Truck Collision Claims
I. DISTINCTIONS FROM AUTO COLLISIONS
The factors generally distinguishing a trucking collision case from a routine auto accident are:
1. the impact of legislation applicable to the trucking industry;
2. the composition of the operator of the commercial vehicle;
3. the application of industry standards;
4. the trucking company as a defendant; and,
5. the damages most likely encountered in a truck collision.
A. IMPACT OF LEGISLATION
There are more federal and state agencies,
federal and state laws and compliance standards applicable to the trucking industry than any other commercial transportation industry. The bulk of the federal regulations with which a
litigant should be familiar are found within Title 49, Code of Federal Regulations, which generally apply to any commercial motor vehicle operated in the commerce of the United States.
A Commercial Motor Vehicle is defined to be Aa vehicle used in commerce having a gross combination weight of 26,001 pounds or more, or designed to transport 16 or more passengers, or
used in the transportation of hazardous materials. The Federal Motor Carrier Safety Regulations (FMCSR) Handbook may be ordered from J.J. Keller and Assoc. Inc. at (800) 558-5011..
The regulations applying to the trucking industry,
whether viewed from the defense or the plaintiff perspective, are the most distinguishing characteristics from a normal auto collision case. A simple listing of the index of topics found
within the Federal Motor Carrier Safety Regulation Pocket Handbook, displays the scope of regulatory activity involving the trucking.
Unlike a standard auto collision case, the trucking
defendant is to adhere to federal and state regulations encompassing every aspect of its operations, both pre- and post-accident.
The importance of these regulations mandates that each
driver has a copy of the Federal Motor Carrier Safety Regulations in his/her possession and become familiar with those regulations. In essence, it becomes the Trucker's Bible.
B. COMPOSITION OF OPERATOR
A commercial motor vehicle will almost always be
operated by an individual possessing specialized training, education and formalized instruction. He/she should possess a special license for operation of the vehicle and generally will
have attended an independent trucking school or some form of apprentice training within a trucking company. A driver is required to have certain knowledge, experience and training not
required of a standard motor operator. Driver qualifications are found within 49 C.F. R. Part 391.11, in addition to those qualifications required for the securing of a commercial drivers
license by each respective State.
In a truck collision case, the qualifications of the
driver, his/her training, education, experience, traffic violations, physical attributes and mental status should always be carefully scrutinized by Plaintiff's counsel.
The increased demand for drivers of commercial vehicles
burdens human resources departments of trucking companies to keep qualified operators behind the wheel of their commercial vehicles. All driver applications must be complete, accurate and in
compliance with the Federal Motor Carrier Regulations (FMCSR). Federal investigative agencies are increasingly reviewing the hiring processes of operators to determine the diligence employed
by trucking companies through their screening processes. It is no longer sufficient for a company to take an employee's application at face value. Deficiencies in the hiring procedures employed
by a trucking company can be noted by a thorough comparison of the onerous investigative burdens placed by regulations. With the accessibility of information available on a variety of websites,
it is imperative that the trucking company adequately investigate each driver's accident and traffic violation history.
C. APPLICATION OF INDUSTRY STANDARDS
In a commercial truck accident, the actions of the truck driver,
and the company which employed him/her, are often subjected to a comparison to industry standards, i.e., negligent hiring, retention, retraining, and negligent entrustment.
Plaintiffs counsel should be mindful of the actions between the
driver and the company, and in doing so, the interaction between the Human Resources Director, Safety Director, Maintenance Supervisor and driver should all come under close scrutiny.
The accessibility of data from which a party can compare one
trucking company to another permits a party to investigate a motor carrier's safety record, safety rating, out-of-service inspection data and similar information. This information should be
obtained in every case.
D. VOLUME AND COMPLEXITY OF DAMAGES
The average automobile traveling the highways weighs 3,500 pounds
while a commercial truck, by its very definition, carries loads in excess of 26,000 and the total gross weight of the vehicle is often in the range of 50-60,000 pounds. Additionally, commercial
trucks often transport two trailers which may have a propensity to jackknife. Further, the lack of disc brakes or existence of defective brakes on many commercial vehicles can create greater
velocity impacts between a truck and an automobile.
