IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

AMENDED COMPLAINT

Pursuant to Rule 15 of the Federal Rules of Civil Procedure, the Plaintiff, Jaimee Underwood (“Ms. Underwood”) as her amended cause of action against the Defendants, James Fitzgerald (“Defendant Fitzgerald”) and Continental Express, Inc. (“Continental”) (collectively referred to herein as “Defendants”), respectfully states as follows.

Jurisdiction

1. This honorable Court has jurisdiction over this matter pursuant to diversity jurisdiction and  28 U.S.C. Sec. 1441.

Parties

2. Ms. Underwood is a citizen and resident of the city of Franklin in the State of Tennessee.  Ms. Underwood is a duly licensed and practicing attorney in the State of Tennessee.
   
   
3. Upon information and belief, Defendant Fitzgerald is a citizen and resident of the city of Somerset in the State of Kentucky, having a principal place of residence at 315 Park Avenue, Somerset, Kentucky 42503.
   
   
4. Upon further information and belief, Continental is an Arkansas corporation having its principal place of business in Little Rock, Arkansas.   Upon further information and belief, Continental’s Registered Agent for service of process is William Cannon, of 1701 South Shackleford Road, Little Rock, Arkansas 72211.
   
   
5. At all times relevant hereto, Defendant Fitzgerald was the employee of Continental, was acting within the course and scope of his employment with Continental, and was acting in furtherance of the business of Continental.

Relevant Facts

6. The provisions of 49 C.F.R. Secs. 301 - 399 are commonly referred to as the “Federal Motor Carrier Safety Regulations” and its provisions are binding upon Defendants Fitzgerald and Continental.
   
   
7. Section 383.1 of the Federal Motor Carrier Safety Regulations provides, in part, as follows:
   
   
   
   1. The purpose of this part is to help reduce or prevent truck and bus accidents, fatalities, and injuries by requiring drivers to have a single commercial motor vehicle driver's license and by disqualifying drivers who operate commercial motor vehicles in an unsafe manner.
      
      
   2. This part:
      
      
   3. Prohibits an employer from allowing a person with a suspended licence to operate a commercial motor vehicle.
      
      
8. Section 383.37 of the Federal Motor Carrier Safety Regulations provides, in part, as follows:

No employer may knowingly allow, require, permit, or authorize a driver to operate a CMV in the United States:

1. During any period in which the driver has a CMV driver’s licence suspended, revoked, or canceled by a State, has lost the right to operate a CMV in a State, or has been disqualified from operating a CMV;

9. Section § 383.5 of the Federal Motor Carrier Safety Regulations provides, in part, as follows:
   
   

   Disqualification means any of the following three actions:

   1. The suspension, revocation, or cancellation of a CDL by the State or jurisdiction of issuance.
      
      
   2. Any withdrawal of a person's privileges to drive a CMV by a State or other jurisdiction as the result of a violation of State or local law relating to motor vehicle traffic control (other than parking, vehicle weight or vehicle defect violations).
      
10. Section 383.51 of the Federal Motor Carrier Safety Regulations provides, in part, as follows:
    
    
    1. (1) A driver or holder of a CDL who is disqualified must not drive a CMV.
       
       
    2. (2) An employer must not knowingly allow, require, permit, or authorize a driver who is disqualified to drive a CMV.
       
       
11. Section 391.15 of the Federal Motor Carrier Safety Regulations provides, in part, as follows:
    
    
    1. General. A driver who is disqualified shall not drive a commercial motor vehicle.  A motor carrier shall not require or permit a driver who is disqualified to drive a commercial motor vehicle.
       
       
    2. Disqualification for loss of driving privileges. (1) A driver is disqualified for the duration of the driver’s loss of his/her privilege to operate a commercial motor vehicle on public highways, either temporarily or permanently, by reason of the revocation, suspension, withdrawal, or denial of an operator’s licence, permit, or privilege, until that operator’s licence, permit or privilege is restored by the authority that revoked, suspended, withdrew, or denied it.
       
