Automobile and truck wreck cases typically share at least one thing in common—the road. Beyond that, they are very different. Because of extensive state and federal regulation of the trucking industry, commercial truck cases present greater opportunities to prove liability, as well as perhaps, preserve, discover and develop a punitive damages claim. Such as it is, it takes a different approach than with an ordinary car crash case.
Be forewarned, truck cases are staunchly defended. Competition is fierce for these high value cases among the defense bar. Commercial trucking defense counsel are generally specialists having an extensive background assisting in the defense of these cases before ever becoming lead counsel.You may well find that you have highly experienced local counsel, with national counsel and/or in-house counsel working together against you. What information you ultimately get in the case from the defense has been sifted, filtered and sifted again, with the refined product released to you—but only if properly requested.
These cases consume resources, both in attorney time and often in significant case expenses. The underfunded, underworked case can be a missed opportunity for client and counsel and a potential malpractice claim. Consideration of co-counsel upon engagement with the client is critical, to insure the case is properly investigated pre-suit and funded.
Prepare a Strategic Guide for the Case as Evidence is Collected
When considering the strategy for developing a particular truck wreck case, the circumstances of the wreck present the first clues as to where pre-suit investigation should begin. Investigating a truck wreck requires more than obtaining a police report, some photographs and hiring an accident reconstructionist to explain how the wreck took place. Early documentation of the crash scene, roadway evidence and witness interviews are critical. Evidence disappears.
From early investigative work, considerations should be made as to potential areas of discovery in the case. The case will evolve as more information is added to the investigation. Obtaining additional necessary information when considering different theories of liability will cover multiple sources and concern numerous potential target defendants. This is because of the voluminous, exacting regulatory obligations placed upon the truck driver, the carrier for whom he or she is driving, the broker brokering the load, the person who loaded the truck and the owner of the equipment involved, etc.
Obtain and Understand Commercial Trucking Operational Documentation
Trucking operations produce significant quantities of data and information that can provide or support multiple bases for liability. When investigating, relevant documents include those that must be kept which will relate at least to:
- the wreck,
- driver qualification,
- driver history,
- the safety of the carrier involved,
- brokerage of the load on the truck,
- the legal relationship between the driver and the carrier/broker/shipper,
- the specific load carried on the truck at the time of the wreck,
- the driver’s “hours of service” at the time of the wreck,
- the truck’s history of recent locations/deliveries/stops,
- the equipment involved,
- insurance and others
Caveat: Trucking companies and counsel often delay the plaintiff’s investigation. Requests for information are misplaced, forgotten or ignored. Requests for information or documents are often only partially answered, with omissions that can be strategic. A cynic or reasonable lawyer might believe that some of the delay and obfuscation is in hope of cajoling counsel into missing evidence due to the passageof time or failure to review what is received. There are hosts of other reasons for such conduct—none that matter though because counsel simply needs the documents.
Document/Information Requests are Time Sensitive
When engaged in the case, counsel should send a spoliation letter immediately. The case will need pertinent records. Counsel will need to understand what records are received and what are missing.These are critical for the essential depositions of the target defendants and for analysis by a commercial trucking expert. No matter what it takes, requesting and obtaining records relating to the involved driver/team, equipment involved and companies is extremely important as soon as you get the case.
Certain records may not be retained beyond defined retention periods—or otherwise—some of the most critical records, driver log books, are only retained for six months from the date of the wreck—and, if possible, you want pre-wreck logs going back several months before the wreck. These records can contain data proving multiple causes of action, including viable claims for punitive damages. Once a wreck occurs, one can assume the involved companies will do a records audit and destroy any records retained in excess of legal retention periods, calendaring additional destruction as they may argue may be lawful and appropriate. A spoliation letter will make that risky, at least. File suit quickly if need be. Should the spoliation letter be met with resistance, and you feel the records are at risk of loss or destruction; early suit with a court seeking injunctive relief for the retention and expedited production of records may be appropriate.
Thorough Document Requests are Necessary—Counsel Should Understand the Involved Records Requested
Obtain all safety policies and the procedures implementing the safety policies. Pay special attention to those on inspection, equipment maintenance, driver training, driver employment, driver review and discipline and those that are wreck related. Typical written safety policies include: wreck files, both tracking and investigation, vehicle inspections, cargo loading and unloading, safe driving: with topics addressing defensive driving and driving in varying conditions, dispatching, driver orientation and training, driver qualification and hiring, driver/employee retention, drug & alcohol (this is required of all), driver logs and log auditing and vehicle maintenance.
