THE TRUCKING INDUSTRY AND THE LAW
Introduction
Truck accidents kill more than 5,000 people each year on America's highways. In fact, truck accident related deaths remain high even though other traffic accident deaths have decreased. This dangerous situation is expected to get worse. According to safety advocates, the annual death toll will reach 6,000 by next year. The sheer number of big-rigs on the highway is growing 50% faster than family-driven vehicles. Today, over 7 million trucks travel more than 190 trillion miles on America's highways -- a 135% increase from 1975. Furthermore, there are approximately 500,000 trucking companies operating big-rigs on our highways.¹
Although big-rig travel is up, federal oversight is down. In the random 2 million roadside inspections conducted each year by the Department of Transportation, an astonishing 20% of the trucks are ordered off the road for safety violations and 8% of the drivers are temporarily ordered off the road for falsifying log books or simply because they are considered "unfit" to drive. Furthermore, because the Department of Transportation conducts only 6,500 company safety reviews each year, it would take 55 years to rate the entire industry. Hence, 72% of the trucking companies in this country (approximately 300,000) have never had a safety review!²
Wrecks caused by big trucks are not mere accidents, but rather the foreseeable, logical, and predictable result of the mass transportation system in this country. Companies routinely hire less than qualified drivers; compensate them based upon the number of miles traveled and the amount of cargo hauled; encourage speeding; and deduct pay whenever the truck is out of service³. Hence, a sweat shop on wheels has been created on our highways where accidents are going to happen!
Several years ago a study by the Alabama Department of Public Health found that living in Alabama increases your chances of dying in a motor vehicle accident. At that time, although there had been a decrease in the number of motor vehicle fatalities around the country over the past 20 years, the death rate in Alabama for motor vehicle collisions had continued to climb. For instance, in 1997 Alabama's "resident motor vehicle death rate" was over 30 per 100,000 people. The national rate was only 15.8.
Recently the Truck Safety Coalition stated that more than 100 people a week are killed in large truck crashes in this country. Interestingly enough, according to the Associated Press, Alabama recorded a significant decline in 18-wheeler accidents, dropping from number 3 in the nation in 2004 to 13th in the nation in 2005. More specifically, in the State of Alabama in 2004, there were 10,993 collisions involving tractor-trailer rigs. Two Thousand Nine Hundred Ninety (2,990) people were injured and 169 people were killed. In 2005, the number of big rig collisions in Alabama dropped to 10,547 with 2,824 people being injured and 134 people being killed. Eighteen-wheeler collisions continued to decline in 2006 with the total being 9,810 with 2,588 injuries and 142 fatalities. Furthermore, based on 2006 data from Alabama Traffic Crash Facts, if you are a typical driver in Alabama, there is a 52.60% probability that you will be involved in an injury or fatal crash while driving an automobile in your lifetime. See: http://care.cs.ua.edu
Lawsuits against trucking companies are more complex than a simple automobile collision. The complexity is caused by state and federal rules which govern, or attempt to govern, the trucking industry. This paper is not intended to be an exhaustive review of the regulations concerning 18-wheel trucks, but rather is to simply introduce you to a brief overview of how one can approach death and serious injury cases involving tractor-trailers.
Overview of Federal Motor Carrier Safety Regulations
The FMCSA sets the national standard for all tractor-trailers traveling interstate. 49 CFR §390.3(a), et seq. See: www.fmcsa.dot.gov. Alabama has adopted the Federal Motor Carrier Safety Regulations. Ala. Code §32-9A-2 (1975), et seq. This writer would suggest that a certified copy of the state rules and regulations be admitted into evidence. The Court should take judicial notice of said state rules and regulations upon the appropriate motion.