       
12. On or about July 1, 2004, Defendant Fitzgerald applied for employment with Continental as a commercial truck driver.
    
    
13. On or about July 1, 2004, Continental requested a background check of Defendant Fitzgerald’s driving record by requesting a Database MVR, Express Delivery with regard to Defendant Fitzgerald.
    
    
14. On or about July 2, 2004, Continental received the results of the background check of Defendant Fitzgerald’s driving record, and in this regard, Continental received, among other documents, a two pagereport regarding Defendant Fitzgerald’s Missouri driving record, which report was labeled “Database MVR, Express Delivery” (the “MVR Report”).   
    
    
15. A true and correct copy of the MVR Report regarding Defendant Fitzgerald that Continental received on or about July 2, 2004 is attached hereto as Exhibit A.
    
    
16. The MVR Report received by Continental on or about July 2, 2004 clearly indicates that the State of Missouri had revoked Defendant Fitzgerald’s commercial driver’s license on May 8, 2004.
    
    
17. In addition, the MVR Report received by Continental on or about July 2, 2004 clearly indicates that Defendant Fitzgerald was not eligible for reinstatement of his commercial driver’s license until May 8, 2005.
    
    
18. The MVR Report received by Continental on or about July 2, 2004, clearly indicates that from May 8, 2004 to May 8, 2005, Defendant Fitzgerald had lost his commercial motor vehicle driving rights and privileges in the State of Missouri.
    
    
19. Pursuant to Sections 383.5 and 391.15 of the Federal Motor Carrier Safety Regulations, Defendant Fitzgerald was “disqualified” from driving a commercial vehicle from May 8, 2004 to May 8, 2005.
    
    
20. On or about July 2, 2004, Continental had actual and specific knowledge that Defendant Fitzgerald was “disqualified” from driving a commercial vehicle as provided for in Sections 383.5 and 391.15 of the Federal Motor Carrier Safety Regulations.
    
    
21. On or about July 9, 2004, despite having actual and specific knowledge that Defendant Fitzgerald was “disqualified” from driving a commercial motor vehicle, Continental hired Defendant Fitzgerald as one of Continental’s  commercial motor vehicle drivers.
    
    
22. By hiring Defendant Fitzgerald as a commercial vehicle driver despite having actual and specific knowledge that Defendant Fitzgerald was “disqualified” from driving a commercial motor vehicle, Continental knowingly, intentionally and willfully disregarded the strict mandates of Sections 383.51 and 391.15 of the Federal Motor Carrier Safety Regulations.
    
    
23. By hiring Defendant Fitzgerald as a commercial vehicle driver despite having actual and specific knowledge that Defendant Fitzgerald was “disqualified” from driving a commercial motor vehicle, Continental knowingly, intentionally and willfully disregarded the strict mandates of Section 383.37 of the Federal Motor Carrier Safety Regulations.
    
    
24. On or about July 9, 2004 and continuing through July 19, 2004, despite having actual and specific knowledge that Defendant Fitzgerald was “disqualified” from driving a commercial motor vehicle, Continental allowed, permitted and/or authorized Defendant Fitzgerald to drive one of Continental’s commercial motor vehicles.
    
    
25. By allowing, permitting and/or authorizing Defendant Fitzgerald to drive one of its commercial motor vehicles despite having actual and specific knowledge that Defendant Fitzgerald was “disqualified” from driving a commercial motor vehicle, Continental knowingly, intentionally and willfully disregarded the strict mandates of Sections 383.51 and 391.15 of the Federal Motor Carrier Safety Regulations.
    
    
26. By allowing, permitting and/or authorizing Defendant Fitzgerald to drive one of its commercial motor vehicles despite having actual and specific knowledge that Defendant Fitzgerald was “disqualified” from driving a commercial motor vehicle, Continental knowingly, intentionally and willfully disregarded the strict mandates of Sections 383.37 of the Federal Motor Carrier Safety Regulations.
    
