Webinar Replay Video #68: “What? Me worry?!” Exploring Negligent Hiring

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Steve Kessler: Good morning welcome to the Infinit-I Workforce solutions Fast Forward Webinar Series. We appreciate everybody taking some time out to join us this morning. 

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Steve Kessler: My name’s Steve Kessler, and I’ll be the host for the program today. 

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Steve Kessler: We have one of the better topic we’ve presented in a while. And I think it’s very important 

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Steve Kessler: today’s industry 

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Steve Kessler: with all the nuclear verdicts 

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Steve Kessler: those are so common out there today. I think it’s important to talk about things like negligent hires and retention, things that can cause a lot of problems. As these lawsuits come up. 

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Steve Kessler: So, we’re very excited to welcome our guests and take in all the information that they’ve got to provide for us.  I want to let everybody know as you join the webinar. Everyone is muted so we can’t hear you. 

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Steve Kessler: So, if you have a question, there’s a chat box there at the bottom, or there’s a QA. Tab there that you can pose a question, and we’ll try to answer those 

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Steve Kessler: at the end of our presentation. 

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Steve Kessler: and just to let everybody know the webinar is being recorded. We always get questions about that. So, we’ll make a link available after this has all been processed. 

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Steve Kessler: I do. I want to introduce Mark Rhea. He’s my co-host, some of you have that have been on our webinars before. Know, Mark. He’s joined us for most of our programs. Mark is a transportation executive veteran 35 plus years in this business. 

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Steve Kessler: Mark’s a certified director of safety. He has a CDL, he’s a CMV. Inspector, and I believe, Mark, if I’m not mistaken, you’ve been involved in your career in more than 20 lawsuits. So, I think you’ve got a little background in this business. 

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Mark Rhea: Yes, I’ve been the company representative, and 

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Mark Rhea: at least 2020, 25. So I’m very familiar with that. And 

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Mark Rhea: as we 

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Mark Rhea: dive into this reality of risks that we take every day when we put our drivers out on the road. 

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Mark Rhea: I’m hoping that I know that Lauryn and Eric will provide us with this theory of defendability. What can we do to help our defense? Attorneys defend us 

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Mark Rhea: in the event we get involved in in a lawsuit, which we will if we haven’t, we will so 

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Mark Rhea: very looking forward that don’t give the plaintiffs attorney a bullet to shoot you with is, I think going to be the theme today. 

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Steve Kessler: Great thanks, Mark. So, I don’t want to delay here.  I want to introduce our presenters today. We have 2 attorneys from the Benesch Law Firm. I believe they are in Cleveland, Ohio. So, I’m going to introduce the lady’s 1st. Our 1st guest is Lauryn Robinson 

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Steve Kessler: Lauryn is an associate at the firm, and has experience handling 

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Steve Kessler: a variety of complex commercial litigations in State and Federal court. Lauryn practice covers general commercial litigation, consumer class actions and transportation and logistLCS related claims. 

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Steve Kessler: Lauryn has a has a great background, a couple of other areas that while Lauryn was in Law School. She served as a judicial extern to the honorable Melody Stewart, of the Supreme Court of Ohio, and has also served as vice Chairman of the CSU Moot Court Team, as well as an Executive Board member for the CSU chapter of the Black Law Students Association. So, welcome this morning, Lauryn. 

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Steve Kessler: The other guest joining us is a partner in the law firm, Eric Zalud. Eric is the co-chair of the firm’s transportation and logistLCS practice group 

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Steve Kessler: and vice chair of the litigation group. 

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Steve Kessler: and I have to say, this is this is a powerful law firm folks under Eric’s leadership the firm has, been named for gosh, well, how many years here? 2023, 2022, 2022, 2017, 2016, 2014 

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Steve Kessler: as US News and World Report Best Law Firm. So, we have some powerful folks here that are going to give us a lot of insight. I do also want to mention 

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Steve Kessler: that over the past 18 years Eric has taken 36 cases to trial, and his record in these cases is 33 and 3. So we have a couple of experts here, and I hope that you’ll give your attention to some great information that’s about to come. 

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Steve Kessler: So, Lauryn and Eric, I will turn it over to y’all. 

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Lauryn Robinson: Thanks, Steve. It’s Eric Zalud, hey? It’s a great introduction when the moderator pronounces our firm name correctly, and my last name correctly, you did both. So, it’s good to be here with everyone. Yeah, Benesch. We have about 400 lawyers in 

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Lauryn Robinson: Cleveland, Columbus, Ohio, Wilmington, Delaware, New York City, Chicago, and San Francisco. But within that there’s 34 of us in our transportation Practice group, 11 of whom used to be in the industry, either at brokers, motor carriers, or forwarders. And yeah, that ranking was the number one transportation law firm. But enough about us, I mean, mark you, you mentioned 

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Lauryn Robinson: that a lot of people in the audience are concerned about dealing with risks on the road. This panel is about hopefully keeping that to risks on the road, because the plaintiffs bar as a lot of the audience on this call knows, I’m sure. 

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Lauryn Robinson: is trying to move those risks in casualty, litigation from the road back to the yard, the terminal, the DC. The corporate headquarters, and this 

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Lauryn Robinson: presentation in part deals with 

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Lauryn Robinson: how we can keep the risks to the road and not in those other places. So 

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Lauryn Robinson: let’s set the stage perfect timing. Yeah. 

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Lauryn Robinson: I think a lot of you on this call have heard about 

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Lauryn Robinson: nuclear verdict. So, this is just a bit of a preamble setting the stage 

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Lauryn Robinson: A lot of you probably seen the attribute report. It’s a few years old now, but 

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Lauryn Robinson: the definition of a nuclear verdict is 10 million dollars or higher. 

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Lauryn Robinson: I was just at an Ata conference last week in Minneapolis, and heard a 

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Lauryn Robinson: verdict expert speaking, and she said. 

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Lauryn Robinson: That figure is a little light these days. So, it. It’s a tough world out there. And here’s how it’s evolved. And between 2,006 and 2011 cases with verdicts exceeding 1 million increase by over 250, you know, and 1 million isn’t chump change, either. And that’s a lot a lot of policy limits. 

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Lauryn Robinson: although that’s pretty low these days for a policy limitation, but and the average size of the verdict increased from 2.3 million to 22.2 million. So 

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Lauryn Robinson: the mean verdict, I think I remember that from algebra increased by 51.7%. 

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Lauryn Robinson: The next page is kind of a graph 

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Lauryn Robinson: showing that. So 

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Lauryn Robinson: I didn’t do the math on this. Someone else did. But it’s a 967 increase. And 

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Lauryn Robinson: another phenomenon that has arisen from 

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Lauryn Robinson: the nuclear verdict. Phenomena is 

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Lauryn Robinson: what’s called nuclear settlements. 

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Lauryn Robinson: I’m involved in a lot of these, either for the insurer or for the insured in the event that there’s a policy limits, risk. 

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Lauryn Robinson: and a lot of cases in the last few years settled for 

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Lauryn Robinson: more than 10 million dollars 

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Lauryn Robinson: because of the fear that they could get hit for a lot more. So 

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Lauryn Robinson: the new unfortunate term, everyone is nuclear settlements. 

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Lauryn Robinson: So, what goes hand in hand with 

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Lauryn Robinson: with nuclear verdicts is the development of what’s called the reptile theory 

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Lauryn Robinson: by the plaintiff’s fire, and I’ll talk about the plaintiff’s fire in a minute. 

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Lauryn Robinson: And by that theory what the what the plaintiffs hope to do is 

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Lauryn Robinson: seek to vilify 

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Lauryn Robinson: the motor carrier. The trucking company 

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Lauryn Robinson: seek to invoke fear of 

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Lauryn Robinson: the company. It’s trucks into the jury, based on their experiences on the road themselves, so that to cast it as an enemy, an evil enemy of the community. 

