Negligent Hiring and Entrustment 8/6/14

NEGLIGENT HIRING/ENTRUSTMENT
AND THE RESULTING PUNITIVE DAMAGES
Don’t take the negligence lightly
August 6, 2014
Today’s Webinar is Brought To You By:
Guest Speaker
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Doug Marcello
Marcello and Kivisto
Background:
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• Represents transportation companies across the country.
• In practice over 30 years in Central PA.
• Trial Counsel in 35 states.
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Bar Admissions:
• Pennsylvania—1982
• U.S. Court of Appeals 3rd Circuit—1993
• U.S. District Court for the Middle District of Pennsylvania—1982
• U.S. District Court for the Eastern District of Pennsylvania—2003
Guest Speaker
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Kevin Rettberg, COO/EVP
Encompass Risk Solutions
• Program administrator of PETRO Trust & ETRRG
• Transportation consultant to several reinsurance and
excess carriers
• 15 years licensed within Property & Casualty
• Held almost every position within the industry:
program manager/buyer, risk manager, claims
adjuster/manager, trainer, direct writer, and broker.
• Member of TAIC, PMTA
Our Discussion Topics
• What is Negligent Hiring and Entrustment
• What is Negligence vs Punitive?
• Why you need to understand the Reptile?
• Where is it being applied?
• Recent court verdicts to consider
• What can be done to insulate your company?
Negligent Hiring & Entrustment
• Driver qualifications and negligent supervision,
driver training, and driver hiring claims
• Extension of liability to brokers
• Large verdicts and punitive damage situations
Negligent Entrustment
(extension of liability to brokers and intermediaries)
Negligent entrustment is a cause of action in tort law that
arises where one party (Trucking Co. or Broker) is held liable for
negligence because they negligently provided another party (the
Co. Driver or Owner Operator) with a dangerous instrumentality,
and the entrusted party caused injury to a third party with that
instrumentality.
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“Should have known or failed to appreciate driver lack of ability.
If company knew driver was unqualified, could give rise to
punitive.”
Example of Negligent Entrustment
When a company negligently allows a driver to operate a:
• Company car, plane, or CMV
• A tractor, forklift, or crane
• Any heavy equipment
Negligent Entrustment
Negligent entrustment
implies a company knew,
or should have known,
that it put an unsafe
driver behind the wheel
of a vehicle.
Negligence Is……
Negligence - a legal wrong committed when
somebody causes injury by failing to exercise the
proper level of care. For negligence to exist, the actor
must have some duty to exercise care towards a
specific person, or class of people. They must then fail
to meet that duty, and that failure must cause injury.
The level of care required is generally defined as that
which would be exercised by a "reasonable person",
exercising "ordinary care"
Still, How is the Co/Driver
Negligent?
• The owner company entrusted the vehicle to the driver
or knew the person was driving on behalf of the
company.
• The driver was unlicensed, incompetent, or reckless.
• The owner company knew or should have known that
the driver was unlicensed, incompetent, or reckless.
• The driver was negligent in the operation of the
vehicle.
• The driver’s negligence resulted in damages.
When are Damages Punitive?
In order for punitive damages to exist in a claim,
evidence must support that;
1. defendant has a subjective appreciation of the risk
of harm to which the plaintiff was exposed, and
2. defendant acted, or failed to act, as the case may
be, in conscious disregard of that risk.
example: a person knows or has reason to know
Punitive considerations
• Beyond compensatory damages, punitive can be
multiples of the compensatory award
• Not covered by insurance in most states
• Meant to punish and deter
• Providing for non economic damages
Understanding the Reptile?
The Book’s objective:
Learn how to make tort reform’s impact on
juries insignificant by using the jurors’ most
primitive instincts of safety and selfpreservation. This book is highly
recommended and the research and
methods found inside have made it a must
read for every trial lawyer.
We all deal with fear, don’t we?
• What if I lose my job?
• What if I lose my house?
• What if my car breaks
down?
• What if I can’t pay for
food?
Understanding the Reptile?
What does that mean?
1. Plaintiff attorneys want jurors to feel as they they are in
danger.
2. The defendants actions are a threat to the jurors safety and
everyone else.