    
27. Upon further information and belief, Defendant Fitzgerald also has an extensive criminal record including convictions in the past two (2) years for such crimes as Theft, Forgery and Possession of Marijuana, and has multiple driving violations on his record such as Speeding, Reckless Driving, Improper Passing, Running Stop Signs, and Driving Under the Influence.   
    
    
28. Continental was, or at the very least, should have been, fully apprised of the nature and extent of Defendant Fitzgerald’s  criminal record prior to considering Defendant Fitzgerald for employment.
    
    
29. According to Continental’s own representations, Continental spends only approximately two (2) hours processing and considering a potential commercial truck driver’s application for employment.
    
    
30. On July 19, 2004, only ten (10) days after Continental hired Defendant Fitzgerald as one of its drivers, Ms. Underwood was traveling East on Interstate 40 outside of Nashville, Tennessee in her 2002 GMC Yukon at approximately 6:30 p.m. when she suffered a blowout of her right front tire and was forced to lawfully pull her car over into the emergency lane on the inside left shoulder of the Interstate, near the Stewart’s Ferry exit ramp.
    
    
31. A short time later, Officer Christy Dedman (“Ms. Dedman”) of the Nashville Metropolitan Police Department, was dispatched and arrived on the scene at approximately 6:40 p.m. in a marked police car in order to render assistance to Ms. Underwood.
    
    
32. Ms. Dedman parked her patrol car directly behind Ms. Underwood’s car, turned on the patrol car’s emergency and flashing blue lights, and got out of her car to help Ms. Underwood change her tire.
    
    
33. As Ms. Underwood and Officer Dedman were standing on the inside shoulder of Interstate 40 East discussing Ms. Underwood’s flat tire, a fully-loaded tractor trailer approached the two women from the West on Interstate 40.
    
    
34. Upon information and belief, the fully-loaded tractor trailer was a 2001 International tractor-trailer, bearing Oklahoma Licence plates 1VP408, was owned and registered to Continental and was being driven and operated  by Defendant Fitzgerald. 
    
    
35. Upon information and belief, the fully-loaded tractor trailer being driven by Defendant Fitzgerald weighed almost Eighty Thousand (80,000 lbs.) pounds.
    
    
36. Upon information and belief, the fully-loaded tractor trailer was being driven by Defendant Fitzgerald at a rate of speed that exceeded the posted speed limit.
    
    
37. Several minutes prior to 6:50 p.m. on July 19, 2004, Officer Dedman requested an additional police officer to assist with changing Ms. Underwood’s tire, and a second Metropolitan Nashville police officer was dispatched to the scene.
    
    
38. Just prior to 6:50 p.m. on July 19, 2004, Officer Dedman and Ms. Underwood were standing between Officer Dedman’s patrol car and Ms. Underwood’s GMC Yukon, awaiting the arrival of the second officer.
    
    
39. At approximately 6:50 p.m. on July 19, 2004, the fully-loaded tractor trailer weighing almost Eighty Thousand pounds and traveling in excess of the posted speed limit, crashed into Officer Dedman’s patrol car, crushing Officer Dedman and Ms. Underwood between the two vehicles (the “Collision”).
    
    
40. At all times relevant to this action and on July 19, 2004, Continental was allowing, permitting and/or authorizing Defendant Fitzgerald to operate a commercial motor vehicle on behalf of Continental.
    
    
41. Officer Dedman was fatally injured and died at the scene as a direct and proximate result of the injuries she received in the Collision.   
    
    
42. As a direct and proximate result of the Collision, Ms. Underwood was critically injured and was transported via emergency personnel to the Vanderbilt University Medical Center, where she received and willcontinue to receive major medical treatment for her injuries.
    
    
43. As a direct and proximate result of the Collision, Ms. Underwood endured excruciating physical pain and suffering and suffered extreme mental anguish.
    
