Privity and Additional Insured Coverage

Larry P. Schiffer and Suman Chakraborty | Squire Patton Boggs | October 5, 2017

When a worker is injured on a construction job and sues the relevant parties, a side battle often ensues over which carrier has the duty to defend and indemnify the owner, general contractor or subcontractor based on the language in the various construction contracts requiring some or all of those parties to be named as additional insureds. When there are multiple subcontracts cascading down

to the injured worker’s employer, determining whether the employer’s policy must defend and indemnify other parties as additional insureds can be confusing. In a recent Summary Order, which does not have precedential effect, the Second Circuit Court of Appeals weighed in on this issue under New York law.

In Cincinnati Ins. Co. v. Harleysville Ins. Co., an employee of a sub-subcontractor was injured and sued the building owner, general contractor and subcontractor. The sub-subcontractor’s construction contract with the subcontractor required the sub-subcontractor to add the subcontractor, general contractor and owner as additional insureds to the sub-subcontractor’s insurance policy. The subcontractor’s carrier sued the sub-subcontractor’s carrier arguing that the latter carrier had to defend and indemnify the additional insureds. The district court granted the subcontractor’s carrier’s summary judgment motion in part by finding that the sub-subcontractor had a duty to defend and indemnify the building owner as an additional insured, but not the general contractor. On appeal, the Second Circuit reversed in part and held that the sub-subcontractor’s carrier had no duty as neither the building owner nor the general contractor were additional insureds under the policy.

According to the court, the sub-subcontractor’s policy had 2 endorsements that addressed additional insureds. The first was the “Privity Endorsement,” which grants additional insured coverage “when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.” The second was the “Declaration Endorsement,” which refers to the declarations section of the policy for a schedule of additional insureds.

In reversing, the court held that the Privity Endorsement did not confer additional insured status on the building owner or general contractor because there was no contractual privity between them and the sub-subcontractor. Simply put, the sub-subcontractor had no direct construction contract with the owner or the general contractor. The court noted that the law in New York was clear on this point and that New York courts had interpreted the identical provision to require contractual privity. The court stated that it did not matter if the sub-subcontractor’s construction contract required the owner and general contractor to be named as additional insureds (this was a matter for breach of contract), that contract could not modify the insurance policy because the Privity Endorsement was clear on its face that the construction contract had to be between the insured and the purported additional insureds. Because the insured had no construction contract with the owner or the general contractor there was no contractual privity and no coverage.

As to the Declaration Endorsement, the court noted that neither party were listed on the schedule as additional insureds. The court also found that a reference to a heading on the Declaration Endorsement that was the same as the Privity Endorsement did not expand the additional insured coverage grant automatically to every party when required in any construction agreement with the insured. Essentially, the court refused to write the Privity Endorsement out of the insurance policy. The court held that the Privity Endorsement modified the automatic status heading language in the declarations, not the other way around. In essence, the court held under New York law that in insurance contracts that require privity for additional insured coverage, the lack of a direct contract between the insured and the party seeking the additional insured coverage precludes extending additional insured coverage.

How Utah Evaluates a Worker’s Entitlement to PTD Benefits

Ryan B. Frazier | Kirton McConkie | August 28, 2017

Have you ever thought about how the word “limit” de­fines our perceptions of and interactions with the world around us? The concept of a “limit” engenders thoughts of a bound­ary, an edge, or an end. When we say something is limited, we are suggesting that it is restricted, constrained, or regulated. Something that is limited is imperfect or incomplete. We speak of pushing things to the limit when we are going to the edge of our abilities, or we declare the “sky’s the limit” to indicate that things are unrestricted.

The word “limit” also carries an abundance of meaning when it’s used in the context of analyzing a worker’s ability to perform basic work activities and whether an injured worker is entitled to permanent total disability (PTD) benefits under Utah’s workers’ compensation statutory scheme. The way the word is used in Utah law was key in a recent decision by the Utah Supreme Court addressing whether a construc­tion worker who was injured on the job was entitled to PTD benefits.

