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COMMERCIAL TRUCKING LITIGATION SPEECH, JUNE 2009

Posted on Jun 25, 2011

I. INTRODUCTION

It's a bright, sunny day. You're sitting in your office talking with your assistant about how to deal with the "paid and incurred" issue on one of your Allstate insurance cases. Suddenly, your receptionist rings in and announces that you've got a call from someone about an 18 wheeler wreck. After you pick yourself up off the floor, you immediately grab a note pad, tell your receptionist to hold all calls and pick up the phone.

As you visit with the potential client, you quickly learn that her and her family were recently involved in a truck wreck on the freeway. You're told that her husband and daughter were killed and she sustained a severe head injury. After obtaining the basic information, the potential client then asks you "have you handled cases like this before?" You recall the 100 or so car wreck cases you handled the last few years, and convinced about your experience level, respond "yes, ma'm, we've handled a lot of cases like this before." After the client agrees to hire you, you immediately start fantasizing about the new car you've always wanted, the fabulous European vacation you'll be able to take and how easy and quick it's going to be to get a good settlement. No more Allstate, no big deal about paid and incurred! You've finally landed the "mother of all cars wrecks," your first truck wreck case.

THE NEXT THING YOU NEED TO DO IS CALL YOUR MALPRACTICE CARRIER!

II. TRUCK WRECKS ARE NOT BIG CAR WRECKS

Despite the temptation and appearance, truck wrecks are not just big car wrecks. They typically involve catastrophic injuries and/or death, and they involve a multitude of factors that most likely lead to the crash. Further, there are numerous state and federal safety regulations and standards that govern how trucking companies and truck drivers are supposed to operate.
You will potentially be leaving a lot of money on the table if you treat the case like a big car wreck. The frequent mistake is to focus solely on the truck driver's negligence, since that's what you typically do in a car wreck case. In a truck wreck case, the driver's conduct is usually just the tip of the iceberg as far as determining how the wreck happened. In order to maximize the recovery for your client, you must look beyond the driver's conduct. Oftentimes, issues concerning the driver's qualifications, his lack of training, hours of service, fatigue, drugs and equipment failures are at the heart of why the collision occurred. These issues bring the trucking company's conduct into play, and once fully developed, can provide a spring board into exemplary damages.

A. The Federal Motor Carrier Safety Regulations

One of the most important factors that sets truck wrecks apart from car wrecks is the application of the Federal Motor Carrier Safety Regulations (FMCSR), found at 49 C.F.R. §301, et seq. These regulations were created in order to promote safety in interstate and foreign commerce, and they are promoted through the Federal Motor Carrier Safety Administration (FMCSA). The stated purpose of the FMCSA 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."

The FMCSRs are broken down into several pertinent categories:

1. Part 380: Special Training Requirements for drivers operating longer combination vehicles (essentially two or more trailers);

2. Part 382: Controlled Substances and Alcohol Use and Testing;

3. Part 383: Commercial Driver's License Standards; Requirements and Penalties;

4. Part 387: Minimum Levels of Financial Responsibility for Motor Carriers;

5. Part 391: Qualifications for Drivers;

6. Part 392: Driving of Commercial Motor Vehicles;

7. Part 393: Parts and Accessories Necessary for Safe Operation;

8. Part 395: Hours of Service of Drivers;

9. Part 396: Inspection, Repair and Maintenance;

10. Part 397: Transportation of Hazardous Materials; Driving and Parking Rules;

11. Part 399: Employee Safety and Health Standards.

In addition, Part 40 of 49 C.F.R. is important because it informs motor carriers how to conduct drug and alcohol tests required by the Department of Transportation and what procedures to use.

When you get a truck case in, these federal regulations must be considered. As discussed below, it is recommended that you retain (early on) a well-qualified expert in the field of trucking operations who can help you navigate through the many regulations in an effort to identify those relevant to your case and whether there appears to be any violations by the trucking company or its driver. This early analysis will set the frame work of your liability case and help you tailor your written discovery and deposition strategies.

III. THE FIRST 30 DAYS

The first few days following a truck wreck are arguably the most important. Your case can be literally won or lost within the first few days following the wreck. If you get the case right after it happens and are not set up to handle it, get it referred out immediately! There is a tremendous amount of work that must be done in order for you to be successful.

Most trucking companies are no strangers to litigation. Within hours of being notified about a wreck, they usually dispatch to the scene a team of lawyers, investigators and accident re-constructionists. In light of this, once you get the case, you're usually already behind in terms of collecting material facts. THEREFORE, TIME IS OF THE ESSENCE!

