DOL Home > OALJ > Whistleblower > Murray v. Air Ride, Inc., ARB No. 00-045, ALJ No. 1999-STA-34 (ARB Dec. 29, 2000) |
Murray v. Air Ride, Inc., ARB No. 00-045, ALJ No. 1999-STA-34 (ARB Dec. 29, 2000)
U.S. Department of Labor | Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210 | ![]() |
ARB CASE NO. 00-045
ALJ CASE NO. 99-STA-34
DATE: December 29, 2000
In the Matter of:
DAVID L. MURRAY,
v.
AIR RIDE, INC.,
COMPLAINANT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD1
Appearances:
For the Complainant:
Stephen M. Nassau, Esq.,
O'Toole, Rothwell, Nassau & Steinbach,
Washington, D.C.
For the Respondent:
Yvette Armas Rose, Esq., Michael P. Maddow., Esq.,
Meyers & Alterman, Washington, D.C.
This case arises under the whistleblower protection provision of the Surface Transportation Assistance Act (STAA) and its implementing regulations. 49 U.S.C.A. §31105 (West 1997); 29 C.F.R. Part 1978 (1999). Section 31105 prohibits employer retaliation against employees who make complaints related to violations of commercial motor vehicle safety laws (§31105(a)(1)(A)), employees who refuse to drive when operation of the vehicle would violate federal commercial vehicle safety regulations, standards, or orders (§31105(a)(1)(B)(i)), and employees who refuse to drive because of a "reasonable apprehension of serious injury" (§31105(a)(1)(B)(ii)). David L. Murray filed a complaint against Respondent Air Ride, Inc. (Air Ride) alleging that he had been terminated from
his position as a truck driver in retaliation for having engaged in activity protected by Section 31105. The Occupational Safety and Health Administration investigated and determined that urray's complaint lacked merit. Thereafter, Murray requested a hearing before a Department of Labor Administrative Law Judge (ALJ). Following a hearing on the merits, the ALJ ruled in urray's favor and ordered reinstatement and other relief. Recommended Decision and Order (RD&O). Murray then petitioned for attorney's fees and expenses, which the ALJ granted in a Recommended Supplemental Order Awarding Attorney's Fees (RSO). The parties timely filed briefs with this Board in favor of and in opposition to the ALJ's decisions.
We have jurisdiction over this case pursuant to 29 C.F.R. §1978.109(c)(2). We review the ALJ's findings of fact under the substantial evidence standard. Id. at §1978.109(c)(3). Our review of questions of law is de novo. 5 U.S.C. §557(b) (1996).
The ALJ's findings of fact are largely undisputed and are supported by substantial evidence in the record as a whole. David Murray, a truck driver with over 15 years of experience, was employed as a driver for Air Ride, which had a contract to transport packages for Airborne Express. The trucks used by Air Ride were leased from Rollins Leasing Corporation (Rollins), which was responsible for maintenance and repair of the tractors. Murray's assignment was to drive six days a week from Landover, Maryland, to Allentown, Pennsylvania, and back. urray's assignment consisted of picking up Airborne cargo in Landover, Md, driving to Hunt Valley where additional Airborne cargo was loaded, and driving to Allentown. At Allentown, urray's cargo was offloaded, and the trailer was loaded with other Airborne cargo, which Murray then drove back to Landover. The only modification in this schedule occurred on Saturday nights, when Murray was to stay overnight in Allentown before taking his load back to Landover the next day. Air Ride's delivery of Airborne Express cargo was extremely time-sensitive. At the time of the incident which led to Murray's termination he had driven the truck involved (Truck 401551) for over 50,000 miles, and therefore was especially familiar with the way the truck handled under a wide variety of situations.
In the early hours of Saturday, January 16, 1999, as Murray was driving from Allentown, Pennsylvania to Landover, Maryland, his truck erratically began to slow to well below the speed limit. This problem occurred on hills and on flat highway. Murray believed that the problem related to a malfunction of the governor2 on his truck and was a repeat of a problem that he had experienced earlier in the week.3 However, the truck's tendency to randomly decelerate was more severe than it had been prior to the Rollins maintenance earlier in the week. When going uphill the truck would decelerate to 35-45 miles per hour, and then unexpectedly accelerate. The problem intensified as Murray approached Landover. Murray was concerned about the safety of driving with the truck in this condition and tried unsuccessfully to reach Air Ride on his cell phone. Concerned about delivering his cargo late, however, Murray did not pull off the highway to call Air Ride. In order to provide a margin of safety, Murray turned on his flashers whenever his truck slowed, and tried to warn other truck drivers via C.B. radio.