Violations of the state rules are considered a criminal misdemeanor and punished by a fine of not less than $25 nor more than $2,000 for each offense. In addition, the Court may impose a sentence of imprisonment in the county jail, not to exceed 30 days, for each offense. Furthermore, the Court may enter an Order prohibiting the person from operating a commercial motor vehicle for a period to be specified by the Court, or perpetually, as the Court may determine. Ala. Code §32-9A-4 (1975). Even so, the Federal Motor Carrier Safety Regulations are the primary rules for consideration when a tractor-trailer is traveling interstate.
The Alabama Courts have recognized the applicability of the Federal Motor Carrier Safety Regulations. When the Federal Motor Carrier Safety Regulations are admitted into evidence, the Court may read the rules to the jury. Osborne Trucklines, Inc. v. Langston, 454 So.2d 1317, page 1324 (Ala. 1984). Of course, the Federal Motor Carrier Safety Regulations must be relevant to the claims of negligence/wantonness involved in the case at issue. For example, the Federal Motor Carrier Safety Regulations may involve driving over hours, failure to maintain records of driver competency, or failure to maintain appropriate driver logs and supporting documentation. These regulations are set forth in 49 CFR §390.1, et seq. The evidence you present at trial should demonstrate how specific violations are relevant to the proximate cause of the injury or death suffered by your client(s).
The trucking company (i.e., motor carrier) is responsible for requiring its drivers to comply with the Federal Motor Carrier Safety Regulations. 49 CFR §390.11. The Federal Regulations regarding driver qualifications are minimum standards in addition to any state regulations pertaining to safety requirements regarding commercial motor vehicles. Only qualified drivers can be hired for driving an interstate truck. 49 CFR §391.11, et seq. The regulations require background checks, road testing, physical examinations and collection of certain records. Id. Again, these are only minimum standards for driver qualification. 49 CFR §391.1(a). Both the motor carrier and the driver must comply with said regulations. 49 CFR §391.1(b). Furthermore, the motor carrier must maintain the required information in its qualification file on the driver. 49 CFR §391.51.
The Federal Regulations also govern the driving of tractor-trailers. 49 CFR §392.1, et seq. The rules apply to both drivers and motor carriers. 49 CFR §392.1. Furthermore, the Federal Regulations establish the minimum standard for operating a tractor-trailer and preempt any lower standards. 49 CFR §392.2.
Fatigued or ill drivers are not allowed to operator a tractor-trailer. 49 CFR §392.3. A driver's schedule must conform with the speed limits. 49 CFR §392.6. The Federal Rules also require that the driver maintain a daily driving log and that said driver provide this log with supporting documentation to the motor carrier for its review. The rules describe the form that is to be utilized and further state in detail how the logs are to be completed. 49 CFR §395.8. A motor carrier may also require a driver to use an automatic on-board recording device to record the driver's hours of service in lieu of complying with handwritten logs set forth in §395.8. 49 CFR §395.15.
Until recent changes, the driving time limitations included a 10-hour driving, a 15-hour on-duty limitation, and a 70-hour limitation of on-duty time for companies that operate 7 days a week. The 10 and 15 hour limitation required that drivers were limited to driving for 10 hours or being on-duty for 15 hours after 8 hours of off-duty time. The Federal Regulations define the difference between "driving" and "on-duty" time and furthermore, describe what activities are included in each status. 49 CFR §395.3. In 2003, the Federal Motor Carrier Safety Administration revised the time a driver could actually be behind the wheel by increasing the limit from 60 hours per week to 77 hours per week -- an increase of 17 hours. In other words, the maximum number of hours is 11 hours after 10 hours off duty. 49 CFR §395.3. Because this increase has been struck down twice by a Federal Court, it will be discussed in more detail later in this paper.
