Recently in Autos Category

State laws providing a kind of tenure protection for no-longer-needed car dealers are among the reasons it can be extremely expensive to close down a failing marque. General Motors, which closed Oldsmobile eight years ago, "spent more than five years battling dealer lawsuits" despite having set aside almost $1 billion to handle the transition, and Ford may face similar challenges if it tries to shutter its ailing Mercury line. (Martin Zimmerman, "Mercury may be coming to the end of the road", Los Angeles Times, May 10). Earlier: Oct. 5, 2006. For more see this 2001 speech by FTC commissioner Thomas Leary, and this article by Missouri lawyer Gene Brockland on the federal Auto Dealers' Day in Court Act, which is exceeded in stringency by some of its counterpart laws at the state level.

The automotive innovation ("gently guides the car back in lane if it senses it drifting") has promising enough safety implications that German insurance companies offer premium discounts of up to 20 percent when it is purchased as part of a package with adaptive cruise control and park assist. No prizes for guessing why Volkswagen isn't offering it to U.S. buyers of the Passat. "What other cool stuff have auto manufacturers dreamed up, but left on the drawing board because they fear our sharks in expensive suits?" (Edward Loh, Motor Trend, Apr. 17).

"A Washington state woman who sued Ford Motor over her injuries in an SUV rollover accident isn't exactly thrilled that a jury cleared the automaker -- and awarded her $6 million in damages against her sister, who was the driver of the vehicle. ... The federal jury in Spokane, Wash., found Marla Bear 100 percent at fault for losing control of the SUV, in which her younger sister was a passenger. According to trial testimony, the car swerved when she looked over her shoulder to see if Crystal had her seat belt attached." Ford's own attorney, whether for tactical reasons of sympathy or otherwise, had advised the jury against blaming the sister. (Matthew Heller, OnPoint News, Mar. 20) (via The Briefcase).

Michael Lewyn writes:

In recent decades, American state and local highway officials have built wide streets and roads designed primarily to accommodate high-speed automobile traffic. However, such high-speed streets are more dangerous for pedestrians and bicyclists than streets with slower traffic, and thus fail to adequately accommodate nondrivers. Government officials design streets for high-speed traffic partially because of their fear of tort liability. An influential street engineering manual, the American Association of State Highway and Transportation Officials' Green Book, has generally favored the construction of such high-speed streets, and transportation planners fear that if they fail to follow the Green Book's recommendations, they are more likely to be held negligent if a speeding driver is injured on a street designed for relatively slow traffic.
Changes in the Green Book may ameliorate such design considerations in the future.

Buell-Wilson v. Ford redux

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In February of last year, I wrote at length about an appalling jury verdict (June 2004) and disingenuous appellate decision in an SUV rollover case:

It went generally unnoticed last November when the California Supreme Court refused to review an intermediate court’s decision in Buell-Wilson v. Ford Motor Co. But then again, it went generally unnoticed when a jury awarded an arbitrary $368 million in damages in that case, when the trial judge reduced that verdict to an arbitrary $150 million judgment, and when an intermediate appellate court reduced that figure to an arbitrary $82.6 million (which, with interest, works out to over $100 million).

The US Supreme Court remanded to consider in light of Philip Morris v. Williams. For whatever reason, the California Court of Appeals decision to be even more disingenuous and say "We don't care about Williams" reaffirming the $82.6 million got much more attention. Bruce Nye has the best analysis of the "thumb in your eye" decision; Lisa Perrochet also analyzes the verdict. John Rohan is critical. Press coverage: Recorder/; San Diego Union-Tribune; Reuters; AP/SJ Mercury News. Ford will appeal.

I'm pretty sure I know which intersection in Bedford Hills, N.Y. is being referred to in this account; it's a badly confusing intersection, for sure, but I don't think I'd blame the GPS if I took a wrong turn onto the train tracks. (Peter C. Neger, "The Legal Landscape of GPS Devices", New York Law Journal, Mar. 5)(via Elefant).

