Trucking Trial Success

Elisban Bazan v. Elite Fleet Hauling LLC & Eric Gonser

Cass County, Nebraska

Judge Michael Smith

CI 22-31

 Last week, Matt Quandt and Tom Culhane defended a trucking company and driver at trial in Cass County, Nebraska. The rearend accident occurred on Interstate 80 in January 2020.

 Plaintiff Bazan was represented by Pesek Law LLC. In discovery, they alleged $12,509,424 in total damages. They alleged a traumatic brain injury, chronic post-traumatic headaches, and a permanent neck injury. One week before trial, they proposed a $3,500,000-1,500,000 high-low agreement. At trial, Plaintiff’s counsel put on over two days of evidence, including four fact witnesses and three medical experts, and asked for over $2,010,000 million in closing.

 One week before trial, defendants offered $70,000. At trial, Matt and Tom admitted liability, put on less than two hours of evidence, and suggested $45,000.

 After only two hours of deliberation, the unanimous jury returned a verdict for only $100,000.

Matt Quandt appointed to the NDCA Board of Directors

Matthew D. Quandt

We're delighted to announce that partner Matt Quandt was appointed to the NDCA Board of Directors! The Nebraska Defense Counsel Association is comprised of approximately 200 Nebraska defense attorneys, practicing in state and federal courts. It’s mission is to enhance the knowledge and skills of its members and members' clients through educational programming and the exchange of information, ideas, and litigation techniques and to promote the highest standards of professionalism, civility and courtesy in litigation. This appointment is a testament to Matt's contributions to the legal community and his dedication to civil defense.

Matt is a key member of Erickson Sederstrom’s experienced litigation group. His practice concentrates on trucking accidents, including wrongful death and personal injury; he represents some of the biggest motor carriers and insurers in the nation.

 We extend our heartfelt congratulations to Matt on this well-deserved achievement. 

Quandt and Reilly recognized by Best Lawyers® in America 2023

Matthew Quandt and Matt Reilly of Erickson | Sederstrom

Erickson | Sederstrom is proud to announce Matt Quandt and Matt Reilly were recognized by Best Lawyers® in America 2023. They were both selected by their peers and included in the Best Lawyers: Ones to Watch in America™ 2023. These awards are recognitions given to attorneys who are earlier in their careers for outstanding professional excellence in private practice in America. Matt Quandt was selected for his work in Personal Injury Litigation - Defendants. His practice concentrates on trucking accidents, including wrongful death and personal injury; he represents some of the biggest motor carriers and insurers in the nation. Matt Reilly was selected for his work in Personal Injury Litigation – Defendants and Construction. The two main focuses of Mr. Reilly’s practice are in representing contractors across Iowa and Nebraska in construction disputes and in defending complex and severe personal injury claims.

ADA Claimant Must Connect Reasonable Accommodation to Medical Condition

The Eighth Circuit Court of Appeals recently held there was no failure to accommodate when an employee did not state that a requested change was connected to a medical condition.   In Powley v. Rail Crew Xpress, LLC, 25 F.4th 610 (8th Cir. 2022), the plaintiff, Leah Powley (“Powley”), was hired in July 2015 as a driver for the defendant, Rail Crew Xpress, LLC (“RCX”), a transportation company that contracts with railroads to transport their crews.  Within three years of her hiring, Powley requested six accommodations for various medical and familial reasons.  With each request, she submitted a doctor’s note identifying potential disabilities, including headaches and back pain, along with doctor-recommended restrictions.  RCX granted each requested accommodation.  During this time, RCX even promoted Powley to the position of part-time dispatcher, referred to within the company as a “starter.” In this position Powley scheduled and coordinated drivers to move crews from one location to another.    

After holding the position of starter for approximately 3 months, during which time RCX granted Powley multiple accommodations per doctor’s notes, Powley asked to return to her driver position informing one of her supervisors that the noise level in the office was interfering with her ability to perform her duties.  She informed another supervisor that the noise gave her a headache.  She also submitted a doctor’s note that stated only, “Patient may work 12 ½ hours per day.  Must have 11 hrs between shifts.”  25 F.4th at 612.  The company rejected the request, citing a policy that once an employee is promoted to a starter they cannot return to a driver position.

Thereafter, Powley reported to work and was upset that a dry-erase board tracking drivers and vehicles had been moved to a location that made it difficult for her to write on.  She asked the other dispatchers to rearrange the space and when they told her to talk to a superior, she announced “I’m done. I have to leave.”  25 F.4th 612.  The next day she emailed RCX stating she was unable to work as a starter because the office noise interfered with her ability to perform her duties.  She also reiterated her frustration with the dry-erase board placement and again asked to return as a driver. Significantly, she did not mention back pain or headaches in the e-mail. RCX treated this as a resignation.