3. The focus is not on the facts; rather, the jurors emotions and
fragile state.
Reptile applications since 2009
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Peter Weinberger of Spangenberg Shibley & Liber LLP (OH) obtained a $2,700,000 jury verdict in a med mal case. Peter says the case was a classic
example of how the Reptilian theories and the emphasis on patient safety and patient rights carries the day.
Akim Anastopoulo, Eric Poulin, and Roy Willey of Anastopoulo Law Firm LLC (SC) received a record $50,000,000 verdict for a motor vehicle death case.
Grady Chandler of Law Offices of Grady Chandler (TX) received a $1,000,000 settlement in a slip & fall case
Curtis Marsh of the Law Firm of Curtis Marsh (TX) obtained a $1,830,000 verdict utilizing the Reptile/Ball on Damages 3
Ricardo Garcia of Garcia Ochoa Mask (TX) received a $1,350,000 verdict. Pretrial offer was $80,000
Lauren Fraser of Laddey, Clark, & Ryan (NJ) reported a $19,300,000 verdict for a MIST case against Geico. The day of trial, Geico’s offer was only
$150,000.
Kelly and Rob Clements of Clements & Clements (TX) obtained a $7,500,000 verdict in a crane case where they were offered $250,000.00 at mediation
and $1,300,000.00 when the jury was out. Don Keenan reviewed their case during a Reptile seminar case review session
Javan Johnson, paralegal for Erskine & McMahone, L.L.P. (TX), reported that her firm had obtained $52,446,259.01 in Reptile verdicts and settlements
since 2009
Glenn McGovern, Attorney at Law (LA) settled a motorcycle accident case for $1,395,000
Jeff Brody of Jeff Brody Injury (NY) secured a MedMal jury verdict for $1,830,000
Gary Boutwell of Anderson & Boutwell (LA) received a settlement for $3,350,000
Jason Murphy of Buttafuoco & Associates, PLLC (NY) settled a motor vehicle accident case for $1,800,000
Kelly & Rob Clements of Clements & Clements (TX) received verdicts and settlements totaling $10,600,000 in a case involving their client being
crushed by a crane with 3 different defendants
James Allen and David Semelsberger of Endeman, Lincoln, Turek and Heater (CA) received a jury verdict in the amount of $111,081,640 in a case
involving failure to maintain a mobile home park
Ray Maples of Maples Law Firm (OK) credited his $3,000,000 verdict in a nursing home death case to the Reptile
James Allen of Endeman, Lincoln, Turek and Heater (CA) received what he called a “very Reptile verdict” in the amount of $14,700,000
Sean Claggett and William Sykes of Claggett & Sykes (NV) settled a grocery store slip and fall case for $1,200,000
Sean K. Claggett, Esq. of Claggett & Sykes Law Firm (NV) reported $14,751,996 in Reptile verdicts and settlement for his firm obtained during 2012
-2013
Deborah S. Maliver, M.D., J.D. of Biancheria & Maliver, P.C. (PA) credited the Reptile with a $2,500,000 settlement.
John Cady of Cady Law Firm (MO) received a $1,100,000 verdict in a rear end collision case in which the defendants were a Baptist church and the
minister’s wife
Gary Boutwell of Anderson & Boutwell (LA) settled a case for $3,300,000 for his client who was struck from the rear by a pizza delivery driver while
riding a bicycle
David Sugarman (OR) reported 75,000,000 and $590,000,000 in two separate cases for a total of $665,000,000
Brendan Lupetin of Meyers, Evans & Associates (PA) reported that the Reptile lead a Pennsylvania Federal jury to render a $6,000,000 verdict, $5
$5,000,000,000+
So, How Do We Handle This?
Pre and Post Accident Action Plans
Defending Negligent EntrustmentPre Accident
What are you surrounding your driver with “Best in
Class?”
• Training, re-training, and more training
• Supervision- has to be there
• Sound policies and procedures (updated!!!!)
Defending Negligent EntrustmentPost Accident
• Have appropriate counsel assigned.
• Address the driver’s experience early on.
• Attempt to prohibit the past
experience of the driver. If allowed,
their entire history will be used.
• Admit Vicarious liability?
Questions?
–Thank you!