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Lauryn Robinson: And 

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Lauryn Robinson: it’s amazing. And I’ll get to this because it relates to our topic 

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Lauryn Robinson: so many cases these days. 

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Lauryn Robinson: They’re barely about fault in terms of the accident. They’re barely about proximate cause. They like to try to get to some of the stuff we’re talking about, which are policies, procedures, and practices of the motor carrier. These are direct quotes from. I’ve heard some plaintiff lawyers speak on this. They imported some of our conferences. 

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Lauryn Robinson: and they have tip sheets, so pay especially close attention 

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Lauryn Robinson: to regulations that deal with FMCSA. Safety reporting, pre-employment screening, the use of electric onboard recorders and changes to the new entrant program for commercial carriers 

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Lauryn Robinson: keep in mind that each carrier is evaluated by its own individual department of transportation number, and this number can change when a driver changes hands. When a carrier changes hands in your pending cases, find out if the carriers fleet was recently purchased or merged. 

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Lauryn Robinson: etc. So, a lot of companies out there. Probably some on this call are 

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Lauryn Robinson: pretty complex enterprises, maybe a brokerage division or subsidiary, maybe different modes truckload, LTL flatbed. 

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Lauryn Robinson: You know. Be careful of any safety information 

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Lauryn Robinson: on any of those entities. Websites, even the word safe or safety. 

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Lauryn Robinson: can be used against you in this litigation. The plaintiff as far so sophisticated my last point on this slide. 

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Lauryn Robinson: They don’t go to seminars anymore on how to find out who’s at fault for an accident. They go to seminars, and how to pierce the corporate veil, to get a get at affiliate companies 

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Lauryn Robinson: or parent companies. 

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Lauryn Robinson: more of some of 

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Lauryn Robinson: what’s in their playbook. And you hear some of this in opening statements, tracking companies notoriously cut corners, and do the absolute minimum required by Federal and State law. When they do background checks and new drivers and train new drivers. 

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Lauryn Robinson: we’ll be talking about some of that. 

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Lauryn Robinson: The defense intends to focus on the 30 seconds before the crash. 

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Lauryn Robinson: and when I handle a case I look long before that I look at how he was hired. I was trained, how he was supervised. 

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Lauryn Robinson: The Fmcrs are only minimum standards. I disagree with that, and trucking companies should do much more. So 

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Lauryn Robinson: one thing to note about all those quotes. 

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Lauryn Robinson: They don’t relate to the accident, right? They relate to the policies and practices of the motor carrier. 

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Lauryn Robinson: We’ve covered a bit of this on this slide this is the arrow we’re in 

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Lauryn Robinson: the plaintiff’s bar is very well organized. They share litigation materials much more readily than the defense bar. If you have a corporate rep. Who’s had his or her deposition taken, and that’s not marked confidential 

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Lauryn Robinson: that starts circulating amongst the planes. Bar experts reports are shared, tactLCS are shared, and I say they’re well-funded right, because a lot of there’s a lot of plaintiffs law firms that have won large verdicts now. And so, they don’t worry about being outspent by the defendants. They’re funded. That doesn’t become a decision point. 

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Lauryn Robinson: Litigation funding is in our world. Now, that would be. That could be a whole another, PowerPoint. But it’s a problem for us that they’re well-funded 

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Lauryn Robinson: and, as I say, here, in in lots of cases. 

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Lauryn Robinson: proximate cause and fault for the actual accident 

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Lauryn Robinson: becomes a secondary issue in the litigation, and the tail starts wagging the dog. 

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Lauryn Robinson: And that’s what we’re going to be talking about here. 

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Lauryn Robinson: That includes 

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Lauryn Robinson: foliation of evidence claims. 

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Lauryn Robinson: but also digging in broadly and deeply into hiring retention and training practices. Now. 

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Lauryn Robinson: this could be another whole topic also. But there’s States 

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Lauryn Robinson: more and more that are regulating some of these issues and making it harder for plaintiffs to get nuclear verdicts 

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Lauryn Robinson: Texas has excellent statues. 

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Lauryn Robinson: There’re still some big verdicts there, but I think the statute helps. Florida just passed one last year I wrote a whole article about it, but it’s too much to go into here. But there’s a little bit of hope from State legislatures. 

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Lauryn Robinson: I’m ready. 

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Lauryn Robinson: So as your outside counsel. You know. How do you combat this? 

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Lauryn Robinson: You know, we always represented our motor carrier clients. 

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Lauryn Robinson: brokerage clients zealously. But in this era 

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Lauryn Robinson: reptile theory, tactLCS and nuclear verdict occurrences. 

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Lauryn Robinson: We fight at every single opportunity because we know that every single piece of paper, every single piece of electronic data or email, every single 

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Lauryn Robinson: word of deposition testimony. Once it’s out there, it can be 

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Lauryn Robinson: used against our clients in malevolent and unpredictable ways. So, you know, once something is out. 

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Lauryn Robinson: you can’t UN ring that bell, so we fight hard at every opportunity much harder than we did before. 

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Lauryn Robinson: What can you do 

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Lauryn Robinson: as motor carriers, as clients. 

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Lauryn Robinson: as litigants. 

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Lauryn Robinson: you know, having good internal programs 

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Lauryn Robinson: which will talk about 

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Lauryn Robinson: 1st of all, it prevents the tail from wagging the dog. 

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Lauryn Robinson: but of course, they prevent the initial claim themselves. So, it’s important to have updated 

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Lauryn Robinson: comprehensive training and safety protocols. 

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Lauryn Robinson: I’m sure most on this call do. 

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Lauryn Robinson: and most importantly, if you have them, you got to comply with them. At the worst cases. We have this excellent 

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Lauryn Robinson: protocol and program. Well, did you use it here. Well, no, we did. That could be punitive damage territory, and as importantly, document that compliance 

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Lauryn Robinson: documented, he conducted that training program, and my last parenthetical is as important 

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Lauryn Robinson: document who showed up for it. 

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Lauryn Robinson: You know, this driver was there. We had this program. 

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Lauryn Robinson: We conducted these sessions, and he or she was actually there. Here’s proof. 

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Lauryn Robinson: So that really helps. 

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Lauryn Robinson: you know just some more mind-boggling verdicts. These are a little old now, by the way, few years old, but 89 million in Texas 

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Lauryn Robinson: Texas is still a bad state. 100 and 65 million in New Mexico. That’s another bad state. Another one in Texas, 280 million in Georgia. 

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Lauryn Robinson: So, there are certain States that are the worst. Some of them are up here, unfortunately. 

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Lauryn Robinson: But 

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Lauryn Robinson: all these particular verbs 

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Lauryn Robinson: we have one thing in common, and that’s what we’re going to be talking about here. And that is 

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Lauryn Robinson: some of the issues in the litigation had absolutely nothing to do 

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Lauryn Robinson: with who is at fault for the accident. 

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Lauryn Robinson: They dealt with negligent hiring, training, supervision, retention, or trust, in other words, direct claims against the motor carrier 

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Lauryn Robinson: they are problematic. 

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Lauryn Robinson: and I touched on this. But what they do 

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Lauryn Robinson: is they can let the let the plaintiff’s lawyers dig into everything right. All your policies. 

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Lauryn Robinson: the maintenance history, that of just is the field involved. But all of them. 

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Lauryn Robinson: you know, a lot of broad-based discovery 

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Lauryn Robinson: that has nothing to do with who was at fault. 

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Lauryn Robinson: And I tell you even the best, and a lot of you on this call, I’m sure, are the best 

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Lauryn Robinson: at these practices and documentation there’s always something they can latch on to. So 

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Lauryn Robinson: to get rid of these direct-action claims is so beneficial 

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Lauryn Robinson: to the motor carrier, because that’s what the plaintiffs lawyers use to fuel passion and anger and emotion in the jury. Not really the facts about the accident. 

