It is crucial that counsel defending the claim against an insured motor carrier have
a good relationship with the insurer. In cases where the motor carrier is insured under
liability policy or bond post in lieu of liability policy, the defense counsel must know the
claims practices and reputation of the insurer. (O.C.G.A. §§ 40-1-112, and 40-2-140). In
insurance cases, many insurers have the reputation in the legal community of attending
mediations without a desire to put forth their best efforts to resolve a case. It is not
uncommon for insurers in the business of insuring motor-carrier to become financially
insolvent during the course of a claim. Many insurers flood the motor carrier insurance
market with low premiums, and then leave the market when the claims activity becomes
significant . . For long term insurers in the motor carrier market, many will have issues
with the individual motor carrier regarding continuation of coverage or renewal after a
claim is made against the motor carrier. All of these factors should be explored and
known by defense counsel well before mediation in order to minimize any potential
conflicts between the motor carrier and its insurance carrier at the mediation session. If
insurmountable conflicts arise between the insurer and motor carrier because of these
considerations, defense counsel must address and resolve the conflicts in representation
before attending the mediation. (Georgia Rules of Professional Conduct, Rules 1.7 &
1.8).
In cases involving self-insured motor carriers, it is advisable to know the
client’s internal claims handling structure. Many self-insured motor carriers will utilize a
third party administrator to perform investigative and claims functions. There also may
be an in-house claims department and/or in-house attorney involvement in the handling
of claims. It is important that the defense counsel know the identity and relationships of
the decision-makers early in the claim process.
2. Know the Motor Carrier’s and Driver’s Backgrounds
Inadequate research into the background of the motor carrier or its driver can
have disastrous implications at mediation. Federal and State authorities regulate motor
carriers and their drivers. As a result of governmental regulations, extensive record
keeping requirements are imposed upon the motor carrier. Those record keeping
requirements include registers of prior accidents (49 C.F.R. 390.15), driver qualification
files (49 C.F.R. 391.51), driver logs (49 C.F.R. 395) and vehicle inspection files (49
C.F.R. 396.3). In addition, the Federal highway Administration has a web site
(www.safersys.org) that sets forth a great deal of information about motor carriers. That
information includes the carrier’s safety rating, D.O.T. inspection reports, accident
information, and out of service information. This information is readily available to
anyone, and is information that defense counsel should explore and discuss with the
client prior to any mediation in order to avoid any surprises at mediation.
Truck drivers present an interesting client for the defense counsel. It is
advisable to obtain a motor vehicle report on the driver, as well as a criminal background
check in order to be fully aware of the drivers background information. Generally,
drivers do not care to attend mediations of cases. However, in cases where your driver
defies the stereotype, it may be advisable to have them present to impress the opposition
with their appearance.
3. Know the Law
The motor carrier claim involves issues of state law, federal law and
administrative regulations. It is important that the defense counsel be fully aware of all
legal principles applicable to the motor carrier, its driver, and its insurer. Mediation is not
the time to be educated on applicable federal regulations on driver’s hours of service,
logbooks, or vehicles inspections. Most of the regulations are found in Tile 49 of the
C.F.R. and Georgia Public Service Commission Regulations. Titles 40 and 46 of the
Official Code of Georgia Annotated outline most of the state statutes governing the rules
of the road and insurance issues. There are numerous appellate decisions regarding the
specific issues relating to motor carriers and their drivers.
4. Know the Accident
It is important that defense counsel have a thorough appreciation for the disputed
and undisputed facts of the accident. Although photographs of the scene are helpful, it is
important that the defense counsel consider a trip to the scene to make personal
observations of the lay of the land and conditions of the roadway. In cases involving
sight distances or conspicuity issues, consider taking videotapes of the scene from the
participant’s viewpoint for use in the mediation. Scale diagrams and computer re-
enactment are also beneficial in conveying the facts of the accident to the mediator, and
more importantly, to the plaintiff.
In general, most motor carrier cases involve issues of sight distance, speed, and
stopping distance. The use of demonstrative aids showing accident reconstruction
engineer’s calculations of speed, stopping distance, and sight distance can be useful in
mediation in showing the plaintiff how strong your case will be at trial.
In cases involving disputed witness testimony, the use of charts showing
deposition testimony or witness written statements can be useful in putting the plaintiff
on notice of the strengths of your argument.
Defense counsel must advise the insurer or motor carrier claims person of
unfavorable evidence prior to the mediation in order that sufficient consideration can be
given to that information.
5. Know the Injuries and Medicine
Since most motor carrier cases involve significant injuries, the defense attorney
must diligently investigate all of the alleged injuries. All prior medical records must be
obtained and thoroughly reviewed prior to mediation. Chronological summaries of
medical information is a benefit to all persons involved in mediation in that it allows the
absorption of vast amounts of data in a reasonable and logical fashion.
Consideration should be given to preparing exhibits to showcase favorable
medical records at the mediation. Important medical witnesses should be interviewed,
and either affidavits or depositions taken to present at mediation. If Independent Medical
Exams are warranted, do them well in advance of mediation so that all parties are
provided with the reports in sufficient time to digest the information.
Likewise, defense counsel must prepare the insurer or motor carrier claim person
for the impact of unfavorable medical evidence. Ignoring significant medical issues will
not make them go away at mediation.
6. Defend against the Lottery Mentality
Many plaintiffs and many attorneys believe that every motor carrier case is their
road to riches. Motor Carriers are required by law to carry significant insurance coverage,
usually over $750,000. Those levels of coverage make many lawyers see dollar signs on
cases that only warrant cents. The insurance coverage combined with the mere presence
of a big truck leads to unrealistic expectations on the part of plaintiffs and their attorneys.
Defense counsel must be prepared to address those misconceptions with the mediator and
plaintiffs. Counsel must be prepared to remind the parties that the injuries are what
determine the value of the case, not necessarily the mechanism of injury. A $50,000
injury is only worth $50,000, regardless of the fact that a truck with $1,000,000 in
insurance coverage caused the wreck. Every trucking case is not a punitive damage case.
The plaintiff must be made to understand that the motor carrier’s insurer is experienced in
trying trucking cases, and that there is no novelty in doing so from their perspective.
Jury verdict research is an important tool for use by the defense counsel in
educating his clients, the mediator, opposing counsel, and the plaintiff. Many resources,
including the Fulton Daily Report, provide synopsis of verdicts statewide. Those are
invaluable in “proving” the value of a case.
7. Have Settlement Authority
It is essential for a person with appropriate settlement authority to be present or
available at mediation. I prefer to have them there in person. If not there in person, have
them participate by speaker phone. However, it is imperative that the people who make
the decision have sufficient authority to settle the case if appropriate. No case ever settled
with inadequate settlement authority participating at the mediation.
8. Mediation Strategy
It is important for the defense counsel to discuss general mediation strategy with
the insurer or motor carrier claim person before the mediation. Because most claim
persons involved in motor carrier claims have a high level of claims experience and
sophistication, they will many times insist on doing all of the negotiation themselves.
Usually, they will discuss in general terms the input they desire from defense counsel.
Regardless of the manner of negotiation, it is important for there to be lines of authority
set forth before commencement of the mediation.
9. Be Prepared to Say NO
In motor carrier cases, it arises more often than in other cases that the settlement
demands are beyond what the carrier is prepared to pay to settle the case. The carrier and
counsel must be prepared to respectfully decline to continue to negotiate where it appears
that no progress is being reasonably made at mediation. The motor carrier must be
prepared to impress upon the plaintiff and his counsel their willingness to try the case.
Many cases settle in the days after mediations when the parties have had an opportunity
to reconsider their positions upon cool reflection.
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