Decision makers go back and forth

Mark Oliver was working for D. Tyree Bulloch Con­struction on March 27, 2000. While he was on a Bulloch construction site, he fell from a suspended porch and was injured. For years after the injury, he worked in a variety of jobs, including as a construction worker, landscape de­signer, and delivery truck driver. In 2007, he stopped work­ing altogether.

Several years after he was injured on the job, Oliver applied to the Utah Labor Commission for PTD benefits under Utah’s Workers’ Compensation Act. The parties presented conflicting medical and vocational evidence to the commission. Both Oliver and Bulloch had medi­cal experts who provided opinions on Oliver’s ability to work. Dr. Mark Passey opined that Oliver is able to perform “just about any activities he wishes to do.” By contrast, Dr. Jacob Corry opined that he suffers from constant attention difficulties because of his pain and is severely restricted in his ability to walk, balance, and crouch.

In addition, the parties had vocational experts who testified about Oliver’s ability to work. Oliver’s voca­tional expert testified that he likely couldn’t perform basic work activities because of his inability to concen­trate. Bulloch’s vocational expert disagreed, opining that Oliver could perform “medium-duty” work and wasn’t limited in his ability to perform basic work ac­tivities. However, Bulloch’s vocational expert conceded that if Corry’s medical opinion was correct, Oliver likely wouldn’t be able to perform basic work activities.

Because of that conflicting evidence, an administra­tive law judge (ALJ) appointed an independent medical panel to perform an impartial review of the medical evidence. The panel determined that Oliver could per­form medium-duty work as long as he was able to be absent from work occasionally, elevate his legs for five to 10 minutes every hour, and take occasional unscheduled breaks. In addition, the panel concluded that he is able to perform basic work activities. It found that he could con­centrate, commute, communicate, work, remain at work, and cope with the work setting.

The ALJ reviewed the evidence, concluded that Oli­ver was permanently totally disabled, and tentatively awarded him PTD benefits. Bulloch appealed the award of benefits, and the commission reversed the ALJ’s deci­sion on two grounds.

First, relying on the medical panel’s report, the commission concluded that Oliver failed to prove that he was limited in his ability to perform basic work activities. The commission noted that although the panel determined that he might require unscheduled breaks and occasionally need to be absent from work, it found that the “indefinite circumstances do not present a rea­sonable limitation on [his] ability to do basic work activi­ties,” particularly in light of its conclusion that he could work, remain at work, and cope with work changes. The commission also noted that being required to elevate his legs for five to 10 minutes every hour wasn’t enough to show that he was reasonably limited in his flexibility and endurance. Second, the commission disagreed with the ALJ’s determination that Oliver couldn’t perform the essential functions of his work as a delivery truck driver.

The commission denied Oliver’s claim for PTD ben­efits for two reasons:

(1) He was not limited in his ability to perform basic work activities.

(2) He was not prevented from performing the essential functions of the work for which he was qualified up to the time of his on-the-job injury.

Oliver appealed the commission’s decision to the Utah Court of Appeals, which reversed the denial of benefits. The court found that the commission misinter­preted the “basic work activities provision” of the stat­ute applicable to permanent total disabilities. The court also consulted the U.S. Bureau of Labor Statistics’ (BLS) Occupational Outlook Handbook (which wasn’t in the record as evidence during the commission proceedings) and concluded that the commission’s determination that Oliver was qualified to work as a delivery truck driver wasn’t supported by substantial evidence. The court of appeals reinstated the ALJ’s PTD benefits award. Bull­och appealed to the Utah Supreme Court.

Proving entitlement to PTD benefits

The Utah Supreme Court reversed the decision of the Utah Court of Appeals and concluded that the com­mission properly denied Oliver’s application for PTD benefits. To put the issues into context, the supreme court first explained what an employee must prove to qualify for PTD benefits. Under Utah Code Section 34A- 2-413(1), an employee seeking an award of PTD benefits must meet six factors:

(1) He sustained a significant impairment as a result of the work-related injury.

