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CAUSE NO. 2009-82027
MICHAEL D. ALLEN and § IN THE DISTRICT COURI OF
SHIRLEY ALLEN, §
Plaintiffs, §
§ HARRIS COUNTY, TEXAS
Vv. §
§
THE WAGGONERS TRUCKING § 334"™ JUDICIAL DISTRICT
COMPANY, §
Defendant §
ARBITRATION DECISION
The above case came before the Arbitrato: on September 13, 14, and 15, 2011 for hearing
in Oklahoma City, Oklahoma. Attorneys Sondra Jurica and Allison B. Waters appeared on behalf
of Michael D Allen and Shirley Allen, Plaintiffs. J. Ronald Petrikin and P. Bradley Bendure
appeared on behalf of The Waggoners Trucking Company (““Waggoners”), Defendant. The
Arbitrator heard testimony fiom witnesses Michael D Allen, Shirley Allen, David Waggoner,
and Howard Tucker. The Arbitrator heard opening arguments fiom counsel, admitted exhibits
into evidence, and closing aiguments of counsel. The parties elected to file post heating briefs
and reply briefs
This Arbitration Decision constitutes the Arbitrator’s findings of facts and conclusions of
law, and is based on the testimony and evidence admitted at the hearing and the principles of law
that apply to those facts
FINDINGS AND CONCLUSIONS
1. Background
The following are the facts stipulated by the parties except as otherwise noted Defendant
Waggoners operates a motor carrier authorized by the Federal Motor Carrier Safety
Administration (“FMCSA”). Waggoners uses both company drivers (employees) and owner-
operators. Plaintiff Michael Allen has been engaged in trucking as an owner-operator since 1979
1
EXHIBIT 2and has contracted with several other motor carriers prior to entering his contract with
Waggoneis. In October 2005, Michael Allen signed an Independent Contractor Operating
Agreement (“ICOA”) leasing a truck and trailer to Waggoners with a driver See Section C of the
ICOA, Exhibit 3. The ICOA provides in part that Michael Allen (the “Contractor”) is an
independent contractor and not an employee. (See Section 4 of the ICOA, Exhibit 3) It further
provides that the ICOA shall be construed under the laws of the State of Oklahoma (See Section
17 1 of the ICOA, Exhibit 3) The parties in the ICOA agreed to submit a dispute between the
parties to binding arbitration pursuant to the Commeicial Arbitration Rules of the American
Arbitration Association with such hearing to be held in Oklahoma City, Oklahoma. (See Section
17 m of the ICOA, Exhibit 3)
Both Michael and Shirley Allen drove the leased truck for Waggoners as a truck driving
team fiom October 2005 through the Spring of 2007 when Shirley Allen took a leave of absence
fiom driving. Mrs, Allen returned for a short period of time as a team driver with her husband
and took another leave fiom driving from July, 2007 to care for her mother. She suffers from
vatious medical conditions which have precluded her from driving since leaving Waggoneis
Michael Allen continued to haul for Waggoners as a single driver until mid-Decembei 2007. He
hauled his last load for Waggoners on or about December 19, 2007. His ICOA with Waggoners
was terminated during the first week of January, 2008
Late: in 2008, after Mr. Allen terminate the IOCA, Waggoners repoited to, USIS,
commonly referred to as DAC, a private data base that distributes information and history to
companies subscribing to its service, that Mr. Allen and Mrs. Allen were not eligible for rehire,
that they were discharged (or Company terminated leased), and that they were ano show
i)Prior to that date, on November 2, 2007, Michael Allen entered into an owner-operator
agreement with Totran Transportation Services, Ltd (“Totran”) to lease a truck and trailer. He
began hauling freight for Totran in January of 2008 He terminated his agreement with Totran on
June 30, 2009.
Mr Allen obtained FMCSA operating authority in the name of Two Mules Tiansfer,
LLC and began operating his equipment under that authority in July of 2009
In December 2009, Mr. Allen executed an ownet-operator agreement with Oakley
Trucking, Inc. (“Oakley”). Pursuant to the Federal Motor Carrier Safety Regulations, Oakley
sent a questionnaire to Waggoners, as a past employe: of Mi: and Mrs Allen Waggoners
1esponded on the questionnaire that Mrs. Allen was “Discharged” and was “Eligible for Rehire”
“upon review”. On the form completed for Mr Allen, Waggoners reported that his reason for
leaving was “Quit” and that he was eligible for rehire subject to review. In addition Waggoners
added on the form “No Show-Job Abandonment”
In May of 2011, he terminated that agreement with Oakley and entered into an owner-
operator agreement with Tuttle &Tuttle tucking company
Plaintiffs Allens have filed suit against the Defendant Waggoners in Cause No. 2009-
82027, Michael D Allen and Shirley Allen v. The Waggoners Trucking Company, in the District
Cout of Harris County, Texas, 334" Judicial District (the “Case”) The Allens in their suit have
alleged that Waggoners has disparaged and defamed them by filing a false DAC report in 2008
and by submitting false responses to the questionnaire sent by Oakley In addition the Allens
have alleged that Mr. Allen was constructively terminated fiom Waggoners because Waggoners
required him to transport loads which caused him to violate state and federal laws Waggoners
denies the allegations The parties pursuant to the provisions of the ICOA have agreed toarbitiate the Case pursuant to the Commercial Arbitration Rules of the American Arbitration
Association (the “AAA Rules”) and have agreed to hire the Arbitrator. The Texas Court has
entered an order staying the case pending Arbitrator’s decision
2. Preliminary Matter- Type of Award
At the scheduling conference, Waggoners requested a 1easoned award as the form of
award to be issued by the Arbitrator. The Allens requested a short form award. The matter was
left to be decided at the pre-hearing conference which was not held. At the close of the hearing
on the merits, the Arbitrator requested that the parties brief the issue. The AAA Rules provide
that a reasoned award is not necessary unless the parties request such an awaid or unless the
arbitrator determines that a reasoned award is appropriate. The Arbitrator finds that a reasoned
awaid is appropriate under these circumstances based upon the Texas Court’s review of this
decision.
3 Wrongful Termination Claim
Plaintiffs maintain that Mr Allen was constructively terminated by Waggoners because
‘Waggoners required him to transport shipments which caused him to violate state and federal
laws Plaintiff's Post Hearing Brief p 18. The contiolling agreement between Mr Allen and the
Waggoners was the ICOA. (Exhibit 3) The ICOA provides that Mr Allen leased his tractor
traile: unit (the “Equipment”) to Waggoners furnished with a driver (Exhibit 3, paragraph C). It
further provides “That this Agreement shall be construed under the laws of the State of
Oklahoma”. Exhibit 3, Section 17 1). The parties are in agreement that in order for Mr. Allen to
prevail on his claim of constructive termination, he must have been an employee of Waggoneis.
