Risk and Awards

by The dirt on smoke: Canada's Kyoto commitment

It’s what many call the “lottery mentality.” Huge monetary awards handed out by sympathetic juries hoping to ease a family’s anguish or punish big business for careless mistakes. Good intentions or not, the tort liability system in the United States is spinning out of control, and a Canadian trucking operation involved in an accident south of the border is often along for the ride of its corporate life.

Once rare, million-dollar awards have become almost commonplace. Some blame jurors who have been desensitized to large sums of money by quiz shows and lotteries that regularly hand out seven-figure prizes. “If you can answer 15 questions and win a million dollars, why not give a million dollars to a grieving widow?” a fleet manager recently pointed out.

Even more disturbing is the ridiculous nature of some claims. In trucking, one of the most talked-about cases these days involves a truck that was parked on the side of the road when it was struck from behind by a car carrying two women. The passenger was killed. The automobile driver admitted that they’d been drinking, that they had been up for an extended period of time, and that she had fallen asleep at the wheel. She also admitted that she had seen the truck and it posed no danger. The passenger’s family sued the trucking company, Contract Freighters of Joplin, Mo., and was awarded $8 million in actual damages and $10 million in punitive damages.

Then there’s the case that plagued Jim Park for seven years. The former owner-operator, now editor of highwaySTAR magazine, was having his truck washed at a facility in Chicago when an attendant climbed on the tanker carrying a metal pole. He accidentally touched some electrical wires 22 feet in the air and was killed. Park says he was vaguely aware of the wires but they were well above his truck’s 14-foot clearance so not a reason for concern. The wash facility, not Park, had provided the metal pole. When the accident happened Park was inside a building some 100 feet away.

The attendant’s family received workers’ compensation benefits, but they also sued Park. After plenty of legal wrangling, time off work, and trips to Chicago, his insurance company agreed to settle out of court for $100,000 plus costs. The plaintiff’s attorneys “exploited the misery of that family,” Park says. “It was a sickening experience.”

It’s not fair to paint all attorneys as ambulance chasers, but even a casual cruise around the Internet makes it hard not to jump on that bandwagon. “Truck accident” on any search engine yields lawyers from around the United States willing and ready to sue truckers. An Atlanta firm urges quick action following any accident involving a truck since drivers “commonly violate hours-of-service rules” and motor carriers “can legally destroy their logbooks after six months.”

It’s a different world, compared to how personal injury cases are handled in Canada. Here, there has been a cap on compensation for pain and suffering and other non-pecuniary damages since 1978, when the Supreme Court of Canada delivered decisions in three cases that have collectively become known as the “trilogy” cases. The Court used the cases to limit awards even when injuries are so extensive that little more than life itself remains. A ceiling of $100,000 was established; adjusted annually for inflation, the figure now stands at $288,500.

There is no such limit in the United States. A jury will determine amounts for compensatory and punitive damages, says David Duke, an attorney with Young, Moore, and Henderson in Raleigh, N.C., and plaintiff attorneys will pull out all the stops to up the ante.

“Do not ever think that lawyers are trying to select an impartial jury,” Duke told an audience at the Ontario Trucking Association annual convention in Toronto last month. “The plaintiff’s attorney will try to identify anybody in that jury pool who knows anything at all about trucks, and those people are going to be gone. At the end of the day, your case is going to be decided by 12 people who know nothing about the trucking industry, who know nothing about Federal Motor Carrier Safety Regulations, and quite frankly, if you start talking about slack adjusters, they’re going to think you’re talking about some lazy insurance guy.”

Exacerbating the issue, Duke says, is an inherent bias against foreigners, especially ones perceived as having deep pockets. He notes the only benefit to being Canadian is there’s a good chance the case can be moved from a state court to a federal one, because Canadian carriers operate under federal jurisdiction. Says Duke: “My rule of thumb is to put every case into federal court that can be because the judges maintain control over the conduct of the litigation and things move more predictably.”

What can Canadian truck operators do to reduce the risk of a lawsuit and hefty claim in the event of an accident?

1. Prep your drivers. At the scene of an accident, the actions of a truck driver leave an indelible impression on witnesses. A driver who shows no effort to try to help the injured gives an impression that he’s not compassionate, which won’t play well in front of a jury.

Drivers should co-operate with law enforcement authorities but not volunteer information or guess at it, especially when the questions relate to speed, distance, or how quickly an event has happened, says James Hrycay, an accident reconstructionist with BTS Consulting Engineers of Windsor, Ont.

“Drivers should beware of overly friendly police officers,” Hrycay says. “Their job is to find out whether somebody did something criminally wrong. … They want to charge somebody, and they’ll try to elicit statements from your drivers until the point where they deem that criminal charges should be laid.”

2. Get on the phone. Mark Ram, president of Markel Insurance Co. of Canada, advises starting a thorough investigation as quickly as possible after an accident. Delays blur the memories of witnesses and make evidence tough to track down.

“I cannot stress how important it is to report any claim that happens in the U.S. to your insurance company right away,” Ram says. “It’s not one of those things where you say, ‘Oh, it doesn’t seem so bad.’ When that third party reports the claim to us three months later, long after the evidence is gone, excuse my language, but you’re screwed, and us along with you.”

