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Guilty as Charged? Consider a Different Approach.

Expert Article by Chris Cotter

As an employer, what do you do when an employee receives a traffic citation while driving in the course of his or her employment?  If you are like most employers, you require the employee to handle the ticket and to pay any fines associated with it. It’s a good policy. The employer should not have to pay for the employee’s bad driving habits.

However, when an employee receives a traffic citation associated with a motor vehicle accident, the employer should consider a different approach. This is because an accident could give rise to claims for personal injury or property damage from the other parties involved in the collision. If those claims cannot be resolved, a lawsuit will likely be filed against both the employee and the employer. Depending upon how it is handled, the traffic citation – although a minor misdemeanor – could play a major role in that lawsuit.

An example will help illustrate the point. Employee Emily is involved in an intersection collision with another vehicle while driving in the scope of her employment. Emily believes she had a green light, while the other driver, Dave, believes he had a green light. The police arrive, conduct an investigation, and issue a traffic citation to Emily for running a red light.

Emily’s employer tells her to handle the traffic citation and that she will have to pay any fines associated with it. Not wanting to fight the charges, or not believing she has any other recourse, Emily pays the fine, which she is able to do online.

Several months later, Dave brings a personal injury lawsuit against Emily and her employer arising out of the intersection collision. Because Emily was in the course and scope of her employment at the time of the accident, if the jury finds that Emily was at fault, the employer will be liable as well.

At trial, the employer’s attorney argues that Emily was not negligent and presents evidence that Dave ran a red light, not Emily. However, Dave’s attorney presents a copy of the traffic citation issued to Emily by the responding police officer. He also presents evidence that Emily paid the traffic citation, which is legally considered a Guilty plea, i.e. an admission of guilt by Emily. Emily was advised of this in fine print when she paid the ticket online, but, like most people, did not read it before clicking the “Pay Now” button. Over objection from the employer’s attorney, the Court permits the jury to consider Emily’s Guilty plea. The jury returns a verdict for Dave, requiring the employer to pay because it interpreted Emily’s Guilty plea as her admission that she ran a red light.

By taking a slightly different approach with the traffic citation, an employer can avoid this scenario. For instance, instead of paying the ticket online, Emily could appear in Court at the date and time designated on the ticket and plead No Contest. A No Contest plea is similar to a Guilty plea, with one important exception: a No Contest plea is not an admission of guilt. Emily will still have to pay the fine, and any points that would attach to the citation will still attach. However, any evidence concerning the traffic citation or how Emily plead is not admissible in a civil lawsuit such as the personal injury suit brought by Dave. The jury will never know about it.

Employers can still require the employee to handle the ticket and pay the fine. However, the employer should play a more supportive role in informing and guiding the employee in how to respond to the ticket. Depending on the employee, a supervisor or the employer’s counsel may need to take a more active role in resolving the citation in a way that will not be harmful to the employer.

Bear in mind that there is more than one way to handle a traffic citation. Another option is to call the prosecutor ahead of time, present any arguments in the employee’s favor and ask to work out a deal that avoids entering a Guilty plea. Indeed, one of the purposes of excluding No Contest pleas in related civil lawsuits is to encourage plea bargaining as a means of resolving criminal matters. Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc. (2010), 125 Ohio St.3d 362, 365.

Whatever the employer’s policy on handling traffic citations received by employees while in the course of employment, the danger lies in the Guilty plea. When an employee is involved in an accident that could give rise to a lawsuit for personal injury or property damage by a third party, the employer and employee should understand the ramifications of simply paying the fine and develop a strategy to avoid entering a Guilty plea that can come back to bite them later.

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This entry was posted on Thursday, December 1st, 2011 at 7:00 AM and is filed under Employment & Benefits, Expert Guest Blog Entries, Litigation. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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