Evaluating Common Causes of Accidents and Mastering ...media.straffordpub.com/...accident.../presentation.pdf · 4/11/2012 · Litigating Trucking Accident Injury Claims Evaluating

Litigating Trucking Accident Injury Claims Evaluating Common Causes of Accidents and Mastering Theories of Liability

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.

WEDNESDAY, APRIL 11, 2012

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, OH

Conference Materials

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.

Continuing Education Credits

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

Tips for Optimal Quality

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.

Litigating Trucking Accident Injury Claims April 11, 2012

Robert R. Foos, Jr.

Defense Planning for the Trucking Case

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


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


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


Counsel should immediately: (con’t) • 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


Counsel should immediately: (con’t) • 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


Counsel should immediately: (con’t) • 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


Counsel should immediately: (con’t) • 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


Counsel should immediately: (con’t) • 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


Counsel should immediately: (con’t) • 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. Then New CSA (formerly CSA 2010)

II. Admissibility of “Preventable” Determination III. Document Retention

21

DISCOVERY CONSIDERATIONS 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

http://csa.fmcsa.dot.gov/about/�


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


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.

31


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.

32


Potential Implications of CSA Data 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.

33


Potential Implications of CSA Data 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. I have already received requests from plaintiff’s counsel asking my driver sign a release to obtain his PSP report and medical records.

34


Potential Implications of CSA Data 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.

35


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.

36


Potential Implications of CSA Data 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).

37


Potential Implications of CSA Data 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.

38

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. 39

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). 40


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 41


§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.

42


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.

43


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.

44


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.

45


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.

46

DISCOVERY CONSIDERATIONS 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) 47


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)

48


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)

49


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)

50

Pretrial Motions

51

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.

52

Some Interesting Statistics

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.

53


In 2009, 3,215 large trucks were involved in fatal crashes, a 21-percent decrease from 2008 and the largest annual decline since records have been kept. Including the 12-percent decrease from 2007 to 2008 (the second-largest decline on record), the number of large trucks involved in fatal crashes declined by 31 percent from 2007 to 2009. Over the past year, large truck and bus fatalities per 100 million vehicle miles traveled by all motor vehicles (preliminary data) declined by 21 percent, from 0.153 in 2008 to 0.121 in 2009.

54


From 1999 to 2009: • The number of large trucks involved in fatal

crashes has declined by 35 percent. • The number of large trucks involved in injury

crashes has decreased by 48 percent. • The number of large trucks involved in property

damage only crashes has decreased by 35 percent.

All statistics taken from the Large Truck and Bus Crash Facts 2009 Early Release, which can be found at http://ai.fmcsa.dot.gov/CarrierResearchResults/HTML/2009Crashfacts/2009LargeTruckandBusCrashFacts.htm

55

http://ai.fmcsa.dot.gov/CarrierResearchResults/HTML/2009Crashfacts/2009LargeTruckandBusCrashFacts.htm�

http://ai.fmcsa.dot.gov/CarrierResearchResults/HTML/2009Crashfacts/2009LargeTruckandBusCrashFacts.htm�

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.

56

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

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]

Michael Jay Leizerman (419) 243-1010 [email protected]

April 11, 2012 seminar

58

Common causes:

Fatigue Distraction Rage Inexperience Equipment failure Bad weather

59

Type:

U-turn Rear end Wheel off Leaving lane Underride

60

61

OR

Rogue Company

Follows the Rules?

62

63

64

65

66

67

68

69

70

71

72

73

74

75

76

77

78

79

80

81

82

83

84

CSA: A Way to Measure and Address Commercial Motor

Vehicle Safety

Industry Briefing February 2012

85

Carrier SMS Results

86

Carrier SMS Results (cont.)

87

Violation Details in SMS

88

Further Drilldown in SMS

89

Further Drilldown in SMS (cont.)

90

Further Drilldown in SMS (cont.)

91

§390.13 Aiding or abetting violations

No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.

92

§391.11 Driver Qualification

(b)(1) Is at least 21 years old (b)(2)Can read and speak the English language sufficiently to converse with the general public… (b)(3) Can, by reason of experience, training, or both, safely operate the type of commercial motor vehicle he/she drives;

93

§392.14 Hazardous Conditions; Extreme Caution

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, the operation of the CMV shall be discontinued and shall not be resumed until the CMV can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the CMV may be operated to the nearest point at which the safety of passengers is assured.

94

spoliation

95

96

97

98

No notice to insurance co?

Green v. Royal Indem. Co., 1994 WL 267749 (S.D. N.Y. 1994).

Pierre v. Providence Washington Ins. Co., 784 N.E.2d 52, 2002 (2002). Clarendon Nat. Ins. Co. v. FFE Transp. Services, Inc.,

2004 WL 3210604 (N.D. Tex. 2004), judgment aff'd, 176 Fed. Appx. 559 (5th Cir. 2006).

99

No cooperation?

Campbell v. Bartlett, 975 F.2d 1569 (10th Cir. 1992).

100

Policy canceled?

To the truck company - the insurance company must give 35 days notice

To D.C. - 30 days’ written notice of any cancellation, from the date of actual notice on the prescribed form

101

Barbarula v. Canal Ins. Co. 2006 WL2246384

…while the underlying insurance policy was cancelled pursuant to state law, the MCS-90, which is controlled by federal law, with a separate cancellation provision, remained in effect and thus provided one million dollars in coverage.

12 hour lapse

102

Republic W. Ins. Co. v. Rockmore, 2005 WL 57284 (N.D. Tex. Jan. 10, 2005).

32 versus 35 days notice=coverage

103

104

105

106

107

Documents

Evaluating Common Causes of Accidents and Mastering ...media.straffordpub.com/...accident.../presentation.pdf · 4/11/2012 · Litigating Trucking Accident Injury Claims Evaluating