In most personal injury matters, it is typically wise to conduct as much informal discovery as possible prior to filing suit. Informal discovery includes the collection of such things as police reports, witness statements, photos of the scene and so on. Formal discovery is what occurs once litigation is commenced (i.e. a lawsuit is filed). In trucking accident cases, informal discovery will have significant limits since the information needed outside the aforementioned informal discovery will be entirely under the possession and control of the defendant trucking company. Trucking companies behave much differently than the typical auto accident defendant. Bottom line is that they do not provide evidence without court action.

File Suit and Ask Questions Later

The advice that a trucking accident victim should file suit and ask questions later runs counter to the typical practice at Collins & Collins, P.C. which is to gather as much evidence as possible to evaluate a case to make sure that it is warranted prior to filing suit. Deviation from this practice in the case of trucking accidents is necessary and proper for a couple of reasons. First, the victim in a trucking accident will have no access to critical evidence. Second, New Mexico is a comparative negligence state. This means that the trucking company may be sued even if the driver and the company were only partially at fault. In trucking cases, the injuries if the victim survives at all, are generally catastrophic and permanent. Consequently, even after apportioning fault between the trucking company/driver, and the victim, compensation for injuries or death will still most likely justify the policy limits on any insurance policy carried by the trucking company.

Preservation Letter and Notice of Spoliation

In dealing with trucking companies, it is safe if not critical to assume that they will hide, destroy or “lose” evidence. To protect the victim, a letter demanding preservation of evidence upon penalty of spoliation should be sent out immediately after the accident. Immediately means immediately, not weeks later. This letter will put the trucking company on notice that they must preserve (save, store, protect…) all evidence and documents related to the accident. Failure to do so will result in spoliation sanctions by the court. Spoliation sanctions are very powerful in cases like this. In New Mexico, where evidence is lost or destroyed, all evidentiary matters related to that evidence will be found in favor of the victim. In other words, if the trucking company loses a document such as engine diagnostic data, it will be presumed that the lost document was very bad for the trucking company. The jury will be told this at trial.

Seek Legal Guidance

There are some cases where it is possible to effectively represent yourself in a case. These are typically limited to very simple, clear and small accidents such as auto accidents and, slip and fall accidents. Trucking accidents are not the type of case even the ablest, smartest, most studious folks would want to take on by themselves.

Trucking companies will not treat you fairly with or without an attorney. This is the case even when the driver would if he or she could. The difference is that an experienced attorney can force them to behave and force them to treat the victim or the surviving loved ones fairly.

Collins & Collins, P.C. may be contacted online or at 505.242.5958.

The Federal Motor Carrier Safety Administration (FMCSA) is charged with the regulation of motor carriers (trucks and buses) safety. To meet its safety objectives, the FMCSA created its “Safety Measurement System” (SMS). The SMS is in turn implemented through the “Compliance, Safety, Accountability” (CSA) system. The CSA system uses roadside inspections and crash data to identify unsafe carriers. Once identified, there are a range of FMSCA interventions utilized to compel carriers and drivers to safely operate the carrier’s trucks and/or buses.

Behavioral Analysis and Safety Improvement Categories (BASICs)

There are numerous factors that weigh into measures of safety performance of trucks and buses. The safety factors are referred to as Behavioral Analysis and Safety Improvement Categories (BASICs). These include behavioral measures of both the carriers and their drivers such as driver fatigue, violation of traffic laws, excessive driving hours, vehicle maintenance and so on. Deficiencies on any one of these factors or combinations of factors can result in an intervention by the Federal Motor Carrier Safety Administration (FMCSA).

FMCSA Interventions

FMCSA has a host of intervention options for BASICs violations. These are typically progressive, meaning that FMCSA will choose the least burdensome intervention to begin and move to more serious interventions with subsequent violations. On the other hand, in cases of very serious violations, the FMCSA can move directly to the most burdensome and punitive interventions.

FMCSA categorizes the interventions as early contact, investigation and follow-on.

Early Contact Interventions

There are two early contact interventions. The first is a simple warning letter from FMCSA to the carrier. The FMCSA warning letter notifies the carrier of safety and compliance issues and violations. The warning letter also indicates to the carrier the possible consequences of continued violations.

