Texas Insurance Defense and Litigation

States beginning to restrict truck traffic

USA Today recently published a story discussing how many states are banning big trucks from specific lanes of highways:

Florida has already taken action, banning big trucks from the far left lane of Interstate 4 on a 60-mile stretch between Tampa and Orlando. Stretches of I-75 and I-95 elsewhere in Florida have similar restrictions. Elsewhere:

•Georgia, where truck traffic is likely to grow by more than 50% over the next 20 years, is considering truck-only toll lanes on parts of I-75 northwest of Atlanta and on a 20-mile stretch of the I-285 beltway that surrounds the city.

•Missouri, Illinois, Indiana and Ohio are using a $5 million federal grant to study adding truck-only lanes on I-70 from Kansas City to Columbus, Ohio.

•California, Arizona, Texas and the Gulf Coast states will use a similar grant to study segregating truck and automobile traffic on stretches of I-10.

•Tennessee is eyeing truck-only lanes on I-40.

Texas truck accident lawsuit is one of largest verdicts in 2006

Lawyers USA has published a story about the “top ten jury verdicts of 2006”.  The number ten slot is occupied by a Texas lawsuit in which actual damages of $38.5 million were awarded.  It was an underride protection lawsuit in which the jury awarded $36 million to a 25 year-old woman who survived, and $2.5 million to the family of a woman who died.  Here’s a link to the story.

ABA Transportation Megaconference VIII

The ABA Transportation Megaconference is going to take place in New Orleans March 8-9.  It is one of the premier trucking defense seminars in the country.

Lynn Castagna from our firm will be attending.

Illegal aliens and recovery of future lost wages

Oklahoma Attorney Robert B. Coffee, Jr. presented a paper at the last mini-conference of the Trucking Industry Defense Association.  The paper explored the issue of illegal aliens recovering for future lost earnings in personal injury actions.  He makes the following points:

The question should be framed as follows:  "When the plaintiff is an illegal alien, why should the defendant have to pay for future wages that could only be earned in violation of federal law?"

The jurisdictions are split on the issue of whether an injured illegal alien can recover "lost United States wages".

The following courts held that the answer is no: the New Hampshire Supreme Court; a U.S. District Court in Kansas; the U.S. Middle District of Florida; and, the Second Department of New York Supreme Court’s Appellate Division.

The following courts held that the answer is yes:  the Fifth Circuit (in a case that pre-dated a seminal U.S. Supreme Court which ruled that undocumented workers could not recover damages on an award from the National Labor Relations Board); the U.S. District Court in the Southern District of New York (construing New York law); and, the First Department of the Appellate Division of the Supreme Court of New York (note the contrast with the other New York state court, above).

DOT to allow Mexican trucks access to U.S. highways

The Department of Transportation announced that it will allow Mexican trucks to deliver on U.S. highways.  They will be subject to “tough” inspection programs.  The story was reported on TTnews.com:

EL PASO, Texas — The United States will grant Mexican trucks access to U.S. highways under a pilot program, Transportation Secretary Mary Peters announced here today.

Peters said the program would be “a limited year-long demonstration program that will permit up to 100 Mexican trucking companies to make deliveries beyond the commercial zone” near the border.

Under the program, “an equal number of U.S. trucking companies will be able to cross the border and compete in the Mexican market place for the first time ever,” Peters said.

“In 1995, we let fear trump common sense along the nation’s southern border when we put the trucking provision of the North American Free Trade Agreement on hold,” the secretary said in a written statement.

“I am here today to right a 12 year-old wrong,” she added.

Carriers wishing to enter the United States from Mexico will be subjected to a “tough” inspection program, including examinations of both truck and drivers, Peters said.

Recent important newspaper articles severely criticize the trucking industry

Late in 2006, the New York Times and the Chicago Tribune wrote very long, detailed articles regarding problems in the trucking industry. The NYT article was entitled "As Trucking Rules are Eased, a Debate on Safety Intensifies". The Chicago Times piece was entitled "Bone-Weary Haulers Raise Stakes on Road". The titles pretty much say it all.

Here are links to interesting perspectives by a Plaintiffs' lawyer and by a safety advocate. Here's another related article by the safety advocate.

TIDA mini conference in Miami

TIDA (the Trucking Industry Defense Association) is hosting a “mini-conference” in Miami on February 7 and 8. There will be several talks and seminars, on the subjects of spoliation, the commercial driver’s standard of care, “preventable” and “non-preventable” findings, malingering plaintiffs, and reserving losses. Vince Lombardi will be the guest speaker.

Lynn Castagna of our firm will be at the seminar.

Stipulating to liability

Defendants don’t usually stipulate to liability, and it goes against our nature as defense counsel. But maybe we should consider it more often, especially when it’s likely we’ll only be able to tag a plaintiff with a small percentage of negligence. There is a big difference between a jury determining damages after hearing four days of incriminating evidence against the defendant, and merely hearing about a plaintiff’s damages without that evidence.

We just had a nasty trucking accident case down in Corpus Christi, Texas where the driver of our eighteen-wheeler decided to attempt a U-turn across four lanes of highway.

During rush hour.

In the fog.

Five cars plowed into the rig. Four of the plaintiffs settled, but we were ready to go to trial on the fifth. Opposing counsel was a very well-known, very capable trial attorney.

We had nothing on the plaintiff. She was an attractive young lady, about nineteen years old. She had no significant prior injuries or medical problems. After the accident she had significant neck injuries, had undergone a neck surgery, was looking at another neck surgery, and suffered a very noticeable scar on her neck. We might have been able to pin 5% contrib on her, on a good day. But the liability facts against us were very bad, and our driver made a bad witness, as drivers often do.

Interestingly - and luckily - the plaintiff‘s attorney had failed or forgotten to plead gross negligence and didn’t realize his mistake until pleading deadlines had passed. In Texas the case law is pretty clear that if gross negligence is not pleaded, and if the defendant stipulates to the negligence of the employee and to course and scope of employment, the plaintiff cannot proceed with allegations of independent acts of negligence against the defendant. This knocks out the plaintiff’s claims of negligent hiring, negligent training, negligent retention, and negligent entrustment - in other words, all of the really inflamatory evidence.

So we stipulated to liability and to course and scope of employment. It took the fire out the case. We filed motions in limine and strong supporting briefs to exclude all evidence of the defendant’s negligence. We filed motions to strike expert witnesses. We limited the case to what would be at most a half-day trial on damages.

The case settled for what we consider a bargain, considering the venue, the talent of the opposition, and the bad liability facts.