M. GARNER BERRY
Attorney at Markow Walker, P.A.
In March 2013, Overdrive Magazine published the State Inspection Intensity Report, which provides data for roadside violations for truck drivers and trucking companies. This report covers violations by state for the two-year period since CSA was implemented. Click here to read the report [a five-page PDF file].
Information on roadside violations becomes increasingly compelling because plaintiff's attorneys frequently bring up negligent maintenance and "out of service" claims against trucking companies following an accident. In short, plaintiffs want to prove that mechanical defects contributed to an accident.
Bringing up maintenance complaints can inflame a jury while having little to do with the cause of the accident itself. What's more, many juries do not have favorable opinions of trucking companies. How can a motor carrier defend itself in such a volatile claim scenario? A fundamental step is for trucking companies and their attorneys to be knowledgeable about the roadside violation information out there. Arming yourself with information supports a vigorous defense against these maintenance complaints.
How Are the Violations Data Derived?
The Overdrive Magazine report analyzes state inspection intensity by looking at the overall inspections performed on trucking companies in the 48 contiguous states (Alaska, Hawaii, and the District of Columbia were not included) for the first two years of CSA implementation (December 2010-December 2012). The report also analyzes the top states by violation types (for example, moving violations, Hours of Service violations, maintenance violations, etc.) and compares the states to the national average.
State rankings for overall inspection intensity are based on two measurements:
1.) Total truck and driver inspections performed over the first two years of the Compliance Safety Accountability program from December 2010 to December 2012
2.) Total lane miles of National Highway System roadway within each state
Diving into the Violations Data
Let's take a closer look at the report. Here's are some stats from Wisconsin, Minnesota, Michigan, and Illinois (selected because these are states where HNI has offices). The report covers the 48 contiguous states, so like statistics are available for the remaining 44 contiguous states.
- In Wisconsin, Minnesota, Michigan, and Illinois, there were five, six, six, and five inspections per lane mile, respectively.
- In these four states, the top three percentages of violations for all inspections were given for maintenance issues (brakes, lights, observed vehicle defects).
- Wisconsin ranked sixth highest for maintenance violations. The national average for maintenance violations is 71% of total violations issues; Wisconsin's percentage was higher, at 73.7%.
- Wisconsin also was in the top 15 for violations involving brakes (20.7%; national average is 17%) and lights (20.1%; national average is 19%).
Strategies for Making a Case Against Maintenance Complaints
Should you be faced with a litigious situation, there are strategies for standing up to these maintenance complaints! Consider attacking the complaints early with summary judgment motions, or eventually with motions in limine (in other words, getting the judge to rule whether evidence should be included), using some of the following arguments:
- Generally, prior maintenance violations are inadmissible for an inference of negligence that the same conduct was negligent on the date of the accident.
- Negligence based on the use of maintenance violations amounts to strict liability, which is not the standard in a trucking accident. Argue that plaintiffs also must be required to show proximate cause for the accident. Without proximate cause, maintenance violations are inadmissible.
- When plaintiffs attempt to use CSA scores, particularly maintenance-oriented BASICs, argue for their exclusion as too remote to be relevant under R. Evid. 401 if the carrier rating is not relevant to whether the maintenance violations were present at the time of the accident.
- If a plaintiff alleges a mechanical failure contributed to the accident and attempts to use prior maintenance violations to link causation, attack the plaintiff’s experts for failure to render opinions based on sufficient data if the expert struggles giving opinions that this was the cause of the accident. Make the plaintiff work to prove breach and causation. Similarly, use reliable experts to give opinions that any mechanical failure that may have existed at the time of the accident is unrelated to any prior maintenance violations.
Naturally, you should refer to the judgment of your legal team in a litigious situation. Consider these strategies additional tools in your toolbox should you be faced with legal action. There's no doubt your situation and firm will be unique, but it rarely hurts to review winning arguments for similar situations.
M. Garner Berry is a personal injury defense attorney in Mississippi. He specializes in transportation clients and vigorously follows issues in the trucking industry. Click here to read his blog, Loaded Up and Trucking.