Federal Highway Administration Regulations
Now that you have a flavor of the Federal Regulations, I will briefly discuss specific regulations which you may find to be significant in the handling of tractor-trailer crash cases. It is imperative that the attorney handling these type cases be thoroughly familiar with the Federal Rules and Regulations so that his or her investigation surrounding a tractor-trailer collision will be sufficient and competent. I would highly recommend that any attorney pursuing one of these claims purchase a Federal Motor Carrier Safety Regulations Handbook (management edition) which is published quarterly. Furthermore, because the Alabama Supreme Court has ruled that the Federal Motor Carrier Safety Regulations are similar to OSHA standards and are admissible into evidence regarding the standard of care, the plaintiff's attorney should introduce said regulations into evidence and be prepared to refer to them throughout the course of the trial. Osborne Trucklines, Inc. v. Langston, supra. Note: Violations of said Federal Regulations have not been held to be negligence per se, and, therefore, are only used as a guideline (i.e., standard) for the jury to determine whether or not the defendant was negligent/wanton.
The following is a list of significant sections with brief comments:
Section 383.21(a) NUMBER OF DRIVER'S LICENSES -- It is illegal for a person who operates a commercial motor vehicle to have more than one driver's license.
.Sections 385.1 through 385.23 SAFETY FITNESS PROCEDURE -- The Federal Highway Administration conducts safety and compliance reviews of motor carriers and assigns safety ratings of satisfactory, conditional, unsatisfactory or unrated. This information can be obtained by the public through the Federal Highway Administration.
Section 391.15 DISQUALIFICATION OF DRIVERS -- A driver can be disqualified if he is convicted of driving a commercial vehicle while under the influence of alcohol (BAC of 0.04 or refusing a test); driving under the influence of narcotics; leaving the scene of an accident; or committing a felony involving a motor vehicle.
Section 392.6 SCHEDULES TO CONFORM WITH SPEED LIMITS -- Motor carriers are not allowed to schedule trips that require a driver to speed.
Section 392.7 EQUIPMENT INSPECTION AND USE -- Drivers are required to check brakes, steering mechanism, lights, tires, horns, windshield wipers, rear view mirrors and coupling devices to make sure they are in good working order and shall not drive the vehicle if they are not (e.g. pre-trip and post-trip inspections).
Section 393.42 BRAKES REQUIRED ON ALL WHEELS -- With a few narrow exceptions, every commercial vehicle must be equipped with brakes on all wheels.
Section 395.3 MAXIMUM DRIVING AND ON-DUTY TIME -- This section restricts the amount of time a driver is allowed to drive and sets out specific requirements for rest.
Section 395.8 DRIVERS' RECORD OF DUTY STATUS -- Drivers are required to keep logs of their duty status for each 24-hour period. The failure to keep complete and accurate records will subject the driver and the carrier to prosecution. However, the company and driver are not required to keep logs more than 6 months. Many drivers maintain 2 separate logs (one for state troopers and the other for their employer). Furthermore, a driver is required to retain a copy of each record of duty status for the previous 7 consecutive days which shall be in his or her possession and available for inspection while on duty.
Section 396.3 INSPECTION, REPAIR AND MAINTENANCE -- Motor carriers are required to have a system to inspect, repair and maintain all its trucks.
Sections 382.303 and 391.113 POST-ACCIDENT TESTING -- Many attorneys and private motorists assume that truck drivers are automatically tested for alcohol and/or drugs after each accident. This is not true. If an accident results in a human fatality, drug and alcohol testing must be done of the surviving driver by his or her employer. Furthermore, if an accident involves bodily injury to any person who receives medical treatment away from the scene and the driver receives a citation under state or local law, alcohol and controlled substance testing is also required by the employer. Furthermore, the driver shall provide a urine sample to be tested for the use of controlled substances as soon as possible, but not later than 32 hours after an accident in certain situations.
Section 392.22 STOPPED VEHICLE -- When a vehicle is stopped, there are certain requirements regarding the use of signals such as warning signal flashers and three emergency reflective triangles, etc.
Section 392.14 USE EXTREME CAUTION -- A driver must use extreme caution during hazardous driving conditions affecting visibility or traction which include conditions such as snow, ice, sleet, fog, mist, rain, dust and smoke. (What about sun?).