Powley sued RCX alleging that it failed to accommodate her disabilities and retaliated against her for requesting an accommodation in violation of the Americans with Disabilities Act (“ADA”) and Nebraska Fair Employment Practices Act.  RCX moved for summary judgment (dismissal without a trial) and the trial court granted that motion, dismissing Powley’s claims.  She appealed the ruling to the Eighth Circuit. The Eighth Circuit affirmed the dismissal, holding that Powley had not actually sought a reasonable accommodation for an alleged disability under the ADA.

The Eighth Circuit observed that under the ADA the initial burden to request an accommodation is on the employee.  While the request does not need to be in writing and there are no necessary “magic words,” the employee must make it clear that he/she wants assistance for a disability.  The Eighth Circuit stated, “where there is no conceivable request for an accommodation, there is no failure to accommodate.”  613 F.4th at 613.  The Eighth Circuit found that Powley did not satisfy the burden for a failure to accommodate claim.  In its opinion, the Eighth Circuit noted that Powley sought and received numerous reasonable accommodations for her back pain, observing that each of those requests were accompanied by a doctor’s note or some indication that the request was due to back pain.  Her last request, however, neither attached a doctor’s note nor connected her request with back pain.  Therefore, she did not show that request was based on an alleged disability. 

This case illustrates the importance of the rationale an employee provides for a requested accommodation and documentation supporting such request. When the employee was able to provide a doctor’s note with the request for accommodation, the employer granted the accommodation. When she did not provide a doctor’s note or connect the request for accommodation to a medical condition that potentially qualified as a disability, the employer had no duty to provide an accommodation. Although it did not directly impact the decision, the employer’s history of providing accommodations when properly connected to potential disabilities likely helped the employer’s position on the disputed issue. Therefore, employers should carefully review requests to ensure they are for disabilities or alleged disabilities and treat such requests accordingly. If you have questions about when an employee must be accommodated for a condition, Heather Veik and E|S employment attorneys can be reached at 402-397-2200.

Dreaming of Buying a Plane?

Once considered an endeavor reserved for the ultra-wealthy, buying an aircraft is actually a fairly common event. Whether you are interested in a Piper J3 Cub, a Gulfstream G650, or something in between, there are a many justifications for purchasing an aircraft, particularly in this economy. 

Many purchasers cite a motivation to reinvest in their business, while proving an asset to depreciate. Others worry about growing inflation as a reason to lock in ownership in a tangible asset. Some point to the desire to travel privately in the age of COVID. Still other buyers see how travel by private aircraft saves significant time as compared to traditional travel on the airlines. Whatever the reasons might be, aircraft ownership is probably more accessible than you might imagine. Still, there are a lot of moving parts to work your way through before bringing that plane to its new home base. 

Starting your search for the right aircraft likely begins with identifying your intended use. Is the aircraft going to be used for fly-ins and the ocasional $100 hamburger? Or will this be a method for you and/or your company to become more efficient while improving quality of life? Regardless of the reasons, there are some things you should know before making an offer on an aircraft. 

In helping to identify the right plane for you or your company, you’ll need to know what the true cost of ownership is for any given candidate. Of course, this goes beyond the purchase price. There are fixed and variable costs to consider. These will include the actual cost of operation, usually calculated per flight hour. Will the costs of insurance for the aircraft and the flight crew be within reason? Is there a hangar available at the preferred airport? Will the costs of ownership be borne by an individual, a company or an owner group? What are the sales and use taxes that need to be considered? Will the aircraft be depreciated? Will financing be required? These are only a few of the factors a buyer should be considering. 

After the intended use and potential costs have been evaluated, the next task is to identify an aircraft that can fit the buyer’s needs and within the estimated budget. With the very tight aircraft market we’re seeing at this time, it could be that you’ve found your chosen plane through an aircraft broker. Perhaps the candidate for acquisition was identified by word or mouth. Or, maybe, you found the aircraft on one of the many websites, advertising planes for sale. However you found the right aircraft, you’ll want to demonstrate some level of commitment to the seller, either through a letter of intent, a deposit with an escrow company, or both.  Next comes the purchase agreement, followed by a test flight, and a pre-purchase inspection of the aircraft. Finally, if the aircraft is airworthy or brought up to specs during the inspection process, closing will be scheduled. In aircraft transactions, this can usually take place very soon after the inspections. For this reason, financing should already be in place so as not to hold things up. 

