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Fire Protection Systems Need Fire Protection Engineers

October 21, 2021 • Source: Adam Farnham, Technical Lead, Fire Protection Engineering, Envista Forensics and Andrew Bennett, Assistant Technical Director, Fire & Explosion, Envista Forensics

Fire protection systems are often the silent and forgotten part of a structure until the moment they are needed. We rely on fire protection systems to aid in alerting occupants, calling for help, extinguishing or slowing the fire, and containing the danger if possible.  When the systems do not achieve these goals, then what?  Besides the possibility of lives lost and damage to property, what should investigators look for during an origin and cause investigation?  What are the recovery avenues?

Automatic fire sprinklers are one of many types of fire protection systems. According to National Fire Protection Association (NFPA) data, when fires are large enough to activate automatic sprinklers, they function as designed approximately 92% of the time.  Approximately 60% of the fires where the sprinklers failed to operate, were due to the system being shut off.1  

Fire Protection and Notification Systems

The vast spectrum of fire protection and notification systems are typically designed and installed in response to building code requirements. These can encompass hazard classifications, code requirements, or requests made by an owner when deciding on which system to implement.  Automatic extinguishing systems (AES) can include:

Wet Pipe, Dry Pipe, and Deluge Sprinklers

Wet pipe sprinkler systems are the most widespread active systems in use today. They consist of water-filled piping with individually activated sprinklers within a building designed to provide a specified density of water spray when thermally activated. Wet pipe systems are monitored for water flow, which are read by the monitoring company as a fire alarm. They are also monitored for valve tamper, which will alarm should the water supply valve close.

Dry pipe sprinkler systems are similar to wet pipe sprinkler systems, as they possess individual thermally activated sprinklers. The piping and sprinklers within the system may be located in areas subject to freezing temperatures, so the pipes are pressurized with low-pressure air to prevent freezing from happening. When activated, a valve at the base of the water supply riser opens as the air pressure drops, flooding the system. In addition to water flow and valve tamper, these systems are monitored for low air pressure. Low air pressure occurs when there is a leak large enough that the air maintenance device cannot keep up with pressurizing the system. Response to a low air pressure alarm may save the system from falsely tripping when only an air leak is present.

Deluge water spray systems are found at hazards where a rapid-fire development is expected, such as chemical processing facilities, large transformers, highway tunnels, or fuels processing/distribution. These systems are activated either by heat or smoke detection and have open sprinklers where all the heads spray at once. They are monitored for similar alarm and trouble points to a wet pipe system, but the releasing systems have additional monitoring points, like loss of main power, ground fault, and supervisory air.

High and Low Expansion Systems

High and low expansion systems typically protect facilities where hydrocarbon fuels are present and subject to pooling. This includes aircraft manufacturing and repair, truck repair, and fuel processing or storage. Both high and low systems are similar, each using a water-based foam to smother a fire. The low expansion foams have an air to water ratio of 20:1 or less, and high-expansion foams have an air to water ratio of greater than 20:1. Water is supplied to the systems using deluge valves and fast-acting control valves with proportioning mechanisms to deliver the foam/water mixture to foam generators. The foam generators are located above the hazard and use blowers to form the foam, which blankets the protected hazard quickly, cools the fire, and forms a layer to exclude oxygen.

UL 300 and Dry Chemical Extinguishing Systems

The wet agent version of UL 300, or dry chemical extinguishing systems, use a water-based soap-like solution. These are typically used for areas like commercial kitchens, paint spray booths, or another special hazard.  The dry chemical type is similar to a fire extinguisher. Both use pressurized gas to push the agent out of storage tanks, but UL 300 uses piping, as opposed to nozzles, at the protected hazard. The protected hazard is then blanketed with the medium. Additionally, these systems are designed to shut off fuel to the cookline or hazard, and newer installations include an activation alarm.

