In August 2021, a jury sent a strong message to the trucking industry. That message: “if trucking companies don’t follow the law, they will pay a high price.” In this case, $1 billion in wrongful death damages.
This ten-figure damage award represents the highest “nuclear verdict” the industry has ever seen. Nuclear verdicts are jury awards higher than $10 million. Most often, though, they are not $1 billion.
So, what happened that led to such a high figure in the case, Melissa Dzion v. AJD Business Services and Kahkashan Carrier?
While Connor Dzion sat in his car waiting for police to clear a wreck caused by a driver of AJD Business Services, a rig driven by Kahkashan Carrier Inc.’s Yadwinder Sangha of Canada slammed into the line of waiting cars, killing Dzion in the crash.
Police investigations revealed Sangha set his cruise control at 70 mph, did not brake before plowing into the waiting cars, and was looking at his phone when the crash occurred.
However, the investigation also showed negligence by both carriers, said Brandon Wiseman, president of Trucksafe Consulting, and a partner with Childress Law, during the PrePass webinar, “Minimizing Legal Exposure Through Truck Driver Qualification.”
He said AJD never conducted background investigations or motor vehicle records checks on its driver. And Kahkashan permitted an unqualified driver to get behind the wheel. The verdict called out these instances of carrier negligence:
- The AJD driver was operating a large box truck but lacked a Commercial Driver’s License on the day of the accident.
- The Kahkashan driver was operating over hours-of-service limits after driving 25 consecutive hours from Canada to Jacksonville, Florida.
- The Kahkashan driver could not read or speak English, causing him to miss a sign warning of the accident.
Driver qualification clearly plays a significant role in truck crash related lawsuits. Plaintiffs will try to prove motor carriers acted recklessly by hiring unqualified drivers, and defendants will need to prove otherwise.
Plaintiffs typically ask juries to consider key factors as they judge the case. On the top of this list are:
- Hours of service. Was the driver within hours-of-service limits when the crash occurred?
- Driver history. Does the driver have a history of moving violations or serious accidents?
- Driver qualifications: Does the driver meet federal qualifications for commercial motor vehicle (CMV) drivers?
The lesson is that carriers must do their due diligence and use drivers that meet and exceed minimum qualification standards, then keep them trained to those standards.
Meet and Exceed Minimum Standards
The federal government sets qualification standards for drivers employed by interstate trucking firms. These minimum standards include:
- Be at least 21 years old
- Read/speak English sufficient to read signs and speak with law enforcement
- A valid CDL
- By reason of training and experience, the ability to safely operate a commercial motor vehicle
- Meet minimum physical standards as proven in an examination by a U.S. Transportation Department (DOT) qualified medical examiner at least once every two years
- A complete and maintained driver qualification file.
“But these rules are the floor,” warned Wiseman. “They are the bare minimum you should do as a regulated motor carrier.”
He explained motor carriers face two prongs of potential exposure:
- Regulatory enforcement in the form of a DOT compliance audit.
- Highway accidents that expose whether your company follows the rules.
“In a DOT audit, they can examine your files to see if you’re missing records or have other violations. If you do, they can shut down your fleet,” he said. “On the accident side, not following these basic rules can cause you serious problems in litigation.”
Wiseman advised motor carriers go beyond minimum standards. “A lot of motor carriers set carrier-specific standards that go beyond what’s required,” he said. “Often they implement standards for drivers to meet before they can even work for them.”
For instance, federal standards do not set a minimum experience level for drivers. But many carriers do. A driver may need at least two years of CMV driving experience to drive for that carrier.
Other carriers limit the number and types of moving violations drivers can have. If applicants exceed this, they do not hire them. And if during their employment they exceed it, they can no longer drive for the company.
And though regulations only require carriers to check licenses once a year, many carriers add continuous license monitoring technology to monitor CDLs all year long. Without this measure, for instance, if a driver gets a driving under the influence conviction a week after their yearly license check, a carrier won’t necessarily find out for almost a year.
“If you have standards, you must stick to those standards,” Wiseman added. “If there are any deviations to your policies, ask yourself how that will play out to a jury after an accident.”
Training is Key
It’s a motor carrier’s responsibility to put trained drivers on the road. But federal regulations, except in limited circumstances, do not specify training hours or types of training fleets must provide.
“Some carriers take that as a free pass to not train at all,” Wiseman said. “That increases their exposure to nuclear verdicts.”
He recommends a two-prong approach to training. One prong provides training as carriers onboard drivers. The second provides ongoing and remedial training as long as drivers work for the carrier.
Many carriers spend a day or two onboarding a driver, which encompasses watching a few videos and filling out paperwork. That is not enough, warned Wiseman.
He recommended a uniform onboarding program that arms every driver with the same information. These programs should cover DOT compliance, operational expectations, and company policy to put everyone on the same page from the start.
Follow this training with periodic refresher and remedial education for drivers having problems understanding and following the rules, he advised. If a driver routinely works outside the hours-of-service rules, for example, the carrier should deliver more training on hours of service.
“Carriers who take this two-pronged approach to training usually have better safety scores, fewer accidents, and fewer litigation issues when an accident occurs,” he said.
Remember Record Keeping
Carriers must gather a slew of records whenever they onboard a new driver. The documents include a driver-specific application, original motor vehicle record, road test form, certificate or copy of a CDL, background investigation, pre-employment drug and alcohol screening, and a medical certificate.
“There’s no excuse for not having every one of these records in a compliant driver file. There is no secret what records are required. We have a checklist we can refer to and it’s not difficult to get them,” Wiseman said.
What can be challenging is keeping records up to date. For instance, carriers must ensure their drivers update medical exam certificates at least every two years and review motor vehicle records and moving violations annually, just to name a few.
Many fleets choose to hire a third-party administrator to maintain driver qualification records. Others have moved to an electronic driver qualification file system that tracks document expiration dates.
Accidents will happen, but fleets that can show they hire drivers that meet and exceed minimum qualification standards, provide ongoing training, and maintain driver qualification files fare better in court.