When Murray arrived in Landover at approximately 7:30 a.m. on January 16, he promptly notified his dispatcher of the problems he was having. Murray was concerned that because the trip back to Allentown involved many more inclines than the trip from Allentown to Landover, he would experience even more difficulty in making the return trip that coming evening.4 Murray was also concerned about the weather conditions, which were conducive to the formation of invisible "black" ice on the highways. Murray was concerned that unexpected deceleration and acceleration might cause his vehicle to skid on the ice. Because he was not scheduled to make the trip to Allentown for approximately12 hours, and he thought there was sufficient time to make a switch, he informed the dispatcher that he would not drive Truck 401551 to Allentown because its mechanical problems made it unsafe to drive and requested that Air Ride provide him with another truck to make the trip. In the alternative, Murray offered to drive Truck 401551 if Air Ride would assume responsibility should anything go wrong on the trip to Allentown. Air Ride's dispatcher, after consulting with the company's' vice president, Glen Beecher, and Air Ride's CEO -- both of whom were located in Ohio and believed that it was safe for Murray to drive the truck to Allentown -- refused to order a different truck for Murray, refused to accept liability for anything that might happen should Murray drive Truck 401551 to Allentown, and told him he should make the run to Allentown "or else." Murray again refused, based upon his safety concerns, and the dispatcher told him to call in on Monday.
When Murray called in on Monday January 18, the dispatcher told him that he had been terminated. After attempting to talk with Beecher that day, Murray finally reached him on January 20. Beecher reiterated that Murray was fired and described the incident that occurred on January 16 as "the straw that broke the camel's back." Murray described the condition of the truck and his fear that the unsafe condition might have caused an accident. However, Beecher responded that Murray had been given a chance to keep his job by driving the truck back to Allentown, but that Murray had chosen not to do so. Neither Beecher, the dispatcher, nor the CEO had inspected the vehicle prior to terminating Murray.
I. Violation of Section 31105.
The STAA whistleblower provision states in relevant part:
49 U.S.C.§31105(a).
To prevail on a claim under Section 31105, the complainant must prove that he or she engaged in protected activity as defined in subsections 31105(a)(1)(A), 31105(a)(1)(B)(i), or 31105(a)(1)(B)(ii); that his or her employer was aware of the protected activity; that the employer discharged, disciplined or discriminated against him or her; and that there is a causal connection between the protected activity and the adverse employment action. BSP Trans., Inc. v. United States Dep't Labor, 160 F.3d 38, 45 (1st Cir. 1998); Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Moon v. Transport Drivers, Inc., 836 F.2d 226, 228 (6th Cir. 1987).
We have thoroughly reviewed the record in this case. We find that substantial evidence in the record supports the ALJ's comprehensive findings and carefully articulated conclusion that Murray was terminated because he engaged in activities protected by the STAA. With regard to the issue of protected activity, as the ALJ found, it is uncontroverted that Murray refused to drive his vehicle because he was afraid that, with the governor apparently malfunctioning, it would be hazardous to drive from Landover to Allentown on a night when there was a possibility of black ice, and the route had significant uphill stretches.5 In fact, company vice president Beecher confirmed that Murray said that he would drive his scheduled route from Landover to Allentown if Air Ride would provide a different truck or agree to protect him from any potential liability arising out of driving the malfunctioning truck back to Allentown. Even more telling, Beecher testified that he and other Air Ride officials had believed Murray's description of the problems he was having with the truck on January 16. Beecher simply asserted that it was Air Ride's belief that the situation as described by Murray was not unsafe.
Thus, the only significant question to be resolved with regard to the issue of protected activity is whether, under the circumstances faced by Murray on January 16, he had a reasonable apprehension that if he were to drive from Landover to Allentown on the night of January 16-17 he ran the risk of serious injury to himself or the public because of the vehicle's unsafe condition, as required by Subsection (a)(1)(B)(ii). The STAA makes clear that this "reasonable apprehension" standard is objective in nature; thus "an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health." 29 U.S.C.A. §311105(a)(1)(B)(2). We conclude that substantial evidence in the record supports the ALJ's finding that a reasonable person in the circumstances Murray faced on January 16 would have concluded that the unsafe condition of Truck 401551 presented a real danger that an accident might occur on the night of January 16-17.