Along with the warning letter, there will typically be targeted roadside inspections. These roadside inspections are targeted toward the carrier’s specific safety violations which are communicated to roadside inspection stations. The inspections will focus on those specific violations for the most part. Of course, visible violations above and beyond those specifically targeted will be addressed as well.

Early contact may be enough to address the carrier’s safety deficiencies. However, if they are not, then the interventions escalate to on and off-site investigations.

Investigative Interventions

In the event that the carrier fails to take appropriate remedial action or in cases of serious safety violations, the FMCSA can initiate an investigation of the carrier. The investigations can be off-site with simple requests for appropriate documentation regarding the safety issues at hand. For more serious or persistent violations, the FMCSA may decide to conduct on-site investigations. The on-site investigations may focus on the specific violation or take a more comprehensive approach investigating all aspects of operational safety.

Follow On Interventions

Following the investigation(s), the carrier may be allowed to enter into a cooperative safety plan with the FMCSA. However, in addition to the cooperative safety plan (CSP), the FMCSA may also issue a notice of violation (NOV) where there are severe violations.

In the case of NOVs, no fines or penalties are issued. Where the NOVs are not properly addressed and severe violations continue, the FMCSA can issue a formal notice of claim (NOC). A NOC does result in fines and penalties.

The last recourse for FMCSA after moving through these progressive steps with the carrier is the out of service order. An operation out of service order (OOSO) is the most severe penalty and requires the carrier to cease operations completely until the safety issues have been properly addressed.

Discovery of FMCSA Interventions for Truck or Bus Crash Victims

Discovery is the process of collecting evidence of wrongdoing. Discovery is extremely important in truck and bus accidents. Trucking companies and their agents in particular often attempt to conceal or manipulate evidence to avoid legal responsibility for the inevitably catastrophic harm that results from truck crashes. The beauty of the FMCSA actions outlined above is that the documentation associated with the interventions is outside the control of the carrier. These documents can be obtained directly from the FMCSA.

In fact, much of the information outlined above is publicly available through the FMCSA’s “Compliance, Safety, Accountability” (CSA) system. Other information may be obtained through a Freedom of Information Act (FOIA) request. Finally, any information not accessible informally through FOIA or the CSA system may be obtained through formal discovery once litigation is commenced.

Keep in mind that the discovery related to FMCSA interventions does not necessarily prove your case. Likewise, the absence of FMCSA interventions does not necessarily weaken your case. On the other hand, it is essential to gather this information since it is most definitely relevant to any truck or bus accident.

The Federal Motor Carrier Safety Administration (FMCSA), Safety Measurement System (SMS) states:

“There are 5 million truck and bus drivers sharing the road with more than 250 million motorists. With stakes so high, it’s essential that everyone Get Road Smart. We can’t do it without you.”

The “you” the FMCSA is referring to is trucking and bus carriers and their drivers. In other words, trucking and bus safety relies upon the ability and willingness of trucking and bus carriers take seriously the safety standards set forth by the FMSCA.

Compliance, Safety, Accountability (CSA)

As part of the SMS, the FMCSA created a program for the measurement of carrier performance on the road. The program is called “Compliance, Safety, Accountability” (CSA). CSA measures carrier performance in much the same way that a plaintiff’s attorney would measure performance following a trucking accident involving injuries to the client. In fact, the CSA is of great benefit to trucking accident victims and their attorneys since it lays out both the standards that motor carriers are held to as well as the scores for individual carriers. The CSA along with safety measurements for all carriers licensed under the FMCSA can be found at the CSA website https://csa.fmcsa.dot.gov/.

Roadside Inspection and Crash Data Provide Measures for CSA

The data used for the CSA measurements comes from roadside inspections and crash data. The roadside inspections apply to the carrier, the individual driver and the specific truck or bus under inspection. The goal of the CSA is to identify unsafe carriers, trucks and buses and drivers for the purpose of improving road highway safety for all those on the road. The crash data is collected by law enforcement which should then be turned over to the FMCSA.

The CSA involves what might appear to be complicated weighing of different measures of carrier safety. However, when it is boiled down to its essence, it is pretty straightforward. First, the CSA collects the carrier’s safety events from the roadside inspection and crash data. The CSA then categorizes these safety events into a number of categories reflecting carrier and driver safety. The carrier safety measurement categories are referred to as “Behavioral Analysis and Safety Improvement Categories” or BASICs for short.

