You Can’t Judge A Book By It’s Cover

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See that playhouse right there?  Seems simple right. Playhouse that kids play on.

But pay close attention…are you looking?  There’s a set of monkey bars on your left side. Big deal?  Yeah, I agree.  Just a set of monkey bars that any kid 5 and older can cross.

However, it’s not so easy all the time.  See, I have a seven and six year old boys.  Check ’em out.  They’re monkeys (and yeah, I incredibly out kicked my coverage with my wife!!!)…

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Both seem normal right?

My six year old loves to show me his “tricks” that he can do crossing the monkey bars.  But my seven year old literally can’t hold himself up to even hold onto the monkey bars.

That’s because he has a disease called Duchenne Muscular Dystrophy.  Most people see him at this age and never are the wiser.  Buts it’s a deadly disease.  A disease that will literally kill him in his early twenties.  Tough stuff huh?

Now…what does that have to do with trucking you ask?  Well, a lot in a way.  If you want to know more about my son or DMD, call me and I would love to tell you about it.

But for now, this is about trucking.  And the analogy is simple.  Much like my son’s disease, looks can be deceiving….people don’t like big trucks.  Big trucks take up the road and get in our way.  We get to our destination slower because trucks get in our way.  Damn a truck!!!

If you can’t tell, of course I’m being facetious.  We are not inhibited by trucks.  In fact, what trucks provide our lives, it empower us.

Don’t take your trucks and this industry for granted.  Like my son, it’s too innocent and to crucial to be judged by it’s cover. Hug your local trucker today.

Trucking Industry Top 10 List

Whooooooo!  One month has passed since I posted.  I promised myself this year I wouldn’t go more than two weeks without posting something.  Epic fail three months in.

But I have a good excuse (okay, maybe not good, but it’s an excuse and I’m using it).  In addition to my regular work load and trying to be a family man, I have been out of town for two weeks straight at various trucking conferences.  First I attended the Great West Casualty Leadership Symposium in Knoxville.  I’m thankful to call them a client, and more importantly friends.  Great conference, and if you ever get a chance to attend, I recommend it.

After that, I went to New Orleans to the ABA Trucking MegaConference.  Let’s just say that with me attending, the best and brightest minds in the trucking industry and trucking legal world united!

Having attended that the ABA Conference for about the last 10 years, one thing that is always presented, and which is always a crowd pleaser and well put together, is a trucking industry top ten list, particularly top ten where trucking and the legal world cross paths.  So I thought for this post, I would share what an all-star panel (Andrew Stephenson, Christy Comstock, Michael Langford and Nigel Green) shared last week.

So without further ado, here are the Top Ten issues (as we lawyers see them) facing the trucking industry right now:

 1. ELD Mandate

ELD’s will be required by 12/18/17.  I’m no rocket surgeon, but that’s soon!  Carriers with ELD’s are 11.7% less likely to be involved in a crash if an ELD program is mplemented.  Small carriers are going to have trouble with ELD implementation if they haven’t already started because of the steep learning curve.  Finally, a selling point…drivers are learning that ELDs actually maximize their hours and therefore their pay.

2. Hours of Service

Always an issue and will never go away.  But the recent DOT study finding there was no appreciable benefit from the 34 hour restart containing two 1 a.m. to 5 a.m. periods seems to have nipped this in the bud for now.  So business as usual under the prior HOS regs.

3. JB Hunt Amicus Brief

This one was interesting and something I had not heard about.  So track with me.  It’s out of Indiana and a case where a JB Hunt driver loses control on icy interstate, jackknifes into median, but no other vehicles involved.  The cops come and attend to the accident.  The JBH driver is transported from the scene via ambulance, but before he leaves, no triangles/flares are put out and the flashers are not activated. In fact, the police that responded to the accident determine the tractor-trailer in the median is not a safety hazard and then the police leave the scene to tend to another accident.

Hour later, another car comes along and spins out of control on the interstate and into the trailer.  A lawsuit is filed and litigation ensues.  The case ends up being tried three times, two times with a mistrial.

