How Nuclear Verdicts Against Motor Carriers Will Affect Your Business

In March of this year, a small family-owned trucking company in Arkansas went out of business. The reason? A nuclear verdict and the resulting hike in its insurance rates. No matter that the carrier owned only the trailer involved in the crash and had brokered the load to another trucking company. No matter that the insurer of the truck driver, who perished in the crash, also paid a million-dollar verdict in the incident. And because of a rapidly increasing number of large verdicts like these, you pay more for your insurance no matter your safety record.

Still don’t think nuclear verdicts will affect you?

Motor carriers in America today face more than one epidemic. The number and size of large verdicts against carriers have skyrocketed in the last five years, with no cure in sight. The sheer weight of these massive verdicts forces insurance companies to increase rates to all sizes of carriers industry-wide and may even have a negative impact on roadway safety. Many carriers on the wrong side of these lawsuits go out of business, particularly owner-operators and small-to-mid-sized fleets unable to absorb the rate hikes.

Research just released by the American Transportation Research Institute (ATRI) shows the number of verdicts larger than $1 million grew 1,750% between 2006 and 2013, from 4 to 70 such verdicts, respectively. “Understanding the Impact of Nuclear Verdicts on the Trucking Industry” reveals that, in just the last five years, juries have awarded seven-figure verdicts 300 times. The size of verdicts against trucking companies has grown at an alarming rate as well. ATRI research found a 51.7% average annual increase in mean verdict awards every year between 2010 and 2018.

While multi-million-dollar verdicts cause significant issues for carriers who lose those lawsuits, they may not immediately force them out of business.  However, a “trickle-down” effect begins with the insurance industry reaction to large jury awards. As the trucking and insurance industries absorb nuclear verdicts, insurance premiums necessarily increase to offset the payment of the claims. Transportation costs then rise as carriers raise their rates to cover higher insurance premiums.

“All of the survey respondents indicated that insurers have had to increase premiums across all fleets as a result of these large verdicts – independent of fleet safety ratings,” Rebecca Brewster, president, and COO of ATRI told PrePass Safety Alliance. “Additionally, insurers have had to become more selective in who they insure and, in some instances, stop operating in the motor carrier sector altogether.” Tightening in the insurance market generally leads to more stringent underwriting requirements and higher rates.

So how can small-and-medium-sized fleets and owner-operators protect themselves? “Crash prevention is the best way to avoid a nuclear verdict and that starts with a thorough review and assessment of your safety training and practice,” said Brewster.

The danger lies in cutting costs to cover increased insurance rates, Brewster said. “A focus on cost minimization in your operations” [is a common misstep for carriers] “if it means you take shortcuts on safety training.” As mentioned above, nuclear verdicts can negatively impact safety on the highways by pressuring carriers to cut corners in safety practices.

Fear of a big verdict in a lawsuit can also lead carriers to cut litigation costs, such as not paying for an expert defense witness. The results can be disastrous. Brewster says, “that [having] an expert witness for the defense reduced the average verdict by over $800,000. Even when there was also an expert witness for the plaintiff, [the] use of one by the defense still led to an average reduction in the verdict of over $300,000.”

While the study did not try to measure the reasons for the increase in the number and size of awards, ATRI researchers did interview carriers and attorneys involved in truck accident litigation. The results are alarming if not surprising.

Lawyers said that “… ambulance chasing and excessive billboard advertising [with] problematic messaging, mainly that simply being in a truck-involved crash entitles someone to a large sum of money independent of fault or negligence.” However, attorneys who aggressively seek out crashes to increase their client base, or so-called “ambulance chasers,” added more to the sheer volume of lawsuits than to the size of verdicts, focusing instead on taking a high number of smaller cases.

Carriers deleting video footage, electronic log data and other evidence of a crash also contributed to the increase in monetary awards, according to the report. The practice, called spoliation, contributes to nuclear verdicts because it undermines the integrity of carriers’ defense, and leads juries to doubt anything else the company may say in its defense. If the plaintiff’s attorney finds out about the destruction of evidence, the resulting hearings add significantly to the length of the trial, driving up costs. Overall trucking industry reputation also suffers as a result.

The court location of a trial also adds to the size of awards, the ATRI report says. If a lawsuit stemming from a crash is tried in the hometown of the plaintiff or their attorney, either or both may have some association with local judges, medical staff, law enforcement, or other individuals who could affect the outcome of the case, even if unintentionally.

The report also indicates that data about a crash influences juries and how much they award the plaintiff.

• Awards increase more than 1,600% when a child was involved in the crash, no matter who is at fault.
• While not entirely definitive, the data seems to show that a crash resulting in a spinal cord injury to a plaintiff more than doubles the award. In cases involving a traumatic brain injury (TBI), awards increase by an average of over $800,000.
• The highest jury awards resulted from “spin and roll” crashes, averaging almost $15 million.
• Plaintiffs win 89% of rear-end crashes when a truck hits the plaintiff’s vehicle from behind. If the crash happened in a work zone, the average award was $7.25 million.
• The more people who are involved in the crash, the larger the award will be.

Sometimes the carrier is also a victim in a large verdict lawsuit stemming from a crash. In 2019, eight people were indicted for staging at least 40 accidents involving tractor-trailers near New Orleans, LA in hopes of receiving large insurance payouts.

Medical fraud stemming from truck-involved accidents also drives up the amount awarded to plaintiffs. As noted in the study, the issue goes beyond a person claiming false injuries to medical professionals also engaging in billing fraud and “excessive or exaggerated medical treatments.”

Preventing a crash from happening in the first place remains the best defense against a nuclear verdict. Carriers interviewed for the study told ATRI researchers that “the more safety activities motor carriers engaged in to prevent crashes the lower the likelihood that a nuclear verdict would result,” but they also said most trucking companies “do not allocate enough resources toward safety and crash prevention.”

Perhaps now is a good time for you to conduct a review of your safety programs and data practices before an unfortunate crash puts you on the defense in a courtroom. Carriers tell PrePass that one of the best tools they have for gauging the success of their safety programs is INFORM Safety. This robust, personalized data dashboard helps carriers to proactively identify and address safety trends in their fleets is available to all PrePass customers at no additional cost.