A. Preserve the Evidence

Immediate action needs to take place so that the physical evidence at the scene can be documented, the vehicles involved in the crash are preserved, the contents of the truck are preserved, various sources of data on the truck are preserved, numerous documents pertaining to the truck driver are preserved and witnesses are identified and interviewed. Here is a basic checklist of things that must be done as soon as possible:

1. Send preservation letter to the trucking company/TRO (tractor/trailer, logs, files, etc.);

2. Secure, inspect and photograph your client's vehicle (purchase it and safely store it);

3. Retain an accident re-constructionist (inspect scene and tractor/trailer);

4. Obtain the police report;

5. Inspect the tractor (inside and out) and trailer and photograph/videotape;

6. Have your expert download the tractor's black box;

7. Download the black box on your vehicle;

8. GO TO THE SCENE and photograph/videotape it;

9. Interview investigating officers;

10. Obtain all police information (reports, narratives, photos, videotapes,
witness statements, measurements, field notes, etc.);

11. Obtain news reports (newspaper articles, television coverage);

12. Obtain 911 tape and call logs;

13. Interview witnesses and get statements if necessary;

14. Look for potential witnesses who live nearby;

15. Obtain driving/criminal records of clients and trucker/co-driver;

16. Research prior lawsuits against the trucking company. Send out listserv inquiries to identify attorneys who have sued that company before;

17. Obtain medicals on client (prior and current);

18. Retain experts early;

19. Get client to provide you with family photographs, videotapes, awards, honors, etc;

20. Document client's injuries.

If these things are not obtained early on, you run the risk of losing them. If that occurs, you will have lost many essential tools that would have helped you prove your case.

B. Document Retention

It is important to be aware that commercial motor carriers are not necessarily required to keep pertinent documentary evidence forever. The FMCSRs proscribe various document retention requirements for many records that are pertinent to the investigation of a truck wreck, which include:

1. §382.401: Records of alcohol misuse and controlled substances use (5yrs);
2. §391.51: Driver qualification files (while employed and 3 yrs. thereafter);
3. §395.8(k): Records of duty status (logs)(6 months); and
4. §396.3(c): Records regarding inspection, repair and maintenance (1 yr. and 6 months after vehicle leaves carrier's control).

Given that some of these retention requirements are fairly short, it is imperative that the preservation of evidence letter go out as soon as possible so you can avoid the risk of losing this critical information.

C. Interview Witnesses

After the wreck occurs, you should quickly identify the key witness and go talk to them.
Obviously, you will want to talk to eye witnesses who can explain how the wreck happened, but be on the lookout for other types of witnesses. First responders are usually good witnesses to help document your client's injuries, positioning in the vehicle, and evidence of conscious pain and suffering. Emergency personnel are also good witnesses to interview regarding the extent of injuries, physical complaints, etc.

Investigating officers are also obvious witnesses to speak with. They usually have a lot more information about their investigation than their report indicates. It's always good to establish an early rapport with the investigating officer. As your investigation progresses and additional evidence is developed, it's often helpful (and appreciated) to share that with the investigating officer. They want to know that their opinions are supportable and accurate. On occasion, officer's opinions have been amended once additional evidence is revealed.

After you have spoken with the key witnesses and you find them to be credible and helpful, you should consider obtaining a videotaped statement of them. This will be helpful down the road to refresh their recollections before testifying, to provide to experts to rely upon and to use in video settlement brochures.

D. Document Your Client's Injuries

It is absolutely critical to document your client's injuries early on. Take photographs and video of your client's injuries. A picture is worth a thousand words! Once your client's injuries heal, that evidence will be lost and you'll be left with just trying to tell the jury what the injuries looked like.

For more serious injuries, get permission to photograph and videotape your client in the hospital. You should also videotape them undergoing rehabilitative care and physical therapy. Consider doing periodic day-in-the-life videos of your client so that you can show the jury the various stages of your client's injuries. You might also consider finding stock videotape of the type of surgery they had or medical care they received. You can potentially use those videotapes with the treating physician or your medical expert in explaining to the jury what your client went through.

Interview your client's doctors and therapists. These are excellent witnesses to talk about your client's injuries, the kind of treatment they went through, the devastating impact of such injuries, their future care needs, pain and suffering, etc. Identify those providers who you believe will make the best witnesses and get them committed to testifying if the case goes to trial.