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Lauryn Robinson: so, one thing that can be done 

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Lauryn Robinson: to diffuse this, and 

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Lauryn Robinson: it’s done a lot, but not all the time is admit that the driver was acting in the course of his or her employment, and 

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Lauryn Robinson: in in many 

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Lauryn Robinson: slightly more than half, I’d say the majority. 

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Lauryn Robinson: if you admit that and a lot of times. That’s a pretty easy admission sometimes. The driver. 

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Lauryn Robinson: you know, is almost in criminal territory, and so you can’t. 

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Lauryn Robinson: But that 

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Lauryn Robinson: pairs down the claims 

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Lauryn Robinson: that. We’re going to be talking about negligent hiring supervision and training. So that’s an early-stage litigation strategic decision. 

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Lauryn Robinson: And I’m sure your outside counsel be aware of the pros and cons of 

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Lauryn Robinson: So, as I said, those claims go away and majority jurisdictions. 

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Lauryn Robinson: then you know they’re limited, right? The plaintiffs and discovery. 

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Lauryn Robinson: They can’t dig into overall policies and practices. As to all your drivers and all their records, because case becomes focused, then on whether that one driver, during this one accident, was acting negligently. 

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Lauryn Robinson: So, if the drivers found not liable for that fall in the mayor motor carriers are not liable. 

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Lauryn Robinson: they’re 

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Lauryn Robinson: that’s great. And these States consider these claims, threat letters and claims as an alternative 

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Lauryn Robinson: for imposing liability and employer motor carrier for an injury caused by its driver. 

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Lauryn Robinson: Once that admitted, that’s admitted this discovery becomes unnecessary. There are exceptions, though. Sometimes the plaintiffs claim the kind of the motorcar was so egregious 

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Lauryn Robinson: that we’re in punitive damage territory. And this happens a lot. 

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Lauryn Robinson: And it happens in nuclear verdict situations a lot. That’s 1 of the 

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Lauryn Robinson: elements that ramp it up. 

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Lauryn Robinson: And so, even in majority jurisdictions, these claims can survive in certain situations. Admitting agency won’t result in dismissal. 

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Lauryn Robinson: I say it’s reserved for the most extraordinary cases, but unfortunately there’s a lot of cases were 

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Lauryn Robinson: punitive damages are alleged, and they at least make it 

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Lauryn Robinson: through to trial. Maybe they were thrown out before, but it still gives the plaintiffs rounds for broader discovery. 

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Mark Rhea: Eric, when you mentioned drivers, I’m assuming that’s not limited to company drivers. That also would include independent owner operators. 

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Lauryn Robinson: Right? Yeah, I mean, I consider the question, I and the courts. It’s not just me, I mean, if a driver is an employee. Clearly. 

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Lauryn Robinson: this theory works with that, and if a driver is 

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Lauryn Robinson: operating under your authority. 

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Lauryn Robinson: if you’re placard on its door, then 

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Lauryn Robinson: yes, the same thesis applies 

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Lauryn Robinson: to LCS owner operators. Good question. 

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Lauryn Robinson: minority view. This is probably like 20 States 

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Lauryn Robinson: are just the opposite right, they say, doesn’t matter if you admit liability. 

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Lauryn Robinson: you can still chase after the motor carrier. For these other direct actions that we’re talking about here. 

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Lauryn Robinson: You know, the motor carries negligence in a in a different manner, and 

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Lauryn Robinson: that’s perfect, as I say. 

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Lauryn Robinson: or plaintiff’s reptile theory. Strategy. 

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Lauryn Robinson: If these claims are allowed to survive, then that’s when the focus shifts from fall to the of the accident who’s at fall for the accident 

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Lauryn Robinson: to. 

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Lauryn Robinson: And here’s classic reptile theory, right? The plaintiff, they say, and the motor carrier, the big, bad motor carrier, created unnecessary danger for the plaintiff and the community as a whole by violating safety rules. That’s 1 of their mantras in these cases. That’s how they expand. That’s how they vilify. 

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Lauryn Robinson: And that leads to nuclear verdicts. 

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Lauryn Robinson: These issues come up a lot in the cases, and we got some recent cases here, and Lauryn’s going to touch on a few of them that I’ll close us out, but we still have good chunks of time, Lauryn. So go ahead. 

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Lauryn Robinson: Sure. So, the 1st case I want to discuss is from Kentucky. Short versus Marvin Keller trucking this is a motor vehicle accident that resulted in a fatality. Unfortunately, the cause of the accident was disputed by the parties. It was agreed that the driver lost control of the tractor trailer and crossed an interstate Median. 

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Lauryn Robinson: After the accident the estate asserted, amongst other things, these claims of direct negligence. So, retention claims supervision and training claims against the motor carrier more specifically, the estate claimed that the motor carrier should have terminated the driver because of his driving record and his health history. The drivers 

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Lauryn Robinson: driving history included some citations related to heartbreaking and distracted driving. The motor carrier did require that the driver attend some distracted driving courses just to make sure that 

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Lauryn Robinson: The incident or the citation was remedied. His medical history also suggested that he in the past had a condition where he would get headaches and may at sometimes lose consciousness. 

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Lauryn Robinson: Plaintiffs claimed that the motor carrier was subject to these direct liability claims because they knew about this medical condition, and they should have known that it may have impacted his ability to drive during the accident. 

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Lauryn Robinson: When reviewing the plaintiff’s allegations, the court was careful to note that these were all direct negligence claims against the motor carrier, and the key inquiry was whether or not the incidents could have been avoidable, and whether or not it was foreseeable. The court also noted that elements of torts of negligence, hiring and retention, and are distinguishable elements from negligent retention, supervision, and hiring claims importantly. 

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Lauryn Robinson: All these torts require that the employer’s failure to exercise ordinary care and manage the employee creates a foreseeable risk of harm. So again, as Eric mentioned this, all goes back to foreseeability. 

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Lauryn Robinson: In this case the Eastern District of Kentucky ruled that summary judgment should be granted with regard to those supervision and training claims against the motor carrier 

198 

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Lauryn Robinson: the key reason why the court ruled in favor of the motor carrier was that, there was no dispute that the employer actually complied with. Federal motor carrier safety regulations. So, they perform the necessary background check they had done a deep dive into the driver’s record, and there was no indication or suggestion that the driver was 

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Lauryn Robinson: unable to perform his job or was unfit to perform his job. So, in this case the court primarily relied on the idea of whether the incident was foreseeable, and whether or not the employer, the motor carrier, had any indication that the 

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Lauryn Robinson: driver, was unfit to perform. 

201 

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Lauryn Robinson: The next case here is actually out of Texas. It’s Johnson versus Cox. This dispute arose out of a motor vehicle accident and the plaintiffs claimed 

202 

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Lauryn Robinson: allegations of negligent, qualifying, hiring, training, retaining and supervising in this case the driver was employed by 2 motor carriers. 

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Lauryn Robinson: It was important in this case that the driver did not have any prior incidents on his driving record, and that is one of the things that saved the motor carriers from liability. In this case 

204 

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Lauryn Robinson: the motor carriers, prior to hiring the driver had done a very clear, well documented investigation into the drivers. Commercial 

205 

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Lauryn Robinson: commercial driving record. They made sure that he had a valid commercial driver’s license. They confirmed that he was adequately insured and maintained that insurance throughout the course of his employment. They also performed safety tests with the driver and made sure that they were aware of his personal driving record. 

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Lauryn Robinson: It was also significant in this case that the motor carriers made note that the driver performed poorly on a previous safety exam during his hiring the course of his hiring, and they were sure to provide additional training related to safety, and that training was well documented. 

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Lauryn Robinson: The court ultimately granted summary judgment on the negligent training and supervision claims, because there was no indication that the driver lacked fitness or had dangerous tendencies. They also granted summary judgment on the negligent retention claims, because there was no evidence that the driver was an incompetent commercial driver. 

