CLM’s Transportation Community regularly gathers claims, risk, and legal experts in the transportation field to discuss trends in the industry. In this edition, moderator James Foster leads a discussion on pre-suit strategies, what to look for in independent adjusters, and how to select the best defense counsel and expert witnesses.
James Foster: In your view, do trucking cases get better with time? If not, what tactical steps do you take to settle a case early on? In your opinion, is a pre-suit mediation or a mediation early in the case an effective strategy?
Gwen Malone: No, cases get worse with time, namely due to discovery and allowing plaintiffs more time to build up their damages. Pre-suit mediation is a great way to prevent this.
Brendan Keeley: Trucking cases generally do not get better with time in our experience. After the initial investigation is completed, a pre-suit mediation can often be helpful in certain matters, especially those where it becomes clear that claimant’s counsel has client control problems. In such cases, the assistance of a solid mediator and a mediation setting can be invaluable.
Nicole Spellecy: Trucking cases do not get better with time. The longer a claim is open, the more likely the medicals bills will increase, and it’s also more likely a surgical recommendation will be obtained or surgery will occur. I make every effort to resolve claims early with first call settlements when a claimant is not represented by an attorney. On cases where there is attorney involvement, I try to arrange pre-suit mediation on clear liability cases in an attempt to get the claim resolved before any surgical recommendations are made or claimants have a chance to run up the medicals. If we are unable to settle a case before it goes into suit, we typically try to guide our litigation strategy toward early mediation, oftentimes before parties are deposed and experts are retained, especially if we have aggravating factors such as log issues or driver issues.
Foster: Can a good independent adjuster help to win a trucking case, from the initial emergency response to a social media check and surveillance on plaintiffs?
Gwen Malone: Yes, especially if the independent adjuster knows what to look for and is also provided clear and concise instructions as to what is needed.
Brendan Keeley: A good independent adjuster who knows trucking can be an incredible resource. Not all independent adjusters know what to look for during an initial trucking emergency response, but if they do have experience in this area, they can be incredibly helpful. You only have one chance to gather critical initial information and materials in most/all trucking matters, so the help of a good independent adjuster who knows what to gather and uncover is invaluable.
Nicole Spellecy: I believe a trusted and effective independent adjuster plays a huge role in resolving a claim when they are sent to the scene once an accident occurs, since they can collect important materials and information that may not be there several days later. Most independent adjusters have relationships with police departments that respond to a catastrophic loss and can leverage those relationships to obtain information that they would not typically have access to. Independent adjusters are able to get a first look at the claimant to see how they are acting and who they are talking to, and they are able to canvass for witnesses or cameras that may have caught the accident on video. They can see where the debris is lying on the ground to tell the exact point of impact, and if there were skid marks indicating that evasive action was taken. My general rule of thumb on cases with alleged serious injuries is to get early activity checks, background checks, and social media checks on the claimants to be able to see what they are doing immediately after the accident.
Foster: Why is it important to retain defense counsel that has experience defending trucking cases?
Gwen Malone: Trucking cases are unique, given all the various nuances involving the federal regulations that are required to understand how all the various systems work on a truck and what they mean in relation to the accident.
Brendan Keeley: Trucking cases are not general auto cases, and general auto cases are not trucking cases. Trucking work is heavily regulated, and the focus of a particular case is not always just on the collision itself. All too often, the focus is on the motor carrier involved and that motor carrier’s compliance history. It is critical to retain defense counsel who has experience defending motor carriers and who can truly determine the potential impact of a motor carrier’s history in the industry.
Nicole Spellecy: It is very important that you retain a defense attorney who has working knowledge and experience with trucking, specifically in catastrophic damages cases as well as cases in which liability is heavily disputed. Defense counsel can aid the insurance carrier in responding to preservation requests and working with the insured on compiling and preserving the same to avoid adding a spoliation issue on top of an already complicated claim. Trucking claims tend to be more complex, and the insured has greater exposure than your typical personal lines claims. Defense counsel who are aware of the typical issues encountered when dealing with trucking claims will allow you to catch issues early on.
Foster: Under what circumstances do you consider retention of expert witnesses beyond an accident reconstructionist? For example, have you retained biomechanical experts, human factors experts, and/or a cellphone expert?
Gwen Malone: As much as possible, specifically anytime the injuries do not match the mechanism of the accident, or if it will bolster the defense of the case by casting doubt on the plaintiff’s alleged claims.
Brendan Keeley: We have retained multiple experts beyond accident reconstruction experts over the years, including biomechanics, conspicuity experts, cellphone experts, and others. Additionally, we have found it to be incredibly helpful in certain matters to retain a solid Department of Transportation/Federal Motor Carrier Safety Administration safety expert early on. The right safety expert can provide early, critical opinions concerning motor carrier compliance issues, driver training issues, hours-of-service problems, along with a host of other issues that could very well lead to direct motor carrier liability.
Nicole Spellecy: I retain expert witnesses depending on the trucking case and injuries involved. I would retain a biomechanical expert if we had an accident with minimal impact and the claimant impact severity does not align with the alleged injuries. I have utilized human factor experts on cases in which perception-reaction time is in question based on time of the day, roadway conditions/configuration, or speed. With regard to cellphone experts, cell records do not always tell the whole story.However, forensic cellphone experts have access to an incredible amount of data that can change the trajectory of a case in either good or bad ways.
Meet the Panel
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 co-chair of CLM’s Transportation Community. He is also on the faculty and executive council of CLM’s Claims College’s School of Transportation.
Gwen Malone currently works as senior director of major cases for the largest bus company in North America handling catastrophic losses. Prior to that, she worked as the litigation coordinator and claims manager for a large trucking company in Tennessee following 20+ years working as a litigation paralegal for three large insurance defense law firms in Tennessee.
Brendan Keeley is a founding partner of Baumann, Gant & Keeley, P.A., and he serves as the managing partner of the firm’s North Florida office located in Jacksonville. His primary areas of practice are transportation and trucking litigation, wrongful death, and premises liability litigation. He has been a CLM member since 2012 and serves as a faculty member of CLM’s Claims College as an instructor in the School of Transportation.
Nicole Spellecy has been a senior liability claims adjuster for Canal Insurance Company since 2017. She specializes in collaborating with claims legal regarding complex coverage issues, including drafting reservation of rights and coverage declination letters. She adjusts cases with significant exposure, including cases with potential excess exposure, on an inside basis, including investigating, evaluating, negotiating, documenting, and validating a resolution within authority levels; managing litigation budgets and strategies with attorneys assigned to the defense of the insured; and attending mediations and trials as a representative of the company.