Download - Litigating Trucking Accident Injury Claims for Plaintiffs ...media.straffordpub.com/products/litigating-trucking-accident-injury... · Litigating Trucking Accident Injury Claims for

Litigating Trucking Accident Injury Claims for Plaintiffs and Defendants Evaluating the Potential Impact of CSA Recordkeeping, Theories of Liability, and Other Special Issues

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

THURSDAY, APRIL 18, 2013

Presenting a live 90-minute webinar with interactive Q&A

Robert R. Foos, Jr., Lewis Wagner, Indianapolis

Michael J. Leizerman, Managing Partner, EJ Leizerman & Associates, Toledo, Ohio

Sound Quality

If you are listening via your computer speakers, please note that the quality of

your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory and you are listening via your computer

speakers, you may listen via the phone: dial 1-866-869-6667 and enter your PIN

when prompted. Otherwise, please send us a chat or e-mail

[email protected] immediately so we can address the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

For CLE purposes, please let us know how many people are listening at your

location by completing each of the following steps:

• In the chat box, type (1) your company name and (2) the number of

attendees at your location

• Click the SEND button beside the box

FOR LIVE EVENT ONLY

If you have not printed the conference materials for this program, please

complete the following steps:

• Click on the + sign next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

Litigating Trucking Accident Injury Claims April 18, 2013

Robert R. Foos, Jr.

Defense Planning for the Trucking Case

6

Defense Planning for the Wrongful

Death Case

Where to Start in Trucking Case Defense

What to Include in the Case Investigation

Discovery Techniques in Tractor-Trailer Collisions

Admissibility of “Preventable” Designation

Admissibility of CSA Scores

Pretrial Motions

Some Interesting Statistics

Plaintiff’s Thoughts on Accident Causation

7

Where to Start in Trucking Case Defense

8

WHERE TO START IN TRUCKING

CASE DEFENSE

If you are going to defend trucking companies/drivers

in wrongful death litigation you need to be prepared

to head to an accident scene in a moments notice.

You must have the proper equipment already in your

vehicle or easily accessible.

• Camera/Video Camera

• Voice recorder

• Pen and Paper

• Reflective Vest

• List of Pertinent Contact Information

9

What to Include in the Case Investigation

10

What to Include in the Case

Investigation

Counsel should immediately:

• Identify the exact location of the accident;

• Determine the owner of the tractor, trailer and cargo;

• Identify the employer of the driver, and his status (employee, independent contractor);

• Ascertain whether any environmental or hazardous conditions exist;

• Retain an approved independent adjuster;

• Locate the driver and make sure he/she doesn’t speak to anyone but you;

• Determine if the driver is out of service;

• Determine if a post-accident DOT test is required (or was performed);

11


Investigation

Counsel should immediately: (con’t)

• Determine whether law enforcement has directed post-accident testing;

• Determine whether the carrier has independent drug/alcohol testing requirements and learn what protocols must be met;

• Discuss retention of an accident reconstructionist with the carrier;

• Determine whether a biomechanical engineer and/or other experts (conspicuity?) should be retained for scene investigation and vehicle inspection;

• Determine what ECM or other data is maintained by the carrier and if it can be accessed remotely;

• Determine the location of the tractor and protect any data;

12


Investigation


• Direct any necessary post-accident inspections;

• Determine a reasonable hold time for the tractor and any cargo, taking into account the type of cargo;

• Interview the driver (I would not suggest allowing the independent adjuster to speak with the driver);

• Determine whether the driver needs independent counsel;

• Determine whether the driver requires criminal counsel if charges are pending or imminent (likely with new CSA rules);

• Obtain any photographs taken by driver;

• Obtain any driver accident forms completed by driver;

• Obtain a copy of any citations issued to the driver;

• Obtain copies of any statements from third parties;

13


Investigation


• Obtain HIPAA complaint release from the driver regarding test results pursuant to §382.405;

• Identify all claimants and nature and extent of injuries;

• Determine whether toxicology testing of claimants has/will occur;

• In fatality accidents, identify funeral home and coroner and learn whether autopsies will be conducted;

• Identify all witnesses, procure statements through independent adjuster (you don’t want to be a witness later);

• Consider using a court reporter for taking statements where appropriate;

14


Investigation


• Interview the investigating law enforcement officer;

• Interview the responding DOT officer;

• Determine what, if any, level of DOT inspection will occur;

• Obtain law enforcement officers’ field notes, measurements and photographs;

• Obtain copy of post-crash inspection report (will likely take several days);

• Arrange for accident reconstructionist to meet with investigating officer where appropriate;

• Obtain all accident reports and supplemental reports;

• Obtain all 911 reports for the time period preceding and including the accident;

15


Investigation


• Identify all emergency responders to accident;

• Obtain run reports and call logs for fire fighters and first responders;

• Obtain photographs of scene, tire marks, debris field, signage and vehicles through independent adjuster and/or accident reconstructionist (depending on the carrier);

• Identify applicable speed limits, signage or other posted warnings;

• Obtain the sequence and timing of all relevant traffic control devices;

• Consider whether aerial and/or video photography is appropriate;

16


Investigation


• Obtain accident history with respect to other accidents in the same proximity;

• Inquire as to conspicuity, signage, barricades, detours, roadway construction, and any factors affecting visibility;

• Identify contractors conducting roadway construction in the area;

• Obtain copies of all traffic or business video footage in the area;

• Obtain copies of all broadcast media coverage of accident, along with raw data;

• Obtain internet data regarding the accident—don’t forget social media sites of claimants;

17


Investigation


• Determine the location and owners of all vehicles involved in the crash and see if the vehicles have on-board computers—issue a litigation hold on that information;

• Procure cell phone records for all drivers involved;

• Inquire about carriers retention program and make sure that all relevant, or potentially relevant data, is being preserved in compliance with that program and/or FMCSR;

• Obtain copies of Driver Qualification file, Driver Personnel file and accident history, payroll information, current driver’s manual, six month’s of driver logs, time cards and records of duty status, trip packs, BOL’s, fuel receipts, tolls, dispatch records, pre-trip and post-trip inspections, maintenance records for tractor and trailer, relevant leases, contracts and insurance.

