Episode #18 – Insurance perspective on trucking litigation

This episode of The Litigation Psychology Podcast features Tim Yeary, Transportation Producer, with an insurance agency that specializes in the trucking industry. Tim discusses his thoughts on COVID-19 safety rule changes, nuclear verdicts in the trucking and transportation industry and the impacts of technology in trucking industry. Plus, we cover the continued presence and challenge of the reptile attack in trucking litigation, how and when to prepare for a potential reptile attack and the fact that the defense bar is not as proactive as the plaintiffs bar and the risks with that.

Full Episode Transcript

[0:04] Bill
Litigation psychology podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky, here with my guest Tim Yeary. Tim, how are you doing over in Dallas, Texas?

[0:12] Tim
I’m doing very, very well. Good morning to you.

[0:15] Bill
So happy to have you on the show. And as you know, you and I have talked a lot this week, and you’re in the trucking industry. And we really want to dedicate the month of May to, to getting the word out to the trucking industry on, you know, updates, strategies, try to get the industry talking more. It’s a very unique time for the trucking industry. Tell us about, about your company, your background, and kind of your role in the trucking industry, because you’re not a trial attorney. We talk to a lot of trial attorneys on their perspectives, but we really want somebody from more the insurance side of things and coverage. Tell us about your background.

[1:01] Tim
Right, so I guess originally to start out, son of a truck driver. My dad’s been a single unit owner-operator my entire life until his recent passing in February, but just grew up in a trucking family. And so I’ve been here at Cline Wood since 2013. We are an insurance agency and risk management that just specializes in the trucking industry—is what we do. Prior to coming to work for Cline Wood, I actually was at a 600-unit pneumatic tank carrier in an operations role there. And we had actually grown that company from probably 30, 35 trucks up to 600 plus. So just a lot of experience there on their operational side, and now being able to blend that on the insurance side gives me kind of a unique perspective, I think, when I’m meeting with my clients, my insureds, as I’ve actually sat on their side of the table before. It makes that conversation a lot more fluid, I believe.

[1:57] Bill
Excellent. So, COVID-19, we’re hopefully on the back end of it, not the middle of it, but it’s obviously had a huge impact on the trucking industry. And I, I know and I’m aware that some of the, some of the kind of the rules and the guidelines have been drastically shifted for the trucking industry to allow them to make more deliveries, to deliver goods and, and things like that. How long do you think that’s gonna last, and at some point do they, do they reel it in, or where do you see that going?

[2:37] Tim
Yeah, so we’ve kind of been, it’s kind of really been unique how they have and what they labeled as essential products that were needed to get out. You know, I would say the vast majority of freight has still remained under the same regulations that it’s had before. It’s just that from a federal and state perspective concerning hours of service and certain things, they did loosen the regulations in that, just for essential goods, which affected a small percentage of the transportation industry, but a lot of it still had to remain under the same regulations they had before. I think one of the challenging things that we see from our perspective, and that we’ve counseled our clients on, is although there may be a federal guideline that comes down allowing some, a little bit of gray area in hours of service during this essential delivery time, what we’ve counseled our clients on is to remain and keep their drivers under the current regs because the last thing we want is one of our drivers is to be out of hours or have their hours kind of in a gray area in the event of a large accident. Because that’s going to be very, very difficult to, to defend yourself if you have to, you know, go to court with that. So we’ve really tried to proceed with caution with that and not to use that as any kind of blanket approach to some big operational change.

[3:58] Bill
Very interesting. So the topic, so the nuclear verdict topic—does this topic just not scare you to death? I mean, do, are you like up at night losing sleep because some of these nuclear verdicts, particularly in the trucking industry? I mean, it’s put some companies out of business. What, how have you, your company, have you guys been communicating, talking about these nuclear verdicts and the types of things that you can do to, to avoid them? Because they’re bad.