The Arbitrator finds to that Mi Allen was an independent contractor and not an employee of
WaggonersThe ICOA provides and Mr. Allen agreed that “Nothing in this Agreement is intended to
alter the fact that Contractor (Mr Allen) is and independent contactor and _not_an employee of
Waggoners Trucking (emphasis added) See Exhibit 3, Section 4
Plaintiffs argue that certain of Waggoners requirements and procedures made Mr. Allen
an employee and not an independent contractor Most if not all of this litany of Waggoners’
requirements and procedures are required or permitted by the Federal Motor Cartier Safety
Regulations (“FMCSR”) other regulations of the Department of Transportation. The FMCSR
were originally promulgated by the Interstate Commerce Commission and later by the
Department of Transportation pursuant to Congressional authorization. 49 CFR. §380 er seq
The FMCSR comprehensively regulate the safety of moto: carriers operations including their
equipment and drivers. They deal with such matters as driver hiring, drug testing, commercial
drivers licensing, equipment maintenance, loading and unloading practices just to name a few
They prescribe certain training of drivers as well as inspection of equipment They require
specific documentation with respect to the above Nothing in the FMCSR shall be construed to
prohibit a motor carrier from “requiring and enforcing more stringent requirements relating to
safety of operation or employee safety and health”. 49 C.F R. § 390.3 (d)
Congress enacted the ICC Termination Act of 1995 (“ICCTA”) which regulates interstate
motor carriers 49 USC §10101 er seq In abolishing the Interstate Commerce Commission,
Congress transfeired certain functions of the ICC to the Secretary of Tiansportation of the
Department of Transportation (“DOT”) Part of the authority transferred to the Sectetary was
jurisdiction over a motor cartier’s use of motor vehicles not owned by it to transport property
49 US.C. § 14102 The Secretary may require a motor cartier which uses motor vehicles which
it does not own to “have control of and be responsible for operating those motor vehicles incompliance with requirements prescribed by the Secretary on safety of operations and equipment
and with othe: applicable law as if the motor vehicles were owned by the motor cartier” 49
USC. § 14102 (a)(4). In order to protect the public from the tortious conduct of judgment-proof
operators of interstate motor cartier vehicles, Congress required a motor carrier to assume full
direction and control of leased vehicles and comply with the FMCSR. Price v. Westmoreland,
727 F.2d 494 (5™ Cir. 1984) Pursuant to its authotity the Secretary promulgated the leasing
regulations for such equipment in 49 CFR. § 376. The leasing regulations are in addition to
those prescribed by the Secretary in the FMCSR The leasing regulations specify what must be in
an equipment lease of equipment with or without drivers. 49 CF R. § 376.2 (f)
Plaintiffs argue that the Allens were statutory employees based upon 49 C.F.R. §390.5
That provision defines employee “any individual, othe: than an employer, who is employed by
an employer and who in the course of his or her employment ditectly affects commercial motor
vehicle safety. Such term includes a driver of a commercial motor vehicle (including an
independent contractor while in the couse of operating a commercial motor vehicle .” The
purpose of this definition is to make the motor carrier responsible for the safety and operations of
the equipment which it uses in accordance with the Congiessional mandate. The leasing
regulations require a motor carrier to have
“exclusive possession, control, and use of the equipment. ” and “shall assume complete
oe foi the equipment during the duration of the lease”. 49 C FR. §376 12 (c)
The regulation also provides that
“Nothing in the provisions required by paragraph (c)(1) of this section is intended to
affect whether the lessor or driver provided by the lessor is an independent contractor or
an employee ofthe authorized carrier lessee. An independent contractoi relationship may
exist when a cartier lessee complies with 49 U.S.C. 14102 and attendant administrative
requirements.” 49 C.F R § 376 12 (c)(4)The purpose of the FMCSR is to define the motor caitier’s liability to the public. Price v.
Westmoreland, 127 F 2d 494 (5* Cir 1984) The purpose of the leasing regulation is to define the
motor carrier’s and motor vehicles lessor’s obligations to each other and provides that the motor
cartier has the obligation to the public. Clearly, the definition of employee in 49 CF R. §3905
does not apply to the classification Mr Allen as an employee of Waggonets pursuant to 49
CER. § 376.12 ©)(4)
Plaintiffs next argue that the Allens are employees under Oklahoma law. Oklahoma
statutory law 1ecognizes that owner operators ate independent contractors. The Oklahoma
Employment Security Act provides that the tem “employment” does not include:
“services performed by a person, commonly referred to as “owner-operator:, who owns
or leases a truck-tractor or truck for hire, provided the owne1-operator actually operates
the truck-tractor ot truck and, further, that the entity contracting with the owner-operator
is not the lessor of the truck-tractor or truck.” 40 Okla Stat. §1-210(15)(v)
In addition, the Oklahoma Workers Compensation Act excludes fiom its definition of
“employee”
“[a] person commonly referred to as an owner-opeiator, who owns or leases a
truck/tractor 01 truck for hire, if the owner-operator actually operates the truck-tractor or
truck and if the person contracting with the owner-operator is not the lessor of the truck-
tractor or truck.” 85 Okla. Stat. §331(9)
Neither of the Allens would be considered employees under Oklahoma law for workeis
compensation of for unemployment.
The Oklahoma Supreme Court in Duncan v Powers Imports, 884 P.2d 854 (Okla 1994)
considered eleven factors in determining whether an individual is an employee or independent
contracto It held that “no one factor is controlling and the relationship must be based on the set
of facts particular to the case ” Jd at 855-856 The factors aie:
(a) What was the nature of the contract between the parties? Was it written or oral?(b) What was the degree of control which, by the agreement, the employer may exercise
on the details of the work? What independence was enjoyed by the contractor or agent?
(c) Was the one employed engaged in a distinct occupation o1 business? Did he carry on
such occupation or business for others?
(d) Was the work of a kind that is usually done under the direction of the employer or by
a specialist without supervision?
(e) What skill was required in the particular occupation?
(f) Did the employer or the workman supply the instrumentalities, tools and the place of
work for the person doing the work?
(g) What is the length of time for which the person is employed?
(h) Was the method of payment based on time or was it by the job?
(i) Was the work a part of the regular business of the employer?
(j) Did the parties believe they were creating the relationship of master and servant?
(k) What was the right of either party to terminate the relationship without liability?
ID at 556
An analysis of these factors clearly demonstrates that Mr Allen was an independent
contractor and not an employee
(a) The ICOA clearly states that the parties agree that Mr. Allen is an independent
contractor. Exhibit 3
(b) Mr. Allen determined the means of delivery the freight to its destination such as the
routes Mr. Allen retained the responsibility for all of the operating and maintenance
expenses associated with the equipment including tolls, fuel, insurance, and tires The
control which Waggonets maintained over Mr. Allen and the equipment was mandated
by federal statutes and regulations(c) Mr Allen owned his own truck and drove it as part of a driving team with his wife.