E. Hire Your Experts

Most trucking cases will involve at least an accident re-constructionist and an expert on truck driving and/or trucking operations. Depending on the facts of the case, you may need a biomechanical expert, vocational rehabilitation/life care planner and economist. Identify the type of experts you think you need and hire them. Like any other litigation, there are good experts and bad experts. Strive to hire the most credible experts you can. It will save you a lot of misery down the road. Accident re-constructionists are essential day one. Trucking experts are very helpful in assisting you with framing discovery, researching the trucking company, identifying helpful public information and other industry specific resources.

IV. NOW WHAT?

Once you've done all of the preparatory work, you will be tempted to make an early demand and try to settle the case before suit. RESIST THE TEMPTATION! Rarely will you ever be able to maximize your client's recovery without filing suit. There is so much more evidence that you have not yet seen that can potentially break the case wide open. What's the point of going to all the trouble to make sure critical evidence is preserved if you never use it? Evaluate your venue options, pick the most favorable one and file suit.

A. Who to Sue

Most lawsuits will be filed against the trucking company and the truck driver. Keep in mind that "owner-operators" who are leased out to the motor carrier are nevertheless statutory employees of the motor carrier, thereby making the motor carrier liable to the public for their actions.

The decision to name the truck driver as a defendant depends on the situation. It is not essential to name the driver, since he was presumably acting in the course and scope of his employment with the motor carrier, thus making them liable under the doctrine of respondeat superior. Sometimes it's beneficial to not sue the truck driver if you believe he will be a sympathetic witness. Rarely is this the case. Most of the time, it's beneficial to name the driver so you can compel their testimony and require the motor carrier to defend their actions (or not). You may also need to name the driver for venue and/or jurisdictional purposes.

Other potential defendants depending on the circumstances include the owner of the trailer, the entity responsible for repair/maintenance of the tractor/trailer and the manufacturer of the tractor.

B. Where to Sue

While the venue rules are no different for truck wreck cases, you should always carefully analyze what your options are. A lot of trucking cases involve truck drivers and trucking companies who live/operate in other states from where the wreck occurred. Sometimes, the laws will be more favorable to your client in another state. Issues concerning damages caps, comparative fault, joint and several liability, collateral source and standards of proof for liability and punitive damages should be analyzed. Other states may have a longer statute of limitation period. You should also research verdicts in those states and contact a local trial lawyer to get a feel for how your case might be viewed. Further, do not foreclose the idea of suing the trucking company in their home state. There have been some big verdicts against trucking companies by jurors who are constantly exposed to the company and its operations.

Finally, consider reaching an agreement with opposing counsel as to where to file suit. If you're dealing with a local defense firm who runs the risk of losing the business if the case is filed in another city or state, you might see if they would be willing to agree to a local venue.

C. Hit the Ground Running

Set the tone and pace of your case by serving the defendants with written discovery along with the petition. This will immediately put them in a defensive posture, making it difficult for them to fire back. As soon as they answer the suit, send them a proposed scheduling order (Level 3) and push for an early setting.

When they answer your discovery, expect them to object and to not produce many relevant documents. Upon receipt, insist the documents be produced and if they refuse or do not do so in a timely fashion, file your motion to compel. Keep in mind that you'll need this information well in advance of any depositions so you can adequately prepare. You'll also need to get this information to your expert, so they can advise you on the pertinent issues. The hearing on your motion to compel is a great opportunity to educate the judge about the egregious facts of your case. As a preface to your arguments as to why you need these documents, inform the judge about all the bad conduct you're aware of (i.e. violent nature of the collision, severity of your client's injuries, conduct of truck driver and his criminal/driving record, etc.). This information will lay the foundation for you getting what you need from the defendants, as well as future relief. Every time you have the chance to educate your judge about the case, you should do so.

V. THE TYPICAL CAST OF CHARACTERS

In most truck cases, the tractor/trailer, the trucker, the supervisor and the safety director are the primary sources of information to establish liability. Again, proving the trucker's negligence/gross negligence is oftentimes a fairly simple feat. Proving the trucking company's responsibility presents more of a challenge, but if successful, it will pay your client dividends.

A. The Tractor/Trailer

The tractor and trailer should always be analyzed for potential causes of the wreck. Here is where a well-qualified expert can be a valuable tool. Most trucking companies constantly cut corners with respect to truck maintenance. Worn out tires or brakes are common causes of collisions. Inadequate visibility and conspicuity are other causes, as well as inadequate side mirrors. An experienced expert can inspect the tractor/trailer for you and determine whether any of these were factors in causing the wreck.