Ruben Zamora lost control of his Ford Explorer after a tread-tire separation, causing a rollover; because he was not wearing his seatbelt, he was ejected from the vehicle and suffered brain injuries. (His four passengers suffered only minor injuries.) This is, a LaSalle County, Texas state court jury decided, 65% the fault of Ford, putting them on the hook for $6.5 million in damages. Ford denies responsibility and will appeal. (Margaret Cronin Fisk, "Ford Loses $6.5 Million Verdict in Explorer Rollover", Bloomberg, Feb. 4; "Auto news headlines," Detroit Free Press, Feb. 5; Nick Sullivan, "Brain-Injured Man Awarded $6.5M in Texas Rollover Case", Andrews Publications, Feb. 11). Until a 2003 tort reform, Ford would not even have been allowed to introduce evidence that Zamora was not wearing his seat belt.

Mustang club calendars

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Initial reports had it that the car company's lawyers were objecting to fans' putting out a calendar adorned with pictures they'd taken themselves of their beloved Mustangs. Later, the company said it was fine with the fans' publishing the photos and calendars so long as they didn't use the Ford logo. (AdRants, Jan. 14; Culture Garage, Jan. 11).

A jury has ordered the owners of an Oklahoma charter bus to pay $2.8 million to country singer Toby Keith and other members of his family after a 2001 accident in which Keith's father, H.K. Covel, was killed after his truck crossed the median on Interstate 35 into the path of the bus. The family's lawyer had produced an expert witness to testify that the bus's brakes should have been in better repair and that the driver should have been better trained. Covel's truck had been bumped by another vehicle and the family said it filed the suit to establish that the accident wasn't his fault. ("Jury rules Toby Keith's father not at fault in crash that killed him", AP/KTEN, Dec. 24).

NJ Turnpike sues crash victims

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After a press inquiry, the New Jersey Turnpike Authority abruptly changed its mind about suing the Ryan and Christmas families, who between them lost four family members in an August 2006 crash. (Kieran Crowley, "NJ Adds Insult to Injury", New York Post, Dec. 17).

November 26 roundup

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All-automotive edition:

  • Court won't unseal settlement arising from $105 million Aramark/Giants Stadium dramshop case for fear girl's father will try to get his hands on money [NJLJ,, Childs; earlier]
  • Great moments in insurance defense law: you mean it wasn't a good idea to infiltrate that church meeting to investigate the crash claim? [Turkewitz first, second posts]
  • Columnist Paul Mulshine rejoices: Ninth Circuit decision "if it stands, will lead to the end of the SUV as we know it" [Newark Star-Ledger]
  • Is it unfair -- and should it be unlawful? -- for insurers to settle crash victims' claims too early? [Maryland Injury Lawyer Blog]
  • If Ron Krist prevails in shoot-out of Texas plaintiff titans, he vows to have sheriff seize John O'Quinn's Batmobile [American Lawyer; see also Ted's take earlier]
  • In much-watched case, Australian high court by 3-2 split upholds highway authority against claim defective bridge design was blameworthy after youth's dive into shallow water [RTA NSW v. Dederer, Aug. 30]
  • Redesigning Toyota's occupant restraint system? Clearly another job for the Marshall, Texas courts [SE Texas Record; Point of Law; more]
  • Bench trial results in $55 million verdict against U.S. government after Army employee on business runs red light and paralyzes small child [OC Register]
  • Vision in a purple Gremlin: her Yale Law days shaped Hillary in many ways [Stearns/McClatchy]
  • Zero tolerance for motorists' blood-alcohol -- are we sure we want to go there? [Harsanyi, Reason]
  • Driver falls asleep, so of course Ford must pay [two years ago on Overlawyered; much more on our automotive page]

Have you noticed the annoying tendency of seat belts in certain vehicles, such as airport limos, to sink so deep into the cushions that you can crack your fingernails trying to pull them out? Now a lawsuit against a Ford dealership seeks to blame that phenomenon for the 1997 injuries that ended the career of Detroit Red Wings hockey star Vladimir Konstantinov and team masseur Sergei Mnatsakanov. The two were seriously injured when their driver, who was driving on a suspended license following a long series of roadway infractions, veered off Woodward Avenue into a tree. Neither of the injured men was wearing a seat belt, which they blame on the "design defect" that prevented the belts from being "easily accessible". The car dealership, Findlay Ford Lincoln Mercury, "argues it did not manufacture the limo or carry out modifications that were made to it and the dealership had no reason to know about or be liable for any alleged defects." (Paul Egan, "Court to hear arguments in Konstantinov crash suit", Detroit News, Aug. 22). Also see Nov. 25 (other litigation arising from crash).