18

Document Retention

Discovery Considerations in Truck Accident Cases

19

DISCOVERY CONSIDERATIONS

The trucking industry is highly regulated and

plaintiffs attorneys love to set traps. A few

issues that should be immediately

considered are document retention issues

and overly broad litigation holds. Further,

depending on your venue, there may be a

separate cause of action for spoliation of

evidence. Be prepared to litigate these

issues even where you think you have taken

all reasonable precaution. A few plaintiff

advocates consider it your responsibility to

monitor your drivers even when they are not

working. 20


I. The New CSA (formerly CSA 2010)

II. Admissibility of “Preventable” Determination

III. Document Retention

21


CSA (formerly CSA2010)

Why the change from SAFESTAT? • In 2004 the FMCSA issued an Executive Summary on Improvements needed

in the Motor Carrier Safety Status Measurement System. The results were downright frightening.

Of the 645,551 active interstate carriers on record in Safestat, 26 percent, or about 170,000 had sufficient data to compute a value for one or more of the four safety evaluation criteria.

There were large state-to-state variations in reporting of traffic violations, which introduce a degree of geographic bias in the ranking system. For example, California reported only 115 serious moving violations to the FMCSA database in 2001 compared to Indiana, which reported about 25,000. Indiana still has a reputation as one of the nation’s strictest states.

The Executive Summary estimated that errors occurred in approximately 13% of all crashes and 7% of inspection transactions on interstate carriers.

An estimated 11% of the reports held the wrong carrier accountable for a SafeStat related violation.

• Oddly enough, the FMCSA did not agree with the Executive Summary.

22



Compliance, Safety, Accountability—formerly CSA2010.

Compliance, Safety, Accountability (CSA) is a Federal Motor Carrier Safety Administration (FMCSA) initiative to improve large truck and bus safety and ultimately reduce crashes, injuries, and fatalities that are related to commercial motor vehicles. It introduces a new enforcement and compliance model that allows FMCSA and its State Partners to contact a larger number of carriers earlier in order to address safety problems before crashes occur. Rolled out in December 2010, the program establishes a new nationwide system for making

the roads safer for motor carriers and the public alike!

See http://csa.fmcsa.dot.gov/about/.

23



CSA’s SMS better identifies motor carriers for safety

interventions than the previous SafeStat system.

•According to the FMCSA the results showed that the SMS is a significant

improvement over the SafeStat system in identifying unsafe carriers.

•Crash rates were higher for motor carriers identified with safety problems in the

SMS’s seven Behavior Analysis and Safety Improvement Categories (BASICs)

than for motor carriers that were not identified with safety problems in the seven

BASICs.

•The crash rate for motor carriers that were identified with safety problems by

the SMS in the Unsafe Driving BASIC was more than three times greater than

the crash rate for motor carriers not identified with any safety problems by SMS.

24



The six major differences between the new SMS and SafeStat are as follows

1. SMS is organized by 7 behavioral categories while SafeStat was comprised of 4 general safety evaluation areas.

2. SMS identifies safety problems to determine who to investigate while SafeStat prioritized carriers for an overall compliance review.

25



3. SMS uses all safety inspection violations, SafeStat only used out of service violations and specific moving violations.

4. SMS gives weight to risk based violations while SafeStat did not.

5. SMS will impact carriers safety fitness determination while SafeStat did not.

6. SMS assesses drivers and carriers.

26



Compliance, Safety, Accountability 7 BASICS

• Unsafe Driving

• Fatigued Driving

• Driver Fitness

• Controlled Substances/Alcohol

• Vehicle Maintenance

• Cargo Related

• Crash Indicator • Note that Driver Fitness and Cargo Related are not crash

indicators.

27



Upon intake of any trucking defense file every defense attorney should, visit the SMS website and also pull the driver’s PSP (pre-employment screening program), if available, from the MCMIS (motor carrier management information program).

MCMIS electronic profiles will contain five years of crash data and three years of inspection data, however, MCMIS will not include conviction data.

28



Crash and Incident Data Studies have shown the majority of serious multiple vehicle crashes involving trucks are instigated by the actions of passenger vehicles.

The current CSA does not take into consideration "fault" when including crash data into a carrier's "crash" BASIC. All crashes involving the carrier are included (stopped rear-end collisions, suicides, cross-overs), thereby skewing the carrier's threshold at which FMCSA intervention will be initiated.

The CSA database should only include those accidents in which "fault" was established against the motor carrier or driver. In addition, the database should only include DOT recordable accidents. The FMCSA is currently attempting to address crash accountability within the CSA methodology.

29



Will CSA be better than SafeStat?

It’s too early to tell as we don’t yet have enough information to accurately evaluate not only the resulting, data-based determinations, but we have no basis to evaluate the data going into the system.

So, if we have insufficient valid data to assess the accuracy of the system, what are the potential implications of using CSA data at trial?

