Texas Litigation Law

Before we get into a recent law passed in Texas, we should revisit a crash that occurred in Texas in 2014 that resulted in an $89.7 million verdict against Werner. The crash happened during a freezing rain and the roads were slippery. The plaintiff’s vehicle and the Werner truck were driving in opposite directions on I-20. The plaintiff’s vehicle lost control, crossed the median and struck the Werner truck. One child in the vehicle was killed, another was left a quadriplegic. The plaintiff and another passenger also suffered serious injuries.

During the trial, the plaintiff’s attorney argued that Werner was negligent for failing to adequately train its driver. He further argued that Werner should have warned its driver that he was heading into icy conditions, and should have advised him to park his truck. It should be noted that at no time did the Werner driver lose control of his vehicle, even after the collision.

Werner has appealed the verdict and a Texas appellate court has agreed to hear the case.

Recently, Texas bill HB19 was passed into law and will go into effect on September 1. This new law requires that a jury find a trucking company or driver liable for a crash before they can assess exemplary damages. This puts in place a two-phase trial where the first phase solely considers liability. If the trucking company or its driver is found to be liable for the crash, then the jury can consider the amount of damages to be awarded.

Much has been written about “nuclear” verdicts and how plaintiff’s attorneys are achieving them. In the Werner situation, they simply ignored any responsibility on the part of their client and focused the jury’s attention on Werner. The jury is left with the concern that uncaring companies release dangerous drivers onto the highway and they, the jury, must send a clear message that this must stop.

Hopefully this new Texas law will bring liability into a sharper focus as being separate from awarding damages. Also, this should help focus more attention on the plaintiff’s actions and how they might have caused, or at least contributed to the crash. Time will tell how this actually affects outcomes.

2021 Roadcheck Results

The Commercial Vehicle Safety Alliance (CVSA) has released the results for this year’s Roadcheck which was held in May. Throughout the U.S., Canada and Mexico over 40,000 inspections were completed. Inspectors primarily conducted the North American Standard Level I inspection which is a 37 step process that involves a thorough inspection of the vehicle, including underneath, as well as the driver. Inspectors also conducted Level II Walk-Around Driver/Vehicle Inspections, Level III Driver/Credential/Administrative Inspections and Level V Vehicle-Only Inspections.

Overall, 21.8% of the vehicles and 5.2% of the drivers were declared out-of-service (OOS) due to the discovery of critical vehicle or driver violations as identified in the CVSA North American Standard Out-of-Service Criteria.

Results

Drilling down to the U.S. statistics, there were 8,293 vehicle OOS violations, and 2,477 driver OOS violations. As you might expect, the top three vehicle OOS violations were brakes, tires and lights. It’s interesting to note that the top driver OOS was for hours of service violations. Overall there wasn’t much change in the U.S. statistics compared to last year. One interesting change was that this year the number two driver OOS was for a wrong class license. Last year the number two driver OOS was for cell phone use which doesn’t appear on the top five this year.

Examples of “Other” driver violations include operating without the required operating authority, expired or no medical certificate, operating a commercial motor vehicle while ill or fatigued, driving while prohibited in the Drug and Alcohol Clearinghouse, etc.

For those that passed the inspection process, there were 8,489 CVSA decals issued to power units, and 2,898 for trailers.

Younger Driver Assessment

The American Transportation Research Institute (ATRI) released Phase 1 Beta test results for its Younger Driver Assessment Tool.  ATRI-Developing-a-YDAT-Tech-Memo-Phase-1-Beta-FINAL-08-2021 ATRI built upon an earlier report from the University of Minnesota which concluded that unsafe driver could reliably be predicted by personality traits, health status, lifestyle factors and cognitive ability. The purpose of the Beta test was to determine how reliable the Young Driver Assessment Tool would be in predicting future results.

The test involved 94 drivers ranging in age from 20 to 60 years. The participants used laptop computers to answer questions designed to quantify various personal traits such as reasoning, impulsivity, sensation-seeking, sleep quality, and cognitive control. Each participant’s safety performance was obtained through Motor Vehicle Records (MVR), Pre-Employment Screening Program (PSP) and participant self-report.

The report found that “drivers classified as less safe based on MVR data do not fully overlap with drivers classified as less safe based on PSP data. Of the 52 participants who had PSP data available, 25 were classified as less safe based on having any commercial vehicle-related crashes or violations. Of these 25, 11 were also classified as less safe based on having any MVR violations. When the two indices (MVR and PSP data) are combined, 11 drivers are classified as less safe on both metrics, 25 drivers are classified as less safe based on one of the metrics, and 16 drivers are classified as safe based on both metrics.“

The completed report runs 47 pages and takes a deep dive into the data and analyzes how specific assessment measures such as the Beck Depression Inventory-II and the Urgency, Premeditation, Perseverance, Sensation Seeking and Positive Urgency Impulsivity Behavioral Scale contribute to an understanding of the risk level of younger drivers.

The purpose of this Beta test had more to do with validating the approach rather than uncovering the definitive testing regimen that will predict future safety outcomes. ATRI found strong correlation between some of the behavioral indicators and adverse safety outcomes. On the other hand, they identified some assessment measures that could be dropped from future studies.

ATRI intends to move forward with Phase II which will include a sample size of 300 individuals closer to the target age of 18 – 25. Although they do not specifically address how they will enroll that many younger CDL drivers, it might be inferred that many will be intrastate drivers.

Does this have value? The value derived from these continued studies may come it two different ways. First, ATRI is exploring the relationship between behavioral traits and safety outcomes. This goes far beyond analyzing an applicant’s MVR, PSP and work history. ATRI may be able to define an assessment methodology that will work for all age groups of drivers, and this could be a plus for motor carriers.

However, the main focus of these studies is to develop a reliable means to assess younger drivers prior to putting them on the road in charge of a commercial motor vehicle. Given the labor shortage at the present time, lowering the entrance age into the industry may gain more support, but won’t receive regulatory approval unless there’s strong evidence that safety will not be compromised. This will certainly be a challenging subject.