Growing up before cellphones, the worst display of distracted driving I had ever witnessed was in the back seat of a Ford Pinto at the age of 15 with two childhood friends, both cousins who were arguing over a highly contested golf game where money was at stake.
After giving the other a mulligan on the first hole after losing a ball, only to lose by one stroke, the driver later refused to pay. Not having a dog in the fight, I sat quietly in the backseat only to watch it escalate into a full-fledge fistfight inside the cab of that Ford Pinto, as I scrambled for my seatbelt. We were weaving from side to side down a two-lane highway at 45 MPH. Luckily, we made it to a church parking lot where the argument was concluded.
Keven Moore works in risk management services. He has a bachelor’s degree from the University of Kentucky, a master’s from Eastern Kentucky University and 25-plus years of experience in the safety and insurance profession. He is also an expert witness. He lives in Lexington with his family and works out of both Lexington and Northern Kentucky. Keven can be reached at kmoore@higusa.comFor any business today — trucking company, public entity, or not-for-profit organization with a commercial fleet — the potential for disaster exists. Cellphones have only made the situation worse. A crash involving one of your drivers being distracted on the phone could mean an injured employee, a damaged vehicle, or even a bankrupting lawsuit that can exceed your limits of liability on your auto policy.
No business that provides company vehicles is free from this threat, and in today’s litigious society without the proper written fleet policies, safety practices and insurance coverage; this could spell disaster to your balance sheet.
Trucking companies are bearing the brunt of these increasing trends in the courtrooms and there are millions, even billions, of reasons to take a closer look at what is happening in courtrooms across America, as nuclear verdicts are occurring with increased frequency.
A nuclear verdict is defined as an exceptionally high jury award that surpasses what should be a reasonable or rational amount. Some define a nuclear verdict award as being any penalty that exceeds $10 million, though it does vary by case.
Many different influences are contributing to the rise in nuclear verdicts, including the work of plaintiff attorneys, who are using a strategy known as reptile theory to illicit anger from the jurors.
Reptile theory is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly that they will award a plaintiff a grossly excessive amount of damages. In other words, if a jury believes that the defendant failed to enforce safety rules, and in so doing created a dangerous environment for which the jury can relate personally, a jury will then punish the defendant by awarding a big verdict at trial.
One of the most concerning litigation trends in the last 10 years has been the rise of such awards, and the percentage of such nuclear verdicts is increasingly on the rise.
Just recently on August 20, a Nassau County, Florida jury awarded damages in a wrongful death matter in excess of $1 billion, after just five days of testimony and four hours of deliberation in Melissa Dzion v. AJD Business Services and Kahkashan Carrier. The jury handed down a verdict of $100 million to the family of an 18-year-old college student for pain and suffering, and then another $900 million for punitive damages.
Photo/Wikicommons
According to an article in news4jax.com the semi-driver for AJD Business Services Inc., from New York state, was distracted by his cellphone, driving over his legal limit of hours and without a commercial driver’s license when he caused the crash that blocked the interstate. One of the persuasive factors that led to the exorbitant verdict returned by the jury was the fact that the semi-truck driver admitted to being distracted by his cell phone. Further, the driver had been given a job without a proper background check or even a commercial driver’s license. Lastly, the driver had previous violations for both driving aggressively and speeding.
Based on these facts, counsel for the plaintiff was able to essentially portray the defendants’ collective conduct as a threat to the safety of the general public and the award as a deterrent needed to protect the community at large.
The average verdict size for a lawsuit above $1 million is ever increasing and at an alarming rate and is especially become a critical threat to the trucking industry, as well any business with a fleet of vehicles. Consequently, this trend has been driving up insurance rates, and in some cases is forcing carriers and companies from the market, giving less options to place coverages.
To offset these insurance premium increases, some insureds are scaling back excess insurance, which then increases the risk across the board. Accordingly, the impact of such nuclear verdicts on the trucking industry and businesses with fleets is unmistakable.
To counter the Reptile Theory and prevent further nuclear verdicts, as a risk management and safety professional I have been advising clients that it’s vital to adhere to and exceed the Federal Motor Carrier Safety Regulations (FMCSR). It’s not just that you have the proper written policies in place, you must communicate these policies and enforce all safety policies.
With these nuclear verdicts when you hand over the keys to a company vehicle, you are entrusting the financial health and wellbeing of your company to that driver, so make sure to do your due diligence to protect yourself from a negligent entrustment lawsuit that can bankrupt your business.
If you have a distracted driving or cellphone usage policy, businesses need to be able to document that they did their due diligence from a company safety practice. Not only should you issue a safety policy, but you need to effectively communicate it with your drivers, then you need to have the driver acknowledge that they received it with his/her signature, and then you should go the extra mile and provide specific safety training to reinforce the company’s position.
Driver selection is probably the single most important risk control countermeasure a business can take as it relates to controlling their risk exposure once that driver leaves their parking lot. By selecting only drivers with good driving records and continuing to monitor their driving records is essential. Do not want to rely on the insurance agent or insurance carrier to inform you when a driver has developed a poor driver status.
You need to be proactive. You should at least at a minimum be running MVR’s at least annually, and if you are trying to show good faith in a courtroom to head off a nuclear verdict in the future, I would suggest bi-annually.
From a risk management point of view, employers have too much at stake to leave juries speculating if the employer could have done more.
From a litigation standpoint, by taking a proactive risk management position this will afford defense counsel the ability to document your company and driver safety efforts, which will carry great weight with any jury and should lessen the punitive damages if you find yourself in such an unfortunate situation in the future.
Be Safe My Friends!
