Trial Magazine

Truck crash cases are fundamentally different from car crash cases. Plaintiff attorneys handling trucking cases must understand how the trucking and the trucking insurance industries work, the types of documents and data that might provide valuable evidence, and how to find and use industry standards to prove the unique rules applicable to truck drivers and trucking companies. Here are some tips to keep in mind.

Tip 1 - Act Immediately.

Unlike car crash cases, truck crash cases are vigorously defended immediately after the crash. Defense attorneys typically have first access to the vehicles and data, as well as the first opportunity to speak to police officers and witnesses. Many trucks are equipped with systems that automatically notify dispatch of a collision, and truck drivers are trained to contact their companies as soon as possible. Defense lawyers who work with major commercial motor vehicle insurers often must commit in advance to be part of an immediate response team that can put experts—and even lawyers—at the scene within hours of notification.

Important evidence from the truck (such as data from the engine control module or “black box”), the scene (such as telltale tire marks), and even trucking company records can be lost if not obtained quickly. For instance, trucking companies must keep hours-of-service logs and supporting materials for only six months, and many companies routinely destroy those records unless someone intercedes.¹

To minimize these issues, you must be prepared to conduct an expedited, thorough, and often expensive investigation. Locate the vehicles involved and timely download their data, locate and interview any witnesses, and canvass the scene and area for video cameras. Hire an accident reconstruction expert to document the scene and vehicle evidence.

To protect evidence that cannot be secured, send an evidence preservation letter to the motor carrier responsible for each commercial motor vehicle involved. Request that it preserve all evidence related to the driver, the vehicles involved, the trip and cargo being hauled at the time of the crash, and compliance or lack of compliance with federal and state trucking regulations.²

Tip 2 - Don’t Miss the Truck.

When most people—and lawyers—think about trucks, they assume they are dealing with 18-wheelers or big rigs, which weigh 26,001 pounds or more and are defined in §383.5 of the Federal Motor Carrier Safety Regulations (FMCSR).³ Unless exempt, a driver must have a commercial driver’s license (CDL) to legally operate one of these vehicles.⁴

But the FMCSR also defines smaller vehicles with a gross combined vehicle weight rating (GCVWR) of 10,001 pounds or more as commercial motor vehicles if being used for commercial purposes.⁵ This includes two types of vehicles: those that exceed the weight threshold on their own, such as box trucks often used for deliveries, and those pulling a trailer or other object with a combined weight meeting the weight criteria. Vehicles in this latter category may include landscape pick-up trucks pulling trailers with maintenance equipment, plumbing contractor utility trucks pulling earth-moving equipment, and construction company pick-up trucks pulling trailers with building supplies or equipment.

Once the vehicle meets the commercial motor vehicle criteria, the rules governing the operation of that vehicle change markedly. While a driver of a smaller vehicle in this second class does not need a CDL to operate it unless it is carrying hazardous materials, nearly all of the other trucking safety regulations described below that apply to big rigs will apply to these smaller vehicles too.⁶

Tip 3 - Know the Trucking Rules. 

Unless someone is specifically trained to operate a commercial vehicle, the person’s only frame of reference is what he or she knows about driving cars. But driving a truck—and what constitutes reasonable care in doing so—is very different from driving a car.

What constitutes reasonable care in the operation of a trucking company is also unique. Motor carriers are highly regulated entities bound by standards that apply only to the trucking industry. Yet few judges, jurors, lawyers, witnesses, and even police officers have any training about what it takes to safely drive a truck or what is required by law to safely run a trucking company.⁷ So it is imperative to be able to explain to decision-makers the trucking-specific rules of the road.

The FMCSR are the starting point for finding applicable trucking industry safety standards for drivers and motor carriers. Read the regulations and the accompanying guidance.⁸ Pay attention to the regulations on preservation of records (§379); CDLs (§383); the special knowledge and skills required for CDL drivers (§§383.111 and 383.113); minimum driver qualifications (§391); the operation of commercial vehicles (§§390 and 392); lights and conspicuity (§393); hours of service (§395); and inspection, repair, and maintenance (§396).

Although the FMCSR govern the operation of commercial motor vehicles, they do not provide specific details on how to operate a truck safely. Section 383.131, however, requires states to provide CDL manuals based on a model manual with the “substance” of the special truck driver knowledge and skill required under the FMCSR. The FMCSR adopted a model CDL manual by reference and requires states to make that available to those wishing to obtain a CDL license.⁹

These manuals are a fantastic source for the industry standards that truck drivers must follow to be considered reasonably safe. Because each manual is based on one model, the content is nearly identical from state to state. To demonstrate the universality of these rules, it can be useful to show the manuals from the state where the driver is licensed, each state that he or she drove through, and the state where the crash occurred.

