Nuclear verdicts, awards of $10 million or more, continue to increase in dollar amount and frequency, presenting major financial and operational risk to over-the-road (OTR) trucking firms. According to a study by the U.S. Chamber Institute for Legal Reform (ILR), from 2010-2018, the number of cases with verdicts over $1 million increased by 867%. Data from ILR also shows that from June 2020 to April 2023, the average plaintiffs’ award in trucking lawsuits was $27.5 million and the average settlement was $10.6 million.
The use of the reptile theory by plaintiff’s attorneys is one of the factors driving up awards and settlements. According to Law.com, “Reptile theory is a trial strategy that focuses on using fear and anger to motivate a jury to dislike a defendant so much that it will award an unwarranted large verdict to the plaintiff. It focuses on safety and security issues by seeking to have jurors envision themselves caught in the same situation that the plaintiff suffered, engaging the most primal part of a juror's mind.”
Another powerful strategy being used is anchoring. The New York State Bar Association defines anchoring as “a powerful tool used by plaintiff attorneys in civil suits throughout the United States to secure high damage awards for their clients. Anchoring is a strategy used to cause jurors to rely on a specific reference point, or ‘anchor’, when evaluating damages in a lawsuit.”
Both of these strategies are being utilized by plaintiff’s attorneys to manipulate the jury and impact the verdicts and negotiations.
Nuclear verdicts remain a top concern for trucking companies large and small. The American Transportation Research Institute’s (ATRI) 20th Annual Top Industry Issues report found that motor carriers ranked lawsuit abuse reform as a top concern. That concern stems from the far-reaching financial impacts of large verdicts, which are driving up insurance premiums and even leading to bankruptcy for some trucking companies.
According to the ILR, “Over 72% of everything that gets shipped in America is carried by truck, and over 90% of trucking firms are small businesses.” The rise in nuclear verdicts is damaging for these small business truckers who can’t afford the increased insurance costs and risk of litigation.
In a business environment that includes the growing threat of litigation and nuclear verdicts, it is critical for OTR companies to take a proactive approach to enhancing safety and preventing accidents. Implementing the three strategies outlined below can help trucking firms mitigate accident risk and avoid litigation.
Strategy #1 – Invest in technology now
Trucking companies that have not already done so should invest in easy-to-implement technology such as telematics and dash cameras, which can improve safety and reduce liability claims and litigation.
Telematics technology provides real-time data on vehicle location, driver behavior, and vehicle performance. Onboard telematics systems can improve route planning to help drivers avoid slowdowns, heavy traffic, dangerous road conditions, and hazards such as construction. Telematics technology also provides predictive data to optimize maintenance schedules, lower the incidence of breakdowns, and yield critical evidence in accident cases that can reduce liability risks.
Driver-facing and rear-facing dash cameras are becoming increasingly common in long-haul trucks today. Driver-facing cameras can detect risky driving behavior, alert drivers to safety concerns, and allow companies to provide feedback and training to correct unsafe behaviors. Outward-facing cameras provide continuous recordings of the roadway that can help determine fault in an accident, prevent false claims, and protect companies from liability and nuclear verdicts. A recent study by the ATRI found that driver-facing camera footage “helps exonerate the driver (and carrier) approximately 63% of the time.”
Strategy #2 – Carefully hire and effectively train new drivers
A key challenge facing the trucking industry today is the driver shortage. This dearth in the workforce translates to fewer experienced, well-trained drivers on the roadways, which increases accident and liability risks. While this shortage has abated somewhat, according to the American Trucking Association’s chief economist Bob Costello, the industry is still short 60,000 drivers.
As truck driver recruiting, retention, and turnover continue to be an industrywide challenge, firms should not be tempted to cut corners when it comes to vetting driver job candidates. To mitigate liability risks, it is essential for companies to devote more resources toward the hiring and onboarding process. Companies should implement a comprehensive screening program that includes checking motor vehicles records, verifying commercial driver’s licenses (CDL), verifying previous employment, reviewing the Pre-Employment Screening Program (PSP) Report, and conducting drug and alcohol testing.
Once drivers are screened and hired, companies should provide regular safety training aimed at minimizing accidents and litigation risk. Using the data provided by telematics technology is an effective way for companies to provide individualized driver safety coaching aimed at addressing specific areas for improvement. This technology can collect driver metrics such as speed, braking patterns, acceleration, and seatbelt usage. By leveraging this data, companies can identify driving habits that may pose safety risks, and work with drivers to improve their safety.
More generalized driver safety programs should occur on a regular basis and cover topics such as safety procedures, updates on industry regulations, defensive driving techniques, and accident prevention.
Finally, companies must document all training to help maintain accountability, track individual performance and keep as evidence for their defense.
Strategy #3 – Establish and enforce policies
Establishing and enforcing safety procedures also is key to mitigating risk and reducing liability claims. A well-crafted safety policy should include a driver cellphone policy, hours of service policy, driver training requirements, and mandatory compliance with all relevant federal, state, and local laws and regulations.
Policies should be documented and presented in the form of an employee handbook that is regularly updated and reviewed to keep information fresh and to help employees better retain rules and regulations.
Drivers should understand that violation of any safety procedures will result in penalties and disciplinary action. These disciplinary actions can include verbal reprimand, written reprimand, and warning of probation.
It’s important for companies to keep in mind that having a policy and procedure in place but not enforcing it can be more damaging than not having the policy and procedure at all. This has been used in court to prove the plaintiff’s allegations that the motor carrier is negligent.
Wrapping up
As the trucking industry continues to face an increase in liability claims and litigation, managing fleet risk to enhance safety and prevent accidents should be a priority and an ongoing process. Trucking companies that implement strategies like the ones outlined above are best positioned to avoid litigation and nuclear verdicts and to protect operational resiliency.
