Litigating Trucking Accident Injury Claims: Theories of Liability,...

Litigating Trucking Accident Injury Claims:

Theories of Liability, Impact of CSA

Recordkeeping and MorePlaintiff and Defense Approaches to Discovery, Pre-Trial Motions, and Damages

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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. 1.

TUESDAY, APRIL 30, 2019

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

Bryan L. Bradley, Partner, Kenneth J. Allen Law Group, Valparaiso, Ind.

Eric L. Probst, Principal, Porzio Bromberg & Newman, Morristown, N.J.

Rey O. Villanueva, Shareholder, Golden Rothschild Spagnola Lundell, Boylan & Garubo,New York

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Rey O. Villanueva, Esq.Golden, Rothschild, Spagnola,Lundell, Boylan, Garubo & Bell P.C.

Failure to Inspect

Basic Control of Vehicle – Accelerating, Steering, Stopping, Backing Safely

Distracted Driving

Fatigue

Improper Hiring/Training

Maintenance

“Just a Bad Driver”

Space Management

Seeing Hazards

Distracted Driving

Vehicle Inspections

Negligent Operation

Vicarious Liability

Negligent Hiring, Training, Supervision

Negligent Maintenance

What is the Theory Based On?

Factual/Scientific BasisWritten – seminars, teachings, treatises or other authorities supporting the opinion

Unwritten custom or practice indicating the consensus of community

What is Theory Based On?

Common Law

Federal Law – Federal Motor Carrier Safety Regulations (FMCSR)

• Federal Motor Carrier Safety Administration (FMCSA) –lead federal government agency responsible for regulating and providing safety oversight of commercial vehicles (CMVs).

• Mission: Reduce crashes, injuries and fatalities involving large trucks and buses.

What are the agency’s functions? Develop and enforce data-driven regulations that balance motor carrier (truck and bus companies) safety with efficiency

Harness safety information systems to focus on higher risk carriers in enforcing safety regulations

Target educational messages to carriers, commercial drivers, and the public

Partner with stakeholders on efforts to reduce bus and truck related crashes

Who is covered? All non-exempt commercial motor vehicles that cross state lines

Drivers

Hiring Managers

Trainers

Supervisors

Managers

Dispatchers

Other People whose action affects drivers and commercial vehicles

FMCSR set forth minimum standards for those involved with the operation of commercial vehicles in interstate commerce, in order to cover all people and entities involved in interstate operation of these trucks

What is a Commercial Vehicle?

§ 390.5 – 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 –

(1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight rating or gross vehicle weight or gross combination weight of 4,356 kg (10,001 pounds) or more, whichever is greater; or

(2) Is designed or used to transport more than 8 passengers (including the driver) for compensation; or

(3) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or

(4) is used in transporting material found by the Secretary of Transportation to be hazardous.

Interstate Commerce § 390.5 – Interstate commerce means trade, traffic or transportation in the United States –

(1) Between a place in a State and a place outside of such State;

(2) Between two places in a State through another State or a place outside of the United States; or

(3) Between two places in a State as part of trade, traffic, or transportation originating or terminating outside the United States

Cox v. Bond Transp. Inc., 249 A.2d 579 (N.J. 1969) –interstate commerce can be even casual or occasional transportation

What is interstate commerce? Test – whether the trip involves interstate commerce either because

(1) the vehicle was available for interstate transport pursuant to the lease; or

(2) the trip was one leg of a shipment that originated in or was intended for transport through interstate commerce.

QBE Ins. Co. v. P&F Container Servs., Inc., 362 N.J. Super. 445, 452-53 (App. Div. 2003).

“Adequately evaluating applicants before hiring them as drivers”“Adequately training and supervising these drivers” “Adequately evaluating these employees’ job performance so as to discharge any incompetent or negligent employees”“Pursuant to 49 CFR 382.201, et. seq., 382.301 et. seq., 383.35 and 391 et. seq., conduct an adequate investigation or inquiry into the driving record of John Doe”

What is required? §391.11 (b)(3) – General qualifications of drivers

(3) Can by reason of experience, training, or both, safely operate the type of commercial motor vehicle he/she drives

§ 391.21 – Application for Employment (7) A list of all motor vehicle accidents in which the applicant was involved during the 3 years preceding the date of application

(8) A list of motor vehicle laws or ordinances of which the applicant was convicted or forfeited bond or collateral during the 3 years preceding the date of application

§ 382.301 – Pre-Employment Testing (a) Prior to the first time a driver performs safety-sensitive functions for an employer, the driver shall undergo testing for controlled substances as a condition prior to being used