While purchasing an aircraft can involve a lot of activity in a compressed period of time, the right team can make the transaction go smoothly. Selecting the right legal counsel to oversee that team, can take the pressure off of an otherwise involved transaction. If aircraft ownership is something you’ve dreamed of, give us a call and let’s see if we can get you airborne. Even if full ownership seems intimidating, we can discuss alternatives that might satisfy your goals without the same level of commitment.

Trucking Accidents, Brokers, and Federal Preemption

In catastrophic trucking accidents, plaintiffs don't just limit their claims to the driver. More commonly, they try to sue the motor carrier, shipper, broker(s), etc. However, recent federal court rulings provide some insight and strategy for dismissing claims against brokers.

In Gillum v. High Standard, LLC, 2020 WL 444371 (W.D. Tex. Jan. 27, 2020), Scott Gillum was hit by a tractor-trailer and sued the driver, the motor carriers involved in hiring and training the driver, and the freight broker that selected the motor carriers. The freight broker, which Gillum accused of negligently hiring the motor carriers, moved to dismiss under the argument that federal law completely preempts state common law negligence claims against a freight broker. The federal district court agreed, concluding that the Federal Aviation Administration Authorization Act (FAAAA) completely preempts simple and gross negligence claims related to a freight broker’s services.

There was a split amongst courts that previously addressed this issue. The court considered the existing authority, looked at the plain language of the pertinent federal statutes, the limited statutory exceptions, Congressional intent, etc. The court held that “the FAAAA completely preempts Plaintiff's negligence claims . . . where that negligence ‘relates to’ the services the broker provides.”2020 WL 444371 at *7.

In essence, Plaintiff claims that [the broker] was negligent in arranging for the transportation of property between motor carriers. These allegations “go to the core of what it means to be a careful broker.” Krauss, 2018 WL 2063839, at *5 (holding FAAAA completely preempted claim against freight broker under negligent hiring theory because careless selection of a carrier is a core service of a freight broker); see also Georgia Nut Co. v. C.H. Robinson Co., No. 17 C 3018, 2017 WL 4864857 (N.D. Ill. Oct. 26, 2017) (“While the services of a freight broker do not include the actual transportation of property, they are focused on arranging how others will transport the property; these services, therefore, fall within the scope of the FAAAA preemption.”).

. . .

The Court finds most persuasive the line of cases that have held negligence claims against freight brokers are preempted under the FAAAA because “[e]nforcing state negligence laws that would have a direct and substantial impact on the way in which freight brokers hire and oversee transportation companies would hinder” the objective of the FAAAA in deregulating the shipping and transportation industry.

. . .

Plaintiff's claims against [the freight broker], therefore, seek to enforce a duty of care related to how Defendant arranged for the transportation of property between [the motor carriers], which—Plaintiff admits—are the very “services” Defendant provides as a federally-licensed freight broker. Such a claim “falls squarely within the preemption of the FAAAA.” Creagan, 354 F. Supp. 3d at 813.

. . .

Such a holding comports with the impetus behind the FAAAA's preemption provision because, in essence, Plaintiff is seeking “to reshape the level of service a broker must provide in selecting a motor carrier to transport property.” Miller v. C.H. Robinson Worldwide, No. 17-cv-408, 2018 WL 5981840, at *4 (D. Nevada Nov. 14, 2018), appeal docketed, No. 19-15981 (9th Cir. May 7, 2019). To avoid negligence liability, a broker like Defendant would need to inspect each motor carrier's background and the ways in which the motor carrier investigates, hires, and trains its own drivers, and “such additional inspection would result in state law being used to, at the least indirectly, regulate the provision of broker services by creating a standard of best practices, and ultimately contravening Congress's deregulatory objectives in enacting the FAAAA.” Id. (citing Rowe, 552 U.S. at 370).

Gillum, 2020 WL 444371 at *4, 5, 6.

Erickson | Sederstrom was recently involved in a similar case. The Southern District of Iowa held:

Plaintiffs’ negligence claim against NTC Logistics relates directly to NTC Logistics’ services as a broker and their arrangement of the transportation of property. Thus, the [Federal Aviation Administration Authorization Act] preempts it. Further, the FAAA’s safety regulation authority exception does not apply to Plaintiffs’ claim because the claim does not constitute a regulation of motor vehicles. Because Plaintiff’s claim against NTC Logistics falls under preemption provision of the FAAA and the safety regulatory exception to preemption does not apply, Plaintiffs fail to state a claim upon which relief may be granted.