30



FMCSA has said it has sufficient violation data to assess 40% of active carriers in at least one category, but only enough to “assign a percentile rank or score” in at least one category to 12% of active carriers, according to ATA officials. ATA noted in a recently released white paper that the vast majority of these carriers are only assigned a score in one category. The FMCSA contends this weakness is not problematic since “those carriers are involved in 83% of the crashes.”

31



Recently, at the request of Congressman Duncan and his Subcommittee on Highways and Transit, the DOT Inspector General initiated an audit of SMS data.

ASECTT was instrumental in getting Congressional review of SMS data by both Congressman Duncan's committee and by the Small Business Committee, chaired by Congressman Sam Graves.

32



The returns clearly show that CSA still has some serious flaws.

In February of 2013 the CSA Subcommittee revealed three major areas of concern: (1) crash accountability data; (2) data quality issues; and (3) public display of carrier SMS information.

A majority of committee members urged the agency to withhold percentile rankings in the BASICs from public view until other underlying issues (see the 3 areas of concern above) could be resolved.

33



Realizing withholding the rankings in total was unlikely to be something the FMCSA would act upon, compromise recommendations were as follows:

Remove rankings from public view in BASICs where the numbers don’t correlate directly to crash risk (Driver Fitness, Controlled Substances/Alcohol).

Keep the new Hazardous Materials Compliance BASIC measures hidden from public view, given similar lack of crash-risk correlation.

Abstain from providing guidance or otherwise encouragement to third parties on how to use SMS data for carrier selection.

And yet here we are!

34



A lawsuit was recently filed by ASECTT [Alliance for Safe, Efficient and Competitive Truck Transportation] and several other professional organizations/industry participants in the U.S. Court of Appeals, D.C. Circuit (USCA Case #12-1305).

In short, this lawsuit seeks to have the establishment of SMS data set aside as not properly put forward by appropriate rule making and as abdication of FMCSA responsibility to determine the safety status of all registered motor carriers.

35



CSA And The Potential Impact On Litigation

There is no regulation or statutory authority that specifically states that information collected as a result of CSA will, or will not, be admissible in legal proceedings. Further, FMCSA Part 385 (Safety Fitness Procedures) does not specifically mention the admissibility of SafeStat data. As such, there are several possible implications, but little clarity, regarding the future usage of CSA data.

36



Potential Implications of CSA Data

Compliance with the new regulations will not protect a carrier from liability for an accident. However, the fact that the CSA program will force carriers to be overly vigilant in complying with safety guidelines, may mean that plaintiff’s lawyers will have less ammunition vis-à-vis certain carriers for negligent hiring, training, retention and/or negligent maintenance claims.

37




Good safety records may also be beneficial in reducing potential punitive damages which are generally based on reckless disregard of public safety, or blatant violations of trucking regulations. At a minimum, CSA should force motor carriers to be more diligent in safety record keeping, which will likely prove beneficial to defense counsel when defending negligence claims against compliant motor carriers.

38




CSA could also have the reverse effect for those carriers that have poor BASIC scores.

Despite the FMCSA’s statement that PSP/DIR reports will not be made public, plaintiff’s will most likely attempt to use the subpoena power of the courts to obtain this information, similar to how plaintiffs currently acquire medical, criminal and traffic records.

Requests from plaintiff’s counsel for SMS scores and rankings are now common fodder for depositions of safety managers.

39




Whether this data will ultimately be admissible at a trial is questionable given that the FMCSA’s concern with implementing CSA is safety and not admissibility of evidence. Only time will be able to tell how trial courts will rule on the admissibility of data collected as a result of the CSA initiative.

40



Potential Implications of CSA Data • In Schramm v. Foster, a case against a broker for negligent

hiring of a motor carrier, the federal trial court held that the duty of the broker was to use reasonable care in hiring carriers, including at least: checking the SafeStat database; and maintaining records on the carriers used to assure the carriers are not manipulating their business practices to avoid unsatisfactory SafeStat ratings. Schramm v. Foster, 341 F.Supp.2d 536 (D.Md. 2004).

• Another wily plaintiff’s attorney recently obtained a $5.2 million dollar verdict against a broker for negligent hiring of a commercial carrier. Linhart v. Heyl Logistics LLC, et al., Case

No. 10-03100 (D. Or. Judge Panner, Docket No. 230).

• We’ll likely see CSA used in the same manner.

41




In Doyle v. Watts Trucking, there was an accident involving allegations of “sleep deprivation” against the truck driver and vehicle maintenance against the carrier. The court allowed into evidence various safety reports from the FMCSA, including SafeStat data showing that the carrier regularly violated HOS rules and violated regulations on brakes and tire tread depth. The defendant objected on relevance grounds, but the court allowed the evidence. CSA data will contain similar information. Doyle v. Watts Trucking of Nebraska, Inc., 2007 WL 197721 (Neb.Ct.App. 2007).

42




It is likely that CSA safety data will be sought in discovery and used, both for and against potential defendants at trial, regardless of the FMCSA’s intent. This further increases the importance of diligent CSA compliance. Fortunately, the trend seems to be limiting admissibility to only cases where the violations are causally related to the alleged negligent activity.

43

DISCOVERY CONSIDERATIONS Admissibility of “Preventable” Designation

No two accidents or carriers are exactly alike and the FMCSA recognizes that not all accidents are preventable. Some types of accidents, however, can be prevented by drivers, while others require changes in motor carrier practices and policies or equipment. The new FMCSA method for determining preventability is based on examination of the facts in accident records. http://www.fmcsa.dot.gov/safety-security/eta/ETA%20Final%20508c.pdf, page 126.