The ALJ relied upon the following factors in reaching his conclusion in this regard. First, Murray was a very experienced truck driver, who had driven Truck 401551 "six days per week for approximately ten months and was very familiar with its operation. . . ." RD&O at 11. Second, Murray's testimony "that the truck was slowing down and speeding up sporadically during the route from Allentown to Landover on January 16" was uncontroverted and was believed by Beecher. Id. at 11-12. Third, the ALJ credited urray's uncontroverted testimony that on the trip from Allentown to Landover other trucks had to take evasive action as a result of his inability to control the speed of his truck, and that based on his experience the erratic behavior of the truck was likely to cause an accident. Id. Fourth, the ALJ found that the weather forecast for the night of January 16-17, of which Murray was aware, compounded his concerns. Id. at 12. "Consistent with Complainant's testimony, the forecast was for snow and ice on the ground, freezing temperatures at night and a slight rise in temperatures during the day . . . ." Id. Finally, the ALJ found that "although it may have been overkill to call an eminent expert witness to establish that a truck which accelerates and decelerates without warning is a safety hazard, Dr. Garber's[6 ] testimony clearly established that point." Id.
The ALJ found Air Ride's attempts to counter Murray's case to be
unpersuasive, and we agree. First, although Air Ride attempted to prove that Truck 401551 was
in good mechanical condition after January 16, the only evidence Air Ride produced in this regard
was an e-mail from an Air Ride official recounting a conversation he had with the driver who took
over Murray's route. The judge gave this document no weight, because it was highly ambiguous;
we agree and accord no probative weight to the e-mail.7 Furthermore, Air Ride produced none of the inspection and repair records which
are required to be kept for trucks such as 401551. Although by the time of hearing the time limit
for mandatory retention of those documents had passed, the ALJ found and we do as well that
it was incredible that Air Ride officials had taken the trouble to place the allegedly exculpatory
e-mail regarding Truck 401551 in Murray's personnel folder as a precaution in case they were
sued, yet failed to keep any of the presumably exculpatory official records regarding the condition
of Truck 401551. We agree with the ALJ that Air Ride's "failure to produce any records of
the vehicle after January 16 should be viewed with suspicion." Id. at 12.
Furthermore, as the ALJ noted, Murray was not required to prove that a safety defect in fact
existed. Under the STAA, a "reasonable apprehension" is enough. Here Murray's
apprehension was supported by his experience on the trip to Landover, especially when evaluated
in light of his experience with the truck earlier in the week, the weather forecast and, as the ALJ
found, "common sense."8
Air Ride also argues that Murray had requested leave for the weekend of
January 16-17, had been refused by Air Ride management, and that Murray's refusal to drive Truck
401551 was an insubordinate attempt to gain the weekend off in Landover, where Murray lived.
Brief of Respondent [on Liability] (Res. Br. I) at 10. However, Murray testified without rebuttal
that he often requested weekends off, and that those requests were usually denied. Thus, on
balance, the evidence does not compel an inference that on this weekend, in particular, Murray
decided to subvert the decision to deny him leave. We are also mindful of the fact that the ALJ
had the opportunity to evaluate Murray's demeanor.
In order to gain the protection of the "reasonable apprehension"
provision of the STAA, a complainant must have sought "from the employer, and been unable
to obtain, correction of the unsafe condition." 29 U.S.C.A. §31105(a)(2). As the ALJ
found, there can be no doubt that Murray complied with the requirements of this provision. Thus,
we conclude that substantial evidence in the record supports the ALJ's determination that Murray
engaged in activity protected by the STAA when he refused to drive Truck 401551 to Allentown
on January 16.
We also agree with the ALJ's determination that Air Ride terminated Murray
in retaliation for his protected refusal to drive to Allentown. Beecher admitted that if Murray had
driven the truck to Allentown on January 16 he would not have been fired. Thus, although Murray
had been cited for a few minor infractions early in his tenure with Air Ride, those infractions
would not have caused Air Ride to terminate Murray on January 16, 1999. Indeed, prior to his
refusal to drive, Murray had not received any written disciplinary notice since June 1998.
Additionally, Air Ride's Termination Record states that Murray was discharged because he
"refused load." RD&O at 14. Thus, there is substantial evidence in the record to
support the ALJ's finding that Air Ride discharged Murray because he refused to drive to
Allentown on January 16 in a truck that he reasonably believed to be unsafe. Therefore, Murray
was terminated in violation of 29 U.S.C.A. §31105.
