What’s driving litigation in transportation claims
By Jim Foster
CLM’s Transportation Committee gathered together a team of experts in the transportation community to discuss trends in the industry. In this edition, moderator Jim Foster leads a discussion about distracted driving, plaintiffs’ approaches to litigation, and the effects of litigation funding.
Jim Foster: Have you seen an uptick in accidents involving distracted driving by commercial motor vehicle drivers? Are these the types of cases where you want to consider admitting liability, then focus on the extent of damages? Have you utilized preservation letters or discovery as an affirmative sword to determine if the claimant/plaintiff was also on a cellphone or otherwise distracted?
Tim Roth: I would not say that I have seen a significant uptick in accidents involving distracted driving by truck drivers, since most of the drivers we encounter are familiar with the risks and potential consequences of failing to use hands-free mobile devices. Unfortunately, we have had a few cases involving truck drivers distracted by their handheld devices. In these cases, we have recommended letting go of liability arguments and trying to resolve the case early. On the other hand, I have seen an uptick in distracted-driving accidents involving passenger vehicle drivers and definitely take steps to obtain the cell phone records of these drivers.
Tom McLaughlin: Distracted driving has been a problem for years. I don’t think we’re seeing any more distracted-driving accidents than before. However, determining whether someone was distracted is getting easier to prove because most large carriers have drive cameras. Also, obtaining cellphone data from providers is now commonplace. I know of some defense attorneys who request a driver give up their phone in exchange for a surrogate, just to be safe. Distracted driving goes both ways. I’ve gone on the offensive in several cases, demanding plaintiffs preserve their phones. It can be an effective tool.
Rick Reinoehl: It is unclear to us if there is an increase in accidents due to distractions because it is not something that is readily admitted to by the at-fault party. We do know that there is much more focus on the issue. Admission of liability would be more a factor of a clear violation of the law, but I would consider admitting liability if there were issues with our policy. And, yes, we have been pursuing plaintiffs’ phone records on contested liability cases.
Foster: Do you often see two-count complaints, with one count sounding in negligence, and a second for willful and wanton conduct seeking punitive damages? Do these types of cases involve claims of aggravated damages stemming from drug or alcohol use, negligent hiring or retention, or other federal regulation violations?
Roth: Virtually every complaint we see against trucking companies these days seems to automatically include a claim for negligent hiring, training, or supervision as well as a claim for punitive damages, regardless of the nature of the accident. We now anticipate such claims after almost every truck accident and direct much of our pre-suit handling toward identifying and analyzing potential aggravating factors. Most of these claims are wholly unsupported by any actual evidence, and in federal court cases, we recommend filing Iqbal/Twombly motions to dismiss these unfounded claims.
McLaughlin: Yes. Most complaints come with two counts, with one pleading punitive damages. We see these pleadings regardless of the severity of the case. Most allege negligent hiring, retention, supervision, maintenance, and entrustment, and they also assert hours-of-service violations.
Reinoehl: Yes, though the second one comes later, typically. We see allegations seeking punitive damages regardless of the facts of the case. More a factor of the plaintiffs attempting to leverage a better settlement.
Foster: Are plaintiffs’ attorneys continuing to use the reptile theory? Are they putting your company or your client on “trial,” arguing that there was a violation of federal law and safety regulations, and that the community and public is being subject to a needless risk of danger with respect to a catastrophic accident?
Roth: The use of the specific formula set forth in the reptile theory seems to be less prevalent now that the trucking industry is aware of these tactics and is taking countermeasures. However, the trend of going after the trucking company’s safety procedures and policies has become more prevalent than ever and typically becomes the focal point of almost every trucking case.
McLaughlin: Some attorneys pursue the reptile theory; some don’t. You can usually tell if they are going down that road by their discovery requests. Regardless, we prep our corporate witnesses on how to properly respond to reptile questions. Most plaintiffs’ attorneys will back down once they realize they are going nowhere with these questions.
Reinoehl: I have not experienced a well-versed plaintiffs’ counsel using the reptile theory in the way that the authors of the book intended, as I understand it. But, generally, yes, the discussion is how the company is the bad actor; not the truck driver.
Foster: What have you seen in your practice and cases that you would describe as a “scary” trend in trucking litigation by plaintiffs’ attorneys? What techniques have you used to combat this trend in order to defend your cases?
Roth: Although I would not use the term “scary” related to any tactics by plaintiffs’ attorneys since they are generally expected and can be mitigated against, the amount of technology available to trucking companies and their ability to track almost every move of a driver can create some challenges in a case with a bad set of facts and a knowledgeable plaintiffs’ attorney. We combat this by carefully analyzing all available driver tracking information before this has to be produced in discovery and, if appropriate, accelerate early-resolution efforts.
McLaughlin: We’re seeing preservation demands with just about every letter of representation. It’s dangerous if you don’t properly act or respond. You have to have good internal document-retention policies, and I respond to most preservation demands myself. However, I assign defense counsel on the more lengthy and burdensome demands. We often go on the offensive by demanding the claimant retain certain data, as well as preserve social-media accounts and electronics, such as phones.
Reinoehl: “Swinging for the fences” seems to have grown with some of these verdicts. We try to move the cases forward before it gets to an attorney that would like to take a swing. Our impression is that they are often just trying to get a trucking verdict of the size listed in the firm’s advertisements.
Foster: Has litigation funding of cases increased in frequency? Are they fueling the filing of cases? Is litigation funding an obstacle to settling cases?
Roth: Although plaintiffs’ attorneys typically will never share the fact that litigation is being funded by a third party, this appears to be more prevalent and is absolutely an obstacle to resolution since the cost of litigation is far less of a deterrent when litigation is being funded.
McLaughlin: I’ve only had a couple of cases involving litigation funding. Several of my peers state that it’s becoming more prevalent. They are definitely a hindrance to getting cases settled.
Reinoehl: In practicing the empathic approach, we often offer wage replacement in certain accident situations. We have seen fewer plaintiffs accept that offer the past couple of years. I believe that is hurting us in two ways: We don’t have the opportunity to build that relationship the same way, and the cases seem to go on longer in general when there is litigation funding involved.
Meet the Panel
James A. Foster is a partner at Chicago-based Cassiday Schade LLP. He leads an emergency response team for catastrophic transportation accidents and serves as co-chair of CLM’s Transportation Committee.
Tim Roth is partner at Gallagher Sharp in Cleveland, Ohio. He is a member of the firm’s Transportation Practice Group with a focus on the representation of trucking companies and their drivers following major truck accidents. He is a frequent speaker on transportation topics and is on the faculty and executive council of CLM Claims College’s School of Transportation.
Tom McLaughlin is the director of risk management and claims for Transport America and CFI in Eagan, Minnesota, where he oversees all auto, general liability, workers compensation, and cargo claims, as well as risk management functions. Transport America and CFI are truckload carriers with over 4,000 combined power units and 4,500 drivers.
Rick Reinoehl is the senior vice president of safety and risk management at Covenant Transport Services, and has over 27 years of experience in risk management.