The Cost of Risk: Devils in the details

You are in litigation over a catastrophic accident and things are going pretty well, all things considered. Your driver had been accident-free. Physical evidence and eyewitness accounts are at worst inconclusive and at best help you. And the only blemish on the driver’s record is an improper lane change violation from several years ago.

That’s your problem. The plaintiffs’ attorney introduces into the record a 2005 study by the American Transportation Research Institute – an affiliate of the trucking industry’s largest trade group – finding, among many other things, that an improper lane change violation increases the likelihood of a truck driver having a future crash by 78 percent. The plaintiffs’ attorney then points at you, charges that you should have known this information and declares that your trucking company has negligently retained a dangerous driver.

It’s a preposterous accusation, of course, and it probably won’t sink an otherwise solid case. But remember: Some juries look for any excuse to take money from the rich owners of big, scary trucks.

Trucking companies may see scenes like this more often as plaintiffs’ attorneys grow ever more aggressive and more safety studies of the trucking industry hit the streets, says attorney R. Clay Porter, a partner with the Atlanta firm Dennis, Corry, Porter & Smith and a specialist in motor carrier and truck insurer defense.

One of Porter’s big concerns is that studies like the 2005 ATRI study on predicting truck crash involvement aren’t written with the realization that they might be misused in court. The purpose of the ATRI study, for example, was to help regulators and law enforcement allocate resources better to reduce crashes. But ultimately, use of such data in litigation may force carriers to change their practices. “The study will be used as hiring qualifications,” Porter predicts.

According to the ATRI study, an improper lane change violation is around the middle of the pack as it comes to predictors of crash likelihood. At the top is a reckless driving violation, which increases the likelihood of a future crash by 325 percent. An improper turn violation increases the likelihood 105 percent. Indeed, according to the ATRI study, six categories of violations and convictions are more predictive of a future crash than even a past crash, which increases the likelihood of a future crash by 87 percent.

One of the biggest problems in reading too much into some safety studies is that they often show correlations of data that may not represent cause and effect, Porter says. “I have a feeling that if they measured sunspots, they could show a correlation.”

Skip to the SAFETEA-LU
Another manufacturer of landmines for carriers is last year’s sweeping transportation act, known formally as the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, or SAFETEA-LU, Porter says. For starters, the legislation requires several new safety studies, giving further ammo to plaintiffs’ attorneys. But there are some direct pitfalls. For example, the law establishes criminal liability for an employer who knowingly and willfully allows or requires a driver to operate a commercial motor vehicle in violation of an out-of-service order, he notes.

Also, SAFETEA-LU establishes civil penalties, including suspension and loss of a carrier’s registration, for motor carrier officers that engage in a pattern of noncompliance or concealing noncompliance, Porter says. In this context, an officer could be a safety director or even a dispatcher. In fact, the definition includes “any person exercising controlling influence over the operations of a motor carrier.” Porter calls the measure “a pretty broad provision” that eventually could have plaintiffs’ attorneys trying to link the fates of trucking companies to the improper actions of low-level managers.

A big landmine in SAFETEA-LU is the reexamination of drivers’ medical qualifications, especially the focus on some on the effects of over-the-counter medications. This is a dangerous area for motor carriers until the guidance is crystal clear on what is and isn’t acceptable, Porter says. “There’s no medication that’s labeled on the bottle: Drive heavy equipment while taking.”