Commercial truck traffic accident litigation has several unique aspects beyond the basic "what happened" that is true of all traffic accidents. There are special factual background issues, the need to review compliance with federal and state regulations, potential liability of third parties in addition to the driver such as trucking companies and shippers, and specialized insurance. This comment briefly addresses several of these items. Always consult an experienced attorney in all traffic accident situations.
Factual Background Investigation Overview
1. An immediate investigation and evidence preservation is critical. Court orders such as a temporary restraining order or an order impounding the vehicles and their contents may be required. The contents of vehicles provide evidence of the driver's state of mind and activities that may not be available in "official" records. Act rapidly.
2. Witness statements from tow truck drivers, investigating officers, paramedics, fire personnel, or any other observers, are clearly important. Tow truck drivers may observe the driver's state of mind and hear casual off-the-record remarks. Utilize an experienced investigator.
3. Don't overlook internet and social media searches, especially of the driver and transportation company.
4. Conduct a thorough investigation of the driver's employment history, driving record, traffic and overload tickets, civil and criminal records, experience and training, CB handle, etc.
5. Many big trucks have a "black box" recorder as well as a GPS and speed tracking system. There are truck maintenance and inspection history records. Is there a fleet safety director or mechanics and what are their training and qualifications?
6. What is the history of the transportation company in terms of DOT audits, accident statistics, and related materials such as citations, policy and instruction manuals, etc.? These may prove that the company was on notice of dangerous conditions, grossly negligent, or acting with "conscious indifference."
General Regulatory issues
1. Failure to comply with federal and state highway safety regulations and traffic laws that proximately causes an injury constitutes "negligence per se" (automatically unreasonable conduct). Hence, beyond the physical accident scene, it is necessary to investigate compliance. Of course, there is always the possibility of an illegal driver, owner-operator, shipper, or transportation company without conscience, insurance, or assets from which to collect a judgment. This may typically be rapidly determined. The only practically enforceable vindication of injury in such a "no asset case" may be a variety of potential criminal charges.
2. At the federal level, the most typically relevant standards are those in the Federal Motor Carrier Safety Regulations created by the Federal Highway Administration. Other regulatory agencies include the National Highway Safety Administration, the National Transportation Safety Board, and the Interstate Commerce Commission. The regulations address, among other topics, the qualifications of drivers, drug and alcohol testing, the commercial driver's license, driving rules, hours of service, as well as required insurance, equipment inspections, and maintenance. This includes texting and mobile phone use. These regulations are highly detailed and beyond the scope of this brief comment.
3. The 1992 North American Free Trade Agreement (NAFTA) allowed long-haul trucking originating in Canada and Mexico. This has a separate and complex regulatory regime. The U.S. Department of Transportation has issued a "Cross Border Operating Requirements Handbook for Foreign Motor Carriers Entering the United States."
Potential Third Party Liability
1. Federal law states that if a motor carrier's name and license number is displayed on a tractor-trailer, the carrier is considered to be in exclusive possession and control of the rig and is vicariously liable for injuries caused by the driver's negligence (liability for the acts of another). This is another reason to immediately photograph the truck. The issue of vicarious liability is complex since a variety of brokers, logistic companies, and business entities may be associated with a particular rig, load and accident.
2. Having a contract designating a driver as an independent contractor to eliminate liability for accidents may be overcome by evidence that indicates the driver's employee status, such as a right to control the driver. This requires more involvement than dispatching a driver to pick up and deliver a load. However, under federal regulations, leased vehicles may create a "statutory employee" relationship between the truck's owner and driver. There are numerous contractual attempts to avoid this and the judicial decisions are contradictory and confusing. An employer is vicariously liable for injuries caused by an employee while in the scope and course of employment under the legal rule "respondeat superior" - let the master answer. However, intentional actions (for example, road rage), crimes, or deviations from the route may take an employee outside of the scope of employment. This is complex and requires detailed analysis in specific situations.
