Truck Crash Cases

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Truck Crash Cases
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A Regulated Industry Title 49

• FMCS regs apply to all employers, employees and
  commercial motor vehicles, which transports
  property or passengers in interstate commerce.
  (Pa. has adopted the FMCSR for intrastate
  carriers).
• Every employer must be knowledgeable and comply
  with all regulations and must require observance.
  390.3(e), 390.11
• Every driver and employee shall be instructed
  regarding and shall comply with all applicable
  regulations. 390.3(e)

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Purpose of the Regulations

• Ensure the safety of the public and the industry
  itself
• The typical semi weighs up to 40 times the weight
  of a passenger car.
• Trucks have much longer stopping distances.
• Truck drivers work long hours and are subject to
  fatigue.
• Tractor trailers articulate.

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What kinds of Documents can you get?
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Basic Qualifications 40 CFR 391.11
Accident history 40 CFR 391.23 (a)(2)
Prior Employers 40 CFR 391.23
Road testing 40 CFR 391.31
Violations 40 CFR 391.23
Driver Hiring
Written test
Medical Examination 40 CFR 391.41
Training 40 CFR 391.21
Application
Employment Contract
Drug Testing 40 CFR 382.301
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Safety Meetings
Company Manual
DOT Inspections
Maintenance Records
Company Safety/Regulatory Compliance
Record of violations 40 CFR 391.27
Log Audit
Drug testing 40 CFR 382
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Logs (DRDS) 40 CFR 395
Fuel Tax Records
Receipts
Driver Generated Information
Inspections 40 CFR 396
Accident Reports
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Receipts Fuel, Toll, Scale
Equipment Receipt
Delivery receipts
Trip Generated
Freight Bill
Lease
Sattelite Tracking and Dispatch Systems
Bil of Lading
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The Relevancy Connection

• The specific negligence that caused the collision
• The relationship between the negligence and a
  specific section of the regs, CDL manual, company
  manual, etc.
• The failure of the company to enforce the regs,
  manual etc.
• The general failures of the company regarding
  safety pattern and practice

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Who can you sue?
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Furniture Inporter Inc.
XYZ Trucking
ABC Employment
Chassis Leasing Co.
Len Sloane Owner/Operator
Philly Chassis Service Co.
Jim Haggarty - Broker
Hatboro Truck Service
South Florida Furniture Warehouse
Central Florida Fruit Warehouse Co.
Trip
Central Florida Fruit Co.
Contract
Maintenance
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Mustang Transp. Co. v. Ryder Truck Lines Inc.,
523 F.Supp. 1097 (1981)

• Crowder driver and owner of tractor
• Mustang Transp. Owner of trailer. These was a
  lease agreement between Mustang and Crowder.
  Lease says Crowder is an independent contractor.
• Ryder set up one way lease with Crowder
• While carrying Ryder load, Crowder hits
  plaintiff.
• Who Pays?

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Theories You May Not Have Considered

• Negligent hiring
• Negligent entrustment
• Loading Driver 392.9 393.100, or Shipper
• Insurance on the Trailer 40 CFR 387.15
• Aiding or Abetting 40 CFR 390.13

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Electronically Generated Data
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Speed
Hard brake
Engine RPM
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Hard Brake
Speed
Engine RPM
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Speeding Highest
Speed
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Pre-suit Investigation

• Traffic Accident report
• MCSAP report
• Interview police officer
• Witness statements (ask if they have photos)
• Preserve vehicles

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Pre-suit Investigation, continued

• Measurements at the scene including all marks on
  the road gouge marks, skid marks, yaw marks etc.
• Canvass for witnesses
• Photos of the scene, include signage
• Get photos of all vehicles involved (reflectors,
  lights etc.)

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Pre-suit Investigation, continued

• Was there media coverage, and do they have photos
  or video
• Interview fire and rescue personnel
• Tow truck operator
• FOIA request for safety audits, fitness reviews
• Get data on trucking company from the internet
  FMCSA, Company website

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Pre-suit Investigation, continued

• Weather records (if a factor)
• Drivers license search
• Have in your possession CDL Manual and The
  Federal Motor Carrier Safety Regulations

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DiscoverySome specific areas of concern

• Files, files, files
• Personnel
• Qualification
• CDL
• Medical
• Disciplinary
• Who is the Employer and are there more files

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Discovery, continued

• Who is the Employer
• Trip Computers and data recording equipment (NOT
  ECM)
• Communications devices
• CB
• Cell Phone
• Satellite dispatching

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Discovery, continued

• Record of Duty Status (logs) and computer
  programs to record and audit
• Supporting documentation
• Fuel tax records
• Do they audit and how???
• Was there a co-driver?