    
44. As a direct and proximate result of the Collision, Ms. Underwood will continue to endure tremendous pain and suffering and will continue to suffer extreme mental anguish into the foreseeable future.
    
    
45. As a direct and proximate result of the Collision, Ms. Underwood incurred substantial medical and related expenses and will continue to incur substantial medical and related expenses into the foreseeable future.
    
    
46. As a direct and proximate result of the Collision, Ms. Underwood suffered a diminution and loss of her capacity to enjoy life and will continue to suffer a diminution and loss of her capacity to enjoy life into the foreseeable future.
    
    
47. As a direct and proximate result of the Collision, Ms. Underwood suffered a loss of income and loss of employment opportunities as an attorney and she will continue to suffer a loss of income and loss of employment opportunities as an attorney into the foreseeable future.
    
    
48. Ms. Underwood is advised, informed and verily believes that the injuries she received as a direct and proximate result of the Collision are permanent, and that she will continue to endure the effects of her injuries for the remainder of her life.
    
    
49. At the time of the Collision, Continental was knowingly, intentionally and willfully disregarding the strict mandates of Section 383.37 of the Federal Motor Carrier Safety Regulations by allowing, permitting and/or authorizing Defendant Fitzgerald to operate a commercial motor vehicle on its behalf despite having actual and specific knowledge that Missouri had revoked Defendant Fitzgerald’s commercial driver’s licence..
    
    
50. At the time of the Collision, Continental had actual and specific knowledge that Defendant Fitzgerald was “disqualified” from driving a commercial motor vehicle, and yet, Continental knowingly, intentionally and/or willfully disregarded the strict mandates of Sections 383.51 and/or 391.15 of the Federal Motor Carrier Safety Regulations by allowing, permitting and/or authorizing Defendant Fitzgerald to drive the tractor-trailer that ultimately killed Officer Dedman and critically injured Ms. Underwood.
    
    
51. At the time of the Collision, Defendant Fitzgerald had actual and specific knowledge that he was “disqualified” from driving a commercial motor vehicle, and yet Defendant Fitzgerald knowingly, intentionally and/or willfully disregarded the strict mandates of Sections 383.51 and/or 391.15 of the Federal Motor Carrier Safety Regulations by continuing to drive the tractor-trailer that ultimately killed Officer Dedman and critically injured Ms. Underwood.

Causes of Action

Count One - Negligence

52. Ms. Underwood hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.
    
    
53. Ms. Underwood alleges that Defendants’ acts of negligence include the following:

Count Two - Negligence Per Se

54. Ms. Underwood hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.
    
    
55. Ms. Underwood alleges that Defendants’ acts of negligence per se include the
    following:
    
    
    1. failing to either slow the tractor trailer or change lanes when approaching an emergency vehicle in violation of Tenn. Code Ann. Sec. 55-8-132(b).
    2. failing to use due care in violation of Tenn. Code Ann. Sec.55-8-136.
    3. violation of Section 383.37 of the Federal Motor Carrier Safety Regulations.
    4. violation of Section 383.51 of the Federal Motor Carrier Safety Regulations.
    5. violation of Section 391.15 of the Federal Motor Carrier Safety Regulations.

Count Three - Reckless Driving

56. Ms. Underwood hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.
    
    
57. Ms. Underwood alleges that Defendants’ driving a fully-loaded tractor-trailer in excess of the posted speed limit under all relevant circumstances showed a conscious disregard for the safety and well-being of the general public and that such conduct constitutes reckless driving under Tennessee law.

Count Four - Negligent Hiring

58. Ms. Underwood hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.
    
    
59. Ms. Underwood alleges that Continental was negligent in their hiring of Defendant Fitzgerald.

Count Five - Reckless Hiring

60. Ms. Underwood hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.
    
    
61. Ms. Underwood alleges that Continental showed a conscious disregard for the safety and well-being of the general public in their hiring of Defendant Fitzgerald and that such conduct constitutes reckless behavior under Tennessee law.