The BASICs include numerous behaviors of both carriers and drivers that create safety risks.

Behavioral Analysis and Safety Improvement Categories (BASICs).

The safety events as identified by roadside inspections and crash data are assigned to different categories or groups of risk. Each risk is assigned weights or numerical values. The reason for this is that there are some safety events and/or behaviors that create greater risk than others. This can be seen by the general BASICs categories:

  1. Unsafe driving,
  2. Hours of Service Compliance,
  3. Driver Fitness,
  4. Controlled Substances or Alcohol,
  5. Vehicle Maintenance,
  6. Hazardous Material (HM) Compliance,
  7. Crash Indicators.

Within each of these categories, the CMS sets forth numerous non-exclusive behaviors that increase safety risks. These behaviors, also called violations, are then weighed. For instance, in the unsafe driving category, reckless driving is given more weight than simple speeding. On the other hand, excessive speeding can constitute recklessness under both the New Mexico Motor Vehicle code and in New Mexico Uniform Jury instructions defining recklessness.

Truck and Bus Safety Critical to Save Lives

As noted at the outset, there are over 5 million trucks and buses sharing the roads with 250 million motorists. Truckers on the whole are much better and safer drivers than the public at large. On the other hand, when an accident does occur involving a truck or bus and a family vehicle, the results are typically catastrophic and life-threatening for those in the on the other end of the collision. And although most carriers and drivers do their best to conform to the FMCSA safety standards, there are those that don’t and then there are those that slip from time to time.

Whether the accident involves a carrier or driver that simply does not follow the safety standards or a driver that slips on occasion, the consequences are almost always disastrous for whoever happens to be in the other vehicle.

Careful Dealing with Trucking and Busing Companies Following an Accident

These cases are complex and they move very fast from the second the accident happens. The carrier will have their people on the scene immediately. This is not out of concern for the injured drivers but for the avoidance of responsibility. They are not there to help. They are there to collect, manipulate and conceal evidence of wrongdoing on the part of the carrier and to a lesser degree the driver. This means the injured victims need their people involved from the outset as well to prevent or minimize the misbehavior of the investigators sent out by the carrier.

The bottom line is this is not a do it yourself type of legal case. Anyone seriously injured in a trucking or busing accident needs legal representation and they need it immediately. Delay can be highly detrimental to recovery for the injuries and other harms resulting from a truck or bus crash.

Congress this week has decided to block rules limiting trucker driving hours.  With the new administration’s new penchant for rolling back all regulations and vast $700 billion+ scope of the trucking industry, it is only going to get worse.

Beware the Trucks on the Road

It is has always been wise to pay very close attention to trucks on the roads.  Failure to do so can end in catastrophic injuries or death.  The need to be vigilant of trucks is now more important than ever.

Driver fatigue is a leading cause of truck accidents.  In fact, AAA has recently released a study showing that even 1 or 2 hours of lost sleep can double the risks of driving accidents.  AAA found the risks of drowsy driving comparable to DWI driving.  Yet, Congress has seen fit to encourage drowsy driving in the trucking industry.  It is also to be expected that other rules will be rolled back such as trailer weight and length limits.

In short, with the volume of large trucks on the road, the roads have gotten and will continue to get exponentially more hazardous for innocent drivers, passengers and families.

Lax Rules DO NOT Negate Legal Liability for Truck Accidents

It might be expected that increasingly lax rules on trucking safety that trucking company and truck driver legal responsibility for their negligence would also suffer.  Although it is little consolation to those injured or killed by negligent trucking companies and drivers, they will still be held legally responsible and liable for the accidents they cause.

The rules of negligence will apply allowing innocent victims and families to seek compensation for their injuries and other losses through personal injury and/or wrongful death lawsuits.  In fact, where the evidence of dangers created by the lack of safety precautions to protect against trucking accidents, innocent victims and families may also have punitive damage claims.

Compensatory v. Punitive Damages

Compensatory damages and punitive damages differ in application and purpose.  Compensatory damage compensate victims for injuries and losses.  These would include things such as physical injuries, lost income, lost opportunities, medical expenses (past and future), chronic pain, psychological injuries and so on.

