Expert Truck Injury Information for Victims of Semi Truck or Commercial Truck Accidents
Trucking law is a complex web of federal and state regulations. Portland Truck Accident Lawyer.com was developed by Portland Attorney Richard Rizk to help persons affected by truck crashes better understand the issues truck accident victims face. Your comments and questions concerning Portland Truck Accident Lawyer.com or issues specific to your case, are welcomed. To reach Mr. Rizk directly complete the short form on this page or call Mr. Rizk at (503) 245-5677.
I. Truck Crash Injuries: Cause and Proof
II. Violations of Federal Motor Carrier Regulations
III. Punitive Damages
IV. Truck Litigation Defendants
V. Insurance for Truck Crash Claims
I. Trucking Violations Kill
Truck Crash Injuries: Causes and Proof
Truckers and trucking companies naturally seek to reach destinations fast and at the lowest possible cost. As a result, some commercial truck crashes are caused by illegal trucking shortcuts such as: speeding; falsifying trucking logbooks; lack of rest; insufficient experience; improper training; over-loading; improper truck maintenance; defective equipment, insufficient safety systems; and reckless driving. When one of these improper shortcuts is the cause of a truck crash, courts may relieve a truck crash victim from the burden of proving the negligence or “fault” of a truck driver.
Most commonly, truck injury accidents are caused by truck driver error. In those situations, the injured parties must show that the driver failed to act as a reasonably prudent trucker would in those set of circumstances. Even then, an injured party need not prove negligence if the truck crash was caused by violation of a trucking safety law or regulation.
Who pays for trucking short cuts?
Overwhelmingly, occupants of smaller consumer vehicles do. Three of four commercial truck crash injuries are to non-truckers. Over 5,000 people die and 100,000 are seriously injured each year as the result of collisions with giant commercial trucks including 18-wheelers, tractor trailers and transport vehicles.
“Hours of Service” Violation - Negligence
Courts across the U.S. have held trucking companies at fault as a matter of law for violations of federal trucking laws relating to safety– when it was shown the violation caused the truck crash. “Hours of Service” violations are, by far, the most common type of truck safety violation.
Protection for Truckers who report
Truckers are protected by whistleblower statutes for making known violations of “Hours of Service” and other federal truck safety regulations, particularly regulations relating to truck brakes. Learn more about federal whistleblower protections.
Truckers Protest new hour of service rules
A few very vocal truckers have expressed great displeasure with the more restrictive hour of service rules adopted in July, 2013. In October 2013 many disgruntled truckers descended upon Washington D.C. to protest that and other issues of concern to some truckers, including the right to bear arms. One trucker advocacy group claims that requiring rest period in the wee hours of the morning when roads are usually empty will actually make the roads less safe by shifting truck traffic to peak travel times. Safety advocates, on the other hand, point to studies suggesting that current regulations, allowing up to 11 hours of driving per day, do not effectively protect the public from risks associated with truck driver fatigue. The debate rolls on.
Truck “Black Boxes” Required by 2017
Until very recently, truckers tracked driving hours manually in paper log books. Decades of experience shows that manual tracking of trucker hours does not work. Newer studies confirm a cause-effect relationship between trucker fatigue and truck crashes. So, in 2011, the trucking industry came under great pressure to ramp up installation of on-board monitoring devices to track trucker hours. New rules will require most commercial trucks to be equipped with electronic onboard recorders for monitoring of trucker hours of service by 2017.
Ideally, truck “black boxes” will track driver, equipment and travel in real time stored to a central location. The trucking industry is quickly evolving toward this. Some black boxes now in use track sudden stops, tire pressure and proximity to surrounding vehicles. Other models can also preserve all trucker communications. Newer black box devices even monitor driver fatigue. Your lawyer can usually determine the type of black box used by obtaining the truck's “line” or “build” sheet.
“Black Box” Data must be preserved
Insurers and trucking companies enjoy extreme advantages when it comes to truck crash investigations. Modern GPS devices alert truck companies of truck accidents in near real time. As a result, truck and insurance company investigators sometimes arrive at an accident scene within minutes of impact, sometimes even before police get there.
An experienced trucking personal injury lawyer will seek an agreement with the trucking company as to how, when and who can view truck black box and other crash evidence. If the trucking company resists sharing and securing crash evidence, your lawyer may need to file a temporary restraining order to preserve evidence for expert analysis. Sometimes accessing black box information requires special software and passwords only the black box manufacturer or the trucking company may know. Your lawyer can use a subpoena to discover passwords, and, if necessary, recruit experts to decrypt black box data.