An equally understandable statistic confirms that less than half
of the auto to auto collisions result in personal injuries to the occupants; while more than 75% of the truck to car collisions results in personal injuries.
E. POTENTIAL DEFENDANTS AND CLAIMANTS
Trucking litigation involves the normal presence of a corporate
defendant, a driver defendant and defendants who may be culpable through conduct associated with equipment or employees. The Corporate defendant is often brought into litigation under the concept
of respondeat superior, based upon the normal master/servant relationship. There is an increasing proclivity toward plaintiffs adding the corporation as a party defendant alleging:
a. negligent entrustment;
b. improper vehicle maintenance;
c. illegal routing;
d. improper monitoring or control of drivers;
e. negligent hiring and retention; and,
f. negligent or inadequate training and retraining.
Trucking companies engage a variety of third-party providers for
the effective and efficient operation of the business. Many companies lease equipment, tractors and trailers from other vendors. These leases often provide for maintenance, repair and inspections
to be performed by the vendor or a designated contractor. Such arrangements set forth specific duties, responsibilities, indemnification and ensuring agreements. This information should always be
requested in trucking or commercial vehicle litigation.
Due to the increasing demands placed upon personnel departments,
trucking companies further retain independent employment leasing contractors to furnish qualified drivers. Those employee leasing agreements also contain specific language relating to training,
supervision, control and duties to be performed by the leased employee. Leasing services may be directly responsible for the actions of the driver in a collision as well. This information should
likewise be obtained.
F. LIKELIHOOD OF PUNITIVE DAMAGES
The availability of exemplary damages for a tort cause of action
in Texas is governed by Chapter 41 of the Civil Practice and Remedies Code (CPRC). Other States have similar statutes and other states are governed by case law of that State.
Specifically, CPRC '41.003 mandates that exemplary damages may only
be awarded if a claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages resulted from fraud, malice, or willful act or
omission, or gross neglect in a wrongful death action.
Accordingly, plaintiff's counsel should carefully analyze company
policies and procedures in evaluating and pursuing a punitive damage claim.
II. APPLICABLE TRUCKING LEGISLATION
A. EXISTING LEGISLATION
1. FEDERAL
The following provisions of 49 U.S.C. as found at title 49 Code of
Federal Regulations (FMCSR) apply to certain aspects regarding the driver and the trucking company:
a. Driver Qualifications '391.11
(1) At least 21 years old, (2) read and speak English sufficiently,
(3) can safely operate the type of commercial motor vehicle he drives by reason of experience, training or both, (4) is knowledgeable concerning the cargo he carries and how to safely transport it,
(5) familiar with methods and procedures for securing cargo, (6) physically qualified according to the regulations, (7) has a valid commercial driver's license issued only by one State or jurisdiction,
(8) has furnished the company with a list of violations, (9) not disqualified to drive under the regulations, (10) has completed a driver's road test, and (11) has furnished an application for employment
under the Regs. A driver is disqualified if he has been convicted of driving a commercial vehicle while the person's alcohol concentration is .04% or more or has committed a felony involving the use of
a commercial motor vehicle, or operated a commercial motor vehicle while under influence of a prohibited drug, leaving the scene of an accident while operating a commercial motor vehicle, or refusing to
undergo certain testing regarding alcohol.
b. Application for Employment '391.21
The application for employment includes specifics concerning the
individuals background, their experience in operation of motor vehicles, a listing of all motor vehicle accidents and violations during the preceding three years, as well as reflecting any suspensions
or revocations of licenses. A motor carrier is obligated to investigate and make inquiry concerning their potential employees pursuant to '391.23.
c. Driver's Road Test '391.31
In addition to the commercial driver's license, a motor carrier itself
must conduct or have conducted by an independent party a road test of their operator and certify that he has the skills to operate the vehicle, as well as to perform pre-trip inspections. This requirement
is subject to waiver in the event the individual presents a certificate from a state indicating that he has passed a road test within the last three years.
d. Physical Qualifications '391.41
There are specific requirements concerning the ability of a driver to be
physically able to perform his/her, tasks notably physical limitations which would impair his/her ability to operate the vehicle, or to perceive sound or sign data.
e. Driver Qualification Files '391.51
The company must maintain a complete file of the driver's qualifications
within the corporate records of the company. All counsel should obtain a copy of this file in connection with discovery requests for the personnel file of the individual.
f. Controlled Substance and Alcohol Use Testing '382.601 et seq.