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Lauryn Robinson: There was some evidence suggesting that there were citations related to 

209 

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Lauryn Robinson: feeding not even parking brake, etc., on the driver’s personal record. But the court did not consider that when issuing a ruling in this case 

210 

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Lauryn Robinson: they also did not consider any of the drivers. Personal incidents excuse me. Incidents on his personal driving record. In fact, the court primarily relied on whether or not the motor carriers complied with the Federal standards. 

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Lauryn Robinson: That case in general was just a reminder to make sure that you are developing those policies where training is well documented. It’s always helpful to not only make note of the date and topic of a particular training, but also consider having your drivers 

212 

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Lauryn Robinson: authenticate or test to the fact that they attended that training. Also, it’s important to know in some cases whether or not the training was offered in person and what materials were provided during that training. 

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Lauryn Robinson: The next case here is out of Alabama. So, this lawsuit is another incident involving a tractor trailer. The plaintiffs were injured and alleged planes of negligent and wanton hiring, training and retention and supervision against the driver. 

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Lauryn Robinson: This case is a little unique, because it shows the realities of what you can face if you do not maintain accurate policies related to training, supervision, etc., and how that can impact the motor carrier 

215 

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Lauryn Robinson: eventually, in this case the motor carrier did see partial motion for summary judgment. For these negligent claims 

216 

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Lauryn Robinson: the Court noted that implicit intorts of negligent hiring retention training and supervision is the concept that, as a consequence of the employees’ incompetence, the employee committed some sort of act wrongdoing, or tort, that caused the plaintiff’s injuries. 

217 

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Lauryn Robinson: however, the court was careful to mention that the question of incompetence only applies to negligent supervision. Training and retention claim not those related to negligent hiring. 

218 

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Lauryn Robinson: The court also readily acknowledged that pre hire citations, even minor vehicle accidents on personal driving records are not relevant to determining liability. In these cases 

219 

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Lauryn Robinson: the court decided to ultimately grant some prejudgment. As a result, related to negligent hiring. 

220 

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Lauryn Robinson: However, the court actually denied some prejudgment related to the negligent supervision training and retention claims, because there were material facts or material disputes, rather as to whether the motor carrier overlooked the driving records from the driver, which were heavily edited, redacted, and the court believed that this was a suggestion that the driver may have been in violation of Federal safety regulations. 

221 

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Lauryn Robinson: Further, there was an issue or dispute regarding whether or not the motor carrier gave the driver training on how to amend or properly document his driving logs. Despite having knowledge of his failure to adequately complete them. 

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Lauryn Robinson: So, this is important to note, because for earlier or excuse me before Eric mentioned that there is a majority and minority rule. In most circumstances the courts will find that as long as you comply with Federal standards you are generally able to avoid liability. However, this is a suggestion that the lower court here did not agree with that, and it was up to the 

223 

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Lauryn Robinson: it was up to the appellate court to rule on this. 

224 

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Lauryn Robinson: The final case that we’re going to discuss is the Estate of Field versus Fields. Oh, you’re right, thank you. 

225 

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Lauryn Robinson: So, this case is a case out of Iowa. This just goes back to the importance of accurately documenting whether or not you have employed a driver, or whether or not, they are associated with an independent contractor. In this case Landus engaged Shaw Trucking as an independent contractor. Shaw Trucking, then hired a driver, Troy 

226 

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Lauryn Robinson: as the driver to actually haul the product. In this case, while transporting the load, Troy crashed into a farm tractor, and actually the accident resulted in a fatality. The estate filed a lawsuit against Landus and the motor carrier for claims of vicarious liability and direct liability related to the driver’s negligence. 

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Lauryn Robinson: Landus eventually moved for summary judgment on the negligent hiring claim, contending that it had no duty to evaluate the qualifications of its independent contractor, while that is generally the traditional rule. The District Court denied that motion, finding that since there was undisputed that there were undisputed facts suggesting that all parties knew that the driver did have a history of drug use that Landus had a duty to investigate the qualifications of the driver. 

228 

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Lauryn Robinson: however, on interlocutory appeal. The court acknowledged that it wasn’t really Landus’ duty to perform this investigation, and it actually was the job of the independent contractor who hired the driver itself again. This just shows that while there are majority and minority rules in this area, courts don’t necessarily rule the way that you expect them to. 

229 

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Lauryn Robinson: It’s encouraged rather to investigate these things, even if you are not the entity that actually hires the driver. That could be a quick fact check, or making sure that you have documentation in your possession, suggesting that the standard regulations are met, so just a quick verification that the driver has a valid commercial driver’s license is adequately insured, and having documentation to reflect that can really help you defend against these types of litigation. 

230 

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Lauryn Robinson: Eric, you can take the next one. 

231 

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Lauryn Robinson: So thanks, Lauryn. I mean some of the things 

232 

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Lauryn Robinson: we noticed from the cases Lauryn just discussed are, that 

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Lauryn Robinson: the defendants can win. You saw several of 

234 

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Lauryn Robinson: the cases that Lauryn discussed where the motorcar defendants were able to get the claims 

235 

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Lauryn Robinson: thrown out dismissed at the summary judgment phase. 

236 

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Lauryn Robinson: So that’s good to know. I mean, obviously. 

237 

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Lauryn Robinson: that eliminates all risk of a nuclear verdict. So a a at least, that’s there. 

238 

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Lauryn Robinson: and you know, you also notice a lot of them from Texas. I guess it’s a big state, but it’s also still, even in a way, that 

239 

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Lauryn Robinson: most excellent statute. 

240 

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Lauryn Robinson: a little bit of a scary hat, bad for these types of cases. I think I have about 9 of them in Texas right now. So, the legislature there is working. But 

241 

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Lauryn Robinson: you know, maybe it hasn’t coursed through the litigation cycle. Yet that statute 

242 

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Lauryn Robinson: there are negligent maintenance claims also. This one happens to be in Texas. 

243 

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Lauryn Robinson: Here there was an accident in in in Austin the driver was doing an ol ow load 

244 

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Lauryn Robinson: prearranged route that they permitted in advance. 

245 

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Lauryn Robinson: He took a wrong turn, and this seems to happen a lot colliding with an overpass 

246 

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Lauryn Robinson: the load 

247 

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Lauryn Robinson: left the vehicle in some fashion and hit a nearby car and caused some injuries. 

248 

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Lauryn Robinson: So, the plaintiff’s filed lawsuit against the driver himself 

249 

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Lauryn Robinson: is employer even better, which 

250 

00:36:28.460 –> 00:36:32.860 

Lauryn Robinson: was an LLC. So, a motor carrier trucking company 

251 

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Lauryn Robinson: and also, an individual 50% owner of the company. 

252 

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Lauryn Robinson: There was some evidence here of out of service violations on the truck related to faulty brakes. 

253 

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Lauryn Robinson: And the trial court found all 3 of the defendants, the driver. 

254 

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Lauryn Robinson: the trucking company, and the individual, one of the individual owners of the motor carrier, negligent and grossly negligent. 

255 

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Lauryn Robinson: So, the defendants all appealed, and sometimes 

256 

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Lauryn Robinson: these terrible verdicts could be 

257 

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Lauryn Robinson: either reverse that appeal there was just 

258 

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Lauryn Robinson: in Cook County, Chicago. There was just a 19-million-dollar nuclear verdict a few months ago reversed against the broker. 

259 

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Lauryn Robinson: By an Illinois State Court of appeals. So sometimes they can be reversed in their entirety. 

260 

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Lauryn Robinson: Other times the amount of damages can be awarded can be lessened either in post-trial motions 

261 

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Lauryn Robinson: with the trial court, or on appeal. 

262 

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Lauryn Robinson: and good things happen in this case, for all the defendants the Court of Appeals 

263 

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Lauryn Robinson: reversed all of it in a very helpful opinion for those on this call. 

264 

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Lauryn Robinson: 1st of all, the company’s owner. 