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II. Violations of Federal Motor Carrier Regulations
Negligence of a trucker and/ or trucking company may be presumed in cases involving one or more safety regulation violations. That is why knowing all violations of state and federal trucking safety laws in truck crash injury cases is so important. The Federal Motor Carrier Regulations is where you will find the bulk of safety regulations applicable to the trucking industry.
Negligence per se is the legal term for this presumed negligence situation. If a defendant’s conduct is deemed “negligence per se”, an injured person is only relieved of having to prove bad conduct of the defendant. The injured person still must prove causation and damages incurred. Nonetheless, finding violations of trucking safety laws is enormously helpful to the truck crash victim’s case. A decision to violate a trucking safety law exposes those decision makers to a damage award large enough to sufficiently punish—as determined by judge and jury.
Abuses of federal or state truck safety rules that most commonly trigger a finding of “negligence per se” include violations of those concerning brakes, “hours of service,” loading & bracing, truck dimensions, inspections and reporting. After a trucking crash, it is important to identify all state and federal truck safety regulation violations.
Truck Company’s Liability for Truck Driver
Can a truck company be responsible for the errors of its employee truck driver? The short answer is “yes” if the truck driver was acting within the scope of his employment.
This is the “doctrine of respondeat superior” (Latin for: let the master answer). The rule of respondeat superior recognizes the unfairness in allowing an employer truck company to escape liability for an employee truck driver’s misdeeds within the scope of employment. Of course, most all the time, truck driving is within the scope of an employee truck driver’s employment.
The respondeat superior rule usually applies even though a truck company employer may not have committed an independent error. However, some jurisdictions including Illinois and New Mexico require some complicity on the part of the employer. A minority of jurisdictions, including Arizona, allow punitive damages where liability is vicarious only when the employer also acted with reckless disregard. See Section 217 c of the Second Restatement of Agency; Torres v. North American Van Lines, Inc., 135 Ariz. 35 (1982). Oregon is among this minority.
Because employers’ liability is “vicarious” under a respondeat superior theory, employee wrongdoing is a prerequisite for employer liability. See Section 228 of the Restatement of Agency.
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III. “Punitive Damages”
Punishing Bad Trucking Conduct
If a commercial motor carrier or trucker consciously disregards safety regulations, punitive damages (damages to punish) may be available. Such conduct is known as “gross negligence.” Inattentiveness alone is generally not gross negligence.
Punitive damages have been found appropriate when a defendant trucker or trucking company, seeing two choices, decides to violate a safety law that results in foreseeable harm. In deciding whether to award punitive damages many courts consider whether there has been a pattern of safety violations. Other courts believe that whether or not conduct rises to the level of gross negligence is a question for a jury to decide.
Since punitive damages are designed to punish the wrongdoer, resulting awards should be large enough to accomplish that goal. Typically, punitive damages (Oregon specific punitive information) are not awarded against a defendant employer where there is no independent fault of the employer. However, unlike the employee, where the employer’s conduct was sufficiently egregious, employer misdeed need not be intentional.
Truck company employers have been hit with punitive damages where it was found that the employer: a) negligently hired a trucker; b) negligently retained a trucker; c) allowed a trucker to drive tired; or d) intentionally used unsafe equipment.
Trucker Testing Tricks
The truck industry, like any industry, has dirty secrets. For example, unscrupulous truck drivers have been caught faking drug tests with “clean urine” excreted through a “camel back” type bladder taped inside a pant leg. For this reason, unwitnessed urine tests are not reliable. (See Required Drug & Alcohol Testing)
Chain of custody issues also arise in the context of home sleep studies. Home sleep studies are the industry standard for diagnosing sleep apnea, a sleep disorder common to truckers. Sleep apnea is a condition whereby a person stops breathing or shallow breathes during sleep. Sleep apnea causes daytime fatigue, slower reaction time, reduced vision and lack of focus.
According to the Federal Motor Carrier Safety Administration (FMCSA) up to 28% of commercial drivers have sleep apnea. Truck companies are prohibited from allowing truckers to drive with sleep apnea. Even though sleep apnea is easily treatable with use of a Continuous Positive Airway CPAP device at night, some truckers elude proper testing by simply having a partner take the sleep study. Since the test is administered at home, there is no way to tell who actually takes a home sleep study. Proof of faked drug or sleep study tests is the type of wrongdoing that should justify an award of punitive damages.
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IV. Trucking Litigation Defendants
Truck Employers in Trucking Litigation
The trucker is just one of many who may be responsible for a truck crash. Most often, truck accidents originate from truck company mistakes occurring long before any impact. Such mistakes include: negligent hiring, negligent retention, and negligent entrustment to an incompetent driver. Even when an accident appears to directly flow from truck driver misconduct, truck companies can also be held responsible.
