US and Mexico Agree to Trucking Deal

March 4, 2011

The United States and Mexican governments have announced an agreement in principal to end a 20 year ban on Mexican trucks entering the United States.  Under the North American Free Trade Agreement, which went into effect in 1994, Mexican truckers were suppose to be permitted to transport goods into the United States.  However, since the enactment of NAFTA, Congress passed a series of laws to deny Mexican truckers the ability to drive into the United States.  As a result of these laws, NAFTA ruled that Mexico could impose punitive tariffs.  Despite NAFTA making this ruling in the late 1990s, the tariffs were not instituted until 2009.

Under the tentative deal reached by both countries, Mexican trucks will have to meet requirements equal to (and in some cases tougher than) those imposed on American truckers.  One of the more stringent requirements is that Mexican trucks must carry electronic recorders to ensure they only drive between the United States and Mexico and not domestically.  Additionally, the electronic records must track compliance with the United States’ hour of service laws.  Mexican truckers most also speak English and pass drug and safety tests.

It i s hoped that the Department of Transportation will have the proposed agreement available for public notice and comment by April.  Upon completing the comment period, the agreement would be formalized between the nations.  Under the agreement in principal, once the formal agreement is signed, half of the tariffs imposed on the United States will be suspended.  The remainder of the tariffs will be lifted when the first Mexican carrier complies with certification requirements.  It is estimated that $2.4 billion of United States goods would be subjected to the Mexican tariffs annually.

— Erik Anderson, Esq.

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.

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Plaintiffs to be Given Priority Over PIP Carriers Under Proposed Bill

December 21, 2010

On December 13, 2010, the NJ Assembly voted 75 to 0 to approve legislation granting plaintiffs priority over PIP carriers seeking reimbursement for PIP benefits against a tortfeasor’s insurance policy (the Senate passed its version of this bill 37 to 0 on October 18, 2010). This bill was proposed to reverse the New Jersey Supreme Court’s decision in Fernandez v. Nationwide Mutual First Insurance Company, 199 NJ 591 (2009), which found that an injured plaintiff does not have priority to the insurance proceeds of a tortfeasor when a carrier seeks to be reimbursed for PIP benefits it had paid out to that plaintiff.

The Fernandez matter involved a tractor trailer striking Mr. Fernandez and causing significant injuries. Fernandez received $250,000 in PIP benefits under his automobile policy issued by Nationwide. In April 2004, Fernandez sued the trucking company, which was insured by Proformance Insurance Company. In July 2004, Nationwide filed a subrogation claim through arbitration against Proformance seeking reimbursement of the $250,000 in PIP benefits paid to Fernandez. Subsequently, Fernandez settled with Proformance for his personal injuries for $1,000,000. However, Proformance paid Fernandez only $750,000 and deposited $250,000 in court pending the outcome of the PIP arbitration filed by Nationwide.

Fernandez objected to Proformance depositing the $250,000 into court and filed an action seeking the release of those funds to him in fulfillment of his settlement agreement. The trial court found that Fernandez had priority to the Proformance policy and Nationwide was only allowed to recover that amount still available under the Proformance policy (if any) after Fernandez’ recovery. The Appellate Division reversed the trial court and found that Nationwide should be reimbursed for those PIP benefits paid even if Fernandez did not receive his total settlement. Ultimately the Supreme Court upheld the Appellate Division’s decision and found that an injured individual did not have priority to a tortfeasor’s policy of insurance.

The bill passed by the Assembly and Senate amends the existing PIP statute regarding reimbursement to provide:

Any recovery by an insurer, health maintenance organization or governmental agency…shall be subject to any claim against the insured tortfeasor’s insurer by the injured party and shall be paid only after satisfaction of that claim, up to the limits of the insured tortfeasor’s motor vehicle or other liability policy.

The bill now goes to Governor Christie for his consideration.

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


US Government Proposes Cellphone Ban for Truck Drivers

December 19, 2010

On December 17, 2010, the Federal Motor Carrier Association proposed a new regulation prohibiting interstate commercial truck and bus drivers from using hand held cell phones while operating a commercial motor vehicle. Under the proposed rule, a commercial driver found reaching for, dialing or holding a cell phone while driving will face a fine up to $2,750. Additionally, if a commercial driver is found to violate state law regarding hand held devices two times in a three year period they would be subject to a 60 day suspension of their Commercial Drivers License. If a commercial driver is found to violate state law regarding hand held devices three times in a three year period they would be subject to a 120 day suspension of their Commercial Drivers License. A motor carrier found to allow its drivers to utilize hand held devices would be subject to a fine up to $11,0000.