The employer must conduct a pre-employment testing for alcohol and drug use
and conduct post-accident testing within two hours following the accident. In the event the company was not able to conduct the testing, the reasons for its absence of testing must also be noted.
Records must be maintained for a period of five years. The employer must provide education materials to explain the requirements and the employer's policies the trucking company regarding alcohol
and substance abuse. Section 382.601 provides that the employer shall provide referral, evaluation and treatment for drivers. Section 382.605.
g. Commercial Driver's License Requirements '383.1
This section provides for the requirement for the issuance of a commercial
driver's license by the respective states and minimum criteria for such licensing. It additionally requires the driver to notify State officials concerning any convictions for traffic violations.
Section 383.110 details the specific knowledge a driver must have in order to obtain a license.
h. Financial Responsibility for Motor Carriers '387.1
Generally, this section requires that motor carriers with a gross vehicle
weight of 10,000 or more pounds have at least $750,000 worth of financial responsibility, composed of insurance, surety bonds and endorsements. This financial responsibility is increased to a level of $5
million for certain commercial carriers conveying hazardous materials. Commercial carriers conveying 16 or mor passengers have minimum responsibility requirements of $5 million.
i. General Requirements '390.1
These provisions mandate that companies cooperate with other Federal agencies
and State agencies investigating accidents and require the maintenance of certain records.
j. General Driving Regulations '392
The regulations encompass the practices of commercial motor vehicles on
the highways to include minimum equipment requirements, parking, fueling, lighting, and prohibited practices.
k. Mechanical Equipment Requirements '393.1-393.209
A detailed explanation of the parts and components and their operative
characteristics for a commercial motor vehicle are contained in these sections.
l. Inspection, Repair and Maintenance '396.3-25
The requirements of a company and operator concerning the inspection, repair
and maintenance of the commercial motor vehicle and the qualifications of the inspectors conducting the inspections as well as the maintenance for inspections are included in these regulations.
m. Hazardous Materials '397.1-225
Specific requirements concerning the conveyance of hazardous materials, and the vehicles
which transport such materials are controlled by these sections.
n. Employees Safety and Health Standards '399.201-211
These provisions outline the requirements for the commercial cab equipment and internal composition to accommodate safe operator usage.
o. Transportation Workplace Drug and Alcohol Testing Programs '40.1-111
The DOT drug testing programs required by employers and the maintenance of specimens collected with reporting requirements are
contained in these sections.
p. Hours of Service of Drivers '395.3, 395.8 and 395.15
The maximum permissible hours of service for commercial motor operators and the maintenance of records reflecting such hours of
service are governed by these sections.
q. State of Texas
Texas has adopted certain provisions of the FMCSR. An attorney should examine the rules and regulations applicable in Texas as
well as the provisions of the FMCSR adopted by Texas.
III. ANATOMY OF A TRUCK COLLISION INVESTIGATION
The sooner plaintiff's counsel can organize and effect a thorough accident investigation the better off he/she will be during the
trial of the case. A competent accident investigation should be performed:
a. as soon as possible after the accident;
b. by competent, qualified team of professionals; and
c. acting under the supervision and control of skilled counsel.
Most trucking companies or their insurers have skilled counsel which they regularly utilize in truck collision cases. The trucking
companies normally have in place a Truck Collision Team or swat team, consisting of attorneys, legal assistants, investigators and certain independent professional persons or organizations whom
they regularly call upon as experts for utilization in connection with these types of cases. Such independent parties may consist of engineers, accident reconstructionist, computer graphics
technicians, forensics specialists, metallurgist, certified safety specialists and others. Thus, the trucking companies will begin their investigation and preparation for their defense immediately
after notification of the accident in order to shape up their defenses and avoid responsibility.