He could not lease his truck to another motor cazrie1 pursuant to the ICOA
(d) Waggoners had both independent contractors and employees driving for them
Waggoners had gieater control over the employees since it was maintaining the motor
vehicles and could choose the employee’s routes
(e) Waggoners drivers whether employees or independent contractois had the same skills
required by the FMCSR.
(f) Mr. Allen supplied his tractoi and trailer as well as drivers for the tractor
(g) Mr Allen was contracted with Waggoners for over two and half years
(h) M1. Allen received a percentage of the revenue which Waggoners received from the
transportation of the shipments he transported He was not paid on an hourly basis
(i) Mr. Allen’s work was part of Waggoner’s regular business
(j) The parties clearly agreed that Mr. Allen was an independent operator
(k) The ICOA had a term of one year from October 7, 2005 at which time it automatically
renewed. It was subject to immediate termination of either party upon written notice of a
breach
Based upon an analysis of these facto1s, Mr. Allen is not an employee but an independent
contractor and therefore could not be wrongfully constructively terminated There is therefore no
need to discuss whether or not Plaintiffs met the other elements of constructive termination.
Since the ICOA provides that Oklahoma law applies to the agreement, there is no need to discuss
the application of Texas law to Plaintiffs claim
4 Defamation Claim.The Allens claim that Waggoneis’ statements in it response to Oakley questionnaiie and
in making its 1eport to DAC were defamatory per se under both Oklahoma and Texas law. Both
Oklahoma and Texas statutory law consider defamation as libel Title 12 Okla Stat. § 1441
defines libel, as pertinent to this case, as “a false or malicious unprivileged publication by
writing .which tends to deprive him of public confidence or to injure him in his occupation ..”
Texas defines libel as “defamation expressed in written or other graphic form that tends to .
injure a living person’s reputation and thereby exposes the person to public hatred, contempt or
tidicule, or financial injwy or to impeach any person’s honesty, integrity, virtue, or
reputation...” |
Under Oklahoma law, statements alleged to be libelous fall into three categories: (1)
those not of defamatory meaning; (2) those reasonably susceptible of both a defamatory and an
innocent meaning (known as libel per quod); and (3) those clearly defamatory on their face (libel
per se). Sellers v. Oklahoma Publishing Co, 687 P.2d 116, 119-20 (Okla.1984 and and
Continental Casualty Co v Southwestern Bell Telephone Co , 860 F.2d 970 (10" Cir, 1998)
The Oklahoma Supreme Court has examined the concept of libel per se in the context of
a plaintiff business:
“In order that words shall be libelous per se as disparaging a person in his trade or
business, they must have been spoken of plaintiff in relation thereto, and be of such a
character as would prejudice him by impeaching either his skill or knowledge, or
attacking his conduct in such business ”
McCullough v Cities Serv Co., 676 P.2d 833, 834 (Okla. 1984) and Continental Casualty Co v.
Southwestern Bell Telephone Co , 860 F 2d 970 10" Cir. 1998)
The elements for defamation are as follows:
' TEX CIV. PRAC & REM CODE ANN § 73 001 (Vernon 2005)
10(1) a statement by the defendant about the plaintiff that is published to a third
party;
(2) the statement is false;
(3) the statement was defamatory in nature;
(4) the plaintiff suffered damages (unless the injury is presumed because the
statement was defamatory per se or because the statement was made maliciously)
Title 12 Okla, Stat § 1441 and Continental Casualty, supra
There is no dispute that Waggoners published written statements to DAC on ot
about May 9, 2008, stating that both Mr and Mrs. Allen were discharged and each was a “no
show”. Hearing Exhibit 10. In fact neither Mr nor Mis. Allen was discharged. Waggoners
agrees that Mrs Allen was on an extended leave of absence, and that Mr. Allen voluntarily
resigned and cancelled the ICOA in January of 2008. Waggoners could not provide any
evidence, other than a memo from the safety department dated shortly after Mi Allen’s
termination concerning Mr. Allen, which demonstrated proof “no show” and “job abandonment”
Furthermore, it could not provide any definitive facts substantiating the memo It submitted that
one of possibly three supeivisors informed the safety department of the “no show” and “job
abandonment” for Mr Allen but could not determine which one o1 the veracity of the contents of
the statements submitted to DAC. Transcript pages 391-397. Approximately two years later,
while Mi. Waggoner, the president of Waggoners was being deposed in this case, Waggoners
agreed to change and changed both of the Allens’ DAC reports eliminating references to “no
show” and “job abandonment”
The DAC publication was clearly false and was defamatory in nature. It attacked the
Allens in the conduct of their business. A “No show” or “job abandonment” on a reference for a
diiver in the tucking business would certainly adversely affect the ability of that driver to find
work. Under the criteria set forth in the Continental case, the DAC publication by Waggoners
was defamation per se
llThe veracity of the Waggoners responses to the Oakley questionnaire also cannot be
substantiated. Waggoners response to Oakley showed in handwriting “no show” and “job
abandonment” and “terminated” for Mr. Allen Exhibit 9. The response showed that Mrs. Allen
was terminated, Exhibit 8. Again Waggoners only support for the “no show” and “job
abandonment” responses was the memo from the safety department which could not be verified
Again there is no support for the “terminated” notations. The Oakley response was defamatory
and clearly false. It attacked the Allens in the conduct of their business Under the criteria set
forth in the Continental case, the Waggoners’ response to the Oakley questionnaire was
defamation per se.
Waggoners argues that its submission to DAC and its response to Oakley are privileged
The FMCSR provides a qualified immunity to motor carriers for responses to prospective motor
cartiers inquiries about former drivers. Regulation 49 C.F R 391.23(1) provides as follows:
“(1) No action o1 proceeding for defamation, invasion of privacy, or interference with a
contract that is based on the furnishing or use of information in accordance with this
section may be brought against—
(i) A motor carrier investigating the information, described in paragraphs (d) and
(e) of this section, of an individual under consideration for employment as a
commercial motor vehicle driver,
(ii) A person who has provided such information; or
(iii) The agents or insurers of a person described in paragraph (1)(1)(i) or (ii) of
this section.
(2) The protections in paragraph (1)(1) of this section do not apply to persons who
knowingly furnish false information, or who are not in compliance with the procedures
specified for these investigations. “
The provisions of 49 C.F R. §391.23 (d) and (e) are as follows:
(d) The prospective motor cartier must investigate, at a minimum, the information listed
in this paragraph from all previous employers of the applicant that employed the driver to
operate a CMV within the previous three years. The investigation request must contain
12specific contact information on where the previous motor catrie: employers should send
the information requested.