44

http://www.fmcsa.dot.gov/safety-security/eta/ETA Final 508c.pdf




For accidents that occur after April 29, 2003, motor carriers must maintain an accident register for three years after the date of each accident. For accidents that occurred on or prior to April 29, 2003, motor carriers must maintain an accident register for a period of one year after the date of each accident. Information placed in the accident register must contain at least the following:(1) A list of accidents as defined at §390.5 of this chapter containing for each accident:(i) Date of accident.(ii) City or town most near where the accident occurred and the State where the accident occurred.(iii) Driver Name.(iv) Number of injuries.(v) Number of fatalities.(vi) Whether hazardous materials, other than fuel spilled from the fuel tanks of motor vehicle involved in the accident, were released. §390.15(b).

45


What is the “official” definition of “preventable?”

• The National Safety Council’s definition states, “a preventable collision is one in which the driver failed to do everything that reasonably could have been done to avoid the accident.”

• The American Trucking Association defines preventability as follows: “was the vehicle driven in such a way to make due allowance for the conditions of the road, weather, and traffic and also to assure that the mistakes of other drivers did not involve the driver in a collision.”

• The FMCSR states that a preventable accident on the part of a motor carrier means an accident (1) that involved a commercial motor vehicle, and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the driver. §385.3

46


§385.7(f) states that factors to be considered in determining a safety rating include, "frequency of accidents; hazardous materials incidents; accident rate per million miles; indicators of preventable accidents; and whether such accidents, hazardous materials incidents, and preventable accident indicators have increased or declined over time." Unfortunately they offer no definition of "preventable accident indicators.“

Neither §390.15(b) nor §385.7(f) makes mention of recording of accidents as preventable or non-preventable.

47


Part 385.7(f) states that factors to be considered in determining a safety rating include, "frequency of accidents; hazardous materials incidents; accident rate per million miles; indicators of preventable accidents; and whether such accidents, hazardous materials incidents, and preventable accident indicators have increased or declined over time." Unfortunately they offer no definition of "preventable accident indicators."

Interestingly enough, Part 385.7(f) was changed in July of 2007 and specifically removed "preventable accident rate per million miles" from the factors to be considered in determining a safety rating under that part.

48


Appendix A to §385 Explanation of Safety Audit Evaluation Criteria states, "Preventability will be determined according to the following standard: if a driver, who exercises normal judgment and foresight, could have foreseen the possibility of the accident that in fact occurred, and avoided it by taking steps within his/her control which would not have risked causing another kind of mishap, the accident was preventable."

This a scary standard for litigators. If the carrier has already identified the accident as “preventable”, which is the default designation under FMCSR, it may have already tied our hands on admissibility and perhaps even liability.

However, all may not be lost.

49


There are several arguments against the discoverability, and ultimately the admissibility, of a “preventable” designation.

• Subsequent remedial measure—See Harper v. Griggs, 2006 U.S.Dist. LEXIS 64691 (W.D.Ky., 2006);

• Protected from discovery by 49 U.S.C. § 504(f) because it is required by the FMCSA—may no longer be a viable defense.

• Unfair prejudice under Fed. Evid. R. 403. See Tyson v. Old Dominion Freight Line, Inc., 270 Ga. App. 897, 608 S.E.2d 266 (Ga.Ct. App., 2004);

• Prepared in anticipation of litigation, which necessarily requires that such a designation is not prepared in the normal course of business—See Ward v. Rickrode, 849 A.2d 619; 2004 Pa. Super. LEXIS 113(2004);

• Constitutes mental impressions of the defendant regarding the liability—See your local state rules regarding privileged information;

• Critical self-analysis doctrine—where applicable and recognized.

50


The pivotal question may be which standard your client uses to determine its internal “preventable” designation.

The case law would suggest that an internal standard which is different (RE: more strict) than the legal definition of “negligence” in the forum state will render the preventable finding inadmissible. If your carrier does not have a written, internal definition of preventable you will need to find out which of the previously listed definitions they use.

The fact there is no FMCSR requirement that a carrier make a “preventable” or “non-preventable” designation may render the argument under 49 U.S.C. § 504(f)

unavailable.

New carriers, who are required to make “preventable” designations under FMCSA, may still find this defense viable.

51


Document Retention

Required Docs Retention Time FMCSR Citation

Logs and trip docs 6 months §395.8(k)(1)

General vehicle information

One year and for six months after vehicle leaves carrier’s control

§396.3

Post-Trip inspection 3 months §396.11(c)(2)

Roadside inspection 1 year §369.9(d)(3)(ii)

DQ file and investigation history

Through employment and 1 year after

§391.51(c)

Alcohol and Drug test Positive: 5 years Negative: 1 year

§382.401(b)(1) §382.401(b)(3)

Accident Register 3 years §390.15(b)

52


As a result of plaintiff’s attorney’s conduct, defendants' motion for sanctions seeking the exclusion of “any evidence at the time of trial that is derived from an examination of the Seaman wreckage,” including “any testimony from Plaintiff's forensic engineer and his work product” was granted.

Estate of Seaman ex rel. Seaman v. Hacker Hauling, 840 F. Supp. 2d 1106 (N.D. Iowa 2011).

53


The party moving for spoliation related sanctions must affirmatively establish that the missing evidence actually existed—not just allege it is missing.

“It is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party.”

Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 845, 734 S.E.2d 818, 820 (2012).

54


Court orders an adverse inference instruction pertaining to the defendants’ destruction of actual driver’s logs required by the FMCSR. Additionally, the court found Qualcomm messages that contained a recap of the driver’s logs were not sufficient to constitute production of the actual driver’s logs.

