Trucking Case: Regulatory Compliance Issues
Knowing how to approach the pre-suit investigation and pre-trial discovery of regulatory compliance issues is an essential part of obtaining a successful result in a trucking case. Often the initial step is to understand the size and scope of the defendant motor carrier. While not always true, small “mom and pop” motor carriers may be less likely to demonstrate full compliance with the regulations. In more than one case, a small motor carrier “president” has been unfamiliar with the requirement of a driver qualification process. Larger motor carriers, on the other hand, are far more likely to demonstrate at least some compliance with the rules, although the size of an operation may cause significant driver problems to fall through the cracks. In a perverse application of Murphy’s Law, the more employees involved with the compliance process, the greater the chance some requirement will go unsatisfied. Likewise, it is not unusual for different employees of a single motor carrier to have varying, even wildly so, understandings of what the regulations require. In some cases, taking depositions up the chain of command and across the safety department ranks may reveal clear evidence of corporate neglect, or outright ignorance, of regulatory requirements by the very people charged with ensuring compliance.
An attorney investigating a truck-related occurrence should also strive to quickly recognize the signs of a breakdown or breach in regulatory compliance and respond appropriately with tailored discovery requests or possible amendment of the complaint to add newly-uncovered claims. For example, what can appear to be a relatively simple and straightforward collision could develop into a case of full-fledged negligent entrustment or even give rise to a fraudulent record-keeping/creation claim. The attorney’s role in this regard includes the immediate issuance of a proper preservation of evidence, or “spoliation,” letter calibrated not only generically to motor carriers, but specifically to those issues spotted early on. The attorney’s gameplan should also include a thoroughly-detailed investigation into any potential breach of the regulations with an eye towards identifying the evidence that ties the collision to those breaches.
In doing so, proximate cause should always be kept in mind. At the same time, a showing of multiple failures to comply with the regulations may help convince a court to admit seemingly unrelated evidence in order to show a motor carrier’s systematic disobedience of the rules.
During discovery, it is important to remember that, neither you, the defending motor carrier, its lawyer, or perhaps most significantly, its insurer, can predict what evidence will and will not be admissible. Bear in mind that a plaintiff’s attorney has far wider latitude in discovering violations before trial than he or she may have putting them into evidence at trial. The motor carrier’s ultimate uncertainty as to what may or may not be excluded can be used to leverage your case to a higher settlement value. Accordingly, plaintiff’s counsel should not be reluctant to pursue evidence of any potential regulatory violation based on the mere assumption that the evidence will not be admissible.
The more prudent approach is to investigate each and every possible breach and misstep. Even information of questionable relevance may lead to something dramatic that the motor carrier, in the words of one prominent truck defense lawyer, “can’t stand.” Numerous embarrassing glitches elicited one after another during the deposition of an otherwise unflappable safety director may cause him consternation (if not dismay) and result in some admissions that might not otherwise come to light. The motor carrier’s lawyer can be expected to report unfavorable information uncovered during the discovery process. Oftentimes the “heat” generated by evidence which might not ever see the light of day in a courtroom can nevertheless have a dramatic impact on the insurer’s evaluation of its exposure, both in likelihood and amount, and the overall prospect of settlement.