Jim Foster: Do you agree that trucking cases do not get better with time? If so, what type of immediate investigation, social media checks, surveillance, and inspection of the vehicles and scene have you found effective to both assess cases and resolve them early on, possibly pre-suit? How important is the dash cam video in resolving cases?
Amy Dixon: Trucking cases in general do not get better with time. Scene investigations, data downloads from vehicles, quick social media checks, and vehicle inspections should take place as soon as possible to mitigate damages, determine liability, and posture for early settlement, if possible. If evidence is not collected early, then insureds may misplace documentation or drivers, dash cam videos, and cellphones may disappear. When the initial investigation indicates liability is adverse and rapport can be established with claimants before they engage with an attorney, pre-suit settlement is more likely to occur. Clear liability claims that are not settled early on can give plaintiffs time to unnecessarily drive up the value of their claim. However, it is not a hard and fast rule that things get worse with time. Occasionally a toxicology report, crash report, or recon expert may come back with something you were not expecting that completely changes the initial liability assessment or provides evidence to help with negotiating a settlement much lower than expected.
Dash cam videos can assist in making liability decisions much faster, especially when it is clear liability is adverse. In cases where the dash cam shows the insured driver is clearly at fault, it can eliminate the need for accident reconstructionists and other liability experts and cut straight to the damages to evaluate and settle. When dash cams provide liability defenses or liability is uncertain, they can assist experts in determining speed and the sequence of events more accurately.
Brian Poust: It’s rare that any claim gets better with time, and trucking cases are no better. Early notice of an accident is critical as it allows us to investigate and establish contact with effected parties, helping to maintain control of the claim situation and mitigate claimants seeking legal representation. Knowledge is key, so securing dash cam video, whether favorable or adverse, helps us to understand and plan accordingly. Scene inspection and EDR downloads are the most time sensitive investigations and should be pursued as soon as possible. This includes contacting neighboring businesses whose surveillance cameras may have captured the accident.
Jennifer Thomas: I do think that trucking cases in particular tend to benefit from immediate and detailed attention and investigation. Given the mobile nature of transportation, witnesses and evidence can get stale very quickly and immediate preservation can make or break a case years down the road (pun intended!). Driver, employee, and witness interviews and statements as soon as possible after an accident are critical. These people may be difficult to reach over time and memories fade or change with time and repeated retelling of the events. In addition, review of any applicable company or industry policies and procedures early on is important. If there is a violation of a policy or procedure, it’s important to understand why. In some situations, it may be more dangerous to follow a particular policy. Knowing that early on can help develop the explanation and guide the narrative of the defense story of the accident.
Emergency response and early site visits, with experts if possible, are extremely helpful early on to get a visual representation of the area, measurements, signage, copies of any CCTV from local businesses, etc. Looking at these in combination with driver dash cam video or any other vehicle mounted cameras, ESI, and aerial photos can help map out a complete picture of the events from different viewpoints. These all go together to assess the liability and value of a case at the beginning. If liability is clear, a pre-suit resolution may be appropriate beforeclaimant or their counsel have a full understanding of all the available evidence.
Social media and surveillance can be a gold mine. When doing social media searches, I look at posts of the claimant and any close connections not only for evidence of activities the claimant says he or she can’t do, but also for ways to mitigate wage loss and loss of earning capacity and insights into lifestyle and values that may play out later in party depositions or mediation and settlement strategy. Does the claimant have multiple income sources? Are they very active on social media? Is there anything in the claimant’s background that could, with a little retraining, lead to a new career to mitigate future damages? All of these factors can assist with early resolution.
Jim Foster: Do you find that plaintiffs’ use of the reptile theory—shifting the focus and putting the trucking company on trial—is still effective? Do you think that the identification, preparation, and strong deposition testimony of corporate representatives (30(b)(6) witnesses) significantly reduces the likelihood of an astronomical plaintiff’s verdict or settlement?
Amy Dixon: Although most of our cases settle long before trial, the reptile theory is still alive and well. Much of the discovery done before we go to mediation or settlement is often aimed at finding problems with the driver’s history, application or the insured’s hiring process. Many of our insureds are smaller trucking companies without large corporate structures. Since the corporate depositions are usually scheduled later in the case, we often have a good idea whether the case will resolve short of trial. In those cases, the preparation of the insured’s representative before a deposition is key for them to be prepared on how to answer leading questions from the plaintiff attorneys.
