BRAMPTON, Ont. – You may not be able to avoid delivering freight into judicial hellholes in the US, but there are steps you can take to reduce the risk of being the victim of a runaway verdict.
Brian Del Gatto, a partner with US law firm Wilson Elser, told Northbridge Insurance customers attending its Full Circle Appreciation Day, that it begins with carrying more coverage than the legal minimum. Del Gatto noted the $750,000 minimum coverage required was established 20 years ago and is no longer sufficient, in an environment where juries often award tens of millions to plaintiffs involved in a truck crash.
He suggested carrying coverage of $5-$10 million. Otherwise, Del Gatto noted, you run the risk of being put out of business by a large award. Of the 100 largest awards given in US courts last year, 12 were against trucking companies and even those in the mid-90s amounted to more than $50 million, Del Gatto cautioned.
He also explained that certain US jurisdictions routinely appear on the list of “judicial hellholes,” as deemed by the American Tort Reform Association as the regions that are the harshest towards defendants. These include areas such as Illinois, Bronx County, Erie County, Miami, California and Detroit. Del Gatto suggested learning the jurisdictions that are legal hellholes and then to take steps to protect yourself when operating there.
One suggestion? Whenever possible, assign deliveries to these areas to regular drivers so they are accustomed to the area and less likely to run into trouble. That could prevent the type of judgment that befell a trucking company whose driver pulled onto the side of the road to relieve himself. A car lost control and slammed into the back of his trailer, killing two occupants. The trucking company felt it wasn’t at fault but the jury felt otherwise, awarding US$180 million to the motorist. They found there was a rest area with washrooms a couple miles up the road and that the driver could easily have made it that far before stopping.
“I know you can’t always dispatch the same driver to the same location, but to the extent that you can do that, having the same driver running the same route reduces the possibilities of them being in a situation where they don’t know where they’re going,” Del Gatto explained.
Another step carriers should take is to secure legal contacts in advance of when they’re needed within any hellhole jurisdiction. It beats resorting to the yellow pages after a crash, Del Gatto noted.
In the event of a serious accident, get legal help on the scene as soon as possible, he added. Also, make sure drivers know the proper response if they’re involved in an incident, including who to call, what to say and not say, etc.
“A lot of times the driver wasn’t really sufficiently or appropriately taught how to act under those circumstances,” Del Gatto said.
When the case goes to court, Del Gatto suggested asking your lawyer if it can be moved to a federal court. Federal judges, he explained, are appointed for life – not elected – and tend to be more reasonable than elected judges in state courts who often receive campaign contributions from savvy personal injury lawyers.
“We try to move all the cases we have to federal court rather than state court,” he said.
Asked if Canadian carriers are more aggressively targeted by plaintiff attorneys following an incident in the US, Del Gatto said not any more so than American companies.
“Plaintiff attorneys are opportunists,” he said. “They don’t care who they sue.”
However, he said specialized law firms targeting trucking companies have become more sophisticated at examining records generated by GPS, electronic control modules and logbooks.
“We have created a subculture in the US of specialized lawyers who deal with this,” he said.
He has seen lawyers aggressively target drivers who cannot speak good English following a crash.
“There tends to be a willingness on the part of plaintiff attorneys to push harder if the driver doesn’t have a great command of the English language,” Del Gatto said.
He also warned carriers operating a brokerage division to be cautious about awarding loads based on price. Plaintiff attorneys will try to prove a carrier brokered out a load to a cheaper carrier rather than one that had a better safer rating but a higher price and will use that to prove “you made a choice based on economics rather than the safety of the general public,” Del Gatto explained.
While avoiding hellholes isn’t an option, Del Gatto said taking steps to protect yourself in advance of any incident can be beneficial.
“You can’t avoid them but you have to be prepared to deal with the possibility accidents are going to happen there,” he said. “The verdicts are not getting smaller.”
You can see the list of judicial hellholes here.
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