We previously noted the important legislation passed by Congress in 2006 to protect deep-pocket car-leasing companies against vicarious liability for the accidents of its customers. As a result, the price paid by New Yorkers for leased vehicles dropped $600. Of course, that was money out of the pocket of trial lawyers, and ATLA's litigation-lobby litigation arm, the Center for Constitutional Litigation, intervened with repeated efforts with judges to either ignore or strike down the statute. Several Florida state judges provided a tendentious reading of the statute to ignore it precisely when it was said to apply; a federal district judge refused, but instead struck down the regulation of the interstate transaction under the Commerce Clause.

One can applaud a narrower view of the federal government's scope under the Commerce Clause, but this judge's interpretation is contradictory to that of the Supreme Court's and narrower even than Justice Scalia's view, and perhaps even the view of the Supreme Court pre-Wickard: no court ever held that the federal government cannot regulate commercial automobile transactions. We're looking forward to hearing the paranoid Constitution-in-Exile complainers on the left speaking up about the attempt by ATLA to strip the federal government of its powers.

CCL's argument has been that the statute doesn't regulate automobile transactions, but intrastate litigation. This is tendentious enough in state court (does civil liability under the ADA not regulate employment, but rather the litigation over intrastate employment?), but utterly absurd in a federal court where the parties are of diverse citizenship.

The ATLA press release is excited that the decision "gives rental car companies a powerful incentive to assure that their customers are adequately insured"—by forcing customers to purchase insurance that they may not want to purchase. Of course, nothing in the Graves Amendment forbade states from setting regulations requiring such minimum insurance; it just forbade trial lawyers from doing so in state court without state legislation. The litigation is a vivid reminder that getting legislators to act to enact desperately needed reforms is only the beginning of the process of fixing a broken civil justice system: one also needs judges who will follow the rule of law. (Vanguard v. Huchon (via Turkewitz); see also Graham v. Dunkley (NY Sup. Ct.)).

A major rebuke for former California AG Bill Lockyer and his successor, Jerry Brown, as well: "A federal judge in San Francisco today threw out a lawsuit filed by the state Attorney General's office against the six largest automakers in what had been billed as a novel attempt to hold the companies financially liable for global warming. ... U.S. District Judge Martin Jenkins said it would be inappropriate for the court to wade into issues pertaining to interstate commerce and foreign policy - matters that should be left to the political branches of government." The judge's order can be found here (PDF). (Henry K. Lee, San Francisco Chronicle, Sept. 18)(cross-posted from Point of Law).

Reader Eric Bainter writes:

The shenanigans of the NC prosecutor Mike Nifong got me to thinking about misbehaving attorneys in general; me being from the San Antonio area, this led me to wonder "whatever happened to those attorneys in the fraudulent suit against Chrysler?" (covered on Overlawyered May 23 and Jun. 26, 2000; Mar. 17 and Jul. 10, 2003; Aug. 1, 2006). During a fit of insomnia I decided to find out.

I started by checking the coverage on your site which most recently had noted, in the post from August of last year, that the Texas bar had still not yet gotten around to dealing with Andrew Toscano, one of the lawyers implicated in the affair. I searched the Texas Bar website, and found this was not quite true - Toscano got his discipline, such as it is, the day before your entry. I have copied and pasted beneath (after the jump) the entries for all three lawyers. Robert Kugle, the central figure in the fraud, got disbarred in 2003. The other two, Toscano and Robert L. Wilson III, only relatively recently got their punishments - two year suspensions - and if I understand the term "fully probated" correctly, their "suspensions" are "suspended" and they can still practice law. Each was fined $2500 in attorney's fees and court costs - I assume this goes to the Texas Bar. No mention of the $1 million in sanctions from Judge Peeples.

