Protecting the motor carrier against the threat of punitive damages: an updated case review.

AuthorBurden, Donna L.

HISTORICALLY, the case law regarding the issue of punitive damages against trucking companies stemming from the accidents of its drivers has been mostly favorable to trucking companies. This makes sense considering the extremely high standards courts impose before they will award punitive damages. The standard is typically wanton or reckless behavior. (1) Furthermore, a majority of jurisdictions have determined that punitive damages may not be awarded against an employer if the employer is only vicariously responsible for the employee's conduct. (2) For an employer to be liable for punitive damages for conduct arising out of the acts of one of its employees, the employer must have authorized or ratified its employee's wrongful conduct. (3) In most cases where a truck driver gets into an accident, there is absolutely no proof to support a finding that the defendant driver himself acted in such a manner to warrant punitive damages. It is even more difficult for a plaintiff to demonstrate that an employer itself acted with the requisite conduct to warrant punitive damages.

Because of this high standard, plaintiffs' attorneys are getting more creative. A quick Google search of "punitive damages in trucking cases" yields results of many plaintiffs' attorney websites stressing the importance of seeking punitive damages in trucking cases and offering advice about the means in which the plaintiffs' bar can do so. During our research for this article, we even stumbled across the treatise "Litigating Truck Accident Cases," a three volume set that offers substantive guidance to plaintiffs' attorneys to handle personal injury suits involving trucking companies. One of the documents in this volume is a form that provides an outline for a motion in opposition to a motion for summary judgment on the issue of punitive damages. The motion details various examples of specific details that might be used to defeat the trucking company's motion for summary judgment, such as Department of Transportation and Federal Motor Carrier Safety Administration ("FMCSA") violations.

In the typical trucking case, the plaintiff alleges reckless conduct against the driver, the driver's employer, and any other party the plaintiff can assert a cause of action against. The popular mindset is to allege punitive damages and hope that discovery will offer facts to support the award. If that particular set of facts does not justify such an award, then a defense attorney typically will move to have the punitive damages claim dismissed, and "no harm, no foul" in the eyes of the plaintiffs attorney. With this behavior in mind, it is increasingly important for defense attorneys to move to have the claim for punitive damages dismissed, but it is equally important that the trucking companies themselves stay vigilant. Companies themselves must ensure that, when the plaintiffs attorney begins sifting through the company's discovery responses, there is absolutely nothing there that would prevent the defense attorney from prevailing on a motion for summary judgment to dismiss the punitive damages claim.

A personal injury claim against the company typically includes allegations of negligence, such as negligent hiring, negligent training, and negligent supervision. Of course, negligent conduct on the company's part is not enough to support a punitive damages claim. While the specific standard for punitive damages varies based on the jurisdiction, there typically must be an allegation that the company consciously disregarded a known risk.

For any of these issues, it is critical to keep in mind that there must be a causal link between the claim in which plaintiff alleges warrants punitive damages and the cause of the accident. In other words, it is arguably irrelevant that the company did not train the drivers on cell phone use if the facts show that the accident occurred when the driver did not have a cell phone with him and the accident was caused by icy road conditions. This idea is demonstrated in several of the cases below.

For example, in Brumley v. Keech, (4) which was filed in response to a motor vehicle accident involving a truck driver, the trial court granted defendants' motion to exclude evidence of the company's failure to comply with the federal regulations requiring post-accident-testing for controlled substances. Ultimately, the Supreme Court of Arkansas affirmed the decision to exclude because there was no indication that the driver had been using alcohol or controlled substances prior to or at the time of accident, so there was no indication that the violations had contributed to the accident. (5)

Along this same line, it is important to understand that a company should try to keep evidence regarding company policy, procedures, habit, or related practices out of evidence if there is a basis to do so. Unsurprisingly, a plaintiff favorite for support that punitive damages should be assessed involves violation of the Federal Motor Carrier Safety Regulations ("FMCSR"). (6) Essentially, the argument goes like this: 1) Defendant trucking company A violated FMCSR X, Y, and Z; 2) those violations were willful, demonstrate that said company was careless, etc.; 3) therefore, punitive damages should be assessed. There is a way in some instances to cut that argument off--by filing a motion to exclude evidence of the FMCSR violations. The support for doing so typically lies in the lack of relevancy of the violations. In other words, if plaintiffs do not argue that the FMCSR violations contributed to or caused the accident in question, then those violations are irrelevant to the litigation.