Eugene Flanagan v. BNSF Railway Co. et al, No. 1:21-cv-00014-RGE-HCA (S.D. Iowa Nov. 19, 2021).

There is still a divide among some federal district courts, but current trends seem to be giving freight brokers detailed and persuasive preemption opinions to use for dismissal.

Matt Quandt is a member of Erickson | Sederstrom’s experienced litigation group. His practice concentrates on catastrophic trucking accidents. Mr. Quandt is a member of TIDA (the Trucking Industry Defense Association) and offers rapid response services. He is licensed in state and federal courts in Nebraska, Iowa, Missouri, and Kansas.

Erickson | Sederstrom represented at the Trucking Industry Defense Association’s annual meeting

Erickson | Sederstrom partner Matthew D. Quandt recently attended TIDA’s Annual Seminar in Philadelphia, PA.  The Trucking Industry Defense Association (TIDA) is a nonprofit association that is devoted to sharing knowledge/resources for defense of the trucking industry and committed to reducing the cost of claims and lawsuits. This year’s seminar featured presentations regarding the state of the industry, accident reconstruction experts, orthopedic experts, fraudulent claims, fleet management, jury psychology, and more.

 From the initial accident investigation, following a rapid response team call in the middle of the night, to pre-suit negotiations and litigation of catastrophic injury and wrongful death cases through discovery and trial, Matt handles all aspects of trucking and transportation litigation. He is committed to making sure his clients are comfortable with the litigation process and emphasizes early resolution of all claims in an efficient, cost-effective manner whenever possible.

Travel by Private Aircraft

For economic and health reasons, it seems that business and personal travel by private aircraft is at an all-time high. While the appeal of this form of travel tempts many people, passengers should be aware that there is more to private flying than showing up at an airport with bags in hand. Safety, legal and financial considerations must also be taken into account. Navigating through these considerations requires a level of experience and sophistication that is often beyond the typical traveler’s reach. Accordingly, it is imperative for individuals and businesses wishing to travel on private aircraft to assemble the right team before embarking on a venture into the wild blue yonder.

 Most often, flying a non-owned, private aircraft is accomplished through “dry leasing” an airplane from an owner who wishes to offset operational costs. In short, this means that the lessee directly hires the flight crew and is ultimately responsible for initiating, conducting and terminating any given flight. Collectively, these responsibilities are defined as exercising “operational control.” And although a written dry lease will usually be drafted to define the rights and responsibilities of the parties, the Federal Aviation Administration (“FAA”) makes it clear that even more important than what’s in a written dry lease is how the aircraft is operated. Specifically, the FAA released an Advisory Circular, 91-37B, meant to give lessees information in order to recognize and avoid agreements where operational control is not clearly maintained by the lessee. 

Using AC91-37B as the gold standard, the FAA has increased its enforcement efforts against parties entering into “sham dry leases.” Such leases are meant to give the appearance of a true dry lease; however, the intent of the parties may be to evade FAA scrutiny over the safe operation of air travel that might otherwise fall under commercial air travel. Where the FAA suspects sham dry leases and/or illegal commercial charter operations, the FAA has the authority to investigate and penalize violators through civil, and sometimes criminal penalties. Additionally, the FAA can suspend or revoke certificates of involved flight crew members. Hence, it’s not just lessors and lessees who should be concerned about compliance with FAA regulations when private air travel is concerned. 

At Erickson|Sederstrom, our aviation group has the tools to help clients involved in private air travel. From consulting to acquisition and operation, we can guide you through this complex area of law safely and effectively. Call today to see how we can help.

Erickson|Sederstrom Elects Matt Quandt and Shay Garvin as Partners; Connor Orr Joins the Firm

ERICKSON | SEDERSTROM is pleased to announce that MATTHEW D. QUANDT and SHAY GARVIN have been elected Partners and CONNOR W. ORR has joined the firm as an Associate.

Matt has been with the firm for two years, before which he litigated at a reputable Kansas City firm. His practice focuses on civil litigation, including catastrophic injury and wrongful death, trucking and transportation, construction defect, product liability, and professional liability. He is also a member of TIDA (the Trucking Industry Defense Association). He received his J.D. from the Washburn University School of Law (cum laude) and his B.S. from Baker University (cum laude). He is admitted to practice law in the state and federal courts of Nebraska, Kansas, and Missouri.