(1) General driver identification and employment verification information
(2) The data elements as specified in § 390.15(b)(1) of this chapter for accidents
involving the driver that occurred in the three-year period preceding the date of
the employment application.
(i) Any accidents as defined by § 390.5 of this chapter
(ii) Any accidents the previous employer may wish to provide that are
retained pursuant to § 390.15(b)(2), or pursuant to the employer's internal
policies for retaining more detailed minor accident information
(e) In addition to the investigations required by paragraph (d) of this section, the
prospective motor cartier employers must investigate the information listed below in this
paragraph from all previous DOT regulated employers that employed the driver within
the previous three years fiom the date of the employment application, in a safety-
sensitive function that required alcohol and controlled substance testing specified by 49
CER part 40.
(1) Whether, within the previous three years, the driver had violated the alcohol
and controlled substances prohibitions under subpart B of part 382 of this chapter,
or 49 CFR part 40
(2) Whether the driver failed to undertake or complete a rehabilitation program
prescribed by a substance abuse professional (SAP) pursuant to § 382.605 of this
chapter, or 49 CFR part 40, subpart O. If the previous employer does not know
this information (e.g., an employer that terminated an employee who tested
positive on a drug test), the prospective motor cartier must obtain documentation
of the driver's successful completion of the SAP's referral directly from the driver
(3) Fora dtiver who had-successfully completed a SAP's rehabilitation referral,
and remained in the employ of the referring employer, information on whether the
driver had the following testing violations subsequent to completion of'a §
382.605 or 49 CFR part 40, subpart O referral:
(i) Alcohol tests with a result of 0.04 or higher alcohol concentration;
(ii) Verified positive drug tests;
(iii) Refusals to be tested (including verified adulterated or substituted
drug test results) “
13The qualified immunity applies to those moto1 carriers that provide information to prospective
employers relating to accidents or drug and alcohol usage involving the prospective driver. The
cases cited by Waggoners in it brief all deal with alcohol and drug or accident information
provided by a motor carrier for which the immunity was upheld. Waggoners further contention
that its responses that fall under the provision of “General driver identification and employment
verification information” of §391.23 (d)(1) has no merit It defies the meaning of the words
“jdentification” and “employment verification” Identification and employment verification
contemplates that Waggoners could have submitted information to Oakley that the Allens for
which information was 1equested were the same Allens that worked for Waggoners and the
Allens dates of employment. The qualified immunity of the FMCSR does not apply in this
instance.
Waggoners argues that the release signed by the Allens on the Oakley questionnaire
releases Waggoners for liability for supplying answers to the questionnaire. This argument must
also fail because the release only release Waggoners for information required under §391.23
The false information in question submitted by Waggoners was not required by §391 23
With respect to the DAC publication, Waggoners submits that its report to DAC is
protected by immunities contained in the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §1681
Section 1681h(e) provides as follows:
e) Limitation of liability
Except as provided in sections 1681n and 16810 of this title, no consumer may bring any
action or proceeding in the nature of defamation, invasion of privacy, or negligence with
- respect to the reporting of information against any consumer reporting agency, any user
of information, or any person who furnishes information to a consumer reporting agency,
based on info1mation disclosed pursuant to section 1681g, 1681h, or 1681m of this title,
or based on information disclosed by a user of'a consumer report to or for a consumer
against whom the user has taken adverse action, based in whole or in part on the report
except as to false information furnished with malice o1 willful intent to injure such
consumer
14Another general immunity is provided in Section 1681t(b)(1)(F) which provides as follows;
No 1equirement or prohibition may be imposed under the laws of any State--
(1) with respect to any subject matter regulated under
F) section 1681s-2 of this title, relating to the responsibilities of persons who
furnish information to consumer reporting agencies
The interpretation, application and interaction of the two statutory immunities are subject
to conflicting decisions from various courts. See Plaintiffs’ and Defendant’s briefs. If the
Allens can show malice ot willful intent to injure them by Waggoners, there is no immunity for
Waggoners The undisputed facts are that an office person in Waggoners’ Houston terminal sent
an email dated January 4, 2008 to a safety person in Waggoner’s Irving office stating that
Michael and Shirley Allen were terminated “Involuntary” with the notation “Job Abandonment.
No show, no call, wont return calls”. Exhibit 26. Based upon a reply email from Stephanie
Reetz, Waggoners’ Drug and Alcohol Compliance person in Irving, to Roni Moye, Office
Manger in Houston, (Exhibit 69) and the testimony of Mr. David Waggoners, the president of
Waggoners, Ms. Moye sent the original email to Ms Reetz. There is no evidence in the record
who told Ms. Moye the information Upon receiving the Petition, Mr. Waggoners testified that
he investigated the Plaintiffs’ charges concerning the DAC report Prior to his deposition he
made a further investigation He testified at his deposition that the information submitted on the
DAC report was accurate He further testified after hearing Mr. Allen’s deposition that he still
did not change the DAC report. Mr. Waggoners only authorized the change in the DAC report
after Plaintiff requested it after his deposition. M1 Waggoners testified that someone with
authority intentionally told Ms. Moye the information. Transcript page 379 -23 through page
401-15. Clearly the Allen’s complained about the false information in their DAC report and in
15the 1esponses to Oakley questionnaire and no one listened. This cleatly demonstrates
Waggoners’ wanton and reckless disregard for the plaintiffs’ rights and malicious actions
Finally, Waggoners argues that a qualified privilege protects information under
Oklahoma and Texas common law. These privilege arguments fail because of the finding that
Waggoners acted in wanton and reckless disregard of the Allen’s rights was malicious.