A. INITIAL NOTIFICATION
The trucking company will likely be first notified of the trucking collision by its driver, or the State Highway Patrol if its driver
is unable to communicate. If the trucking company utilizes a GPS tracking system or other on-board monitoring device, they may receive almost instantaneous notification of the accident. At this
point, they will normally have a policy in effect through their insurer, to provide immediate notification to the insurance carrier and to defense counsel and begin preparing its defense.
As soon as the trucking company defense team receives verbal notification of the accident, individual responsibilities will be
immediately assigned. An on-site investigation is usually accomplished as soon as possible. Generally, communication will be made with individuals or organizations located at or near the scene of
the accident to record all actions taking place by authorities and third-parties at the scene of the accident until the trucking company defense team can arrive to conduct their investigation.
Often, debris will be removed which could be critical to a later determination as to the cause of the accident. If the companies or organizations responsible for the cleaning of debris can be
identified early, then a re-enactment of the debris and its location at the scene can be accomplished by the reconstructionist.
Since the trucking company defense team is engaging in its investigation and defense preparation immediately following notification
of the accident, it is extremely important that the injured parties likewise seek counsel to begin their own prompt investigation.
B. ACTIONS AT THE SCENE OF THE ACCIDENT
The purpose of rapid arrival at the scene is to preserve evidence which may be available at the scene, to communicate with witnesses
and prevent the destruction or alteration of any of the vehicles involved.
Prior to arriving at the scene, identify all organizations and persons who have been at the scene prior to your arrival. This
will typically include Highway Patrol, Sheriff's Department, Police Department, Department of Transportation personnel, towing companies, EMS, ambulance service, fire departments, highway courtesy
patrol, special traffic investigators from municipalities, adjacent businesses and landowners, news media (newspaper, radio, television), companion truckers, eyewitnesses and anyone else who can
be readily identified.
Since the trucking company defense team is most likely already at the scene, the prompt arrival by the injured party's attorney
and his/her own team members will allow them to preserve evidence themselves rather than simply relying upon information obtained from the trucking company defense team or other investigating
personnel.
The attorney for the injured party and his team members should be observant for other persons who appear to be investigating
accident scene or who are contacting persons knowledgeable of the accident. The identification of these persons, including description of vehicles and license plates, as well as their obvious
activities and interests should be observed and recorded for subsequent discovery requests and information gathering.
Immediately go to the scene of the accident and record those aspects of the accident scene which are susceptible of alteration
over time. Notably, these include:
a. presence and location of debris;
b. skid marks and track marks;
c. damage to road way and adjacent property;
d. highway marking and post it signs;
e. lighting conditions;
f. obstructions on or near the roadway;
g. presence of foreign objects on the roadway;
h. location and condition of vehicles;
i. oil or other liquid substances on the roadway;
j. depressions and composition of roadway; and,
k. turns, rises or depressions in the roadway.
The above should be photographed and/or videotaped, depending upon visibility and other factors.
C. PRESERVATION OF EVIDENCE
Trucking companies are required to maintain specific records and documents for required periods of time, depending upon the
triggering of the event. The following documents should be secured and preserved, if possible; either before or at least after litigation:
a. drivers logs for the day of the incident and 30 days prior;
b. magnetic discs of any on-board computer systems;
c. telephone and communication logs between the company and the driver;
d. cellular phone logs;
e. maintenance records for the tractor and any trailers attached for the year preceding to the accident;
f. alcohol and drug testing for the five years prior to the accident in the event there were any negative reports on the driver, and for the last two years prior to the accident if there were no negative reports;
g. post-accident alcohol and drug testing;
h. the driver's personnel file;
i. all investigative reports, files, records, photos and other data;
k. copies of all news media coverage of the accident or the scene post-accident;
l. the truck and vehicle involved in the incident should be collected and placed in a location free of any damage or further deterioration;
m. debris which has been collected from the scene should be collected, and cataloged for future analysis, if necessary;
n. Weather Bureau reports and data;
o. Highway Department maps, drawings or diagrams of any scene;
p. all police, fire, special traffic team and other related investigations;
q. all Federal investigative reports; and,
r. all applicable OSHA forms.
