Christian S. Hansen
Post Number: 910
|Posted on Sunday, 23 September, 2018 - 05:47 pm: |
This thread is aimed primarily at Vladimir but anyone else is encouraged to join.
Vladimir asserts that he attended a prestigious law school in Australia and I assert that I attended the University of California, Berkeley majoring in Business and Finance but also took law classes at the prestigious Boalt Hall.
I suspect that the legal principles are the same or similar in our two countries.
This is NOT a request for legal advice but merely an active discussion of the elements of the case similar to law school where the professor lays out a set of circumstances and then leaves the discussion to the students and grades accordingly.
Vladimir...in your effort to impress the professor, how would you have responded?
You purchase a Rolls-Royce from a seller located in a distant city.
You arrange for transportation by contacting a broker who places the request for enclosed transport on the national load board at a stated price.
A trucker accepts the load and arrives at the seller's location.
For undetermined reasons the seller drives the car into the trailer under the guidance of the trucker, but the overhead floor rack has been set too low and gouges the top of the car causing extensive damages.
The bill of lading contains a clause that the trucker is NOT responsible for damages NOT caused by the trucker.
The trucker's insurance company cites that clause, determines that their insured (truck driver) did nothing wrong, and denies the claim, further noting that irrespective of the setting of the overhead rack too low (which is a fact that is NOT disputed) the seller drove the car and thus caused the damages.
The trucker further asserts that when he accepted the load he was told that the car to be transported (1953 Silver Wraith) was of a certain "standard" dimension and presumably set the overhead rack accordingly.
The students identify the following relevant legal principles:
1) agency relationship between seller driver and the trucker
2) proximate cause of the damage whether setting of the overhead rack too low foreseeably causing damage irrespective of who drove, or the driving of the car without foreseeability that the overhead rack was set too low.
3) negligence of the trucker in failing to control circumstances in order to prevent damages where the necessary elements of a negligence claim are:
a) a duty,
b) a breach of that duty,
c) a direct link between the breach of duty and the damages, and
d) damages resulting.
How would you respond?
Who is liable and why?
Who is NOT liable and why?
Are there other relevant legal principles not noted?
Just curious. Thank you one and all for commenting!
Vladimir Ivanovich Kirillov
Post Number: 1110
|Posted on Sunday, 23 September, 2018 - 07:11 pm: |
Well Christian there are similarities and differences between US and Australian law.
Firstly, you cannot contract out of negligence so clearly the truck driver was negligent and is totally liable for the damage to the car and that is the beginning and end of it.
The clause in the bill of lading would not protect the trucker at all as he had notice of the dimensions of the car and guided the sellor straight into the overhead rack which he set too low.
I would issue legal proceedings without even wasting ink on a letter of demand.
Insurance companies are notorious worldwide for not paying up. The technique is known as "stonewalling" and it works like this: The insurer denies the claim and only after a trial date is set down will they make an offer to settle and the first offer will usually be pathetically low. The insurers do this because they know that the majority of claims will die a "natural death" by virtue of the fact that most claimants will be more scared of lawyers fees than the amount of the loss.
One has to take into account lawyer client costs being sometimes double the amount of court ordered costsme For example the matter goes to court.The court finds the trucker negligent, awards damages and makes an order that the trucker pays the owners legal costs. Those legal costs are not what the owner has had to pay his lawyers. The costs are worked out according to the scale of costs set out in each courts rules. When I practised all law firms would get their clients to sign a contract to be paid at a specific rate that was most often twice the amount set out in the court cost scale of each court because not to do that would mean the law firm would go broke fast.
And so: $10,000 damages award is useless if the owner has paid his lawyers $100,000 in legal fees and only gets a cost order for $50,000 because the owner is down $50,000 to obtain a damages award of only $10,000.
Put simply going to court is a recipe for financial disaster if damages are small and that is precisely why insurance companies stonewall claims.
In the USA maybe things are different but I doubt it.
That said Christian, I stopped practising law 20 years ago so the above should not be taken as legal advice. I got out of that evil profession before it killed me. The law is a plaything for the rich and only the rich!
Post Number: 196
|Posted on Monday, 24 September, 2018 - 05:51 am: |
In my opinion the truck driver is at fault. He has a duty of care to ensure the car is loaded and transported without damage. He cannot assign that duty to another who is not a professional in his employ. The trucker had an obligation to ensure that the 'standard' dimensions supplied to him were in fact accurate for the Wraith and that he therefore set the rack height correctly for it. The trucker has a professional responsibility to carry out the loading of the Wraith with due care and attention to avoid damage.
The driver was under the direction of the trucker. The driver of the car could reasonably assume that the trucker, as a professional, was experienced in loading vehicles and would take care to set the rack correctly. The driver could also reasonably assume that the trucker would not direct him to drive the Wraith into the truck without ensuring that the rack was set correctly and it was safe to do so.
Therefore the trucker is negligent in not providing the duty of care required of him to ensure the car is loaded without damage. As a professional auto transport truck driver the loading and transporting of the Wraith safely was his responsibility and his alone. He cannot subrogate that responsibility to a private citizen not employed by him.
That's how I would argue it. I'll be interested to hear your comments Christian.