4, Damages
The amount of damages to be awarded the Plaintiffs must now be determined The
Continental court provides some instruction. The Court found that:
“The procedural significance between libel per se and libel per quod is that if the
defamation is actionable per se, the defendant can be liable without proof of special
damages, while an action for libel per quod “is dependent on allegation of special
damages.” Special damages are actual subjective losses, i.e, out-of-pocket losses. They
consist of damages that “must be proven by specific evidence as to the time, cause and
amount.” Alternatively, general damages encompass “more customary types of actual
harm inflicted by defamatory falsehood,” including “impairment of reputation and
standing in the community.” They are a form of compensatory damages imposed for the
purpose of compensating the plaintiff for the harm that the defamation has caused to his
reputation. There is a presumption of general damage to reputation fiom a defamatory
publication that is actionable per se. “ (citations omitted)
Continental at 976
After finally realizing at a very late date that it had made an error, Waggoners did corect
the DAC report This is a mitigating factor with respect to damages. The special damages,
suffered by the Allens, caused by lost revenue, are negligible They have not demonstrated
loosing any revenue as a result of Waggoners actions. Oakley contracted with them despite
Waggoners’ actions. Mrs. Allen testified as to Mr Allen’s stress and hair loss when he was
notified of Waggoners’ actions and pain and suffering. It is obvious that the Allens reputation
was damaged for which they should receive general damages. The Allens must be compensated
for Waggoners reckless and wanton disregard for their rights and its malice Accordingly, the
16Michael and Shirley Allen are collectively awarded $15,000 00 in special and general damages
and $15,000.00 in punitive damages for Waggoners reckless and wanton disregard for their
tights and malicious acts. The cost of arbitration shall be split equally between the parties and
each party is to pay its own attorney fees
“Schneider, Arbitrator
17
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CAUSE NO. 2009-82027 MICHAEL D. ALLEN and § IN THE DISTRICT COURI OF SHIRLEY ALLEN, § Plaintiffs, § § HARRIS COUNTY, TEXAS Vv. § § THE WAGGONERS TRUCKING § 334"™ JUDICIAL DISTRICT COMPANY, § Defendant § ARBITRATION DECISION The above case came before the Arbitrato: on September 13, 14, and 15, 2011 for hearing in Oklahoma City, Oklahoma. Attorneys Sondra Jurica and Allison B. Waters appeared on behalf of Michael D Allen and Shirley Allen, Plaintiffs. J. Ronald Petrikin and P. Bradley Bendure appeared on behalf of The Waggoners Trucking Company (““Waggoners”), Defendant. The Arbitrator heard testimony fiom witnesses Michael D Allen, Shirley Allen, David Waggoner, and Howard Tucker. The Arbitrator heard opening arguments fiom counsel, admitted exhibits into evidence, and closing aiguments of counsel. The parties elected to file post heating briefs and reply briefs This Arbitration Decision constitutes the Arbitrator’s findings of facts and conclusions of law, and is based on the testimony and evidence admitted at the hearing and the principles of law that apply to those facts FINDINGS AND CONCLUSIONS 1. Background The following are the facts stipulated by the parties except as otherwise noted Defendant Waggoners operates a motor carrier authorized by the Federal Motor Carrier Safety Administration (“FMCSA”). Waggoners uses both company drivers (employees) and owner- operators. Plaintiff Michael Allen has been engaged in trucking as an owner-operator since 1979 1 EXHIBIT 2and has contracted with several other motor carriers prior to entering his contract with Waggoneis. In October 2005, Michael Allen signed an Independent Contractor Operating Agreement (“ICOA”) leasing a truck and trailer to Waggoners with a driver See Section C of the ICOA, Exhibit 3. The ICOA provides in part that Michael Allen (the “Contractor”) is an independent contractor and not an employee. (See Section 4 of the ICOA, Exhibit 3) It further provides that the ICOA shall be construed under the laws of the State of Oklahoma (See Section 17 1 of the ICOA, Exhibit 3) The parties in the ICOA agreed to submit a dispute between the parties to binding arbitration pursuant to the Commeicial Arbitration Rules of the American Arbitration Association with such hearing to be held in Oklahoma City, Oklahoma. (See Section 17 m of the ICOA, Exhibit 3) Both Michael and Shirley Allen drove the leased truck for Waggoners as a truck driving team fiom October 2005 through the Spring of 2007 when Shirley Allen took a leave of absence fiom driving. Mrs, Allen returned for a short period of time as a team driver with her husband and took another leave fiom driving from July, 2007 to care for her mother. She suffers from vatious medical conditions which have precluded her from driving since leaving Waggoneis Michael Allen continued to haul for Waggoners as a single driver until mid-Decembei 2007. He hauled his last load for Waggoners on or about December 19, 2007. His ICOA with Waggoners was terminated during the first week of January, 2008 Late: in 2008, after Mr. Allen terminate the IOCA, Waggoners repoited to, USIS, commonly referred to as DAC, a private data base that distributes information and history to companies subscribing to its service, that Mr. Allen and Mrs. Allen were not eligible for rehire, that they were discharged (or Company terminated leased), and that they were ano show i)Prior to that date, on November 2, 2007, Michael Allen entered into an owner-operator agreement with Totran Transportation Services, Ltd (“Totran”) to lease a truck and trailer. He began hauling freight for Totran in January of 2008 He terminated his agreement with Totran on June 30, 2009. Mr Allen obtained FMCSA operating authority in the name of Two Mules Tiansfer, LLC and began operating his equipment under that authority in July of 2009 In December 2009, Mr. Allen executed an ownet-operator agreement with Oakley Trucking, Inc. (“Oakley”). Pursuant to the Federal Motor Carrier Safety Regulations, Oakley sent a questionnaire to Waggoners, as a past employe: of Mi: and Mrs Allen Waggoners 1esponded on the questionnaire that Mrs. Allen was “Discharged” and was “Eligible for Rehire” “upon review”. On the form completed for Mr Allen, Waggoners reported that his reason for leaving was “Quit” and that he was eligible for rehire subject to review. In addition Waggoners added on the form “No Show-Job Abandonment” In May of 2011, he terminated that agreement with Oakley and entered into an owner- operator agreement with Tuttle &Tuttle tucking company Plaintiffs Allens have filed suit against the Defendant Waggoners in Cause No. 2009- 82027, Michael D Allen and Shirley Allen v. The Waggoners Trucking Company, in the District Cout of Harris County, Texas, 334" Judicial District (the “Case”) The Allens in their suit have alleged that Waggoners has disparaged and defamed them by filing a false DAC report in 2008 and by submitting false responses to the questionnaire sent by Oakley In addition the Allens have alleged that Mr. Allen was constructively terminated fiom Waggoners because Waggoners required him to transport loads which caused him to violate state and federal laws Waggoners denies the allegations The parties pursuant to the provisions of the ICOA have agreed toarbitiate the Case pursuant to the Commercial Arbitration Rules of the American Arbitration Association (the “AAA Rules”) and have agreed to hire the Arbitrator. The Texas Court has entered an order staying the case pending Arbitrator’s decision 2. Preliminary Matter- Type of Award At the scheduling conference, Waggoners requested a 1easoned award as the form of award to be issued by the Arbitrator. The Allens requested a short form award. The matter was left to be decided at the pre-hearing conference which was not held. At the close of the hearing on the merits, the Arbitrator requested that the parties brief the issue. The AAA Rules provide that a reasoned award is not necessary unless the parties request such an awaid or unless the arbitrator determines that a reasoned award is appropriate. The Arbitrator finds that a reasoned awaid is appropriate under these circumstances based upon the Texas Court’s review of this decision. 