I also found this article from that sheds some light on the "suspensions".

I searched on the Internet for the current whereabouts of Toscano and Wilson. Andrew E. Toscano apparently now practices with a firm called "Gene Toscano, Inc." I don't know whether that is a relative of his, or Andrew's middle name happens to be "Eugene" and he has decided to practice under that. No website for that firm that I can find.

Robert L. "Trey" Wilson III apparently practiced environmental law for a while after leaving Kugle's firm (or maybe Kugle's firm left him?) -- the San Antonio bar featured him in its newsletter last December. I also found a now-defunct profile/bio page within the website of the attorney Louis Rosenberg, who does environmental law in San Antonio, but I do not notice any current mention of Wilson's name on Rosenberg's home page -- he is not in Attorney Profiles, for example. If "Trey" worked there, I suspect he no longer does.

My temporary bout of insomnia seems over now. Best wishes,

Eric Bainter

[details of Texas bar discipline follow after the jump]

Slate's Emily Bazelon doesn't read the owners' manual for her car, does something the owners' manual explicitly says not to do—recline a seat in a moving car—and hurts herself. Bazelon blames... the automaker and NHTSA for not doing more to warn her, and serves as a mouthpiece for plaintiffs' lawyers who specialize in such arguments, lionizing one who won a $59 million verdict against Toyota for his client's own foolhardiness.

The NHTSA official Bazelon talks to points out that she's taking one safety issue out of context; Bazelon pooh-poohs it because, after all, it happened to her and some other people, too! But Bazelon ignores that there are several dozen other dangerous problems addressed in the owners' manual, many of which would kill or injure far more passengers than reclined drivers' seats. One cannot just look at the idea of putting a single additional sticker on the dashboard: the car would have to be literally wallpapered with additional warnings to cover every warning of a matter at least as hazardous as car-seat reclining, at which point we're back to the problem of owners ignoring warnings. Bazelon simply fails to address this reality.

But, hey, I'll join Bazelon in telling you: don't recline your car seat in a moving vehicle. (Long-time Overlawyered readers already know this from two separate posts.) Also, don't drive with your windows open, your doors unlocked, or your seatbelt unfastened. Reattach your gas cap after filling the tank. Look behind you and ensure the path is clear before going in reverse. Keep your eyes on the road. Don't pass a car in a no-pass zone or drive twice the speed-limit. Sit up straight, especially in a front seat with airbags. Don't have loose heavy objects (including unbelted passengers) in the passenger compartment of the car. Don't permit children to play with power windows; don't leave children unattended in a car that is on; don't leave the car on when you're not in it; don't try to jump into a moving vehicle. Don't leave your shoes loose while driving. Be careful when shifting gears. Do not violently swerve an SUV, especially if there are unbelted passengers. Always be aware of the danger of pedal misapplication. Don't fall asleep while driving. Don't drive recklessly, and if you do, don't leave the road. Use your parking brake when you park. Replace a tire after repeatedly patching it; don't drive on bald tires in the rain; and replace your ten-year old tires before you have to drive on a spare. Make sure your floor mat isn't interfering with the pedals. Don't drive into the back of a truck at 60 mph without braking. Et cetera.

(And welcome, Instapundit readers. Check out our vast selection of automobile and personal responsibility articles.)

Mothers Against Drunk Driving (MADD), which is fairly described these days as neo-Prohibitionist, continues to promote the development of automobiles which will be mechanically inoperable in the presence of indicators of drunkenness. A new Nissan prototype includes alcohol sensors in both the driver and passenger seat. Passenger? (Classical Values, Aug. 4). Earlier: Aug. 19, 2005, May 28, 2006.

More from DUI Blog: "Imagine if even one of these gizmos malfunctions — at high speed."

