Transport Insights

Nuclear Verdicts & Reducing Liability

Bobby McClain, Safety Consultant

Date: 8/24/2022


In today’s landscape of interstate commerce, you would be hard-pressed to find a city that does not have several law firms dedicated to placing accident blame and liability on trucking companies. Factor this with an overarching amount of widespread nuclear verdicts caused by reptile theories and lack of tort reform, and the stage is set for a disastrous outcome. Essentially, most all motor carriers on the road today are one catastrophic event away from going out of business.

Insurance coverage is an absolute must, but it only goes so far. Recently, a jury handed down a willful neglect verdict on a carrier to the tune of one billion dollars. Think about that for a moment. If a carrier is insured for 5 million dollars, guess where anything reaching above that comes from? That’s right, the company! And if their pocket is not deep enough to cover the overage, they are simply forced out of business. Keep in mind that it is not only the compensatory damages at stake, but punitive and exemplary damages as well. Drivers are not off limits and can be sued for negligence along with the company for the same accident. The bottom line is this; everyone has skin in the game, and no one is safe when it comes to repercussions from monetary dispositions related to tragic incidents.

As for the reptile theory strategy, a plaintiff attorney will try to impress on jurors that a company is overall neglectful based on several items collected during an investigation. If successful in painting a company with such a broad brushstroke, a guilty verdict can be handed down, even when the company has been determined to not be at fault! There’s nothing more unnerving as a safety professional than to receive a message telling you “Do not delete, shred, erase, redact, or alter anything related to this accident. And furthermore, surrender all notes, email, policies, logs, records, associated with said driver.”  Of course, you never want to be in that position, but you still need to plan ahead for it. Always remember, unlike an audit, everything is discoverable when it comes to lawsuit investigations! 

So, what’s the solution for reducing your exposure to the aforementioned liability? 

  • CSA scores: CSA scores are visible to the general public, so tracking them and identifying potential patterns for violations and developing corrective actions are crucial.
  • Onboard camera systems: Having technology in the cab such as onboard cameras to help curb distracted driving also provides an added benefit by exonerating carriers from nonpreventable accidents.
  • Mitigation technology: Although not mandatory (yet), emergency braking, lane mitigation, and avoidance technology sends the message that as a carrier, you are going above and beyond the call when it comes to safety.
  • Compliant hiring practices for CMV drivers: Probably the most proactive solution! Be very mindful when it comes to hiring the right person. Background checks, employment history, and pre-employment drug screens are vital to not only acquiring good talent but also in staying DOT compliant. Additionally, back-office functions that constantly track driver qualification files, i.e., current credentials for CDLs, MVRs, and med card certifications are a must.
  •  Fleet Safety Policies: Although not on the DOT audit inspection list, a well written safety policy shows that a company is focused on public safety by going above and beyond minimum standard requirements. The caveat of course, is that if you do indeed have an internal safety policy, it must be followed! As a best practice, additional policies should be developed as well such as driver handbooks and progressive disciplinary standards. But remember, always guard against duplicity so policies don’t contradict one another. Consistency is the key.
  • Training: Training, training, and more training! As previously lamented, simply going minimum standard might help you squeak by on an audit, but that type of mentality will only fuel the plaintiff attorney’s arsenal. Pre employment, annual, quarterly, and remedial training (especially post-accident) will often derail the reptile theory attempt. Always make sure to follow your developed guidelines, and document everything in the event you are asked to surrender it due to an investigation.

By proactively following these basic guidelines, you should have a great start at deterring the trigger mechanisms that lead to nuclear verdicts.