Examining complexity in automotive liability

Year after year, nuclear verdicts make headlines redefining what makes for a “landmark” auto liability settlement. For instance, in 2018, a Texas jury awarded $101 million to a man who was severely injured in a crash with a cement truck. However, three years later, a Missouri jury awarded $113 million to a woman who was severely injured in a crash with a commercial truck. Simply put, accident claims between passenger vehicles and a large truck, commercial vehicle or tractor-trailer can result in critical injuries and damage to vehicles, and can be incredibly complex to resolve.

These events and the claims litigation processes that follow cannot be approached in the same manner as an accident involving two passenger vehicles and therefore, require the expertise of transportation claims and risk specialists. These professionals understand the challenges trucking companies face such as social inflation, litigation funding, rising insurance premiums and other operational demands such as truck maintenance and safety training. The specialists can make all the difference in minimizing the financial impact and unnecessary risk when responding to and investigating, handling and defending an accident.

Contributing factors of severe accidents

To understand the complexity of a claim involving a passenger vehicle and truck, it’s important to first understand the role vehicle weight plays in the accident.

According to data from the Environmental Protection Agency, the average weight of passenger vehicles in 2022 was around 4,094 pounds, with some vehicles weighing in at only 2,600 pounds. Tractor trailers, on the other hand, can weigh as much as 80,000 pounds when fully loaded. This difference in weight can result in severe damage in the event of an accident with other vehicles of any size, as well as other damages that can result in additional liability.

In fact, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration cites a number of factors that can contribute to accident causation, including:

• Trucks are often 20 to 30 times heavier than passenger vehicles, increasing the risk of more severe crash damage, injuries and fatalities.

• The sheer weight of a loaded truck can cause additional damage to the roadway and infrastructure.
• Cargo can cause additional damage and further complicate an accident scene or exacerbate the injuries.

When combined, these factors are likely to increase the complexity of the crash, the cost to complete a thorough investigation, as well as the possibility of more serious injuries and/or fatalities and accompanying litigation.

When transportation specialists respond to an accident, they know what questions to ask to understand the complexity of the situation and determine the safety and location of the driver, as well as the status of the truck. This knowledge is essential to determine if rapid response is necessary and whether or not to assemble and dispatch other parties to the scene such as an independent adjuster, accident reconstruction team and/or defense counsel. Transportation specialists also are well-versed in rules and regulations regarding when drug and alcohol tests are mandatory.

Transportation claims specialists know the issues that commonly arise after an accident because many have been students of the transportation industry itself. It is commonplace to find these professionals with a career history that includes being a defense attorney, insurance carrier claims executive or risk manager for a motor carrier. This first-hand knowledge and experience can help businesses combat the inevitable challenges that come with severe trucking accidents.

Investigating the accident

Due to the size and weight of the truck, an investigation often includes an independent adjuster and investigators who examine the truck and cargo, review the scene, and collect evidence including potential witnesses, traffic and business cameras, or other sources of information. Oftentimes, experts in forensic accident reconstruction are also retained to determine the cause of the crash and, if possible, allocate or rule out fault.

In most cases, the rules governing safety regulations and recordkeeping require analysis of the truck driver’s actions to determine if they were negligent or reckless, and possibly further investigation to determine the licensing, education, training and background of the driver. By necessity, this may also include reviewing records — driving logs, maintenance records, driver qualifications and safety violations to name a few. This, in turn, may lead to further action against the employer or owner of the truck and trailer as well as trucking brokers and shippers.

This additional investigation can often make it more difficult to determine liability because of laws that regulate the licensure, record retention, the behavior of the driver, as well as the responsibility of the employer, the trucking company. As you can imagine, this often leads to lengthy and expensive legal proceedings.

The importance of having a transportation claims specialist familiar with the regulations, records and investigation process cannot be understated. At a time when the prompt response to a critical event or catastrophic injury is paramount to protect the company and the driver, the knowledge, references, access to experts, and the like, allow for quick, real-time, decision-making that can make a difference in defending a claim or possible litigation.

Handling or defending the accident

Handling or defending a truck accident claim starts out like any other standard accident claim. We must first determine who is at fault and understand the legal implications of any claim that results from the accident. This factual investigation is done by: examining the evidence from the electronic data on the truck computer or electronic control module (ECM); reviewing and preserving dash cam video of the accident (as well as any other telematics such as forward collision mitigation and lane departure) and the events leading up to it;  interviewing witnesses; and reviewing police reports, 911 calls and any other relevant information.

