How to Lose a Lawsuit: Avoidable Shortcomings of Commercial Trucking That Are Easy to Avoid

Contact: Nate Skeen or Bryson Brown

Presented at the Utah Trucking Association’s Safety Management Council meeting, by SCM attorneys Nate Skeen and Bryson Brown.

 

Employee Handbooks and Policies

Five Common Shortcomings in Trucking Litigation

• Failing to adopt and apply employee handbooks/policies.
• Failing to keep adequate insurance.
• Failing to preserve accident scene evidence.
• Failing to have an accident response plan.
• Failing to hire a lawyer.

Benefits of Employee Handbooks and Policies

• May offer affirmative defense against harassment and discrimination claims.
• Provides direction on employee performance and expectations.
• Permit drug testing of employees (other than CDL drivers).
• May offer basis to suspend exempt employees without pay.

What an Employee Handbook Should Include

• Equal employment opportunity statement.
• Anti-harassment and nondiscrimination policies.
  • Include written guidance on how to report misconduct.
• FMLA/medical leaves of absence policy.
• ADA policy.
• Religious accommodation policy.
• Background-check policy.
• Contractual disclaimer and at-will statement.
• Employee acknowledgement form.
• Whistleblower, nonretaliation, OSHA/safety rules, and accident reporting procedures.
• Other topics to include:
  • Scheduling, breaks, etc.
  • Payroll procedures, including garnishments.
  • Benefits guide.
  • Code of conduct.
  • Progressive discipline policy.
  • Equipment usage and security policies.
  • Social media.

Maintaining Adequate Insurance

Current Minimum Insurance Limits

• Non-hazardous freight in vehicles over 10,001 lbs: $750,000
• Oil Moved For-Hire: $1,000,000
• Other Hazardous Moved For-Hire: $5,000,000

Trends in Utah Jury Verdicts

• Some counties are much more plaintiff-friendly when it comes to damages.
• Juries in historically neutral counties are handing down larger verdicts.
• Mixed results when it comes to liability determinations.

Risks of Not Maintaining Adequate Insurance

• Business and personal assets may be at risk.

Preserving Accident Scene Evidence

Things to Preserve

• Driver call logs
• Driver phone records
  • Expansive – not just call or text records
  • Potentially all data from cellphone
• Trip-monitoring data
• Dashcam video
• Pre-trip and post-trip inspection records
• Maintenance records
• Black-box or similar data
• Bills of lading
• The damaged truck or trailer

Evidence to create

• Photographs of accident scene
• Measurements of accident scene
• Post-accident drug test

Attorney and accident reconstructionist on scene
Statements with police

• Be truthful, but concise
• Do not guess or speculate
• Do not admit to fault

Spoliation

• Destroy evidence
• Fail to save evidence

Sanctions

• Adverse inference: court tells jury to assume evidence was bad for trucker
• Automatic liability: court prevents trucker from disputing liability
  • No longer an issue of whether trucker will pay plaintiff
  • Only an issue of how much trucker will pay

Common preservation problems

• Want to get truck or trailer back on the road
• Expensive to keep a totaled truck at a yard or lot

The “Preventability” Problem

• Good to assess driver’s performance and company’s practices after an accident
  • Lead to safer drivers
  • Lead to better policies and procedures
• But doing so in the wrong way can be damaging to case
  • Do not include on written accident report
  • Meeting with managers and, if possible, in-house counsel
    • Attorney-client privilege
    • Work-product privilege

If deemed preventable, take remedial action

Example:

• Targeted training for driver
• Change to policies or procedures

Why:

• Make the company safer overall
• Arguably makes the “preventability” determination inadmissible in a trial

Failing to Implement an Accident Response Plan

Create and Follow a Post-Accident Plan

• Alert professionals
  • Manager/supervisor
  • Insurance company
  • Attorney
  • Accident reconstructionist
• Identify witnesses
  • Those who saw accident or events leading up to accident
  • Those who responded to accident
• Secure electronic data:
  • ECM,
  • Black box
  • Dashcam
  • Onboard computers
• Photographs and videos
  • Vehicles involved
  • Debris field
  • Roadway and conditions
• Secure truck records
  • Maintenance
  • Pre-trip and post-trip inspections
• Secure driver records
  • Hiring (resume, pre-hire driving record)
  • Disciplinary file, if any
  • Training records
• Identify towing companies for all vehicles involved
• Identify temporary storage facilities for all vehicles
• If environmental hazards:
  • Governmental notification
  • Containment, remediation and clean up.
• Secure (and do not repair) vehicles until consultation with counsel

Post-accident plan

• Balance costs with preserving evidence
  • Not cost-effective to always respond with accident reconstructionist or onsite attorney
    • Pre-set criteria for response level
    • Cases will fall through cracks
  • Cost-effective ways to document all accidents

Failing to Hire a Lawyer

Benefits of Hiring a Lawyer on an Accident Scene

• Communications are protected
• Assistance with identifying and preserving evidence
• Protection from criminal charges or unlawful searches
• 24-HOUR ACCIDENT RESPONSE: 1-877-247-3659

Benefits of Hiring a Lawyer in Other Settings

• Protection from unanticipated consequences of paying citations or pleading guilty to traffic-related charges.
• Assistance with regulatory guidance.
• Creation of contracts and assistance with commercial negotiations.
• General employment advice.

 

When you need a transportation lawyer in Utah

Our lawyers are ready to help. For questions about this blog post, or about transportation law or other services SCM provides, contact Nathan R. Skeen or Bryson R. Brown.