Section 387.9 FINANCIAL RESPONSIBILITY REQUIRED -- No trucking company shall operate a motor vehicle until said company has obtained the minimum levels of insurance as required.
Section 392.60 UNAUTHORIZED PERSONS NOT TO BE TRANSPORTED --No driver shall allow an unauthorized person (i.e., family member/hitchhiker) to ride in his or her vehicle without written authorization from the motor carrier.
Section 392.33 OBSCURED LAMPS OR REFLECTIVE DEVICES --No tractor-trailer shall be driven when any lamps or reflective tape (which are required) are obscured by the tailboard, or by any part of the load or its covering. In other words, logs, dump truck covers, mud/dirt should not cover the taillights or reflective tape on a commercial vehicle.
Section 396.7 UNSAFE OPERATIONS FORBIDDEN -- A tractor-trailer shall not be operated in such a condition as to likely cause an accident or a breakdown. If a truck or trailer is discovered to be in an unsafe condition while being operated on the highway, the operation may be continued only to the nearest place where repairs can safely be done.
Section 392.1 RADAR DETECTORS -- No driver shall use a radar detector in a commercial vehicle or operate a commercial vehicle that is equipped with a radar detector (i.e., fuzz buster). Furthermore, no trucking company shall require or permit a driver to violate this prohibition.
Recent Statutory Trends and Developments
Fatigue and Hours of Service
Driver fatigue is a major cause of highway crashes involving tractor-trailers. Fatigue is also one of the most perplexing safety issues facing the trucking industry. Because of criticism regarding the hours of service regulations which had not been substantially modified since 1939, the Federal Highway Administration issued new rules in 2003 to become effective January 4, 2004. 49 CFR §395, et seq. Interestingly enough, because Congress mandated a revision of the rules to decrease crashes caused by fatigue, it was surprising to many that the 2003 revisions actually increased the length of time a trucking company could make its drivers stay behind the wheel. In fact, one of the primary changes allowed drivers to drive 11 hours straight, a one-hour increase over the former 10-hour rule. 49 CFR §395.3(a). Because of this change and others issued by the federal government in 2003, groups such as Public Citizens, the International Brotherhood of Teamsters, Advocates for Highway and Auto Safety, and others challenged the unsafe and unhealthy hours-of-service rule that the federal government adopted in 2003. Suit was filed in Federal Court, and the Court struck down the 2003 revisions. After the 2003 revisions were struck down, the government issued new revised regulations in 2005 which basically mirrored the 2003 regulations. Recently, the Federal Court again found the revisions untenable and basically ruled that they would remain in effect for no more than 90 days. Hence, it is back to the drawing board regarding how many hours a day and/or week a trucker can remain behind the wheel. Therefore, if you are retained to handle a tractor-trailer collision for either the plaintiff or defendant, you would be wise to immediately determine what regulations apply regarding hours of service. Public Citizen
Performance Based Exemptions?
There is a movement afoot by the federal government to enact performance-based regulations. A pilot program developed by the Federal Highway Administration is currently under way to exempt selected trucking companies that operate fleets of vehicles weighing between 10,001 and 26,001 pounds. This exemption will excuse such carriers from maintaining inspection records, accident records, driver qualification files, and will eliminate driver road tests and the requirement for drivers to keep logs or time cards. The criteria for participation in the program will be limited to those carriers with very low accident rates and will require the carriers to develop a safety control plan which will ensure that safety of the motoring public will not be compromised. The Federal Department of Transportation will determine which carriers and drivers are eligible and will reserve the right to revoke the exemption if it is found not to be in the public interest. The good news is that the rules and regulations regarding insurance, drug and alcohol testing, driver medicals, and hazardous material regulations will not be exempted. Motor Carrier Liability, 2006, CCH Incorporated, page 104.
