Recently, a jury in Gilmer, Texas awarded a plaintiff a $101 million verdict following a personal injury trial in what is being considered the largest verdict ever awarded for an accident involving a tractor-trailer. The massive verdict, of which roughly $75 million was for punitive damages, was assessed against FTS International (“FTS”), an oil services company that carries sand and other fracking materials. The primary causes of action in which the plaintiff was awarded the verdict was FTS’s negligent hiring and negligent retention of its driver who was involved in the accident, causes of action our firm warns our clients about frequently.
The accident occurred when the FTS driver struck the back of the plaintiff’s pickup truck when the plaintiff was on the way home from church. Surprisingly enough given the outcome of the trial, the plaintiff not only survived the accident, but walked away proclaiming to be uninjured. The plaintiff later undertook a regimen of chiropractic treatment and ultimately underwent surgery on discs in his cervical spine. According to the plaintiff, he was no longer able to work as a crane operator due the injuries sustained in the accident.
It was later discovered that the FTS driver had received at least three traffic violations in the three years prior to being hired. While hiring of the driver was not illegal or a violation of any articulated duty of care, FTS had a “strict” internal policy that it would not hire drivers who had received 3 or more traffic violations in the 36 months prior to being hired. Furthermore, the FTS driver also admitted to using methamphetamine and marijuana “pretty consistently” in the months prior to the accident. There was also testimony regarding the FTS driver having signed documents attesting to having gone through various safety trainings that he did not complete. Again, these safety trainings were company policy and not legally mandated.
This verdict is a cautionary tale to trucking companies for a multitude of reasons. First, these types of “nuclear” verdicts are generally expected to be decided in the more liberal jurisdictions of the United States. Instead, it was a jury in a predominantly conservative jurisdiction that handed out this award.
Second, regardless of how minor a trucking accident looks to the drivers involved or even an investigating police officer, motor carriers need to be prepared for major litigation in all accidents involving tractor-trailers or other large commercial motor vehicles. Our firm consistently sees six and seven figure lawsuits stemming from accidents that could hardly be considered fender benders. It is far more cost effective in the long run to employ a full-on preemptive defense of every accident than it is to sit back and eventually get hit with a verdict such as this.
Third, motor carriers should never set internal policies that they cannot adhere to 100% of the time. Having policies that it did not adhere to ended up being the most fatal part of FTS’s handling of this issue. From a legal perspective, this somewhat common practice is the cause of great concern. Once a carrier articulates a safety rule that is above and beyond FMCSA requirements, the carrier can be viewed as effectively changing the standard of care, showing it believes the standard of care should be higher than what is legally set out. At that point, in the eyes of any jury, that company will be expected to adhere to that rule. So, simply stated, if a company articulates an internal company policy, especially relative to a safety related matter, then compliance with that policy is paramount – and failure to comply can be catastrophic.
Lastly, carriers must be extremely vigilant in whom they hire. The driver here did not meet company qualifications and was hired due to lack of oversight in the hiring process. In particular, FTS used a third party business to perform its background checks instead of paying for a driving record directly from the Texas DMV. It is important for carriers to create air tight policies as to their background checks of potential drivers. Ignorance of a driver’s past transgressions is often no excuse, especially if the carrier was not diligent in its research. Once hired, carriers must remain vigilant of their drivers’ criminal records and driving records. Keeping all of these tips in mind will lessen the likelihood that a carrier gets put out of business because of one bad company driver making one mistake.
For more information or questions about negligent hiring, negligent retention, safety policies, or hiring policies, please contact Steve Setliff at (804) 377-1261 or firstname.lastname@example.org or Kevin Coghill at (804) 377-1273 or email@example.com.