(2) He is not gainfully employed.

(3) He has an impairment or a combination of impair­ments that limits his ability to perform basic work activities.

(4) His impairment or impairments prevent him from performing the essential functions of the work for which he was qualified until the time of the accident.

(5) He cannot perform other work that’s reasonably available.

(6) The industrial accident or occupational disease is the direct cause of his permanent total disability.

The court clearly placed the burden of proving each of those elements by a preponderance of the evidence on the employee. Most of the inquiries focus on the employ­ee’s ability to work. If the employee fails to prove even one of the six elements, his claim for PTD benefits will be denied.

Pushing the limits

The Utah Supreme Court first examined the “basic work activities” element of Section 34A-2-413(1)(c)(ii). This element requires employees seeking PTD benefits to prove they have “an impairment or combination of impairments that limit [their] ability to do basic work ac­tivities.” The issue in this case was the meaning of the word “limit” as it is used in the statute.

The court of appeals maintained that employees can show a “limit” on their ability to do basic work activities by producing evidence of any limitation on their abil­ity to work, no matter how slight. In other words, even employees capable of performing basic work activities would be able to establish a claim for PTD benefits if they can show “some limitation” on their performance of basic activities.

The supreme court disagreed with the court of ap­peals’ interpretation, concluding that it was at odds with the “basic work activities” element in the statute. Looking to Provo City v. Utah Labor Commission, a case it decided in 2015, the supreme court explained that it has previously held that “basic work activities” are not just any activities performed in the workplace; rather, they are the activities that are essential to “a broad spectrum of jobs available.” In other words, they are the abilities that allow an employee to perform most jobs, including more sedentary lines of work.

The court then turned to an examination of how “limit” is used in the statute. It acknowledged that “limit” has a variety of possible meanings, but the word is not used in isolation in the statute. According to the court, it’s clear that in the context of the statute, whether an employee is “limited” in his ability to per­form basic work activities depends on whether, irrespec­tive of any impairments, he is meaningfully able to per­form the “core tasks” that are the basic requirements for employment.

Being “limited” in the ability to perform basic work activities is really a question of whether an employee has the abilities and aptitudes necessary for most jobs. If a limitation doesn’t hinder the employee from mean­ingfully engaging in the workforce, he may be limited in performing typical activities, but he isn’t limited in performing “basic” work activities. Thus, the supreme court concluded that the court of appeals incorrectly interpreted the word “limit” in the statute, and the commission correctly interpreted it.

In short, the supreme court concluded that only im­pairments that strike at the heart of the abilities and ap­titudes necessary for most jobs actually limit an employ­ee’s ability to do basic work activities. In other words, an impairment must meaningfully inhibit an employee from performing the core tasks of a wide swath of jobs, making it unreasonable for an employer to ask the em­ployee to perform those tasks.

The supreme court noted that interpretation isn’t consistent with federal disability law. However, federal law doesn’t govern the interpretation of the word “limit” as it’s used in the state’s workers’ comp law. Applying its interpretation, the supreme court concluded the com­mission’s determination that Oliver failed to satisfy the basic work activities element was supported by substan­tial evidence.

Analyzing the essential functions provision

The Utah Supreme Court also analyzed the essen­tial functions provision of the statute when it considered Oliver’s application for PTD benefits. Under the statute, an employee must show that his impairments “prevent [him] from performing the essential functions of the work activities for which [he] has been qualified until the time of the industrial accident.” The commission found that Oliver failed to prove that his impairments prevented him from performing the “essential func­tions” of a delivery truck driver, a job he was qualified to perform at the time of his work-related accident.

The court noted that an employee merely has to present evidence that the only job he is qualified to perform is the job he held at the time of the injury. However, an employer can counter that evidence with proof that the employee is qualified for another job (in this case, deliv­ery truck driver). The employee must then respond with evidence that he cannot perform the essential functions of that position. Oliver couldn’t do that. Accordingly, the court concluded that he failed to meet his burden on the essential functions element of the statute.

