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The Roundabout

Changing the narrative in transportation-related losses

November 21, 2022 Photo

CLM’s Transportation Committee regularly gathers claims and legal experts in the transportation community to discuss trends in the industry. In this edition, moderator James Foster leads a discussion on runaway verdict success stories and offers strategies on countering reptile theory-based strategies by plaintiff’s attorneys.

James Foster, Cassiday Schade, LLP: We continue to hear about runaway or astronomical verdicts, which now extend into the billion-dollar range, but there have been significant “success” stories. Do you have an example of a positive outcome?

Angela Kopet, Copeland, Stair, Valz & Lovell: We have had quite a bit of success in getting direct action claims (hiring, training, retention, and entrustment) against our trucking companies and other employers dismissed through the filing of motions for summary judgment, motions for judgment on the pleadings, and similar dipositive motions via the preemption doctrine. This has simplified some of the claims we have faced headed into discovery and trial.

Pam Bracher, Mohave Transportation Insurance Company: Positive outcomes are all around us. As I scroll on LinkedIn, I see alerts for defense verdicts, motion for summary judgment wins, or verdicts for amounts significantly less than the plaintiff’s last demand. Many times this year, I have received listserv emails from my peers and friends in the transportation industry with similar good news. We should not be so quick to fall prey to the alarmism of runaway verdicts.

Paul Greene, Canal Insurance Co.: My company continues to try cases—up to approximately a half dozen this year—with almost entirely favorable results. Three separate trials on admitted liability claims resulted in juries awarding just the medical bills (including one in state court in South Texas). It’s very important to pick the right cases to try.

Foster: In trucking cases, how important is it to know who the plaintiff’s attorney is? How does the venue, judge, and jury composition impact your case evaluation and plan of action?

Kopet: It is very important to have some information on plaintiff’s counsel. This intel can help you determine if you are dealing with an aggressive or passive adversary; if the attorney is experienced in trucking litigation and/or trials; and if they are reasonable or can be difficult when it comes to discovery and/or settlement negotiations. Knowing the judge is important when it comes to case evaluations because it gives you an idea on what motions are likely to be successful or unsuccessful, or how the litigation will be directed. Finally, knowing your venue allows you to understand the jurors who may ultimately decide your case, and the expenses associated with litigation based on where your client is located.

Bracher: Information about the plaintiff attorney, venue, judge, and jury composition are important data points. You want to have as many data points as possible to consider when you develop your plan of action and case evaluation.

Greene: These factors are all critical in order to plot the course for resolution of a claim. Understanding your opponent and the arena are some of the most important factors in determining whether you can try a case, or whether it’s one to settle. Also—and often overlooked—is looking at why a particular venue is bad. It may not necessarily be a bad venue for your case.

Foster: Can technology help you win your trucking case, including dash-cam video on the truck and surveillance video from the scene?

Kopet: Absolutely. These types of videos can show you the movement of the vehicles, the speeds involved, and how the accident actually happened. Evidence of what occurred is preserved and can be utilized during the discovery phase, and then used to persuade a jury during trial, if helpful. Alternatively, if a video shows you something that is troublesome, then it can assist you in adequately evaluating the case from a settlement standpoint.

Bracher: Technology is important, both in terms of technology on the tractor that assists in the mitigation of risk, and systems such as dash-cam video. Specifically, with respect to evidence like dash-cam video, it can exonerate the truck driver, and it can give crucial talking points in disputed liability accidents that can be leveraged for pre-suit resolution.

Greene: They can absolutely help you win your case—and also can help you decide when to get rid of a case as quickly as possible. Ascertaining the existence of video immediately in a claim is a crucial first step for claim evaluation.

Foster: The reptile theory attack and playbook from the plaintiff’s bar continues to secure admissions from the corporate defendant witnesses. How important is it to spend the time to both identify the corporate representative witnesses for the trucking company as well as to prepare them for deposition and trial?

Kopet: Along with appropriate motions practice, prepping the corporate representative is a very important element of defending against the reptile theory. You need to identify a likeable representative to respond to plaintiff counsel’s tricky and often misleading questions in a trustworthy manner while also humanizing the trucking company overall. Then, you need to train the corporate representative to quickly recognize the reptile theory-based questions, and combat the tactics used with responses that are not considered evasive, argumentative, or defensive. This takes a considerable investment of time before their testimony, but it is time well spent to mitigate the high risks that can be involved.

Bracher: As a child, when playing guitar and piano, I was told that practice makes perfect. It was a frustrating adage to hear as a child, but as an adult, I embrace its truth. When you get a notice of deposition for a corporate representative, you need to start with a thorough analysis of the topics in order to identify the ones that require narrowing (or objection in a motion for protective order) and to identify the appropriate representative or representatives. When preparing a representative, it will often require several meetings and mock questioning (ie., “practice”) to prepare your representative properly for a deposition.

Greene: Educating your company witnesses as to reptile theory-based tactics will not only help them give a better deposition (and therefore promote a better result in the case), but also it can help them spot issues giving rise to reptile theory-based attacks proactively, to address them to lead to a better result in the next claim. K

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 Committee. He is also on the faculty and executive council of CLM Claims College’s School of Transportation.

Angela Kopet is a partner in Copeland, Stair, Valz & Lovell’s Tennessee office with over 25 years of experience in transportation, construction, premises liability, and insurance coverage. She routinely defends corporations, insurers, and insureds throughout Tennessee and Georgia, and has been involved with CLM since its inception, currently serving as a dean of Claims College’s School of Leadership.

Pam Bracher is executive claims leader at Mohave Transportation Insurance Company (on behalf of Knight Swift Transportation). After almost a decade in private practice, she moved into an in-house legal role with a commercial motor carrier self-handling its transportation claims in 2006. Within her 17 years in the transportation industry, she has held various leadership positions, overseeing and defending truck accident and cargo claims and working closely with outside defense counsel to represent the trucking company and its affiliate companies at various stages of truck accident pre-litigation and litigation.

Paul Greene is assistant vice president, complex case unit, at Canal Insurance Company. In this capacity, he manages the company’s complex case adjusters, providing strategic resolution and litigation advice on Canal’s largest and most complex claims. Prior to moving in-house, he was a partner with Gallivan, White & Boyd in Greenville, S.C., where he practiced for 12 years primarily in the areas of insurance coverage and business and construction litigation.

About The Authors
Jim Foster

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 Committee.  jfoster@cassiday.com

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CLM’s Transportation Committee provides education, training, and solutions on significant current commercial and personal transportation issues facing insurance carriers, corporations, and other entities and individuals.

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