Looking Both Ways

Accidents and Incidents Part 3 - Liability and Negligence

By John Mueller, CDS, COSS
Posted Sep 4th 2013 11:12AM

blog_logo_6.jpgThis post of Look Both Ways will address the liability issues and negligence - very important because you as a driver are exposed to liabilities. Your actions could be deemed negligent causing you great liability.

The first of the blogs in this series detailed steps to take if involved in an accident or an incident in order to protect the interests of your Carrier, the vehicle owner and yourself. The second blog in the series described the various insurances pertaining to the trucking industry and also some words and definitions used when discussing various trucking insurances.

Let’s revisit the previous blogs and that accident. You, the professional truck driver, were cited for a lane change violation. The other party – the black SUV sustained damage to the left front fender, tire and bumper. The driver’s door was damaged but it could be pre-existing damage. The two occupants of the SUV sought medical treatment the day after the accident and are claiming soft muscle tissue damage. Neither has been to work since the accident 10 days earlier. Their attorney had made initial contact with your carrier’s insurance company.

The physical damage or property damage portions of the insurance claims are closed and settled. The insurance company did not contest the potential pre-existing door damage on the SUV by repairing it and even paid for a new paint job. Doing so the insurance company attempted to gently persuade the claimants into dropping or reducing their potential bodily injury claims. Reality is that two separate bodily injury claims remain from the occupants of the other vehicle. Surely they could not have been hurt severely, right? You feel the $20,000 per person the insurance company placed as reserve to pay for the bodily injuries is excessive. More time passes.

 EO_-_Certified_Letter_blog_photo.JPG

The mailman knocks at your door and requests that you sign for a certified letter. The letter is from Corey Correct, a process agent from the state of Kentucky. A process agent is a representative upon whom court papers may be served in any proceeding brought against a motor carrier, broker, or freight forwarder. The papers are from Boone County (Kentucky) Clerk of Courts. You have been named in a lawsuit, along with ABC Expediting, Inc. - the carrier you are leased on to. The plaintiffs are the occupants of the other vehicle involved in your accident over a month ago. You are hereby summoned that a complaint has been filed against you. You are required to serve upon the Plaintiff(s) attorney, or upon the Plaintiff if he/she has no attorney on record, a copy of your answer to the complaint within 28 days after service of this summons upon you, exclusive of the day of service. Said answer must be filed with this Court within three days after service on Plaintiff(s) attorney. The letter then lists the name and address of the attorney. It continues to inform you that if you fail to appear and defend within 28 days, judgment by default will be taken against you for the relief demanded in the complaint. The Complaint was attached and follows.

The actual papers read:

COMPLAINT

COUNT ONE: Claims for Negligence and Damages

“1. On or about July 7, 2013, the Defendant, A. Professional Driver ( You), individually and/or in the course and scope of his employment with defendant ABC Expediting, Inc., negligently operated a straight truck by making an improper lane change while travelling southbound on Interstate 75 in Boone County, Kentucky causing a collision into a vehicle operated by the Plaintiff, Patsy Public, and also occupied by Plaintiff, Susie Smith, causing injury and damage as hereinafter described.

2. Plaintiffs further allege that at the time of the accident, Defendant A. Professional Driver was working for Defendant ABC Expediting, Inc. and operating the said straight truck within the course and scope of his employment.

3. As a direct and proximate result of the Defendant’s negligence, the Plaintiffs, Patsy Public and Susie Smith, suffered permanent injuries to their bodies, causing pain and suffering, and will continue to suffer said pain and suffering into the future.

4. As a further result, the Plaintiffs, Patsy Public and Susie Smith, incurred medical and hospital expenses and expect to incur such expenses in the future.

5. As a result, the Plaintiffs, Patsy Public and Susie Smith, have incurred lost income.

COUNT TWO: Negligent Entrustment

6. Plaintiffs re-allege all paragraphs above as though fully rewritten herein.

7. At all relevant times herein, the Defendant ABC Expediting, Inc. and A. Professional Driver, owned the vehicle operated by A. Professional Driver, and negligently entrusted the care, custody and control of its vehicle to the Defendant, A. Professional Driver, when it knew that A. Professional Driver would negligently operate said vehicle.

8. As a result of the Defendant’s negligence, the Plaintiffs suffered the injuries and damages as stated in count one above.

WHEREFORE, the Plaintiffs, Patsy Public and Susie Smith, demand judgment against the Defendants as follows:

a. Compensatory and punitive damages in an amount in excess of twenty five thousand dollars ($25,000.00), but currently unspecified pursuant to Civil Rules 8(A) and 54(C), plus costs incurred in this action plus interest and attorney’s fees;

b. Such other relief to which the Plaintiffs may show themselves entitled.

Respectfully submitted,

DEWEY, DRAINEM & HOWE, LLC

W J Sleezeyman, Esq

Counsel for Plaintiffs

Receiving these papers makes you think – how was I negligent? How was my company negligent? How can we be liable to these plaintiffs? They did not appear to be injured after the accident. Well, that’s why we have insurance, right? Wrong!

 Two days later you receive a questionnaire from the Plaintiff’s attorney seeking responses to a detailed and lengthy questionnaire. In addition to questionnaire they seek copies of your logbooks for the previous six (6) months, and copies of all maintenance records for the vehicle in the past year. They’ve also asked your carrier company ABC Expediting Inc. to provide copies of your Driver Qualification file and all relevant training records. The attorney would have requested roadside inspection records and safety data for ABC Expediting Inc., but that information is now public knowledge in CSA on the DOT website.

 This case becomes drawn out over the course of two and a half years. It was discovered that you had violated the Hours of Service regulations on several occasions in the six months preceding the accident. The company, ABC Expediting was unable to produce any sort of relevant driver training records and the Driver Qualification File lacked a few required documents. The last documented vehicle service record you could produce was from 8 months before the accident. There was also proof that you had not attended any driver’s safety meetings in the three years prior to the accident.

