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SPRING 2012

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The United States District Court for the Middle District of Florida recently handed do n a decision concernin s olia on of e idence as it related to the failure to reser e data fro a truc s lectronic n ine Control Module

CM follo in a fatal collision lain asser n that the defendants failed to reser e CM data hich ould ro ide infor a on concernin the ehicle s heel s eed accelerator osi on ra in en ine M and other

data Sna shot data o ed for conte t and sanc ons a ainst the defendants on the ground that they s oliated e idence y failing to retain er nent infor a on Defendants aintained that they a e ted to ca ture the CM data i ediately follo ing the accident ut did not eco e a are un l later that a full download had not occurred

n March a odel Kenworth tractor trailer was in ol ed in a collision with a Dodge

ic u truc in ee County Florida which resulted in the death of the ic u s dri er Counsel was retained y the defendant truc ing co any along with an accident reconstruc on e ert within hours of the collision n

CM download was erfor ed y a uali ed ser ice center howe er the technician downloading the CM failed to o tain the Sna shot data fro the incident uic Sto a uic Sto occurs any e the ehicle decelerates uic er than h second The co any s a orney not eing uali ed to inter ret

CM data did not recogni e the download was inco lete and si ly laced the results in his le Tes ony ro ided that technicians at the engine dealer do not nor ally download Sna shot infor a on in the nor al course Thus it would e rudent for counsel to s eci cally direct that this infor a on is included in any ost accident CM download

early a year later u on disco ering the data download to e inco lete the a orneys again tried to access the CM data on the ehicle howe er any Sna shot data for the incident uic Sto had een o erwri en y a ore recent uic Sto e ent Tes ony y the a orneys in ol ed was that there was no intent to s oliate e idence or loc lain fro accessing the ehicle

ound that they s oliated e infor a on Defendants

ca ture the CM dent ut at a f

r tsion withn ee Countyth of the ic u s e defendant truc ing cotruc on e ert within hours of

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or data and that there was no ad faith on the art of the defendants the defendants did e erything ossi le to retain and reser e the CM data and u on reali ing so e of the data was issing did e erything ossi le to reco er it It was not disputed that the defendants did not preser e the Snapshot data fro the CM download i ediately following the accident or the data fro their su se uent access it allegedly eing apparent that it was an o erwrite and not related to the su ect accident In its analysis the Court speci cally noted that the a orneys were not e perts in CM downloads and were not ini ally aware that data was issing i ewise the defendants e pert was unaware

addi onal infor a on was o taina le or issing ccordingly the Court held the defendants did not inten onally destroy the infor a on and their ac ons or inac ons did not cons tute spolia on

There were howe er se eral addi onal factors that ay ha e played a role in the Court s decision There was e idence that the CM data ay not ha e een relia le and there was addi onal roadway e idence a aila le s id ar s etc to allow plain s e perts to reconstruct the accident lthough the Court did not

nd spolia on occurred it did note that “the facts of this case point out the changes to the prac ce of law that are occurring as infor a on technologies e ol e To that end “ i t

is incu ent on the Court and counsel to understand the ra i ca ons of technology and ost i portantly to deter ine what it is that we ay ha e and how do we preser e it

ccordingly it is increasingly i portant for counsel and e perts to stay a reast of de elop ents in the technology of our eld and understand how to direct proper preser a on of electronic data and e idence

s a side note up un l recently only U S ased auto a ers included “ lac

o technology in their ehicles owe er o cials ha e andated

that all ehicles e uipped with lac o technology anufactured a er

Septe er e in co pliance with C F art go erning how and what data ust e recorded

eginning on anuary a co ercial dri er s edical cer ca on will eco e part of hisher co ercial dri er s license dri ing record ne of the purposes of the new regula on is to ena le roadside law enforce ent to electronically con r that the co ercial dri er has a alid edical cer ca on

y lin ing that infor a on with the Co ercial Dri er s icense Infor a on Syste ny holder of a co ercial dri er s license who is su ect to the physial uali caton re uire ents of the Federal Motor Carrier Safety egula ons “FMCS s will e re uired to pro ide a current original or copy of his or her edical e a iner s cer cate “Medical Card to the dri er s issuing State Dri er icensing gency “SD The re uire ent to present one s Medical Card will e triggered upon one of the following e ents a dri er applies for a CD renews a CD applies for a higher class of CD applies for a new endorse ent on a CD or transfers a CD fro another State

