An educational blog devoted to Florida contruction law topics by Florida Bar Board Certified Construction Lawyer, Trenton "Trent" Cotney. Please visit www.trentcotney.com for more information. Disclaimer below.
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A Vehicle Policy is a Must for Company-owned Vehicle Operation
Contractors have many options when it comes to establishing vehicle policies for their business. They may choose to allow employees to take vehicles home or they may decide that vehicles are for business use only and must be locked in at the office each night.
There is not one set policy that works for every roofing contractor, but no matter which type of policy you choose to implement, it’s important to have one in place. Your business can be legally liable if you allow a bad driver on the road. If you fail to take reasonable steps to determine that the driver is qualified to drive one of your vehicles and he or she causes an accident, you could be liable under negligent entrustment. A negligent driver may also damage the company vehicle or incur a ticket, fine, or penalty that costs your business money and/or increases your insurance premiums.
Get started by spelling out the basics of your policy, which might include:
Requiring employees to have a valid driver’s license and performing a driving record check
Addressing safety such as making seatbelt use mandatory and creating a cell phone policy
Establishing who can ride in a company vehicle
Detailing out exact uses of company vehicles, for instance, can it be taken home or used for personal use?
Is smoking permitted in the vehicle?
The next step is to consider and address liability concerns. Meet with your insurance provider to review coverages. If your policy allows employees to take company vehicles home, be sure that your insurance policy has the appropriate coverages for the many different scenarios. Ask your attorney to review the policy to be sure your business and your employees’ interests are adequately addressed by the policy and insurance.
Include a section in your vehicle policy on what to do if the driver and vehicle is involved in an accident. Clearly state the steps the driver should take in this situation and be sure each vehicle is equipped with an accident-reporting packet.
Be certain that your Driver Vehicle Inspection Reports (DVIRs) are being completed as required. These requirements can vary for each state so you will want to verify with your state’s department of transportation. The federal requirements for DVIRs require that at a minimum the following items are included:
Service brakes including trailer brake connections
Lighting devices and reflectors
Rear vision mirrors
Wheels and rims
You may also want your vehicle policy to permit your company to reduce a negligent employee’s wages to offset the cost of a damaged, impounded, or stolen vehicle (including any company tools or equipment within the vehicle). However, such provisions have to be properly written so that they do not violate federal or state wage and hour laws.
In addition to having your policy written out and signed by each employee who has access or reason to operate a company vehicle, it’s a good idea to make this the topic of one of your regular safety meetings – at least on an annual basis. You may have employees who just skimmed the document or may have trouble reading. By presenting the information visually and verbally you are ensuring that everyone receives and understands the message.
A claim for unjust enrichment may be brought against a contractor or owner as an equitable claim to address unexecuted change orders. As the Court stated in Della Ratta v. Della Ratta, 927 So.2d 1055 (Fla. 4th DCA 2006), "to state a claim for unjust enrichment, a plaintiff must plead the following elements:1) the plaintiff has conferred a benefit on the defendant;2) the defendant has knowledge of the benefit;3) the defendant has accepted or retained the benefit conferred;and 4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it." Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333http://www.glennrasmussen.com
The elements necessary to state a cause of action for fraud in the inducement are 1) a false statement concerning a material fact, 2) knowledge by the person making the statement that the representation is false, 3) intent by the person making the statement that the representation will induce another to act upon it, and 4) reliance on the representation to the injury of the other party. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253 (Fla. 2d DCA 1994). Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 http://www.glennrasmussen.com
Butler v. Yusem, 44 So.3d 102 (Fla. 2010): "there are four elements to fraudulent misrepresentation: (1) a false statement concerning a material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation."
Trenton H. Cotney Board Certified in Construction LawTrent Cotney, P.A.1207 N Franklin St, Ste 222Tampa, FL 33602(813) 579-3278www.trentcotney.com