But here’s where it gets sticky…on cross examination, a JBH safety rep is asked whether a motor carrier should monitor weather conditions, notify drivers of bad weather conditions, and shut down operations when necessary. Unfortunately, as a good safety manager, he agreed. However, the FMCSA hazard conditions regulation interpretation speaks differently and leaves the decision to a driver to determine weather conditions based on traction and visibility. Because of the testimony, the Court allowed a direct negligence claim against JBH.  The jury came back and assessed 40% to the driver that hit the tractor, 30% to JBH Driver, and 30% to JBH.

The problem with this case is that it allowed a direct claim against JBH when vicarious liability was admitted (which a lot of states don’t allow). Likewise, it allowed a direct claim that the carrier has to monitor weather, contrary to FMCSA 392.14.  Also it allowed admissibility of preventability of the accident (see Number 7, below).

4. Entry Level Driver Training

Here’s the deal…Anyone who is getting a new Class A or B license, or who is upgrading, as well as anyone getting hazmat, passenger or school bus endorsement, are required to undergo the new driver training.  Applicants are subject to a training program administered by registered training providers (Training Providers Registry) prior to taking the state test.  There will be a classroom and behind-the-wheel component from a defined curriculum; No minimum number of hours.  Once the training is completed and the test taken, FMCSA sends that to the state to let them know the driver will be seeking the license and taking the state test.

5. Driver Health

Sleep apnea is being discussed again and FMCSA has issued recommendations.  They are not rules, but the recommendations are pretty stringent.  And the testing/treatment for sleep apnea is expensive.  It also can get a lot of drivers: Over 42, male, and you snore, you may have SA.  Body Mass Index is also included: Over 40 BMI, get tested. Over 35, and the above things, get tested.  It’s gonna get a lot of our drivers!

6. Dakter v. Cavallino

This is a Wisconsin case.  It’s one of kind now and not the law of the land.  But pay attention to this.  Essentially, it allowed a jury instruction that said truck drivers are professionals and have a heightened duty when operating their trucks, more so than the normal motoring public.  We don’t want this.

7. Admissibility of Preventability Determinations

Preventability decisions…Safety departments love them, Claims hate them.  Know this…A PREVENTABILITY DETERMINATION IS NOT REQUIRED UNDER THE REGS.  Preventability comes from three different definitions (FMCSA, NTSA and ATA).  With preventability decisions, there is no regard to what adverse drivers may have done or contributed to the accident.  Practice pointer…Rename the reports and call them Remediation Reports and focus on remediation (Counseling/Re-Trainin, Discipline, Termination).

Also, talk to your legislators.  Seek legislative change, both state and federal statute.  Ask them to use simple language to prevent these reports from being admissible in Court.

8. Graves Amendment

You probably know this one.  Lessors can’t be liable for the lessee’s negligence if they have an accident.  Stratton v. Wallace put a ding in this Amendment by allowing a lessor to be found negligent (call me if you want specifics as to why).  However, Eisenberg v. Cape Bestway extended Graves to interpool defendants.  So that’s good.

9. DOT Speed Limiter

Not coming anytime soon.  Boom!

10.  ??????????

Truthfully…I didn’t write this one down.  Let’s assume it wasn’t that big of deal!!!!!

Hope you enjoy.  And if you have any questions or want to know more…..holla!

There’s A Snake On The Plane And You’re Invited!!!

I’m all about shock value.  So if I get your attention with my blog titles, I’ve won!  Now please read on because it’s worth it…

Consider this a PSA post for now, opposed to a how-to practical advice post that I usually strive for.

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I see more and more trucking claims and cases that you would think are “slam dunk defense wins, they’ll never file suit, we aren’t at fault” accidents.  Take for example that YOUR truck gets rear-ended by someone.  You’re good right? Yet the plaintiffs and their attorneys sue you.  Trust me, it happens often.  I’m actually in the process of putting together a presentation on this topic for speaking at a trucking conference at a later date.  Let me know if you’re interested in hearing more about it and I’m happy to share the presentation PowerPoint when it’s done.

