FATAL MILK TANKER COLLISION

DOLAN MEDIA NEWSWIRE:

Subject: Fatal milk tanker collision case in Howell County settles

Pub: Missouri Lawyers Weekly

Author: Anne C. Vitale

Category: Justice,Transportation

Sub-Category: Courts

Issue Date: 07/31/2006      Word Count: 2307

Fatal milk tanker collision case in Howell County settles

by Anne C. Vitale

Dolan Media Newswires

 

ST. LOUIS, MO -- After two rounds of mediation, the family of a couple killed in a collision with a milk tank trailer has settled their Howell County wrongful death case, which their attorney believes to be the largest settlement to date in this community southeast of Springfield.

By examining data from the truck's Engine Control Module and the driver's fuel and cellular phone records, the plaintiffs established that the driver repeatedly violated his federally-regulated hours of service and had misrepresented his on-duty time in his driver's logbooks.

"The regulations require that the driver certify to the correctness of the entries on his driver's daily log," said H. Lynn Henry of West Plains, who brought suit on behalf of the couple's two adult children and both sets of parents. "We expected our expert to testify at trial as to how the repeated violations contributed to driver fatigue and the double fatality."

The plaintiffs brought suit against the truck driver and his employer, which carried minimum limits in insurance coverage. But through diligent discovery, the plaintiffs identified six additional defendants, including the Dairy Farmers of America.

"We were only able to understand the relationships of the parties through extensive paper discovery and depositions of the parties and corporate designees," Henry said. "With control and right of control over [the driver] as the fundamental issue, we knew that the only way to get beyond the minimal insurance coverage was to be able to make a case of joint venture, agency or sub-agency against some or all of the other named defendants.

"We recognized from the beginning that we had more parties in the case than we wanted if the case was to go to trial," he added. "However, without the naming of all of the parties we would never have been able to understand the arrangements."

Several defense attorneys considered the case against their clients to be a stretch.

Jonathan Kieffer of Kansas City, attorney for Dairy Farmers of America, said, "DFA probably was the most peripheral defendant from the standpoint of liability. All of the other defendants had at least some connection, although in some cases a rather thin connection, either to the instrumentalities of the accident — the driver, the tractor or the trailer — or had some role in arranging for or brokering the shipment of milk at issue. DFA simply wasn't connected to any of these issues, nor was there any evidence that DFA did anything that contributed in any way to the accident."

DFA's only involvement, Kieffer said, was that it was the milk of DFA-member dairy farmers that had been in the tanker in connection with this particular haul. "DFA did not hire, train or control the driver nor did it own, lease, maintain or control the tractor or trailer," he said.

Warren E. Harris of Springfield, Mo., and attorney for defendants Lone Star Milk Producers and Bullseye Logistics - a jointly-owned dairy cooperative and milk broker, called the plaintiffs' case against his clients "thin at best."

Furthermore, Harris noted that the load the driver was carrying had been delivered, the tank had been sanitized and he was on his way home. "Thus, there was a very strong argument that even if there was a joint venture, it had been completed at the time of the accident," he said.

But both Kieffer and Harris cited the family's jury appeal and precedent from an "illogical" Missouri case that adopted a joint venture theory of liability in trucking cases (see "Bad law" side bar, right) as factors in their decision to settle the case.

The parties reached the settlement in Lashley, et al. v. Dairy Farmers of America, et al. on June 20.

Fatal Accident

Jim and Renee Lashley made a habit of spending their day off from work together each Thursday. Jim Lashley, 45, worked as a department manager at the Wal-Mart store in Mountain Home, Ark., just across the state line from their home in south-central Missouri. Renee Lashley, 43, worked as a pharmacy tech at the Medicine Chest in West Plains, Mo.

The Lashleys had two grown children and were in the process of building a new home. About 1:30 p.m. on Feb. 12, 2004 — a clear Thursday with good visibility — the couple was on their way to Thayer, Mo., to look at fabric for new curtains.