Gaseous Agent Systems: Carbon Dioxide, Halon/Replacement Agent

Gaseous agent systems are used for protection of hazards that are susceptible to severe damage from water. This can include printing presses, computer servers, and power generation equipment. The systems are specifically designed to blanket the hazard at a specific density and for a specific amount of time and are typically activated by smoke, heat, or flame detection. Monitoring points vary depending on the detection system used but can include system discharge, backup battery failure, power failure, or processing system trouble.

All of these systems are subject to design and routine testing and maintenance per NFPA specifications. It is the property owner’s responsibility to provide proper testing and maintenance, but responsibility for these functions can be contracted to a knowledgeable entity. It is important to determine who provided what maintenance on which system and how often. The records will be critical to the analysis.

Monitoring and Notification

Although all fire protection systems are typically activated and monitored by a detection or alarm system, these systems can vary just as much in structure as the fire protection system. They can provide vital information regarding the timeline of a fire and its progression, and any problems that occurred with the system before or during the incident.

Simple fire protection systems can monitor smoke detection, have manual pull stations, and deploy sprinkler water flow. They can also record trouble conditions, such as loss of power or internal failures of alarm initiating devices (smoke detectors, for example) or wiring. This information can be used to determine where the fire was first noted and at what time.

More complex systems can include multiple reporting data points relative to the type of system employed. For example, very early smoke detection apparatus (VESDA) systems, which use a powered vacuum pump to sample atmospheric conditions at multiple points within a facility, can monitor background particulate levels at various diameters. The systems can report how much and what type of particulate matter was in the air before the fire began, as well as during its incipient growth phase. This provides invaluable information for origin and cause analyses and determinations.

Origin and Cause Investigations

During a fire scene investigation, the investigator needs to not only focus on the fire-damaged area when identifying potential failures of equipment but the overall structure and property.  The investigator should look for why the fire spread the way it did and how it relates to not only the origin and cause but to the detection and suppression systems in place.  

Since fire investigators are generally the first forensic investigators at a loss, their initial photographic documentation can be extremely important.  Securing the loss site is also essential to the preservation of evidence and the mitigation of spoilation potential.  That being said, having an investigator on the site as soon as possible plays a major role in completing these initial tasks.

Information regarding the activation of a building fire alarm system can also be obtained by neighborhood cavasses and interviews with the tenant or employees.  Once a system is activated, audio and visual notifications are made to those in the area by way of strobes, tone alerts, and/or verbal directions, depending on the system setup.  Automatic extinguishing systems with water flow alarms also provide audio notification both inside and outside a structure.  During interviews, investigators should find out what was heard or observed by the occupants or neighbors before or during the incident.  Many times, people will take photographs or videos with their phones, which can provide documentation regarding the activation or function of the system and aid in the timeline of events during the incident.

Subrogation Considerations

While fire protection systems are usually not the direct origin or cause of the fire, should a system fail to activate correctly, there is potential for liability against the system manufacture or the contractor for potential negligence or product defects. Each U.S. state has different rules regarding such subrogation.  The cause of action against any contractor or manufacturer is likely secondary, meaning it was not the cause of the fire, only that the system failed and allowed the fire to spread, causing additional damages. Such actions are often governed under the superior equities rule.

For example, in subrogation litigation in California, the doctrine of superior equities is critical in determining whether a right of subrogation exists.2  This restrictive principle prevents an insurer from recovering against a party whose equities are equal or superior to those of the insurer.  This doctrine is usually invoked in the context where the insurer is seeking to subrogate against third parties who are not other insurers. Cases against parties who were not the original tortfeasor can be subject to this rule. 

A legal analysis of each set of circumstances is likely needed to determine whether subrogation exists. Should it exist, an origin and cause investigator must document the system and provide an opinion on the fire’s spread and additional damages incurred due to the system's failure. If the system was functioning properly, likely no cause of action against the fire protection system exists.

Fire Protection Engineering

When a fire protection system fails or a fire loss occurs, a fire protection engineer is able to amplify and refine detection, suppression system, and activation system data. Once the time stamp information is correlated, detection system information can be used to determine how large the fire likely was once it was detected and what type of material was likely burning. Activation and control system timing and reporting points also become useful for determinations of when the extinguishing system was activated. Design criteria can be cross correlated to the probable effects of dampening down the fire or failure to dampen.

