Leading Out Loud: Transportation

We ask three experts about transportation trends, including some of the biggest opportunities and challenges in claims and litigation

May 09, 2023 Photo

[Editor's Note: The following content is sponsored by Cassiday Schade, LLP, Fleet Response, and Resolve-Medical Claims Resolution.] 

How has the rise of e-commerce affected claims and litigation? What trends in fraud have emerged? And finally, what are some of the biggest challenges and opportunities facing the transportation industry today? We ask three experts to offer their opinions.

The rise of e-commerce and delivery services has led to an increase in the number of commercial vehicles on the road. How is this impacting claims and litigation?

James A. Foster, Cassiday Schade, LLP: Although there may be more commercial vehicles on the road, the one constant in defending transportation claims is the importance of communication with the driver, who is the face of the company. Defense counsel should establish a rapport with the driver beginning on the day an accident occurs, and maintain contact to prepare the driver for deposition, where cases are won or lost. This communication should be maintained through trial and is even more important if the driver no longer works for the trucking company.  

Sandy McClure, Fleet Response: Post-COVID-19 created an even greater shortage of experienced drivers in the trucking industry, which required motor carriers to hire less-experienced drivers. This also increased the risk of accident claims that could lead to an increase in litigation claims. Because e-commerce has increased the demand for more delivery vehicles on city streets and roadways, particularly in residential areas, it could increase the risk of vehicle accidents, property damage claims, and probable litigation.

Marc Chapman, Resolve-Medical Claims Resolution: Certainly, the rise in transportation-related casualties directly increases claims and litigation. Our job is to help clients avoid grossly overpaying the medical charges associated with those injuries. 

The FMCSA recently updated its safety measurement system, a risk-based safety program that uses data to identify and target high-risk motor carriers for enforcement. Is this program helpful? With that in mind, what are some ways you “predict and prevent” transportation-related claims, and is it having an impact on litigation?

Sandy McClure, Fleet Response: Yes, because each motor carrier has a compliance safety accountability score that tells them if they are maintaining on-road driver safety. The score is calculated on a 0-100 scale, with higher numbers indicating a lower safety level, affecting the motor carrier and the driver. Seven roadside inspection basics can help predict and prevent probable transportation accident-related claims:

  • Observable unsafe driving behaviors, including speeding, reckless driving, improper lane changes, inattention, and not wearing seatbelts.
  • History of crash involvement.
  • Noncompliance with hours of service/logbooks.
  • Observable vehicle maintenance, such as brakes, light defects, and failure to make repairs.
  • Use or possession of controlled substances/alcohol.
  • Hazardous materials compliance, such as leaking containers, improper packaging, and/or placarding.
  • Driver fitness questions, such as having an invalid license or being medically unfit to operate a CMV.

Motor carriers/drivers that have high scores will predictably be at high risk for accidents and probable litigation claims.                     

What kinds of scams or fraudulent activity have you seen in the commercial auto arena? How are you combatting it?

James A. Foster, Cassiday Schade, LLP: The defense is fighting against plaintiffs’ scams and fraudulent activity in trucking cases, as evidenced by the defense’s response to staged accidents in New Orleans. Trucking companies and defense attorneys are working together on a united front, and there have been approximately 50 criminal convictions of those involved in staged crashes with trucks. The importance of securing dashcam, bodycam, and surveillance from the scene cannot be overstated to combat these frivolous claims.     

Marc Chapman, Resolve-Medical Claims Resolution: In our business, we do not deal with fraud. However, we have heard some of the most egregious medical charges referred to as “fraudulent” simply because no one pays the total amount being billed when charges are that inflated. To determine fairness in charges, we utilize a precise methodology of evaluation that includes the use of our extensive database encompassing over 20 years of financial data from every hospital in the U.S. Our methodology and reports accurately define what the charges in question should be, often 70-80% less than what it is. This information can be used in mediation, arbitration, or in negotiating settlements.

When you look ahead to the next five years, what are some of the biggest opportunities or challenges you see in transportation claims and litigation?              

Marc Chapman, Resolve-Medical Claims Resolution: The biggest challenge we help our clients address is the exponential rise in health care charges. Facilities’ cost-to-charge ratios continue to spread wider year over year regardless of governmental attempts to rein in charges or create transparency.

This creates a large problem for claims teams that certainly do not want to overpay medical charges, but they do not know where to turn for affordable evaluations and support. When medical charges are marked up over 1,000%, agreeing to settle a claim at a 30% discount is obviously not a good deal.

Increased claims volume poses additional challenges for claims teams. Sorting through 140-page demand letters is time-consuming and arduous even for highly skilled adjusters. 

Resolve’s technology solves these challenges, saving both time and money for claims teams and allowing them to manage larger workloads with accuracy and efficiency while gaining far fairer results.

James A. Foster, Cassiday Schade, LLP: Hopefully, more states (like Florida) will enact tort reform for judicial fairness and level the playing field for the defense bar in both discovery and at trial. There may also be a reduction in the number of nuclear verdicts with the development of Level 4 autonomous trucks, which operate without a driver, as aggravating factors like driver impairment, fatigue, and cellphone usage will not be aspects of the case.

Sandy McClure, Fleet Response: Opportunities and challenges with transportation claims and litigation in the next five years include correcting the driver shortage concerns; mitigating risk in the transportation industry regarding vehicle accidents, workplace injuries, workers’ compensation claims, workplace violence, and sexual harassment; creating and maintaining a sustainable safety culture; cybersecurity attacks in the transportation industry; and coexistence with our ecosystem to prevent global warming.

Marc Chapman is president and founder of Resolve - Medical Claims Resolution (a division of Chapman Consulting, LLC). mchapman@resolveclaims.co

James A. Foster is a partner at Cassiday Schade, LLP.  jfoster@cassiday.com

Sandy McClure is safety director at Fleet Response. smcclure@fleetresponse.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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