When this happens, I feel the anger of my clients.  They take it out on me (everyone loves to pick on the lawyers right).  And I can be the middle-man punching bag.  That’s okay and what I get paid for.  But you wonder…why are they filing this suit?  Why in the hell would anyone ever pursue a claim like this??

Well, because they can.  And when they do, they dive into discovery about your business and your safety program and get you to trip yourself up.  They nicely walk you into the very corner they throat-pin you in.  Now all of the sudden your slam dunk case is not so pristine anymore.  They’ve exposed your warts.

See, the plaintiffs’ bar actually teaches this stuff.  They spend all day in a classroom at seminars and teach plaintiff’s attorneys how to make chicken salad out of chicken $h!t.  I looked for a picture I’ve seen before to prove it to you, but couldn’t find.  So just believe me when I tell you that there is a seminar that is taught on how to sue YOU when the plaintiff rear-ends YOU.  They make the person rear-ending you your fault.  I saw it on the internet, so you know it’s true!

It’s actually called the Reptile Theory and it takes advantage of the psychological fears of jurors.  In a nutshell, it tells the jury “you need to send a message to this company because this accident could just as easily be you or your family!”

Well, the defense bar is striking back!  I am a member of the Defense Research Institute’s Trucking Law Committee and I had the pleasure of speaking at our seminar last spring.  Well, this spring (details below), we are putting on one of the most practical, informative seminars that I have ever seen in the trucking defense arena.  And I’m not saying that because I’m a member.  Hell, I’m not even at it!  But I will be there.  For any trucking lawyer, trucking company personnel who deals with claims, or trucking insurer, this is an absolute must attend.  I’m staking my reputation on that.

DRI Trucking Law Committee is presenting an advanced workshop for trial lawyers, senior claims examiners, and industry professionals, dedicated entirely to defending against plaintiffs’ use of the Reptile Theory in trucking cases. The one day program will engage best practices and practical techniques for conquering reptile cases. It’s not boring stuff.  It will be geared towards providing useful “how-to” strategies to consider in your answer, discovery, 30(b)(6) depositions, pretrial motions in limine, voir dire, examining witnesses, and closing arguments.  Bottom line…this is gonna be HUUUUUUUGE!  Here is the brochure and the link to sign up is below.

The program faculty is headed by Bill Kanasky, Jr., PhD., from Courtroom Sciences, Inc. of Irving, Texas, who is a well-known jury consultant known for combatting plaintiff’s reptile theory strategies. 

Other faculty members include some of the brightest and most successful trucking defense attorneys in the United States (I know these people and call them friends;  And yet they still left me off the speaking list!!!!!):

1. Carlos Rincon, Rincon Law Group, PC, El Paso Texas
2. Matthew G. Moffett, Gray, Rust, St. Amand, Moffett & Brieske LLP, Atlanta, Georgia
3. Kurt M. Rozelsky, Smith Moore Leatherwood LLP, Greeneville, South Carolina
4. Wendy L. Wilcox, Skane Wilcox LLP, Los Angeles, California
5. Heidi E. Ruckman, Heyl, Royster, Voelker & Allen PC, Rockford, Illinois
6. John (Jack) J. Laffey, Laffey, Leitner & Goode, LLC, Milwaukee, Wisconsin
7. MaryJane Dobbs, Bressler, Amery & Ross PC, Florham Park, New Jersey
8. Matthew S. Hefflefinger, Heyl, Royster, Voelker & Allen PC, Peoria, Illinois
9. Bradford G. Hughes, Selman Breitman LLP, Los Angeles, California
10. Stephen G. Pesarchick, Sugarman Law Firm LLP, Syracuse, New York

It’s going to be small in attendance and intimate.  You won’t be one out of 500.  You will learn.  You will be engaged and participate.  You will leave empowered to defend your company.  And you need to sign up.  Do it here.

Hell, I almost forgot to mention…if you are with a trucking company or a trucking insurer/claims, you get to attend for free.  Silly me!  I’ll see you in Chicago on May 24 and will buy you a drink when while we’re there.