Detection and alarm system data can also be used by fire protection engineers for modeling purposes. Along with structural parameters, such as wall, ceiling, and floor construction, various configurations and timeframes for known system activations versus hypothetical conditions can be analyzed via computational modeling. This aids the scientific method process of fire analysis and can help reduce error and eliminate unwarranted hypotheses from consideration, refining conclusions of causality.

Thank you to co-author Jordan Everakes, Partner at Grotefeld Hoffmann.

1 S. Experience with Sprinklers, Aherns, July 2017, NFPA#USS14-REV

2 Jones v. Aetna Casualty & Surety Co., supra, 26 Cal.App.4th at p. 1724; Rokeby–Johnson v. Aquatronics International., Inc. (1984) 159 Cal.App.3d 1076, 1084.

 

Not Merely Ministerial: What Tocci Means for Owners and Contractors

August 1, 2022 • Source: Stephanie Bendeck, Esq., Melick and Porter, LLP

The Supreme Judicial Court made waves in the Massachusetts construction world on June 7, 2022, when it construed the Prompt Payment Act (G.L. c. 149, § 29E) for the first time. Under the decision in Tocci Bldg. Corp. v. IRIV Partners, LLC, 101 Mass. App. Ct. 133 (2022), project owners processing applications for periodic progress payment must strictly comply with the Act’s requirements, and the failure to do so can be costly. Applications for payment, if not properly rejected pursuant to the Act and the terms of the controlling project contract, will be deemed approved by operation of law, regardless of any alleged defective work or other breaches that the project owner wished to address. Until now, rejections for payment made by owners frequently lacked a certification that the rejection was made in good faith. However, the Court concluded that the inclusion of this good faith certification is an essential requirement and not merely ministerial in nature. 

What is the Prompt Payment Act?

The Prompt Payment Act, enacted in 2010, applies to certain private construction contracts with an original contract price of $3,000,000 or more.[1]  The purpose of the Act is twofold: (1) to guarantee the prompt payment of invoices for periodic payment made by contractors, and (2) to guarantee the prompt resolution of disputes surrounding such invoices. To achieve these goals, the Act requires every construction contract to include provisions establishing reasonable time periods for submitting written applications for periodic progress payments, approving or rejecting such applications in whole or in part, and paying approved applications. The Act, as its name suggests, sets maximum time limits for completion of each of these phases. The period to submit an application for periodic payment cannot exceed 30 days. The period to approve or reject submitted applications cannot exceed 15 days, and the period to complete payment following approval cannot exceed 45 days. The contract must also establish a procedure for resolving disputes over rejected payments.

An application for progress payment under the Act is considered proper if it is in writing and submitted pursuant to the terms and conditions of the applicable contract. After receipt of a proper application for payment, the owner is required to provide approval or rejection under the Act. If an owner is opting to reject the application, then the Act requires that such rejection be (1) made in writing; (2) include a factual and contractual basis for the rejection; and (3) and be certified as having been made in good faith. Following the rejection, the parties must submit the rejection to the applicable dispute resolution procedure under the construction contract. Commencement of the dispute resolution process cannot be delayed more than 60 days after the rejection.

What is the Prompt Payment Act?

The Prompt Payment Act, enacted in 2010, applies to certain private construction contracts with an original contract price of $3,000,000 or more.[1]  The purpose of the Act is twofold: (1) to guarantee the prompt payment of invoices for periodic payment made by contractors, and (2) to guarantee the prompt resolution of disputes surrounding such invoices. To achieve these goals, the Act requires every construction contract to include provisions establishing reasonable time periods for submitting written applications for periodic progress payments, approving or rejecting such applications in whole or in part, and paying approved applications. The Act, as its name suggests, sets maximum time limits for completion of each of these phases. The period to submit an application for periodic payment cannot exceed 30 days. The period to approve or reject submitted applications cannot exceed 15 days, and the period to complete payment following approval cannot exceed 45 days. The contract must also establish a procedure for resolving disputes over rejected payments.