A bill similar to the Federal Performance-Based Program has been introduced in the Alabama House of Representatives. It would exempt commercial vehicles weighing 13 tons or less from Federal Regulations. In other words, the proposed law would exempt trucks weighing 10,001 to 26,001 pounds from safety regulations, including the number of hours the driver may drive and physical exams. Vehicles that fall into this category include light dump trucks and straight or one-piece box trucks operated by businesses to deliver products all over the State of Alabama. Furthermore, more than 13% of fatal truck crashes in Alabama in 2005 involved vehicles within the range that the bill would exempt. Jere L. Beasley Report, May 2007.
Requirement That All Trucks Have Electronic Recorders
As previously stated, a motor carrier may require a driver to use an automatic on-board recording device to record the driver's hours of service in lieu of complying with handwritten logs. 49 CFR §395.15. For years, safety advocates have pushed for Federal Regulations requiring all trucks to have electronic recorders in an effort to detect and deter violations of the hours-of-service rules. Recently the Federal Motor Carrier Safety Administration released watered down standards for electronic on-board recorders even though it had been rebuked by a Federal Court for failing to consider requiring such recorders in each and every truck so that drivers could not be forced to work beyond the maximum allowable number of hours. The hours-of-service rules which were intended to protect citizens on the highway, including truckers, should be monitored electronically so that travelers are not put at great risk by fatigued drivers. However, instead of requiring electronic on-board recorders in all commercial vehicles, the Federal Motor Carrier Safety Administration released a proposed rule that would require recorders only for motor carriers that have been caught significantly violating hours-of-service rules. Hence, those motor carriers and drivers who feel the need to cheat and/or keep two sets of log books (i.e., one for state troopers and agency inspections and the other for their employer) can continue to do so putting the motoring public at risk. Jere L. Beasley Report, February 2007.
Overview of Tractor-Trailer Companies
Licensing of Drivers
To get a CDL, you must pass knowledge and skills tests.
1.1 Commercial Driver's License Tests
1.1.1 Knowledge Tests
You will have to take one or more knowledge tests, depending on what class of license and what endorsements you need.
1.1.2 Skills Tests
If you pass the required knowledge test(s), you can take the CDL skills tests. There are three types of general skills that will be tested: pre-trip inspection, basic vehicle control, and on-road driving. You must take these tests in the type of vehicle for which you wish to be licensed.
1.2 Driver Disqualifications
1.2.2 Alcohol, leaving the scene of an accident, and commission of a felony
It is illegal to operate a CMV if your blood alcohol concentration (BAC) is .04% or more. If you operate a CMV, you shall be deemed to have given your consent to alcohol testing.
You will lose your CDL for at least one year for a first offense for:
- Driving a CMV if your blood alcohol concentration is .04% or higher.
- Driving a CMV under the influence of alcohol.
- Refusing to undergo blood alcohol testing.
- Driving a CMV while under the influence of a controlled substance.
- Leaving the scene of an accident involving a CMV.
- Committing a felony involving the use of a CMV.
You will lose your CDL for at least three years if the offense occurs while you are operating a CMV that is placarded for hazardous materials.
You will lose your CDL for life for a second offense.
You will lose your CDL for life if you use a CMV to commit a felony involving controlled substances.
You will be put out-of-service for 24 hours if you have any detectable amount of alcohol under .04%.
1.2.3 Serious traffic violations
Serious traffic violations are excessive speeding (15 mph or more above the posted limit), reckless driving, improper or erratic lane changes, following a vehicle too closely, and traffic offenses committed in a CMV in connection with fatal traffic accidents.
1.2.4 Violation of out-of-service orders
1.2.5 Railroad-highway grade crossing violations
1.2.6 Hazardous materials endorsement background check and disqualifications
If you require a hazardous materials endorsement you will be required to submit your fingerprints and be subject to a background check.
You will be denied or you will lose your hazardous materials endorsement if you:
- Are not a lawful permanent resident of the United States.
- Renounce your United States citizenship.
- Are wanted or under indictment for certain felonies.