Ogin v. Ahmed, 563 F.Supp.2d 539 (M.D. Penn. 2008)

55


Failure to maintain six months of driver’s log books and accompanying records, along with plaintiff’s demand letter for the records and the requirements of the FMCSA, created an inference that documents were intentionally destroyed. The Court gave an adverse instruction stating: (1) carrier failed to properly monitor the driver’s safety performance; (2) carrier was aware of safety violations; and (3) carrier knew driver was operating in a fatigued state.

Darling v. J.B. Expedited Servs., 2006 WL 2238913 (M.D. Tenn. 2006)

56


Court found carrier had been “cavalier” and had “intentionally misled the Court and Plaintiffs” regarding the whereabouts of the log book, logbook audits and accident file. The Court further found the carrier had provided incomplete and/or false responses to discovery requests. Based on these findings the carrier was fined $30,000.

Garrett v. Albright, 2008 WL 681766 (W.D. Mo. 2008)

57

Pretrial Motions

58

PRETRIAL MOTIONS

Motions in Limine

• A Motion in Limine is the best tool for the successful defense

of catastrophic cases. Consider the following potential

motions in limine:

Barring the demonization of trucking companies in general;

Barring admission of irrelevant logs (remote from accident

date);

Barring admission of irrelevant ECM data (remote from

accident date);

Barring admission of Preventable Accident Determinations;

Barring claims for negligent hiring/retention where applicable;

Barring admission of other accidents.

59


A 2006 Virginia Tech analysis of two studies conducted for the Department of Transportation found that 78 percent of crashes were caused by passenger car drivers.

In fatal crashes involving a car and a large truck, 35 percent of the time the crash occurred in one of the four blind spots surrounding large trucks.

In 2006, rear-end collisions where passenger cars strike large trucks were 2.7 times more likely than large trucks rear-ending passenger cars.

Head-on collisions where passenger cars encroach into the truck’s lane are more than 10 times more likely to occur than vice-versa.

60


In 2010, 3,484 large trucks were involved in fatal crashes, a 9-percent increase from 2009. However, from 2007 through 2010 the number of large trucks involved in fatal crashes declined by 25 percent. The number of passenger vehicles involved in fatal crashes declined by 21 percent over the same period.

The number of large trucks involved in fatal crashes declined by 25 percent, from 4,633 to 3,484, and the vehicle involvement rate for large trucks in fatal crashes (vehicles involved in fatal crashes per 100 million miles traveled by large trucks) declined by 20 percent.

61


Alcohol was detected in the blood of 3.0 percent of large truck drivers in fatal crashes in 2010, compared with 26.7 percent of passenger vehicle drivers. For 1.8 percent of large truck drivers in fatal crashes in 2010, the blood alcohol concentration was 0.08 grams per deciliter or more, compared with 23.2 percent of passenger vehicle drivers.

62


One or more driver-related factors were recorded for 27 percent of the drivers of large trucks involved in multiple-vehicle fatal crashes. In comparison, at least one driver-related factor was recorded for 53 percent of the passenger vehicle drivers in multiple-vehicle crashes.

Speeding was the most often coded driver-related factor for both vehicle types; distraction/inattention was the second most common for large truck drivers, and impairment (fatigue, alcohol, drugs, illness) was the second most common for passenger vehicle drivers.

63


All statistics taken from the Large Truck and Bus Crash Facts 2010, which can be found at http://www.fmcsa.dot.gov/facts-research/research-technology/report/LTCC_Report_LargeTruckandBusCrashFacts2010.pdf

64

http://www.fmcsa.dot.gov/facts-research/research-technology/report/LTCC_Report_LargeTruckandBusCrashFacts2010.pdf






Plaintiff’s View of Truck Accident

Causation—note the lack of plaintiff’s fault.

Lack of Training on the part of the truck driver;

Overloaded Trucks;

Oversized Trucks;

Poorly maintained brakes on the trucks;

Driving in conditions of poor visibility due to smoke, fog, snow or rain;

Truck driver inexperience;

Fatigued, sleepy or tired driver driving too long and too many hours without rest;

Speeding over the limit or driving at speeds or beyond the road and weather conditions;

Running off the road;

Failure to yield the right of way;

Aggressive driving behavior;

Truck drivers under the influence of drugs and alcohol while driving;

Driving the truck in bad weather conditions;

Dangerous or reckless truck driver with a long record of wrecks and accidents;

Unsafe safety systems, reflectors, lights and other warning devices; and

Failure of truck to have installed an underide protection underguard.

Take a look at http://www.indianatruckaccidentlawyers.com/faqs.cfm#q1 or http://www.apitlamerica.com/ for some other interesting thoughts on trucking accidents by the plaintiffs’ bar.

65

http://www.indianatruckaccidentlawyers.com/faqs.cfm

http://www.apitlamerica.com/

http://www.apitlamerica.com/

501 INDIANA AVENUE • SUITE 200 • INDIANAPOLIS, INDIANA 46202

317.237.0500 800.237.0505 F: 317.630.2790 www.lewiswagner.com

Robert R. Foos, Jr.

