Transportation attorney warns trucking executives about legal risks

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“There’s not a lot of good things going on in our legal system,” transportation attorney Clay Porter told attendees of CCJ‘s Spring Symposium in Tuscaloosa, Ala., on Wednesday, June 6. “Trucking companies should stop hauling freight and spend more time fighting lawsuits – you’d be a lot more profitable.”

During his presentation, “Emerging Risks in Trucking Management,” Porter – of the Atlanta-based law firm Dennis, Corry, Porter & Smith – warned Symposium attendees to be keenly aware of the jurisdiction where their case is being tried.

“There are places in which the rules change,” Porter said. “Many states have no cap on punitive damages,” he said, describing such a situation for trucking companies facing a lawsuit as “extortion by law.”

Various trends have emerged as the most common methods used by plaintiffs’ attorneys in their bids to raise punitive damages, Porter said:

  • “Log speeding.” Bad logs can result in incorrect times, where strict mathematical calculations of miles traveled during a particular period might result in an incorrect conclusion of overly excessive speed. Also, terms such as “high-value extremely time-sensitive load” could lead a jury to think speeding was validated by the company.
    Carriers “permit” violations of the hours-of-service regulations if they fail to have management systems in place that effectively prevent such violations. “There is an actual accounting cost to some of these safety issues,” Porter said. “The alternative is to start moving away from these problems.” Also, plaintiffs’ lawyers more often are going after the “good” companies – those with more money and insurance.
  • Speed management. Companies should have systems in place to control speeding. Statistics used by plaintiffs’ attorneys in this area can be misleading: An American Transportation Research Institute summary of “crash likelihood” shows reckless driving at a whopping 325 percent, but Porter said that number, while eye-opening to jurors, doesn’t exactly explain how it relates to crash likelihood.
  • Cell phone liability. Company records show driver usage and if they were on the phone before and during an accident.
  • Broker liability. Most often, brokers are being nailed for negligent entrustment, aiding and abetting, and/or negligent hiring of the motor carrier. A catastrophic accident resulting in quadriplegia, brain damage or other long-term care could result in a huge claim.
  • Spoliation. Companies aren’t keeping supporting documents used to verify a driver’s record of duty. These include downloads from the truck’s electronic control module, driver messages, satellite positioning, taped phone records, pay records, toll receipts and fuel tax records.
  • Shipper liability. Porter said he’s “glad to see it.”
  • Annual driver reviews. These, Porter said, are “generally deficient in the motor carrier industry.”
  • Driver medication. “It’s an unsolvable problem for you,” Porter said. “Don’t ignore it.” Drivers are supposed to tell companies about medicinal use, and “you have the right to ask them about it – carriers are liable for finding out,” he said. “None are labeled ‘OK to operate heavy equipment.’ ”
  • Company officer liability. Motor carrier officers – from top brass to driver managers – may not engage in a pattern of avoiding compliance with regulations on commercial motor vehicle safety, and they may not conceal such violations.