For example, victims of truck crashes may receive compensation from truck companies for crashes caused by driver fatigue if a court determines that the trucking company failed to monitor and discipline truck drivers for “hours of service” violations. A Texas court even awarded $1,000,000 in punitive damages against a trucking company in that situation. See Dalsworth Trucking Co. V. Bulen, 924 SW 2d at 731 (1996).
Similarly, a company or person who entrusts a truck to a known alcoholic, cocaine user, or person with a history of driving while intoxicated, may be held liable for injuries caused by that trucker’s intoxicated driving. This is so even though the entrusting person was unaware of the driver’s impairment at the time of truck operation. When the entrusting entity was aware of intoxication at the time of operation, the entrustor’s exposure multiplies. (See Required Drug & Alcohol Testing)
Lessors & Lessees in Trucking Litigation
Many interstate motor carriers do not own their entire fleet. As demand for trucks exceeds fleet capacity, trucking companies commonly lease heavy duty trucks and sometimes also truck drivers from independent truck owners. For persons injured by trucks, such lease arrangements could leave an injured person uncompensated due to the “empty pockets” of financially irresponsible independent truck owners hand- picked by a motor carrier happy to skirt responsibly. To correct this potential injustice, the Department of Transportation (DOT) leasing regulations make the truck owner and his driver, if engaged in interstate commerce, “statutory employees” of the motor carrier lessee. As a “statutory employer,” the motor carrier can be held vicariously liable for employees. The trucking lease will also address the issue of liability for truck driver fault when truck leasing is involved. That is one reason why it is important to obtain trucking leases in truck crash injury cases involving leased trucks or drivers.
Apparent Authority in Trucking Litigation
Suppose a motor carrier allows a leased driver to wear its company uniform. In that situation, regulations enacted by the Interstate Commerce Commission (ICC) impose legal duties on the carrier for driver conduct, financial capability, proper insurance and equipment safety.
Loaned Truck Drivers in Trucking Litigation
Suppose a truck driver is loaned to another trucking company at the time of the crash. The “new temporary” employer may be responsible for the driver’s errors under a “borrowed servant” theory assuming the borrowing employer exercised sufficient control over the “driver.”
Independent Contractors in Trucking Litigation
Generally speaking, an employer is not liable for injuries caused by negligence of an independent contractor. In addition, one who hires an independent contractor is usually not responsible for an independent contractor’s failure to obtain adequate insurance. For this reason, many motor carriers go to great lengths to describe its employee drivers as an “independent contractor” rather than an “employee.” However, when a trucking company exercises too much control over a so called “independent contractor,” the hiring trucking company may be held responsible for the trucker’s error whether or not the trucker is a traditional employee. An employer trucking company may also be held responsible when it uses unsafe equipment or fails to ensure its truck drivers are complying with federal safety regulations. A trucking company that intentionally violates a federal safety statute may also be subject to punitive damages, a special class of damages designed to punish and deter knowing violation of highway safety rules.
Equipment Sellers & Manufacturers in Truck Litigation
Claims against manufacturers and sellers of defective product (truck brakes, for example) that cause injury may be based on one or more of the following theories: 1. Strict Liability; 2. Breach of Warranty; and 3. Negligence. Strict liability and breach of warranty theories do not require proof of fault. To protect against the possibility that the strict liability theory or breach of warranty theory might fail, most product liability lawsuits also allege a theory of negligence. See (State Laws Require Working Truck Brakes)
*Strict Liability Theory
In nearly every state, makers and sellers are strictly liable (liable as a matter of law) for injuries caused by “dangerously defective products” (including equipment used in trucking)if the injured party shows:
- The product was defective (unreasonably dangerous);
- The defective condition caused the plaintiff’s injuries; and,
- The defect existed when it left defendant;
When, then, is a product dangerously defective? Failure to conform to federal regulatory standards can be persuasive evidence of a dangerous defect. In the context of truck injury claims compliance with both the Federal Motor Vehicle Safety Standard (FMVSS) and the Federal Motor Carrier Safety Regulations (FMCSRs) should be considered. The FMVSS regulates manufacturers while the FMCSRs regulate motor carriers. Not all courts allow evidence of a breached federal regulation in product liability cases. See Bradley v. Fontaine Trailer, 2013 U.S Dist. LEXIS 1538 (D. Conn. Jan. 4, 2013).