Punitive damages are different.  They are no used for compensation but for punishment and deterrence of reckless conduct.  In the case of trucking accidents caused by the failure to avoid basic and well-established dangers to truckers and innocent victims, they would almost surely apply.  Take for instance excessive driving hours which is without question very hazardous.  With the evidence showing that even minimal loss of sleep and the trucking industries encouragement of gross sleep deprivation, a very good argument could be made for punitive damages when this is the cause of an accident.

Start a Truck Accident Claim Early

There are many pitfalls to any accident claim.  In cases of truck accidents, the injuries and losses are typically catastrophic or deadly so it is extremely important to understand these pitfalls from the beginning.

Moreover, truck companies and truck drivers are not particularly keen on accepting responsibility for their negligence and recklessness.  In fact, they are often very obstructive.  To overcome this, it is highly advisable to have an experienced personal injury and wrongful death attorney on your side.  The Albuquerque personal injury and wrongful death attorneys Collins & Collins, P.C. can be reached at (505) 242-5958.

A truck safety bypass – Baltimore Sun

A truck safety bypass – Baltimore Sun Because trucks are so large and heavy and therefore so potentially dangerous in a collision, their drivers must be held to a higher standard than the average suburban SUV jockey. That means giving them sufficient time off to recover — the so-called “restart rule” that requires truckers to rest at least 34 hours after a 70-hour workweek, including two nights (which are defined as periods of time extending from at least 1 a.m. to 5 a.m.).

Rollback of truck safety rules may be just the beginning – The Denver Post

http://www.denverpost.com/2016/12/08/truck-safety-rules-congress/Rollback of truck safety rules may be just the beginning – The Denver Post HAGERSTOWN, Md. — The trucking industry scored a victory this week when Republican lawmakers effectively blocked Obama administration safety rules aimed at keeping tired truckers off the highway. But there’s more coming down the road.

Studies have shown time and time again that fatigue is a significant cause of trucking accidents.  It has been shown that drowsiness causes up to 40% of trucking accidents.  Significantly, the risks of an accident increase 400% from the 8th hour of driving to the 11th.  Naturally Congress sees fit to maintain and perpetuate excessive trucker driving hours.

Congressional Response to Dangers of Excessive Trucker Driving Hours

Public safety groups have for many years sought restrictions of trucker driving hours.  What they have met instead is trucking industry resistance and lobbying.

The trucking industry is a $726 billion/year industry.  One might expect lawmakers to jump through hoops to please an industry of this size.  That is exactly what they have always done and continue to do.  Congress has once again put industry and money before the safety of citizens.  In this case, they have helped perpetuate the dangers to all drivers, truckers included, from fatigued driving.

AAA Study Show Drowsy Driving Comparable to Drunk Driving

The recent actions by Congress are all the more appalling in light of the very newsroom.aaa.com showing that sleep hours below the recommended 7 to 8 hours per night drastically increase the likelihood of driving accidents.  In fact, it has been shown that drowsy driving is comparable to drunk driving in terms of risks of accidents.

Legal Claims in Case of Drowsy Truck Accident

The risks of drowsy driving caused by excessive hours and consequent drowsy truckers is beyond dispute. The numbers speak for themselves.  Yet trucking companies continue to encourage and often demand excessive hours from their drivers.  The consequences are by sheer physics typically catastrophic or deadly to innocent folks and their loved ones on the roads.

As a result, anyone harmed as a result drowsy truck driving has very strong legal claims for both compensatory damages and punitive damages.  These are part of a personal injury or wrongful death claim.

Personal Injury Claims for Truck Accidents

In the event that the innocent victims are lucky enough to survive a trucking accident, the harm can be unimaginable to both the injured and the family.  The injuries are typically catastrophic and permanent.  With injuries of this magnitude, there is often a lifetime of lost income, medical treatment, rehabilitation, therapy, psychological and brain function issues, both physical and emotional pain to name just some of the harm resulting from the typical truck accident.

Money cannot possibly compensate the victim and family for these losses, but it is really the only recourse.  And in these cases, money compensation is absolutely necessary.  All of the harms and losses mentioned above are financially crippling in the absence of compensation.  This compensation comes only with a personal injury claim and frequently prolonged litigation.

Wrongful Death Claims for Truck Accidents

Unfortunately, death is far too often the result of a truck accident.  Death is the greatest loss that anyone can suffer.  The only thing comparable is the death of a loved one.  In the case of a wrongful death caused by a drowsy truck accident, the two go hand in hand.