Investigation of employer of potential applicants

§391.23 – Investigation and inquiries (1) driver abstract of each state applicant held a license during preceding 3 years;

(2) driver’s safety performance history with Department of Transportation for preceding 3 years

§ 391.31 – Road Test(a) person shall not drive a commercial motor vehicle unless he/she has first successfully completed a road test and has been issued a certificate of driver’s road test;

(b) test shall be given by a person who is competent to evaluate and determine whether the person who takes the test has demonstrated that he/she is capable of operating the commercial motor vehicle the motor carrier intends to assign him/her

What must be tested? Pre-Trip Inspection

Coupling and uncoupling of combination units

Placing the commercial motor vehicle in operation

Use of the commercial motor vehicle’s controls and emergency equipment

Operating the commercial motor vehicle in traffic

Turning the commercial motor vehicle

Braking and slowing of the commercial vehicle

Backing and parking of the motor vehicle

Driving Time§395.3 – Maximum driving time for property carrying vehicles

(1) 10 consecutive hours off duty

(2) 14 hour period

Total of 11 hours of driving time

§395.5 Maximum driving time for passenger carrying vehicles

(1) 8 hour consecutive hour off duty

(2) 10 hours driving time

• § 374 – Passenger Carrier Regulations

§390.15 Assistance in investigations and studies

§391.51 General requirements for driver qualification files

§382.401 Retention of Records

§391.53 Driver investigation history file

§395.8 Driver’s record of duty status

§396 – Inspection, Repair and Maintenance

Driver’s Qualification File

Driver’s Application

Driver’s Logs

Training Manual

Employee Manual

Disciplinary Records

Maintenance Records

Safety Orientation Materials

Drug and Alcohol File

Regulations are minimum standards

FMCSR apply = Interstate Commerce

What happens when Regulations and State Law conflict?

Federal law pre-empts if:Explicitly stated or implicitly contained in structure or purpose. Jones v. Rath Packing Co., 430 U.S. 519 (1977)

FMCSR Used As Another Theory Of Liability

Case Study

John Doe Trucking Company hires Jane Smith Trucking Company to transport materials from New Jersey to New York. In New Jersey, driver gets in car accident.

NJ Common Law - It is well established under New Jersey law that one who hires an independent contractor is generally not liable for the wrongful conduct of those contractors in the performance of their duties. See, e.g., Bahrle v. Exxon Corp., 145 N.J. 144, 156 (1996); Baldasarre v. Butler, 132 N.J. 278, 291 (1993).

It is recognized that certain exceptions have come to be accepted, i.e, (a) where there is control of the manner and means of doing of the work which is subject of the contract; (b) where an incompetent contractor is engaged; and (c) where the activity contracted for constitutes a nuisance per se. Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N.J. 425

Case Study – Plaintiff provided no evidence that hiring company controlled means and methods of work or that an incompetent contractor was engaged.

Statutory Employer Doctrine – John Doe Trucking Company can still be found vicariously liable for the negligence of Jane Smith Trucking Company’s Driver.

§390.5 – Definition of Employee:Employee means any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such terms includes a commercial motor vehicle (including independent contractor while in the course of operating a commercial motor vehicle).

Litigating Trucking Accident Injury Claims

Bryan L. Bradley

Kenneth J. Allen Law Group, LLC

Valparaiso, Indiana

blb@allen.law

Bryan L. Bradley■ Senior Partner at Kenneth J. Allen Law Group, LLC

■ Admitted in state/federal courts of Indiana & Illinois

■ Focuses practice on Plaintiff heavy truck litigation

■ Sustaining member of American Association of Justice and member of AAJ Interstate Trucking Litigation Group

■ Advocate Member of Academy of Truck Accident Attorneys

■ Indiana Trial Lawyers Association, Sustaining Member and Serves on Board of Directors

■ Retired, United States Army Reserve and Graduate of the

U.S. Army Command & General Staff College

Discovery Considerations

• Crash review – likely theories of liability

• FOIA Requests to FMCSA: FOIA2@dot.gov

• Internet search (webpage, social media, driver reviews)

• 10K and other shareholder filings

• Preservation/Spoliation Letters

• Preliminary Injunction/Temporary Restraining Order?• EDR Download/Vehicle inspection• Surveillance video• Dash Cam video• Electronic performance data

Document Retention Requirements

Document Retention --- FMCSR § 379

(a) The preservation of record rules contained in this part shall apply to the following:

(1) Motor carriers and brokers;

Part 379, Appendix A

FMCSA Data

Access online at the FMCSA website

Additional data via FOIA

SOME KEY DOCUMENTS TO OBTAIN

MCS-150

New Entrant Safety Audit

Compliance Review

Bill of Lading/Shipping documents

MCS 90 endorsement/State Form E

Driver/Vehicle Examination Report

Driver’s Daily Log

Inspection Reports (annual & post-trip)

Driver’s Qualification (DQ) File

What Is Compliance, Safety, Accountability (CSA)?