265 

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Lauryn Robinson: those claims were reversed because he can’t be personally liable right? That’s the whole point of the corporate entity. So, an individual, it’s typically 

266 

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Lauryn Robinson: this is probably good news for some on the call, very hard for a plaintiff’s counsel to get at individual owners. 

267 

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Lauryn Robinson: shareholders, officers, directors of the motor carrier in these cases. So, a a good opinion in that sense. 

268 

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Lauryn Robinson: and then the trucking company, where they would also reverse 

269 

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Lauryn Robinson: because it found the court found that they adequately trained the driver, and he was not incompetent. Pardon the double negative 

270 

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Lauryn Robinson: to drive, to do the work. 

271 

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Lauryn Robinson: and when it dug into the negligent maintenance claim against the motor carrier 

272 

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Lauryn Robinson: it. It noted that, of course. 

273 

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Lauryn Robinson: motor carriers are required to maintain their vehicles and safe proper operating conditions. 

274 

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Lauryn Robinson: The FMCSA require that 

275 

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Lauryn Robinson: drivers to, you know, make a free trip inspection 

276 

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Lauryn Robinson: but 

277 

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Lauryn Robinson: this was an excellent holding, because with the court recognized. 

278 

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Lauryn Robinson: And this is what I’ve been talking about in these cases, that even if there was a negative maintenance claim, you must establish 

279 

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Lauryn Robinson: that somehow that negligent maintenance caused the accident 

280 

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Lauryn Robinson: and the court dug in granularly to the physics of the accident. 

281 

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Lauryn Robinson: Braking violations to be a cause of the incident 

282 

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Lauryn Robinson: for them to be 

283 

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Lauryn Robinson: there had to be timely. It had. They must show that a timely application of the brakes would have avoided the collision. 

284 

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Lauryn Robinson: That requires expert testimony, and I’m surprised 

285 

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Lauryn Robinson: they did not have expert testimony to plaintiffs. That’s pretty obvious. 

286 

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Lauryn Robinson: And so, because of that, they failed to establish causation of the accident for any of the negligent maintenance. 

287 

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Lauryn Robinson: and the case was thrown out, of course, that probably took 3 years and hundreds of thousands of dollars, but it was thrown out. So there, you know, there. There’s good news out there. We put a lot of cases in this presentation 

288 

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Lauryn Robinson: that are good news, a few tips 

289 

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Lauryn Robinson: in terms of immediately after the accident. 

290 

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Lauryn Robinson: how to handle the driver. 

291 

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Lauryn Robinson: try to get to him or her 

292 

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Lauryn Robinson: as fast as you can, and by that, I mean a dispatcher reaching out or a compliance director risk manager 

293 

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Lauryn Robinson: having conversations. 

294 

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Lauryn Robinson: If you can get someone physically out to the accident 

295 

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Lauryn Robinson: to talk to that driver to be with them that’s very helpful 

296 

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Lauryn Robinson: for 

297 

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Lauryn Robinson: for his or her peace of mind, but also for litigation down the road. That driver should not be conversing 

298 

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Lauryn Robinson: anyone at the scene 

299 

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Lauryn Robinson: other than public authorities around the same. 

300 

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Lauryn Robinson: Everyone knows this makes your drug and alcohol test the driver. 

301 

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Lauryn Robinson: You know. You got to remember that a lot of these situations are very traumatic for the drivers. 

302 

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Lauryn Robinson: and so, you know, it’s important to 

303 

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Lauryn Robinson: have concern, not just for 

304 

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Lauryn Robinson: your liability before the driver’s physical and mental wellbeing. 

305 

00:41:38.720 –> 00:41:49.499 

Lauryn Robinson: you know, and then, when when the dust settles, you got to make the determination as to what do we do with this driver? You know. I mean, a lot of companies have 

306 

00:41:49.580 –> 00:41:54.210 

Lauryn Robinson: policies where, if it’s a fatality, the drivers automatically terminated 

307 

00:41:54.700 –> 00:41:59.390 

Lauryn Robinson: and they stick to that policy. I’ve had some clients who 

308 

00:41:59.480 –> 00:42:01.970 

Lauryn Robinson: or if it’s serious 

309 

00:42:02.615 –> 00:42:05.294 

Lauryn Robinson: non-fatal accident, automatic termination. 

310 

00:42:06.280 –> 00:42:16.260 

Lauryn Robinson: if you have that policy, you got to stick to it. I’ve had a couple of clients in the last few years who, against my advice, I think he’s a nice guy. He’s been with us for a long time. 

311 

00:42:16.430 –> 00:42:22.099 

Lauryn Robinson: He’s close to retirement. We don’t want to let him go. I think it’s a bad decision. 

312 

00:42:22.140 –> 00:42:25.049 

Lauryn Robinson: A middle ground is suspension. 

313 

00:42:25.561 –> 00:42:30.679 

Lauryn Robinson: And if you’re going to keep him or her around and kind of slide and scale 

314 

00:42:30.740 –> 00:42:35.210 

Lauryn Robinson: depending on the severity of the accident, and 

315 

00:42:35.320 –> 00:42:37.690 

Lauryn Robinson: his or her driving history. 

316 

00:42:40.190 –> 00:42:44.249 

Lauryn Robinson: Another thing to evaluate is, is there possible criminal 

317 

00:42:44.910 –> 00:42:49.169 

Lauryn Robinson: liability for the driver, including misdemeanors? And 

318 

00:42:49.400 –> 00:42:54.689 

Lauryn Robinson: you know we always advise our clients, if there’s any risk of that to 

319 

00:42:54.800 –> 00:42:56.020 

Lauryn Robinson: yes. 

320 

00:42:56.220 –> 00:43:06.279 

Lauryn Robinson: obtain separate criminal counsel and pay for that criminal counsel. I mean, we usually want the driver on the same team right and litigation. 

321 

00:43:06.540 –> 00:43:17.963 

Lauryn Robinson: We would like to do our best not to alienate the driver, and you know, having qualified criminal case counsel can also result in possibly, 

322 

00:43:19.020 –> 00:43:27.869 

Lauryn Robinson: you know, an acquittal on whatever charge it may be. That’s happened to me a couple of times, and it doesn’t make the civil case go away. But it really. 

323 

00:43:28.630 –> 00:43:31.510 

Lauryn Robinson: prevents, you know inflammatory 

324 

00:43:31.984 –> 00:43:35.979 

Lauryn Robinson: introduction of the criminal conviction by the plaintiff’s counsel. 

325 

00:43:37.960 –> 00:43:54.589 

Lauryn Robinson: a few other details of that. I’m going to I’m going to stop at like 1150 and see if there’s any questions, and I want to I don’t want to hear myself talk for a whole hour, anyway, Laura. But 1st of all, let’s get down nuts and bolts. Make sure they’re safe. Right? 

326 

00:43:54.620 –> 00:43:59.569 

Lauryn Robinson: Make sure. Immediately post-accident. They’re out of danger, out of risks 

327 

00:43:59.950 –> 00:44:18.580 

Lauryn Robinson: that can include getting the heck out of the truck standing clear of the accident scene. What the driver should do, and this should be part of training, is immediately notify. The dispatcher, risk manager. Whoever at the carrier, so that person can set in motion 

328 

00:44:18.600 –> 00:44:21.489 

Lauryn Robinson: other things that you should be doing right. 

329 

00:44:21.560 –> 00:44:34.799 

Lauryn Robinson: contacting outside counsel. Notice the insurers, contacting accident, reconstruction experts. Let me digress a minute here. I I know a mark or mark mentioned there might. There was a Pre 

330 

00:44:35.060 –> 00:44:40.899 

Lauryn Robinson: PowerPoint presentation on questions about the juxtaposition between Insurance Council and 

331 

00:44:41.652 –> 00:44:45.660 

Lauryn Robinson: retained outside counsel for the motor carrier. 

