Texas Trucking 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.

DC Court strikes regulations increasing driving hours

A federal court sitting in Washington DC has struck the administration’s rules increasing the administration’s 2005 decision to increase the maximum driving hours of truck drivers.  The Court indicated the FMCSA had ignored the results of a study, which indicated a substantially higher risk of fatigue-related accidents in the extra hours of service allowed by the new rules.

The hours had been increased from 60 to 77 over a period of seven consecutive days, and from 70 to 88 over eight consecutive days.

For more, go to these links:

New York Times article
Transport Topics Online

DOT: Border plan to involve fewer that 1,000 Mexican trucks

The DOT has announced that the plan allowing Mexican trucks access to American highways will involve less than 1000 Mexican trucks.

American Trucking Association originally announced they supported the plan.  But now they are expressing concern that the Mexican trucks not be given preferential treatment and be held to the same safety standards and trucking regulations as American trucks.  James Hoffa, the Teamsters president, has announced the Teamster’s position that allowing Mexican trucks onto American highways is “playing Russian roulette with highway safety and national security”.

For more, go here.

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.

CNN trashes settlement practices of State Farm and Allstate regarding car accident claims

In early February 2007, CNN ran a story regarding the settlement strategies and practices of insurance companies regarding car accidents.  The story focused on the actions and behaviors of State Farm and Allstate.  Here are excerpts of the story:

• State Farm, Allstate employ consultant's strategy, CNN research finds
• Theme of strategy is "deny, delay, defend," former employee says
• Companies convince juries that claims are fraudulent
• Insurers, institute deny treating claimants unfairly

By Drew Griffin and Kathleen Johnston, CNN

ATLANTA, Georgia (CNN) -- If you are injured in a minor car crash, chances are good that you will be in the fight of your life to get the insurance company to pay all the medical costs you incur -- even if the accident was no fault of your own.

That's what CNN discovered in an 18-month investigation into minor-impact soft-tissue injury crashes around the country. Those are accidents in which there is little damage to the vehicle and the injuries to people are not easy to see by the naked eye or conventional medical tools like X-rays.

Since the mid-1990s, most of the major insurance companies -- led by the two largest, Allstate and State Farm -- have adopted a tough take-it-or-leave-it strategy when dealing with such cases.

The result has been billions in profits for insurance companies and little, if anything, for the public, according to University of Nevada insurance law professor Jeff Stempel.

"We can see that policyholders individually are getting hurt by being dragged through the court on fender-bender claims, and yet we don't see any collateral benefit in the form of reduced premiums even for the other policyholders," Stempel said.

"So I think now we can say to continue this kind of program is in my view institutionalized bad faith."

*****

If you have never heard of the strategy, it's because insurance companies don't want you to know that they are paying out less and less for minor crashes even while their profits soar and your premiums continue to rise.

But after a review of more than 6,000 company documents and court records, interviews with a dozen people nationwide, including former company insiders, and conversations with accident victims, the picture is clear: If you challenge the offer by some insurance companies you will be left with no option but to go to court, where you will be dragged through the wringer.

In an affidavit in a New Mexico case where Allstate is being sued, one of the company's former attorneys said the strategy is to make fighting the company "so expensive and so time-consuming that lawyers would start refusing to help clients."

Shannon Kmatz, a police officer and former Allstate claims agent, said company employees were encouraged to get rid of claims quickly and cheaply and even offered accident victims as little as $50, telling them to take it or leave it.

*****

For Allstate and State Farm, according to documents obtained by CNN, the strategy was developed in the mid-1990s with the assistance of consulting giant McKinsey & Co.

Looking for a way to boost profits, McKinsey focused on soft-tissue injuries incurred in minor crashes.

While the McKinsey documents -- numbered in the thousands -- are under seal in courts around the country, CNN saw several of them during a court hearing in Lexington, Kentucky.

Playing off Allstate's signature slogan, one document recommends the insurer put boxing gloves on its "good hands" for those who insist on going to court.

The strategy, according to former Allstate and State Farm employee Jim Mathis, relies on the three D's -- denying a claim, delaying settlement of the claim and defending against the claim in court.

*****

Robert Hartwig, president of the Insurance Information Institute, told CNN insurers do not have a strategy of blanket denial of claims. He also said strategies to limit expenditures on minor-impact crashes are needed to fight fraud.

Hartwig specifically singled out lawyers who he claims make a living on car accident victims, saying those lawyers are upset because "the gravy train is over."

More on Mexican trucks in the U.S.