Partner [email protected]

Avoiding Eleven

Common Mistakes

in Truck Accident

Cases

Michael Leizerman

April 18,2013

If you don’t take anything

else away from today …

| 68 |

Mistake #1

| 69 |

Not acting immediately when retained

Act Immediately to Prevent

Spoliation

| 70 |

Collect

CSA and

Safer Data

| 71 |

11/ 13/ 12 8:52 PMSAFER WEB

Page 1 of 2http:/ / safer.fmcsa.dot.gov/

**WARNING**WARNING**WARNING

You are accessing a U.S. Government information system. This information system, including all related equipment, networks, and network devices, is provided forU.S. Government-authorized use only. Unauthorized or improper use of this system is prohibited, and may result in civil and criminal penalties, or administrativedisciplinary action. The communications and data stored or transiting this system may be, for any lawful Government purpose, monitored, recorded, and subject toaudit or investigation. By using this system, you understand and consent to such terms.

**WARNING**WARNING**WARNING

WELCOME TO SAFER

The FMCSA Safety and Fitness Electronic Records (SAFER) System offers company safety data and related services to industry and the public over the Internet.Users can search FMCSA databases, register for a USDOT number, pay fines online, order company safety profiles, challenge FMCSA data using the DataQssystem, access the Hazardous Material Route registry, obtain National Crash and Out of Service rates for Hazmat Permit Registration, get printable registrationforms and find information about other FMCSA Information Systems.

Notice

PLEASE NOTE: The FMCSA has implemented a more stringent credit card and transaction verification procedure. All creditcard transactions now require verification of the credit card number, expiration date, security code, billing address and

telephone number.

To update your Docket Number (Operating Authority) information electronically, you will need a Personal IdentificationNumber (PIN). A separate Personal Identification Number (PIN) is required to update your USDOT Number information

electronically.

Click here to request your Docket Number PIN and/or USDOT Number PIN. Allow 4 to 7 business days to receive your PIN bymail.

Enforcement users must now use the FMCSA Portal link to SAFER to access SAFER Enforcement Related Functions.

FMCSA Services

FMCSA Registration & Updates

Company Safety Profile

Company Safety Profile Subscription

Online Fine Payment

MCMIS Data Dissemination Catalog

SAFER Information

About SAFERSAFER NewsCompany Snapshot UpdatesFrequently Asked Questions

Enforcement Users: Please use FMCSA Portal Login

FMCSA Searches

Company Snapshot

Analysis & Information (A&I)Online

Licensing & Insurance

Orders to Cease Operation(OCO)/Out of Service Orders (OSO)

Cargo Tank

Crash Rate & Inspection Outof Service (OOS) Rates forHazardous Materials SafetyPermit Program (Calculated on

05/01/2012)

FMCSA Registration Forms

Other FMCSA Web Sites

FMCSA Home Page

DataQs

FMCSA Information Systems

National HM Route Registry

ITS CVISN

FMCSA Portal

| 72 |

| 73 |

11/ 13/ 12 8:56 PMSAFER WEB - Select Company

Page 1 of 2http:/ / safer.fmcsa.dot.gov/ keywordx.asp?searchstring= %2APASCHAL%2A&SEARCHTYPE=

Possible Keyword Matches

CARRIER/DBA NAME LOCATION

ANDREW C PASCHALL COTTAGE GROVE, TN

ANGELA VESTA PASCHAL MAYODAN, NC

DARRELL M PASCHALL BURLINGTON, WI

DAVID WAYNE PASCHAL REIDSVILLE, NC

GORDON AND MADELAINE PASCHAL EXPEDITED TUCSON, AZ

GREGORY PASCHAL ATLANTA, GA

HERBERT V PASCHAL JR PICKENS, SC

JEVON PASCHALL BOWLING GREEN, KY

JOHN PASCHAL ROCKMART, GA

KARL PASCHALL UPTON, WY

KENDRED PASCHALL FARMS MURRAY, KY

MADELAINE PASCHAL TUCSON, AZ

MEREDITH PASCHAL CONCRETE INC ANDERSON, IN

MICHAEL PASCHALL NEW WINDSOR, NY

MIKE PASCHAL CONCRETE INC ANDERSON, IN

NORMAN W PASCHALL COMPANY INC PEACHTREE CITY, GA

PASCHAL & SHAW SUPPLY INC JACKSONVILLE, FL

PASCHAL BOBBY VOYLES RESACA, GA

PASCHAL BURIAL VAULT&CREMATION SERVICES LLC HUDSON, MI

PASCHAL ENTERPRISES LLC SOUR LAKE, TX

PASCHAL LAWN CARE ROCKMART, GA

PASCHAL MOMANYI ARLINGTON, TX

PASCHAL TREE SERVICE UNION CITY, IN

PASCHAL WRECKER SERVICE DEARING, GA

PASCHALL FARMS COTTAGE GROVE, TN

PASCHALL FARMS LLC YPSILANTI, MI

PASCHALL HOME SOLUTIONS BURLINGTON, WI

PASCHALL SERVICES INC MURRAY, KY

PASCHALL TRUCK LINES INC MURRAY, KY

PASCHALL TRUCKING STAR CITY, AR

PASCHALL TRUCKING WINTER HAVEN, FL

PASCHALL TRUCKING INC FLORISSANT, MO

PASCHALLS GREENHOUSE & NURSERY MURRAY, KY

ROBERT PASCHAL KNOXVILLE, TN

ROBERT PASCHAL JR UNION CITY, IN

SHANE PASCHAL WELDING SOUR LAKE, TX

STEVE D PASCHAL CARROLLTON, GA

STEVEN E PASCHALL PURYEAR, TN

THOMAS EDWARD PASCHAL JR GREENSBORO, NC

WAYNE PASCHALL STAR CITY, AR

WES & LYNN PASCHALL GILLETTE, WY

WILLIAM E PASCHALL WINTER HAVEN, FL | 74 |

| 75 |

| 76 |

| 77 |

| 78 |

| 79 |

| 80 |

11/ 13/ 12 8:58 PMSAFER Web - Company Snapshot PASCHALL TRUCK LINES INC

Page 1 of 3http:/ / safer.fmcsa.dot.gov/ query.asp?searchtype= ANY&query_type= que…str ing= 105234&original_query_string= PASCHALL%20TRUCK%20LINES%20INC

