Personal Injury

CMV Drivers: Reasonable Suspicion Testing & Case Law

December 29, 2015 | by Slappey & Sadd, LLC

Observations

The specific requirements for an alcohol or controlled substance test are carefully described in the regulations. A written record describing these “contemporaneous, articulatable observations” must be prepared before the test results are reported. If reasonable suspicion testing occurred on the subject driver, review not only the results, but the document describing the basis for requiring the test. If a driver acts or appears to have consumed alcohol or used drugs but tests negative, this could mean the driver has a medical issue. Further, the documentation could provide a basis for arguing the driver should have been subject to more frequent than annual review. (See subsection I.A.6).

The reasonable suspicion subsection requires that the decision to order testing be made by a supervisor or company official who has been trained as required by § 382.607. In the right case, probe this aspect of the motor carrier’s operations: Who has been trained? Have they ordered any driver to be tested? How often did the subject driver interact with a supervisor who was trained? Did the motor carrier create interaction points between the driver and trained supervisor on any kind of a reoccurring or systematic basis? Does the motor carrier require that a supervisor with training be at each location/terminal and on duty at all times while the terminal is operating? If the motor carrier has not made certain it has trained supervisors at logical contact points, and you have an intoxicated driver accident, you may have an argument of individual negligence on the part of the motor carrier for failing to make certain someone was monitoring for reasonable suspicion purposes.

Commercial Vehicle Motorists: Reasonable Suspicion

December 28, 2015 | by Slappey & Sadd, LLC

Reasonable Suspicion (382.307): Overview

The implications of reasonable suspicion testing are significant. It shows that a supervisory employee trained to recognize signs of alcohol or drug use was concerned enough to order the driver to undergo testing. This presents an expense to the employer, in the test itself, lost time and productivity, and administrative activities. Should the test be administered and found positive the motor carrier must make a written record of the observations which prompted the test, but there is no requirement that the record of the reason for the test, or the result, be placed in the DQ file. Discovery should be considered with this gap in record keeping requirements in mind.

Reasonable Suspicion Requirements

CMV Drivers: Random Drug Testing Regulations

December 23, 2015 | by Slappey & Sadd, LLC

Random Testing: Overview

All motor carriers must participate in a random testing program that tests for alcohol and drugs. The regulations set out detailed requirements of the percent of employees performing safety-sensitive functions who must be tested. No reported case involving a personal injury claim against the motor carrier, and dealing with this regulation, was noted during research. This suggests that attorneys might be missing an opportunity to reveal a violation that would be especially relevant in a case involving intoxication.

While the random nature of the testing required by the regulations makes it difficult to say a driver would have been randomly tested, a failure to comply at least gives rise to the possibility that he could have been tested, and thus possibly prevented from causing the accident in question. Random drug testing logically acts as a deterrent to alchohol and drug use, a point which may not be lost on an attentive juror.

Bad Faith Insurance: The Reasonable Expectations Doctrine

June 26, 2015 | by Slappey & Sadd, LLC

The Reasonable Expectations Doctrine In Insurance Bad Faith

The plain meaning of an insurance policy is informed by the reasonable expectations of the insured. “A contract of insurance should be strictly construed against the insurer and read in favor of coverage in accordance with the reasonable expectations of the insured.” Insurance policies are contracts of adhesion, drawn by insurers, and should be construed as reasonably understood by an insured. The test is not what the insurer intended its words to mean, but rather what a reasonable person in the insured’s position would understand them to mean. “The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney.”

Richards v. Hanover Ins. Co.

Common-Law Bad Faith: An Introduction

June 25, 2015 | by Slappey & Sadd, LLC

Insurance Bad Faith And Common Law

In addition to the cause of action for bad-faith failure to pay that is grounded in statute, Georgia recognizes a cause of action for insurance bad faith that is grounded in the common law. As explained below, common-law bad faith is associated with a liability insurer’s fiduciary duty to protect its insured from the risks associated with litigation against the insured. In most cases, these risks include legal liability to the insured for damages the insured has allegedly caused to a third-party claimant. Succinctly stated, “[a]n insurance company may be liable for damages to its insured for failing to settle the claim of an injured person where the insurer is guilty of negligence, fraud, or bad faith in failing to compromise the claim.” The most common example of an insurance company’s liability for bad faith arises when the insurance company fails to take advantage of a reasonable opportunity to settle claims against its insured within policy limits.

Origins and the Smoot Trilogy

Bad Faith Insurance: An Introduction

June 23, 2015 | by Slappey & Sadd, LLC

Because an insurance policy is a contract, any dispute implicating an insurer’s bad faith will involve the meaning of the words in the insurance policy. This is true no matter the type of bad faith at issue. Construction and interpretation of an insurance policy come into play in statutory bad-faith cases brought under O.C.G.A. § 33-4-6 as well as in bad-faith cases under the common law. Below we will look at the types of bad faith insurance.

Types Of Bad Faith Insurance

1. Withholding Payment