 

Importance of Social Media In The Trucking Industry

Not really related to this post, although there are a couple of funny references to technology, but I thought this clip would get you in the mood for the tax season upon us:

This post is about the importance of the transportation industry to use social media. BUT BEFORE YOU TUNE OUT, HEAR ME OUT…I promise you there is value in reading this post and considering the use of social media going forward, regardless of who you are or what you do in this industry. In fact, as you will see at the end, I believe it can even have a positive impact on more favorable jury verdicts towards our industry.

My first post on this blog was on June 19, 2013, called Why I Love The Trucking Industry And You Should Too. Since that time, as many of you who actually keep up with this rambling redneck know, this has been my rally cry for this industry.  I started the blog for a couple of reasons, one of which was marketing myself to transportation companies who I believe I could benefit. But another primary reason was to share what I had to say about this industry, hopefully making a difference on the issues transportation faces, and the way the transportation industry is defended in legal matters.

I wish I could say that I’m the sharpest knife in the drawer, but I’m not. However, I believe I have something to offer and this blog, along with the feedback I’ve received from everyone who reads it, has made me smarter and helped me hone myself as a transportation lawyer.

I didn’t know anything about blogging, or reaching out on social media. But I started watching others do it and I felt compelled to try something out of my comfort zone. Well, several years later, its paid off.  I even tricked Transport Topics into publishing me this week (suckers!!!!!!)

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Social Media for Recruiting

  • More people are connected on social media than ever before. So why not utilize this enormous pool to recruit. Lord knows we hear enough about the driver shortage. You wanna pull new drivers…meet them where they are!
  • As HNI pointed out on their blog recently, social media is a fantastic way to recruit new drivers. But when doing so, go all in. Plan out your strategy, assign someone dedicated to the social media posting to ensure consistency, and above all else, do not neglect your company brand and the values that are important to your company. Prospective hires want to hear employee stories, see pictures, etc., of what life would be like with your company.
  • As HNI points out, your brand is the backbone of social recruiting.

Social Media for Information and Learning

I’m a fan of LinkedIn. I joined LinkedIn about five years ago when I got back into defense work and was trying to re-connect with old clients, as well as find new ones. And I did. But what I also found was groups on LinkedIn like DRI Trucking Law, Motor Carrier Safety Group, Transportation/Trucking Insurance Forum, Transportation Risk Group, Transportation Litigators, Transportation Law Group, and Association of Transportation Law Professionals. I get emails from these groups throughout the week, conveniently condensed, about the latest news in our industry. Being able to stay on top of what is happening now within this industry because of like-minded people sharing the news and what they know has made me a better trucking lawyer. And it can make you a better company as well. Knowledge is power!

I use to feel like I never had anything particularly special to offer in the way of expertise to the trucking industry. I figured that “someone else” had it covered, so I would just sit back and read what the “experts” have to say. What I figured out once I made the choice to dive into social media and play a part in it is that I could be an “expert” on this stuff too if I was willing to dedicate the time to offering quality content. So I guess I’ll toot my own horn for a minute and say that I think I have carved out my niche to offer my expertise to the defense of the trucking industry.

Social media is not for everyone. I get that. But even a redneck like me from Hazlehurst, Mississippi, can say with some certainty that this whole internet thing is here to stay. So if you can’t beat ‘em, join ‘em.

Finally, while the added benefit of financial gain should be enough to give it a try, it also helps from the liability perspective when accidents happen. Juries want to sympathize with companies, and actively participating in social media helps to humanize trucking companies to the general public, telling them what we do and who we are. Isn’t that what our new Trucking Moves America branding is all about?

So take a chance.  You be the one to portray what your company and your industry are really about.  Don’t let other social media trolls be the ones to do it.

Smile! You’re On Candid Camera.

I use to love this show!  And it was quite popular.  In fact, although in different forms today, people still love hidden camera shows.  I’m still nervous about getting caught one day on What Would You Do? with John Quinones.  Damn you John Quinones!!!! screen-shot-2014-05-22-at-5-04-40-pm

And I think there is a reason people like hidden camera shows and events…people like video.  They like to see what happened with their own eyes.  What happens in a video that someone can see with their own eyes is believable and extinguishes the blur of just having someone describe to them what happened with words.  The camera never lies, right?

