Maximizing Damages by Maximizing Liability

Juries determine the full and fair value of a case through a complex calculus that weighs facts, emotion and “gut” reaction. A factor that can significantly influence the value of the case is the jury’s perception of the defendant’s culpability. The worse the defendant, the more generous the jury tends to be. This can be true whether or not punitive damages form part of the underlying claim.

This paper discusses a couple of liability concepts, unique to interstate trucking litigation that may prove helpful in showing the jury just how bad your defendant really is.

I. On-Board Communications Systems

Most interstate trucking companies use some form of on-board communications system that allows the driver and dispatcher to communicate in real time. One of the most popular on-board computer communications systems is maintained and licensed by Qualcomm, Incorporated. According to Qualcomm®, over 1,500 fleets in the United States use its communication and tracking system. Among the major trucking lines using parts of the system are J.B. Hunt, Fleetmaster, Swift Transportation, Perdue, Werner, Transport Industries, AG Trucking, Builders Transportation Co., Dupre Transport, Express Leasing, Luckey Trucking, MST Express, New Line Transport, Oak Harbor Freight Lines, Pottles Transportation, Specialized Transportation Services, Victory Leasing, Van Wyck, Florida Express, WH Transportation, Dart Trucking, Interstate Carriers, Zenith Freight, System TWT, Manfredi Motor Transit, Oliver Trucking and Millis Transfer.

The Qualcomm® system consists of computer terminals in the cab of each tractor through which the driver can communicate directly and in real time with fleet dispatchers. The system also provides real time GPS locator information, enabling the dispatchers to track the precise location of each truck in the fleet.

The logistical benefits to the trucking industry are obvious. Dispatchers no longer have to wait for drivers to check in to track the progress of a load, to predict delivery times or to redirect loads. Real time communication introduced never-before-seen flexibility and responsiveness to the industry. Given the competitive advantages the system creates, it is no wonder the interstate trucking industry embraced this technology.

The benefits of this technology to Plaintiffs pursuing interstate trucking litigation are no less obvious.

A. How the Systems Work

1. GlobalTRACs™ GPS Locator System

The GPS system has the ability to track fleet trucks at any on any preset timetable. Typically, the system is set up to register a GPS “hit” every time a message is either sent from the driver, or acknowledged as received by the driver. The system also registers a default “hit” every hour, if there has been no communication between the truck and the dispatcher. Depending on the carrier, the system may also register a hit when the truck’s engine is turned on, or when electronic downloads occur between the truck and the dispatcher.

Each GPS location hit records the precise time, latitude and longitude coordinates, as well as the distance to the nearest town and city. A sample GPS log is attached as Exhibit 1. From this information, you can develop an accurate timeline of where the truck was at any given time, including a fairly accurate estimation of whether it was moving or stationary.

2. OmniTRACs® Email Communications System

The system in the tractor looks and acts like a small computer terminal with a keyboard and LCD display monitor. Communication between the driver and dispatcher is through either free form emails or pre-set macros. Again, each fleet has the flexibility to establish its own macro protocol, but typical macros will include most standard communications, such as “ I have arrived at the shipper,” or “I am stopping for fuel.” Many pre-set macros contain blanks that need to be filled in by the driver or dispatcher to customize the message.

Carriers (and perhaps Qualcomm) maintain logs of these email communications between the driver and the dispatcher. Each log entry records the precise time the message was sent, the precise time the message was read, the content of the message and the urgency with which it was sent. A sample email log is attached as Exhibit 2. From this information, you can develop an accurate account of the driver’s activities at any given time.

B. How This Information Can Help In Trucking Litigation

There are several strategic advantages to having accurate location and activity information:

1. Logbook Accountability

Being able to track truck location in real time greatly simplifies proof of log hour violations. With GPS location information, you know where the vehicle is at any given time. Simple comparison of GPS locations against logbook entries will quickly ferret out false log entries and may expose hours violations, fatigue issues, speeding issues, etc.

2. Admissions -- Express and Tacit

The email logs include the precise words communicated between the driver and the carrier, and when they were communicated. Problems preceding a wreck, discussions of the details of a wreck, carrier reaction to the wreck, all may be memorialized in the email logs.