The supreme court also noted that the court of ap­peals shouldn’t have considered information about the qualifications of delivery truck drivers from the BLS that wasn’t on the record before the commission. The su­preme court upheld the denial of Oliver’s application for PTD benefits. Oliver v. Utah Labor Commission, Workers’ Compensation Fund, 2017 UT 39 (Utah July 25, 2017).

Lessons learned

This case illustrates that under Utah’s workers’ comp statute, an employee will be entitled to PTD ben­efits only if he is limited in the abilities and aptitudes necessary to perform most jobs. When confronted with a claim for PTD benefits, you should focus on whether the employee has the ability to perform the basic job duties—i.e., the core functions—of the majority of jobs, including sedentary jobs. If you concentrate on satisfy­ing that standard, you will be better able to defeat over­reaching claims for PTD benefits.

Even When You Win, You Lose: Subcontractor’s Indemnity Obligation Enforced Despite Being Absolved of Liability at Trial

Scott Murphy | Barnes & Thornburg | July 25, 2017

In Provenzino v Macomb County2017 WL 104544 (Mich. App. 2017), the Michigan Court of Appeals reversed the trial court’s decision to dismiss a general contractor’s claim for indemnity where the plaintiff’s allegations arose “in any way” from the subcontractor’s work. The appeals court reasoned that the broad indemnity language of the parties’ agreement encompasses indemnification for the subcontractor’s conduct regardless of whether the subcontractor is foundactually negligent.

The case arose from a severe motorcycle accident in Macomb County, Michigan, during a construction project on Harper Avenue that included asphalt resurfacing and concrete reconstruction. Florence Cement Company (Florence) was the general contractor and Lois Kay Contracting Company (Lois Kay) was the asphalt subcontractor. The plaintiff was severely injured while heading southbound on Harper Avenue traveling at about 20 miles an hour; he saw friends in a local bar and attempted to turn into the parking lot. When the plaintiff turned, he encountered a 4-inch rise from the new asphalt resurfacing and lost control of his motorcycle. Plaintiff brought claims against both Florence and Lois Kay for negligence. Pursuant to its subcontract agreement with Lois Kay, Florence asserted cross-claims against Lois Kay for contractual indemnity.

The indemnity provision contained in the subcontract was broad and shifted a great deal of responsibility to the subcontractor. In pertinent part, it stated:

INDEMNIFICATION: Subcontractor agrees, and shall bind all sub-subcontractors to agree to indemnify Contractor, Owner and all other parties the Contractor is obligated to indemnity pursuant to the Prime Contract (hereinafter “Indemnities”), and to defend and hold Indemnities forever harmless from and against all suits, actions, legal and administrative proceedings, claims, demands, damages, interest, attorneys’ fees, costs and expenses of whatsoever kind or nature whether arising before or after completion of Subcontractor’s work and in any manner directly or indirectly caused or claimed to be caused by any action or negligence of Subcontractor of Sub-subcontractor, and regardless of whether directly or indirectly caused or claimed to be caused in part by a party indemnified hereunder or by anyone acting under their direction, control or on their behalf, until such time as a judgment is entered against Contractor by a court of law.

At the trial court level, Lois Kay filed a motion for summary disposition, arguing that Florence was solely negligent because plaintiff’s allegations revolved around signage, barricades, ramps, clean-up and warnings in general, and not because of Lois Kay’s milling the road surface. Relying upon Michigan’s anti-indemnity statute, Lois Kay argued that MCL § 691.991 applied and prohibited Florence from seeking indemnity for its sole negligence. The trial court agreed and dismissed the general contractor’s indemnity claim.

