A Texas jury recently awarded $730 million to the survivors of a 73-year-old woman killed in a 2016 crash with an oversize-cargo truck hauling a propeller for a U.S. Navy nuclear submarine.
What’s driving these ever-increasing nuclear verdicts? Many point to what are called “reptilian tactics,” a trial strategy that provokes fear and anger in jurors so they dislike the defendant so strongly they will award a plaintiff an excessive amount of damages.
In this case, the jury awarded $480 million in compensatory damages and $250 million in punitive damages, making it one of the largest wrongful-death verdicts in the nation.
Essentially, trial lawyers who earn these nuclear verdicts are making the case that a corporation needs to be held accountable when they place profits over safety in a manner that leads to catastrophic events, explained Colin McSherry, of Lancer Insurance Company.
“It’s clear that the goal of these attorneys on the other side of us is to elicit negative facts and information about your corporation which drive up the potential settlement value more than just the facts of the accident itself,” McSherry said.
McSherry and Theresa Bratton, of National Interstate Insurance, explored the issue during their presentation, “Godzilla Returns . . . And He’s Bringing a Jury,” during the recent UMA Safety Management Seminar sponsored by National Interstate Insurance.
Best practices before a claim
Their presentation reviewed how to prepare for success before a claim and best practices for the claims process following an accident. The key is to be proactive about issues surrounding safety, and to implement plans and strategies to do everything possible to avoid those pitfalls.
A defendant’s overall commitment to safety, from its safety culture to operational plan and decisions, are primary factors in large verdicts. The five common contributing factors to large verdicts are: poor driver history, use of a mobile device while driving, hours of service violations, fatigue-related accidents and equipment failures.
“We operate in a challenging environment, and when there is a claim with serious damages and adverse liability, your operations will be on trial,” said McSherry.
Creating a culture of safety requires a commitment to safety and is demonstrated by how a business puts safety before profits. A company can show this by:
- Investing in safety
- Shaping employee attitudes toward safety
- Developing its image and website
- Following internal guidelines and procedures
- Not allowing maintenance shortcuts
- Having a crisis management plan
- Using telematics
- Monitoring, reviewing and taking action to manage drivers
- Managing fatigue
Driver hiring, retention and training practices must be a priority.
“We really can’t be skimping out and slacking in our driver hiring, retention and training processes,” McSherry said. “We need to be thoroughly investigating all of our candidates and regularly reinforcing good and defensive driving practices amongst our employees.”
This should involve the following:
- Motor vehicle record and Drug & Alcohol Clearinghouse review
- Calling to speak with prior employers and documenting those efforts
- Background checks
- Administering proper road tests
- Drug and alcohol testing
- Emphasizing defensive driving
- Reviewing and following FMCSA rules
- Driver’s commitment to safety
Actions to take after a crash
The actions a company takes after an accident are critical. Preservation of evidence is crucial, from maintenance records to onboard video recordings. Videos can impact claims. They are considered more reliable than witness accounts and statements. That’s why it is smart to do video canvassing to find business surveillance cameras, residential doorbell cameras and videos that can show other angles and additional context.
The goal of the plaintiff will be to “find any failures that they can connect to you and make those failures as a company. So the failure to preserve evidence is a failure on you, as the company. It is not a failure that has anything to do with the facts of the loss,” explained Bratton.
Retaining defense counsel is important. The No. 1 reason is to ensure the investigation is privileged. A company’s attorney needs to retain the accident reconstructionist expert and other investigators.
“We want counsel to assign them so that all the communications that go back and forth between them are privileged,” Bratton said. “I’ve seen situations where the claims adjuster hires an IA and doesn’t do it through counsel, and some communications go back and forth that ultimately are not very good for the claim. There was no privilege surrounding that investigation.”
The key to fighting the reptile tactics in court is establishing what caused the accident, so physical evidence is important.
“While it’s not really what the plaintiff is going to focus on, it’s what we need to be able to focus on if we’re going to push back against the reptile theory and bring the jurors back to reality and focusing on the accident at hand.”
Related:
Insurance experts offer advice as buses get back on the road