[4:30] Tim
Right. That is a daily conversation we have with every insured that we have, and I don’t think that’s going to go away anytime soon. You know, where most of my work is primarily focused in Texas, although our firm is national and we do stuff all over and I travel a lot, you know, it’s every, every town, every city, going on the interstates—I mean, there’s billboard attorneys everywhere that call us and we will, you know, we’ll sue the trucking company for you. And you know, I think that’s the big challenge that we continue to see. And, and I look at it like, you know, we had the asbestos run back in the 80s and now, now that that kind of dried up, now let’s, we’ve really put a target on the trucking industry. And the sad thing is though that we look at it and, and I say this coming from a trucking family, that much of the trucking industry, we don’t do what we should to guard ourselves to start with. I mean, we’re almost giving the other side ammunition a lot of times because we’re not following our own policies and our own procedures, and, and we vary a little bit on that and they will use those things against us.

[5:37] Bill
Oh yeah. On several of the cases I work on trucking industry, it’s hard not to cringe when going through whether it be the employee handbook or policy and procedures. And the language used in that type of documentation can really set you up for disaster, particularly if it says, you know, “ensuring safety’s our top priority above and beyond everybody.” If that’s plastered all over your internal materials, it can certainly, can certainly lead to trouble. Tim, I’m gonna share my screen with you and I want, I want to play you something. It’s, it’s, it’s short, and this is something from our nuclear verdict webinar that we do. It’s a short video and so what I did—can you see that?

[6:19] Tim
Yes.

[6:20] Bill
What I did is I went on YouTube and I just put in the search box “nuclear verdict.” This is the only thing that came up, and I want to talk about this because I do think that the use of technology in the trucking industry, obviously it’s evolved over time, and it’s getting very, very sophisticated, but I want you to listen to this message and then let’s talk about it.

[6:43] Tim
Okay, perfect.

[6:45] Video plays

[7:55] Bill
All right, so I wanted to share that with you and go back to our full screen here. Couple things about that that kind of bother me. Well, first of all, they have the three bullet points on how to avoid a nuclear verdict, and none of them have to do with litigation, none of them have to do with preparing your witnesses to testify, none of them have to do with legal strategy. And then the second thing that bothers me about that video is it’s kind of saying the message of, as a trucking company or industry, the more technology you have, you can advertise to a jury that you’re the safest around. Well, what are your thoughts on those messages?

[8:32] Tim
So the big word that stuck out to me in that is “monitor”—if there’s one word that they said. So we can have all the technology under the sun, everything known to man, but if we are not monitoring that and using that for coach, for a coaching tool and to actually improve our scores and improve our policies and procedures and to have corrective criticism within our own organization. Because I find that a lot is, you know, companies may have technology and but they’re not using that as a tool. And I think that is absolutely crucial. And there’s a lot of things that we promote and we really want to encourage our carriers to do, but with that, I always tell them if you don’t have the personnel hired to, to monitor and to use this as a coaching tool, then I would rather you not get the technology. You need to have the personnel ready to utilize it; if not, don’t spend the money on it because you’re, it’s just fluff at that point.

[9:26] Bill
On several of the cases that I’m working on currently in the trucking industry, it seems like technology cuts both ways, particularly with the use of the, the in-cab videotape and yeah, the dashcam and GPS. And so when there is an accident, I mean, 9 out of 10 times now you have a full video of it. What has been the industry talk about technology? I guess in some ways it’s a real positive, but in other ways can be a real headache when it comes to litigation, right?

[10:04] Tim
So I think there are several ways to look at that, and this is a, I think, a constant argument that we could have on both sides of the fence. You know, historically when you look at commercial trucking accidents, 70 plus or minus percent of those are statistically caused by passenger cars. So the idea would be that the dash camera is going to help us on at least 70% of those showing that we’re not at fault. And then we’ve got, you know, another 30 percent to deal with and that where we are at fault. And what I have seen is, is looking at those, if we are at fault, well let’s own up to that. We have, we have the data, we have the footage, we’re at fault, let’s settle the claim and let’s move forward and, and you know, and let’s, let’s just deal with this like we need to instead of dragging this out for three or four or five years in court just making the claim and the cost just continue to accrue. So I think that’s one of the things that I look at most is even those where at fault, I think they could actually settle cheaper just because we just need to own up to it. We messed up, it’s on us, let us do that. But the other 70 percent so outweigh that just because we’re able to, and we’ve seen that with a lot of our clients, Bill, honestly, is because a lot of those we have the ability to download and share with a roadside trooper on the side of the road at the accident where, you know, we have a four wheeler that pulls over in front of us and brake checks our truck and we rear-end them. And our driver says, “this is not my fault, here’s what happened.” We can show the trooper the video footage. You’ll not get any, any violation, any citation, no roadside, nothing, because the trooper is gonna look at that other guy and say, “man, what in the, you know, what were you doing?” So it becomes a very valuable tool and you have that real-time data to work with.