Shay has been with the firm since 2019. Prior to joining Erickson | Sederstrom, he practiced for several years with a nationally recognized firm in Lincoln. Shay focuses his practice on transactional areas, including mergers and acquisitions, business formation, securities offerings, debt and equity financing, and general counsel. Shay also has extensive experience in the transportation industry and is active in the Nebraska logistics community. He received his J.D. and M.B.A. in 2015 from the University of Nebraska and his B.A./B.S. from the University of Arizona. He is admitted to practice law in Nebraska.

Connor has joined the firm representing both individual and commercial clients for litigation and general counsel matters. Connor graduated from Creighton University Magna Cum Laude in 2014 with a Bachelor’s degree in Economics, then went on to obtain his Juris Doctorate from the Creighton University School of Law in 2017. He is a member of both the Nebraska and Iowa State bars, and has extensive litigation experience representing clients in both state and federal courts for matters including commercial contract disputes, insurance defense, personal injury, construction defects, product liability, wrongful death, trucking and transportation, and disputes concerning both commercial and residential real estate. He also has experience providing estate and business planning services, providing advice to help guide families and small, local business owners through both prosperous and difficult times.

Matthew D. Quandt accepted into TIDA (the Trucking Industry Defense Association), one of only six attorney members in Nebraska/Iowa.

The Trucking Industry Defense Association (TIDA) is a nonprofit association with members devoted to sharing knowledge and resources for defense of the trucking industry. Founded in 1993, TIDA has become the organization of choice for over 1,600 motor carriers, trucking insurers, defense attorneys and claims servicing companies. The organization is committed to reducing the cost of claims and lawsuits against the trucking industry. Members work to develop strategies and share knowledge to defend the trucking industry in personal injury, property damage, workers' compensation and cargo claims. TIDA members advocate on behalf of the industry’s interests.

As part of his trucking defense practice, Mr. Quandt offers 24-hour rapid response: facilitate on-scene investigation, organize applicable post-crash testing, collect driver and company documents, take steps to maintain confidentiality and expert work product, ensure FMCSR compliance, etc.

Federal Grant Funds Available for Communities to Improve Airfare and Air Service.

          The Department of Transportation (“DoT”) today announced a solicitation of proposals from communities seeking federal grant money to assist with the improvement of the community’s airfare and air service. The DoT is offering a total of $10 million in grants under its Small Community Air Service Development Program (“SCASDP”) to be disbursed to up to 40 communities, consortia of communities, or a combination of either (“Communities”).

           The SCASDP grants are to be used to implement improvements of the Community’s airfare and air service. This year, the DoT has a total of $10 million available in fiscal year 2017 (October 1, 2017 to September 30, 2018) to distribute in the form of grants to up to 40 Communities in order to implement improvements proposed by the applicant. There is no limitation on the amount of the grant awarded, but past awards have ranged from $20,000 to $1.6 million. Of the 36 SCASDP applicants in 2016, only nine grants were awarded to Communities in seven states.

          Those Communities eligible to receive the grant include those with airports that are not larger than a small hub airport, have inadequate air carrier service or high airfares, and have an airport for their Community that exhibits a need for grant assistance. Groups of communities are eligible if they are working jointly to accomplish the same goal and fit into the aforementioned categories.

          Importantly, the grants cannot be used for capital improvements. So runway expansions or resurfacing, construction of new hangars, etc. are not eligible improvements under the SCASDP. While there are several available uses for the grants, one of the more interesting is that grants are available for an underserved airport to carryout measures that are deemed to be useful in improving air service regarding the cost of air service to consumers and the availability of that service. This includes improving marketing and promotion of air services.

          As in 2016, the DoT will give priority to those Communities where: airfares are higher than the average airfares for all communities; a portion of the cost of the activity contemplated by the community is provided from local, non-airport revenue sources; a public-private partnership has been or will be established to facilitate air carrier service to the public; improved service will bring the material benefits of scheduled air transportation to a broad section of the traveling public, including businesses, educational institutions, and other enterprises whose access to the national air transportation system is limited; the funds will be used in a timely manner; and multiple communities cooperate to submit a regional or multistate application to consolidate air service into one regional airport.

          Communities that are currently receiving air service under Essential Air Service (“EAS”) or Alternate Essential Air Service (“AEAS”) are not eligible for SCASDP grants. Grant applications must be submitted no later than December 15, 2017 by 4 p.m. eastern time.

          For more information on SCASDP, EAS, AEAS and other state and federal grant programs relating to aviation, or for assistance with the grant application and determining your Community’s eligibility, please contact Tiernan Siems with Erickson | Sederstrom.