• FMCSA’s data-driven safety compliance and enforcement program

• Designed to improve safety and prevent commercial motor vehicle (CMV) crashes, fatalities, and injuries

• Helps carriers and drivers improve safety compliance, so everyone gets home safely

• More than 5.5 million truck and bus

drivers share the road with more than

250 million motorists

• Preventable crashes cost lives and

livelihoods

• Strong safety practices are good for

business and make our Nation’s

roadways safer for everyone

Why Does CSA Matter?

CSA’s Three Core Components

The Safety Measurement System (SMS)

• FMCSA’s workload prioritization tool that identifies carriers for interventions (e.g., warning letters, investigations)

Safety Interventions Process

• Creates new and more efficient ways for FMCSA to interact with carriers and help bring them into compliance (e.g., warning letters and Onsite Focused Investigations)

Safety Fitness Determination (SFD)

• Uses the safety rating process in 49 CFR Part 385

The SMS

Prioritizes and identifies carriers for interventions (e.g., warning letters, investigations) using:

• State-reported crash records

• All roadside inspection safety-based violations

• Certain violations found during inspections

• Serious Violations found during investigations

Updates results once per month based on the prior 24 months of data (weighted based on severity and when events occurred)

Organizes data into seven categories called Behavior Analysis and Safety Improvement Categories (BASICs)

Note: The SMS is not a safety rating and does not alter a carrier’s safety rating

The SMS and the BASICs

The BASICs help a motor carrier understand where it is having safety problems so it can correct them

Each BASIC addresses specific requirements in FMCSA’s regulations

• Your safety performance keeps everyone safe on the road—including you

• Your performance is part of your company’s record, so your safety compliance means a lot

• It’s up to you to ensure your safety record is accurate

• You have two different records:

1. State Motor Vehicle Record (MVR)

2. Federal PSP record

• Note: The Federal and State governments do not calculate or issue a driver “score.” There is no universal evaluation method for drivers*

Why Truck Driver’s Safety Record Matters

*FMCSA’s Driver SMS (DSMS) does not generate or issue driver safety ratings or “scores.” It does not affect a driver’s commercial driver’s license, or a carrier’s safety rating. DSMS results are not available to motor carriers, drivers, third-party providers, or the

public. DSMS results are an investigative tool only available to enforcement officials for examining commercial motor vehicle driver performance as part of CSA investigations. DSMS results are not a measure of a driver’s overall safety condition.

1. State MVR

• Same system as before, not impacted by CSA

• Includes State conviction information

• States (not the Federal government) may suspend a Commercial Driver’s License (CDL) based on conviction information reflected on your MVR

• Employers are required by Federal regulations to check your MVR annually (49 CFR 391.25)

• To obtain this record, contact the State Driver Licensing Agency (SDLA) that issued your CDL

A Closer Look at Truck Driver’s Personal Safety Information

2. Federal PSP Record (mandated by Congress)

• Pre-employment screening tool that allows carriers and drivers to purchase a Federal inspection and crash history record, which includes:

• Five years of reportable crashes

• Three years of inspections—violations recorded on inspections and clean inspections

• Note: The Federal and State governments do not issue a “score,” rating, or assessment associated with a driver’s PSP record

• Your PSP record does not directly impact your CDL

• A carrier may only access your PSP record with your consent

• Obtain your record for a $10 fee at http://www.psp.fmcsa.dot.gov or for free via a Freedom of Information Act (FOIA) request

A Closer Look at Truck DriverSafety Information

Reviewing Your Safety Data in the SMS

Public • BASIC information for all carriers, except for the Hazardous Materials (HM) Compliance and Crash Indicator BASICs

• Driver names are not included

Carriers (logged in)

• All BASIC information, including HM Compliance and Crash Indicator BASICs, driver names per inspection, and downloadable inspection and crash data

• Public view of all other carriers

Drivers • Public view of all carriers

What safety data can you vie

What Motor Carriers and Their Truck Drivers Should Know

Motor carriers are accountable for their drivers’ violations

• All inspections and violations your drivers receive while they work for you remain part of your carrier record for 24 months (regardless of whether they continue operating for you)

• Carriers do not inherit past violations of a newly hired driver

Roadside inspection data remain part of a driver’s record for three years, crash data for five years

https://ai.fmcsa.dot.gov/SMS/Search/Index.aspx

Determining Motor Carrier’s Insurance Coverage

■ Minimum requirements

■ § 387 of FMCSRs

■ www.safersys.org (licensing & insurance database)

“Preventability” Decisions

The Federal Motor Carrier Safety Administration (FMCSA) defines the term “preventable accident” in their Safety Fitness Procedure Regulation (49 CFR Part 385) in two different places.