Cause of the injury

The Court of Appeals focused on whether the plaintiff’s injury arose from Lois Kay’s conduct. In order to make this determination, the court focused on the allegations that the plaintiff “was confronted by unclearly marked signage/cones/barrels, etc.,” as well as a differential in height of approximately inches in the asphalt. According to the plaintiff, these unreasonably dangerous conditions caused him to lose control of his motorcycle.

In construing the indemnity provision against these allegations, the appeals court examined the language of the contract according to its plain and ordinary meaning to determine whether plaintiff’s alleged injuries arose out of the subcontractor’s conduct. In reaching its decision, the court explained:

The case was not just about signage, barriers and warnings, which fell within Florence’s scope of work. Rather, plaintiff’s broad allegation that the combined defendants created an unreasonably dangerous condition included the height differential, which was the result of Lois Kay’s work. The issue is not whether Lois Kay was actually negligent; the issue is whether plaintiff’s allegations arose “in any way” from Lois Kay’s work, thereby triggering the indemnification provision.

This case illustrates the importance of paying close attention to the indemnity provisions of your contract. The failure to negotiate a fair and reasonable indemnity provision could leave you in the same position as Lois Kay – paying for the legal defense of the general contractor even when you have been absolved of liability at trial.

Connecticut Appellate Court Addresses Trigger, Allocation, Exclusions, and Other Issues of First Impression in Coverage Litigation Over Long-Latency Asbestos Injury Cases

John C. Pitblado | PropertyCasualtyFocus | June 2, 2017

Connecticut’s intermediate appellate court addressed a number of novel issues in a wide-ranging opinion regarding primary and excess insurers’ respective duties to defend and indemnify their common insured for long-tail asbestos-related injury claims.

The opinion was rendered unanimously and authored collectively by the three-judge panel of Robert Beach, Douglas Lavine, and Stuart Bear (ret.). The case, styled R.T. Vanderbilt Company, Inc. v. Hartford Accident and Indemnity Co., 171 Conn. App. 61 (2017), was brought as a declaratory judgment action by plaintiff, R.T. Vanderbilt Company, Inc. (later substituted by Vanderbilt Minerals, LLC, its successor) (“Vanderbilt”), which was engaged in the mining and sale of various mineral products. Vanderbilt’s subsidiary produced industrial talc from 1948 through 2008. Over the past several decades, thousands of underlying cases were filed against Vanderbilt throughout the United States alleging asbestos-related injuries arising from exposure to the talc, which the underlying plaintiffs allege (and Vanderbilt denies) contained asbestos. Vanderbilt claims its insurers breached their obligations to defend and indemnify Vanderbilt for these underlying actions.

Vanderbilt sued its primary general liability insurers that issued (or may have issued) policies between 1948 and 2008. One of the primary insurers filed a third-party complaint against various umbrella and excess insurers, against whom Vanderbilt then filed direct claims. Ultimately, approximately 30 insurers, including both primary and excess carriers, were named as defendants.

The trial court, Connecticut’s Complex Litigation Docket (Shaban, J.), bifurcated trial into four phases. After trial of the first two phases, the parties filed interlocutory appeals and cross-appeals, challenging approximately 20 of the trial court’s rulings. In a wide-ranging opinion of more than 100 pages, the appellate court addressed each of the questions, reversing on some, and affirming on others.

The principal rulings are grouped into the following categories: trigger of coverage, coverage for periods when insurance was unavailable, allocation of defense and indemnity obligations, and application of policy exclusions.

Trigger of Coverage

The court considered when injury should be said to “occur” in order to trigger coverage, where the injury is a long-latency disease such as asbestosis that does not manifest until years, or sometimes decades after exposure to a toxic agent. Unlike dog bites or car accidents, where the date of the occurrence is seldom in doubt, asbestos-related injuries are more difficult to pin down. Consider for example, the court’s hypothetical query of which event along a chain should be considered the “occurrence” date: (1) year one, when a claimant is exposed to asbestos (termed ‘exposure’ or ‘initial exposure’ trigger); (2) year 15, when malignancy emerges (‘injury-in-fact’ trigger); (3) year 20, when disease manifests or is diagnosed (‘manifestation’ trigger); or (4) every year one-through-20 (‘continuous’ trigger)? The court also considered whether the question of trigger theory was one of fact, or purely of law.