Additional sources to consider for trucking-specific rules include books used by truck driver schools,¹⁰ trucking-specific defensive driving courses,¹¹ and manuals used to teach trucking company personnel how to determine whether crashes should be deemed preventable or nonpreventable.¹²

The best way to use these industry standards in a deposition or at trial is to layer them on top of each other—starting with the requirements outlined in the FMCSR and adding in details from the relevant state CDL manuals—until the defense witness either admits the rules are applicable to your case or looks foolish in continuing to deny that they are.¹³ Relevant witnesses might include the truck driver, trucking company safety director, trucking company corporate representative, or defense standard of care expert.

Tip 4 - Don’t Fall for the “Regulations Don’t Apply” Defense in an Intrastate Trucking Case.

The FMCSR apply to commercial motor vehicles operating in interstate commerce, but many truck crash cases are intrastate only—and a common defense is that the FMCSR don’t apply. But while the FMCSR do not directly apply to intrastate commerce cases, each state has, in one manner or another, adopted most of the pertinent parts of the FMCSR for application to trucking within their state.

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While the FMCSR do not directly apply to intrastate commerce cases, each state has adopted most of the pertinent parts of the FMCSR for application to trucking within their state.

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In other words, the FMCSR do not apply directly to intrastate trucking operations, but the version of the FMCSR that was adopted into state law certainly does. Some states, for example, have statutes that directly adopt the pertinent FMCSR language or adopt sections by reference. Other states have legislation that created a commission charged with regulating the trucking industry, and the commission then adopted the FMCSR.

Small variations exist from state to state on what parts of the FMCSR were adopted, and some states have modified the FMCSR language, so it’s important to check the specifics for the state in which the crash occurred and where the motor carrier company is domiciled.

Tip 5 - Fight for Key Documents.

Trucking cases are document intensive, and generally, you should obtain all the documents related to the truck, the trailer, the driver, any co-driver, the cargo, the dispatch and trip, and all documents that demonstrate compliance or lack of compliance with the FMCSR or the relevant state regulations.¹⁴ Get exemplar discovery from experienced lawyers or use a trucking safety expert to assist with discovery. In appropriate circumstances, consider taking a corporate representative deposition—in most instances, a Rule 30(b)(6) deposition—focused on identifying documents and other materials to request for production. But be prepared to fight for these documents. In addition to the typical “overly broad” and “vague” objections seen in most litigation, the defense in trucking cases often tries to obfuscate the rules by—among other tactics—misapplying the federal trucking regulations and making federal preemption arguments.¹⁵

Tip 6 - Don’t Fall for the “Independent Contractor” Defense.

Motor carriers sometimes try to avoid corporate liability for a driver’s negligence by asserting that the driver was an independent contractor. This defense typically is not available in truck crash cases under the FMCSR. Section 390.5 expressly includes in the definition of the term “employee” an “independent contractor . . . in the course of operating a commercial motor vehicle.” As a result, the motor carrier responsible for the truck being on the road is also responsible for the driver of that truck.

For example, under the FMCSR, an owner-operator who owns the truck and leases to a motor carrier is considered an employee of that motor carrier while under dispatch driving for that motor carrier. The driver may be considered an independent contractor for other purposes but is considered an employee under the FMCSR.¹⁶

Tip 7 - Insurance Coverage is Crucial.

The FMCSR only require interstate motor carriers to maintain a minimum of $750,000 in insurance coverage with a $5 million minimum required for hazardous materials carriers.¹⁷ The minimum coverage provision has not increased since it passed in 1981, and as a result, many motor carriers today are underinsured. In catastrophic injury and death cases, this becomes a large issue, so you need to search for where additional coverage may exist.

Start by determining whether there’s excess coverage for the motor carrier. If there is sufficient coverage, then there is no need to go further.

If the tractor and the trailer are separately owned, a separate insurance policy likely covers the trailer. Trailers are considered separate commercial motor vehicles under the FMCSR,¹⁸ and it is common for trailer insurance to provide secondary coverage. It is enough if the trailer was simply attached to a tractor under dispatch.

If the trailer is a chassis with a container pinned to it, then the chassis may be part of an “interchange agreement,” which often provides for substantial secondary insurance coverage that may apply regardless of whether there was any negligence by the trailer owner or whether the trailer contributed to the crash.

If additional coverage is still necessary, investigate other players. Under certain circumstances, a broker who arranged for the transportation of a load with an unacceptably dangerous motor carrier or a sophisticated shipper who did not perform proper due diligence before retaining a dangerous motor carrier can be held liable.¹⁹

Tip 8 - Prepare for Trial Before the First Deposition.

The most successful lawyers in these cases prepare for the early depositions as if they are going to make or break the case—because they do. This requires obtaining and studying the documents described above, defining exactly what deficiencies you are going to highlight, knowing where to find the rules applicable to your case, and defining a strategy for proving and using those rules. You should have at least three goals for these depositions.

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Distinguish professional truck drivers from other drivers so that jurors understand why it is fair to hold them to different standards.