There is also important data on the tractor that may offer some indication as to how the wreck occurred, or at least what was going on with the truck prior to and during the collision.
Electronic Control Modules (ECMs) or Electronic Control Units (ECUs) can provide you with information like vehicle speed, brake usage, use of cruise control, RPMs, average speeds, miles driven, governed speed, diagnostic codes and hard braking events. This information is not only useful in re-constructing the wreck, but it can also arm you with irrefutable proof of driver negligence.

Always refer to the FMCSA regulations, Part 393, for the specific equipment requirements on a commercial motor vehicle. The more commonly referred to requirements are as follows:

1. Lamps/Reflective Devices: §393.9 through §393.26;
2. Brakes: §393.40 through §393.55;
3. Windshields: §393.60 through §393.61;
4. Tires: §393.75;
5. Rear Vision Mirrors: §393.80;
6. Rear Impact Guards: §393.86; and
7. Warning Flags on Projecting Loads: §393.87.

Finally, you should always be on the lookout for interesting bumper stickers that you can weave into you case. Some of the more notable signs/stickers seen include "SHIT HAPPENS," "AWARD WINNING DRIVERS," "SAFETY FIRST" and "KISS MY SHINY HINEY." These types of stickers make wonderful trial exhibits and are always good for some interesting cross examination. The bottom line theory behind exposing these types of equipment deficiencies is that trucking companies really don't care about safety. They may represent to the public that they are safety conscious, but in reality, they are not. They are profit driven and consistently place their profits over safety.

B. The Truck Driver

The truck driver is obviously one of the main focal points to your liability case. When properly prepared, you can dismantle the truck driver in such a way so as to turn him into a "poster child" for how trucking companies continually put profits over safety. While there are certainly many good drivers on the road, our cases typically involve the bad ones. As such, there is usually a lot of information that you can obtain to reveal to the jury just how much emphasis the trucking company places on safety. In the process, you will not only be armed with information to make your case of negligence against the trucker, but you will also be armed to establish the trucking company's neglect in hiring, training, supervising and retaining the driver.

1. Written Discovery

Through written discovery, you should determine the trucker's employment history, criminal record, driving record, marital history, medical history, truck driving experience and educational background. Records from these sources should then be obtained and reviewed. Marital records can be quite revealing. In one case, the records revealed that the trucker was sued for divorce and denied visitation rights due to severe drug problems. The court made a finding that the trucker was a habitual abuser of drugs and narcotics, and as a result, he posed a substantial risk to his own child. In another case, the divorce records indicated that the trucker routinely used illegal drugs while driving his truck, and that he had been fired from several jobs for the same reason. This type of information is invaluable in showing what kind of person the trucking company is willing to put behind the wheel.

2. The FMCSRs

In preparation for the trucker's deposition, you should always familiarize yourself with the pertinent sections of the Federal Motor Carrier Safety Regulations that deal with pre-employment requirements, post-accident requirements, experience requirements and basic qualification requirements:
a. Pre-Employment Drug Testing: §382.301;
b. Post-Accident Testing: §382.303;
c. Required Knowledge and Skills: §383.110 and §383.113;
d. Qualification and Disqualification of Drivers: §391.11 through §391.49;
e. Illness and Fatigue: §392.3;
f. Hazardous Conditions: Extreme Caution: §392.14;
g. Stopped Vehicles: §392.22 through §392.25;
h. Hours of Service: §395.1 through §395.15;
i. Driver Vehicle Inspection Reports: §396.11; and
j. Driver Inspections: §396.17.

These issues should be discussed with your expert, who can give you the "real world" perspective on what these regulations require and how trucking companies attempt to get around them. With the trucker's deposition, you can nail down all of the deficiencies in the manner in which he was hired, trained and supervised. You can also establish his lack of knowledge of the basic skills required, further revealing his inadequate training and/or qualifications.