The new regula on dis nguishes etween four types of dri ers the

holder of a CD will e re uired to no fy their respec e SD as to which type of dri er he she is or e pects to e The four types of dri ers are as follows interstate non e cepted interstate e cepted intrastate non e cepted or intrastate e cepted n interstate none cepted dri er ust eet the Federal

D T edical card re uire ents If e cepted a dri er will not ha e to eet the physial uali caton re uire ents of the FMCS s The sa e is true for the intrastate non e cepted and e cepted categories

If a dri er is su ect to FMCS edical card re uire ents he she should pro ide a copy of each new edical

Employee Entitled to Unemployment Benefits FollowingTermination for Failure to Maintain Driver’s License

recent opinion y the astern District of the Missouri Court of ppeals re ersed a decision of the a or and Industrial ela ons Co ission the “Co ission that denied

une ploy ent ene ts to an e ployee who was ter inated a er his dri er s license was suspended See ent

o e Security of Mo pp IS Ct pp Mo The

Co ission asing its deter ina on on oard of duc f City of St ouis

a or and Indus ela ons Co n S d Mo pp D

found that the e ployee “ oluntarily le e ploy ent y failing to aintain a dri er s license that was a re uired condi on under his o descrip on

ddi onally and with respect to “good cause on the part of the e ployer the Co ission deter ined that “ t hrough no fault of the e ployer the clai ant did not aintain a reasona le condi on that was clearly essen al to eing eligi le for his o The Co ission deter ined that “all cri cal e ents were set in o on

y the loss of the dri er s license owe er the e ployee was not a

professional dri er rather he was a licensed aster plu er

The Court of ppeals adop ng the reasoning of the single dissen ng opinion of the Co ission deter ined that the e ployee had not oluntarily

uit his posi on and ade par cular

note of the fact that the e ployer con nued to e ploy the clai ant for a period of wee s upon disco ering that his license was suspended In fact the e ployer e en paid for courses that the e ployee was re uired to ta e as a condi on of ha ing his license reinstated and acco odated the situa on y nding e ployee wor to perfor that did not re uire that he dri e It was only when the e ployer disco ered that it would ta e nearly a

onth as opposed to se eral days for the e ployee to ha e his license reinstated that the e ployer decided to ter inate hi

So how ight this decision a ect an e ployer of professional licensed dri ers There are two signi cant facts that appear pri ary in the Court of ppeals decision re ersing the Co ission

the e ployer did not i ediately ter inate the e ployee upon disco ering that he no longer aintained the re uired alid dri er s license ut rather

“acco odated hi y nding other tas s for hi to perfor and assis ng hi in the process of ha ing his license reinstated and

ecause perfor ance of the e ployee s pri ary tas that of a licensed aster plu er was not a ected y the loss of a dri er s license the e ployer was not prohi ited y law fro con nuing to e ploy hi in that role

ey dis nc on ay e found with respect to the second ele ent with professional dri ers they cannot perfor their du es a sent a alid dri er s license Thus an e ployer is prohi ited y law fro per i ng a dri er to con nue to wor when his license has een suspended That does not ean the e ployer cannot

nd other te porary wor for an e ployee while the license is eing reinstated howe er if an e ployer does so and then su se uently a es the deter ina on to ter inate the e ploy ent on the asis of the lac of a alid license the e ployee will li ely

e en tled to recei e une ploy ent ene ts

card to his her SD prior to the e pira on of the his her current

edical card olders of a CD re uired to ha e a edical card ut who fail to pro ide or eep current their edical card with their SD will ha e their license downgraded or ay lose their CD all together The progra is to e fully i ple ented

y each state y anuary

Un l that e an interstate dri er su ect to the CD regula ons and the FMCS s regarding physical

uali ca on re uire ents ust retain paper copies of their edical e a iner s cer cate Interstate

otor carriers are si ilarly re uired to retain copies of their dri ers edical cer cates in their dri er uali ca on

les through anuary s a prac cal a er it would e wise for a

co ercial dri er to con nue to carry his her edical card whether re uired to or not Con nuing to carry one s

edical card is a s all price to pay to now that he she will will e a le erify that they ha e eet the FMCS s

physical uali ca on re uire ents in the e ent odern technology fails

4

Greenville, SC

Greenville, SC

Greenville, SC

Georgia | North Carolina | South Carolina

Erik AlbrightGreensboro, NC Greensboro, NC Charleston, SC Greensboro, NC

Greensboro, NC Greenville, SC Wilmington, NC Greenville, SC Greenville, SC

Kevin McCarrellGreenville, SC Greenville, SC Atlanta, GA Greenville, SC Greenville, SC