Many of the harms and losses mentioned above are unique to the victim.  However, many of them are still suffered by the surviving family.  In addition, both the spouse and the children, will suffer the emotional loss of a loved one which is referred to as loss of consortium.

Punitive Damages for Drowsy Truck Accident

Punitive damages are used to punish and deter.  They punish the individual or company who has engaged in reckless conduct.  They deter other individuals and companies in engaging in that same conduct.

In cases involving excessive hours, fatigue and resulting drowsy driving, punitive damages are both appropriate and essential.  The dangers of this conduct are beyond dispute.  Those ignoring these dangers do so at their peril (and ours).

Seek Legal Guidance

Trucking companies and often individual truckers notoriously difficult to deal with in these cases.  They simply will not accept responsibility for the harm they have caused.  In fact, they often obstruct any investigation in a variety of ways to prevent liability for their negligence.

It is critical to seek the guidance of an experienced trucking accident attorney right away to protect your rights against this obstruction.  The Albuquerque personal injury and wrongful death law firm of Collins & Collins, P.C. is here to help.  We can be reached online or by phone at (505) 242-5958.

 

GOP, industry defeat safety rules that would have kept tired truckers off road | PBS NewsHour

http://www.pbs.org/newshour/rundown/gop-industry-defeat-safety-rules-kept-tired-truckers-off-road/GOP, industry defeat safety rules that would have kept tired truckers off road | PBS NewsHour  HAGERSTOWN, Md. — The trucking industry scored a victory this week when Republican lawmakers effectively blocked Obama administration safety rules aimed at keeping tired truckers off the highway. But there’s more coming down the road.

The American Trucking Associations is pledging to come back next month, when Republicans will control the White House and Congress, and try to block state laws that require additional rest breaks for truckers beyond what federal rules require. The group says there should be one uniform national rule on work hours for interstate truckers.

Another regulation that prevents truckers from working 75 hours, followed by a 35-hour break, and then resume driving again in the same week was also suspended.

Congress again ready to block rules on sleepy truckers | NJ.com

http://www.nj.com/politics/index.ssf/2016/12/congress_again_ready_to_block_rules_on_sleepy_truc/Congress again ready to block rules on sleepy truckers | NJ.com WASHINGTON — Legislation to fund the government through the end of April would continue to block federal efforts to regulate truckers’ rest hours even as the National Transportation Safety Board called driver fatigue one of its top concerns.

The spending bill would continue to block a Federal Motor Carrier Safety Administration rule setting rest requirements for truck drivers. It comes as the National Highway Traffic Safety Administration statistics showed the number of individuals killed in crashes involving large trucks rose last year to 4,067 — the highest level since 2008 — from 3,908 in 2014.

 

It is well established that lack of sleep increases the risk of car and truck accidents tremendously.  In 2015, over 35,000 people died in auto accidents.  Research shows that 20% of  traffic fatalities are the result of drowsiness.

The AAA Foundation’s recently released report even a few hours of missed sleep can increase the risks significantly.  With each hour of sleep below the recommended 7 or 8 hours, the risk increases exponentially.  This is cause for concern and caution for all drivers.  However, it is particularly concerning in relation to trucking since the industry production standards inherently encourage drowsy driving.

Trucking Industry Prone to Sleep Deprivation

Public Citizen has conducted extensive research on the dangers of sleep deprived truck drivers.  Their findings are remarkable.  Noting that trucking is the most dangerous occupation in the U.S., Public Citizen notes:

“Driver fatigue is a major factor in up to 40 percent of all heavy truck crashes.  The risk of a crash dramatically increases after 10 hours of driving, causing deaths, injuries and crash-caused congestion.  The Department of Transportation states that fatigue is a direct cause of 15 percent of truck crash fatalities and injuries, resulting in more than 750 deaths and nearly 20,000 injuries each year.”

The National Highway Traffic Safety Administration has found that  accident risks up 400% from 8th to 11th hour.  Amazingly, truck drivers are allowed by law to drive 14 hours in a 24 hour period and encouraged to drive 70 hours per week virtually guaranteeing a high rate of sleep deprivation and drowsiness on the roads.

