My September column in Attorney At Law magazine
Below is my latest column in Attorney At Law magazine. This one focuses on the many complex layers of the truck accident case:
On September 20, 2013, I’ll be speaking at the Michigan Association for Justice No Fault Institute Seminar. My topic is “Maximizing Truck Accident Cases.” It is a topic that’s important to me.
I’ve had the honor of serving as a past president of the American Association for Justice (AAJ) Truck Accident Litigation Group. I’ve lobbied legislators for changes to national truck safety rules, and I’ve spoken in about 25 states on truck accident topics (with visits to California and Louisiana still set for 2013).
In my experience, I’ve noticed an important difference between how truck accident cases are handled in many other states, compared to how they’re handled here in Michigan. In other states, there’s a very clear assumption that when truck cases settle, they will do so with a significant premium to car wreck cases. However, this expectation of a premium on settlement values seems largely absent in Michigan.
The explanation is not that all of the other states have punitive damages available to them, whereas Michigan largely does not. Rather, I believe it’s more a reflection of how lawyers here approach truck accident cases. Many Michigan lawyers handle these cases like car accident cases, but with bigger policy limits.
This mindset leaves money on the table. And more importantly, it shortchanges clients.
Truck accident cases are not like car accident cases. They are vastly different. But for a lawyer who only handles one or two truck cases every so often, it’s nearly impossible to immerse yourself in the hundreds of special rules and regulations that apply, as well as the unique industry practices that make these cases different from car wrecks.
To state the obvious, a truck is much bigger than a car. The handling of commercial trucks is vastly different from cars. Litigation in truck cases often involves an understanding of the mechanics and operation of a truck and all of its parts, including the brakes, tires, wheels, turning radius, and the visual conspicuity angles and available lines of sight for a truck driver. This means attorneys must understand how inadequate maintenance causes the tire blow and other mishaps, when mandatory safety and maintenance rules are ignored.
Drivers of commercial trucks are different. Truck drivers have special licenses because commercial motor vehicles do not drive like cars. Truckers must meet certain minimum physical standards that drivers of cars do not. As attorneys, we must know and be on the lookout for how issues like fatigue and sleep apnea may play a role in causing preventable crashes.
The experts are different. Often, but not always, attorneys work with experts who have specialized knowledge about trucking. As lawyers, we must know, or we must work with qualified experts who know, about the electronic data recorders (also called “black boxes”). We must be able to read or have experts interpret the log book (or “lie” books, as so many truckers I’ve deposed through the years call them). We must understand how the trucking industry hires, trains, retains and supervises drivers; the pre-trip inspections, and the qualifications, duties and role of the truck company’s safety manager.
To be effective, we as attorneys must be able to read and understand the insurance policies, know about MCS-90 endorsements, surety and shipper and load broker liability, and other specialized insurance issues that do not exist in car wreck cases. Understanding such insurance policies can reveal additional millions of dollars of otherwise hidden layers of insurance coverage in the catastrophic truck accident case for the families we represent. We must also know about alter-ego liability, and about how the industry is leasing trucks and truck drivers these days. I can say that often the insurance policy limits revealed in legal discovery is not all of the insurance that exists.
Discovery is different — or at least it should be. We as lawyers need to retrain ourselves to look for issues of disqualification of a professional truck driver who would otherwise be legally qualified to drive a car. Additionally, we need to constantly be on the lookout for the fatigued driver. This involves reviewing dispatch and routing schedules, log books, load times and procurements, bills and receipts, and hours of service.
Attorneys must understand that when a catastrophic injury or death case does sadly happen, we are often starting out very far behind the defense team. Almost all of the major motor carriers today have rapid response teams of lawyers, adjusters, investigators, photographers, EOBRD experts and accident reconstruction experts that can arrive at a very serious crash scenes within hours. When we get the truck case months or years later, the defense has often already destroyed evidence that can legally be destroyed, and has spent months creating their litigation defense plan.
I believe truck accident cases have a premium to them in other states because there are enough lawyers who understand the many complex issues in these cases. This is why they often settle for a premium in value in states other than Michigan.
It’s time we bring this settlement premium back to Michigan. In my next several columns, I will explore many of the issues I’ve outlined above in greater detail.