An application for progress payment under the Act is considered proper if it is in writing and submitted pursuant to the terms and conditions of the applicable contract. After receipt of a proper application for payment, the owner is required to provide approval or rejection under the Act. If an owner is opting to reject the application, then the Act requires that such rejection be (1) made in writing; (2) include a factual and contractual basis for the rejection; and (3) and be certified as having been made in good faith. Following the rejection, the parties must submit the rejection to the applicable dispute resolution procedure under the construction contract. Commencement of the dispute resolution process cannot be delayed more than 60 days after the rejection.

What Happened in Tocci?

The issue in Tocci was whether IRIV Partners, LLC (“IRIV”) and Boston Harbor Industrial Development, LLC (“BHID”) wrongfully withheld payments in response to seven applications for periodic payment submitted by Tocci Building Corporation.  Tocci also asserted other claims, and BHID and IRIV asserted counterclaims against Tocci, but those other claims were not decided at the summary judgment stage. The trial court ruled that BHID and IRIV could not postpone issuing payment to Tocci until those other claims were ultimately resolved. Rather, Tocci’s submission of applications for payment triggered an obligation to either accept or reject them promptly, and to do so in compliance with the statutory requirements in the Prompt Payment Act. Because BHID and IRIV had not complied with those requirements, the trial court ruled that the payments had been wrongfully withheld.  On appeal, the Supreme Judicial Court agreed.

The first step of the Court’s analysis focused on the terms of the contract. In any construction contract dispute, the issues will almost always be framed by and analyzed under the four corners of the contract itself. The Court then examined whether each application for payment was properly submitted, and whether the rejections of those applications complied with the Act.

Timing was also a critical component. The Court considered whether IRIV issued its rejections prior to the date that payment was due. It also examined whether IRIV included a contractual or factual explanation for the rejection, and whether IRIV included a certification that the rejection was made in good faith.

Finally, the Court was not convinced that the requirement of a good faith certification accompanying all rejections for payment could be ignored. The Court pointed out that complex construction projects frequently contain mounds of communications between the owner and the contractor, including communications relating to payment and compliance with the contract. The certification requirement helps to ensure that the owner is making a measured, deliberate decision to reject the application, and that it is acting in good faith. The presence of the certification of good faith in the rejection definitively shows the contractor that the application has been rejected, that a response from the contractor is needed, and that the contractor has limited time to avail itself of any remedies under the terms of the contract. 

After finding that IRIV had not complied with these requirements, the Court affirmed the entry of partial summary judgment in Tocci’s favor. 

What This Means for Owners and Contractors

Owners can still make claims against contractors for breach of contract, defective work, and any other claims that may arise during the course of the project. What an owner cannot do is withhold a periodic progress payment in response to an application without issuing a statutorily compliant, timely rejection. Thus, if an owner has claims for breach of contract or defective work and seeks to deny payment on that basis, then the owner must comply with the Act and include those claims as part of its reasoning in denying the application. Otherwise, the application for payment will be deemed approved by operation of law, leaving owners with the costly recourse of attempting to recoup their damages in court, after issuing payment for work they do not consider worthy of payment. Here is a checklist to make sure that the Act is being complied with: 

Does the Act Apply?

  1. Is this a contract for a private entity? (i.e., not a public entity such as a State government, Federal government, any governmental agency, public school, etc.). If yes, then go to 2.
  2. Is the original price of the contract for the work to be performed $3,000,000 or more? If yes, then go to 3.
  3. Is the work for a commercial property, or for a residential property consisting of more than 4 dwelling units? If yes, then the Act applies.