332 

00:44:47.060 –> 00:44:54.720 

Lauryn Robinson: you know, in these particular situations, we do work for motor carrier insurers also. But I’ve had a lot of situations were 

333 

00:44:55.020 –> 00:44:59.980 

Lauryn Robinson: you know the companies outside Council can get this stuff done 

334 

00:45:00.220 –> 00:45:16.399 

Lauryn Robinson: a lot faster than you send notice to your insurer. They get things going. It it can vary. But you know, I think it’s good to notify the insurer. Make sure they get it rolling, but also notify your own outside counsel 

335 

00:45:16.510 –> 00:45:33.019 

Lauryn Robinson: to make sure she gets things rolling, and then, you know, we can fade away as Insurance council gets involved ensure gets people out there. But sometimes, and I’ve experienced it. We can get these actions taken faster 

336 

00:45:33.440 –> 00:45:35.149 

Lauryn Robinson: back to the PowerPoint. 

337 

00:45:35.240 –> 00:45:38.250 

Lauryn Robinson: Once the public authorities get on the scene. 

338 

00:45:38.719 –> 00:45:48.159 

Lauryn Robinson: You know, the driver should just stand back. Let them take the lead in handling the scene and rendering any injured parties. 

339 

00:45:49.770 –> 00:46:00.809 

Lauryn Robinson: now, in some States there’s good Samaritan statues. So, 1st of all, the driver shouldn’t drive away. I have a case where we’re still in there because of that. 

340 

00:46:00.840 –> 00:46:07.039 

Lauryn Robinson: and there’s obligations to take some actions to render aid if there’s no one else to do that. So 

341 

00:46:07.452 –> 00:46:13.039 

Lauryn Robinson: but once Ems gets there laid back and let them do what they’re good at. 

342 

00:46:14.560 –> 00:46:22.379 

Lauryn Robinson: he or she shouldn’t really contact anyone other than the dispatcher. And you know, depending on 

343 

00:46:22.520 –> 00:46:30.879 

Lauryn Robinson: the driver’s condition. Family members as necessary, careful of contacting anyone else. That’s all discoverable. 

344 

00:46:33.600 –> 00:46:39.259 

Lauryn Robinson: yeah and should only speak with law enforcement. And I’ve had questions. That’s why this is here. 

345 

00:46:39.280 –> 00:46:43.509 

Lauryn Robinson: What?  What should we tell him to say, Eric? 

346 

00:46:45.070 –> 00:46:47.910 

Lauryn Robinson: Well, to other parties. 

347 

00:46:48.390 –> 00:46:55.439 

Lauryn Robinson: even injured parties, you know only very innocuous common courtesies like, how are you doing? 

348 

00:46:56.156 –> 00:47:02.549 

Lauryn Robinson: Don’t get into deep discussions with anyone else on the scene other than law enforcement. 

349 

00:47:03.140 –> 00:47:06.960 

Lauryn Robinson: Never admit to anyone there 

350 

00:47:07.110 –> 00:47:08.220 

Lauryn Robinson: falls. 

351 

00:47:08.390 –> 00:47:11.850 

Lauryn Robinson: Maybe sometimes that’s hard to do. It’s like a human reaction. 

352 

00:47:12.160 –> 00:47:15.980 

Lauryn Robinson: But you know, like, for instance, I’m sorry you are injured 

353 

00:47:16.220 –> 00:47:18.129 

Lauryn Robinson: instead of I’m sorry. 

354 

00:47:18.380 –> 00:47:20.870 

Lauryn Robinson: and that’s because. 

355 

00:47:21.020 –> 00:47:28.090 

Lauryn Robinson: you know, some drivers may think they’re at fault. But when you factor in the circumstances of the accident. 

356 

00:47:28.160 –> 00:47:31.420 

Lauryn Robinson: the legal obligations, the other causes. 

357 

00:47:31.430 –> 00:47:35.020 

Lauryn Robinson: Lots of other legal factors come into play, so 

358 

00:47:35.350 –> 00:47:40.039 

Lauryn Robinson: this one’s probably hard to do, but it should be part of training if it can be. 

359 

00:47:40.490 –> 00:47:45.229 

Lauryn Robinson: And then I’ve had clients. Say, well, what? What should we say when they’re asking questions? 

360 

00:47:45.280 –> 00:47:47.159 

Lauryn Robinson: The police on the scene 

361 

00:47:47.865 –> 00:47:51.959 

Lauryn Robinson: you got to respond right? You can’t respond. 

362 

00:47:52.160 –> 00:48:01.829 

Lauryn Robinson: but try to respond, only it’s almost like a deposition wins. Try to respond only to their inquiries. Don’t unnecessarily elaborate. 

363 

00:48:02.160 –> 00:48:05.010 

Lauryn Robinson: Strive not to admit, fall 

364 

00:48:05.370 –> 00:48:07.419 

Lauryn Robinson: to summarize the facts. 

365 

00:48:08.095 –> 00:48:11.790 

Lauryn Robinson: You know, these are the morsels that who knows if they 

366 

00:48:11.970 –> 00:48:20.929 

Lauryn Robinson: will he even be remembered in the heat of the accident? But it’s better to say our vehicles collided. Then I hit her, for example, if that can be done. 

367 

00:48:21.802 –> 00:48:24.170 

Lauryn Robinson: and then make sure 

368 

00:48:24.930 –> 00:48:35.509 

Lauryn Robinson: the dispatcher, or whoever was from the motor carrier. Make sure we get that driver out of there, away from the scene as soon as he or she is allowed to leave the scene. Sometimes 

369 

00:48:35.730 –> 00:48:40.770 

Lauryn Robinson: they’ll be transported by Ems, and if so, someone should join them there. 

370 

00:48:40.910 –> 00:48:43.439 

Lauryn Robinson: the driver as soon as possible. 

371 

00:48:45.980 –> 00:48:47.596 

Lauryn Robinson: so yeah, this is 

372 

00:48:48.570 –> 00:48:52.759 

Lauryn Robinson: you. You got to keep your heads up. You got to be 

373 

00:48:52.910 –> 00:48:55.740 

Lauryn Robinson: thinking about these things in advance. 

374 

00:48:56.140 –> 00:49:03.609 

Lauryn Robinson: Struthian, by the way, means ostrich like, so there’s an ostrich bear in the sand. Don’t do that. 

375 

00:49:04.246 –> 00:49:14.930 

Lauryn Robinson: Let’s see what we have next on the slides. Lauryn. I’ll break now to see if there’s any questions, I have some great slides about 

376 

00:49:14.960 –> 00:49:16.950 

Lauryn Robinson: companies pushing back 

377 

00:49:17.853 –> 00:49:21.880 

Lauryn Robinson: and having practices to in place to 

378 

00:49:22.010 –> 00:49:25.769 

Lauryn Robinson: prevent nuclear verdicts and reptile theory 

379 

00:49:26.753 –> 00:49:33.080 

Lauryn Robinson: offensives right from the start. But maybe that could be for another PowerPoint. But 

380 

00:49:33.941 –> 00:49:47.239 

Lauryn Robinson: what I think, Mark Kevin, we’re going to we’re going to wrap because I don’t want to take everyone’s full hour, and if there’s any questions, we can respond to the extent we can here, otherwise we can adjourn. Thanks. Everyone. 

381 

00:49:48.860 –> 00:49:54.609 

Steve Kessler: Thank you very much, Eric. There is one question that came in here just a few minutes ago. 

382 

00:49:54.780 –> 00:50:01.620 

Steve Kessler: Kirk asks our company uses interchange agreements with other companies 

383 

00:50:01.630 –> 00:50:05.420 

Steve Kessler: using our trailers to haul our loads. 

384 

00:50:05.430 –> 00:50:10.850 

Steve Kessler: I’m new to the dot position. Are these an industry standard. 

385 

00:50:10.910 –> 00:50:15.149 

Steve Kessler: I guess. Does it get more complex when you have arrangements like that. 

386 

00:50:16.170 –> 00:50:25.180 

Lauryn Robinson: It does. And we’re asked that we do lots of interchange agreements. I don’t. I’m a litigator, but we have 2 lawyers I can think of right now. 