Other Information for thisCarrier

SMS Results

Licensing & Insurance

USDOT Number MC/MX Number Name

Enter Value: PASCHALL TRUCK LINES INC

Search

Company SnapshotPASCHALL TRUCK LINES INC

USDOT Number: 105234

ID/Operations | Inspections/Crashes In US | Inspections/Crashes In Canada | Safety Rating

Carriers: If you would like to update the following ID/Operations information, please complete and submit form MCS-150 which canbe obtained online or from your State FMCSA office. If you would like to challenge the accuracy of your company's safety data, youcan do so using FMCSA's DataQs system.

Carrier and other users: FMCSA provides the Company Safety Profile (CSP) to motor carriers and the general public interested inobtaining greater detail on a particular motor carrier's safety performance then what is captured in the Company Snapshot. To obtain a CSP please visit the CSPorder page or call (800)832-5660 or (703)280-4001 (Fee Required).

For help on the explanation of individual data fields, click on any field name or for help of a general nature go to SAFER General Help.

The information below reflects the content of the FMCSA management information systems as of 11/12/2012.

Entity Type: Carrier

Operating Status: REGISTERED Out of Service Date: None

Legal Name: PASCHALL TRUCK LINES INC

DBA Name:

Physical Address: 3443 US 641 SOUTHMURRAY, KY 42071

Phone: (270) 753-1717

Mailing Address: PO BOX 1080MURRAY, KY 42071-0018

USDOT Number: 105234 State Carrier ID Number:

MC or MX Number: MC-111485

DUNS Number: 62-975-578

Power Units: 1,157 Drivers: 1,289

MCS-150 Form Date: 09/28/2012 MCS-150 Mileage (Year): 123,822,787 (2011)

Operation Classification:

X Auth. For Hire

Exempt For Hire

Private(Property)

Priv. Pass.(Business)

Priv. Pass.(Non-business)

Migrant

U.S. Mail

Fed. Gov't

State Gov't

Local Gov't

Indian Nation

Carrier Operation:

X Interstate Intrastate Only

(HM)

Intrastate Only

(Non-HM)

Cargo Carried:

X General Freight

Household Goods

Metal: sheets, coils,rolls

Motor Vehicles

Drive/Tow away

Logs, Poles, Beams,Lumber

Building Materials

Mobile Homes

Machinery, LargeObjects

Fresh Produce

Liquids/Gases

Intermodal Cont.

Passengers

OilfieldEquipment

Livestock

Grain, Feed, Hay

Coal/Coke

Meat

Garbage/Refuse

US Mail

Chemicals

Commodities Dry Bulk

Refrigerated Food

Beverages

Paper Products

Utilities

Agricultural/FarmSupplies

Construction

Water Well

| 81 |

| 82 |

Mistake #2

| 83 |

Missing the “truck”

49 CFR §390.5

| 84 |

“Commercial motor vehicle means any

self-propelled or towed motor vehicle used

on a highway in interstate commerce to

transport passengers or property when the

vehicle …”

Sometimes a Pickup

Truck is a CMV

| 85 |

FMCSA 0P1

| 86 |

Mistake #3

| 87 |

Missing potential

defendants/coverage

SHIPPER BROKER CARRIER RECEIVER

§390.13 Aiding or

Abetting Violations

| 88 |

No person shall aid, abet, encourage, or

require a motor carrier or its employees to

violate rules of this chapter.

TIP Foundation to make regs apply to

non-regulated parties

Restatement (Second) of

Torts § 411

Negligent Undertaking

Shippers/brokers/others are liable:

“for physical harm to third persons caused by

[their] failure to exercise reasonable care to

employ a competent and careful contractor

(a) to do work which will involve a risk of physical

harm unless it is skillfully and carefully done, or

(b) to perform any duty which the [company] owes to

third persons.”

Mistake #4

| 90 |

Falling for the “independent

contractor” defense.

In most cases there is NO VALID

independent contractor defense.

§390.3 Applicability of Regulations

| 91 |

(e) (1) every employer shall be knowledgeable

of and comply with all regulations…

(2) every driver and employee shall be

instructed in and shall comply with all

regulations…

Definitions Matter !

§390.5 Definitions

| 92 |

Employer :Any person who owns or leases a

CMV … or assigns employees to operate it

Employee: Any individual employed by an

employer and who in course of his employment

directly affects CMV safety. Such term includes

a CMV driver (including an independent

contractor while in course of operating a

CMV), a mechanic, and a freight handler.

Mistake #5

| 93 |

Falling for “insurance coverage” defenses

| 94 |

In consideration of the premium stated in the policy to which this

endorsement is attached, the insurer (the company) agrees to pay,

within the limits of liability described herein, any final judgment

recovered against the insured for public liability resulting from

negligence in the operation, maintenance or use of motor vehicles

subject to the financial responsibility requirements of Section 29

and 30 of the Motor Carrier Act of 1980 regardless of whether or

not each motor vehicle is specifically described in the policy and

whether or not such negligence occurs on any route or in any terri-

tory authorized to be served by the insured or elsewhere. Such

| 95 |

Designated as cargo. It is understood and agreed that no condi-

tion, provision, stipulation, or limitation contained in the policy, this

endorsement, or any other endorsement thereon, or violation

thereof, shall relieve the company from liability or from the pay-

ment of any final judgment, within the limits of liability herein

Mistake #6

| 96 |

Falling for the “regs don’t apply

here” defense

“Counselor, the FMCSRs do

not apply because the truck

was in intrastate commerce.

