MTU SAFETY AND CLAIMS SEMINAR

May 4, 2011 · SEMI-CONFIDENTIAL MATERIALS

TABLE OF CONTENTS

I. SKEWED VIEW OF TRUCKERSII. INVESTIGATIONIII. COMPLIANCE*SAFETY*ACCOUNTABILITY IV. “PREVENTABLE” vs. “UNPREVENTABLE”V. DISCOVERY

I. Social MediaII. Preparing Witnesses (driver, safety

director)III. Preparing Witnesses (expert witness)

VI. ALTERNATIVE DISPUTE RESOLUTIONVII. TRIAL

SKEWED VIEW OF TRUCKERS

What the plaintiff attorney thinks are the common causes of truck accidents

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.

What the plaintiff attorney thinks are the common causes of truck accidents

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.

Determining preventability According to USDOT

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.

Determining preventability According to USDOT

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, or 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).

Determining preventability According to USDOT

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

§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.

Determining preventability According to USDOT

Notice that §390.15(b) makes no mention of recording of accidents as preventable or non-preventable.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

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. Weird right?

Determining preventability According to USDOT

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 my hands on liability. However, all may not be lost.

Admissibility of Preventable Designation

There are several arguments against the discoverability, and ultimately the admissibility, of a “preventable” designation. Different jurisdictions have differing views of the law.• 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 they were

required by the FMCSA—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.