Sleep Deprivation Related Truck Accidents

Negligence Per Se

These statistics are widely recognized and accepted.  The only ones who have failed to heed the warnings are those in the trucking industry who refuse to implement safety measures to protect against the risk of sleep deprivation on the roads.  This is largely the result, like many bad policies and practices, of the profit motive in trucking.  It needs little explanation other than to say longer hours increase productivity and profits.

In truck accidents involving sleep deprived truckers, it is quite reasonable to argue negligence per se.  This essentially means that the fact that it occurred and led to an accident is by definition negligence.

Punitive Damages

In addition to the negligence per se argument, anyone injured as a result of a truck accident caused by driver fatigue, a very strong argument can be made for punitive damages.  Punitive damages are used both to punish the wrongdoer and to discourage similar action in the future by other trucking companies and drivers.

In cases like these where the risks are so clear, punitive damages are both appropriate for the individual case and essential to public safety.

Compensation for Injuries or Death

Both the company and the driver individually will be facing liability in these cases.  Due to the magnitude and seriousness of these accidents, it is important to sort out responsibility and liability to identify all available sources of compensation. Trucking companies typically have a minimum of $1 million in liability coverage.  The driver may also have insurance coverage.

There are number of other possible sources for compensation as well that must be identified.

It is very important in trucking cases to seek the guidance of an experienced attorney for many reasons not the least of which is the fact that trucking companies are not particularly prone to cooperation or fairness.

Collins & Collins, P.C., Albuquerque Attorneys can be reached at (505) 242-5958.

 

Drowsy Driving Kills: Crash Rate Spikes With Each Hour Of Lost Sleep : Shots – Health News : NPR

http://www.npr.org/sections/health-shots/2016/12/06/504448639/drivers-beware-crash-rate-spikes-with-every-hour-of-lost-sleepDrivers Beware: Crash Rate Spikes With Every Hour Of Lost Sleep An analysis of car accidents found that drivers who slept only five or six hours in the previous 24 had nearly twice the accident rate of drivers who slept a full seven hours or more.

Traffic safety officials regularly warn us of the risks of driving while drunk or distracted. But Americans still need to wake up to the dangers of getting behind the wheel when sleepy, according to a recent study of crash rates.

But Americans still need to wake up to the dangers of getting behind the wheel when sleepy, according to a recent study of crash rates.

Missing 1-2 hours of sleep doubles crash risk: Study reveals the dangers of getting less than 7 hours of sleep — ScienceDaily

https://www.sciencedaily.com/releases/2016/12/161206110235.htmMissing 1-2 hours of sleep doubles crash risk All data is from the NHTSA’s National Motor Vehicle Crash Causation Survey which comprised a representative sample of police-reported crashes that involved at least one vehicle that was towed from the scene and resulted in emergency medical services being

Drivers who miss between one to two hours of the recommended seven hours of sleep in a 24-hour period nearly double their risk for a crash, according to new research from the AAA Foundation for Traffic Safety. The Centers for Disease Control and Prevention says that 35 percent of U.S. drivers sleep less than the recommended seven hours daily. And with drowsy driving involved in more than one in five fatal crashes on U.S. roadways each year, AAA warns drivers that getting less than seven hours of sleep may have deadly consequences.

 

The 10th Circuit Court of Appeals addressed the scope of agency and respondeat superior under New Mexico law in Frederick v. Swift Transportation. The case addressed these issues in the context of a trucking accident involving a truck driver who had ingested methamphetamine.

At trial, the jury awarded the plaintiff $23,500,000. The court reduced the judgment to $15,275,000 based upon the plaintiff‘s comparative negligence in the accident. Swift Transportation appealed on several grounds including the court‘s ruling that the driver acted within the course and scope of employment as a matter of law. Based upon this ruling, the court issued a jury instruction that Swift was liable for the negligence of its driver.

Swift argued that the driver was outside the course and scope of employment due to the driver‘s consumption of methamphetamine. In part, Swift argued that it was a disputed fact whether the meth was ingested prior to or after the accident.

The 10th Circuit relied on New Mexico law citing Ovecka v. Burlington Northern as follows, “whether an employee was acting within the scope of his employment is [generally] a question of fact for the jury.” However, the court cited Ovecka further, “when no facts are in dispute and the undisputed facts lend themselves to only one conclusion, the issue may properly be decided as a matter of law.”

