer's interest" and was therefore acting within the scope of her employment;

(2) Under the doctrine of respondeat superior, "Swift is liable for all the negligent behavior of its employee, which includes violations of the FMCSR," despite Swift's argument that "these regulations apply to drivers and not employers." (The jury was instructed that if it found, Swift's driver violated any one of several FMCS regulations, "then the driver's conduct constitutes negligence as a matter of law.");

(3) Although a court should ordinarily grant an employer summary judgment on claims for negligent entrustment, hiring, and retention when the employer admits the applicability of respondeat superior, a plaintiff may be allowed to continue pursuing these claims when the plaintiff "has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee." (The court considered issues unique to New Mexico);

(4) The trial court allowed evidence of prior convictions, drug use, license suspensions, and failures on different portions of the necessary licensing exams; and

(5) The trial court did not err in providing a jury instruction that Swift would be negligent if it "failed to use ordinary care in promoting its driver to [a more difficult cross country fleet that involved important clients, increased pay, and provided drivers with the best miles]."

There are other issues that the opinion addresses, including the court's Daubert gate keeping responsibilities and seatbelt issues unique to New Mexico statutory law. Feel free to contact a lawyer at Richards Brandt Miller Nelson for questions about this case or if we can assist you or your business in any way.

Attachments:
frederickvswift_20100812091953.pdf
Frederickv.Swift(VerdictSummary).pdf

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