387 

00:50:25.350 –> 00:50:30.470 

Lauryn Robinson: Work on those every day. And the answer, though, is. 

388 

00:50:31.453 –> 00:50:36.000 

Lauryn Robinson: it doesn’t make your operations any more complex. There are ways to make 

389 

00:50:36.300 –> 00:50:39.950 

Lauryn Robinson: those agreements, you know. Have your operations 

390 

00:50:41.690 –> 00:50:48.679 

Lauryn Robinson: function smoothly. There are ways within those agreements to protect yourself a little bit more 

391 

00:50:48.700 –> 00:50:51.460 

Lauryn Robinson: from liability. 

392 

00:50:52.570 –> 00:50:54.170 

Lauryn Robinson: A couple other points. 

393 

00:50:54.190 –> 00:50:55.235 

Lauryn Robinson: However. 

394 

00:50:57.560 –> 00:51:04.220 

Lauryn Robinson: you know, this is this is America, right? This is the land of the reptile theory, and 

395 

00:51:04.430 –> 00:51:08.590 

Lauryn Robinson: I predict that the other entities would be dragged in 

396 

00:51:09.361 –> 00:51:14.139 

Lauryn Robinson: in cash to litigation. I I just had one case down in Georgia, were 

397 

00:51:14.250 –> 00:51:19.450 

Lauryn Robinson: they brought in every single affiliate. Every single parent company 

398 

00:51:21.570 –> 00:51:23.949 

Lauryn Robinson: related leasing companies. 

399 

00:51:24.000 –> 00:51:30.590 

Lauryn Robinson: the trailer owner, so they can be very broad now, specific to trailers. 

400 

00:51:31.140 –> 00:51:34.806 

Lauryn Robinson: Long answer. But it spurs a lot of responses. The 

401 

00:51:35.870 –> 00:51:41.359 

Lauryn Robinson: there’s a specific amendment call specific Federal law called the Graves Amendment, and 

402 

00:51:42.074 –> 00:51:46.519 

Lauryn Robinson: it, it really protects those who lease trailers. The 

403 

00:51:46.550 –> 00:51:49.669 

Lauryn Robinson: less orders of the trailers and the lessees. 

404 

00:51:49.910 –> 00:52:00.620 

Lauryn Robinson: There are ways to get them out of any liability based on that statute depends on the circumstances of that particular agreement. But we’ve saved a lot of 

405 

00:52:00.930 –> 00:52:04.360 

Lauryn Robinson: entities from going very far in litigation 

406 

00:52:04.370 –> 00:52:07.560 

Lauryn Robinson: based on that specific amendment that’s geared 

407 

00:52:07.900 –> 00:52:10.239 

Lauryn Robinson: specifically toward trailers. 

408 

00:52:10.570 –> 00:52:11.270 

Lauryn Robinson: So. 

409 

00:52:11.270 –> 00:52:12.919 

Steve Kessler: Call that amendment, Greg? 

410 

00:52:12.920 –> 00:52:16.962 

Lauryn Robinson: Yes, Graves, GRAVES. Is named after. 

411 

00:52:17.510 –> 00:52:21.460 

Lauryn Robinson: I forget his 1st name. Former Governor of Kansas, who was an ATA chairman. 

412 

00:52:21.460 –> 00:52:22.320 

Steve Kessler: And okay. 

413 

00:52:22.320 –> 00:52:25.880 

Lauryn Robinson: And it’s more than an amendment. It’s an actual federal law, but that’s it’s 

414 

00:52:25.980 –> 00:52:27.250 

Lauryn Robinson: common name. 

415 

00:52:27.250 –> 00:52:28.100 

Steve Kessler: Okay. 

416 

00:52:30.561 –> 00:52:40.200 

Steve Kessler: One question that popped up in my head. You mentioned that I don’t know whether it was you, Eric or Lauryn that said something about 

417 

00:52:40.746 –> 00:52:48.459 

Steve Kessler: a driver’s personal driver record is not being included as part of the lawsuit. Is that something that ever is 

418 

00:52:48.550 –> 00:52:52.550 

Steve Kessler: brought into play and sticks in a court case 

419 

00:52:52.600 –> 00:52:54.639 

Steve Kessler: a personal record. 

420 

00:52:54.640 –> 00:53:02.349 

Lauryn Robinson: Yeah, rarely, you know. I don’t want to say never. Because, you know, there’s a lot of lawsuits out there, and a lot of judges, right? But 

421 

00:53:04.000 –> 00:53:10.619 

Lauryn Robinson: the sweep is a wide. We can get to be a wide one in these cases. But typically it’s really only 

422 

00:53:10.920 –> 00:53:12.520 

Lauryn Robinson: the driver’s commercial. 

423 

00:53:12.520 –> 00:53:13.430 

Steve Kessler: Commercial. 

424 

00:53:13.430 –> 00:53:15.000 

Lauryn Robinson: Battles about that 

425 

00:53:15.270 –> 00:53:16.065 

Lauryn Robinson: and 

426 

00:53:16.950 –> 00:53:20.180 

Lauryn Robinson: and usually most of the 

427 

00:53:20.220 –> 00:53:25.510 

Lauryn Robinson: problems are in the commercial record. But yeah, I I rarely have seen 

428 

00:53:25.760 –> 00:53:30.479 

Lauryn Robinson: the driver’s non-commercial driving record dragged into a case. 

429 

00:53:30.480 –> 00:53:32.140 

Steve Kessler: Okay. Great. 

430 

00:53:33.314 –> 00:53:34.179 

Steve Kessler: Obviously. 

431 

00:53:34.180 –> 00:53:38.409 

Lauryn Robinson: Still shouldn’t rerun a red light in his Subaru, though Steve. 

432 

00:53:39.440 –> 00:53:41.500 

Steve Kessler: That’s right. 

433 

00:53:41.860 –> 00:54:03.779 

Steve Kessler: One thing I’m hearing quite a bit through the entire presentation. Obviously, you know, companies have policies about hiring and retention and how they deal with all these things. And obviously it’s important if you have a policy to follow it, cause the plaintiff lawyer will use it against you if you have a policy, and nobody’s been trained on it. You don’t know it, and you don’t follow it. 

434 

00:54:04.760 –> 00:54:17.789 

Steve Kessler: Is it recommended that they routinely look at their policies and make sure that they’ve got them worded correctly. Are there things they can do, and how they word policies to help themselves. 

435 

00:54:18.910 –> 00:54:24.989 

Lauryn Robinson: Most definitely, and I was just at an Ata litigation seminar. There’s a whole 

436 

00:54:25.000 –> 00:54:34.000 

Lauryn Robinson: panel on, you know the CDL manual, and what you say in your handbooks. It can be used against you 

437 

00:54:34.540 –> 00:54:43.519 

Lauryn Robinson: just like websites can. So, you want to update them to make sure they’re current in terms of new Regs new industry practices. 

438 

00:54:43.600 –> 00:54:48.260 

Lauryn Robinson: but also, you know, the principal function of them, of course. 

439 

00:54:48.430 –> 00:54:58.849 

Lauryn Robinson: It is to train the drivers so that you don’t have an accident, right? But they can be litigation fodder. So, a lot of times there’s superfluous 

440 

00:54:59.230 –> 00:55:03.748 

Lauryn Robinson: verbiage. It could be incendiary that that’s in there that 

441 

00:55:04.570 –> 00:55:10.920 

Lauryn Robinson: should be reviewed every so often. The other thing I’ll tell you. You reminded me of another point, and I just raised this 

442 

00:55:11.070 –> 00:55:14.400 

Lauryn Robinson: at that same seminar I was at on a different panel, but 

443 

00:55:15.030 –> 00:55:22.710 

Lauryn Robinson: also, records retention. Right? So, it’s important to have a records retention policy. But remember everyone. 