The Ford Explorer is a sport utility vehicle. Judge Roy Pearson, excited by the $67 million he anticipates receiving for his pants, is bringing a lawsuit in California claiming that every California Explorer owner is entitled a total of $2 billion from Ford because the Explorer is allegedly prone to rolling over, using the California version of the law that Pearson is bringing his pants-suit over. Note that the damages are not for an actual rollover, just damages because of the "fraud" that the vehicle might roll over, though at least some models of the Explorer are in fact less dangerous than an average SUV in rollovers, and safer than the average vehicle in other types of accidents. (IIHS reports that the average fatality rate for mid-sized 2-door SUVs is 63 per million vehicles, and the average fatality rate for the 2-door Ford Explorer is 49 per million vehicles—and that latter number includes crashes caused by defective Firestone tires. Note that this is publicly available information: where is the fraud?)

Oh, sorry, it's not Roy Pearson, it's Arkansas attorney Tab Turner who is bringing the lawsuit. [Hudson Sangree, "SUV rollovers put Ford's future in judge's hands", Sacramento Bee, May 24; official class notice from Sacramento County Court]

But because ATLA and Kia Franklin have condemned Roy Pearson's lawsuit as a frivolous abuse of justice, I am sure that they will have no compunction against issuing the same criticism against millionaire trial lawyer Tab Turner for bringing a much larger and socially harmful lawsuit that might bankrupt Ford on the same bogus "consumer fraud" legal theory that Pearson used. Of course, there's a difference between Pearson and Turner: Turner is asking for more money, and his claim has less factual basis.

Many of the frivolous suits we cover here on Overlawyered are laugh-out-loud outrageous; but (as the plaintiff's bar will trumpet in self-defense) these represent only a small fraction of lawsuits. (Of course, even at a small percentage, there's enough of them for us to blog about them nearly every day.) Most of the suits that make up the "high cost of our legal system" are much more mundane -- though not necessarily any less legally ridiculous or less costly. Take a decision handed down last month by the Fourth Circuit Court of Appeals involving a lawsuit against Nissan. (PDF)

In August 1997 -- note the date here -- a bunch of high school kids were driving around after school in a 1987 Nissan Sentra. The driver, who may or may not have been "speeding and driving recklessly," depending on who you believe, lost control of the car. The car flipped over, and one of the passengers, Troy Boss (who, by the way, wasn't wearing a seat belt), ended up paralyzed.

Thus endeth the tragic story, and thus beginneth Boss's quest for deep pockets. (Which was also tragic, but only for Boss's victims.) First, Boss settled his claims against the person actually responsible for the accident -- Stacy Harmon, the driver of the car. Then, hunting around, Boss and his attorney decided that the only truly deep pocket they could find was Nissan, which somehow was responsible for a teenager crashing a 10-year old car. So, in February 2002 -- five years after the accident -- he filed a $50 million suit in Baltimore against Nissan, Jiffy Lube (which had done an oil change on the car), a company called Eberle Enterprises (which had done the state auto inspection when Harmon bought the car), and a woman named Elizabeth Aldridge (who had sold the used car to Harmon several months earlier for $750). The theory that Boss came up with? That Nissan manufactured the car defectively, in such a way that "particles" in the power steering fluid mysteriously jammed the steering mechanism in some way, causing the car to swerve.

But if that was Boss's theory, you might wonder why Boss sued all those other defendants. What does an oil change have to do with power steering fluid? What does the prior owner of the car have to do with power steering fluid? What does a routine car inspection -- which does not, by state law, involve power steering fluid -- have to do with anything? The answer to all three questions? Nothing at all. So why were they in the case? One reason, and one reason only: by fraudulently joining them as defendants, Boss hoped to keep the case in state court, to destroy diversity. Under federal law, once the case has been in state court for a year, regardless of how fraudulent the reasons are, the case can't be removed to federal court -- and there was testimony in the case that Boss's attorney had admitted he was deliberately stalling to get beyond the one year mark.

Couple build mansion next door to Altamont Speedway, are upset by noise and rowdiness spillovers, head for court citing environmental concerns (Phillip Matier and Andrew Ross, "Racetrack, neighbor in a heated fight", Sept. 26, 2006; Jalopnik, Apr. 25).

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