[11:48] Bill
That is absolutely amazing. I did, I did not know that. Pretty, and pretty amazing stuff. A couple more points before we wrap up. Something I find very, very interesting is how the role of meteorology has played in the trucking industry. And I know that some, some trucking companies have meteorologists on staff, and they’re the ones making the calls because so many of these accidents are weather-related. How do you see that issue as far as decision-making, as far as okay, does this guy get on the road when it’s, again, 32 degrees, there may be a 20%, 25% chance of snow? How do you see companies making those calls? And is it a pretty united front across the industry, or is kind of, is every company doing things a little bit differently in that regard?

[12:43] Tim:
I would say every company’s different in that regard. Obviously, I think your larger fleets have the ability to staff someone like that, to have the resources to do that, and they’re able to track that nationally and really track their drivers. Then I think you see a lot of, you know, because a lot of the trucking industry is made up of fleets that are 10 to 50 trucks, a lot of smaller fleets that make up the vast majority of it. And so when you look at those, I think one of the key features in that is what I’ve seen that’s been the most, I guess, fruitful, if you will, is the number of drivers to a dedicated dispatcher and what that ratio is. Because the, the idea is that dispatcher, you know, if he is only, if he’s dispatching ten trucks or he’s dispatching a hundred trucks, how much more time is he gonna be able to spend with a lower number? And so I think that’s where a lot of fleets kind of work through that is an internal model of, you know, and that varies too, are they long haul, are you know, are they moving from California to the East Coast and they’re gonna have that same load on for four days, or are they regional and they’re gonna have three loads today? So that, that driver ratio per dispatcher, I think, really plays into that a lot. And it’s, and it goes back to with the weather—is it a regional or a nationwide company? Because there’s a lot of factors that can go into that. So you know, I think just from a fleet standpoint, it varies very, very widely and greatly of how, how they handle that internally.

[14:10] Bill
Makes sense. Let’s wrap up with my favorite topic: reptile. The reptile tactics and the plaintiffs’ bar practicing those tactics, I think, has had the trucking industry in their crosshairs for some time. And unfortunately, they’ve been really successful. And I think a lot of the nuclear verdicts that you’re seeing, many of them are driven through these reptile tactics. Is, is that a discussion you’re also having internally about how to identify when you have a case where you know the reptile tactics are going to be used, and maybe taking some extra steps to try to help get ahead of it? Because what I have seen in the trucking industry is by the time everybody figures out they’re getting reptile, it’s way too late. And then, the ability to settle a case at a reasonable amount goes out the window, and then when you try to settle, they’re like, “oh no, no, no, no, we are going to the courtroom to double there.” What are some of the discussions on reptile that you guys have been having internally?

