Now that we understand the regulatory framework behind a truck accident case and the general responsibilities of a motor carrier and driver, this section of the book focuses on the preparation of a commercial vehicle accident lawsuit. When first presented with a potential case, there are three basic questions:
- Who are the (potentially) responsible parties? The driver and the motor carrier are the most obvious defendants in the majority of truck wreck cases. However, there are many more potentially responsible parties.
- What was the culpable conduct? Once the potentially responsible parties are ascertained, we need to address the causes of the accident. In many commercial vehicle cases, culpable conduct is a combination of the conduct of various potentially responsible parties.
- What are the potential causes of action? There may be one or more legal theories applicable to conduct, giving rise to a collision.
The answers to these questions will guide the preparation of any successful commercial motor vehicle case. We address each of these important topics below.
Who Are the Potentially Responsible Parties?
In commercial truck accidents, there are often multiple individuals or entities that share responsibility for the harm caused in an accident. Of course, the facts of the accident will guide the analysis.
While there are too many potentially-implicated parties to name, the below list identifies many of the common parties: professional driver; motor carrier; supervisors, managers, or involved superiors of the motor carrier; shippers (freight owners); brokers (freight forwarders); cargo loaders; truck maintenance personnel or companies; truck part manufacturers; insurance companies; and intermodal providers.
Joint Tortfeasors in a Commercial Motor Vehicle Case
As in all tort cases, a tort case concerning a commercial motor vehicle accident may involve multiple joint tortfeasors. There is no Federal cause of action in such a case, so the state-law-based cause of action becomes relevant. We will focus on Georgia law for purposes of example.
Georgia law recognizes joint and several liability in instances where tortious conduct gives rise to joint liability. When the alleged negligent acts of two or more tortfeasors result in a single and indivisible injury, such as death, the alleged tortfeasors may be sued jointly.
Styling a claim in a truck crash case is a strategic undertaking. For instance, bringing a tort suit against only a motor carrier may be advisable rather than bringing a claim against both the motor carrier and driver. Likewise, a suit against a motor carrier and the insurance carrier (where permitted by local law) may be a wise strategy. In addition, because there are multiple potentially culpable entities, it is important to lock the motor carrier into a position of identifying who (if any) additional persons they contend are liable before the statute of limitation expires.
The point is, there are numerous strategic factors that affect the decision of whom to sue. Let’s start by looking at situations where suing the truck driver arises.
Truck Driver
The driver is a common defendant in commercial motor vehicle accident cases that result from driver acts or omissions. The FMCSR lays out standards for safety in the performance of a driver’s primary responsibilities, which could give rise to liability. A professional driver is subject to these regulations and, as such, may be liable under state law for violating the standard of conduct outlined in the Federal regulations.
It is important to remember that the truck driver may be an agent/employee of a trucking company. The question will be: is the driver an independent contractor or an agent that the truck company maintains control over? In addition, the truck driver may be a “dual agent” of more than one master. This is a key inquiry as it can potentially open up additional avenues of recovery. If the truck driver is the agent of two companies, then the potential for recovery has doubled.
A plaintiff’s attorney must make a strategic decision whether the driver is a necessary party and a wise addition to the case. The driver may be a sympathetic figure, depending on the facts and circumstances of the accident. However, the driver’s addition may be necessary (at least at first) to ensure that there are no agency issues with the companies in question. It is ultimately a strategic question each attorney must address.
Commercial Motor Carrier (Trucking Company)
There are two common claims against the motor carrier in a truck crash case: (1) direct negligence and (2) imputed liability. In direct negligence, the motor carrier may be liable for its actions in hiring, supervising, dispatching, aiding violation of Federal rules, and similar conduct. As detailed in section 4, infra, for example, the motor carrier has specific duties to fulfill when hiring a driver or maintaining the vehicle. Where the failure to fulfill these duties is causally connected to the accident, a claim for violation of the motor carrier’s duties under the FMCSR may add strategic value to the case.
Most commonly, however, the motor carrier faces potential “vicarious liability” based upon the theory of “respondeat superior.” This creates liability for the motor carrier for the acts and omissions of an employee-driver within the course and scope of their employment while operating the tractor-trailer.
