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Employers held liable for accidents

Rulings hinge on injuries caused by employees on cell phones in cars


MIAMI-Two recent cases highlight the employer liabilities that may arise from distracted driving.

Dyke Industries Inc. earlier this month was ordered to pay nearly $21 million to a 79-year-old woman who remains on a respirator following a March 29 car accident involving one of Dyke's salesmen.

The Ford Explorer driven by Dyke employee Lazaro Luis Leiva was involved in a collision with another vehicle, and a passenger in that car, Alicia Bustos, was seriously injured. Cellular telephone records revealed during the trial show that Mr. Leiva was talking to one of his clients on a cell phone seconds before he dialed 911 after the accident.

Ms. Bustos and her husband sued Mr. Leiva and his employer, Dyke Industries, a Little Rock, Ark.-based wholesale lumber company, in Miami-Dade County Circuit Court last June. They charged that Dyke Industries was vicariously liable for the accident because Mr. Leiva was acting within the scope of his employment when the accident occurred.

A jury on Dec. 14 awarded Ms. Bustos and her husband $20.9 million, the largest-ever personal injury verdict in Miami, said Michael A. Haggard, of the Coral Gables, Fla., law firm of Haggard, Parks, Haggard & Bologna P.A. Mr. Haggard represented the plaintiffs.

Mr. Haggard noted that there was no question that Mr. Leiva was distracted while he was driving. Mr. Leiva "wasn't negligent because he was on the cell phone, but it's obviously an issue," he said. "This might prove why."

Dyke Industries, which declined to comment, has a $16 million commercial auto insurance policy underwritten by The St. Paul Cos. Inc., Mr. Haggard said. St. Paul also declined to comment.

Meanwhile, a circuit court judge in Leesburg, Va., recently denied the demurrer by the Palo Alto, Calif.-based law firm of Cooley Godward in a cell phone-related case.

The judge's ruling permits a $30 million wrongful death lawsuit to proceed against the firm. The case involved one of its former associates, Jane Wagner, who accidentally struck and killed a 15-year-old girl while driving her car and, the plaintiff alleged, conducting business on a hand-held cell phone (BI, July 16).

The suit, Yoon vs. Wagner, alleges that Cooley Godward is not only vicariously liable for the accident but also directly negligent.

Among the suit's charges are that Ms. Wagner was acting within the scope of her employment when making cell phone calls to clients and that Cooley Godward encouraged the use of cell phones to conduct business. The suit also alleges that the firm failed to establish a policy about the safe use of cell phones while driving.

According to transcripts from the Nov. 5 demurrer, Cooley Godward's attorneys argued, among other things, that it was Ms. Wagner's driving activity that caused the accident and that because she was driving home at the time of the accident, she was not acting within the scope of her employment.

In his ruling, Judge Burke F. McCahill of the Circuit Court of Loudoun County, Va., granted plaintiff attorneys time to amend their direct negligence claim, and he rejected the demurrer on the vicarious liability claim.

"If the evidence leaves in doubt the question of whether the (employee) acted within the scope of the employment, the issue is to be decided by the jury and not as a matter of law by the trial court," Judge McCahill said.

Alicia Bustos & Ruben Bustos vs. Lazaro Luis Leiva & Dyke Industries Inc., Miami-Dade County Circuit Court, No. 01-13370 CA30.

Yoon vs. Wagner et al., Loudoun County Circuit Court; CL 24892.