Review your insurance company’s after-hours reporting protocol. Write it down on a card your drivers can carry in their wallet, and keep it in plain view of your dispatchers and other managers in the office. In the chaos and shock of a serious mishap, most people can barely remember their own name, let alone a list of post-accident procedures.

The next call you make should be to an attorney. “Once an attorney becomes involved, every element of the investigation, from driver and witness interviews to your accident investigation records, is protected. The plaintiff is not entitled to that information,” Duke explains. “If you do not have that protection, you must assume that all of the information you collect is going to be turned over to the plaintiff’s attorney.”

Your attorney can also be your liaison with those conducting the accident investigation, as well as with reporters.

3. Preventable? “Everyone wrestles with the issue of whether an accident is preventable or not,” says Duke. “Let me tell you what plaintiff attorneys do. They will get that record, and once they get that record, and you have checked the ‘it was preventable’ box, they will tell the jury, ‘This trucking company has already investigated this accident and look: they admit it was preventable.'”

Duke tells trucking companies to commit to writing the purpose their accident reports serve, as well as the criteria for determining a “preventable” accident. “When you’re sued, you need to have it crystal clear that these reports have nothing to do with assigning responsibility for an accident,” he says.

4. Preserve the evidence. As an accident reconstructionist, Hrycay’s job is to corroborate what he calls “soft” evidence like witness statements with hard, physical evidence — tire marks, road geometry, pavement damage, and data from the truck’s onboard computer. He looks for anything that can provide the details that a driver who’s been through a traumatic experience may not recall.

“Once I talk to the truck, I can look at the speed, engine rpm, whether the driver’s on the brake, on the clutch, on the cruise — typically 60 seconds prior to the vehicle coming to a stop,” Hrycay says. It may take a full day to help a driver accurately piece together what happened leading up to the accident and deliver an accurate, concise statement that can be used in court.

Hrycay warns that it’s easy for evidence to be ruined inadvertently — towing away a truck with the driveshaft intact may overwrite those critical 60 seconds of engine data, for example. But Duke explains that if a judge determines that a key piece of evidence has been altered or destroyed, and it should not have been, “in most cases he’s going to turn to the jury and say, ‘That piece of evidence is no longer available. What you’re to infer from the absence of the evidence is that the evidence would have been contrary to the trucking company’s best interest.'” The result: the jury will think you’re hiding something.

Plaintiff attorneys will dig through safety records to find breaks in compliance that might be used against a carrier. An exemplary safety program may not be useful as a defence, but it will eliminate noncompliance as an issue. Jim Park says his attorney actually warned him that a jury might hold him to a higher standard of responsibility because of his clean record and professional attitude. Still, he advises, “The only way to protect yourself is to simply do everything right.”

Indeed, your best hope for avoiding expensive lawsuits is to be vigilant about maintaining safety-related records, and act quickly when something — anything — goes awry. “My advice to you is to practice safety and do your best to stay out of the U.S. courts,” Duke concludes. “Otherwise, y’all come visit.”How does a jury put a value on pain and suffering, or the ‘loss of love, society, and affection’? Attorney David Duke explains:

What is the value of pain and suffering following an accident? Well, there’s a little trick plaintiff attorneys use. Let’s say we have a serious accident that results in the loss of a leg. The plaintiff’s attorney will stand up and say, ‘Ladies and gentlemen, don’t you think that $20 an hour is fair compensation for the pain and suffering you would experience for the rest of your life for missing your leg? Isn’t that fair? If we take $20 an hour and multiply that by 24 hours in the day, 365 days a year, on an annual basis, the pain and suffering you need to award is $175,000. And because my client has a life expectancy of 30 years, that translates into $5.2 million.’ That is how plaintiff attorneys come up with these kinds of numbers.

Another type of compensatory damage is wrongful death. The next of kin has to be compensated for the loss of “love, society, and affection.” … Here’s what happens. You will hear gut-wrenching testimony. There will be photographs blown up the size of the wall that show mangled vehicles, that show mangled bodies. A little girl was killed. Mom and dad are in the courtroom bawling their eyes out. Half the jury is crying. The judge is misty eyed.

Amidst all this carnage, a jury is then told — and I mean a hush will come over the courtroom — to award damages for the loss of love and affection. The number they can come back with is scary. At that point, I assure you, you do not want to be sitting in a U.S. courtroom.

(After the compensatory damages), the jury gets into the really big numbers. They will be told that in certain cases the conduct of your driver and/or your company is so egregious … that an award must be made that will punish you and deter you from ever making those mistakes again. In some states, an award of punitive damages against you may be based solely on the conduct of your driver. Even though you didn’t permit your driver to have 10 beers before he got behind the wheel, you’re going to be held responsible for it.

Have your say

This is a moderated forum. Comments will no longer be published unless they are accompanied by a first and last name and a verifiable email address. (Today's Trucking will not publish or share the email address.) Profane language and content deemed to be libelous, racist, or threatening in nature will not be published under any circumstances.