“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.” FMCSR 385.3

“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.” Appendix B to Part 385

“Preventability” Decisions

The National Safety Council defines a preventable accident as:

“one in which the driver failed to do everything that they reasonably could have done to avoid it.”

American Trucking Association uses the following rule:

“Was the vehicle driven in such a way to make due allowance for the conditions of the road, weather and traffic as to also assure that the mistakes of other drivers did not involve the driver in a collision?”

Is preventability analysis required?

Not required by the FMCSRs, but . . .

Can be used by motor carrier to challenge safety rating (ie., crash was

preventable)

Motor carrier safety root cause analysis to prevent future crashes

• Unreasonable for MC to ignore potential risks

• Unreasonable to fail to take measures to prevent future occurrences or

to remove a potentially dangerous driver

Admissibility of preventability decision

Frequent arguments against admissibility:

Self-Critical Analysis Privilege

Fed. R. Evid. 407 – subsequent remedial measure

49 U.S.C. § 504(f)

Carrier Safety Ratings49 C.F.R. § 385.3 - definitions

(1)Satisfactory safety rating means that a motor carrier has in place and functioning adequate safety management controls to meet the safety fitness standard prescribed in § 385.5. Safety management controls are adequate if they are appropriate for the size and type of operation of the particular motor carrier.

(2)Conditional safety rating means a motor carrier does not have adequate safety management controls in place to ensure compliance with the safety fitness standard that could result in occurrences listed in § 385.5 (a) through (k).

(3)Unsatisfactory safety rating means a motor carrier does not have adequate safety management controls in place to ensure compliance with the safety fitness standard which has resulted in occurrences listed in § 385.5 (a) through (k).

Safety Management Controls49 CFR § 385.3 (definitions)

Safety management controls means the systems, policies programs, practices, and procedures used by a motor carrier to ensure compliance with applicable safety and hazardous materials regulations which ensure the safe movement of products and passengers through the transportation system, and to reduce the risk of highway accidents and hazardous materials incidents resulting in fatalities, injuries, and property damage.

Broker Shipper Liability

Broker Liability

■ Negligent selection and hiring of motor carrier

■ Early case law –

■ Sperl v. C.H. Robinson Worldwide, Inc., 946 NE2d 463 (Ill. App. Ct. 2011)

■ Scheinman v. Martin’s Bulk Milk Serv., Inc., US Dist. Court NDIL

■ Focus of discovery is on “control”

■ Federal Aviation Administration Authorization Act (FAAA) Preemption Defense

- preemption defense has recently been rejected by courts across country

Shipping records

■ Shipper – Broker Contract

■ Broker – Motor Carrier Contract

■ Trip packet

■ Receipts (fuel, toll, etc.)

■ Scale tickets

■ Trip sheet

■ Bill of lading

■ Shipping manifest

■ See §379, Appendix A (Preservation requirements)

■ Motor carrier’s safety data

Thank You

Rapid Response Investigations

Eric L. Probst, Esq.

April 30, 2019

What Next?

• Assemble the Rapid Response Team• Establish “The Privilege”

• Lawyers, claims investigator, and experts

• Secure the scene and meet with the driver

• Preserve evidence• Develop case strategy but no assumptions!

• Collaborate with law enforcement

Rapid Response…

Data Collection—Routes, Receipts, etc.

Data Collection…Maintenance

Data collection…Driver File

DQ FileFMVSS §391.51

• Photos

• Mental Health

Don’t Forget Your Driver!

Pre-Trial Motion Practice

Eric L. Probst, Esq.

April 30, 2019

• Frye• Less stringent standard

• Admissibility test: expert testimony is admissible if opinion based on scientific study “generally accepted as reliable in the relevant scientific community.”

• Daubert• “Reliability” analysis: 8-factor test

• Methodology

• Fit

Admissibility of Expert Testimony—Frye

Using Motions to Block Expert Testimony

• To File or Not to File/Timing

– Before or after close of discovery/depositions

– Motions in limine strategy

• Helpful testimony: A preliminary question to ask before drafting the motion is: “will the expert’s testimony assist the trier of fact to understand the evidence or determine a fact in issue.”

• Use your own experts!!!!

• Spoliation • Understand local law

• Fed. R. Evid. 403 motions

• Other case-related

• How many?

Motions in limine

Eric Probst

elprobst@pbnlaw.com

973-889-4320

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