Truck attorney tip 6: Using joint and several liability laws to prevent a trucking company from sweeping negligence under the rug
How to stop a dangerous trucking company’s lawyers from hiding evidence by admitting negligence
Today we’re wrapping up our series dealing with the all-too-common commercial transportation defense attorney tactic of admitting “negligence” as a way to limit or completely preclude an attorney from showing just how bad the trucking company was and all the things it did that led to a crash that kills or injures someone. This defense is rampant in the trucking defense lawyer world today.
To briefly recap: We began this series by first laying out the five arguments that the trucking company will likely make to try to exclude evidence of their own negligence at trial. We then shared some tips for getting around this charade:
- First, the law in many if not most jurisdictions allows concurrent negligence claims against both the truck driver and the trucking company;
- The Restatement of Agency provides two separate causes of action;
- The Restatement of Torts provides two separate causes of action;
- Comparative fault means that the negligence of all parties be compared and considered (that’s why they call it comparative fault) and
- Asking the public policy questions about trucking law in the state where the crash occurred.
Today’s legal tip addresses joint and several liability.
As of this writing, most jurisdictions today have adopted some kind of several liability, especially within the context of respondeat superior.
And here’s the catch: The trucking company may argue that the plaintiff can still prevail on the several liability argument. An employer is vicariously liable for negligence of the driver, but the driver is not liable for negligence on the part of the company.
Our trucking lawyers have frequently blogged about so called “chameleon carriers.” In other words, trucking companies that kill or injure too many people or that compile too many safety violations, close shop and then “reincarnate” as a “new” trucking company.
I’ve seen trucking companies that literally have closed down on a Friday and start business with a new name but with the same unsafe trucks and poorly trained drivers on Monday. Truck Roundtable co-founding attorney Michael Leizerman was recently interviewed about one such company on CNBC. The problem is rampant in the transportation world today.
So what happens when a carrier causes a terrible truck accident that kills or injures someone, and then the company simply shuts down after the plaintiff or the estate of the plaintiff prevails at trial and gets a substantial verdict?
Well the unsafe truck company that owned the truck and employed the trucker who caused the crash is gone — but the driver remains. And that driver has to pay some portion of the trial verdict. So it’s imperative to know in this depressingly common example just how much fault for causing the truck accident will be apportioned to the truck driver, and how much negligence will be allocated to the trucking company, in the event the company is no longer around to pay a verdict.
Otherwise, what exactly is the plaintiff to recover from the trucker if negligence is not apportioned between the trucker and the motor carrier?
We will continue to write on the latest tactics of the trucking industry. This is a hugely important safety issue. If we let trucking companies and smart defense lawyers sweep and hide negligence from juries, all we’re doing is making it easier for these unsafe trucking companies to continue business as usual. Whatever deterrent effect a civil lawsuit might have is lost, and then everyone who shares the road with dangerous trucks loses.
We sincerely hope that you find these tips beneficial in holding dangerous trucking companies that don’t care about safety fully accountable.