The court first surveyed Connecticut precedent, and found that trigger theory remains an open question with respect to long-latency injury like asbestosis. Then, in declaring the issue a question of law, the court held that the trial court appropriately excluded expert testimony on the issue. The court then surveyed precedent from other jurisdictions and adopted what it declared the majority view – the “continuous trigger” approach – after citing and analyzing the competing public policy concerns underlying decisions in favor of various of the trigger theories. It therefore affirmed the trial court on this point.

Unavailability of Insurance

The court also addressed the question of how to allocate coverage responsibility among the insurers and policyholder for periods where the policyholder is effectively self-insured. The court reviewed Connecticut precedent applying the pro-rata allocation method, which allocates coverage responsibility among insurers based on ‘time on the risk’ and allocates it to the policyholder for periods where it was uninsured, or lost its insurance policies. The court determined that prior precedent did not address an “unavailability” exception to the general rule that the policyholder bears the risk for periods when it was not insured, and reversed the trial court’s finding that the policyholder should bear the risk when coverage was unavailable, siding with the “narrow majority” of jurisdictions that include an “unavailability exception” to pro rata allocation. The court rejected the insurers’ arguments that forcing them to insure for periods where they did not write policies or collect premiums is unfair, finding that countervailing issues of public policy outweighed the insurers’ concerns.

The court also addressed the problem posed by pre-1962 liabilities, insofar as Vanderbilt was either uninsured or could not locate copies of its policies from 1948-1962. Here, the issue pitted the group of primary insurers against the group of excess/umbrella insurers. This is because the primary insurers agreed, as part of a side-track settlement between them in 2002, to allocate pre-1962 liabilities among the primary insurers whose policies (at least those that had been discovered) only covered the period after 1962. The trial court adopted the settlement agreement methodology, despite its inconsistency with the time-on-the-risk allocation method. The excess insurers argued that this method improperly caused the pre-1962 primary policies to be prematurely exhausted, thereby unfairly exposing the excess insurers during that period. The trial court nevertheless adopted the method, and the appellate court agreed, affirming on this point.

Default Date of Injury

The court next considered what default date should be applied where neither the underlying pleadings, nor extrinsic facts learned through discovery or otherwise, revealed when the underlying claimant was first exposed to a toxic agent. Here, the court remanded to the trial court for further proceedings, with instructions to explore certain relevant fact issues that would impact the viability of a statistical method to determine a reliable “average” default date of injury, based on data from injuries whose date of origin was identifiable, that could be used as a default beginning date under the continuous trigger theory.

Allocation of Defense and Indemnity Obligations

The court considered, in light of its other rulings, how to allocate defense and indemnity obligations to the insured and insurers, respectively. It held that insurance was “unavailable” to Vanderbilt post-1986, when asbestos was carved out of insurers’ coverage based on the massive exposures that began to manifest in and around that time. Thus, based on the unavailability exception, it affirmed the trial court’s decision to exclude the post-1986 period in the allocation. Vanderbilt likewise argued that the pre-1962 period should be excluded, insofar as the insurers failed to prove that insurance was available – and that Vanderbilt chose not to avail itself of it – during that period. The court disagreed, finding that coverage was available to Vanderbilt, but that Vanderbilt failed to prove it availed itself of that coverage. Therefore, it allocated the pre-1962 period to Vanderbilt (as well as a brief period in the 1970’s when it apparently let coverage lapse for a couple months), and the post-1962 period, including post-1986, to the insurers.