Jim Lashley was driving their 1993 Chevrolet Lumina north on Highway 63, about three miles from Thayer. There was a small pickup truck directly behind the Lashley car.

Following behind the pickup truck was a semi-truck pulling an empty milk tank trailer owned by David Melton Trucking based in nearby Mountain Grove, Mo. Dorsey Eugene Foster was behind the wheel of the tractor-trailer, returning to Mountain Grove after a milk delivery to Memphis.

Foster gunned the engine on the tractor-trailer to pass the pickup truck and then attempted a double pass around the Lashley car. At the same time, Jim Lashley put on his turn signal and started to make a left turn onto a private drive across from the intersection with County Road 364. Although Foster later admitted seeing Lashley's left turn signal, he did not hit the brakes until one second before smashing into the Lashley car.

The collision sent the car careening 83 feet down the roadway and another 82 feet down a grass embankment before coming to rest. Renee Lashley died at the scene, and Jim Lashley died of massive head injures five days later.

In their accident reconstruction report, the Missouri Highway Patrol determined that Foster, who was not injured, was traveling at least 70 mph in a 60 mph zone while passing through the intersection.

The semi-truck itself also helped reconstruct the accident with information from its Engine Control Monitor - the equivalent of a car's "black box," but with more details including the truck's speed, throttle, application of brakes, miles driven and time spent driving and idling. The printout from the ECM recorded that 20 seconds before the brakes were applied the engine went to 100 percent throttle, and continued at 100 percent throttle for the next 16 seconds, during which time the tractor obtained a speed of 72.5 mph. Although Foster then let off the throttle, he did not apply his brakes until another five seconds elapsed.

Falsified driver logs

The ECM, along with Foster's com-data card showing the dates and times of his fuel purchases, also revealed that Foster repeatedly violated his hours of service and misrepresented his on-duty time in his logbooks from the time he started driving for David Melton Trucking in December 2003 through the day of the collision in February 2004, Henry said.

"At first glance, a review of his logbooks would indicate that he was in compliance," he said. "However, by comparing the data retrieved from the Engine Control Module, com-data records, trip envelopes and cellular phone records, we were able to establish a routine pattern of falsified logs."

Federal Motor Carrier Safety Regulations in effect at the time of the Lashley collision provided that the total driving time in a period immediately before or after a rest period could not exceed 11 hours. The rest period required 10 consecutive hours off-duty.

"Most truck drivers know what is legal and what is not so they make sure when they are filling out their logbooks that they are in compliance with their hours of service," he said. "Many employers know that their drivers are in violation and turn a blind eye to the violations."

In this case, Foster's com-data records confirmed that the logbooks were incorrect almost every time he got fuel, Henry said. For example on Feb. 5, a week before the collision, Foster's logbooks recorded that he made his usual trip to Memphis, leaving at 2:30 a.m. and returning to Mountain Grove and going off duty at noon. The com-data records, however, reflected that he fueled up at a truck stop 10 miles from Mountain Grove — his usual routine at the end of return trips — at 3:43 p.m. After allowing the additional time to drive to Mountain Grove, Foster's log reflected a disparity of four hours from the time that he would have gone off duty that date.

On Feb. 11, the day before the collision, Foster's driver log showed that he was on duty from 2:30 a.m. until he went off duty at 2:00 p.m., Henry said. However, the ECM showed that the truck he drove to Memphis was operational between 6:00 p.m. and midnight.

"Clearly, the truck was driven to Memphis the evening before and Foster did not get his 10 hours of required rest and off-duty time," he said. "From the Engine Control Monitor, Foster had 6 hours off-duty time on February 11."

The day of the collision, Foster's driver log again showed that he went on duty at 2:30 a.m. in Mountain Grove and arrived in Memphis at 7:00 a.m. But the printout from the ECM showed that the truck was not being driven during the early morning hours of Feb. 12.

The Highway Patrol had requested Foster to produce his logbooks for the week up to and including the date of the collision, and the logbooks were attached to the reconstruction report. "Since they appeared to be in compliance with the regs, the troopers made no comments about any violations in their report," Henry said.

