Plaintiff to Defendant

Plaintiff to Defendant

Morgan Colling & Gilbert, the defendant, settles a potentially costly vicarious liability lawsuit.

By David R. Corder

Associate Editor

bout eight years ago, two of the top lawyers at Morgan Colling & Gilbert's Tampa office sent John Morgan a memo labeled confidential.

Leo D. Gomez and Alejandro Fiol urged Morgan to fire Charles "Chuck" Stoyka, one of the personal injury firm's full-time private investigators. The lawyers took offense at suggestive comments Stoyka made to a 17-year-old clerk about her body piercing. But they also mentioned other concerns about Stoyka's past professional behavior.

Stoyka considered himself "untouchable" because of his relationship with Morgan, the firm's co-founder, and his brother, Tim Morgan, Stoyka's supervisor, they wrote.

"If decisive and dramatic action is not taken regarding this problem, we are certain that the day will come, sooner than later, when the firm will encounter a major legal problem as a direct result of Chuck's ignorance and behavior," wrote Gomez and Fiol, who have since left the firm.

Six years later, at 12:33 p.m. Sunday, Feb. 3, 2002, Stoyka drove a Ford Explorer into the rear of a passenger car on State Road 64 near 162nd Street in eastern Manatee County, according to authorities.

Stoyka, who was driving home to St. Petersburg from Avon Park after interviewing a potential client, set off a chain reaction that killed one woman and seriously injured several people, including two children and Sarasota car salesman Kevin Brown.

Stoyka was cited with careless driving.

It wasn't the first time Stoyka drove into the rear end of another vehicle while on the job. And it wasn't his first ticket for careless driving. During Stoyka's nearly 10 years with the Orlando-based firm, he was involved in as many as 12 wrecks - mostly rear-end collisions, and his license was suspended at least once.

The firm's principals had some familiarity with Stoyka's driving record at the time of the accident, according to a lawsuit later filed by Brown.

Vicarious liability

Despite Morgan Colling & Gilbert's reputation as one of the most litigious plaintiff firms in Florida, it may have then operated with what some legal experts would consider faulty personnel hiring and retention policies, according to allegations in the Orange County civil complaint.

By failing to regularly and thoroughly screen new and existing employees, businesses may face potentially large monetary damages through tort law (civil wrongdoing) known as vicarious liability and negligent hiring, retention and entrustment.

Most large companies recognize the potential for business loss through this area of law, says John-Edward Alley, a Tampa attorney board certified by the Florida Bar in labor and employment law and ranked as one of the "Best Lawyers in America." The Ford & Harrison lawyer spoke about the issue, but not the specific allegations against Morgan Colling & Gilbert.

But many smaller companies still hire employees with little regard for vicarious liability and negligent hiring, retention and entrustment, he says.

Alley cited a recent human resource industry study that compared the number of employee background investigations conducted in 1996 to those conducted in 2003.

"If you look at employers who have 100 or fewer employees, the number of employers doing background checks was significantly lower than the larger employers," Alley says.

Small-business owners don't realize the potential liability, he says, or they think background investigations are too expensive.

"Large employers are doing a greater percentage of background investigations today than in the early 1990s," he says. "The reason is the information is so readily available on the Internet, and the cost has dropped so much."

Just an accident

Less than 24 hours after the Manatee accident, H. Scott Bates, the firm's managing partner, discharged Stoyka. Bates didn't think Stoyka accepted responsibility for the damage he caused - an allegation that Stoyka calls untrue and heinous, according to court records. But Stoyka's firing didn't quiet the concerns of Brown, who was seriously injured in the wreck.

A little more than a year after the accident, Brown sued Stoyka and Morgan Colling & Gilbert. In addition to damages for personal injury, Brown retained Tampa's Davis & Harmon PA to sue the 600-employee firm on an allegation of negligent hiring, retention and entrustment by employing Stoyka.

Earlier this month, Brown settled with Morgan, Colling & Gilbert for an undisclosed amount. Neither of his attorneys, Cody Fowler Davis or Kevin B. Woods, would comment for this article.

While Morgan wouldn't discuss the settlement, he says the firm, represented by Clearwater attorney Jeffrey M. Katz of Dalan & Katz PL, accepts responsibility for Stoyka's actions.

"We have something like 30 investigators on the road in Florida every single day driving a lot of miles and conducting business on our behalf," Morgan says. "It's only proper that if one of our employees makes a mistake while furthering our business goals we should be responsible. And we are."