- Have a conviction in military or civilian court for certain felonies.
- Have been adjudicated as a mental defective or committed to a mental institution.
1.2.7 Traffic violations in your personal vehicle
The Motor Carrier Safety Improvement Act (MCSIA) of 1999 requires a CDL holder to be disqualified from operating a commercial motor vehicle if the CDL holder has been convicted of certain types of moving violations in their personal vehicle.
If your license to operate your personal vehicle is revoked, cancelled, or suspended due to serious speeding violations, you will lose your CDL for periods ranging from 60 to 120 days.
If your license to operate your personal vehicle is revoked, cancelled, or suspended due to alcohol violations, you will lose your CDL for one year. If you are convicted of a second alcohol conviction in your personal vehicle, you will lose your CDL for life.
If your license to operate your personal vehicle is revoked, cancelled, or suspended, you may not obtain a "hardship" license to operate a CMV.
1.3 Other CDL rules
Alabama Commercial Driver License Manual, (2005) pp. 1-1 to 1-4
Employment of Drivers
Before hiring a driver, the Federal Motor Carrier Safety Regulations require the carrier to obtain the following background information: the driver's name, current address, date of birth, Social Security number, driver's license number, a list of accidents and moving violations for the preceding three years, residence addresses for the last three years, and employers for the past three years. 49 CFR §391.21. Where the driver-applicant was previously employed as the operator of a commercial vehicle, he or she must list those prior employers for an additional seven years. The carrier is specifically required to contact the driver's past employers, as well as the Department of Motor Vehicles in every state in which the applicant has held a driver's license during the past three years. 49 CFR §391.23. Except for the limited exemptions contained in 49 CFR §391.61, a driver must successfully complete a road test and be issued a certificate. 49 CFR §391.31. In lieu of a road test, the carrier may accept a CDL issued by a state following completion of a road test in a vehicle of the type he will be operating for the carrier. In the alternative, the carrier may accept a valid certificate of driver's road test issued within the preceding three years. 49 CFR §391.33. A driver also must be medically certified as physically qualified to drive. 49 CFR §§391.41-391.49. There is also a required pre-employment test for controlled substances. See generally, 49 CFR §§40 and 82. Disqualifying offenses include the revocation, suspension, withdrawal, or denial of an operator's license, permit, or privilege; a conviction for driving a commercial motor vehicle while under the influence of drugs or alcohol if the offense was committed during on-duty time and the driver was employed by a motor carrier or furthering a commercial enterprise; a conviction for the transportation, possession, or unlawful use of drugs while the driver was on duty; a conviction for leaving the scene of an accident while operating a commercial motor vehicle; and a conviction for a felony involving the use of a commercial motor vehicle. 49 CFR §391.15(b)-(c)(2). Drivers also may be disqualified for violating an out-of-service order. 49 CFR §391.15(d). Furthermore, a motor carrier permitting a disqualified driver to operate a commercial motor vehicle is subject to civil and criminal penalties. 49 CFR §383.53 (2003). The penalties include fines between $2,500 and $25,000 and imprisonment up to 90 days. 49 U.S.C. §521(b) (2003).
Because studies reveal that the majority of jurors tentatively decide the outcome of cases based entirely on the appearance of the parties, it behooves trucking companies to carefully select drivers/employees so that said individuals portray a professional image. Drivers who are unkempt, unshaven, and surly looking can turn a jury against the company before opening statements are completed. Therefore, it is wise to hire well groomed, neatly dressed, well spoken, intelligent drivers so that when a serious accident does occur, the driver's appearance does not add value to the case. Furthermore, driver handles (nicknames such as Lead Foot, Night Stalker, Speed Demon, etc.) should be prohibited if possible.