Application of Policy Exclusions

Finally, the court considered the applicability of two exclusions: (1) the pollution exclusion; and (2) the occupational disease exclusion. The court reviewed Connecticut precedent interpreting the standard pollution exclusion, and found that certain key appellate cases were not helpful in the factual scenario this case presented. The court held that it was ambiguous whether inhaled asbestos fibers could be considered a “pollutant” “irritant” or “contaminant” because the manner in which exposure occurred did not implicate the type of “releases of toxic chemicals into the environment” that the court found the standard pollution exclusion was intended to address. It also found ambiguous the language requiring that such pollution be “discharged, dispersed or dispelled” into the atmosphere in order for the exclusion to apply. Applying the rule of contra proferentem, the court construed the ambiguities against the insurers.

Finally, the court also addressed some of the excess carriers’ arguments relying on the “occupational disease” exclusion contained in some of the excess policies. The trial court held that the exclusion only applied to the claims of those who were employed by the insured. The appellate court reversed the trial court on this point, finding that the language of the cited exclusions did not restrict their application to employees, but rather to “occupational disease” by whomever might have suffered it, whether an employee or otherwise.

Now All Eyes Turn to the Connecticut Supreme Court

The defendant insurers filed a petition for certification of review to Connecticut’s Supreme Court on May 17, 2017, and the plaintiff policyholder, R.T. Vanderbilt, was granted an extension of time to June 26, 2017 to oppose the petition. It will be interesting to see if and how the Connecticut Supreme Court weighs in. The appellate court addressed a number of novel issues, and also distinguished Connecticut Supreme Court precedent that could impact other of the issues. Given the impact the decision will have on the present litigation and beyond, and given the rapt attention of stakeholders – including the intervention of amici in support of both insurers and policyholders – it appears likely that the supreme court will accept certification for review. The question of whether or not to review will be answered in the near term, but should the court accept review, it may be some time before we have final answers on many, if not all of these questions.

A Slippery Slope: How Counsel and Experts Can Work Together to Detect Slip and Fall Claims Fraud

Jonathan H. Colman and Angela DiDomenica | CLM Magazine | April 2017

Questionable slip and fall claims aren’t going away anytime soon. According to the National Safety Council, slip and fall incidents are the third leading cause of injury to customers and employees each year, costing American businesses a whopping $70 billion annually in workers compensation and insurance claims.

In analyzing a slip and fall claim, either pre-litigation or at the onset of litigation, an investigation and discovery plan is crucial. Depending upon the nature of the claim and potential injury exposure, counsel representing companies and insurers are tasked with the responsibility of directing investigations (to protect attorney-client privilege whenever possible) as well as discovery. In advance of the retention of an expert, it is important that fact specific requests for admissions and contention interrogatories are used to force the claimant to narrow the facts of the loss as much as possible. Detailed deposition questioning— including, most importantly, eliciting testimony about all of the movements of the claimant prior to, during, and following the alleged incident—will help not only counsel at trial, but also the designated expert.

Red-flag indicators specifically relating to questionable slip and fall claims include the following:

1. An unusually long distance between the location of the fall and the claimant’s residence.

2. Attorney involvement may include linkage with medical clinics and prior slip and fall claims, attorney representation on the date of the loss or soon thereafter, and the first notice of loss being made by the attorney.

3. Inspection of the scene shows no defect in the surface that could have caused the slip and fall.

4. The reported body movements are contrary to the laws of physics based upon the reported facts.

5. Minor slip and fall procedures with highly questionable and exaggerated medical costs.

Retention of the appropriate investigators and experts is important to obtain detailed statements from the claimant, conduct interviews of property/business owners as well as employees, and canvas for witnesses and surveillance, medical history, background checks, and even sub rosa. Investigators also will request maintenance records (sweep sheets), interview potential maintenance witnesses, obtain necessary safety manuals, and arrange for a determination of whether the location of the incident complies with appropriate building codes, standards, and guidelines.

Analyzing an alleged slip and fall event entails ascertaining, if possible, which adjusts the speed of the truck while in cruise control and attempts to maintain a set following distance when detecting a lead vehicle in front of it. However, one must understand the multiple parameters of a particular vendor’s collision mitigation system technology, specifically including radar detection of—and reaction to— moving vehicles, stopped vehicles, and stationary objects.