The Court cited New Mexico‘s uniform jury instructions which state that an employee is acting within the scope of employment when:

1. It was something fairly and naturally incidental to the employer‘s business assigned to the employee, and
2. It was done while the employee was engaged in the employer‘s business with the view of furthering the employer‘s interest and did not arise entirely from some external, independent and personal motive on the part of the employee.

The Court found that it was undisputed that the driver was acting within the course and scope of employment as set forth under New Mexico law. The Court ruled further that the ingestion of meth did not remove the driver from the course and scope of employment no matter when the meth was ingested. The Court was careful to state that the ingestion of drugs might remove an employee from the course and scope of employment depending on the circumstances. However, in this case, the driver was clearly pursuing the interests of the employer and the use of meth did not meet the exception.

Interestingly, the Court did not mention the widespread use of meth among truck drivers due to the demands of the job. However, it is certainly something to keep in mind for those injured in a trucking accident since it is clear from Frederick v. Swift that the employer is held responsible for this on the job drug usage which in turn may be factored into an award of punitive damages.

DISCLAIMER

Related Reading:
Trucking Accident Investigations Should Begin Immediately
Employers Protected from Liability for Gross Negligence Toward Employee Safety
Work Related Auto Accident Injuries and Employer Uninsured/Underinsured Motorist Coverage

Corporate defendants in personal injury lawsuits can be extremely uncooperative and evasive. After all, payment of claims does not fit within their profit model. In trucking accident cases, the level of obstruction will on occasion rise to the level of outright dishonesty and deceit. This is a problem on a national level and New Mexico is not immune to these abusive practices.

In trucking accident cases, the trucking company and its insurance carrier send in their investigative teams immediately. This would appear to be sound corporate responsibility. They call these their “Go Teams” and their mission is anything but responsible.

The Go Teams consist of investigators, accident reconstructionists and of course insurance defense attorneys. From the very beginning, the Go Teams are focused on defending any possible personal injury lawsuit to come. The entire investigation is geared toward defending the lawsuit.

Understanding that the insurance company is leading the charge, this is not surprising. It almost too obvious to say that the first instincts of the insurance companies is to deny liability to avoid their financial responsibility for damages to the public they are charged with protecting.

The Go Team will often neglect to identify or obtain statements from witnesses adverse to their defense. Likewise they will often ignore evidence that does not support their position which instinctively is to deny responsibility for the accident. Instead, they will focus only on those witnesses and evidence that supports their position. These investigations are not about bringing the facts to the surface but about defending the claim.

Trucking accidents generally involved very serious injuries or death to the unfortunate drivers on the other end of the collision. A trucking accident, by virtue of simple physics, are typically far more serious that the run of the mill auto accident. A very high percentage of these accidents involves fatalities. Unfortunately, the severely injured or dead are in no position to conduct an on site investigation of their own at the time of the accident. As a result, it is very important to collect as much information as possible as soon as possible after the accident. This is often left to the family, friend or other loved ones of the injured or deceased victim of the trucking accident.

Due to the unique problems and challenges of trucking accident cases, it is important to get an attorney involved as early as possible. By early, I mean immediately. Evidence and witnesses have a way of disappearing for many reasons, some innocent, some not. Make no mistake, the evidence and witnesses not documented by the Go Teams is the evidence most important for a personal injury claim in the trucking accident case.

DISCLAIMER

Related Reading:
Trucking Accidents and Meth Usage: Respondeat Superior Still Applies in New Mexico
Huge Verdict In Trucking Accident Involving Texting Truck-Driver
Work Related Auto Accident Injuries and Employer Uninsured/Underinsured Motorist Coverage

Collins & Collins, P.C.
Albuquerque Attorneys

Mobile phones clearly present a danger to the driving public. Mobile phone use causes over 500,000 auto accident related injuries each year. Texting and driving can be almost as dangerous as drinking and driving. Simply talking on the phone also poses dangers which led to Albuquerque and Santa Fe banning all but hands free devices while driving.

Unfortunately, a great deal of business is conducted in cars on mobile phones every day. All varieties of business activity is conducted by mobile phone from pizza delivery to the highest levels of business. Texting is an epidemic that reaches far beyond teenagers. Perhaps just as bad, email has come to dominate the business days of many. The lure and call of texts and emails is simply too great for many to resist despite the dangers. The problem is growing worse, not better.