I’ve written about this before.  At least I think I have.  But a recent article and recent experience lends me to believe it is worth revisiting.

On January 17, Transport Topics ran an article entitled “Driver Cameras Keeping Some Trucking Companies Out of Court“.  It’s a good read, and a lot of truth.  Some of the excerpts worth mentioning are:

  • “Ten years ago, if an 18-wheeler was involved in an accident, the trucking company could end up paying, even if the truck driver was not at fault.”
  • “Cameras pointing forward and at the driver record what occurs in such incidents and can clear the trucker if he or she was not to blame.”
  • “I was reluctant to be in a truck with cameras,”…“but I have seen how beneficial they are.”
  • One example was “in a recent case, a car accelerated past a…truck then spun out of control. The truck could not avoid hitting the car. A case was filed against the company, but after [the company} submitted the videos, the case was dropped”.  “We might have ended up paying [otherwise].”

I’ve received four claims/cases since Thanksgiving (one that even called on Thanksgiving because trucking never stops ya know!).  Three of those four happened to have onboard video recording.  All four of the claims are very defensible and I don’t believe my driver or company are in the wrong whatsoever.  Having said that, if I’m being honest, the most defensible one will be the hardest dispute.  And you guessed it; its the one without the camera.

Now that’s certainly not to say that a plaintiff’s attorneys won’t throw spaghetti at the wall and see what sticks.  We’re always going to have to deal with that in this industry.

But people like video.  And video never lies!

Use Your Triangles And Solve For The Cosine of X

Whoever can solve this wins at life…

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Don’t worry.  If you couldn’t do it, you don’t lose at life.  No one has every died on this blog, at least that I’m aware of.  Although I am a little concerned about you if you couldn’t solve it given that the answers are listed in red.

I was on the way to the deer camp the other day with my boys.  As we got off the exit ramp of the interstate, it swings back to the right as a small curve.  I wasn’t hauling the mail or anything, but I did get my right tires on the fog line a little as I’m exiting.  Low and behold, I curve around a little more and there is a tractor-trailer parked on the shoulder of the exit ramp.  I avoided him just fine, but it got me to thinking…he didn’t have his triangles out behind him, which I would have seen well before I saw him if he had.

I see this a lot.  In fact, as an attorney for the trucking industry, I see it way more than I care to.  The bottom line is that it is way too easy a thing to do to avoid a lot of heartache later on.

As many of my readers already know, the FMCSR’s require triangles when a truck parks on the side of the road.  Section 392.22 provides:

(b) Placement of warning devices –

(1) General rule…whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place [triangles] in the following manner:

(i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;

(ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and

(iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.

Pretty easy huh?  But I rarely see it done.

I actually had a case a year or so ago that I defended.  Now granted, the triangles would have made no difference because the plaintiff came along traveling 78 on a rural 45mph road, four bald tires, one headlight, a crack rock in his pants and cocaine in his system.  Sounds like an outlaw country song right?

But the problem was that when the plaintiff lost control of his vehicle, through no fault of his own, and came careening into our parked tractor on the side of the road, our triangles weren’t out.  And they made it a huge distracting issue the whole time.

More recently, there was a trucking case that went to trial in Mississippi involving this issue. The truck driver parked his tractor-trailer that night on an entrance ramp to the interstate and commenced to sleep for about eight hours. At 4:22 in the morning, the Plaintiff was passing and did not appreciate the tractor was parked on the side of the road. Plaintiff struck the truck as he never saw the truck before impact. Plaintiff blamed the trucker and his company for parking on the entrance ramp in a traveled portion of the highway. He was also critical of the driver for not using emergency flashers. The trucking defense argued that at all times, his truck was not on the traveled portion of the highway.  But he also noted that the truck’s running lights were on and conspicuity tape was used. Given that that the truck remained parked without incident for some eight hours, the defense argued the accident was solely a function of Plaintiff’s speed and failure to keep a proper look-out.  Despite the defenses, the trucking company was assessed 80% fault.