3. A joint venture is a partnership for a single enterprise. All members of a joint venture are liable for enterprise related injuries. For example, a manufacturer may have liability if it owns a trucking company that exclusively carries its products and a truck is involved in an accident. Both the manufacturer and the trucking company profit from the exclusive trucking agreement.
4. Related to joint venture is direct participation liability. In this situation, the manufacturer, for example, creates schedules and budgets for the trucking company that directly lead to the accident. An example would be the manufacturer creating a situation that pressures a driver to speed or otherwise violate regulations.
5. State statutory law often imposes liability for traffic accidents on sellers of alcohol to obviously intoxicated patrons who subsequently have a wreck (dramshop laws). Some states go a step further and impose similar liability on social hosts. The specific facts of a situation and language of the legislation must be reviewed. Receipts, surveillance video, blood alcohol tests, and the contents of the truck are critical.
6. Regardless of employment or independent contractor status, if the driver has inadequate training and a history of traffic violations, a "negligent entrustment" standard may impose liability on the truck's owner. This imposes negligence on the owner for allowing this particular driver to operate potentially dangerous equipment that in fact injured another. A similar theory is applied to security guards who are issued guns by an employer and improperly use the firearm. Note that the cause of the accident must relate back to the recognized risk. Thus an unexpected medical emergency that produced an accident does not trigger negligent entrustment liability. Some states apply a "negligent hiring" or "negligent supervision" approach in employee situations.
1. In simplified overview, federal regulations require commercial vehicles with a gross weight in excess of 10,000 pounds to have at least $750,000 of financial responsibility coverage that may consist of insurance and surety bonds. $5 million is required for hazardous materials transporters. There is a somewhat standard "Trucker's Policy" issued to motor carriers. Beyond this, there are many forms of policy endorsements and types of coverages. One must carefully review the facts associated with a specific accident and the language of the insurance policy or policies. Seemingly slight variations in the facts and policy language may create major differences in insurance coverage.
2. A prudent insurance carrier and the victim's attorney will keep the insured party and/or accident victim informed and consulted throughout settlement negotiations. Professional negligence may occur in failing to communicate or accept a settlement offer. This may allow separate lawsuits against the insurance carrier and attorney. For example, the injured victim offers to settle within the insurance policy limits but the insurance company refuses. If a subsequent trial resulted in a verdict in excess of the policy limits, the insurance company might be liable to pay this excess. If the victim's attorney failed to communicate a settlement offer and the trial produced a lower verdict, the attorney might be liable for the difference if she or he were negligent.
Claims Against Accident Recoveries
1. Many states have statutes that allow individuals and entities to assert a direct claim against the monetary recovery of an accident victim. A hospital lien, for example, exists independently of a contract and allows recovery by a variety of medical providers. One must review a specific state's statutes to determine the types of liens available and the procedures to assert them. There are a variety of liens that must be considered when funds are distributed.
2. A right of "subrogation" may exist when an insurance company pays medical expenses or property damage claims of an accident victim. In simplified overview, the insurance company may be entitled to be reimbursed when the accident victim obtains a separate recovery from the responsible parties, or the insurance company may simply sue the responsible party in the name of the victim. Federal Medicare and Medicaid programs have similar rights.
3. Understand your tax issues. In an incomplete generalization, money received for personal physical injuries, medical expenses, and property damage is not subject to federal income tax. These payments reimburse a loss. However, compensation for lost income and punitive damages may be taxable. Always consult a tax expert and be certain that settlements are structured with an awareness of potential tax liability.
4. Of course, there are always attorneys' fees, expenses, and court costs to consider. A contingent fee contract pays the victim's attorney a percentage of the recovery when a settlement or other financial payment is made. While the precise percentage is a matter of agreement, attorney disciplinary rules prohibit unconscionable (grossly unfair) fees and fee arrangements. Fee agreements typically also allow the attorney to be reimbursed for expenses (for example, fees paid to private investigators, accident reconstruction experts, etc.) as well as court costs. Both attorney and client should understand in a clearly written and signed agreement what the arrangement is. What services are included or excluded? What about appeals beyond the trial court?
This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.