Here’s an interesting story regarding the recent announcement that Mexican trucks will be allowed to operate in the United States.  It’s posted on WorldNetDaily:

It's official: Mexican trucks coming
100 companies will have unlimited access to U.S. roads
By Jerome R. Corsi
© 2007 WorldNetDaily.com

One hundred Mexican trucking companies will have unlimited access to U.S. roads to haul international cargo as part of a year-long pilot program, the Department of Transportation announced today

In return, 100 U.S. trucking companies will be allowed to operate in Mexico but at a later date.

Calling for congressional hearings, Teamsters General President Jimmy Hoffa compared the announcement to the "Dubai Ports debacle," charging President Bush is "playing a game of Russian roulette on America's highways."

*****

Todd Spencer, spokesman for the Owner-Operator Independent Drivers Association, told WND that "to reach a conclusion that the safety regime in Mexico is compatible in any way, shape, or form with what we have here in the U.S. is ignoring reality. Mexico has never had hours-in-service regulations or drug testing of drivers. We still can't verify the accuracy of somebody's Commercial Driver’s License in Mexico for safety or compliance."

Spencer stressed the decision is not just a border decision.

"Once Mexican trucks are in the United States on this pilot program, they can operate everywhere in the U.S.," Spencer told WND. "If some state highway policeman in Vermont or Iowa stops a Mexican commercial truck in their state, they have absolutely no idea of deciding if that vehicle is in compliance with federal safety requirements. Who's going to provide the training or the equipment for state police to verify the legality of a commercial truck from Mexico, in terms of its cargo, its haul, its log book, or even the driver? Local police aren't going to have a clue."

Hoffa cited Mexico's inability to satisfy the DOT Inspector General's requirements for safety that have been mandated to the Federal Motor Carrier Safety Administration, or FMCSA.

*****

The Teamsters Union posed to WND a series of "unanswered questions," including:

Will the drivers be checked against the terror watch list, or will our borders be open to anyone with a Mexican driver's license?

Will the drivers be required to carry a Mexican passport as U.S. citizens are required to present their passports when entering the country from Mexico?

Will all U.S. standards be applied to Mexican drivers, including the requirement that U.S. drivers undergo regular physicals and meet minimum age requirements?

Will Mexican truck drivers participating in the pilot program be required to undergo drug and alcohol testing in U.S. labs? Who will oversee the collection of random samples for drug and alcohol testing of the Mexican drivers while they are in the U.S.?

Will U.S. wage and hour laws be enforced for Mexican drivers during the pilot program? How will DOT enforce hours of service rules and prevent false log books and fatigued drivers from entering the U.S.?

How can DOT assure the U.S. public that all trucks will be inspected by U.S. officials in Mexico and at the U.S. border when fewer that 10 percent of all Mexican trucks entering the commercial zone are inspected today?

According to a DOT spokesman, the pilot program "is predicated on the notion that Mexican trucks operating in the U.S. under the pilot program will operate pursuant to every single requirement that pertains to U.S. trucks operating in the United States, including both safety and security requirements on both the state and federal level."

DOT has increased its inspection staff by some 270 inspectors to implement the program. Still, DOT plans to continue the on-site inspection activities in Mexico that were announced by DOT Secretary Mary Peters earlier this week in Monterrey, Mexico.

The DOT spokesman confirmed there is no limit to the number of trucks the 100 Mexican trucking companies can operate in the United States. There is no restriction on the roads within the United States that the Mexican trucks can travel once they are admitted in the pilot program at the border.

The Mexican trucks, however, will be limited to carrying international cargo, in that they will be prohibited from stopping at one point in the U.S. destined for another point within the country.

On their return home, Mexican trucks, however, will be allowed to pick up in U.S. cargo originating in the U.S. destined for delivery back to Mexico.

While in the U.S., the Mexican drivers will operate under U.S. rules and regulations, including those controlling hours of time allowed at the wheel without a break.

The DOT spokesman specified that under agreements with Mexico already in effect, Mexican and U.S. commercial driver's licenses will be consider equivalent during the pilot program.

Mexican trucks operating in the United States will be required to have U.S. insurance coverage for all liabilities, including traffic accidents.

"The intent is for the Mexican trucking operations in the U.S. to be indistinguishable from U.S. trucking operations," the DOT spokesperson affirmed, "except that the driver and the truck began their trip in Mexico."

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.