Count Six - Negligent Entrustment

62. Ms. Underwood hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.
    
    
63. Ms. Underwood alleges that Continental was negligent in their entrusting the tractor-trailer that ultimately killed Officer Dedman and critically injured Ms. Underwood.

Count Seven - Reckless Entrustment

64. Ms. Underwood hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.
    
    
65. Ms. Underwood alleges that Continental was reckless in their entrusting the tractor-trailer that ultimately killed Officer Dedman and critically injured Ms. Underwood.

Count Eight - Knowing, Intentional and Willful Misconduct by Continental

66. Ms. Underwood hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.
    
    
67. Continental knowingly, intentionally and/or willfully disregarded the strict mandates of Sections 383.37, 383.51 and/or 391.15 of the Federal Motor Carrier Safety Regulations by allowing, permitting and/or authorizing Defendant Fitzgerald to drive the tractor-trailer that ultimately killed Officer Dedman and critically injured Ms. Underwood.
    
    
68. Ms. Underwood submits that Continental should be required to pay punitive damages for their knowingly, intentionally and/or willfully violating Sections 383.37, 383.51 and/or 391.15 of the Federal Motor Carrier Safety Regulations.

Count Nine - Knowing, Intentional and Willful Misconduct by Defendant Fitzgerald

69. Ms. Underwood hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.
    
    
70. Defendant Fitzgerald knowingly, intentionally and/or willfully disregarded the strict mandates of Sections 383.51 and/or 391.15 of the Federal Motor Carrier Safety Regulations by continuing  to drive the tractor-trailer that ultimately killed Officer Dedman and critically injured Ms. Underwood.
    
    
71. Ms. Underwood submits that Defendant Fitzgerald should be required to pay punitive damages for his knowingly, intentionally and/or willfully violating Sections 383.37, 383.51 and/or 391.15 of the Federal Motor Carrier Safety Regulations.
    
    

    Causation
    

72. Ms. Underwood alleges that the negligent conduct of Defendant Fitzgerald was a proximate cause of her injuries, losses and damages, for which Continental is also responsible.
    
    
73. Ms. Underwood alleges that the reckless conduct of Defendant Fitzgerald was a proximate cause of her injuries, losses and damages, for which Continental is also responsible.
    
    
74. Ms. Underwood alleges that the reckless conduct of Continental was a proximate cause of her injuries, losses and damages.
    
    
75. Ms. Underwood alleges that the knowing, intentional and/or willful misconduct on the part of Continental was a proximate cause of her injuries, losses and damages.
    
    
76. Ms. Underwood alleges that the knowing, intentional and/or willful misconduct on the part of Defendant Fitzgerald was a proximate cause of her injuries, losses and damages, for which Continental is also responsible.
    
    

    Vicarious Liability
    

77. Ms. Underwood alleges that Continental, as the employer of Defendant Fitzgerald, is legally responsible for the negligent, reckless, intentional, willful and/or knowing acts of Defendant Fitzgerald.
    
    
78. Ms. Underwood further alleges that under Tennessee law, all of the acts of Defendant Fitzgerald, whether negligent, reckless, intentional, willful and/or knowing acts, are considered to be the acts of Continental.

Requested Relief

Premises Considered, Ms. Underwood respectfully requests the following relief:

CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the foregoing document has been served via hand-delivery and/or overnight delivery upon the following person(s) on this _____ day of August, 2004.

1. Continental Express, Inc.  (via overnight delivery)
   c/o Pete Campbell, Director of Risk Management
   2800 Cantrell Road, Suite 500
   Little Rock, Arkansas 72202
   
   
2. James Fitzgerald   (via hand-delivery)
   315 Park Avenue
   Somerset, Kentucky 42503

  ________________________________
                Larry Hayes, Jr.                  No.  15481