3 Wrongful Termination Claim Plaintiffs maintain that Mr Allen was constructively terminated by Waggoners because ‘Waggoners required him to transport shipments which caused him to violate state and federal laws Plaintiff's Post Hearing Brief p 18. The contiolling agreement between Mr Allen and the Waggoners was the ICOA. (Exhibit 3) The ICOA provides that Mr Allen leased his tractor traile: unit (the “Equipment”) to Waggoners furnished with a driver (Exhibit 3, paragraph C). It further provides “That this Agreement shall be construed under the laws of the State of Oklahoma”. Exhibit 3, Section 17 1). The parties are in agreement that in order for Mr. Allen to prevail on his claim of constructive termination, he must have been an employee of Waggoneis. The Arbitrator finds to that Mi Allen was an independent contractor and not an employee of WaggonersThe ICOA provides and Mr. Allen agreed that “Nothing in this Agreement is intended to alter the fact that Contractor (Mr Allen) is and independent contactor and _not_an employee of Waggoners Trucking (emphasis added) See Exhibit 3, Section 4 Plaintiffs argue that certain of Waggoners requirements and procedures made Mr. Allen an employee and not an independent contractor Most if not all of this litany of Waggoners’ requirements and procedures are required or permitted by the Federal Motor Cartier Safety Regulations (“FMCSR”) other regulations of the Department of Transportation. The FMCSR were originally promulgated by the Interstate Commerce Commission and later by the Department of Transportation pursuant to Congressional authorization. 49 CFR. §380 er seq The FMCSR comprehensively regulate the safety of moto: carriers operations including their equipment and drivers. They deal with such matters as driver hiring, drug testing, commercial drivers licensing, equipment maintenance, loading and unloading practices just to name a few They prescribe certain training of drivers as well as inspection of equipment They require specific documentation with respect to the above Nothing in the FMCSR shall be construed to prohibit a motor carrier from “requiring and enforcing more stringent requirements relating to safety of operation or employee safety and health”. 49 C.F R. § 390.3 (d) Congress enacted the ICC Termination Act of 1995 (“ICCTA”) which regulates interstate motor carriers 49 USC §10101 er seq In abolishing the Interstate Commerce Commission, Congress transfeired certain functions of the ICC to the Secretary of Tiansportation of the Department of Transportation (“DOT”) Part of the authority transferred to the Sectetary was jurisdiction over a motor cartier’s use of motor vehicles not owned by it to transport property 49 US.C. § 14102 The Secretary may require a motor cartier which uses motor vehicles which it does not own to “have control of and be responsible for operating those motor vehicles incompliance with requirements prescribed by the Secretary on safety of operations and equipment and with othe: applicable law as if the motor vehicles were owned by the motor cartier” 49 USC. § 14102 (a)(4). In order to protect the public from the tortious conduct of judgment-proof operators of interstate motor cartier vehicles, Congress required a motor carrier to assume full direction and control of leased vehicles and comply with the FMCSR. Price v. Westmoreland, 727 F.2d 494 (5™ Cir. 1984) Pursuant to its authotity the Secretary promulgated the leasing regulations for such equipment in 49 CFR. § 376. The leasing regulations are in addition to those prescribed by the Secretary in the FMCSR The leasing regulations specify what must be in an equipment lease of equipment with or without drivers. 49 CF R. § 376.2 (f) Plaintiffs argue that the Allens were statutory employees based upon 49 C.F.R. §390.5 That provision defines employee “any individual, othe: than an employer, who is employed by an employer and who in the course of his or her employment ditectly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the couse of operating a commercial motor vehicle .” The purpose of this definition is to make the motor carrier responsible for the safety and operations of the equipment which it uses in accordance with the Congiessional mandate. The leasing regulations require a motor carrier to have “exclusive possession, control, and use of the equipment. ” and “shall assume complete oe foi the equipment during the duration of the lease”. 49 C FR. §376 12 (c) The regulation also provides that “Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee ofthe authorized carrier lessee. An independent contractoi relationship may exist when a cartier lessee complies with 49 U.S.C. 14102 and attendant administrative requirements.” 49 C.F R § 376 12 (c)(4)The purpose of the FMCSR is to define the motor caitier’s liability to the public. Price v. Westmoreland, 127 F 2d 494 (5* Cir 1984) The purpose of the leasing regulation is to define the motor carrier’s and motor vehicles lessor’s obligations to each other and provides that the motor cartier has the obligation to the public. Clearly, the definition of employee in 49 CF R. §3905 does not apply to the classification Mr Allen as an employee of Waggonets pursuant to 49 CER. § 376.12 ©)(4) Plaintiffs next argue that the Allens are employees under Oklahoma law. Oklahoma statutory law 1ecognizes that owner operators ate independent contractors. The Oklahoma Employment Security Act provides that the tem “employment” does not include: “services performed by a person, commonly referred to as “owner-operator:, who owns or leases a truck-tractor or truck for hire, provided the owne1-operator actually operates the truck-tractor ot truck and, further, that the entity contracting with the owner-operator is not the lessor of the truck-tractor or truck.” 40 Okla Stat. §1-210(15)(v) In addition, the Oklahoma Workers Compensation Act excludes fiom its definition of “employee” “[a] person commonly referred to as an owner-opeiator, who owns or leases a truck/tractor 01 truck for hire, if the owner-operator actually operates the truck-tractor or truck and if the person contracting with the owner-operator is not the lessor of the truck- tractor or truck.” 85 Okla. Stat. §331(9) Neither of the Allens would be considered employees under Oklahoma law for workeis compensation of for unemployment. The Oklahoma Supreme Court in Duncan v Powers Imports, 884 P.2d 854 (Okla 1994) considered eleven factors in determining whether an individual is an employee or independent contracto It held that “no one factor is controlling and the relationship must be based on the set of facts particular to the case ” Jd at 855-856 The factors aie: (a) What was the nature of the contract between the parties? Was it written or oral?(b) What was the degree of control which, by the agreement, the employer may exercise on the details of the work? What independence was enjoyed by the contractor or agent? (c) Was the one employed engaged in a distinct occupation o1 business? Did he carry on such occupation or business for others? (d) Was the work of a kind that is usually done under the direction of the employer or by a specialist without supervision? (e) What skill was required in the particular occupation? (f) Did the employer or the workman supply the instrumentalities, tools and the place of work for the person doing the work? (g) What is the length of time for which the person is employed? (h) Was the method of payment based on time or was it by the job? (i) Was the work a part of the regular business of the employer? (j) Did the parties believe they were creating the relationship of master and servant? (k) What was the right of either party to terminate the relationship without liability? ID at 556 An analysis of these factors clearly demonstrates that Mr Allen was an independent contractor and not an employee (a) The ICOA clearly states that the parties agree that Mr. Allen is an independent contractor. Exhibit 3 (b) Mr. Allen determined the means of delivery the freight to its destination such as the routes Mr. Allen retained the responsibility