"How Business Trounced the Trial Lawyers"

BusinessWeek online recently posted a cover story about how juries have become for favorable for defendants. Their conclusion: due to concerted, organized efforts for liability tort reform on the part of the business community, Texas has been "flipped" and is now friendly to business efforts. The changes include limitations on punitive damages awards; a bar against lawsuits against manufacturers whose products are more than 15 years old; limits on "non-economic damages" awarded to plaintiffs in medical malpractice claims; and a Texas Supreme Court which is very sympathetic to the defendant:

According to Texas Watch, an Austin consumer advocacy group, of the 69 consumer cases accepted for appeal by the Texas Supreme Court during its 2005-06 term, it decided against the consumer in 57, or 83%, a trend Texas Watch says has been consistent for the past six years. "When you have a large verdict that you receive from a jury, you can't settle the case anymore because the defendants will walk in and say: We know we're going to win in the Supreme Court," says Frederick M. Baron, a Dallas attorney who has handled cases involving exposure to asbestos and industrial toxins.

More on the 68 mph speed limiters

TTNews.com, by Transportation Topics, has posted some interesting "Letters to the Editors" regarding the 68 mph proposal. Some of the comments are as follows:

There are too many under-trained and inexperienced drivers rushed into the driver’s seat in order to fill open trucks.

Better training and better pay would result in better retention, thus producing safer drivers.

Bob Meier
Communication Manager
Bennett Truck Transport
McDonough, Ga.

How about this: The nine companies that support “limiters” voluntarily set all of their company trucks at 68 mph. Then, they tell all of their owner-operators that they also have to set their trucks at 68 mph. This would save a lot of red tape and money over court costs. Then, after a set time, they could report to American Trucking Associations and all other concerned parties how things worked.

I believe that these companies want the government to set the law so they don’t lose drivers and owner-operators.

Also, how about if all the cars that are advertised at 200 mph have limiters on them as well?

Yeah . . . right.

Jerry Kissinger
Vice President
Independent Operator Inc.
Footville, Wis.

Personally, I disagree with having 68-mph limiters on trucks. While some of us already are restricted to 65 mph or 68 mph, this would make it more difficult for trucks to pass each other safely in states like Nevada and Utah, where legal speed limits are 70 mph and 75 mph in a good portion of their territory.

Trucks that cannot pass each other with sufficient speed take longer to pass and become safety hazards because of the speeds at which some cars travel on these roads.

Rear-end collisions because of inattentive motorists would seem to become more likely.

Also, the federal government is involved heavily enough in regulating trucks and the trucking industry, so why give it more leverage? I’m sure the lobbyists who think trucks are the very heart of evil on the highways would love to see this go into effect, though. Let’s not allow this to happen.

R.E. Tognazzini
Line Driver
Sparks, Nev.

Limiting speeds for heavy commercial traffic not only slows commerce, but also will in effect slow private autos. It will also increase the probability of highway congestion and will increase the differential of speed between heavy vehicles and lighter and quicker cars and pickup trucks. That differential in speed will almost certainly result in greater risks of “overtaking” type of accidents.

Is the slowing of heavy vehicles on highway systems capable of 75 mph and even 80 mph speeds worth the risk of these catastrophic rear-end and head-on crashes? I think not. The commercial vehicle operator is more often than not a very experienced driver who sees ahead much farther than the private-vehicle operator sees and anticipates problems before they propagate.

Of course, there are going to be catastrophic accidents involving heavy vehicles. However, slowing them down to 68 mph will only serve to increase problems, not decrease them.

Rick Doke
Owner-Operator
Heavy Dump Truck
FNA Trucking
Carson City, Nev.

They’re trying to make the road safer, but the 68-mph speed limit for trucks is really going to cause more accidents, because people in automobiles don’t wait for a truck to pass an exit where they want to get off. They pass the truck, realizing that they’re going too fast for their exit, cut it off and hit their brakes. And if there is an accident, the investigating officer wants to cite the truck driver.

This also doesn’t include the cost to the truck company for extra repairs because of not letting a diesel engine work as it is made to do.

Richard Mondl
Driver
Trans Service Logistic
Akron, Ohio

We’re just a small trucking company trying to survive in a very competitive world of trucking, so our question is: Who do these people think they are, telling other trucking companies how to operate their businesses? Who do they think they are, telling us at what speed we may run our equipment?

Just because they don’t hire drivers who are responsible for their actions when operating equipment, they think telling us how to operate our equipment will put everyone on a level playing field. Well, the field is not level when small companies (one to 25 trucks) try to compete against companies with 1,000-plus trucks that keep the cargo rates down so low it’s hard for us to survive.

How would you like it if a law was passed telling you that your car can run no faster than 55 miles per hour? They want to make the playing field equal by raising freight rates to $2 a mile for owner-operators.

Worry about your own business and not everyone else’s.

Stephen Bradley
Operations Manager
Overland Distribution Corp.
Mechanicsville, Va.

TIDA mini conference in Miami

TIDA 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.