Brian Poust: I believe the reptile theory is alive and well, so strong preparation is key. This theory is even more effective with millennial and Gen Z jurors as they tend to value safety more than other generations, so defense counsel will need to design an effective defense strategy taking into account who is deciding the case.
Jennifer Thomas: The reptile theory is here to stay, but the defense industry is catching up on ways to make it less effective. Preparation of PMQ (30(b)(6) witnesses is critically important in trucking cases. A corporate spokesperson who is properly prepared can identify the early reptile-style questions and is less likely to be led into making statements that can seem reasonable when made, but can be dangerous when taken out of context by experienced counsel. This can greatly reduce the exposure provided that the witness answers appropriate non-reptile questions to maintain overall credibility. Stonewalling a proficient reptile opponent is not likely to lead to a productive deposition and can later put the witness and the company in an indefensible position.
One of the key strategies effective against the reptile theory is to have our corporate witness use the safety-related questions to broadly explain the story of the company: its history, background, and that it values safety as equally important for its employees as it is for third parties. This helps deflate a reptile counsel’s portrayal of the company as uncaring or unconcerned about safety. Anything that can be done to bring the focus back to the individuals involved and away from the size or net worth of the company is a good idea in my opinion.
Jim Foster: Do you assess the ability and experience of the plaintiffs’ attorney, venue, as well as the strength of the testimony of the driver, safety director and trucking company’s corporate representatives (30(b)(6) witnesses) into your case evaluation and resolution strategy?
Amy Dixon: When we evaluate cases, we take all the above into account. When defense counsel has some knowledge of how a plaintiff typically handles his cases and whether he is reasonable when it comes to negotiating, it helps us determine the best way to approach settlement with that particular attorney or firm. The strength of the testimony of our driver or other insured representatives may determine whether we agree to pay a little more than expected for a claim to avoid their testimony at trial or whether we have a strong witness on which to rely. We will also use the same knowledge in mediation arguments if we know a plaintiff makes a poor witness or is inconsistent with their testimony. Venue is often an important piece of the evaluation when we know judges are more plaintiff-friendly or juries have returned nuclear verdicts on similar cases. The amount of a nuisance settlement may vary greatly by venue, so it is important to have counsel weigh in on the impact of your venue.
Brian Poust: Case evaluation involves a laundry list of factors, including who is representing the plaintiff, their experience, and the venue. I certainly take into account how well the defendant’s employees presented and testified, and will consider it as part of our resolution strategy. However, strong testimony from a driver or corporate safety rep is no guarantee of a defense verdict. Other important factors include the use of mediators, counsel, and expert witnesses that opposing counsel respects.
Jennifer Thomas: It’s always important to know as much as possible about opposing counsel, the venue, the judge, and recent similar verdict trends prior to discussing resolution. An attorney experienced in trucking litigation may have a greater chance of a higher or nuclear verdict. However, I’m noticing a recent trend of “trucking” attorneys from other states associating with local non-trucking-focused plaintiffs’ attorneys who are not familiar with the venue and California laws. Interestingly, this has actually been leading to less effective reptile prosecution in some cases and venues.
With the testimony of drivers, safety directors, and other corporate representatives, credibility is a key factor in developing a defense strategy and evaluating exposure. If the defense witnesses are credible, consistent, and capable of withstanding the pressure of testifying at trial, that goes a long way toward reaching a reasonable settlement. Similarly, credible, believable and relatable defense witnesses help make the defense team comfortable rejecting inflated policy limits demands and considering taking the case to trial if plaintiff’s demand remains excessive.
Jim Foster: In your view, have mediations been effective recently? What strategies have you used to select a mediator, and are virtual or in-person mediations your preference, or is it case dependent? In your experience, domediations often require a second session to reduce plaintiffs’ expectations?