So too do accidents, many extremely serious or fatal, continue to grow. The technology has become so widely accepted that drivers do not appreciate or choose to ignore the dangers of texting, emailing or even talking on the phone while driving. Over 500,000 people are injured and 6000 die each year from distracted driving as a result texting, emailing or talking on the phone.

The negligent driver is clearly at fault when they cause an accident due to mobile phone use. His or her employer may also be liable under respondeat superior or agency. In fact, there are businesses that not only encourage this dangerous practice but demand it. The most obvious example, but certainly not the only, is sales where sales personnel are constantly on the move and constantly in communication with their offices, clients and prospects. Rather than discourage the practice, it is as a practical matter required for performance.

In any serious auto or truck accident, it is important to determine the what the negligent driver was doing at the time of the accident. Certainly, it should be determined if mobile phone was involved. It should also be determined if the negligent driver was acting on behalf of an employer. This includes determining not just whether the negligent driver was on the job but whether the person was engaged in activity for the benefit of his or her employer.

If the person was acting on behalf or in furtherance of an employer, the employer may have some liability for the accident. In some cases, the employer‘s liability may be significant. In cases of serious personal injury or wrongful death, the liability of the employer may provide the only real recovery for the injured person.

This is particularly the case in New Mexico which has a very high percentage of uninsured and underinsured drivers. New Mexico has the largest percent of uninsured drivers in the nation. Just as troublesome for those injured in auto accidents, New Mexico drivers are notoriously underinsured with the great majority carrying only minimal liability limits of $25,000. As a result, the first and often greatest challenge in a New Mexico auto accident case is finding insurance.

Fortunately, most businesses carry a variety of insurance that will kick in cases where their employees or agents have harmed others, including those involved in auto accidents. In fact, the only real coverage may come from the employer‘s insurance. The very business activity that caused the accident may provide the only net available to those harmed by it.

DISCLAIMER

Related Reading:
Company Liability for Employee Negligence Under Respondeat Superior
Work Related Auto Accident Injuries and Employer Uninsured/Underinsured Motorist Coverage
Protections of New Mexico Workers‘ Compensation Act Waived for Non-Compliant Employers

Collins & Collins, P.C.
Albuquerque Attorneys

Huge Verdict In Trucking Accident Involving Texting Truck-Driver

A 21 year old college student was awarded $49 million in damages to a Santa Clara verdict for brain injuries he suffered in an auto accident. Drew Bianchi was traveling with friends on a camping trip when two trucks collided on the center line sending one of the trucks careening into the rear of Bianchi‘s vehicle.

As is the case in many trucking related accidents, Drew suffered very serious injuries including severe and permanent brain injury. He now lives full time in the treatment facility unable to care for himself. It is expected that he will remain in care facilities for the rest of his life.

Bianchi sued both trucking companies and the truckers individually for reckless driving. It was alleged that while one trucker veered recklessly across the center line, the other driver was recklessly texting and inattentive.

The case suggests a trend likely trend in car and automobile accidents. Texting is increasingly common throughout society. Unfortunately, many find the urge to text even while they are driving. Driver inattentiveness is a leading cause of car accidents. This is especially true among younger drivers. The lure of texting to teenagers is not surprising. The lure of texting for truck drivers is both surprising and frightening.

Trucking accidents typically involve far greater injuries, often death, than run of the mill automobile accidents. The physics are clear. Trucks are huge, they are heavy, they are often moving rapidly, and do not easily come to a stop. Driver inattentiveness is a serious concern for all drivers with the incidence of car accidents involving mobile phones and texting rising rapidly. The fact that truck drivers are texting while driving creates a new level of concern. After all, if they are texting, they are also talking on their phones.

The trend in texting and mobile phone use while driving is clear. The case of Drew Bianchi suggests that car accident lawsuits will reflect the trend with increasing numbers of lawsuits filed for recklessness. It is common to allege recklessness in cases involving mobile phone use and now texting. Juries will likely begin to routinely accept these arguments as the accident statistics related to mobile phone use and texting continue to mount.

DISCLAIMER

Related Readings:
Employer Liability for Texting Employees
Hypertexting & Hypernetworking: Busy Hands are the Workshop of the Devil?
Past and Future Driving Evidence: Limited Admission in New Mexico Auto Accident Claims

Collins & Collins, P.C.
Attorneys at Law