Commercial motor vehicle practitioners must move a simple negligence claim to a professional negligence claim. This requires an investigation into the operations of the commercial carrier to understand patterns and practices. If the motor carrier or driver has consistently violated the standards for professional drivers, then the facts of the case may be viewed in a different light by a judge or jury.
Shipper (Freight Owner)
Shippers face potential liability for harm caused to third parties by the cargo they are shipping or receiving. There are two main causes of action against a shipper. One, there may be a claim against the shipper for acts and omissions of the driver in the course and scope of the shipment. Two, there may be a claim against the shipper for its tortious acts and omissions that contributed to the collision.
To hold the shipper liable for the acts and omissions of the driver or motor carrier, the shipper must retain a requisite level of control over the delivery process. This will be a fact-intensive inquiry, governed largely by the state law, and is akin to an independent contractor analysis. For example, where the shipper paid the driver directly, imposed rules and fines for various acts/omissions in the course of shipment, required a particular type of equipment for shipment, and required pick-up and drop-off at a particular location, the shipper could be held liable for the acts and omissions of the driver.
A shipper may also be liable for its acts and omissions in the course of shipment. A shipper may be held liable, for example, for negligent hiring or “selection” of a motor carrier in the course of shipment. Once again, this will be an inquiry governed by state law. For example, a Federal court in West Virginia held that under West Virginia law, “the shipper could be liable if its negligent selection of an incompetent independent contractor to do work which involves a risk of physical harm to others unless skillfully and carefully done was a proximate cause of the accident.” The Court held that the shipper had a duty to investigate the motor carrier’s “safety and fitness” to determine whether it was appropriate for handling the shipment.
As previously discussed, the motor carrier and driver have a duty to ensure the proper loading of shipments. However, when the shipper loads the goods, it may be responsible for the negligent loading. This does not mean that the motor carrier is absolved of responsibility. If the motor carrier should have discovered the negligently loaded material, then it, too, may be held responsible.
The FMCSR also imposes duties upon the shipper when shipping hazardous materials. This includes requirements that the hazardous material is properly marked, packaged, manufactured, and assembled. A shipper’s failure to satisfy all requirements may give rise to liability.
Cargo Loader
As detailed above, the FMCSR contains regulations specific to loading material. In certain situations, the cargo loader bears responsibility for negligence in loading, which contributes to a commercial motor vehicle collision. The cargo loader on a commercial vehicle may be any number of individuals, including the driver, employees of the trucking company, the shipping company, the freight forwarder, or a third-party loading company.
The most common form of loading accident is when cargo is loaded inappropriately and shifts or falls, causing injury to someone nearby. More specific examples include when a loader uses incorrect straps, overloads the trailer, or fails to use enough tie-downs. Remember that there are specific regulations regarding the number and types of tie-downs that must be used for loading certain materials.
A common fact pattern in improper loading cases is a trailer is loaded improperly and, during travel, the load shifts causing the trailer to overturn or the cargo to fall. In this type of case, it is necessary to determine (a) the entity responsible for the loading, (b) the methods taken to load, and (c) the regulations that may apply.
Broker
A broker is a middleman who connects a shipper (owner of goods) with a transportation company (motor carrier). As a middleman between shippers and carriers, freight brokers play a vital role in the transportation industry. However, their involvement in the process of arranging transportation can also expose them to legal liability in the event of a truck accident.
Under Federal law, a “broker” is defined as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” While this may sound like a passive role, in recent years, courts have increasingly held freight brokers responsible for accidents involving commercial motor vehicles.
The theories are generally as follows. One, the broker “negligently hired” the motor carrier, leading to a motor carrier accepting a load when it was unfit. These claims face a challenging hurdle in preemption via Federal statute. Two, the broker exercised such control over the shipment to create an agency relationship. These inquiries fall along the same lines as is an independent contractor or agent inquiry. That is, how much control was exercised by the broker over the motor carrier?
Truck or Part Manufacturers
When a commercial motor vehicle accident occurs due to a defective product, such as faulty brakes or tires, a product liability case may be pursued against the manufacturer of the defective product. While the focus of this handbook is not product liability law, it is worth noting that the truck or part manufacturer is a potentially responsible party in litigation if a defective product contributes to an accident. This is because manufacturers have a legal duty to design and produce products that are reasonably safe for their intended use. If they fail to do so and an injury or accident occurs as a result, they may be held liable for damages under product liability law.