Handling of Applications for Periodic Progress Payments

  1. Have a copy of the contract. Remember, the terms of the contract always control but they cannot go beyond what the Act allows. Any provisions in the contract that go beyond what the Act allows are void and unenforceable.
  2. Review the contract for the time period to submit the application for periodic progress payment.
  3. Ensure that the application for periodic progress payment is in writing and sent to the appropriate contacts outlined in the contract and within the period required by the contract. The Act allows up to 30 days.
  4. Once the written application for periodic progress payment is received, then the owner must approve or deny the request. Check the contract for the time that an owner must issue its approval or denial. The Act allows up to 15 days.

Approved Applications for Periodic Progress Payments

If approved, then the owner must issue payment under the time allowed under the contract. The Act allows payment to be made up to 45 days after approval.

Denied Applications for Periodic Progress Payments

An owner who thinks the application should be rejected must do all of the following:

  1. The rejection must be in writing.
  2. The rejection must include a factual basis. In other words, explain the facts and circumstances supporting the rejection.
  3. The rejection must include a contractual basis. Include the specific terms from the contract that are the basis for rejecting the application. The best practice is to specifically cite the terms in the contract. If any rights under the contract are being asserted, then those rights and the terms on which they are based should also be specifically cited.
  4. Include a certification that the rejection is being made in good faith. Good faith means that the rejection is made after careful review and done with an honest belief or purpose, not fraudulent intent.

If any of the above elements are missing, then the rejection is deemed approved under the Act. 

After an Application is Rejected

The parties must refer back to the contract to determine the designated method of dispute resolution for a rejected application. Dispute resolution must be commenced within the time frame specified by the contract. The Act allows up to 60 days following rejection.

Stephanie Bendeck is an attorney in the Boston office of Melick & Porter, LLP. She and the rest of the team at Melick & Porter assist construction professionals with navigating complex construction defect claims, contractual issues, and injury claims. Ms. Bendeck is licensed in both the Commonwealth and Florida. https://www.melicklaw.com 

 

Motor Carriers Will Need to Learn the ABCs of AB 5

August 1, 2022 • Source: Jaion Chung, Poole Shaffery, LLP

On June 30, 2022, the U.S. Supreme Court denied a petition by the California Trucking Association (“CTA”) that sought to reverse the Ninth Circuit’s ruling that California’s Assembly Bill 5 (“AB 5”) was not preempted by federal law as it applied to truck drivers. The decision by the U.S. Supreme Court effectively deems California’s AB 5 applicable to independent owner-operators providing trucking services for motor carriers.

AB 5 is a California statute that uses the “ABC” test to define who is qualified to be independent contractors. Essentially, the “ABC” test provides that all workers should be considered a company’s employees unless they can satisfy the following three prongs: (A) free from the control and direction of the hiring entity, (B) performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. Given the nature of the work by independent owner operators, it is basically impossible for owner-operators to satisfy prong “B” (and thus be deemed independent contractors) as they perform the same work as motor carriers. 

With this denial by the U.S. Supreme Court, the preliminary injunction against the implementation of AB 5 against motor carriers will be lifted. According to the CTA: “In addition to the direct impact on California’s 70,000 owner-operators, who have seven days to cease long-standing independent businesses, the impact of taking tens of thousands of truck drivers off the road will have devastating repercussions on an already fragile supply chain, increasing costs and worsening runaway inflation.” As recently on July 20, 2022, truckers protested at the Port of Oakland chanting, “The cargo won’t flow / until AB-5 goes!” The port shut down operations because of the protest.

 

 

Employer Direct Negligence Actions: Martin, McQueen, and Recent Erosion of the McHaffie Rule

August 1, 2022 • Source: Kristopher M. Gould, Perrier & Lacoste, LLC

May a plaintiff maintain causes of action against an alleged tortfeasor’s employer under both vicarious liability and direct negligence (i.e., negligent hiring, training, supervision, and retention) theories, after the employer stipulates that the alleged tortfeasor was in the course and scope of employment at the time of the subject incident?   