Ultimately, the troopers concluded that the accident would not have occurred if Jim Lashley had looked in his rearview mirrors and not attempted a left turn. However, Henry said, "It would have been our position at trial that that conclusion was inadmissible as it invaded the province of the jury and the troopers had no way to know whether Jim Lashley looked in his mirrors or not."

Identifying defendants

"With Foster's blatant violations of the hours of service regs, we believed the evidence on the issue of liability was very strong," Henry said. "However, the case was extremely complicated due to multiple defendants represented by four separate law firms who, throughout discovery, made a united effort to point the finger of blame only at Foster and his employer, David Melton Trucking."

The business arrangements and relationships among the defendants, as well as the day-to-day operations, were difficult to piece together, he said, noting that he knew very little about those relationships before filing suit. Through informal investigation, Henry knew there was some relationship between David Melton Trucking and Lone Star Milk Producers out of Windthorst, Texas. He also knew that David Melton tractors were pulling trailers with Milk Transport Services L.P. logos on the side.

"We were unsure of the relationship between Milk Transport Services and Dairy Farmers of America although it appeared from records from the Department of Revenue that the trailer being pulled by Foster had been transferred from DFA to MTS," he said. From discussions with the insurance adjuster for David Melton Trucking before filing suit, he learned that Foster's trailer was leased by MCK Hauling of Cabool, Mo., at the time of the collision.

Through discovery, Henry ascertained that David Melton Trucking was being controlled by Lone Star and Bullseye Logistics. He eventually uncovered a letter of intent between the owner of Lone Star and Bullseye and the owner of MCK Hauling to form a new partnership known as Americas Best Carrier, or ABC, which was to purchase MCK Hauling. The owner of MCK Hauling had acknowledged in his deposition that MCK hauled exclusively for Dairy Farmers of America under a written Milk Haulers Contract with DFA.

"While the contract expressly stated that the parties intended that an independent contractor-employer relationship was to be created by the agreement, the contract also contained an express provision that the hauler, MCK, shall receive from DFA, and DFA only, all instructions, rules and procedures governing or relating to the providing of transportation services," Henry said. "The contract provided further that hauler shall strictly comply with such instructions. In addition, the agreement provided that the hauler need not personally perform the transportation services."

Henry took the position that Dairy Farmers of America "had not only authorized MCK to associate with the new entity to perform the contract, but that DFA had knowledge of the arrangement and had acquiesced and approved that the new entity take over the responsibilities under the written contract. Since MCK had to strictly follow DFA's instructions, so did the successor ABC."

Thus, by the terms of their written contract, "DFA had the right of control," he said. "In addition, the milk tank trailer being pulled by Foster on the day of the collision was a necessary instrumentality to the performance of the contract and DFA was a limited partner in MTS who had the ownership of and leased the trailer to MCK."

In December 2005, Henry had almost finished with discovery and was preparing for trial when the parties entered the first round of mediation, which produced a settlement with all defendants except Dairy Farmers of America. After a second round of mediation in May 2006, the plaintiffs reached a settlement with DFA.

Facts of the Case

Type of Action: Wrongful death

Type of Injuries: Double fatality

Court/Case Number/Date: Howell County Circuit Court/04AM-CV00165-01/June 20, 2006

Caption: Lashley, et al. v. Dairy Farmers of America, et al.

Judge, Jury or ADR: Mediation

Name of Judge: David Evans

Verdict or Settlement: settlement

Special Damages: N/A

Allocation of Fault: N/A

Last Offer: N/A

Last Demand: N/A

Attorneys for Plaintiffs: H. Lynn Henry and Roy E. Williams, Henry, Henry, Engelbrecht & Williams, P.C., West Plains, Mo.

Insurance Carriers: Not disclosed

Plaintiffs' Experts: Stanley Oglesby, Concordia, Mo. (engine control module); Bruno Schmidt, Springfield (accident reconstruction)

Defendants' Experts: None

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