Greensboro, NC Raleigh, NC Charleston, SC

Raleigh, NC

The Road Ahead

s Chair an of the South Carolina Defense Trial orney s ssocia on SCDT Truc ing aw Co i ee ac iordan led the rea out

Session at the SCDT nnual Mee ng in elia Island Florida on o e er hile at the nnual Mee ng ac was elected

to the oard of Directors for SCDT a ter which will e pire in 4 In addi on to his con nued du es as Chair an of the Truc ing

aw Co i ee ac will ser e on the Mar e ng and Defense ine SCDT ewsle er Co i ees for

n Dece er ac iordan was the sole defense a orney on the panel of the S C ar C Motor Carrier Clai s Fro rec

to Trial eld at the S C ar Conference Center in Colu ia SC ac s session was en tled Defending a Target Defendant to erdict

o Moseley and Fredric Marcina a ended the Conference of Freight Counsel inter Mee ngs in anuary in ew rleans

oseph ohe acco panied o to the T egional Se inar in Chicago on anuary oseph is s ll undergoing frost ite treat ent

ecause Moseley is so cheap that he wouldn t let the ta e a ca fro the train sta on

o Moseley a ended the T Capital Mar ets Se inar in Mia i Florida Fe ruary as Ste e Farrar is o en heard to

say o gets all the good trips

Kurt o els y as Chair of the D I Truc ing aw Co i ee led the D I Truc ing aw Se inar in Sco sdale Fe ruary ri

l right reens oro and Marc Tuc er aleigh also a ended the ee ng and se eral panel counsel ee ngs

o led a discussion on Suspected ut Unpro en Freight Da age at the TID S ills Se inar in Te pe on March That was

followed y a Suspected ut Unpro en spring training ase all ga e

o nished on the second place tea at the recent SCT Truc pac olf Tourna ent at Myrtle each e played with clients ndy

ianou os TS ogis cs and Ma ri reat est Casualty Co pany Ma and ndy would ha e nished rst y the sel es

o will e one of the spea ers for a T sponsored we inar rela ng to changes in insurance for s on pril 4 at T For ore

infor a on see h p www translaw org ages e inars asp

Marc Tuc er con nues to a end the onthly ee ngs of the CT Safety Council Down ast Chapter

o Moseley s ne t Transporta on Contracts Se inar presented y SMC will e in Cincinna on pril SMC s lin for registra on

is h p www s c co s c acade y cl ht nter the code Moseley during online registra on and sa e 4

o Moseley and Fredric Marcina will a end the Transporta on awyers ssocia on nnual Mee ng in May in aples Florida

o will e co chairing the Freight Clai s Co i ee ee ng

Kurt o els y will e presen ng at Truc ing oot Ca p I on May in tlanta on May in Dallas T on une in rlando and

une in Chicago

n May o Moseley will e spea ing on a anel with aura Fredric son of IC on issues in ol ing the reScreening rogra for

dri er ac ground chec s at the irginia Truc ing ssocia on s Safety Manage ent Conference in irginia each ou would thin that

the people who are responsi le for ac ground chec s would ha e chec ed o out a li le closer

o Moseley is a ending the T eadership Mee ng in St eters urg F May . The Moseleys will e a ending the SCT nnual Mee ng at ilton ead on une