II. Damages.
The ALJ ordered that Murray be reinstated with back pay, and awarded
compensatory damages. Air Ride challenges the amount of the back pay awarded on the ground
that the ALJ incorrectly estimated Murray's salary at ,000 per week. Air Ride argues that
"pay records clearly show the average weekly salary was in fact $902.33." Brief of
Respondent at 15. We have reviewed Complainant's Exhibit PP upon which the ALJ and Air Ride
both rely. We are satisfied that the ALJ's determination that Murray earned approximately ,000
per week while employed by Air Ride is consistent with this evidence. Had Air Ride chosen to
make its case before the ALJ regarding the exact salary Murray earned, the ALJ would have had
an opportunity to evaluate Air Ride's argument. Air Ride chose not to do so, and in fact made no
argument whatsoever regarding the amount of back pay that was due. Under these circumstances,
we find no reason to overturn the ALJ's determination.
Based upon his determination regarding the amount Murray would have
earned had he not been terminated by Air Ride minus the amount Murray earned from other
sources, the ALJ awarded Murray "$36,650 for the period between January 16, 1999 and
October 29, 1999" (the date Murray filed his brief with the ALJ). RD&O at 16. Based upon
the ALJ's findings that Murray was due $1000 per week in back wages for that period minus the
amount he earned in other wages, we have determined that the ALJ's calculation of $36,650 is
incorrect. The corrected amount of back pay due for that period is $36,440.9 The ALJ further awarded back wages in the
amount of $560 per week for the period between October 30, 1999, and the date Murray was
reinstated to his former position. The $560 amount took into account the fact that during this
period Murray was earning $440 per week in alternate employment. The record reflects that
urray was reinstated effective March 23, 2000. Therefore, Murray is entitled to $11,200 for
that period.10 Thus, Murray is entitled
to a net amount of $47,640 in back pay.
The ALJ also awarded Murray $20,000 in compensatory damages:
RD&O at 15. Air Ride challenges this award as arbitrary and capricious. Res. Br. I at 16. We find
this modest award reasonable under the circumstances. Murray testified that as a result of his
unlawful discharge he was required to file for bankruptcy, and as a result "I lost vehicles.
I had to sell things. Just bad, that's all." Transcript at 87. In addition, a hernia which he
developed while working for Air Ride went untreated and worsened. Id. at 88. Finally,
urray testified that he had gained weight from depression and stress, that he has had trouble
sleeping, and that his self-esteem has been damaged. Id.
In light of the fact that Murray was terminated, was as a consequence required
to declare bankruptcy and divest himself of his belongings, and was also unable to seek treatment
for his hernia, we conclude that the ALJ's award of $20,000 for the emotional distress Murray
suffered as a consequence is supported by substantial evidence.
III. Interest.
The ALJ ordered pre-judgment interest on the back wages owed Murray.
RD&O at 15. As the ALJ correctly noted, interest is to be calculated in accordance with 26 U.S.C.
§6621. Johnson v. Roadway Express, Inc., ARB Case No. 99-111, ALJ Case No.
1999-STA-5, Dec. and Ord. of Remand, Mar. 29, 2000, slip op at 17-18; see 29 C.F.R.
§20.58(a)(1999). Moreover, interest owed is to be compounded quarterly. Ass't Sec'y
of Labor and Harry D. Cotes v. Double R Trucking, Inc., ARB Case No. 99-061, ALJ Case
No. 98-STA-34, Supp. Dec. and Ord., Jan. 12, 2000, slip op. at 3. Murray is also entitled to post-
judgment interest (calculated in the same manner as pre-judgment interest) for any period between
the issuance of this final order and the payment of the back pay award.
IV. Attorney's Fees.
In his Recommended Supplemental Order Awarding Attorney's Fee (RSO),
the ALJ applied the hourly rate requested by Murray's attorney, $335.00 per hour for 1999, and
$340.00 per hour for the year 2000. The total in fees and expenses awarded to Murray's attorney
was $52,398.75. Air Ride objects both to the hourly rate determined by the ALJ to be reasonable
and to the number of hours of service credited by the ALJ. We have evaluated the ALJ's detailed
opinion on attorney's fees, find it to be complete and well reasoned, and with one noted exception
adopt it. We also take this opportunity to clarify the Board's position regarding reasonable hourly
rates.