Morgan says the firm's hiring and retention policies weren't faulty. The issue, he says, was about an employee who had an unintentional wreck.

"Even with all the background checks, if someone makes a human error, which happens every day to all of us, there is nothing to do to prevent that from happening," he says. "People that go out and drive a car don't mean to have an accident. That's why it's called an accident. It's not intentional.

"An employer is not vicariously liable for most intentional acts," he adds. "Vicarious liability applies to something that is negligent. It's not an intentional act. The only time an employer would be responsible for an intentional act is if they negligently hired or retained an employee."

Court records show that in April 2000 the firm's Tampa managing partner, Donald Buckler, counseled Stoyka over three, then-recent automobile accidents.

Buckler put Stoyka on 90-day probation and requested he take a physical. Buckler later said in a deposition he had heard that Stoyka was known to fall asleep at odd times.

"I had heard rumors, and they were nothing more than unsubstantiated rumors within the firm, that Chuck was having problems staying awake," Buckler testified.

Dolores Miranda, a Morgan Colling & Gilbert employee who supervised Stoyka's appointment schedule, said in deposition she'd also heard that Stoyka would fall asleep during conversations.

Miranda told of an instance prior to the wreck where Morgan chided Stoyka at a breakfast business meeting about his sleep problem.

"Mr. Morgan even pointed out, there, 'Oh, there is Chuck over there sleeping behind a fish tank,' " Miranda testified. "So it was kind of a joke thing about him falling asleep."

Stoyka acknowledged in his deposition that co-workers questioned whether he had sleep disorder. "There was never anything determined about that," he said.

Punitive damages

The decision by Morgan Colling & Gilbert to settle with Brown came after 9th Circuit Judge Renee A. Roche granted the Davis & Harmon attorneys' request for punitive damages. That meant a jury could consider a monetary award in excess of actual damages.

The Davis & Harmon attorneys had cited an affidavit by Orlando labor and employment law attorney David V. Kornreich. The Akerman Senterfitt shareholder, also certified in labor and employment law, reviewed Brown's court file. He declared Morgan Colling & Gilbert negligent in hiring Stoyka.

In support of his declaration, Kornreich cited Stoyka's DUI conviction two years before the firm hired him.

"Morgan Colling & Gilbert took no action to investigate Mr. Stoyka's driving record prior to his hire, although such investigation would have been a reasonable course of action given that Mr. Stoyka's job duties involved substantial driving on the public highways," Kornreich stated.

In July, Morgan Colling & Gilbert filed a motion for a protective order against pretrial disclosure of its corporate finances. Roche had not ruled on the motion by Sept. 14 when she set a January trial date.

Morgan cites the inequities that small businesses, including his firm, face over issues related to vicarious liability.

For instance, Morgan questions why large car rental companies operate in Florida under a cap for vicarious liability damages.

"These guys are making a bloody fortune by putting tourists on the road, many from overseas who think their right side is the left side, and they're driving on our highways," he says.

Morgan attributes such inequity to ready cash the rental companies invest in legislative lobbying efforts.

"People like me - the little guy - have to pay the full freight and burden," he says. "That's unfair especially when the rent-a-car companies are putting maniacs on the road reading maps, driving with one eye on the road and driving in a foreign state.

"Those accidents are much more foreseeable than the guy who has a lawn service and sends his employees out on the same route every day," he adds. "All this is about is money, and that's sticking money down the politicians throats."

But University of Florida law school professor Stuart Cohn attributes much of the burden for vicarious liability to the courts' broad interpretation of the tort law. Cohn serves as associate dean of international studies at the university's Levin College of Law.

"The law in Florida is really consistent with the law throughout the country," Cohn says. "An employer is liable for the acts of the employee within the scope and course of employment.

"So if the employee is acting within the scope and course of employment and does something that causes harm or injury to another person then the employer is liable," he adds. "There are courts that use a fairly broad test to determine this."

An employer even may be liable for an employee who injures someone while on a work break, he says.

"They might be doing something within the scope and course of employment," Cohn says. "It's a judgment call on the court. Was the employee acting in a way that we can say that the employee's primarily objective was to serve the employer within that period of time even if the employee was doing something personal?"

Plaintiffs' attorneys benefit from the broad interpretation, Cohn says.

"We're seeing plaintiffs seeking to extend the boundaries in ways that are new; for example, in the areas of sexual harassment," he says. "In terms of standards applied by the courts, they're pretty much set. I think we're just seeing a broader range of cases."