Fredric Marcina and o Moseley will e a ending the Conference of Freight Counsel ee ng in al ore une 4

ac iordan will spearhead the Truc ing aw Co i ee rea out Session at the Su er Mee ng of the SCDT in she ille C

during uly

Making Tracks

CONGRATULATIONS The following lawyers of the S ith Moore eatherwood Transporta on Tea were

recently selected y their peers for inclusion in The Best Lawyers in America®

Copyright y oodward hite Inc of i en SC

o ert D Moseley r Insurance aw ersonal In ury i ga on

ac iordan ersonal In ury i ga on

Kurt M o els y ersonal In ury i ga on Defendants

roduct ia ility i ga on roduct ia ility i ga on

Defendants

ulianna C Theall ploy ent aw Manage ent a or

ploy ent i ga on

ri l right Co ercial i ga on ersonal In ury i ga on

onathan er elha er Co ercial i ga on ersonal

In ury i ga on Defendants roduct ia ility i ga on

roduct ia ility i ga on Defendants

Ste en Farrar et the Co pany i ga on Co ercial

i ga on egal Malprac ce aw Defendants Construc on

i ga on rofessional Malprac ce aw Defendants

Changes to Federal Jurisdiction and ProcedureThe recently enacted Federal Courts urisdic on and enue Clari ca on ct of Dece er signi cantly a ends

the federal urisdic onal statutes including pro isions co ering di ersity urisdic on enue federal ues on urisdic on and re o al The ct

was e ec e on anuary The ct includes se eral changes that are

signi cant for par es see ing to li gate in Federal Court including changes that are ene cial for par es re o ing cases to Federal Court and for o taining urisdic on in Federal Court

Removal Procedure The ct egins y codifying the longstanding re uire ent that in order for an ac on to e re o ed to Federal Court there ust e unani ity a ong the defendants re o ing an ac on Thus in eeping with prior case law all defendants ust agree and oin together to re o e a case to Federal Court I portantly howe er the ct goes on to clarify the echanics of the re o al of a case y ul ple defendants y resol ing a split a ong the federal circuits as to the procedure

y which such ac ons are re o ed re iously the a ority of circuits had

adopted the “last ser ed defendant

rule which pro ided that each defendant had a separate thirty days in which to re o e an ac on fro its par cular date of ser ice Thus the last ser ed defendant could re o e within thirty days of its date of ser ice and pre iously ser ed defendants could oin in that re o al

e en though these earlier ser ed defendants had not re o ed the ac on to Federal Court In contrast other circuits including the United States Court of ppeals for the Fourth Circuit adhered to the “ rst ser ed defendant rule Under this rule the rst ser ed defendant had the op on of re o ing the case within thirty days of its date of ser ice

ny defendant ser ed a er the ini al thirty days of ser ice fro the

rst ser ed defendant had e pired could not re o e the ac on to Federal Court The ct adopts the “last ser ed

defendant rule Thus in urisdic ons such as the Fourth Circuit that had adopted the “ rst ser ed defendant rule each party will now ha e thirty

days to re o e the case to Federal Court a er it has een ser ed

ny earlier ser ed defendants ust oin in the later ser ed defendants

no ce of re o al so that unani ity is aintained This change also pre ents

plain s a orneys fro anipula ng the ing of ser ice of process so that defendants less li ely to re o e are ser ed rst Instead each defendant will now ha e an e ual opportunity to re o e to Federal Court

The ct also a es odi ca ons to the procedure for deter ining the a ount in contro ersy Currently the a ount in contro ersy in a par cular case ust e ceed in order for the case to e re o a le The

ct states that where a state court pleading does not specify an a ount in contro ersy or where state prac ce per its a plain to reco er ore than the a ount sought the defendants

ay re o e to Federal Court and le docu enta on along with their o ce of e o al to de onstrate

that the a ount in contro ersy e ceeds The re o al will succeed if the defendants can show

"Several changes are significant for parties seeking to litigate in Federal Court, including changes that are beneficial

for parties removing cases to Federal Court and for obtaining jurisdiction in Federal Court."

y a preponderance of the e idence that the a ount in contro ersy e ceeds lterna ely in this situa on the defendants can lea e the ac on in state court and can re o e the ac on at a later e if a docu ent is produced which indicates that the a ount in contro ersy e ceeds

In those circu stances the defendants ust re o e within thirty

days of receipt of the docu ent indica ng that the a ount e ceeds

n the other hand where the state court pleadings state an a ount sought in the lawsuit that a ount can

e used to deter ine the a ount in contro ersy and it will e conclusi e as to the a ount in contro ersy e cept in states where state law or procedure per its the plain to reco er an a ount eyond the a ount na ed in the Co plaint In those states defendants ay re o e the a er to Federal Court and argue that the a ount in contro ersy nonetheless e ceeds despite the a ount clai ed in the Co plaint