To the extent that we have not already done so in other attorney's fees
decisions, we explicitly adopt the view articulated by the Court of Appeals for the District of
Columbia Circuit in Save our Cumberland Mountains, Inc. v. Hodel (SOCM),
857 F.2d 1516, 1524 (D.C. Cir. 1988)(en banc) that "the prevailing market rate method . .
. used in awarding fees to traditional for-profit firms and public interest services
organizations" should "apply as well to those attorneys who practice privately and for
profit but at reduced rates reflecting non-economic goals." See also Covington
v. District of Columbia, 57 F.3d 1101 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 916
(1996).
Counsel for Murray asserts without contradiction that the rates he normally
charges clients asserting public interest rights reflect his commitment to "public spirited
non-economic goals." Complainant's Petition for Attorneys' Fees and Costs (Pet.) at 9. We
therefore conclude that the SOCM and Covington principles should apply to the
determination of a reasonable hourly rate applicable to Murray's counsel in this case.
Air Ride argues that Counsel should be bound by the $235 per hour he
charged in 1999 and $250 per hour he charged in 2000 for clients pressing public interest claims
and "who can afford something in the neighborhood of commercial rates.'" Brief of
Respondent in Opposition to Recommended Supplemental Order Awarding Attorney's Fee (Res.
Br. II) at 2. However, under SOCM and Covington, which we have adopted as our
standard, the fact that an attorney often charges below-market rates for public interest clients does
not preclude such an attorney from charging higher, market rates in other public interest
litigation.
The ALJ had a more than adequate basis for the determination that $335.00
and $340.00 hourly rates are prevailing rates in Washington, D.C., the community in which this
case was litigated. The Laffey Matrix, applied in cases before the U.S. District
Court in the District of Columbia and relied upon by complainant's counsel, supports these figures.
See Laffey v. Northwest Airlines, 572 F. Supp. 354, 371 (D. D.C. 1983), rev'd on
other grounds, 746 F.2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S. 1021 (1985).
Counsel also submitted affidavits from three attorneys in practices similar to his, all of whom
stated that the Laffey Matrix is an accurate reflection of the usual rates charged by
attorneys in Washington, D.C. in similar cases.
Moreover, we agree entirely with the ALJ that Murray's counsel's experience,
reputation and expertise would enable him to command top dollar should he choose to do so.
Complainant's Petition for Attorneys' Fees and Costs (Pet.), Exh. B at 4. As Counsel's
submissions in this case establish, he is an attorney with superior skills, experience and judgment.
Thus, we find the hourly rate awarded by the ALJ just and reasonable.
Air Ride also argues that Murray's counsel should not be compensated for
hours he spent working on Murray's case before June 29, 1999, when "Complainant was
indisputably prosecuting the complaint pro se." Res. Br. II at 8. However, it is clear from
urray's Petition for Attorney's Fees that he first retained counsel in order to attempt to negotiate
a settlement with Air-Ride. Pet. at 1.11
Counsel's listing of time (Pet. Ex. A) shows that he was preparing a letter to Air Ride as late as
arch 8-9, 1999. Therefore, it appears that at most 4.7 hours12 were billed for a period when Counsel
was not representing Murray. We will deduct an amount representing 4.7 hours from Counsel's
award.
Citing Hilton v. Glas-Tec Corp. 84 STA-6, Sec'y Dec. and Ord., July
15, 1986, Air Ride argues that Counsel is not entitled to fees for time spent in preparing his fee
petition. However, more recent decisions by the Secretary of Labor have taken the opposite, and
we believe the correct, position. See Spinner v. Yellow Freight System Inc., 90-STA-17,
Sec'y Final Dec. and Ord., slip op. at 5 (awarding fees for preparation of fee application and
response to opposition); Clay v. Castle Coal and Oil Co. Inc, 90-STA-37, Sec'y Final
Dec. and Ord., slip op. at 8 (noting that "prevailing parties routinely are awarded fees for
attorney time spent in preparation of the fee application itself. . . ;" citing B. Schlei & P.
Grossman, Employment Discrimination Law (2d ed. 1983) at 1485 and n. 48), rev. on other
grounds, 55 F.3d 41 (2d Cir. 1995).
Finally, we emphasize that Murray's counsel did an exceptional job
representing his client at all levels of this proceeding, in keeping with his extensive experience.
As the ALJ stated:
RSO at 1. We note that Air Ride found it necessary to employ two attorneys to defend
unsuccessfully as it turns out -- against Murray's claim. We commend Murray's counsel, and wish
that attorneys with his skill and dedication would appear before this Board with greater regularity.