444 

00:55:24.030 –> 00:55:26.139 

Lauryn Robinson: the flip of the coin 

445 

00:55:26.290 –> 00:55:30.910 

Lauryn Robinson: records. Retention also means when that time period elapses. 

446 

00:55:31.080 –> 00:55:35.940 

Lauryn Robinson: you can. You can destroy those documents. And that’s not a bad word. So 

447 

00:55:35.970 –> 00:55:55.820 

Lauryn Robinson: I’ve had a lot of cases where companies say, well, we just kept them around. You don’t have to. And so there can be documents. You never know what’s going to damage you that you don’t need to be retaining, so have that policy comply with on comply with that on both sides of the coin, retention and destruction, slash deletion. 

448 

00:55:56.350 –> 00:56:02.403 

Steve Kessler: Very good, very good. One thing I do want to say to the audience out there, obviously, 

449 

00:56:03.540 –> 00:56:07.269 

Steve Kessler: our company, if any workforce solutions are 

450 

00:56:07.280 –> 00:56:08.180 

Steve Kessler: our whole. 

451 

00:56:10.030 –> 00:56:18.449 

Steve Kessler: Business is around training drivers and making sure that you’ve documented that the training has been done. So, it’s a 

452 

00:56:18.720 –> 00:56:31.060 

Steve Kessler: obviously our platform automatically dates. And Timestamps records all the training records. So, if anybody out there that’s not currently a customer of ours has an interest. 

453 

00:56:31.170 –> 00:56:38.629 

Steve Kessler: And here, and how we might be able to help you do proper training and make sure you have proper documentation. 

454 

00:56:39.119 –> 00:56:50.790 

Steve Kessler: If you wanted to reach out to us. We’ll tell you what we do, and see, if there’s an opportunity there for us to help you be more defendable and make sure you have proper documented records. 

455 

00:56:50.960 –> 00:56:55.029 

Steve Kessler: So, having said that one other question that that popped in. 

456 

00:56:55.030 –> 00:56:57.050 

Lauryn Robinson: Yeah, yeah, Steve, can I tack onto that. 

457 

00:56:57.050 –> 00:56:58.499 

Steve Kessler: Yes, yes, absolutely. 

458 

00:56:58.500 –> 00:56:59.732 

Lauryn Robinson: So, I would say, 

459 

00:57:00.440 –> 00:57:07.110 

Lauryn Robinson: right on right on that topic there’s 4 points, and I mentioned them on my 1st slides. N slides number one 

460 

00:57:07.480 –> 00:57:09.030 

Lauryn Robinson: have a policy. 

461 

00:57:09.160 –> 00:57:11.900 

Lauryn Robinson: Number 2. Comply with the policy. 

462 

00:57:12.040 –> 00:57:22.089 

Lauryn Robinson: Number 3, document your compliance and number 4, Document it as to each individual. So that’s 1 of the most important things from this presentation. 

463 

00:57:22.560 –> 00:57:24.109 

Steve Kessler: Very good, very good. 

464 

00:57:24.150 –> 00:57:26.819 

Steve Kessler: Mark. Do you have any questions that popped into your head. 

465 

00:57:26.820 –> 00:57:34.790 

Mark Rhea: Real quick. I heard the word foreseeable risk used a number of times foreseeable risk or predictable risk. 

466 

00:57:34.840 –> 00:57:49.920 

Mark Rhea: and one of the challenges our carriers have these days is the massive amount of data that comes in on drivers, you know, hard breaks, logbook violations. It’s just almost unmanageable. 

467 

00:57:50.210 –> 00:57:51.200 

Mark Rhea: A. 

468 

00:57:51.340 –> 00:58:03.180 

Mark Rhea: Is a good practice? Or would you make a comment on how to manage all of that data that comes in so that a plaintiff’s attorney can’t use it against you 

469 

00:58:03.757 –> 00:58:09.269 

Mark Rhea: to make a case that you did have a predictable risk out there. 

470 

00:58:10.190 –> 00:58:13.644 

Lauryn Robinson: Yeah, it’s a double-edged store, right? Mark. I mean, 

471 

00:58:14.150 –> 00:58:20.229 

Lauryn Robinson: all that data is important to the motor carrier from an operational standpoint. 

472 

00:58:20.948 –> 00:58:26.129 

Lauryn Robinson: It’s important to the motor carrier from a safety standpoint. 

473 

00:58:26.180 –> 00:58:27.400 

Lauryn Robinson: So 

474 

00:58:27.680 –> 00:58:29.940 

Lauryn Robinson: it probably helps 

475 

00:58:30.130 –> 00:58:36.149 

Lauryn Robinson: prevent accidents. So right out of the box, that’s good. But yeah, you know it. 

476 

00:58:36.990 –> 00:58:43.100 

Lauryn Robinson: it could in most litigation. It could be available to the plaintiffs counsel so 

477 

00:58:43.110 –> 00:58:46.510 

Lauryn Robinson: ways to do it, or some of the things I just mentioned, I mean. 

478 

00:58:47.055 –> 00:58:56.560 

Lauryn Robinson: the motor carrier can have policies where, you know, after concept with council. Okay, when we’re done with this data, we’re going to delete it. 

479 

00:58:56.610 –> 00:58:58.372 

Lauryn Robinson: you know, and 

480 

00:58:59.130 –> 00:59:03.359 

Lauryn Robinson: and the outside counsel can 

481 

00:59:03.840 –> 00:59:10.147 

Lauryn Robinson: fight like hell to make sure it never sees the light of day right? And in terms of preventability. 

482 

00:59:10.590 –> 00:59:15.390 

Lauryn Robinson: that’s a buzzword right in the DOT parlance there is just a nice 

483 

00:59:16.267 –> 00:59:22.070 

Lauryn Robinson: it’s either a statute or a Reg. that says preventability determinations 

484 

00:59:22.080 –> 00:59:26.519 

Lauryn Robinson: can’t be used against the motor carrier in in civil litigation. So 

485 

00:59:27.041 –> 00:59:30.689 

Lauryn Robinson: I’m distilling that and simplifying it. But it’s a great 

486 

00:59:31.198 –> 00:59:36.129 

Lauryn Robinson: Reg for carriers. It was later in my presentation. So 

487 

00:59:36.210 –> 00:59:38.719 

Lauryn Robinson: that’s helpful, because it is helpful 

488 

00:59:39.230 –> 00:59:43.920 

Lauryn Robinson: for a motor carrier to dig back and understand what went wrong, you know. 

489 

00:59:44.060 –> 00:59:49.929 

Lauryn Robinson: but that shouldn’t be. They shouldn’t be able to use that against you, because you’re trying to improve safety going forward. 

490 

00:59:52.480 –> 01:00:02.560 

Steve Kessler: Well, Eric Lauryn, that we’ve come to an hour here, and we try to generally keep things to an hour, cause folks got other things to do, as I assure you and Lauryn do. 

491 

01:00:02.730 –> 01:00:26.870 

Steve Kessler: I do want to thank you for all this great information, very happy that you joined us this morning. I see a lot of our folks stayed on for the whole program, so they were hearing a lot of great things out there. So, thank you, Lauryn. Thank you, Eric. We appreciate it, and perhaps we’ll have you join us again for a webinar in the future. But thank you all both very much. 

492 

01:00:26.870 –> 01:00:31.279 

Lauryn Robinson: You’re welcome. We love this stuff, guys. So, we love talking about it. And 

493 

01:00:31.310 –> 01:00:34.660 

Lauryn Robinson: I had some more slides on a great topic. So. 

494 

01:00:34.660 –> 01:00:36.560 

Steve Kessler: See, we got another whole program. Then. 

495 

01:00:36.560 –> 01:00:38.880 

Lauryn Robinson: If you call, I’ll answer the phone. 

496 

01:00:38.880 –> 01:00:45.570 

Steve Kessler: Very good. Thank you, sir. I appreciate it. Thank you both. Goodbye, everybody. We help see you on the next program.