However, in a trucking case, it is also important to consider how commercial vehicle drivers and the operation of tractor-trailers are regulated by the government. The laws that cover commercial vehicle operation — and tractor trailers specifically — are decidedly more stringent than those for private passenger vehicles such as: logging hours of service; mandatory rest periods for drivers; safety inspection records; and retention of driving records including accident and traffic citations and violations.

Federal Motor Carrier Safety Regulations (FMCSRs) are federal laws and are designed to promote safe operation and protect the public. But when these claims are presented, it is important to keep in mind how they can also be used by the plaintiff’s bar to influence a jury verdict or coax large settlements from trucking companies and insurance carriers to avoid litigation and the potential of a “nuclear verdict” (a term that has come to describe jury awards that surpass $10 million ).

The plaintiff’s bar has become particularly adept at attacking both defendant drivers and the companies that employ them or utilize their services. Through litigation tactics and techniques based on Reptile Theory and Trojan Horse Theory, litigators attack the behavior of the driver, safety programs or other aspects of the company’s business to conjure up an emotional reaction from the jury to the claim.  These strategies can encourage or evoke empathy with the injured party and enmity towards the trucking company.

In fact, in some cases, this strategy is used to move the discussion away from the facts and instead have the jury focus on actions or issues, which are either real or perceived “violations” of the safety rule(s) and thereby, create a negative inference as to the character or the actions of the driver and the trucking company. This emotional response — often described as “prioritizing profits over safety” — serves to put the corporate defendant at odds with jurors who, in turn, use their votes to make an example out of the defendants.

Transportation claims specialists work with the trucking company and outside counsel to secure and manage the collection, retention and preservation of evidence, and develop and implement strategies to resolve or defend a claim or lawsuit resulting from these accidents. They are knowledgeable about key hellhole jurisdictions, specific laws, and can help clients achieve the best outcome.

Claims are not like fine wine: they do not get better with age. When claims specialists are continuously pro-active and review, evaluate and resolve claims expeditiously, they increase their chances of avoiding litigation.

Considering potential damages

Once fault has been determined, it is important to consider the potential damages that may be awarded. This includes medical expenses, lost wages, pain and suffering, and other costs associated with the accident.

In a tractor-trailer accident claim, especially one in litigation, we often see catastrophic injuries with associated high medical bills. These bills or liens can become more inflated through third-party litigation funding. This process — where an outside company finances a lawsuit and then takes an assignment against the settlement/recovery or judgment — drives up the cost of litigation, while the patient may continue treatment and payment or resolution of the lien is delayed until the claim is settled or there is a judgment.

Damages to punish the alleged bad conduct of the driver or company — punitive or exemplary damage claims — may also push potential settlement values higher to avoid the adverse effect of a jury verdict and published judgment against the carrier.

These adverse conditions and the increased number of nuclear verdicts drive up insurance costs and the insurance requirements for tractor-trailers are already much higher than those for other vehicles. For example, the Federal Motor Carrier Safety Regulations prescribes the minimum levels of financial responsibility required by motor carriers to be between $750,000 and $5,000,000, depending on the type of cargo transported.

Due to the climbing costs and settlement values, insurers need to be able to cover the costs of any damages and still see an underwriting profit, or be forced to stop underwriting trucking risks or go out of business. This is becoming more common not only at the primary level but also in the excess market.

Trucking companies and their insurers are becoming more creative in trying to underwrite risk and provide coverage for the market. This often involves taking back some of the risk in the form of larger deductibles, self-insured retentions, facultative reinsurance or corridor sharing, all of which make this very different from “red car hits blue car” or your average automobile parking lot fender-bender.

Mitigating complex risks requires expertise

Trucking cases require a comprehensive understanding of not only the accident facts but also the complexities involved therein. It requires a careful and thoughtful process to navigate hundreds of pages of regulations, deep knowledge of commercial driver behavior and governance, and understanding to appreciate and attempt to mitigate complicated and often catastrophic injuries. Add to that the inherent costs of medical care, litigation and its potential implications, and you have a recipe for potentially disastrous outcomes.

When it’s all on the line, these claims require an expert. You have to leverage well-rounded, experienced transportation industry expertise. Claims specialists with the experience in handling transportation claims can help you navigate a safe course and exercise solutions that are timely, effective and economically feasible. More than anything, they make it possible to efficiently defend a claim or litigated matter and bring it to a successful and satisfactory conclusion for all.

Doug Betkowski (doug_betkowski@gbtpa.com) is a senior vice president and transportation practice leader for Gallagher Bassett Specialty, with 35 years of claim and litigation management experience. His role includes managing GB’s Major Case Unit, a specialized team of transportation claim professionals focused on complex and high-exposure claims. 

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