Statutes Applicable to Owners and Drivers
Many, if not the majority, of the Federal Motor Carrier Safety Regulations apply to both motor carrier (i.e., employer) and driver (i.e., employee). In an effort to simplify the subject, one should understand that virtually all of the rules and regulations regarding the operation and maintenance of a tractor-trailer cover and apply to both the motor carrier and the driver. For instance, CFR §390.3 provides that the rules of this chapter are applicable to all employers, employees and commercial motor vehicles which transport property or passengers in interstate commerce. Section 390 further mandates that every employer shall be knowledgeable of and comply with all regulations which are applicable to that motor carrier's operation. 49 CFR §390.3(e)(1). Every driver and employee shall be instructed regarding, and shall comply with all regulations contained in this subchapter. 49 CFR §390.3(e)(2). The general requirements and information of the Federal Motor Carrier Rules and Regulations further state that whenever a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. Furthermore, if the motor carrier is a driver, the driver shall likewise be bound. 49 CFR §390.11. The Regulations specifically address aiding and abetting violations in that "no person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules. 49 CFR §390.13.
In summary, virtually all of the rules and regulations set forth in §390 through §397 of the Federal Motor Carrier Safety Regulations apply to both motor carrier and driver. The rules in §383 regarding commercial driver's license standards; requirements and penalties, are applicable to every person who operates a commercial motor vehicle in interstate or intrastate commerce and to all employers (motor carriers) of such persons. Of course, minimal levels of financial responsibility as set forth in §387 apply to the motor carrier as it is their responsibility to obtain and keep in force the appropriate amount of liability insurance. Section 40 of the Federal Motor Carrier Safety Regulations covers all parties involved in alcohol and drug testing procedures, including but not limited to motor carriers and drivers. Finally, §382 which covers controlled substances and alcohol use and testing naturally applies to both motor carrier and driver. (See pre-employment testing at §382.301 and post-accident testing at §382.303).
Alternative Dispute Resolution/Mediation
For those of you who have never handled a tractor-trailer case, there are three major concerns. The first is: How do I get a tractor-trailer case? The second is: How do I handle it once I get it? The third is: How do I get it resolved quickly and for top dollar? The first two questions are for another day. However, the third question can be answered simply by mediation.
Most of you are familiar with mediation. It is a voluntary process whereby a third party mediator attempts to get the parties involved (i.e., plaintiff, motor carrier and driver) to agree upon the settlement without the need for expensive and protracted litigation, including appeals. I can honestly say that most plaintiff attorneys, motor carriers and drivers understand the benefits of mediation. Two of the main driving forces behind mediation are cost and certainty. The longer the discovery process continues in a tractor-trailer case, the higher the cost for all parties involved. Typically, the largest cost in these type cases for the plaintiff includes, but is not limited to, expert expense and the potential for supporting a disabled and/or catastrophically injured client. After all, if you represent a plumber who was the sole breadwinner in his family which consists of a wife and three minor children, who pays the bills while he spends the rest of his life fighting to survive? Hence, early resolution, assuming it is adequate, is extremely important. For the defense, expert cost is also a major factor along with simply needing to know the final result so that they can absorb the hit and continue in business. In other words, certainty in knowing the amount of a settlement is very important for a motor carrier, and, therefore, mediation is often welcomed.
When to mediate can vary. In other words, I have settled numerous cases at mediation prior to filing suit simply because the facts were obvious and the case involved death. In some cases there is simply no reason for either side to procrastinate under the circumstances. I have had other cases where liability was stipulated to after suit was filed, and the discovery process was required simply to determine the permanency of the injuries so that an appropriate value could be settled upon. On the other hand, I have had cases that have gone through the entire discovery process fail to settle at mediation and thereafter settled in the Judge's office on Monday morning when the Court applied the appropriate pressure to the sticking point. Mediation is an excellent tool to get these type cases settled so that your client can receive a fair and adequate amount without the nightmare of going through trial just to win a large award and then have it whacked on appeal for no apparent reason other than the fact that you won. Hence, I strongly recommend and urge you to get your case to mediation with an experienced, well-known mediator as soon as possible after signing the case. Good luck!