We have handled cases in which a tire unexpectedly exploded, for example, causing serious bodily injury. The inquiry will follow the product liability standards of your jurisdiction.
Maintenance Companies
As detailed above, the FMSCR requires the motor carrier and the driver to undertake certain duties to ensure that the commercial motor vehicle is in working order. Motor carriers may outsource all or some of this responsibility to a third-party maintenance company. This is because the motor carrier may not have the ability to conduct significant repairs to the vehicle in-house.
When these repairs are negligently made, the maintenance company may be liable. The claim centers on whether or not the maintenance company exercised reasonable care in performing the repairs.
When repairs are negligently completed, even by an outside party, the motor carrier may also be liable. In one case, for example, a motor carrier attempted to avoid liability for a rusted drag link that caused a collision. The motor carrier argued it could not be liable for the negligent maintenance because it outsourced all maintenance to a third party. The court held that this outsourcing did not insulate the motor carrier from liability: “A reasonable jury could conclude that [the motor carrier] had a duty under the FMCSR to properly maintain and inspect the tractor/truck and that they have failed to do so.”
Insurance Company (or Companies)
Truck accidents often involve a complicated web of insurers. Each of the aforementioned potential defendants may have insurance coverage for the type of injuries or damages suffered in the vehicle accident. This insurance can be significant, as FMCSR requires $750,000 or more in insurance in many instances.
Unlike most other cases, in a commercial motor vehicle case, the Plaintiff can name the insurer as a party-defendant in some instances. The law that permits such a claim is known as a “direct action” statute. Georgia, for example, permits the insurer to be a named party. There are two direct action statutes in Georgia.
O.C.G.A. § 46-7-12(c) states, “[i]t shall be permissible under this article for any person having a cause of action arising under this article to join in the same action the motor carrier and the insurance carrier, whether arising in tort or contract.” And O.C.G.A. § 40-2- 40(d)(4) states, “[a]ny person having a cause of action, whether arising in tort or contract, under this Code section may join in the same cause of action the motor carrier and its insurance carrier.” Georgia law is clear that these statutes permit the addition of the insurer as a party defendant. This can be a powerful tool to ensure coverage is afforded and the rights of the plaintiff are protected.
Intermodal Equipment Providers
“Intermodal shipping” concerns the shipment of freight containers by sea, rail, and truck. The following definitions are relevant:
Intermodal equipment means trailing equipment that is used in the intermodal transportation of containers over public highways in interstate commerce, including trailers and chassis.
An intermodal equipment provider is any person who interchanges intermodal equipment with a motor carrier pursuant to a written interchange agreement or has a contractual responsibility for the maintenance of the intermodal equipment.
Some companies that serve as Intermodal Equipment Providers (IEP or IEPs) are ocean shipping companies, cargo ports, trucking companies, and equipment leasing companies. IEPs are required to register with the FMCSA. IEPs are subject to the same provisions of FMCSR as a motor carrier, except for the requirement to maintain an accident register. One key consideration is the requirement that the chassis/trailers involved in the intermodal equipment transportation be properly maintained. The FMCSR requires the IEPs to maintain, repair, and inspect the equipment.
Claims Against Government for “Road Defects”
A government entity or third-party contractor may be liable for hazardous road conditions if those conditions contribute to a collision. This scenario most commonly occurs, in our experience, in work zone accidents. Other examples of hazards may include potholes, rubber from truck tire re-treads (commonly known as road gators), debris, lack of road lines or reflectors, absent or unmarked guard rails, low-hanging power lines, downed trees, lack of signage, and poorly maintained bridges. Claims against a state or local government will likely require a waiver of sovereign immunity, pursuant to State or Federal law.
In Georgia, O.C.G.A. § 32-2-2 requires the DOT to manage, construct, and maintain public highways. This includes the “responsibility for all construction, maintenance, or any other work upon the state highway system.” These claims are usually presented pursuant to the Georgia Tort Claims Act.
Get the Legal Help You Need After a Commercial Vehicle Accident
Commercial vehicle accidents can leave victims facing serious injuries, costly medical bills, and long-term challenges. If you or a loved one has been hurt in a crash involving a truck, delivery van, or other commercial vehicle, you don’t have to navigate the legal system alone. Injured in a Commercial Vehicle Accident? Contact Weatherby Law Firm today for experienced, aggressive representation and the justice you deserve.