IV. UNIQUE LEGAL ISSUES TO TRUCKING LITIGATION
There are a variety of legal issues unique to truck driving litigation which distinguish this area of practice. Counsel for
plaintiff should be award of these issues and how they can affect each case.
A. THEORIES OF DEFENDANT LIABILITY
Truck driving litigation is unique in that it provides for multiple theories of defendant liability. A plaintiff can consider
several causes of action such as negligent hiring/retention/entrustment; negligent training/re-training/supervision, and vicarious liability/respondeat superior.
1. Negligent Hiring/Retention/Entrustment
These claims are barred in many jurisdictions when a defendant trucking company accepts vicarious liability for the actions of
a driver. These jurisdictions hold that information depicting negligent hiring, retention, and entrustment is immaterial when a defendant has assumed responsibility for its agent.
The law of each state where potential litigation could be filed may need to be considered if negligent hiring, retention, and
entrustment is being considered.
2. Negligent Training/Re-training/Supervision
Another factor that distinguishes truck driving litigation is the availability of a potential negligent training, retraining
and supervision claim. For example, liability could be established when a company:
1) knowingly permits its drivers to violate state and federal regulations;
2) allows drivers on the road with minimal operating experience; or,
3) allows drivers to continue driving despite internal violations.
In Texas, companies are required to take an active role in monitoring truck driver's driving hours to help reduce the number of
fatigue and stress-related accidents. Plaintiff’s counsel can increase their chance of success by establishing substandard training, re-training, and supervision policies addressing these issues.
3. Vicarious Liability
In the majority of jurisdictions, including Texas, trucking companies are liable in tort for the actions of their drivers.
B. EVIDENTIARY MEDIUMS
1. Driver Monitoring
Federal law requires drivers to record their driving information in structured driver's logs. Federal legislation authorizes the
government to record driver registration, licensing, and safety performance. On-Board communications and tracking systems are federally permitted and frequently utilized by trucking companies. Drug
testing is mandated both during a truck driver’s employment and immediately after accidents. Truckers are limited in the number of hours they can driver over any given period of time. On-board
surveillance cameras, trip recorders, and collision warning systems (black boxes) are in operation in numerous trucks across the nation.
Plaintiffs counsel should inquire into logs, communication systems, and any other form of evidence relating to the litigation in question.
Federal law requires all interstate truck drivers to keep daily logs that track their activities while employed as a truck driver.
49C.F.R. '395.8. Trucking companies must maintain copies of the logs for six months. 49C.F.R. '395.8(k). Thus, it is important to file suit promptly to ensure all logs are preserved; alternatively,
a formal written demand (preservation letter) should be made upon the trucking company, driver and their insurance company to preserve all logs and supporting documents as well as all evidence which
is relevant to the accident.
An effort should be made to obtain other documentation for comparison to the driver's logs. For example, many drivers use credit
cards issued by a company which maintain computerized records of all charges which include driver's name, date, time, location and amount of charge. This information is helpful for cross-referencing
information recorded by the driver. Additionally, some trucking companies require their drivers to complete daily trip reports, pay records, toll records and pay submissions which require information
about the truck's odometer readings, routes and miles driven as well as the times each State border crossed.
2. Driver Fatigue
One study indicated that of 107 truck drivers who had survived single truck accidents, 62 (58%) were suffering from fatigue. Thus,
an attorney should thoroughly investigate all documents or information which may reveal that driver fatigue was a cause of the accident. Trucking companies may be responsible for failing to properly
monitor its drivers so as to require a fatigued driver to stop driving, for ordering a driver to continue driving notwithstanding complaints made to company dispatchers that the driver felt that he
was too tired to continue driving, for placing demands on a truck driver that he meet a time schedule which requires him to drive beyond the reasonable limits of human endurance or instituting a system
which fails to take into account driver fatigue.