 During the course of the two and a half years since the accident, ABC Expediting Inc. filed bankruptcy and closed its doors. The insurance company insuring them at the time of the accident is responsible to pay the bodily injury claims. Since the accident Patsy Public has two surgeries to repair nerve damage in her neck. This damage could have been pre-existing but four separate doctors representing all parties could not verify the damage existed prior to the accident. Susie Smith’s big toe was swollen for six months after the accident causing her to miss work.

 Because of the negligence issues caused by ABC Expediting and A. Professional Driver, the attorney representing the insurance company of ABC Expediting Inc. agrees to have the case settled in arbitration. The mediator rules in favor of the Plaintiffs. Patsy Public is awarded $160,000 for the two years she was unable to work as a Railroad Conductor. She also receives the same amount in punitive damages for pain and suffering, and loss of companionship – making her total $320,000.00. Susie Smith receives $22,000.00 for six months of lost wages as a waitress, and receives $25,000.00 in punitive damages for pain and suffering, and loss of companionship. The insurance company pays the lost wages claims totaling $182,000.00 Insurance companies are not responsible to pay for punitive damages. Since ABC Expediting, Inc. had ceased operations, the plaintiffs now seek to recover their punitive damages award from you, A. Professional Driver. These damages total $185,000.00.

 Imagine the outcome if one of the plaintiffs - a recent college graduate, 22 years old - were deceased as a result of the accident. The courts would most likely award a few million dollar settlement which easily exceeds the amount many trucking companies carry on their primary liability policy. The monies awarded above the limits of the insurance policy are then sought from the defendants: the trucking company; the driver; and perhaps the owner of the truck.

 This blog is not meant to scare or intimidate you. This blog is all about reality. As a career Safety professional I have had drivers involved in a few accidents such as this. Being a Process Agent for the past 27 years I have read countless lawsuits just like this example. You, the driver, can be exposed to liability due to your negligence. Be a bona-fide professional to protect the interests of yourself, the truck owner and the trucking company you drive for.

 Disclaimer: This blog is NOT intended to give legal advice, nor be a substitute for any training required by the Regulations.

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Till the next blog, Thank you drivers for all you do!. Please be safe!


John Mueller, CDS, COS

jmueller@PTLLLC.com

www.PTLLLC.com

4 Comments

  • - September 9, 2013
    The Thomas J-=|=-Three things; first, Although expensive to insure at times NY & NJ & a few other states are no fault states which covers a lot of issues in this article.

    2nd, One thing that was left out of this article was if the driver was incorporated? If so, as I understand how becoming a corporation works is that this will protect the driver personally from most if not all liabilitly from a lawsuit & judgement.

    Thrid, In leiu of serious bodily injury, loss of limb, eye, hearing, brain damage & or coma most personal injury lawyers know that soft tissue damage, broken bones & torn ligaments even those that result in surgury are not 7 figure settlements, they aren't even low to mid 6 figure settlements.

    Insurance companies will choose Jury trial over mediation & arbitration & will force a settlement well withn the max a policy will pay out.

    A personal injury lawyer who has been around the block knows this, & will push for that as well because the fee depends on a settlement.

    An attorney want's to get paid first & foremost, & doesn't want to roll the dice & risk nothing as oppossed to somthing. An Attorney will tell his client somthing similar.

    While this is a good article & i'm sure similar incidents as described in the article happen on a daily basis & gives all professional drivers out there somthing to think about it is nothing more than fear mongering.

  • - September 9, 2013
    The Thomas J-=|=-Three things; first, Although expensive to insure at times NY & NJ & a few other states are no fault states which covers a lot of issues in this article.

    2nd, One thing that was left out of this article was if the driver was incorporated? If so, as I understand how becoming a corporation works is that this will protect the driver personally from most if not all liabilitly from a lawsuit & judgement.

    Thrid, In leiu of serious bodily injury, loss of limb, eye, hearing, brain damage & or coma most personal injury lawyers know that soft tissue damage, broken bones & torn ligaments even those that result in surgury are not 7 figure settlements, they aren't even low to mid 6 figure settlements.

    Insurance companies will choose Jury trial over mediation & arbitration & will force a settlement well withn the max a policy will pay out.

    A personal injury lawyer who has been around the block knows this, & will push for that as well because the fee depends on a settlement.

    An attorney want's to get paid first & foremost, & doesn't want to roll the dice & risk nothing as oppossed to somthing. An Attorney will tell his client somthing similar.

    While this is a good article & i'm sure similar incidents as described in the article happen on a daily basis & gives all professional drivers out there somthing to think about it is nothing more than fear mongering.

  • - September 13, 2013
    John Mueller, CDS, COSS-=|=-The Thomas J;


    Some points well taken, this is a true case example with very minor changes to retain confidentiality.

    Some states are no-fault - which does not always address negligence issues.

    Driver could be incorporated but let it be known that corporate veils are pierced daily - especially cases involving willful negligence and punitive damages.

    No fear mongering intended. Just a dose of reality with an example of what really can happen in a accident.

    I just wish to present a worse case scenario to our readers which could happen within our expedite community.
  • - September 13, 2013
    John Mueller, CDS, COSS-=|=-The Thomas J;


    Some points well taken, this is a true case example with very minor changes to retain confidentiality.

    Some states are no-fault - which does not always address negligence issues.

    Driver could be incorporated but let it be known that corporate veils are pierced daily - especially cases involving willful negligence and punitive damages.

    No fear mongering intended. Just a dose of reality with an example of what really can happen in a accident.

    I just wish to present a worse case scenario to our readers which could happen within our expedite community.

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