MTU SAFETY AND CLAIMS
SEMINAR
May 4, 2011 · SEMI-CONFIDENTIAL MATERIALS
TABLE OF CONTENTS
I.
II.
III.
IV.
V.
SKEWED VIEW OF TRUCKERS
INVESTIGATION
COMPLIANCE*SAFETY*ACCOUNTABILITY
“PREVENTABLE” vs. “UNPREVENTABLE”
DISCOVERY
I.
Social Media
II. Preparing Witnesses (driver, safety director)
III. Preparing Witnesses (expert witness)
VI. ALTERNATIVE DISPUTE RESOLUTION
VII. TRIAL
SKEWED VIEW OF TRUCKERS
What the plaintiff attorney thinks are the
common causes of truck accidents
Lack of Training on the part of the truck driver;
Overloaded Trucks;
Oversized Trucks;
Poorly maintained brakes on the trucks;
Driving in conditions of poor visibility due to smoke, fog, snow or rain;
Truck driver inexperience;
Fatigued, sleepy or tired driver driving too long and too many hours without rest;
Speeding over the limit or driving at speeds or beyond the road and weather conditions;
Running off the road;
Failure to yield the right of way;
Aggressive driving behavior;
Truck drivers under the influence of drugs and alcohol while driving;
Driving the truck in bad weather conditions;
Dangerous or reckless truck driver with a long record of wrecks and accidents;
Unsafe safety systems, reflectors, lights and other warning devices; and
Failure of truck to have installed an underide protection underguard.
What the plaintiff attorney thinks are the
common causes of truck accidents
Take a look at
http://www.indianatruckaccidentlawyers
.com/faqs.cfm#q1 or
http://www.apitlamerica.com/ for some
other interesting thoughts on trucking
accidents by the plaintiffs’ bar.
Determining preventability
According to USDOT
No two accidents or carriers are exactly alike and the
FMCSA recognizes that not all accidents are
preventable. Some types of accidents, however, can
be prevented by drivers, while others require
changes in motor carrier practices and policies or
equipment. The new FMCSA method for determining
preventability is based on examination of the facts in
accident records. http://www.fmcsa.dot.gov/safetysecurity/eta/ETA%20Final%20508c.pdf, page 126.
Determining preventability
According to USDOT
For accidents that occur after April 29, 2003, motor carriers
must maintain an accident register for three years after the date
of each accident. For accidents that occurred on or prior to April
29, 2003, motor carriers must maintain an accident register for
a period of one year after the date of each accident.
Information placed in the accident register must contain at least
the following:(1) A list of accidents as defined at §390.5 of this
chapter containing for each accident:(i) Date of accident.(ii) City
or town, or most near, where the accident occurred and the
State where the accident occurred.(iii) Driver Name.(iv) Number
of injuries.(v) Number of fatalities.(vi) Whether hazardous
materials, other than fuel spilled from the fuel tanks of motor
vehicle involved in the accident, were released. §390.15(b).
Determining preventability
According to USDOT
Preventable accident on the part of a motor carrier means an
accident (1) that involved a commercial motor vehicle, and (2)
that could have been averted but for an act, or failure to act, by
the motor carrier or the driver. §385.3
§385.7(f) states that factors to be considered in determining a
safety rating include, "frequency of accidents; hazardous
materials incidents; accident rate per million miles; indicators of
preventable accidents; and whether such accidents, hazardous
materials incidents, and preventable accident indicators have
increased or declined over time." Unfortunately they offer no
definition of "preventable accident indicators.“
Neither §390.15(b) nor §385.7(f) makes mention of
recording of accidents as preventable or non-preventable.
Determining preventability
According to USDOT
Notice that §390.15(b) makes no mention of recording of accidents
as preventable or non-preventable.
Preventable accident on the part of a motor carrier means an accident
(1) that involved a commercial motor vehicle, and (2) that could have
been averted but for an act, or failure to act, by the motor carrier or
the driver. §385.3
Part 385.7(f) states that factors to be considered in determining a
safety rating include, "frequency of accidents; hazardous materials
incidents; accident rate per million miles; indicators of preventable
accidents; and whether such accidents, hazardous materials incidents,
and preventable accident indicators have increased or declined over
time." Unfortunately they offer no definition of "preventable accident
indicators."
Interestingly enough, Part 385.7(f) was changed in July of 2007 and specifically
removed "preventable accident rate per million miles" from the factors to be
considered in determining a safety rating under that part. Weird right?
Determining preventability
According to USDOT
Appendix A to §385 Explanation of Safety Audit
Evaluation Criteria states, "Preventability will be determined
according to the following standard: if a driver, who exercises
normal judgment and foresight, could have foreseen the
possibility of the accident that in fact occurred, and avoided it
by taking steps within his/her control which would not have
risked causing another kind of mishap, the accident was
preventable."
This a scary standard for litigators. If the carrier has already
identified the accident as “preventable”, which is the default
designation under FMCSR, it may have already tied my hands
on liability.
However, all may not be lost.
Admissibility of Preventable Designation
There are several arguments against the discoverability, and
ultimately the admissibility, of a “preventable” designation.
Different jurisdictions have differing views of the law.
• Subsequent remedial measure—See Harper v. Griggs, 2006 U.S.Dist. LEXIS
64691 (W.D.Ky., 2006);
• Protected from discovery by 49 U.S.C. § 504(f) because they were
required by the FMCSA—See Tyson v. Old Dominion Freight Line, Inc., 270
Ga. App. 897, 608 S.E.2d 266 (Ga.Ct. App., 2004);
• Prepared in anticipation of litigation, which necessarily requires that such a
designation is not prepared in the normal course of business—See Ward v.
Rickrode, 849 A.2d 619; 2004 Pa. Super. LEXIS 113(2004);
• Constitutes mental impressions of the defendant regarding the liability—See
your local state rules regarding privileged information;
• Critical self-analysis doctrine—where applicable and recognized.