Nuclear verdicts—jury awards over $10 million—threaten the very heart of the trucking industry as they drive up insurance rates and make them unaffordable to many smaller operators.
An American Transportation Research Institute (ATRI) study in 2020 confirmed nuclear verdicts are increasing in number and in size. ATRI studied 600 cases between 2006 and 2019 and discovered 26 nuclear verdicts in the first five years of data, and 300 in the last five years. The study also found from 2010 to 2018, verdict award sizes grew by 51.7% annually, outpacing health care increases and inflation, which grew respectively at 2.9% and 1.7% annually.
Paul Enos, CEO of the Nevada Trucking Association, calls these stats frightening.
“We have seen a 967% increase in nuclear verdict awards over the last 15 years,” he says.
Sizeable verdicts drive up insurance costs, which also outpace inflation. Insurance companies have increased rates by 10% a year over the last decade, with smaller carriers paying about three times as much as larger carriers, reports Reid Spitz, co-founder and chief product officer of insurance company HDVI. A fleet of five power units, for example, pays $0.165 per mile of insurance premiums compared to a fleet of over 1,000, which pays an estimated $0.049 per mile in insurance premiums, reported a PrePass-sponsored webinar titled “Rebalancing the Scales of Justice with Tactical Training in Trucking Litigation Defense.”
“That represents a huge expense for a trucking company operating on a 3% to 5% margin,” Enos adds. “It’s also a tight squeeze for insurance companies, where for every dollar in premium they collect, they pay out more than that $1 in claims and other costs.”
But monsters are always scarier when they hide in the darkness. When someone shines a light on them, people can see them for what they are. The same is true of nuclear verdicts. When the industry exposes nuclear verdicts for what they are, fleets can prepare for battle before an accident occurs. Once prepared, these situations become a lot less scary, says Brendan Dawson, founder and CEO of AccidentPlan.
“We have to take control over everything. We cannot succeed by being victims of circumstance,” he explains. “We have to change the way we do things, so we do not continue to suffer the 112% loss ratios we’ve experienced so far.”
Reptilian Threats: How Does Reptile Theory Come into Play in Trucking Lawsuits?
In 2009, jury consultant David Ball and plaintiff lawyer Don Keenan published a book titled, “Reptile: the 2009 Manual of the Plaintiff’s Revolution.” The text describes how to influence jurors using reptile theory, a legal technique that appeals to the oldest “reptilian” part of the brain, which handles survival instincts.
A plaintiff lawyer using reptile theory encourages jurors to perceive a defendant’s alleged conduct as a threat to their own personal safety and the safety of their families and community, versus the facts. The authors claimed $7.7 billion in verdicts and settlements from employing this tactic.
That truth bears out as jury awards started increasing in 2011 across all industries, reports attorney Rob Moseley with Moseley Marainak Law Group. But, he adds, “it’s a far bigger issue for trucking than it is for other industries because of the frequency of accidents.”
In fact, it’s a $14 billion industry, according to Nevada Trucking Association’s Enos.
Plaintiff attorneys have closed the knowledge gap between defense attorneys and themselves by combining reptile theory tactics with better education.
“The lawyers defending trucking companies used to be light years ahead of lawyers suing trucking companies in terms of industry knowledge,” Moseley says. “That’s not the case anymore.”
Today plaintiff lawyers get CDL licenses, take safety classes and know more “about safety processes than fleet safety managers. These guys are immersed in the trucking business,” Moseley says.
But he cautions, they are not billboard lawyers. These attorneys do not advertise on TV or on roadside billboards.
“These lawyers may only take on 10 to 15 cases a year,” he says. “It’s better to get sued by a billboard lawyer because they feel pressure to move cases. Low volume gives attorneys more time to work trucking cases. And they don’t mind trying them. In fact, they are itching to try these cases and feather their nest with a few big verdicts.”
“Jurors are angrier … It has disrupted the normal expectations for jury behavior.”
Jurors also have changed.
“Jurors are angrier and often ‘stick it to the man’ kinds of people,” Moseley says. “It has disrupted the normal expectations for jury behavior.”
Plaintiff attorneys also have access to more litigation financing than before, adds Nick Saeger, assistant vice president of transportation at Sentry Insurance. Third-party investors fund litigation for a pre-determined finance charge because they see the potential for lucrative returns through nuclear verdicts, he says.
Using the Mongoose Method Against the Reptile Theory in Trucking Lawsuits
Enter, the Mongoose Method, a term coined by Enos, which aims to counter plaintiff attacks and crush the reptile.