Logic dictates concurrent claims against an employer under direct negligence and vicarious liability theories should not be allowed post-stipulation.  Once an employer stipulates that an alleged tortfeasor employee was in the course and scope of employment at the time of an accident, the employer is liable for all damages caused by the employee’s conduct.  Further, if the alleged tortfeasor employee was not negligent in causing the accident, then no amount of negligence on the part of the employer itself could make the employer liable to the plaintiff.  For example, if an employee brings a company vehicle to a complete stop at a red light and is subsequently rear-ended by a plaintiff, fault should rest with the plaintiff alone.  Allegations that the employer hired an employee with a bad driving record or failed to provide required training to the employee would be irrelevant because those allegedly negligent acts by the employer could not be proximate causes of the rear-end accident.1 

The rule that an employer's admission of vicarious liability for an employee's negligence bars a plaintiff's direct negligence claims against the employer is often referred to as the “McHaffie Rule,” named for the Missouri Supreme Court’s opinion in McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995).  Though the McHaffie Rule is a majority view, its support is eroding.  In the past few months, state Supreme Courts in Illinois and Louisiana reached the opposite result, holding plaintiffs may simultaneously pursue direct negligence and vicarious liability claims against employers, despite course and scope stipulations.  See McQueen v. Green, 2022 IL 126666, ____ N.E.3d ____, 2022 WL 1180648; Martin v. Thomas, 2021-01490 (La. 6/1/22), ____ So.3d ____, 2022 WL 2339095.  This new jurisprudence will subject employer defendants to more extensive corporate discovery and “reptile” attacks at trial designed to shift the jury’s focus away from the facts of the accident at issue.   

On June 29, 2022, the Louisiana Supreme Court issued a ruling in Martin v. Thomas, holding a plaintiff can maintain claims against and employer under both vicarious liability and direct negligence theories even if the employer has stipulated to the course and scope of employment.  Martin v. Thomas, 2021-01490 (La. 6/1/22), ____ So.3d ____, 2022 WL 2339095. Though Martin presented an issue of first impression for the Louisiana Supreme Court, the decision rejected a growing consensus across Louisiana’s State Courts of Appeal and its Federal District Courts that simultaneous claims post-stipulation would not be permitted.  The State Supreme Court agreed “an employer can only be liable under theories of negligent hiring, supervision, training and retention, and negligent entrustment if the employee is at fault, and that the employer cannot be liable if the employee is not at fault.”  Id. (emphasis in original).  However, the Court noted, “[t]he possibility that both the employee and employer may be at fault is not thus foreclosed or “subsumed” and “if fault is shown on the part of an employee, then the issue of whether there is fault on the part of the employer remains an open question which must be decided according to the evidence on a case by case basis.”  Id. (emphasis in original).   

Two months earlier, on April 21, 2022, the Illinois Supreme Court issued its ruling in McQueen v. Green, holding “so long as a good-faith factual basis exists for a plaintiff’s claim of direct negligence against an employer, the plaintiff should be allowed to pursue such a claim in addition to a claim of vicarious liability.”  McQueen v. Green, 2022 IL 126666, ____ N.E.3d ____, 2022 WL 1180648, ¶ 43.  The Court reasoned “A potentially meritorious cause of action should not be barred simply because the employer acknowledges vicarious liability for its employee's misconduct in a separate cause of action.”  Id. at ¶ 45.  The Illinois Court went a step farther in McQueen than the Louisiana Court in Martin, holding “a plaintiff may seek to hold an employer responsible for its own misconduct even if the jury finds that its employee is not negligent.”  Id. at ¶ 49 (emphasis added).   

The Martin and McQueen decisions came on the heels of the Colorado General Assembly’s 2021 legislative reversal of the Colorado Supreme Court’s “holding in Ferrer v. Okbamicael, 390 P.3d 836 (Colo. 2017), that an employer's admission of vicarious liability for any negligence of its employees bars a plaintiff's direct negligence claims against the employer.” Colo. Rev. Stat. § 13-21-111.5 (effective 9/7/2021).

To claw back the McHaffie Rule defense where Courts allow simultaneous claims and protect the defense where they are excluded, employers’ counsel should refocus on the public policy arguments favoring application of McHaffie rule.