The Department of Transportation has noted that 5,000 people were killed and another 500,000 injured in crashes involving distracted drivers in 2009. A study of distracted drivers indicates that an individual reaching for a phone while driving is three times more likely to be involved in an accident than an individual who is paying attention to the road. The study also found that individuals dialing their hand held phone while driver were six times more likely to be involved in an accident than an individual who is paying attention to the road.

There is a 60 day comment period on this proposed rule.

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Owner of Chiropractic Center Sentenced to 3 Years in Prison

November 30, 2010

On November 22, 2010, the former owner and President of Spinal Care & Rehabilitation Center located in Rahway, New Jersey was sentenced to 37 months in federal prison. In April 2010, Roberto Castanon pled guilty to mail fraud and admitted to organizing a scheme to defraud auto insurance companies. The scheme, which lasted from January 2003 through February 2007, consisted of Castanon recruiting individuals to stage automobile accidents and then referring those individuals to his Center for medical treatment. Additionally, he coached these individuals on how to fake injuries to obtain unnecessary medical treatment. Bills for the treatment rendered to these individuals were then submitted by Castanon to insurance companies for payment.

Castanon admitted that this scheme resulted in more than $400,000 in losses to insurance companies. In addition to his prison sentence, Castanon was ordered to pay $341,688.94 in restitution. Additionally, two co-conspirators have pled guilty to mail fraud, sentenced to prison terms and ordered to pay restitution.

See the United State Attorney’s press release regarding Castanon’s sentencing here….http://bit.ly/dNiCo0

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


EZ Pass records admissible at trial

October 25, 2010

An unpublished Appellate decision concerning a domestic violence action may have ramifications in the defense of trucking claims. In S.S.S. v. M.A.G., 2010 WL 4007600 (N.J. Super A.D.), at the hearing for a final restraining order, the plaintiff testified that on October 4, 2009, the defendant called the plaintiff to meet with him the next day. On October 5, at 9:00 a.m. the plaintiff left her classroom at Rutgers-Newark and entered defendant’s car. Defendant then drove the plaintiff to a motel. At the motel, plaintiff alleged that the defendant pushed the plaintiff, grabbed her arm and shoved her. According to the plaintiff, the assault occurred in Jersey City at 9:30 a.m. and she returned to school at 10:00 a.m.

The defendant, appearing pro se, testified that the plaintiff’s testimony was “all a lie.” He offered a letter from his employer stating that the company’s records show the defendant arrived at work at 8:35 a.m. and left at 5:00 p.m. The judge refused to accept the letter, ruling it was hearsay.

The defendant also offered into evidence his EZ Pass records showing he crossed the Bayonne Bridge into Brooklyn at 8:16 a.m. The defendant argued that it would be impossible for him to cross the bridge at that time, arrive at work at 8:35 a.m. and be able to arrive at Rutgers-Newark to pick the plaintiff up at 9:00 a.m. The judge refused to accept the EZ Pass records.

The Appellate Division noted that:

N.J.R.E. 803(c) (6) provides that a business record is admissible as an exception to the hearsay rule, provided that the writing was ‘made at or near the time of observation,’ was prepared in the regular course of business and it was the ‘regular practice of that business’ to keep such a record. Business records maintained in a computer system are not treated differently from hard copies made because they are stored electronically. Although no reported decision has ever considered whether EZ Pass records qualify as a business record under N.J.R.E. 803(c) (6), such records are not qualitatively different from the many records that have been so admitted.

How this decision will impact the defense of trucking claims remains to be developed. Potential uses for EZ Pass records at trial include: showing compliance or a violation of the hours of service regulations; demonstrating a “habit” of speeding or adherence to the speed limit; or allowing jurors to figure out average speeds a trucker drives (e.g. , if the driver enters the toll plaza at 2 p.m., the accident occurred at 2:30 p.m. and the accident scene was 35 miles from the toll plaza a juror will “do the math” and find that the driver was averaging 70 mph).

—Thomas Reardon III, Esq.

Reardon Anderson represents the interests of trucking companies, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://www.reardonanderson.com to learn more about our firm.