I know its a pain to do. And your drivers are likely to roll their eyes when you preach it to them.  But in an age where plaintiff’s attorneys love to latch on to regulatory violations, even when they have nothing to do with the price of tea in China, they inflame the jury with these “outrageous careless acts of the driver and his company”.

So for the answer to the above math problem…the Cosine of X = Put your triangles out.

Puke And Rally! CSA And SFD

What a great movie!  And what a great analogy of what FMCSA seems to be attempting to do with regurgitating up CSA data in the form of the new proposed Safety Fitness Determination.

For those that haven’t heard, FMCSA has proposed a new rule to replace the existing SafeStat system that is currently used to rate carriers (FMCSA Issues Proposed Safety Fitness Determination Rule).  The existing rule, which primarily relies on on-site investigations of carriers and some roadside data, has a three-tiered rating of Satisfactory, Conditional and Unsatisfactory.  Because the system relies on on-site Compliance Reviews, and limited resources of FMCSA, it is difficult to keep up in rating carriers.  And FMCSA has come under fire lately for some carriers who should have been put out of service that caused accidents.

So in their infinite wisdom, FMCSA has decided to propose a new rule that would simply rate carriers as Fit or Unfit and do away with on-site reviews.  Sounds easy enough.  The problem is the new system proposes to use raw data accumulated by the CSA system, a system we all know is flawed to say the least and doesn’t necessarily correlate with an increase in crashes.  Keeping it at its simplest, a carrier could be rated Unfit by failing two or more BASIC scores (being in the worst 1% of carriers for Driver Fitness, Vehicle Maintenance and HazMat Compliance).  But in order to be rated to begin with, a carrier has to have enough roadside data.  FMCSA touts that this new system will allow them to assess and rate more carriers (upwards of 75,000 a month) than they do now (15,000 a year).

Here is where it gets a little dicey…Vigillo, a company that monitors CSA scores for carriers, looked at this and found some interesting issues (Doing the math: CSA doomed, fitness proposal useless).  Under FMCSA’s proposed rule, Vigillo found that only 51,000 carriers are eligible to be rated, compared to 98,000 trucking companies with CSA scores, from a total population of 1.6 million in DOT’s April 2016 database.

Of those 51,000 eligible carriers that could be rated under the new system…only 67 of them would be declared Unfit!  Do the math…51,000 carriers eligible to be rated (because they have enough data), 67 of which are unfit = 1,550,000 carries unrated.

I attended a great webinar on Safety Ratings last week that was put on by Frederic Marcinak with Smith Moore and Leatherwood.  Terrific job!  Frederic pointed out some pretty basic pros and cons to the new system:

  • Pros:  Elimination of Condition Ratings; Not compared to peer carriers as in SMS; Accident evaluated based on preventability
  • Cons: Continued reliance on CSA scores

Vigillo concluded that while the proposed system might seem fine, without CSA or a meaningful safety rating (remember, 1.5 million don’t have enough data to be rated), anyone interested in evaluating a carrier (shipper, broker, insurance, etc.) has to look to the raw data in CSA, data which we know is flawed, comparing one carrier to another.

And this, Vigillo concludes, “is children playing with dynamite. If you don’t understand the math behind the measures, they are completely incomparable.”

MY FEAR:

I feel like the above speaks for itself.  But here is what is not said that concerns me…even less learned than shippers, carriers, brokers, trucking insurance, etc., on this stuff are jurors and judges.  Plaintiff’s attorneys have begun an all out assault on trucking.  And they use this very data to tell a story that trucking companies are not safe.  They instill fear in jurors to think “well that could have been me or my family member”.  And when jurors are scared of a company that is “unsafe”, they hit us hard.  Really hard.  We are the next big pockets and we are just beginning to scratch the surface, I think, of where plaintiffs go from here to attack us.

We have to know this, understand this, and be prepared to defend it.  I’ll steal the words from Vigillo’s CEO to conclude this post: “This is probably the most important thing that I’ll leave you with. If you don’t understand how to talk about the BASIC measures, they’re going to use them against you.”