This article ran in the January, 2003 issue of Fleet Owner Magazine.

 

TIPS FOR TRUCKING COMPANIES TO DEFEND AGAINST LAWSUITS

By Edward R. Nicklaus

Managing Partner

On a Sunday evening in 1998, a Monroe County sheriff's deputy pulled into the path of a 14-wheel tractor-trailer that was delivering baked goods to retail stores in the Florida Keys and was killed instantly. Later, the deputy's wife filed a $7.5 million dollar lawsuit against the driver, the baking company for which he worked, and a major leasing company, claiming the truck was negligently operated or negligently maintained.

An in-depth investigation into this tragic case clearly indicated that there was no negligence on the part of the leasing company, the bakery or its driver. After reviewing the evidence, a federal jury in Key West dismissed the lawsuit in July, 2002.

Most trucking companies would rather settle a dispute behind the scenes rather than take a chance in the courtroom. After all, the public generally knows very little about the trucking industry and people sitting on juries tend to be sympathetic to the victims.

If the company has a strong case, as the leasing company did in the Florida Keys lawsuit, presenting the evidence to the judge or jury can be the most effective strategy.

Fleet owners and managers should take proactive steps to prepare themselves for a potential appearance in court--- long before they ever find themselves in a lawsuit. If a lawsuit is filed against them, there are several steps a company can take to improve the odds of a favorable verdict.

Here are my suggestions based on more than three decades of representing trucking companies in the courtroom:

  1. Select the right lawsuits to try. Go to court when the facts are clearly on your side. If your driver was in the wrong, settle the case and get on with your business.
  2. Train all of your drivers to obey traffic laws and safety rules and know them so well they can recite them from memory, including everything required during a pre-trip, walk-around safety inspection.
  3. Monitor driver hours of service. Plaintiff's attorneys are likely to ask a driver “Just how fatigued were you?” or “Were you speeding to get one more load before you had to stop for the day?”
  4. Make sure each driver knows all about the truck's equipment. A plaintiff's attorney will ask a driver about the location, operation and maintenance of the automatic slack adjusters, for instance.
  5. Keep the truck's equipment in good condition. If the brakes are discovered to be worn or out of adjustment, a jury is likely to side with the plaintiff regardless of whether or not the brakes were a contributing factor in the accident.
  6. Keep thorough and complete records, including scheduled maintenance activity. Having the data to document your actions puts you in a much better position to defend the case. Without records, your position is weaker, even if you always follow proper procedures.
  7. Hold regular safety meetings with your drivers and dispatchers. Again, document these meetings as evidence of your pro-active approach to safety.
  8. Teach drivers how to respond if they are in an accident: Cooperate with law enforcement authorities, call the safety director or supervisor, and don't talk to anyone about the accident until your attorney arrives.
  9. Defend your drivers if they get a traffic citation and let them know that you will be there to help them. Drivers are often very upset following an accident. As a result, they may plead guilty to a traffic violation, even if they are not at fault. In Florida and some other states, a guilty plea is admissible as evidence in a civil case and may be offered by a plaintiff's attorney as evidence of negligence. If the driver pleads “not guilty,” the violation is not admissible as evidence, even if he or she is later found guilty of the violation.
  10. When it comes to ethics, always take the high road. Doing the right thing (and documenting it) is the best strategy for defending your case.
  11. Finally, for a trucking company that has a lease with an owner-operator, make certain the lease is legal. In my experience, too many trucking companies have leases that are in violation.

Closely adhering to these tips as standard business practices will put you in as favorable a position as possible to represent yourselves in a court of law.

Edward R. Nicklaus is a trial lawyer with 31 years of experience, much of it defending truck fleets. He is Managing Partner of the litigation-focused law firm, Nicklaus & Associates, P.A., in Miami, Florida, which specializes in insurance coverage defense, transportation defense and catastrophic personal injury defense.