FMCSRs only apply in

interstate commerce cases.”

Mistake #7

| 97 |

Not distinguishing professional truck drivers from other drivers

Mistake #8

| 98 |

Focusing on driver and not trucking company

Mistake #9

| 99 |

Not knowing the “rules of the road” and where to find them

Where Do I Find the Rules?

| 100 |

FMCSR

First Major Source of Rules for

Trucking Cases

| 101 |

Let’s

Review A

Few Key

Regulations

| 102 |

§390.3(e) Knowledge and

Compliance

103

1. Every employer shall be knowledgeable of

and comply with all regulations…

2. Every driver and employee shall be instructed

in, and shall comply with, all applicable

regulations …

3. All CMV shall be maintained to comply with

regs

§390.11 Motor Carrier to Require

Observance of Driver Regulations.

| 104 |

Whenever a duty put on driver, it shall be duty of

motor carrier to require observance of duty. If the

motor carrier is a driver, the driver shall likewise

be bound.

§391 Driver Qualification

| 105 |

Generally Requires:

• Written Application

• 3 year Driver History

• Check with previous employers – 3 years

• Minimum medical/physical qualifications

• Drug Screening

• Continuing Obligations - annual review/certification

• Road Test of Equivalent – demonstrate competence

• Can read and speak English

§392 Operation of

Commercial Vehicle

| 106 |

Sets out all requirements –

what is important depends on the case.

§392.1 Scope of the Rules

| 107 |

Every motor carrier, its officers, agents,

representatives, and employees responsible

for the management, maintenance,

operation, or driving of commercial motor

vehicles, or the hiring, supervising,

training, assigning, or dispatching of

drivers, shall be instructed in and

comply with the rules in this part.

§392.2 Applicable Operating

Rules

| 108 |

• Every CMV must comply with law of

jurisdiction in which operated

• However, if FMCSR imposes a higher

standard of care, must comply with

FMCSR.

§392.6 Schedules to Conform

with Speed Limits

| 109 |

No motor carrier shall schedule a run nor permit

nor require the operation of any CMV between

points in such a time period as would necessitate

the CMV to speed.

§395 Hours of Service

| 110 |

• 3 Major Rules

– 14 Hour Rule – cannot drive after 14 hours of work.

• Begins when start any kind of work

• When you hit 14 hours, cant drive anymore

– 11 Hour Rule • Cannot exceed 11 hours of driving during the 14 hours.

– 60/70 Hour Rule • Total Hours in 7 or 8 days

• Based on whether MC runs trucks everyday or not

• Not based on set week – rolling/floating

• Cant drive after 60/70 Hrs in 7/8 consecutive days until you get

under that number

• 34 hour restart

§383.111 & 113:

Required Knowledge & Skills

| 111 |

• All CMV drivers shall have knowledge and skill

necessary to operate CMV safely – sets out areas,

including:

– Knowledge of the regs

– Effects of fatigue, drugs

and alcohol

– Safe operation procedures

– Backing

– Visual Search

– Communication

– Speed management

– Space Management

– Night operation

– Extreme Driving conditions

– Hazard perception

– Emergency maneuvers

– Skid control

– Vehicle and cargo inspection

§ 392.14 Hazardous

Conditions; Extreme Caution

| 112 |

• Extreme caution in the operation of a CMV

shall be exercised when hazardous conditions, such

as those caused by snow, ice, sleet, fog, mist, rain,

dust, or smoke, adversely affect visibility or

traction.

• Speed shall be reduced when such conditions exist.

• If conditions become sufficiently dangerous,

operation of the CMV shall be discontinued and

shall not be resumed until the CMV can be safely

operated.

CDL Manual

Second Major Source of Rules

for Trucking Cases

| 113 |

Intro to Section 2

| 114 |

This section contains knowledge and safe driving

information that all commercial drivers should

know. You must pass a test on this information to

get a CDL.

Inspections

• When to inspect

• What to inspect

• How to inspect

• What to look for during

inspection

• Use as question outline

to test driver knowledge

& performance

| 115 |

Inspections

Seven Step Method

1. Vehicle Overview

2. Check Engine Compartment

3. Start Engine-inspect inside cab

4. Turn off engine & check lights

5. Do Walkaround Inspection

6. Check Signal Lights

7. Start Engine -Check Brakes

| 116 |

Seeing Hazards

| 117 |

Seeing Hazards Lets You Be Prepared. You

will have more time to act if you see hazards

before they become emergencies.

Accidents

Disabled Vehicles

Drop Off Work Zone Foreign Objects

Children

Distractions Off Ramps/On Ramps

Parked Vehicles

Impaired Drivers

Pedestrians

Bicyclists

Slow Drivers

Confused Drivers

Delivery Trucks

Ice Cream Trucks

Drivers Signaling

Other Sections

| 118 |

3: Cargo

4: Transporting Passengers Safely

5: Air Brakes

6: Combination Vehicles

7: Doubles and Triples

8: Tank Vehicles

9: Haz Mat

10: School Buses

Mistake #10

| 119 |

Not getting the key

documents in every case

Mistake #11

| 120 |

Not working with your

experts as a team.

Michael Jay Leizerman 1-800-628-4500

[email protected]