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Discovery, continued

• Negligent hiring
• Shoddy recordkeeping
• Negligent training
• COMPANY SAFETY MANUAL
• Video presentations
• Safety meetings
• Audits

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Deposition Targets

• Driver
• Dispatcher
• Safety officer
• Chief Operating Officer
• The person who hired Driver
• The person who trained driver
• The maintenance supervisor

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Occidental Fire and Casualty v. Westport, 2004 WL
2028616 (ED Pa. 2004)

• Simpkins driving a tractor owned by F.O.
• Simpkins picked up a BK trailer in Wilmington
• Stopped in Philly to rest then disengaged the
  tractor and drove tractor only to get cash
• Hit a pedestrian while bob-tailing
• BK insured by Occidental
• F.O. insured by Westport

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Occidental Fire and Casualty v. Westport, 2004 WL
2028616 (ED Pa. 2004)

• Occidental Policy (BK) covers specifically
  listed autos, hired autos, and non-owned
  autos
• Westport policy (FO) covered only specifically
  listed autos but had an MCS-90 endorsement which
  required Westport to satisfy any judgment against
  F.O. when there is no other collectible
  insurance.

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Occidental Fire and Casualty v. Westport, 2004 WL
2028616 (ED Pa. 2004)

• Occidental (BK) argued no lease under 49 CFR
  376.11-12 therefore no control so actually a
  broker under 371.2. But a coverage issue not a
  safety of the public issue so policy, not CFR
  controls
• But, the FO tractor is not a hired vehicle
  because BK does not meet the test of having
  control, so no coverage for Simpkins

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Occidental Fire and Casualty v. Westport, 2004 WL
2028616 (ED Pa. 2004)

• Westport (FO) policy covered only specifically
  listed vehicles and tractor involved was not
  listed.
• MCS-90 endorsement Makes Westport responsible so
  it has coverage
• However policy had a reimbursement clause,
  requiring FO to pay back Westport for any
  payments. Carolina Cas. V. Insurance Co. of N.
  Amer., 595 F.2d 128 (3d Cir. 1979)

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R.R. Donnelley and Sons v. Firemans Fund Ins.,
2004 WL 2810065 (ED Pa.)

• Taylor, a driver for Harris Trucking was struck
  by a bale of paper while a Donnelley employee was
  loading his truck.
• Harris was insured by Firemans Fund
• Donnelley was insured by Zurich.
• Donnelley was an additional insured on the Harris
  policy.

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R.R. Donnelley and Sons v. Firemans Fund Ins.,
2004 WL 2810065 (ED Pa.)

• Firemans Fund argued only covered Donnelley for
  negligence of Harris but addl insured clause did
  not specifically limit to Harris. See Harbor
  Insurance v. Lewis, 562 F. Supp. 800 (ED Pa.
  1983).
• Zurich, Donnelleys actual carrier, was excess
  because its other insurance clause was more
  specific in making it excess to any policy for
  which you have been added as an additional
  insured.

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Vigilant Ins. Co. v. Firemans Fund, 2004 WL
963960 (ED Pa.)

• Presendieu drove for employer Fifty Fiddles (FF)
• Tractor was owned by Smith d/b/a/Taz Trans.
• Smith leased to Movie Movers (MM) who had an
  agreement stating equipment owner shall be
  responsible for having insurance coverage on
  their vehicle and that MM shall assure there is a
  cert. of Ins naming MM as Addl insured.
• MM then leased the tractor and trailer to FF,
  with agreement saying all risk to lessee (FF) and
  lessee (FF) agrees to insure.

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Vigilant Ins. Co. v. Firemans Fund, 2004 WL
963960 (ED Pa.)

• FF, the lessee, insured by Firemans Fund
• MM, Lessor, insured by Travelers
• Taz, owner, insured by Vigilant
• Presendieu, an FF employee driving the Taz truck,
  wanted UM coverage from somebody!

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Vigilant Ins. Co. v. Firemans Fund, 2004 WL
963960 (ED Pa.)

• A clause in the Vigilant (Taz, tractor owner and
  lessor to MM) which limits coverage for leased
  situations did not apply because it was limited
  to the general policy and there was a separate UM
  clause defining any occupant as an insured. So,
  Vigilant was Primary
• Firemans Fund policy (FF, employer of driver and
  lessee from MM ) provided excess UM coverage.

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Vigilant Ins. Co. v. Firemans Fund, 2004 WL
963960 (ED Pa.)

• Travelers (MM, owner of trailer, lessee from Taz
  and lessor to FF) had UM excess coverage also
  because Presendieu was determined to be occupying
  the trailer