Amy Dixon: Effective mediations are determined by the merits of your arguments, how well you are prepared, and whether the mediator is willing to push the parties to settle. Whether we agree to virtual mediations or push for in-person meetings depends on the case. If we want to assess the plaintiff in person or know there is a client control issue for the plaintiff attorney, in-person mediation is often helpful as it gives the mediator that in-person communication to help the plaintiff see weaknesses in the case. I have found that if a case does not settle at mediation, having an agreement to continue with negotiations either through the mediator or between counsel is often helpful. Allowing a plaintiff to sit on an offer after mediation for a while gives them time to contemplate real money in their pocket now versus waiting for a trial date down the road. Mediators’ proposals have been helpful when we feel like the mediator has a good grasp on the case and may be able to get to a number both parties can tolerate. Most of our cases resolve in one mediation or in additional informal discussions after mediation, but second mediations are helpful when you have multiple plaintiffs competing for limited insurance funds.
Brian Poust: I’ma big fan of mediations and have had good success of late. Plaintiffs feel like they’ve had their “day in court,” and the mediator can be effective in conveying our position without the opposition immediately dismissing it. I think virtual mediations are fine, particularly since many mediators have steered away from opening statements by the parties and the parties never see one another. However, on serious or significant exposure claims, in-person attendance is preferred. Your personal presence is sending a message to the other side that you take the process seriously. I think many cases can be resolved during a single mediation. However, when a case is complex or each side has divergent views, it’s common to schedule a second or third mediation. Parties should be prepared for a second mediation and use the time between mediations to evaluate arguments, consider the mediator’s comments, and secure additional authority, if warranted.
Jennifer Thomas: I’m a proponent of mediation. If there aren’t a lot of areas of dispute, early mediation is a good option before plaintiff has incurred a lot of costs and time. This can create a situation that allows for a lower settlement value because the less that needs to go to the plaintiff’s counsel, the more control a plaintiff may have over the amount of the settlement. I try to select a mediator with a good background in personal injury, and lately, experience with complex medical cases, because I’m seeing more and more cases involving various orthopedic complaints along with claims of a traumatic brain injury (TBI). Sorting through the medical claims and the associated costs of future treatment, life care plans, vocational rehabilitation, and past and future wage loss can get complicated the longer a case takes to resolve.
In-person mediation is good for early resolution and also for those “eve of trial” mediations. Both give the plaintiff a sense of what’s to come and are a good opportunity to get an in-person sense of how they will present over the course of several days at trial. Virtual mediations are helpful if it’s a liability case without much need to discuss strategic details and specific evidence. One experience I had recently that I’m not sure I would recommend involved two plaintiffs, each represented by separate counsel in a non-consolidated case arising out of one accident. One plaintiff and counsel were in person, the other plaintiff and counsel were virtual. We ended up settling both cases at mediation, but it made for a very long and complicated mediation session.
James A. Foster is a partner at Chicago-based Cassiday Schade LLP. He leads an emergency response team for catastrophic transportation accidents and serves as chair of CLM’s Transportation Community. He is also on the faculty and executive council of CLM Claims College’s School of Transportation.
Amy Dixon is a claims manager with Obsidian Insurance Holdings who oversees program transportation claims, including trucking and school bus programs. Over 25 years in claims, she has worked with carriers and TPAs throughout her career primarily in auto, general liability, product liability, liquor liability, premises liability, and habitational claims. As head of program claims at AXIS Insurance, Amy focused on the partnership between the carrier, MGAs and TPAs to identify trends within programs.
Brian Poust is the vice president of claims for the Western Liability Unit of CCMSI, a leading third-party administrator for property/casualty and workers’ compensation self-insurance programs. Brian started his claims career as a P&C claims adjuster with Aetna back in 1987, working on national accounts. He subsequently attended law school and practiced with an insurance defense firm in Chicago before returning to his passion, claims, in the late 90’s working for TPAs. Brian began his career with CCMSI in 2004, helping to open its Chicago office prior to moving to CCMSI’s Colorado office to lead its liability program. Brian’s clients include carriers, the Lloyd’s market, and self-insured entities, overseeing their business auto, motor carrier, and general liability claims. Brian works closely with his clients, brokers, carriers, and vendors to ensure the best possible outcome for their mutual claims.
Jennifer Thomas is a trial attorney at Van De Poel, Levy, Thomas LLP in California. She focuses her practice on high-value transportation, consumer product liability, and premises liability cases in addition to other complex claims.