“The commercial trucking (or carrier) industry is helping drive the overall rate hikes in commercial insurance, according to Chris Mikolay, vice president of national accounts for National Interstate Insurance. … with an average award going from $2.6 million in 2012 to more than $17 million in 2019…. ‘These verdicts come about because of new tactics used by the plaintiffs where they vilify the entire company and then seek punitive damages,’ [attorney Eric] Zalud said. [Kim Palmer, Crain’s Cleveland Business; Mills Hayes, CBS4Local (El Paso, Tex.); Brian Fielkow and Robert Fuentes, FreightWaves two-part article, first and second parts; earlier here, here, here, generally on trucking]
Old Dominion Freight Line, Inc., an interstate trucking company, doesn’t want to put drivers with a history of drinking problems behind the wheel, and has accordingly been sued by the federal Equal Employment Opportunity Commission for allegedly violating the Americans with Disabilities Act (ADA), under which alcoholism is considered a protected condition. I’ve got details in a new post at Cato at Liberty (& Bader/CEI, Lachlan Markay/Heritage, Fox News).
- If you think reopening a retail business with new distancing rules is a challenge, wait till you see the interplay with the ADA, as I explain in my new post at Cato;
- Court dismisses class action against Wendy’s on behalf of disabled persons unable to use after-hours drive-up service as a walk-up [Davis v. Wendy’s International, a pre-pandemic case; earlier here, here, and here on ADA complaints regarding drive up windows]
- “Why is subway accessibility so expensive? It’s not just about installing new elevators.” [Annie McDonough, City and State NY]
- “After DOJ Letter on Website Compliance, The ADA Guessing Game Continues” [John D. McMickle, WLF] ADA filing mills hit condo and co-op boards [Frank Lovece, Habitat] Serial plaintiff files web access suit against Vermont bicycle maker [Bicycle Retailer]
- Limousine service to pay $30,000 for refusing to hire deaf driver [EEOC press release]
- Colorado homeowner’s association told to pay $50,000 after failing to allow woman to stay in the complex with her emotional support dog [Associated Press] “Do We Have to Allow Dogs in Our Workplace? Maybe. Maybe Not.” [Daniel Schwartz] Trucking company will pay $22,500 after asking driver to pay fee to bring service dog along in truck to help with his anxiety [EEOC press release]
- “Businesses Warn Fear of Lawsuits Could Stall Rebooting of Economy” [Andrew G. Simpson, Insurance Journal; New York Times (“liability companies could face if employees were to get sick after returning to work”); Eugene Volokh (Jim Salzman proposal on assumption of risk legislation, and the constitutional angle)]
- Emergency declaration triggered liability protections for people and enterprises responding to outbreak [Andrew Bayman, Geoffrey Drake, and Mark Sentenac, King & Spalding; Jim Beck, Drug & Device Law] 2005 pandemic-preparedness bill’s liability protections were inevitably assailed by Sen. Edward Kennedy and Public Citizen [Tyler Cowen]
- “Protect the Doctors and Nurses Who Are Protecting Us; They need immunity from lawsuits and prosecution for triage decisions.” [I. Glenn Cohen, Andrew Crespo, and Douglas White, New York Times; Erik Larson, Bloomberg]
- “Class Actions During COVID-19” [Frank T. Spano and Elizabeth M. Marden, Polsinelli]
- From before the crisis: “New York Holds that Registration to do Business does not Constitute Consent to General Personal Jurisdiction” [Stephen McConnell, earlier here and here]
- More from before the crisis: Federalist Society debate between Brian Fitzpatrick and Ted Frank on Fitzpatrick’s new book The Conservative Case for Class Actions; trucking business reels under huge verdicts [Matt Cole, Commercial Carrier Journal, parts one and two, earlier here, etc.] Ex-client sues Houston’s “Car Wreck Clyde” charging case running and other no-nos [Brenda Sapino Jeffreys, Texas Lawyer] In Florida, “‘Inconspicuous’ political cash helped trial lawyers notch wins against insurers” [Matt Dixon and Arek Sarkissian, Politico]
- Bonfire of the regulations, continued: feds and states ditch trucking rules to keep the deliveries rolling [Christian Britschgi, earlier on bonfire of the regs]
- Poll finds U.S. public approving extraordinarily coercive measures to combat epidemic, in many cases with little if any gap between parties [Adam Chilton, Summary, Judgment]
- Could the emergency spur a shift to online video notarization, already authorized in 10 states? [Eugene Volokh]
- “It must really be the apocalypse if the state of Oregon is letting drivers fill their own tanks. My favorite moment in this FAQ: ‘How will I know how to pump my own gas?'” [Jesse Walker linking Eugene Register-Guard]
- Legal resources related to the crisis, from the UCLA law library;
- Eggs in one basket: tsunami of unemployment claims should force rethink of monopoly state fund idea practiced by four states (Washington, Ohio, North Dakota, Wyoming) [Ray Lehmann, R Street Institute]
In an emergency that has made trucking, logistics, and home delivery uniquely important, fractured the schedules of countless parents and caregivers, and sent the services sector reeling, it would be nice if California and other states were not making war on the work arrangements needed for the situation. That’s why California’s AB5 fiasco (earlier here, here) along with similar moves in New Jersey and elsewhere, come at the worst time.