On the contrary, lane departure warning systems and event recorders are passive safety systems. Lane departure warning systems use camera technologies to identify lane markings and provide an audible, visual, or seat vibration alert to warn drivers of lane deviations when the appropriate turn signal has not been activated. Naturally, this technology application presents difficulties when the cameras are misaligned or the roadway markings are obfuscated, for example, by construction or by precipitation on the window.

Event recorders capture video and other data, and have basic features that may include:

• A one-way, road-facing camera that captures what is going on outside the truck.

• A two-way camera, with one lens road-facing to capture external events and another lens facing into the cab to capture the driver.

• A quad-view or 360-degree view, using multiple cameras to see all around the truck.

• Recorders that capture the speed, lateral movement, accelerations, and decelerations (measured by g-force change), as well as other mechanical aspects of the vehicle.

Event recorders typically operate in one of two modes: continuously recording or on demand. The latter is triggered by a certain set of events, such as a hard brake, overspeed, or high definition shock (variably measured by each vendor as a g-force change). Some implications of the technology’s application are very clear. The CEO of one major carrier recently testified before Congress that the use of collision mitigation systems reduced rear-end collisions by 69 percent in one year.

The value of other technologies is not always so obvious. For example, we are aware of carriers that have implemented roll stability control technology only to see instances of tractor-trailers rolling over increase, apparently because drivers endeavored to over-rely on the technology. A technology application’s value, after all, rests largely upon the manner in which we humans interact with it. Accordingly, drivers will need to clearly understand how their safety technology functions in their vehicles.

SHAPING EVENTS

Technology choices cannot be made without careful consideration of the purpose to which the technology will be put. With respect to event recorders, attention must be paid to the size and type of fleet, as well as the nature of the workforce.

For instance, a relatively small workforce that has little turnover and whose drivers navigate familiar routes may take no offense to an inward-facing camera of an event recorder. In contrast, a larger carrier with a more diverse workforce of over-the-road drivers and a high turnover rate may choose not to impose an inward-facing camera on its drivers. Certainly, inward-facing cameras pose a potential privacy invasion for over-the road truckers who sleep in their cabs, but drivers may perceive a privacy invasion even while they’re awake. We are aware of more than one carrier that implemented a pilot program of two-way cameras only to find that turnover increased so dramatically as to make the pilot program untenable.

Event recorders have the potential to capture an enormous quantity of data. A carrier that implements event recorders is well-advised to decide in advance how the data will be used as well as the costs and benefits of using the recorded data as a coaching tool. Certainly, in this regard, the overhead investment to use the data as a coaching tool is substantial. However, the carrier must also consider the uses to which the data will be put in the event no coaching is provided. Those who have been in the industry any meaningful length of time will anticipate the plaintiffs’ bar seeking to use the failure to coach as a sword in future litigation.

With respect to the defense of any particular case, some implications of the technology are fairly straightforward. We can well expect, for instance, that event recorders— to the extent they act as impartial observers of the circumstances surrounding a collision—will provide enormous clarity to cases of clear liability and, just as clearly, prevent protracted litigation over disputed factual issues when viewed by plaintiff’s counsel. We anticipate that claims with reasonably clear event recorder data will close more quickly either through a swifter settlement or a withdrawn claim once plaintiff’s counsel sees the video.

From a legal perspective, carriers will need to make some policy decisions, too. These include determining the video or data retention policy; when and to whom video and data will be released (including instances when the subject driver is not involved in the occurrence itself); and when to seek protective orders for video and data produced, including a prohibition on social sharing. The savviest carriers already are headed down these paths, with no clear answers likely to emerge in the immediate future.

As the continued application and improvement of transportation technologies is inevitable, those in the transportation industry must remain vigilant to understand the current technologies, anticipate future technology, and carefully consider how these technologies will apply to their organizations. The only constant we can fairly anticipate is change.