The logs can greatly assist with reconstructing events in the days and hours leading to the wreck. These events may prove valuable to prove not only what the carrier knew before the wreck, but also what it should have known. Driver complaints of mechanical difficulties, problems with delivery times, and fatigue issues, all may be gleaned from these records.

Carriers often issue fleet-wide warnings or notices that may be recorded on the email logs. These notices might include descriptions of accidents by other drivers, warnings not to engage in certain behavior, and other helpful information.

3. Use of the System While Driving

Communicating in real time offers great advantages to the industry. It also offers great danger. Although carriers advise their drivers not to use the system while driving, and the Qualcomm® system offers lockout controls to prevent use while driving, many carriers do not use the lockout protocol. Carriers offer a myriad of reasons for keeping the system enabled while the truck is moving, although none is particularly convincing.

When a carrier wants to communicate with its driver, it does not want to wait until the driver is at a rest stop to read the email. The dispatching flexibility attained by the system would be nullified if drivers could not respond on the fly. As a result, often drivers will either read or send emails while driving their 80,000-pound rigs at 60 miles per hour!

I know of at least five wrecks by one major carrier in which there is evidence that the driver was using an on-board computer communication system at the time of the wreck.

Comparison of the GPS logs with the email logs is often an effective way to determine whether the system was in use when the wreck occurred. The GPS system will locate the truck at the wreck site, where it presumably will stay stationary for several hours. A review of the email logs from that point backwards will document the times the driver either read an email or sent an email. Cross-referencing these log entries back to the GPS log will pinpoint the location of the truck at each communication. Mapping these communications as the truck heads toward the wreck site is often helpful.

When comparing the two logs, it is important to remember that some carriers establish special macros that do not register on the email logs. In addition, some messages (especially fleet wide messages) register on the email log, but not on the GPS log.

4. Paperless Logs

One carrier, Werner Enterprises, Inc., has been operating using a “paperless” log system since 1998 under a pilot project with USDOT. The paperless log uses information gleaned from the Qualcomm® system (FleetAdvisor®) to generate computer logs. Until very recently, the system contained several defaults that tended to understate the number of “on-duty” and “driving” hours recorded. As a result, drivers could violate their DOT maximums with impunity. DOT has recently made an effort to debug the system. It is unclear whether DOT’s efforts have been successful. FMCSA regulation § 395.15 permits carriers to use on-board computer systems so it may only be a matter of time before other carriers begin using this system to create their driver logs.

The problems with the paperless log system are many and complicated and beyond the scope of this general topic. If this issue comes up in any of your cases, give me a call and I’ll be happy to discuss it with you.

II. Negligent Hiring and Retention

A second liability concept that has unique application in Interstate Trucking litigation is the claim of negligent retention. Because of the highly regulated nature of interstate trucking, an unusually rich vein of information can be mined for evidence of negligent retention.

FMCSA regulations require that carriers maintain a driver qualification file, with pre-employment records, as well as an annual review of driver performance, accidents and violations (§ 391.51). Although the DQ file provides a good starting point for a negligent hiring and retention claim, the carrier’s internal records that may be critical to this claim often fail to find their way into this file.

Many carriers have both risk management and safety departments. These departments may be organized in very different ways and may maintain different internal records regarding the driver’s accident history. It is important to explore fully the records maintained in each department.

In one recent case we had, the driver’s DQ file contained no record of any accidents during the driver’s four-year employment with the company. The risk management department likewise claimed not to have any records of prior accidents. After months of motions to compel, however, a file in the safety department was unearthed which showed that the driver had no fewer than NINE accidents in the prior four years; that the company had found 7 of the accidents chargeable to him; that he had been placed on internal probation 3 times for preventable accidents; and that he was on two overlapping year-long probations at the time of the wreck in which we were involved.

The lesson is that DQ files are a starting point, not an ending point on negligent hiring and retention claims.

III. Videotape Depositions

Finally, ALWAYS videotape the depositions of the driver and the 30(b)(6) representative. Inevitably, there will be moments in a driver’s deposition that you simply need to show the jury. Besides, even Mother Theresa looked shifty when she was videotaped. And you never know just how bad the driver will look.