The term draws from animal kingdom where only the mongoose has the quickness and ferociousness to take on the cobra snake, a reptile. This legal strategy rebalances the scales of justice through tactical training in litigation defense that helps attorneys “exploit the reptile theory,” Enos says.
The Mongoose Method educates fleet managers and drivers in skillful tactics to better control the narrative. Plaintiffs will try to prove a trucking company placed profits over safety, but the Mongoose Method works to flip this narrative on its head.
Trial lawyers learn the tricks, traps and tactics used to defend these cases, and fleets learn to better represent themselves in this training. For instance, owners, fleet managers and drivers learn what to expect when plaintiff attorneys use the reptile theory during depositions. They discover answers given during depositions can be used against them at trial, says Enos.
“The Mongoose Method lays out the traps and trends and shows them how to answer or not answer questions during a deposition,” he says. “This isn’t to avoid accountability. But plaintiff attorneys have been using these tools and coaching their folks for over a decade. We are taking a page out of their books to educate our folks and make sure they are better prepared, so when a trap is set, they avoid it, instead of walking right into it.”
The key thing companies can do is identify potential systemic vulnerabilities ahead of time or at least have a response, so they are less vulnerable to these attacks, says Doug Marcello, an attorney with Saxton & Stump.
Truck Fleet Vulnerabilities to Watch Out for to Keep Nuclear Verdicts at Bay
Marcello explains that for decades fleets have responded tactically to reptile theory depositions, but he purports proactive strategic defense works better.
“Look for and analyze potential systemic failures that could become the focus of a reptile attack and address them proactively,” he says. For example, plaintiffs might point out deficiencies in hiring and training, hours of service, and other key areas. “We know these things are at the heart of many reptile attacks,” he says. “These are things companies can proactively review and address.”
Trucking Fleets Should Avoid Public Safety Slogans
Enos says internal company literature and safety slogans consistently trip up companies. When companies claim “safety is our top priority” publicly, it becomes a key focus in reptile attacks, he explains.
He’s not saying safety shouldn’t be a top priority. Rather, companies should not make public claims. He explains in a deposition, attorneys will ask, “Is safety your top priority?” When a fleet representative answers ‘yes’, they will strike. For instance, if the accident happened while it was raining, the attorney may ask, “Isn’t it harder to stop on a wet road than a dry one?” The correct response is “yes.”
When companies claim “safety is our top priority” publicly, it becomes a key focus in reptile attacks.
“They will then ask, ‘Why did you send a truck out when it was raining, when you knew it would be harder for that truck to stop?’” he says. With the Mongoose Method, the trucking company already removed this statement from their websites and safety manuals and knows how to respond to this question, Enos adds.
Moseley stresses companies must eliminate their blind spots. “That’s what these attorneys will look for and take advantage of,” he says.
He explains a company might do everything right, except this one time. Plaintiff attorneys will exploit that and claim this oversight led to the accident.
“Fleets must constantly evaluate their processes to eliminate blind spots and avoid organizational apathy, where fleets think they are in good shape, but they are not,” Enos says.
Trucking Fleets Should Use Dash Cams
Driver facing cameras can shed light on areas of concern, says Sentry Insurance’s Saeger.
“Some drivers may feel like Big Brother is watching, but fleet management can teach them how the cameras help improve their safety and the safety culture of the entire company,” he adds.
Marcello stresses juries today expect video evidence. Cameras help companies coach and train drivers to drive better and can exonerate drivers after a crash, he says.
Make sure you’re avoiding these common mistakes when implementing in-cab cameras.
Using Data to Manage Fleet Reputation and Prevent Nuclear Verdicts
Marcello, who is the chief legal counsel and founder of BlueWire, encourages fleets to use data to manage their reputation and prevent nuclear verdicts.
“Data drives most fleets,” he says. “Today’s trucks are basically electronic devices that deliver freight.”
Fleets, he adds, must identify the data coming in from telematics systems, ELDs and other electronic devices, then analyze it for insights that point to greater risk for accidents and other events. The data will identify troublesome driving behaviors and drivers that need additional support. But fleets must monitor and coach drivers toward better driving practices and discipline drivers if the behavior continues, he stresses.
BlueWire helps fleets manage their reputations by analyzing companies’ CSA scores and other data.
How Trucking Fleets Can Manage Costs and Risks of Nuclear Verdicts
Plaintiff attorneys use very sophisticated tactics to bring down fleets.
“They now paint a picture of not only the specific incident, but of the entire fleet and how it operates from their safety and hiring practices to their compliance practices,” HDVI’s Spitz says. “It is very important for fleets to have a holistic, well-managed risk management program.”
