"But I didn't do it!": Expanding Theories of Vicarious Liability[dagger]

FDCC Quarterly, Summer 2008 by Franklin, Robert T

Similarly, as illustrated by Puckrein, even shippers may be faced with liability for acts of motor carriers they retain. Accordingly, shippers should also carefully re-examine their policies and procedures with regard to the selection of the motor carriers with whom they contract. At the very least, shippers should strive to confirm that the motor carriers meet minimum legal standards for authorized carriers and utilize drivers and equipment that comply with such standards. Moreover, as in the case of brokers, such action on the part of shippers will require additional time and increase costs. Once again, however, those costs should be offset by the potential liability that the efforts help avoid.

It is clear that plaintiffs' attorneys will forever be attempting to come up with creative theories of liability and ways to involve any "deep pocket" in a given claim. Moreover, judges are all too often their willing accomplices in that regard, frequently seeming to make rulings premised upon sympathy to plaintiffs rather than an application of the law. As a result, fleet operators and their insurers need to be ever mindful of the various types of vicarious liability theories so they can plan accordingly. While one can never anticipate every potential liability theory or factual scenario, careful planning and the implementation of "best practices" can help fleet operators and their insurers minimize that exposure. While such efforts will require the investment of time and other resources, these efforts may serve to save many times the costs that could be incurred if those efforts are not undertaken.

[dagger] Submitted by the author on behalf of the FDCC Transportation section.

1 See, e.g., St. Paul Fire & Marine Ins. Co. v. Frankart, 370 N.E.2d 1058 (Ill. 1977).

2 49 C.F.R. § 387.9 (2007).

3 See, e.g., Schramm v. Foster, 341 F. Supp. 2d 536 (D. Md. 2004); Smith v. Spring Hill Integrated Logistics Mgmt., Inc., 2005 WL 2469689 (N.D. Ohio Oct. 6, 2005).

4 Puckrein v. ATI Transp., Inc., 897 A.2d 1034 (N.J. 2006).

5 Majestic Realty Assocs., Inc. v. Toti Contracting Co., 153 A.2d 321 (N.J. 1959).

6 E.g., Pusey v, Bator, 762 N.E.2d 968 (Ohio 2002).

7 Majestic Realty Assocs., 153 A.2d 321.

8 E.g., Albain v. Flower Hosp., 553 N.E.2d 1038 (Ohio 1990).

9 Rubbo v. Hughes Provision Co., 34 N.E.2d 202 (Ohio 1941).

10 See Shaffer v. Acme Limestone Co., Inc., 524 S.E.2d 688, 701 (W.Va. 1999).

11 E.g., Smith v. Spring Hill Integrated Logistics Mgmt., Inc., 2005 WL 2469689 (N.D. Ohio Oct. 6, 2005).

12 341 F. Supp. 2d 536 (D. Md. 2004).

13 See USAir, Inc. v. United States Dept. of the Navy, 14 F.3d 1410, 1412 (9th Cir. 1994); CGU Int'l Ins., PLC v. Keystone Lines Corp., 2004 WL 1047982, *3 (N.D. CaI. May 5,2004); Schramm, 341 F. Supp. 2d at 551.

14 See CGU Int'l Ins., 2004 WL 1047982 at *3.

15 See id.

16 49 C.F.R. §§ 391.01-391.49 (2007).

17 Id. §382.301.

18 Id. § 390.9.

19 CGU Int'l Ins., 2004 WL 1047982 at *3.

20 Id.

21 Schramm v. Foster, 341 F. Supp. 2d 536, 551-52 (D. Md. 2004) (citations omitted).