In McHaffie, the Court emphasized public policy rationale ranging from judicial efficiency, confusion of the issues, and – perhaps most significantly – the danger of unfair prejudice through improper allocation of fault, if a plaintiff were allowed to bring the claims simultaneously post-stipulation. 

Vicarious liability or imputed negligence has been recognized under varying theories, including agency, negligent entrustment of a chattel to an incompetent, conspiracy, the family purpose doctrine, joint enterprise, and ownership liability statutes. If all of the theories for attaching liability to one person for the negligence of another were recognized and all pleaded in one case where the imputation of negligence is admitted, the evidence laboriously submitted to establish other theories serves no real purpose. The energy and time of courts and litigants is unnecessarily expended. In addition, potentially inflammatory evidence comes into the record which is irrelevant to any contested issue in the case.

* * * *

it is possible that an employer's negligent hiring or negligent entrustment of a vehicle to an employee would result in assessment of a greater percentage of fault to the employer than is attributable to the employee. That is plainly illogical. It is little wonder that these cases are and properly should remain cited as contrary to “the overwhelming weight of authority.”

McHaffie, 891 S.W.2d at 826, 827 (emphasis added) (citations omitted)

The Court in Ferrer expanded on the risk of improper allocation of fault if the separate theories against employers are allowed to proceed simultaneously.

[T]here is a danger that a jury will assess the employer's liability twice and award duplicative damages to the plaintiff if it hears evidence of both a negligence claim against an employee and direct negligence claims against the employer. This is incompatible with the theory of respondeat superior liability, in which the liability of the employer (upon acknowledgement of a respondeat superior relationship) is fixed by the amount of liability of the employee, and the plaintiff's comparative fault does not differ based on the number of defendants. The McHaffie rule prevents the fault of one party from being assessed twice and thereby avoids a “plainly illogical” result.

Ferrer, 390 P.3d at 845 (citations omitted).

Further, allowing plaintiffs to proceed with direct negligence claims against an employer can be unfairly prejudicial to the alleged employee tortfeasor. The Maryland Court of Appeals provided an example and analysis in Houlihan v. McCall.

When called by the plaintiffs, Houlihan admitted that on November 4, 1948 he was convicted of exceeding fifty miles per hour in one of his employer's trucks, failing to drive in the designated lane, and failing to have his chauffeur's license in his possession. The court declined to strike out his answer. He also testified that he told the plant manager about these convictions. The answer might have some probative force as one of a chain of circumstances tending to prove a habit of recklessness known to the employer, although it was irrelevant to establish negligence at the time of the accident. Where a driver's known incompetence is in issue, the exclusionary rule must yield, no doubt, to the necessity of permitting proof of previous misconduct. But where agency is admitted it can serve no purpose except to inflame the jury.

Houlihan v. McCall, 197 Md. 130, 140, 78 A.2d 661, 666 (1951) (emphasis added).

The U.S. District Court for the District of Columbia reached a similar result in Hacket v. Washington Metropolitan Area Transit Authority, ruling the plaintiff “should not be allowed to proceed on these alternative theories of liability where, as here, agency has been conceded because it would be unfairly prejudicial to the defendant. Hackett v. Washington Metro. Area Transit Auth., 736 F. Supp. 8, 9 (D.D.C. 1990). The Hackett court specifically addressed the admissibility of the employee’s past driving record, noting it would have been admissible to prove negligent entrustment, but would not be admissible to prove a respondeat superior claim and admission of the driving record would be unfairly prejudicial to the employee.

Time will tell if other states following Louisiana, Illinois, and Colorado, in moving away from the McHaffie rule. A focus on public policy issues may hold the key for preventing further erosion of this defense.

1 An exception to this rule should exist for negligent maintenance claims. Consider the same example, but assume the company vehicle did not have working brake lights. The plaintiff may not have stopped in time because the company vehicle’s brake lights did not activate when approaching the traffic light. Under those facts, the employee may be free from fault, but fault could be shared between the plaintiff as the rear-ending motorist and the employer for failing to maintain its vehicle with working brake lights.