Finally the ct adds se eral pro isions to a eliorate the harshness of the oneyear ar on re o al of cases to Federal Court ased on di ersity urisdic on Under current law a party ay not re o e a case to Federal Court on the

asis of di ersity urisdic on if ore than one year has elapsed since the date the ac on was led The ct creates two e cep ons First a party case re o e a case to Federal Court a er one year has passed where the plain acted in “ ad faith to pre ent re o al of the case Second the ct

pro ides that if the court nds that the plain deli erately failed to disclose the a ount in contro ersy to pre ent re o al such ac on cons tutes ad faith Currently it is co on prac ce for a orneys who want to pre ent re o al of a lawsuit against a ci en of a di erent state to include a ci ene en one whose lia ility to the plain is tenuous of the sa e state of the plain to defeat di ersity urisdic on

en es the in state defendant will e dis issed fro the case a er the

one year prohi i on against re o al has een triggered In these situa ons defendants will now e a le to assert that the plain has acted in ad faith to pre ent re o al and that the ac on should e re o a le the one year ar notwithstanding

Jurisdiction

ith regard to federal ues on urisdic on the ct a es one change

that upon rst reading of the statute appears to e roader than it is The ct states that where a Co plaint asserts a clai under federal law and also clai s under state law the en re ac on can

e re o ed to Federal Court ut that a District Court “shall se er and “shall re and any clai that is not within “the original or supple ental urisdic on of the District Court n rst lush this appears to re uire that

any state law clai s that are re o ed along with the federal clai ust e re anded to District Court owe er the ey phrase in the statute is the reference to supple ental urisdic on Supple ental urisdic on for erly

nown as ancillary or pendant urisdic on and currently e odied

in U S C pro ides that state law clai s that are “so related to federal clai s in the ac on that they for a part of the sa e

case or contro ersy ay generally e re o ed to Federal Court along with the federal clai Thus e en under the a end ents ade y the new

ct state law clai s that are related to the clai that is re o ed on the asis of federal urisdic on will re ain in

Federal Court nly unrelated state law clai s o er which there is no di ersity urisdic on ust e re anded to state

court It is certainly unusual to nd a Co plaint that pleads oth related and unrelated clai s therefore the circu stances in which the ct will e in o ed to re and state law clai s to state court appear to e li ited

owe er the apparently road ter s in which the ct spea s are li ely to lead to confusion in that argu ents for re and of related state law clai s are li ely to e ade and the ct

ust e carefully parsed and riefed to the courts so that clai s o er which supple ental urisdic on e ists will e

aintained in Federal Court

Venue Finally the ct a es se eral changes to enue pro isions The ost i portant of these is that District Courts now ha e the a ility to transfer any ci il ac on “to any district or di ision to which all par es ha e consented for “the con enience of the par es and witnesses and in the interest of us ce This statute allows the par es

to consent to transfer to any enue that they can agree on Further the

ct eli inates the dis nc on etween federal ues on and di ersity ac ons for purposes of enue and adopts a single general enue statute

Conclusion

The changes ade y the ct are li ely to eli inate so e of the confusion surrounding the ing and procedure for re o al of ac ons to Federal Court and urisdic on in Federal Court

erall these changes will li ely wor to the ene t of defendants who are see ing to ha e ac ons re o ed to Federal Court These changes will

e ene cial to par es who see the unifor ity of federal policy and procedure the a oidance of ias in local state courts and the ease and access of electronic ling in Federal Courts

Smith Moore Leatherwood LLPorneys at aw

The eatherwood la a ast Mc ee enue Suite

reen ille SC

T 4 4 44F 4 4 4 4www s ith oorelaw co

e represent oth large and s all truc ing co panies as insureds on ehalf of nu erous na onal insurance co panies and as self insureds In addi on the r has ser ed for any years as outside eneral Counsel for a na onally recogni ed co ercial ehicle insurer and is e perienced in all aspects of transporta on law including issues in ol ing federal and state statutes and regula ons pro ulgated y the for er Interstate Co erce Co ission ICC the successor Surface Transporta on oard the Depart ent of Transporta on and the u lic Ser ice Co ission s part of the array of transporta on ser ices pro ided to r clients an a er hours e ergency response tea is standing y to ser ice clients with urgent needs following a catastrophic accident

Georgia | North Carolina | South Carolina

Smith Moore Leatherwood LLP | Attorneys at Law | www.smithmoorelaw.com

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