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First, distinguish professional truck drivers from other drivers so that jurors understand why it is fair to hold them to different standards. Ask the driver about the various things he or she must do that car drivers do not have to do. For instance, truck drivers have to conduct a detailed pre-trip inspection of their tractor and trailer before they start to drive and must know how to check and adjust their brakes and axles.²⁰ Highlight that driving a truck is not at all like driving a car and how it takes longer to accelerate, brake, change lanes, turn, and do everything else compared to a car.²¹

Second, focus on the rules. Figure out in advance exactly what rules you are going to use, and know how to prove them with the layering technique described earlier. This is critical to the success of your case.

Third, when possible, focus on the trucking company’s systemic failures rather than the failures of an individual driver. For example, highlight a company’s systemic failure to have and enforce effective safety policies rather than a single driver who operated a vehicle while distracted, was overtired, or failed to employ defensive driving techniques. If your case can be about the need for a company running hundreds of trucks through the jurors’ community to change its practices, then you will have a strong case.

One strategy is to schedule the truck driver, the motor carrier safety director, and the motor carrier corporate designee as back-to-back depositions. The order is less important than the fact that they are back-to-back. Show these witnesses the rules from credible sources, and ask them to agree with or reject the rules. You will be surprised at how many defense witnesses are unprepared for this methodical approach, and by taking the depositions back-to-back, you prevent the later witness from learning from the earlier witness’s transcript and being coached.

Another strategy is to use the driver against the company and vice versa, depending on the facts of your case. When the driver is confronted with the applicable rules and his or her failure to follow them, the driver may be willing to testify that if the company had better training or policies, then the driver would have acted differently. Likewise, when the driver clearly violated the rules, trucking company personnel may testify that the driver should have known better—and that it was not the result of poor training or policies.

These tips are offered as a primer on a complex subject. Remember that trucking cases are about getting justice for your client—and about preventing others from getting hurt or killed, strengthening highway safety, and stopping dangerous trucking operations.

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Joseph A. Fried is a partner with Fried Rogers Goldberg in Atlanta. He can be reached at joe@frg-law.com.

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Notes

1. 49 C.F.R. §379, Appendix A (2016).

2. A sample preservation letter can be found at the author’s firm’s website at https://portal.frg-law.com/?password-protected= login&redirect_to=http://portal.frg-law.com/. This link takes you to a portal, which you can access after proving you are a plaintiff attorney. 

3. 49 C.F.R. §383.5. 

4. Federal exemptions can be found at 49 C.F.R. §383.3 and generally include drivers of certain types of vehicles used in farming, firefighting, military applications, emergency response operations, and snow and ice removal operations. For state specific exemptions, refer to that state’s trucking safety regulations.

5. 49 C.F.R. §390.5.

6. For more complete information on this subject, see Joseph A. Fried, Small Trucks Big Regulations, Trial 22 (Feb. 2013).

7. Few police officers are trained in the FMCSR, and even fewer are trained in trucking regulations. Since the police officer’s only frame of reference is typically what car drivers are supposed to do, that is the frame of reference they apply to truck crash cases. 

8. Codified at 49 C.F.R. §§350–399, they can be found here: www.fmcsa.dot.gov/regulations/title49/b/5/3.

9. See Am. Ass’n of Motor Vehicle Adm’rs, Model Commercial Driver License Manual, FMCSA (July 2010), https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/2005% 20CDL%20DRIVER%20MANUAL%20 FINAL%20July%202010.pdf.

10. See, e.g., Alice Adams, Tractor-Trailer Truck Driver Training (4th ed. 2012); J.J Keller & Assoc., Tractor-Trailer Driver Training Manual (2d ed. 2011). 

11. See, e.g., Smith System, https://www.drive different.com/.

12. See, e.g., Safety Mgmt. Council, Trucking Industry Guidelines for Recording Fleet Vehicle Accidents and Determining Preventability (1998); Nat’l Safety Council, A Guide to Determine Motor Vehicle Collision Preventability (2011); S. Carl Uzgiris et al., Commercial Vehicle Preventable Accident Manual: A Guide to Countermeasures (3d ed. 1997). 

13. See Joseph A. Fried, Layering Trucking Regulations and Industry Sources for Maximum Effect, Trial 38 (Feb. 2016). 

14. A good place to look for the names of these documents is 49 C.F.R. §379 and its Appendix A.

15. For more information, see Rena Leizerman, Holding FAST Against Transportation Brokers, Trial 26 (Feb. 2017).

16. 49 C.F.R. §390.5.

17. 49 C.F.R. §387.9.

18. 49 C.F.R. §390.5.

19. Also, be aware that insurance policies that cover commercial motor vehicles typically contain an MCS-90 endorsement, which acts as a surety and overrides many typical insurance policy coverage defenses. For more information on MCS-90 endorsements, see Thomas Hershewe, Hiding in Plain Sight, Trial 46 (Feb. 2015).

20. See 49 C.F.R. §396.11 and any CDL manual. 

21. For more examples, see the CDL manuals.