By Tony Wright
Can a personal-injury plaintiff successfully sue for injuries caused by an independent contractor despite caselaw that suggests no liability in such situations?
A recent $2.5 million settlement indicates that the answer is "yes."
The plaintiff was a jogger seriously injured by a newspaper delivery person driving on the wrong side of the road. The defendants (the newspaper and the newspaper delivery company) cited a Supreme Judicial Court case for the proposition that they owed no liability for the actions of an independent contractor.
But the plaintiff was able to show that the driver did not understand the confusing form he signed to establish his status as a contractor. It was a case that took one attorney to a remote Brazilian village to track down the offending driver to get the answers he needed to bolster his client's case.
"Sometimes when there is caselaw by our SJC establishing that a similar situation would be legally adverse to your position, you need to dig hard into the facts and evidence," said Warren F. Fitzgerald of Boston, attorney for the plaintiff.
He, along with Michael B. Bogdanow and Bradley M. Henry, persuaded the defendants that any reasonable jury, based on the evidence, would find in their client's favor, prompting the defendants to agree to the substantial settlement.
A Tragic Accident
It happened around 6 a.m. on a February morning in 2001.
The plaintiff was taking her usual morning run along a quiet rural road in Millis, wearing both a reflective vest and reflective sneakers and running on the side of the road against traffic as recommended, when she was struck from behind.
A man, driving in his SUV on the wrong side of the road to more easily deliver newspapers to receptacles in front of subscribers' homes, struck her, pinning her body to the pavement and dragging her 1,000 feet before her body was freed when the SUV turned a corner.
According to Fitzgerald, the driver, a Brazilian man, panicked and fled the scene.
The plaintiff was eventually discovered and transported to the hospital.
The driver, upon fleeing, made a stop at the newspaper delivery company for whom he delivered papers — ostensibly to tell the employer that he hadn't finished his route. Then he drove home to his wife and children, packed up all his family's belongings and fled to Brazil.
Fitzgerald guessed that the man and his family — all Brazilian citizens who had overstayed their visas by a significant amount of time — fled out of fear of deportation or imprisonment.
The man was indicted in Massachusetts and warrants for his arrest remained outstanding.
The plaintiff suffered substantial injuries resulting in scarring, disfigurement and permanent functional limitations.
She sued both the newspaper and the newspaper delivery company for negligence.
Looks Like A Contractor …
The defendants argued that the driver was an independent contractor and not an employee, therefore relieving them both from liability for any injuries caused by his conduct.
To prove that, the companies put forth a six-page contract — an independent contractor agreement — that they made all drivers sign.
But Fitzgerald characterized the document as one so convoluted with legalese, indicating that an independent contractor relationship was being established by the execution of the document, that "it was not even understandable to most lawyers let alone someone not fluent in English," he said, referring to the driver in question.
In fact, Fitzgerald said that many of the thousands of newspaper delivery people who delivered for the defendants were from foreign countries and did not speak English at all, or at least not as their primary language.
In addition to mounting evidence that drivers didn't even understand the language contained in the independent contractor agreement, Fitzgerald and his colleagues were also discovering other evidence that helped establish an employee-employer relationship existed.
"The newspaper delivery service established a long-standing procedure of hiring individuals untrained in the delivery business before," said Fitzgerald.
To further establish that the defendants held out a great amount of control over their drivers, Fitzgerald and his team discovered advertisements placed by the defendants seeking delivery drivers who needed no prior experience.
"[The defendants] provided training to these persons," Fitzgerald said, noting that "true independent contractors, like artisans and trades people," don't need training by those for whom they work.
In fact, Fitzgerald said his team established that the delivery company "routinely demonstrated to its new delivery persons a method of saving time in delivery: drive on the wrong side of the roadway."
But even as discovery rolled along with the plaintiff's lawyers piecing together evidence establishing that the independent contractor relationship existed only on paper, they were concerned about precedent from the SJC that upheld the existence of an independent contractor relationship under similar circumstances.
That's when Fitzgerald's colleague, Henry, set out on a journey to Brazil to find the SUV driver.
'A Remote Brazilian Village'
With the assistance of two separate international investigative agencies, Henry set out on what would be a three-month search for the man who, according to Fitzgerald, was residing in a remote area of Brazil "rumored to be under the control of drug lords and not considered to be a safe place."
Henry eventually located the man in Pinheiros — a village nine hours north of Rio de Janeiro.
Fitzgerald said that once Henry was able to convince the driver that he was not there to arrest him, the driver became extremely cooperative, even agreeing to return to the United States to testify and risk being detained should the case go to trial.
"He and his wife were very religious people and had been burdened by the guilt," Fitzgerald noted.
That night Henry interviewed the man and his wife, who also had delivered newspapers for the defendants.
The driver answered questions for seven hours about how much control the defendants exercised over him as a delivery person.
The interview, taken down on a battery-powered laptop, yielded a six-page affidavit, which was eventually translated into English by Brazilian officials in Rio.
Fitzgerald said the driver's first-hand account of the defendants' business practices, including providing him with supplies, requiring him to satisfy specific deadlines, and requiring him to perform his packing at one of the defendant's warehouses and deliver papers according to the defendant's instructions, was enough to give defense counsel pause about whether proceeding with trial was a good idea.
Negotiations to settle went quickly, Fitzgerald noted.
"I negotiated with the principal designated by the defendants through their insurance carrier," said Fitzgerald.
"We had very substantial but pleasant discussions and the insurer and principal they designated were reasonable in their approach without the assistance of mediation," he added.
Fitzgerald said he owed his team's success to not being deterred by unfavorable precedent and by going the extra mile to find the driver and get his statement.
"And all for the benefit of one of the loveliest clients that I've ever had the honor to represent," Fitzgerald said.
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September 6, 2004