SRH8505 SRC18015 SRE22493 NAC-05370
Post Number: 214
|Posted on Monday, 24 September, 2018 - 07:17 am: |
I've no legal training whatsoever but would be of the unqualified opinion that the seller has no responsibility since he has already sold the vehicle and is no longer the owner, I'm assuming that the purchaser had already paid for the car before the accident occurred. It's the truck driver's responsibility to collect and deliver the car so any damage that occurred during loading, transportation and unloading is the truck driver's fault. The truck driver's contract with the broker was to collect the car at point A and deliver it to point B. The broker's contract with the purchaser was to arrange for safe collection and delivery. The purchaser should hold the broker liable for failing to fulfil the contract properly and the broker should hold the truck driver liable for negligent damage. There are 2 separate claims: the purchaser vs the broker and the broker vs the truck driver. If the vehicle dimensions supplied were incorrect that's merely a red herring, the onus was on the truck driver to double check before directing the driver to board his truck.
Christian S. Hansen
Post Number: 911
|Posted on Monday, 24 September, 2018 - 08:02 am: |
Thank you Vladimir, Jim, and Larry.
I was bringing this up from what is called "confirmation bias".
I find it appalling that any competent insurance counsel would even consider the defenses proposed and that they would treat the rest of us as complete fools for believing them and not protesting.
Similar to Vladimir's stonewalling discussion, it is what I refer to a the "blink theory"...who will blink first.
There are other details that I will spare you all at the moment, but suffice it to say, I am rather secure since I had insurance on the vehicle against the damages and have been paid by my insurance company.
Now the issue is that my insurance company is seeking to recover from the party at fault. Since the trucker's insurance company told my insurance company to take a hike, they are all now deeming the seller who drove the vehicle to be at fault simply by default and in the absence of any court adjudication against the trucker or signed stipulation of fault from the seller. Since the seller in a separate arrangement with me and as a courtesy repainted the roof (but without admitting fault), my insurance company is seeking recovery from me of the funds paid from my insurance claim. Oh, really?
They can sue me if they like, but venue for that will be in my location, not theirs, and their nonsense, frivolous, and Civil Procedure Rule 11(b) sanction worthy arguments will be laughed out of court. With only $5000 in question, it remains to be seen what they will do. Obviously I have suggested (demanded) that they first adjudicate the fault of the trucker (at which event I will file an amicus brief against the trucker) and leave the seller out of the equation and if they do not do that, well then, they can take a hike.
Vladimir Ivanovich Kirillov
Post Number: 1111
|Posted on Monday, 24 September, 2018 - 09:25 am: |
Christian I should point out to you that I attended the most conservative university in Australia not the most prestigious.
It was deemed the most conservative because during the Vietnam war, while there were protests raging at other campuses in Australia, at my university there were no protests at all.
Furthermore, I would say it was the worse law school in Australia, not the most prestigious. This was because we were the only law school in the entire state which was many times the size of Texas.
Just to get into the law school was a blood sport in itself. In order to qualify you needed to have reasonable marks after spending a year in another faculty. Most students choose the Faculty of Arts, including me where I studied Medieval History, Modern Social History, Politics and Philosophy.
What was the bottom marks to qualify were B,B,C,C. My marks were A,A,B+,B+. So I flew in being in the top 20 of 900 candidates for the only 90 places available. Sounds like I was quite intelligent but looking back on it I think I had my brains up my ass.
I distinctly remember the Professors of the History and Politics departments pleading with me to stay and do a Masters and or PhD with a view to becoming an academic. Like a bloody fool I went for the law and endured four more years of study so bloody boring it was like sitting on chair watching white paint on the walls drying.
Most of the law lecturers were arrogant rude bastards and the delivery technique of their lectures appeared designed to put perpetual insomniacs into deep sleep.
But there were more jobs in private practice available than law graduates available so given that I had a wife and young family foolishly I took the most secure route to a secure income when really I should have given my very attractive but hopelessly lazy wife the boot and become a Bohemian weed puffing academic.
After entering the profession working for immensely wealthy law firms I realized I had entered a true Heart of Darkness.
Yes surrounded by really nasty rude and inhumane Judges, Magistrates and senior lawyers I soldiered on like Alice in Wonderland though another 10 years of utter madness until I found the money was not worth the extremely stressful craziness of the caper and I fled the profession at high speed and never regretted that decision.
There are mean and nasty jokes about black sewer rats refusing to do things that lawyers will do and I say those jokes are in place for good reason.
Indeed, there are some nice humane competent lawyers around Christian, but have you ever found a needle in a haystack?
Christian S. Hansen
Post Number: 912
|Posted on Monday, 24 September, 2018 - 11:29 am: |
Long story short...no, not likely.
In Montana where I have had many cases, some thru to State Supreme Court as Trustee for my Family Trusts and acting Pro Se, I found ignorance more prevalent than arrogance. They "interpret" laws based on their small brained opinions as to what the statutes should have said rather than what they actually do say. Had one case where NO ONE all they way up to the writer of the Supreme Court Opinion understood the difference between a tax lien and a tax deed. Jheezh!! I filed a Petition for Rehearing in that case and while 99.9% of such petitions are routinely denied, remarkably mine was granted and although not affecting the bottom line outcome, did get them to admit that yes, deeds are indeed different from liens, but that is another story.