Conduct extensive written discovery against the driver and all defendants. Require the driver and other defendants to affirm that any records provided before discovery are true, accurate and complete. Take a FRCP 30(B)(6) deposition of the records custodian to determine what records do and do not exist and where they are retained. Again, you cannot necessarily rely on the defense lawyer’s under- standing of what exists—the information has likely been filtered—whether from Mom and Pop in their trucking outfit to the savvy in-house counsel or risk manager to national counsel.
Whom to Depose: Driver, Broker, Carrier, and Others
After conducting extensive written discovery against the driver and all defendants, you now know SOME of the players. Obviously, you will depose the driver. If team driving is involved, you will depose both. For the motor carrier that is responsible for the load, be certain that you depose the proper personnel. Use a FRCP Rule 30(B)(6) deposition—this time focusing upon all aspects of the involved driver, company, policies, equipment, wreck, etc. This may generate multiple witnesses, but you will get someone authorized to testify on behalf of the carrier, which will bind your target on the pertinent issues of the case.
Bear in mind that different personnel handle different functions in large operations. Some carriers also outsource critical functions (driver qualification, equipment maintenance, etc.). Such entities may be liable and become a potential target defendant. As a result, you may have to depose persons outside of the target defendant’s employment. Be thorough and take names. Who hired this person? Who qualified this person to drive? Who supervised this person? Who trained this person? Who disciplined this person? Who is responsible for safety?
Deposition Techniques and Other Considerations
The depositions in the case are opportunities to test whether your driver, safety officer or training officer is really a trucking professional.These witnesses can teach you about their industry, their company and the wreck. Confirm what you want or expect from each witness, and exhaustively depose the witness. Use available industry tools and re- sources on every aspect of their role. Make them educate you if they can.
Technique tip to consider: Show these witnesses what they don’t know first—make them question what they do know when it counts. Cover every aspect of the trip that resulted in your case and every record of it. Have each witness interpret and explain each re- cord, including shipping content, stops, rest and inspection reports, etc. Find out what records might be missing. Ask both the safety director and driver, “What else should be here concerning this load?” Be sure to cover the application for employment—the driver has to certify its accuracy—and every aspect of the driver’s qualification with the driver and the safety director.
Have a firm grasp of the applicable federal and state regulations involved in the case, and compare the target defendant carrier’s safety policies to them. The regulations are a minimum that must be followed—industry standards may be higher. Use a trucking industry expert. Have your expert educate you, identify issues with you and analyze the records involved. Ask your expert if there is anything indicating a need for additional experts, e.g., reconstructionists, forensic experts relative to equipment, mechanical experts, communications experts.
Research the company, driver and safety director. Run the company through Google, Yahoo and every other search engine you can. Trucker’s get lonely; you can sometimes find drivers chatting or posting about their employers on the Web—actual complaints about management or safety.You may even find pictures from a wreck posted by a third party. Get Facebook and other social media information when available. Print and download all web- site information on your target defendant for future use; it might disappear as a result of post-wreck investigation.
Investigate the “culture” of the company relative to safety. Find out what type of safety program it had, e.g., wreck prevention or minimum compliance with law. Find out whether the company had an “open door” policy relative to safety, or suggestion boxes, surveys, etc. about safety. Inquire whether there was simply “lip service” given to the policies or were they really enforced. If there is a wedge between the driver and the safety directory, the driver may take the opportunity to drive the wedge in a bit more. Determine if the driver acted outside of the policies that were to be enforced or if there was a close call involved because of an infraction where no discipline was meted. Such may not be bad for the case either: it may appear to the jury that discipline was avoided perhaps to shield the company from an admission of a violation of policy.
Understand and Research Law Applicable to Commercial Trucking
The Federal Motor Carrier Safety Administration (FMCSA) promulgates regulations applicable to the trucking industry.1 Those regulations are generally applicable in interstate commerce. Most, if not all, have been adopted as applicable in Kentucky via 601 KAR 1:005, pursuant to legislative authority for the promulgation of such regulations found at KRS 281.600. Government and commercial resources abound that provide interpretation and guides to applicable federal and state regulations and other law.
Both carriers and their drivers bear regulatory responsibilities in the maintenance and operation of these inherently dangerous machines. Insight into actual industry customs, practices and the practical aspects of operating a tractor-trailer present important opportunities for an expert to make a difference in the case. Using an expert may be required in some cases simply to avoid a loss on summary judgment. More importantly, using an expert early may help counsel focus on areas of potential liability that otherwise could be missed. Particular assistance for counsel can be supplied in the host of potential causes of action below.