1. The reinstatement of David L. Murray, ordered by the ALJ on February
29, 2000, shall remain in effect.
2. Air Ride shall pay David L. Murray back wages of $47,640.
Respondent shall assign Complainant retroactive fringe benefits status to the extent that it
would affect his current or future entitlement to benefits. Air Ride shall pay to David L.
urray prejudgment and postjudgment interest on the back wages, compounded quarterly and
calculated pursuant to 26 U.S.C. §6621 and 29 C.F.R. §20.58(a)(1999).
3. Air Ride shall pay David L. Murray damages of $20,000.
4. Air Ride shall pay David L. Murray's counsel, Stephen M. Nassau, an
attorney's fee, including expenses, totaling $50,800.75.
SO ORDERED.
CYNTHIA L. ATTWOOD
RICHARD A. BEVERLY
1 This appeal has been assigned to a panel of
two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).
2 The governor is a device in the fuel
system which limits the tractor's maximum speed. The governor on Murray's tractor was set at 68 mph.
3 On January 11-12 Murray had
experienced similar problems while driving the truck from Landover to Allentown. When he reached
Allentown, Murray reported the condition of the vehicle to the Air Ride supervisor on duty and to Rollins,
which had its maintenance and repair personnel in Allentown. On his Rollins vehicle inspection report Murray
wrote: "Governor on Truck is messing up. Truck[']s speed is not constant. Truck slows down at will,
truck is a safety hazard." Murray also described the problem on his daily inspection report, which he
submitted to Air Ride at the end of the week.
Because Truck 401551 was due for its 90 day preventative maintenance on
January 13, Rollins personnel decided to address Murray's concerns at that time. Thus, from January 13-14
Truck 401551 underwent maintenance and repair. However, there is no indication that any work was
performed on the truck's governor. During the period that Truck 401551 was undergoing preventative
maintenance and repair, Murray was assigned another truck to drive.
4 Murray would have been
scheduled to leave Landover at approximately 8:30 p.m. and arrive in Allentown at approximately 12:15 a.m.
on Sunday, January 17.
5 Murray also argued that his
refusal to drive was protected under subsection 31105(a)(1)(B)(i) because "the operation violates a
regulation, standard, or order of the United States related to commercial motor vehicle safety or health . . .
." The ALJ ruled that "Complainant has presented such strong evidence that Complainant
engaged in protected activity under (B)(ii), the reasonable apprehension provision, that I find it unnecessary to
discuss (B)(i), the actual violation provision. RD&O at 11. For the same reason, we find it unnecessary to
decide whether Murray's actions were protected under subsection (B)(i).
6 Dr. Garber, Chair of the
Civil Engineering Department of the University of Virginia, is an expert on issues of speed, speed safety, and
speed variance in relation to traffic and accidents. Called as a witness by Murray, Dr. Garber testified in
detail about the dangers caused by a truck's tendency to slow down unexpectedly.
7 In the e-mail, an Air Ride
official wrote that the driver of Truck 401551 had reported to him that "the tractor was doing fine down
the road but he thought it would pull a little better, but there was no surging on the throttle." RD&O at
12. Although Air Ride argued that this report confirmed that there was nothing wrong with the Truck, it is
impossible to draw that conclusion in light of the statement that the driver "thought [the Truck] would
pull a little better . . . ."
8 In this regard, it is worth
noting that the fact that Air Ride officials did not think that the truck was unsafe is largely irrelevant in the
circumstances of this case where none of them examined the truck, and where Beecher actually believed
urray's version of events. The question is whether Murray's apprehension was reasonable.
9 From January 16, 1999
through August 27, 1999: 32 weeks x $1000 = $32,000- $600 in other wages = $31,400. From August 28,
1999 through October 29, 1999: $9,000 (9 weeks x ,000 per week) - $3,960 (9 weeks x $440 per week
(other wages)) = $5,040.
10 From October 30, 1999
through March 18, 2000: $11,200 (20 weeks x $560). From March 18, 2000 through March 22, 2000: $320
(4 days x $80 per day).
11 Contrary to Air Ride's
assertion (Res. Br. at 6), attorney's fees are recoverable for time spent on a case prior to the actual filing of
the complaint. See, e.g. Webb v. County Board of Education of Dyer County, 471 U.S. 234, 243
(1984).
12 These hours cover the
period from March 26, 1999, through June 17, 1999. By June 28, 1999, it is evident that Counsel was once
again representing Murray.
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