3. Trucker Logs

The hours of service requirements are usually involved in every case. They are particularly important when your collision facts suggest driver fatigue or inattention. The hours of service requirements focus on when and how long the truck driver is allowed to drive by placing specific limits on the amount of time he can drive and how many total hours he can work before he is no longer permitted to drive a commercial motor vehicle. Truckers must follow three maximum limits at all times. They are the 14-hour limit, the 11-hour limit, and the 60/70-hour limit.

a. 14-Hour Limit

This limit is usually thought of as a "daily" limit even though it is
not based on a 24-hour period. Drivers are allowed a period of 14 consecutive hours of duty time after being off duty for 10 or more consecutive hours. The 14-consecutive-hour duty period begins when they start any kind of work. Once they have reached the end of this 14-consecutive-hour period, they cannot drive again until they have been off duty for another 10 consecutive hours. Driving time is limited to the 14-consecutive-hour duty period even if they take some off-duty time, such as a lunch break or a nap, during those 14 hours.

b. 11-Hour Limit

During the 14-consecutive-hour duty period explained above, truckers are only allowed to drive their truck for up to 11 total hours. There is no limit on how many of those hours they are allowed to drive at one time - they may drive for as little as a few minutes or as much as 11 hours in a row. Once they have driven a total of 11 hours, they have reached the driving limit and must be off duty for another 10 consecutive hours before driving again.

c. 60/70-Hour Limit

This limit is based on a 7-day or 8-day period, starting at the time specified by the motor carrier for the start of a 24-hour period. This limit is sometimes thought of as a "weekly" limit; however, this limit is not based on a "set" week, such as Sunday through Saturday. The limit is based on a "rolling" or "floating" 7-day or 8-day period. The oldest day's hours drop off at the end of each day when you calculate the total on-duty time for the past 7 or 8 days. For example, if the trucker operates on a 70-hour/8-day schedule, the current day would be the newest day of his 8-day period and the hours he worked nine days ago would drop out of the calculation. Drivers are required to follow one of these two "weekly" limits:

• If the carrier does not operate vehicles every day of the week, drivers are not allowed to drive after they have been on duty 60 hours during any 7 consecutive days. Once they reach the 60-hour limit, they will not be able to drive again until they have dropped below 60 hours for a 7-consecutive-day period. They may do other work, but they cannot do any more driving until they are off duty enough days to get below the limit. Any other hours they work, whether they are for a motor carrier or someone else, must be added to the total.
• If the carrier operates vehicles every day of the week, they may assign the driver to the 70-hour/8-day schedule. This means the driver is not allowed to drive after they have been on duty 70 hours in any 8 consecutive days. Once they reach the 70-hour limit, they will not be able to drive again until they have dropped below 70 hours for an 8 consecutive-day period. They may do other work, but they cannot do any more driving until they get below the limit. Any other hours they work, whether they are for a motor carrier or someone else, must be added to the total.

d. 34-Hour Restart

The regulations allow drivers to "restart" their 60 or 70-hour clock calculations after having at least 34 consecutive hours off duty. In other words, after they have taken at least 34 hours off duty in a row, they have the full 60 or 70 hours available again. They would then begin counting hours on the day of the restart and not go back the full 7 or 8 days.

See "Interstate Truck Driver's Guide to Hours of Service" published by the Federal Motor Carrier Safety Administration.

Again, you need to retain a qualified expert who can navigate you through the hours of service requirements and the trucker's logs-they can be quite confusing. Even when the logs appear to be compliant, they are often falsified. In a recent case, the driver's logs looked fine. There were no apparent violations on the "face of the logs." However, when you looked at them closer, several disturbing facts arose. The trucker had logged that he had driven "x" amount of miles from point A to B over a certain time period. When you calculated his average miles per hour for that particular trip, it equated to 79.1 m.p.h! Aside from the obvious over-speed issue, his truck was governed at 62 m.p.h. It was impossible for him to have averaged that kind of speed. The conclusion was that he had either tampered with his governor (which was later proven to not be the case) or he had lied on his logs (which happened to be the case). When his logs were analyzed for the preceding years, his was shown to have consistently falsified his logs. Based on that evidence, the argument was then advanced that his employer had buried its head in the sand and allowed the driver to falsify his logs.

4. CDL Handbook

Another good source to familiarize yourself with in preparation of the trucker's deposition is the Texas (or relevant State) Commercial Motor Vehicle Driver Handbook. This is the handbook used to prepare for the CDL test, and it has a lot of helpful information that sets the standards for commercial truck drivers to follow.

5. Carrier's Policies and Procedures

Finally, the trucking company will usually have various policies and procedures pertaining to their drivers in terms of what's expected of them, how they are to handle certain situations (fog, rain, construction areas, etc.), how they should be trained and supervised, and what they should do in case of an accident. Obtaining these documents in advance of the trucker's deposition will be well worth the effort.

The point of all

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