As an insurance company, HDVI officials understands accidents happen; there is risk every time a truck hits the road. But HDVI strives to protect fleets when the unexpected occurs.
“We want them to put themselves in the best possible situation when these unfortunate events happen,” he says. “With a well-managed risk program, fleets can show that they’ve done everything right. They have invested in needed resources and have done everything they could to prevent accidents.”
HDVI helps companies manage the data they collect and even brings technology, like dash cams, into fleets that cannot afford them. The company analyzes fleet data looking for trends in harsh driving events and route risks to calculate a predicted crash rate per million miles and apply it at the fleet and driver levels. They turn this information into a score for the fleet, drivers, and their trucks.
“We provide these insights to fleets and show them which drivers and routes are the riskiest, and how they can mitigate that risky activity,” he says.
HDVI also gives fleets an incentive to improve their scores by tying better scores to lower insurance rates.
Drivers receive an app so they too can see their scores and understand their driving behaviors. There are gamified leaderboards that allow drivers to compete to win driver rewards within their fleet.
The process contributes to a well-managed risk program, which “includes active coaching and active participation from the fleet owner and safety manager every day, improved compliance, and more,” he says. “We encourage fleets to adopt a learning management system so they can coach drivers on the road. It’s a holistic approach to safety, compliance and coaching.”
HDVI has already seen positive results among the fleets it has served since its inception 12 months ago.
“In 20 million miles of driving data, we saw a 30% reduction in predictive accident rates versus the industry crash rate,” he says. “Our fleets are much safer than the general population of fleets out there. Our insurers are also seeing savings of 8% to 9% within their policy term. And in the first three months of being insured with HDVI, 75% of fleets saw a reduction in critical events and by six months that number rose to 90%.”
Spitz calls the program a win-win-win.
“It’s a win for fleets because we’re helping them manage their safety, lower their insurance rates and keep them out of accidents, which lowers their operating and insurance costs,” he says. “It’s a win for us because we have fewer claims and lower claims costs. And it’s a win for the public because it reduces crashes.”
Another way to lower insurance rates is via higher deductibles, adds Saeger. A smaller company may want a $1,000 or $2,500 deductible, but a larger fleet may decide to lower insurance premiums with deductibles of $25,000 to $100,000.
“Work with your insurance agent to see if a higher deductible makes sense,” he says. “Do not do it to cut costs. Do it because you believe you will have fewer claims than the average trucking company because you have a better safety program.”
How to Beef Up Fleet Safety Training to Reduce Risk
CarriersEdge also provides safety training that can help fleets reduce their risk. Mark Murrell, president and co-founder of CarriersEdge, explains the company aims to push fleets to develop well-rounded safety programs and maintain all documentation, so if an accident happens, they are ready.
“We are helping fleets get their house in order, so they are better prepared after an accident,” he says.
Murrell explains fleets have seen a 70% to 90% improvement in safety with this online training. Already safety conscious fleets may realize a 10% to 20% improvement in safety and roadside violations nearly disappear.
CarriersEdge allows fleets to customize training so that specific curriculums appear on a set schedule and have deadlines for completion. Fleet operators receive notifications when drivers do not complete or are late in finishing their training. The program also provides an analysis that shows which drivers complete everything on time, which ones are always late, and what issues the training resolves.
“This gives them tools to build more effective safety programs,” he says. “You cannot solve this once you are in court. The solution must happen months and even years before by building a safety culture.”
What Truck Drivers Need to Do During an Accident
- Independently gather information and photos on the scene in a timely fashion.
- Limit speaking, giving opinions or apologizing.
Even if fleets do everything right, an accident may happen and drivers must know what to do, stresses AccidentPlan’s Dawson.
“The claim starts when the accident happens,” he says. “If a driver doesn’t gather information on scene, it leaves the narrative open to someone else’s interpretation. When you control the narrative, you control the claim.”
The AccidentPlan app offers a checklist that walks drivers through the information to collect and securely stores data and images for later use.
“We walk the driver through securing the scene, making sure triangles are set up, flashers and parking brakes are on,” he says. “Then we give them a brief conduct reminder, such as not speaking too much or giving opinions, apologizing for the accident, etc. The app then walks drivers through gathering photographic evidence. We want the driver to gather information as fast as possible because it is perishable.”
While police also collect data at the scene, Dawson stresses fleets should gather their own. It may be three weeks before law enforcement reports become available.
“When other people are in charge, you cannot control your own narrative. Other people will write it for you,” he explains.
With the right strategies and tactics in place, fleets can expose the monster under the bed and strike first to stop nuclear verdicts before the monster makes a move.
This article appears in the October 2022 Issue of Heavy Duty Trucking