for all of the operating and maintenance expenses associated with the equipment including tolls, fuel, insurance, and tires The control which Waggonets maintained over Mr. Allen and the equipment was mandated by federal statutes and regulations(c) Mr Allen owned his own truck and drove it as part of a driving team with his wife. He could not lease his truck to another motor cazrie1 pursuant to the ICOA (d) Waggoners had both independent contractors and employees driving for them Waggoners had gieater control over the employees since it was maintaining the motor vehicles and could choose the employee’s routes (e) Waggoners drivers whether employees or independent contractois had the same skills required by the FMCSR. (f) Mr. Allen supplied his tractoi and trailer as well as drivers for the tractor (g) Mr Allen was contracted with Waggoners for over two and half years (h) M1. Allen received a percentage of the revenue which Waggoners received from the transportation of the shipments he transported He was not paid on an hourly basis (i) Mr. Allen’s work was part of Waggoner’s regular business (j) The parties clearly agreed that Mr. Allen was an independent operator (k) The ICOA had a term of one year from October 7, 2005 at which time it automatically renewed. It was subject to immediate termination of either party upon written notice of a breach Based upon an analysis of these facto1s, Mr. Allen is not an employee but an independent contractor and therefore could not be wrongfully constructively terminated There is therefore no need to discuss whether or not Plaintiffs met the other elements of constructive termination. Since the ICOA provides that Oklahoma law applies to the agreement, there is no need to discuss the application of Texas law to Plaintiffs claim 4 Defamation Claim.The Allens claim that Waggoneis’ statements in it response to Oakley questionnaiie and in making its 1eport to DAC were defamatory per se under both Oklahoma and Texas law. Both Oklahoma and Texas statutory law consider defamation as libel Title 12 Okla Stat. § 1441 defines libel, as pertinent to this case, as “a false or malicious unprivileged publication by writing .which tends to deprive him of public confidence or to injure him in his occupation ..” Texas defines libel as “defamation expressed in written or other graphic form that tends to . injure a living person’s reputation and thereby exposes the person to public hatred, contempt or tidicule, or financial injwy or to impeach any person’s honesty, integrity, virtue, or reputation...” | Under Oklahoma law, statements alleged to be libelous fall into three categories: (1) those not of defamatory meaning; (2) those reasonably susceptible of both a defamatory and an innocent meaning (known as libel per quod); and (3) those clearly defamatory on their face (libel per se). Sellers v. Oklahoma Publishing Co, 687 P.2d 116, 119-20 (Okla.1984 and and Continental Casualty Co v Southwestern Bell Telephone Co , 860 F.2d 970 (10" Cir, 1998) The Oklahoma Supreme Court has examined the concept of libel per se in the context of a plaintiff business: “In order that words shall be libelous per se as disparaging a person in his trade or business, they must have been spoken of plaintiff in relation thereto, and be of such a character as would prejudice him by impeaching either his skill or knowledge, or attacking his conduct in such business ” McCullough v Cities Serv Co., 676 P.2d 833, 834 (Okla. 1984) and Continental Casualty Co v. Southwestern Bell Telephone Co , 860 F 2d 970 10" Cir. 1998) The elements for defamation are as follows: ' TEX CIV. PRAC & REM CODE ANN § 73 001 (Vernon 2005) 10(1) a statement by the defendant about the plaintiff that is published to a third party; (2) the statement is false; (3) the statement was defamatory in nature; (4) the plaintiff suffered damages (unless the injury is presumed because the statement was defamatory per se or because the statement was made maliciously) Title 12 Okla, Stat § 1441 and Continental Casualty, supra There is no dispute that Waggoners published written statements to DAC on ot about May 9, 2008, stating that both Mr and Mrs. Allen were discharged and each was a “no show”. Hearing Exhibit 10. In fact neither Mr nor Mis. Allen was discharged. Waggoners agrees that Mrs Allen was on an extended leave of absence, and that Mr. Allen voluntarily resigned and cancelled the ICOA in January of 2008. Waggoners could not provide any evidence, other than a memo from the safety department dated shortly after Mi Allen’s termination concerning Mr. Allen, which demonstrated proof “no show” and “job abandonment” Furthermore, it could not provide any definitive facts substantiating the memo It submitted that one of possibly three supeivisors informed the safety department of the “no show” and “job abandonment” for Mr Allen but could not determine which one o1 the veracity of the contents of the statements submitted to DAC. Transcript pages 391-397. Approximately two years later, while Mi. Waggoner, the president of Waggoners was being deposed in this case, Waggoners agreed to change and changed both of the Allens’ DAC reports eliminating references to “no show” and “job abandonment” The DAC publication was clearly false and was defamatory in nature. It attacked the Allens in the conduct of their business. A “No show” or “job abandonment” on a reference for a diiver in the tucking business would certainly adversely affect the ability of that driver to find work. Under the criteria set forth in the Continental case, the DAC publication by Waggoners was defamation per se llThe veracity of the Waggoners responses to the Oakley questionnaire also cannot be substantiated. Waggoners response to Oakley showed in handwriting “no show” and “job abandonment” and “terminated” for Mr. Allen Exhibit 9. The response showed that Mrs. Allen was terminated, Exhibit 8. Again Waggoners only support for the “no show” and “job abandonment” responses was the memo from the safety department which could not be verified Again there is no support for the “terminated” notations. The Oakley response was defamatory and clearly false. It attacked the Allens in the conduct of their business Under the criteria set forth in the Continental case, the Waggoners’ response to the Oakley questionnaire was defamation per se. Waggoners argues that its submission to DAC and its response to Oakley are privileged The FMCSR provides a qualified immunity to motor carriers for responses to prospective motor cartiers inquiries about former drivers. Regulation 49 C.F R 391.23(1) provides as follows: “(1) No action o1 proceeding for defamation, invasion of privacy, or interference with a contract that is based on the furnishing or use of information in accordance with this section may be brought against— (i) A motor carrier investigating the information, described in paragraphs (d) and (e) of this section, of an individual under consideration for employment as a commercial motor vehicle driver, (ii) A person who has provided such information; or (iii) The agents or insurers of a person described in paragraph (1)(1)(i) or (ii) of this section. (2) The protections in paragraph (1)(1) of this section do not apply to persons who knowingly furnish false information, or who are not in compliance with the procedures specified for these investigations. “ The provisions of 49 C.F R. §391.23 (d) and (e) are as follows: (d) The prospective motor cartier must investigate, at a minimum, the information listed in this paragraph from all previous employers of the applicant that employed the driver to operate a CMV within the previous three years. The investigation request must contain 12specific contact information on where the previous motor catrie: employers should send the information requested. (1) General driver identification and employment verification information (2) The data elements as specified in § 390.15(b)(1) of this chapter for accidents involving the driver that occurred in the three-year period preceding the date of the employment application. (i) Any accidents as defined by § 390.5 of this chapter (ii) Any accidents the previous employer may wish to provide that are retained pursuant to § 390.15(b)(2), or pursuant to the