*Breach of Warranty Theory
In truck injury claims against manufacturers and sellers of based on a theory of breach of warranty a plaintiff must prove:
- The plaintiff’s injury;
- The equipment was either defective or failed to comply with its warranty;
- A defect in the equipment is the legal cause of injury; and,
- The defect existed when it left the control of the manufacturer or seller;
Number two requirement above may be satisfied by proof that the product or design was not fit for the ordinary purpose for which it was used. The plaintiff is not required to prove that she relied on the warranty, however. In one well-cited Arizona case, the court found a manufacturer of faulty bus brakes responsible under a breach of warranty theory even though a brake shop made modifications to the brakes that may have been the cause. In holding the brake manufacturer responsible, the court reasoned that the brake manufacturer could not delegate its repair obligations to the brake repair shop. Rager v. Superior Coach Sales, 111 Ariz. 204 211 (1974) (plaintiffs were passengers in a vehicle struck by bus).
If no trucking safety rule has been violated by a trucking defendant and neither strict liability nor breach of warranty theories apply, an injured party must prove that the defendant failed to act as a reasonably prudent person would have under those circumstances. In addition, injured persons must prove that the alleged failure to act reasonably was the foreseeable cause of the injury. Finally, the injured claimant must prove damages alleged. The plaintiff will usually be required to mitigate damages and show that damages are reasonably required because of the injury. The negligence theory has potential application to nearly every type of trucking defendant who may be at fault for the crash.
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V. Insurance for Truck Crash Claims
More Insurance required for trucks
To ensure public safety, motor carriers affecting interstate commerce, must have special insurance endorsements (MCS-90, MCS-82 or BMC-90) providing coverage for:
“Negligence in the operation, maintenance, or use of motor vehicles subject to the financial responsibility requirements…”
This coverage language is the basis for insurers’ responsibility to third parties injured in truck crashes. Federal regulations as of 2014 require minimum truck insurance limits for vehicles affecting interstate commerce. Minimum limits range from $300,000 for vehicles weighing less than 10,000 pounds carrying non-hazardous materials to $5,000,000 minimum limits for carriers hauling hazardous material or 15 more passengers. So, compared with minimum liability limits required by state law ($25k per person in Oregon, for example), the pie in trucking cases is bigger to start with. To verify whether a particular trucking company is in compliance with minimum trucking insurance requirements, go to www.safersys.org.
Purpose of Truck Liability Insurance: protect truck crash victims
To minimize the possibility that a truck might be driven without required liability insurance, federal regulators have made it difficult and time-consuming for insurers and motor carriers to cancel coverage provided under the MCS-90, MCS-82 and BMC-90 endorsements. As a result, a person injured in a trucking crash may be able to tap two or more insurance policies of a single motor carrier. A savvy attorney may be able to quickly double potentially available primary coverage by simply verifying whether a motor vehicle carrier properly, or insurer properly, cancelled an earlier liability coverage.
Overlapping Insurance Coverage for truck injury claims
Other opportunities for expanded coverage exist in the truck crash context. For example, a truck trailer may be owned separately from the tractor implicating multiple insurance policies. Also, a trucker’s personal auto insurance policy may be triggered when a trucker causes a crash while not carrying a load (bobtailing). Between themselves insurers often argue over which policy is primary and which is excess. To sort this out, courts look to policy terms, “other insurance” clauses and lease terms where a leased vehicle is involved. What it means for the injured party is potential access to further insurance funds as part of the recovery.
Truck policies interpreted in favor of finding coverage
A carrier’s liability policy will be interpreted under the state law of the state where the policy was issued. However, interpretation of the required liability endorsement is a matter of federal law. In addressing insurance coverage under commercial trucking insurance policies federal courts have a bias in favor of finding insurance coverage and any ambiguities in policy terms will be interpreted in favor of the insured, rather than the insurance company. Oregon follows that rule. St. Paul Fire & Marine Ins. Co. v. McCormick & Baxter Creosoting Co., 324 Ore. 184, 923 P.2d 1200 (1996).
Don’t Rush to Settle your truck injury claim
Absorbing huge losses associated with a truck crash is stunning to crash victims and survivors—psychologically, physically and financially. Insurers know that low settlements are most easily obtained in the days and weeks after a crash while a victim is still dazed and has yet to speak with counsel.
Do not settle your truck crash injury claim before:
- Damages are very well estimated;
- Responsible parties are identified; and,
- All identifiable insurance is implicated.
Although the damage trucks can cause is immense, who is responsible for truck crash injuries is not always obvious. Truck leasing arrangements may implicate parties not apparent to a truck crash injury victim. Also, settling early with one defendant may undermine ability to settle with others later. And, some damages, such as lost earning capacity, nursing care, loss of consortium and rehabilitation take time to properly quantify. Trucking safety laws may be violated by many parties involved in a trucking operation– from the driver, to mechanics, to corporate personnel and more.
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