This is well demonstrated in Kuebler v. Gemini Transportation. (7) In that case, plaintiff alleged that the defendant tractor-trailer driver had sideswiped her and then driven off. Plaintiff sought to impose punitive damages against the driver's employer alleging that the company had exceeded the threshold for four of the five safety measurements conducted by the FMCSA in the prior year, been cited for failing to conduct random alcohol testing, been cited for failing to conduct controlled substance testing, and was reported to have falsely reported records of duty status 53 times. Finally, thirteen days before the subject accident, the company had entered into a settlement agreement with the FMCSA agreeing to pay over $81,000 in fines for 61 violations. Despite this, the court dismissed the punitive damages claim against the company because the company's misconduct had nothing to do with the particular driver or accident in question. (8)

This article uses recent cases to demonstrate different patterns that trucking companies and their attorneys should be aware of as the plaintiffs' bar becomes increasingly savvy when it comes to litigating trucking cases. These cases all demonstrate that employer conduct that would warrant a punitive damages award can stem from the employer's hiring, training, supervision, retention, or maintenance of the truck.

  1. Hiring

    The first point at which a trucking company must be aware that an employee's conduct may lead to a punitive damages award against the company for the employee's conduct down the road is during the hiring process. As delineated 8 above, a trucking company will not be liable for punitive damages stemming from hiring that is deemed negligent. Since punitive damages can only be awarded for conduct that transcends sheer negligence, the company must protect against conduct that could arguably indicate the company acted recklessly when hiring its drivers. Therefore, it is important to be aware of the various factors courts look at when determining whether the employer's hiring warrants punitive damages.

    Ortiz v. Wiwi (9) was litigated in the Middle District of Georgia. That case involved an accident in which a tractor-trailer collided with an SUV. The driver of the SUV was killed, and his estate filed suit for wrongful death. It was undisputed that Defendant Wiwi was driving in the scope of his employment with Defendant Rolar. The relevant facts demonstrated that Defendant Wiwi had begun his commercial truck driving career in 1999, approximately ten years before the accident. In 2007, he left the first company that he drove for to take a job with Rolar. Before hiring Wiwi, Rolar:

    * required that Wiwi submit his driver's license, medical, and drug tests to the company;

    * arranged for its insurance company to check Wiwi's driving record;

    * required Wiwi to pass a 2,000 mile road test;

    * reviewed the results of Wiwi's four previous drug tests;

    * conducted an interview; and

    * contacted Wiwi's previous employer.

    The court analyzed Rolar's conduct based on Georgia's standard for punitive damages, which maintained that punitive damages could only be awarded when defendant acted with willful misconduct, malice, fraud, wantonness, oppression, or conscious indifference. (10) The court found it determinative that Wiwi's driving record was clear of any accidents, moving violations, or citations in the five years before the accident. The court explained that there was no evidence that Rolar knew or should have known at the time of hiring that Wiwi had a propensity to drive unsafely. This was because, at the time he was hired, Wiwi was an experienced driver, he had a valid CDL, and his three-year driving record was clean. Further, Rolar had contacted Wiwi's former employer and required Wiwi to pass a pre-employment, 2,000-mile road test. (11)

    In Riffey v. CRST Expedited, (12) the subject accident was caused when defendant Becerra was following too closely plaintiff's tractor-trailer on an icy road and rear-ended the tractor-trailer. Plaintiffs argued that they were entitled to punitive damages, or at least the introduction of evidence of those damages to support their negligent hiring claim. Defendants moved for summary judgment on the punitive damages claims. The relevant evidence showed that Becerra understood that driving in...

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