employer's internal policies for retaining more detailed minor accident information (e) In addition to the investigations required by paragraph (d) of this section, the prospective motor cartier employers must investigate the information listed below in this paragraph from all previous DOT regulated employers that employed the driver within the previous three years fiom the date of the employment application, in a safety- sensitive function that required alcohol and controlled substance testing specified by 49 CER part 40. (1) Whether, within the previous three years, the driver had violated the alcohol and controlled substances prohibitions under subpart B of part 382 of this chapter, or 49 CFR part 40 (2) Whether the driver failed to undertake or complete a rehabilitation program prescribed by a substance abuse professional (SAP) pursuant to § 382.605 of this chapter, or 49 CFR part 40, subpart O. If the previous employer does not know this information (e.g., an employer that terminated an employee who tested positive on a drug test), the prospective motor cartier must obtain documentation of the driver's successful completion of the SAP's referral directly from the driver (3) Fora dtiver who had-successfully completed a SAP's rehabilitation referral, and remained in the employ of the referring employer, information on whether the driver had the following testing violations subsequent to completion of'a § 382.605 or 49 CFR part 40, subpart O referral: (i) Alcohol tests with a result of 0.04 or higher alcohol concentration; (ii) Verified positive drug tests; (iii) Refusals to be tested (including verified adulterated or substituted drug test results) “ 13The qualified immunity applies to those moto1 carriers that provide information to prospective employers relating to accidents or drug and alcohol usage involving the prospective driver. The cases cited by Waggoners in it brief all deal with alcohol and drug or accident information provided by a motor carrier for which the immunity was upheld. Waggoners further contention that its responses that fall under the provision of “General driver identification and employment verification information” of §391.23 (d)(1) has no merit It defies the meaning of the words “jdentification” and “employment verification” Identification and employment verification contemplates that Waggoners could have submitted information to Oakley that the Allens for which information was 1equested were the same Allens that worked for Waggoners and the Allens dates of employment. The qualified immunity of the FMCSR does not apply in this instance. Waggoners argues that the release signed by the Allens on the Oakley questionnaire releases Waggoners for liability for supplying answers to the questionnaire. This argument must also fail because the release only release Waggoners for information required under §391.23 The false information in question submitted by Waggoners was not required by §391 23 With respect to the DAC publication, Waggoners submits that its report to DAC is protected by immunities contained in the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §1681 Section 1681h(e) provides as follows: e) Limitation of liability Except as provided in sections 1681n and 16810 of this title, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with - respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on info1mation disclosed pursuant to section 1681g, 1681h, or 1681m of this title, or based on information disclosed by a user of'a consumer report to or for a consumer against whom the user has taken adverse action, based in whole or in part on the report except as to false information furnished with malice o1 willful intent to injure such consumer 14Another general immunity is provided in Section 1681t(b)(1)(F) which provides as follows; No 1equirement or prohibition may be imposed under the laws of any State-- (1) with respect to any subject matter regulated under F) section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies The interpretation, application and interaction of the two statutory immunities are subject to conflicting decisions from various courts. See Plaintiffs’ and Defendant’s briefs. If the Allens can show malice ot willful intent to injure them by Waggoners, there is no immunity for Waggoners The undisputed facts are that an office person in Waggoners’ Houston terminal sent an email dated January 4, 2008 to a safety person in Waggoner’s Irving office stating that Michael and Shirley Allen were terminated “Involuntary” with the notation “Job Abandonment. No show, no call, wont return calls”. Exhibit 26. Based upon a reply email from Stephanie Reetz, Waggoners’ Drug and Alcohol Compliance person in Irving, to Roni Moye, Office Manger in Houston, (Exhibit 69) and the testimony of Mr. David Waggoners, the president of Waggoners, Ms. Moye sent the original email to Ms Reetz. There is no evidence in the record who told Ms. Moye the information Upon receiving the Petition, Mr. Waggoners testified that he investigated the Plaintiffs’ charges concerning the DAC report Prior to his deposition he made a further investigation He testified at his deposition that the information submitted on the DAC report was accurate He further testified after hearing Mr. Allen’s deposition that he still did not change the DAC report. Mr. Waggoners only authorized the change in the DAC report after Plaintiff requested it after his deposition. M1 Waggoners testified that someone with authority intentionally told Ms. Moye the information. Transcript page 379 -23 through page 401-15. Clearly the Allen’s complained about the false information in their DAC report and in 15the 1esponses to Oakley questionnaire and no one listened. This cleatly demonstrates Waggoners’ wanton and reckless disregard for the plaintiffs’ rights and malicious actions Finally, Waggoners argues that a qualified privilege protects information under Oklahoma and Texas common law. These privilege arguments fail because of the finding that Waggoners acted in wanton and reckless disregard of the Allen’s rights was malicious. 4, Damages The amount of damages to be awarded the Plaintiffs must now be determined The Continental court provides some instruction. The Court found that: “The procedural significance between libel per se and libel per quod is that if the defamation is actionable per se, the defendant can be liable without proof of special damages, while an action for libel per quod “is dependent on allegation of special damages.” Special damages are actual subjective losses, i.e, out-of-pocket losses. They consist of damages that “must be proven by specific evidence as to the time, cause and amount.” Alternatively, general damages encompass “more customary types of actual harm inflicted by defamatory falsehood,” including “impairment of reputation and standing in the community.” They are a form of compensatory damages imposed for the purpose of compensating the plaintiff for the harm that the defamation has caused to his reputation. There is a presumption of general damage to reputation fiom a defamatory publication that is actionable per se. “ (citations omitted) Continental at 976 After finally realizing at a very late date that it had made an error, Waggoners did corect the DAC report This is a mitigating factor with respect to damages. The special damages, suffered by the Allens, caused by lost revenue, are negligible They have not demonstrated loosing any revenue as a result of Waggoners actions. Oakley contracted with them despite Waggoners’ actions. Mrs. Allen testified as to Mr Allen’s stress and hair loss when he was notified of Waggoners’ actions and pain and suffering. It is obvious that the Allens reputation was damaged for which they should receive general damages. The Allens must be compensated for Waggoners reckless and wanton disregard for their rights and its malice Accordingly, the 16Michael and Shirley Allen are collectively awarded $15,000 00 in special and general damages and $15,000.00 in punitive damages for Waggoners reckless and wanton disregard for their tights and malicious acts. The cost of arbitration shall be split equally between the parties and each party is to pay its own attorney fees “Schneider, Arbitrator 17