- “Lisa Yakomin, president of the Association of Bi-State Motor Carriers… said the California bill is expected to cost tens of thousands of truckers their jobs.” [Dana Rubinstein, Katherine Landergan and Anna Gronewold, Politico; Deborah Lockridge, TruckingInfo; California independent trucker coalition] Operating in New Jersey trucking under an independent contractor model “is becoming incredibly risky,” as the state assumes power to shut down alleged violators by issuing stop work orders [David Kim and Salvador Simao, Ford Harrison]
- Jugglers unite: “My full-time job is being a mother, my second is cleaning houses. New Jersey please keep it that way.” [Antonette McKay, Star-Ledger]
- Musicians on the ropes as venues shut down. Wouldn’t it be nice if they could look forward to returning to an existent gig industry? [Fight for Freelancers NJ, Brian Ralston et al., Kim Kavin, Daily Kos (“The state could argue that by hiring you to play your French horn two nights a week, the theater violated prong A of the ABC test”), Michael Tanner (Lake Tahoe Music Festival), Ravi Rajan, Orange County Register]
- What hope for legal challenges to AB5? [Stephen Melnick, WLF]
- Audio/video: Reason video with John Osterhoudt on the California mistake; “State regulators and the gig economy” [Federalist Society teleforum with Alexander MacDonald]
- Getting services distributed to dispersed at-home locations is going to create a host of new communication challenges, but good luck with that: “The California legislature designed AB5 in a manner that completely disregards how professional translators and interpreters work.” [Philip Shawe, Crain’s New York]
P.S. Related Cato post now up. Truckers especially have many more problems than this right this moment responding to the COVID-19 pandemic outbreak, read about some of them here (and help if you can!) They have begun getting direly needed removals of regulations. But don’t let this one slip off the list.
- Philadelphia Common Pleas Court, long a forum-shopping destination, draws lawyers to sue over cladding after London’s Grenfell Tower fire [David Murrell, Philadelphia magazine]
- Georgia lawprof Elizabeth Chamblee Burch argues in new book that lawyers are enriching themselves at the expense of their clients in mass tort multidistrict litigation [her site; Katheryn Tucker, Fulton County Daily Report; Leigh Beeson, UGA Today, more]
- “Court cases reveal secret litigation networks for trucking accidents” [Aaron Huff, Commercial Carrier Journal]
- U.S. Chamber report on private rights of action and privacy claims by Mark Brennan, Adam Cooke, and Alicia Paller of Hogan Lovells;
- “Is PFAS the next asbestos? Probably not, lawyers say, but it may come close” [Daniel Fisher, Legal NewsLine]
- Uh-oh: “Progressive advocates have recently begun working with legislators in a handful of states to provide a qui tam mechanism for enforcing state statutory rights.” [Myriam Gilles and Gary Friedman, SSRN]
Attorneys for Mississippi-based Whitestone Transportation “allege in court documents that their investigations have uncovered evidence of more than 30” incidents around New Orleans following a distinct pattern of “multiple people in a claimant vehicle, sideswipe allegations with commercial vehicle trailers, minimal damage to claimant vehicle, little to no damage to the insured trailer and a commercial vehicle driver who is either unaware of or denies impact, according to trucking attorneys.” “In Louisiana we estimate our insurance costs are three to five times more than the national average,” said Chance McNeely, executive director of the Louisiana Motor Transport Association, and with the legal system not well suited to defeating claims for staged or pretended accidents, companies are increasingly turning to truck-mounted cameras.
“It’s always the same thing: Four people in a sedan, and there’s always a random witness who gives a loose statement to the cops and has a random appointment and has to get away, “ McNeely said. And all too often they use the same attorneys and the same doctors, he said….
“We have a lot of billboards for attorneys, and many of them demonize our industry,” he said.
- $101 million in Texas could be biggest trucking damages award in history; crash victim had “told the responding police officer he was not injured and continued on with his journey” [John Kingston, FreightWaves]
- “Lawyers For Texas Counties In Opioid Cases May Not Have Valid Contracts” [Daniel Fisher, earlier on Texas scramble here, here, here, and especially here]
- Arbitration defended [Ross A. Marchand, Economics21]
- “Madden NFL 19 Jacksonville shooting victim sues Electronic Arts, claiming negligence” [Cyrus Farivar. ArsTechnica]
- “Prosecutors Are Said to Issue Subpoenas Over Pelvic-Mesh Surgery Financing” [Matthew Goldstein and Jessica Silver-Greenberg, New York Times, earlier and more]
- Federal courts split on whether SCOTUS’s Bristol-Myers Squibb limits on personal jurisdiction apply to class actions [Bradley, Akin Gump, Carlton Fields]
- State by state survey of 140 bills around the country on hot topics related to religious accommodation, including adoption, service refusals, campus speech, health care, etc. [Kelsey Dallas, Deseret News] And don’t forget to mark your calendar for two weeks from today when Cato will host our half-day conference on adoption, foster care, and pluralism with an array of fine speakers;
- What ails long-haul trucking in a time of prosperity? Federal break regulations, electronic monitoring, artificial constraints on parking among factors [Virginia Postrel, Bloomberg]
- Antitrust debates cut across political spectrum [Daniel A. Crane, Cato Regulation magazine] “Solicitor General Inveighs Against Antitrust-Law Revolution in SCOTUS ‘Apple v. Pepper’ Amicus Brief” [Corbin Barthold, WLF]
- These seem like well-planned-out laws: Google suspends running campaign ads in Washington and Maryland following states’ enactment of new disclosure laws [Michael Dresser, Baltimore Sun, Jim Brunner and Christine Clarridge, Seattle Times, Scott Shackford]
- “Missouri appeals court tosses $55 million Johnson & Johnson talc-powder verdict” [Reuters, earlier (courts reverse two other big verdicts) and generally]
- “What Secretary Carson Should Know about Affirmatively Furthering Fair Housing (AFFH)” [Vanessa Brown Calder, earlier]