 

DeCaro, Doran, Siciliano, Gallagher & DeBlasis Success in the Courtroom

July 29, 2022  Source: DeCaro, Doran, Siciliano, Gallagher & DeBlasis

With the courts in the mid-Atlantic region rapidly reopening post-pandemic in 2022, the attorneys of DeCaro Doran have achieved a series of favorable results for their clients in litigation.

Chris Dunn secured a defense verdict for a major national retailer after a 5-day jury trial in Anne Arundel County, Maryland Circuit Court.  As a result of a parking lot incident, the Plaintiff was rendered a permanent quadriplegic confined to a nursing home for the remainder of her life.  The Plaintiff boarded almost $7 million in medical expenses in addition to pain and suffering.  Chris obtained a unanimous verdict for the Defendant.

Tom Doran and Anne Marie McGinley also obtained a defense verdict in medical malpractice trial against a general surgeon in Prince George’s County, Maryland.  Plaintiff claimed injury to her ureter during right hemicolectomy surgery for removal of colon cancer mass, which resulted in Plaintiff’s loss of kidney.  The allegation was that the surgery should not have been anywhere near the location of the distal ureter which was missing a 3 cm length when discovered after the patient developed hydronephrosis 4-5 weeks post-operatively.  Plaintiff sought $3 million in damages, but the jury returned a unanimous defense verdict.

Mark Kohl obtained two directed verdicts in defense of motor vehicle suits in Fairfax County, Virginia.  In both 2022 cases, Mark successfully established that the Plaintiffs’ evidence was insufficient to allow the case to go to the jury, resulting in judgment for the Defendants. 

Steve Bergeron secured summary judgment in favor of his carrier in a declaratory judgment coverage lawsuit filed in the United States District Court for the Eastern District of Virginia.  The Claimants contended that the commercial vehicle policy insured a borrowed vehicle, but the court ruled that a borrowed vehicle was only insured if it was listed as a “covered auto” in the policy, which it was not.  Therefore, our client had no duty to defend and no duty to indemnify.

Nancy Goodiel received an excellent result in a stipulated liability, damages only jury trial in Alexandria, Virginia Circuit Court.  Plaintiff sustained permanent injury as a result of a motor vehicle accident and presented evidence to support his claim for damages well in excess of $300,000.  Nancy convinced the jury to limit its award to $150,000. 

Steve Parrott and Chris Gowen received a dismissal of their client, a national retailer, on the eve of trial in Baltimore City, Maryland.  The retail store along with third party security company were sued in Baltimore City for alleged mental anguish and emotional distress because a patron was stopped by a third-party male, with no affiliation to the store or the security company, who pretended to be store security by requesting the patron allow him to do a pat down of her. The patron agreed, and a nine second pat down occurred after which the 3rd party male left the store never to be seen or heard from again. On the eve of trial the Plaintiffs dropped their demand by 70% and reached a settlement with the Co-Defendant security company.  Our client paid nothing and was dismissed with prejudice.

Lauren Rutkowski has had defense verdicts in four heavily contested cases this year in Prince George’s County, Howard County, and Baltimore City Maryland courts.  Two were traffic suits in which Lauren prevailed on contributory negligence and the weight of the evidence. The third was a premises case in which Lauren discredited Plaintiff’s medical causation expert to the point of defeating the entire claim.  Lastly, she succeeded in a breach of contract case by establishing that the Plaintiff was not credible on his claims.

Rebecca Schlisler-Adams secured three defense verdicts in three separate non-jury trials in Montgomery County, Baltimore County, and Frederick County, Maryland District Courts.   The first two cases involved property damage claims in which settlement offers were made and rejected.  The third case was a contested motor vehicle accident suit alleging injuries from a significant automobile collision.  In all three cases, Rebecca convinced the trial judge that her client was not negligent. 

 
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