THE MCMILLIAN LAW FIRM - PROTECTING THE INJURED IN CHARLESTON, SC AND SUMMERVILLE, SC
One of the more common items that one sees on the highways of the Charleston area is the proverbial U-Haul or Ryder truck. These vehicles are usually being driven by an Average Joe or Jane as they move their belongings to a new home or apartment. The service provided by Third Party moving companies serves a very important need in our society since the costs associated with full service movers is often to expensive for an average individual.
However, another very important and dangerous habit in this industry is that the Third Party companies often release vehicles to drivers to operate on the highways when the vehicles would otherwise require a commercial license and the drivers have no experience at all in operating the larger and more dangerous trucks. The combination of larger vehicles and inexperienced drivers inevitably leads to an increase in automobile accidents and more severe injuries.
ESTABLISHED PRINCIPLES SUPPORT THIRD-PARTY LIABILITY
The development of the common law concerning the liability of Third-Party owners during the growth of automobile use during the 20th century established that a vehicle owner is, for the most part, liable for the plaintiff's damages if the owner negligently allows a third party to operate the vehicle.
EARLY TRENDS OF THE 21ST CENTURY ON THIRD-PARTY LIABILITY
In the early years of the new century, a trend developed among the states. State legislatures began to adopt statutes that extended vicarious liability to commercial vehicle owners if they allowed someone else to drive their cars or trucks and those third party drivers caused a car accident. For the record, South Carolina did not adopt such a law. However, many people with financial interest in the rental car industry, along with influential members of the insurance industry, opposed these laws on the basis that they assigned liability based on ownership status and not on fault. These individuals took their case above the state level directly to Congress to seek a uniform national standard on the issue and to reverse the trend being set at the state level.
THE GRAVES AMENDMENT - REVERSING THE STATE COURT TREND
Faced with mounting pressure from the rental car and insurance industry, Congress passed 49 U.S.C. 30106 in 2005. This law, known as The Graves Amendment makes it illegal for victims to file lawsuits against commercial vehicle rental companies when “harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease.”
Despite the setbacks brought about through The Graves Amendment, the law did also create several large loopholes:
- Section (a)(1), states that the law only applies to companies that are “engaged in the trade or business of renting or leasing motor vehicles.”
- Example: The exposure to liability of U-Haul (who primarily rents trucks) may be different than the exposure of The Home Depot (who rents trucks on a daily basis but is primarily a home improvement store). The critical analysis here is that just because a third party may rent trucks does not necessarily mean that the company may be protected by The Graves Amendment. It comes down to the underlying type of business that is renting the vehicle.
- The Graves Amendment does not apply if the owner or agent was otherwise negligent. In most cases, the negligent act of the owner would consist of the owner negligently entrusting a vehicle to an unqualified driver.
- Until recent years, it was virtually impossible for rental vehicle employees to verify that the drivers' licenses presented by customers were legitimate and not under suspension. However, as technology has improved, a number of vehicle rental and leasing companies (most notably the 'usual suspects that rent at airports such as Avis, Hertz, Enterprise, Dollar, National) now require their employees to verify the status of the license of a renter from the DMV. In court, violation of a written policy would support a showing of negligence. A clerk who fails to perform the check and then the customer crashes the rental truck, it is arguable that the rental company is liable for damages.
TRENDS IN SOUTH CAROLINA LAW
South Carolina courts have generally refused to recognize the negligent entrustment doctrine in cases that do not involve alcohol consumption. Despite no cases on point, some conversation by the South Carolina Supreme Court in other personal injury actions suggest that a modification on that position would probably be supported once the right case comes along. There has been some references by the Supreme Court of South Carolina in the dicta of other opinions that the Court should endorse non-alcohol negligent entrustment actions, at least in some cases, down the road.
Again, when the right case comes along with the right facts, I personally feel that South Carolina Supreme Court will revisit the vicarious liability of third-party vehicle owners, specifically the liability of commercial lessors who do not specifically operate as rental services and also private individuals, and the legal recourse to recover damages through the doctrine of negligent entrustment will expand in this state. This expansion is further supported by the technological advances that allow third-parties to identify disqualified drivers.
THE MCMILLIAN LAW FIRM - CHARLESTON, SOUTH CAROLINA PERSONAL INJURY ATTORNEY
Contact Jay McMillian at The McMillian Law Firm. Once you have obtained legal representation on your matter, the insurance company must cease direct contact and deal with your lawyer instead. Contact me as soon as possible so that I may conduct a site visit of the accident and begin to obtain witness statements, police reports, and all relevant materials I need to build your case towards an acceptable settlement or trial.
It is never too early to contact me! Each and every day is a day the insurance company will try and short-change your claim. I am available for home visits, hospital visits, nights and weekends, just let me know what works for you.
If you have been involved in a car accident and live in Charleston, Mt. Pleasant, North Charleston, Summerville, James Island, Johns Island, West Ashley, Goose Creek, Moncks Corner, Walterboro, Folly Beach, or any of the other fine communities of the South Carolina Low Country, contact The McMillian Law Firm now!! 843-900-1306 or email at [email protected]