Injuries can occur during unloading or loading cargo. Shifting cargo during transit can also be a factor in the causation of a wreck during transit or at the dock. Cargo securement rules are promulgated by the FMCSA, with the general rule that cargo must be firmly immobilized or secured on or within a vehicle by structures of adequate strength: dunnage (loose materials used to support and protect cargo) or dunnage bags (inflatable bags intended to fill space between articles of cargo or between cargo and the wall of the vehicle), shoring bars, tiedowns or a combination of these. Some types of cargo also require particular measures for their safe transit.These regulations can be found at 49 CFR 393, et seq.
Employee Credentialing, Testing, and Training
Driver qualification, training, certification (including longer combination vehicles), safety compliance, records retention and the wreck reporting or violations of law can be issues in your case. Drivers are required to undergo regular medical evaluations for fitness as well.
Drug and Alcohol Testing
Drug and alcohol testing standards are established in 49 CFR 382. Companies are required to retain records on their alcohol misuse prevention programs. Alcohol consumption is prohibited during safety functions and for periods of time before and after a wreck.The types of tests required are: pre-employment screening for drugs including marijuana (THC metabolite), cocaine, amphetamines, opiates (including heroin) and phencyclidine (PCP). Additional drug and alcohol testing is done based upon any reason- able suspicion, subsequent to a wreck, randomly, upon return-to-duty and in follow-up.
Understanding regulatory time reporting and related requirements is essential in cases involving driver fatigue, for instance. Driver logs must be maintained, and there are strict limits on permitted hours of service.
Vehicle Inspection, Repair and Maintenance
Records must be retained of driver inspections, systematic fleet inspections and repairs and maintenance. Necessary parts and equipment for the commercial vehicle are delineated in 49 CFR 393 and the same must be kept in working order. Vehicle records must also be retained for prescribed amounts of time.
Hazardous Materials Issues
Comprehensive regulations exist for the handling, routing and supervision of the transportation of hazardous materials. Drivers must be equipped with emergency instructions and documentation of their particular cargo.
A relatively new area developing in the law is the potential liability for the shipper or broker of a load involved in a wreck. This may range from a claim involving negligence in the selection of the motor carrier by the shipper/broker or a claim that the shipper/broker is actually the “ostensible motor carrier” in agency.2 However, at present, Kentucky has little law to offer on these theories.These theories are particularly important in cases involving substantial damages in excess of the driver/motor carrier’s available insurance coverage.
If a broker selects a motor carrier with a poor safety record, it may result in liability in tort for the broker that engaged the dangerous carrier. A duty of ordinary care exists in the selection of the carrier by the shipper/broker. Selecting a dangerous carrier (information on carrier safety is available to the shipper/broker by virtue of safety records “Safer System” maintained by the DOT) can yield liability. (A large verdict against freight broker C.F. Robinson in 2009 after a catastrophic wreck caused by a dangerous driver from the motor carrier it selected made national trucking news.)
Small carriers (sometimes one person with one truck) are used by large “brokerage” firms to carry freight while insulating the “brokerage” firm from liability. Liability is pushed on the small carrier. In reality, this can be a sham. Agency theories and other theories under federal law have been successful in imputing liability to the “broker” for the acts of the driver/motor carrier. As a starting point for researching these theories, a broker is “a person, other than a motor carrier or an employee or agent of a motor carrier, [who] sells, offers for sale, negotiates for, or holds itself out… as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. § 13102(2). An “ostensible broker” is deemed the motor carrier when it arranges or offers to arrange the transportation of shipments they are authorized to transport and that they have accepted and legally bound themselves to transport; accord, e.g., AIOI Ins. Co. v. Timely Integrated, Inc., No. 08 Civ. 1479 (TPG), 2009 WL 2474072 (S.D.N.Y. Aug. 12, 2009) (granting plaintiff’s summary judgment, holding that the broker was the carrier under 49 U.S.C. § 13102 and 49 C.F.R. § 371.2(a)). For another good discussion on this evolving theory, see Hewlett-Packard Co. v. Brother’s Trucking Enters., Inc., 373 F.Supp.2d 1349, 1352 (S.D.Fla.2005), which held that a reasonable factfinder could find that broker served as a “motor carrier” based upon the broker’s assurance regarding its insurance coverage and a publicity mailing stating the company provided control, the latest systems… [and] consistent and timely transit times with quality carriers.
Trucking cases are complex. Counsel must understand the law as it relates to commercial trucking operations. The timing of an investigation, as well as quality of it, is essential. Operating procedures, documents and attendant operational functions and customs in the industry must be understood and explored. Big trucks cause big wrecks. The use of appropriate experts in various fields is critical as well. Approach these cases with respect, diligence and due consideration, and the client’s interests will be well served and protected.
1 A wealth of FMCSA materials, including applicable regulations, can be found at www.fmcsa.dot.gov.
2 Joint venture theory may also be applicable.
(Originally published in the May/June 2012 issue of The Advocate)