[15:23] Tim
So that’s kind of been a passion of mine, and it’s funny that yours as well, for several years now—just diving into the subject. Because I was very fortunate several years ago to actually get to go to a plaintiff conference, kind of under disguise for a couple of days, you know? And it was just very interesting to see some of the strategies and, you know, the, how they would maneuver stuff and how they would teach each other to do this. And I remember just sitting in that room, just shaking my head at this. But they, they’re very intentional in what they do. And I think the plaintiff side has been very strategic in building kind of a cooperative group amongst plaintiff attorneys to roundtable a lot of these claims, where I don’t see that on the defense side as much. So I think the plaintiffs definitely are several years ahead of us in this game, and if, if you want to call it that. And I think they’re, they’ve really, really refined their goal and how they’re gonna walk you through this path. Like you said, you don’t even realize you’re walking down this path until it’s too late. But I believe they start that process early on in discovery and they walk it all the way through. I’m actually early next week with one of my clients where we’re walking through some deposition training, because they actually have one of these coming up here real soon. And it’s gonna be a lot of those questions like, “what are we doing here to prepare for this? How are we gonna have these discussions, and what do I need to look for?” But I think that’s, it’s very important. I think that motor carriers need to understand what’s going on. One of the biggest things that I took away from that plaintiff attorney conference I went to—speaker after speaker led with this one sentence: “If you dig deep enough, it’s the trucker’s fault.” And they would say that over and over and over, and it kind of became the anthem that they led the, the conference with. So I really do, you know, and it goes back to what I said earlier about individual companies, their policies and procedures. I think it is so crucial that, that we review those. And we find those often to where a motor carrier’s had the same policies and procedures for three, four, five years. Well, a lot of their operations may have changed. Maybe before they were hauling dry vans and now they’re hauling reefer freight, or maybe they’re pulling a pneumatic tank, or maybe their operations have changed. And we have to really look at like, all right, does our policies and procedures, does our orientation, does our training material—does all of this, does it mirror exactly what we’re doing now in our, in our current operations? And I think that always has to be, you know, walked through and kept current, because that stuff’s changing every day. And I think it’s vitally important that motor carriers get out and, and they share with their peers, you know, industry challenges, because I think we can all learn from each other. And for, for too long it’s almost like the industry, in the trucking industry, we’ve all operated in these silos and we want to hold, hold our family secrets close to the chest and not share. Well, we’re all going through the same struggles, and we need to, I think, come together as peers to like, how do we figure out how to get ahead of this as an industry?

[18:29] Bill
Yeah, and you and I and others have talked about this, how to increase communication, camaraderie, and, and share ideas and share strategy. Because our adversary, like you said, they are very, very good at, at communicating and sharing ideas. And I think that’s really put the industry and just the entire defense—it’s not just trucking, I think it’s the entire defense bar is oftentimes behind the eight ball because they’re three steps behind. And until the communication improves, I’m not really sure we can get ahead of the, get it, get ahead of the bad guys here.

[19:08] Tim
So yeah, you know there’s one thing that I think’s really neat about the time we’re in right now. I mean, if we want to find a, a silver lining I guess in the COVID and down in the whole process, and obviously the country is just kind of in, in a different state of mind right now. One thing that I think is absolutely important—when I was a little kid, I’m just thinking about driving down the road and, and you can picture some little kid giving the truck driver the horn and, you know, and the truck would honk back. Then, I mean, it was really a different state of mind where the trucking industry and a truck driver—it was a notable career to be a truck driver. Now, you know, the industry as a whole, there’s a lot of negativity that goes with the trucking industry. And what I think is, what really, what’s really a neat position we’re in right now—and we see it on social media, we see it from President Trump, we see it from all the governors—that truck, truck drivers are right up there with doctors and nurses as frontline heroes, and I think we need to remember that as a country. And you know, and as the world and the country opens back up and traffic gets busy, we’ve got to understand that these truck drivers are delivering the very commodities that each of us want to survive on every day. And I just, you know, I just look at that and think, I don’t, I don’t want our country to look up in 30 or 60 days from now and have short-term memory of where we are today. These guys are crucial to our economy, and we need to remember that.

[20:31] Bill
I think that’s going to require an industry public relations effort that’s really sustained beyond COVID-19 to get that message out, to have more of that feel-good message out there. Because otherwise, you know how these juries are and how people are, you know, “what have you done for me lately?” Very, very short-term memory. Well, Tim, thank you so much for being on the podcast. Be safe out there in Dallas. We’ll make sure to have you back on as things progress.

[20:59] Tim
Okay, sounds great. Have a good day.

[21:01] Bill
Take care, bud.