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liability

Trucking Industry Requests Liability Protections Due to Increased Responsibilities During COVID Crisis

March 3, 2021 by Levinson and Stefani Leave a Comment

Motor carriers working on the front lines during the COVID-19 pandemic are requesting guaranteed liability protection from Congress, as federal lawmakers work to bring further emergency funding to the trucking industry through new legislation.

A particular group of House members and senators have been working to help stakeholders throughout coronavirus relief efforts and are currently pushing forward a $45 billion relief bill for transportation operations during this time.

According to the measure, which would bring $746 billion in relief funds overall, emergency aid would be given to public transit, bus system, airports, airlines, and Amtrak operations. This aid would also help supply chain operators working within distribution efforts for COVID-19 vaccines as well as certain small businesses.

An additional bill aiming to give $160 billion in state and municipality relief efforts has been moved forward by a bipartisan group of lawmakers. This separate bill would help bring liability protections for COVID-19 relief responders and affiliated stakeholders, and these protections would help with injury claims dating back to December 2019.

In a letter to congressional leaders, American Trucking Associations requested specific liability-protection measures. The letter was addressed to leaders in the congressional minority, as well as Speaker Nancy Pelosi and Senate Minority Leader Mitch McConnell.

“Motor carriers and commercial drivers are crucial to ensuring that American communities have the essential goods they need–food, medicine, personal protective equipment, and other critical items–to weather the ongoing public health crisis,” said ATA President Chris Spear in the letter. “Carriers and drivers are in large part the reason why our nation’s grocery stores remain stocked, our gas stations are refueled, and our hospitals and medical professionals stay supplied. As vaccines arrive to protect Americans from this pandemic, they will arrive on a truck.”

“Without these reasonable protections, we fear an onslaught of costly litigation spurred more by an opportunistic trial bar than by those seeking appropriate remedies in response to the actions of a few bad actors,” the letter continued. “ATA’s motor carriers remain committed to what’s been asked of us while asking for little in return, but our industry faces an uncertain future if frivolous lawsuits continue to be filed unabated.”

The letter ended by calling for the House and Senate to “find common ground” in regards to an additional COVID-19 relief bill, reiterating that liability protections are key to making sure motor carriers can continue handling supply chain needs during the current economic crisis.

“Congress should provide that motor carriers are not held liable if, despite reasonable efforts and absent willful/gross misconduct, they are alleged to have exposed customers or employees to the coronavirus in the course of serving the nation’s supply needs during the crisis,” said Spear. “The trucking industry is proud to play an outsized role in COVID-19 response and recovery efforts, and we ask that you consider the essential liability protections in any future legislation.”

The Association of Equipment Manufacturers pushed for the $748 billion relief legislation as transportation stakeholders urged Congress to help avoid transportation service disruptions by approving additional pandemic relief packages.

“Failure to pass this legislative package will mean that small- and medium-sized equipment manufacturers will continue to struggle to keep the lights on and workers on the job, result in continued financial hardship for millions of Americans, and create unnecessary delays in combating the COVID-19 pandemic,” lamented Kip Eideberg, Senior Vice President of the Association of Equipment Manufacturers.

Co-sponsors of the proposal include Senators Susan Collins, Mark Warner, Bill Cassidy, Joe Manchin, and Mitt Romney, who states, “We were able to reach agreement on a two-part relief package that includes emergency relief for small businesses, unemployment insurance, funding for vaccines and health care providers, as well as state and local assistance and a national liability shield for COVID-[19]-related lawsuits.”

A new round of coronavirus relief legislation has yet to be determined by congressional leaders.

Senators have proposed offering $300.8 million to the Federal Motor Carrier Safety Administration’s safety operations and programs account, and Senate appropriators suggested $391.1 million for FMCSA safety grants. In addition, this summer also saw House funding leaders’ transportation measure passed.

Insurers Just Starting to “Eye” Safety Technologies

October 17, 2019 by Levinson and Stefani Leave a Comment

New safety technologies–like collision mitigation systems, onboard cameras, and telematics, to name a few–are capturing the attention of the insurance industry as motor carrier companies work to handle increasing insurance premiums. 

These technologies can help reduce or completely eliminate costly losses for fleets and keep all drivers on the road much safer, and have been used by trucking companies in Europe for years.

Both primary and excess liability underwriters are saying safety tech will play a huge role in reducing catastrophic losses, but Todd Reiser, vice president of the transportation practice at Lockton Cos., says underwriters are still “under a ton of pressure” to remain profitable.

So, does this play a part in why safety technologies haven’t yet been widely utilized across the U.S.?

Reiser says many large motor carriers who use collision mitigation systems can point to their own safety data in order to show “a significant drop” in rear-end collisions.

Additionally, with driver-facing cameras, driver behavior can easily be monitored.

“When drivers know a camera is in the cab, they know whatever they do could potentially be reviewed.” These cameras could also possibly excuse a fleet from liability, Reiser explains. 

Craig Dancer, transportation industry practice leader at insurance broker Marsh USA Inc. says key issues are reducing costs while at the same time keeping drivers safe, and that this comes down to having a safer operation.

“If you don’t have claims, your insurance costs come down and you avoid driver injuries,” he says.

Practice leader at insurance broker TrueNorth Cos., Bill Zenk, says safety technologies are allowing motor carriers to collect data straight from their cabs, “to coach better driver behavior as well as point-of-contact data to mitigate the cost of an accident.”

Peggy Killeen, director at Napa River Insurance services, weighs in on the benefits as well. “We have seen a high correlation between implementing safety technology and reducing the number and severity of accidents,” she says. “Specifically, vehicles equipped with crash avoidance systems have shown to be a valuable resource as it relates to lane change and merging accidents.”

With all of these positive aspects, why would it be taking so long to get this tech regularly implemented in our fleets?

“’Nuclear’ verdicts, defined as jury awards in excess of $10 million, are becoming more prevalent, especially in the trucking world where higher liability limits are often purchased,” explains director of underwriting for transportation at Sentry Insurance, Randy Ramczyk. “Plaintiff attorneys are now engaging in litigation financing where an unrelated third party provides financing to the plaintiff in litigation in return for a portion of any financial recovery from the lawsuit.”

American Trucking Associations second vice chairman, Garner Brumbaugh, agreed with this explanation, claiming that trucking companies are beginning to go out of business “because of very aggressive trial lawyers.”

However, the reason trial lawyers are winning cases against companies in the trucking industry is because the industry’s safety standards are nowhere near where they should be, and juries are agreeing.

Because of this, it appears there should be zero hesitation in utilizing these new safety technologies to their full capacities in as many vehicles as necessary.

“Common sense would dictate that technology can and will help minimize the number of commercial trucking accidents,” says Sentry’s Ramczyk. “Rear-end collisions along with lane-change accidents are the most frequent and severe causes of loss in the trucking industry. This technology can help eliminate, reduce or alleviate these types of losses that can result in significant bodily injury or death.”

Luckily, Ramczyk says in-cab camera systems and advanced collision mitigation systems are becoming standard on many new trucks. However, many insurers are subsidizing the hardware to install in vehicles rather than providing discounts to those using a specific technology. 

“The insurer is betting that their investment in safety technology will be paid back over time based on their insured’s improved loss experience,” explains Dancer of Marsh USA Inc.

Additionally, Ramczyk says, premiums are increasing across the industry “and will continue to do so until loss costs stabilize,” so it appears trucking companies will not begin to widely implement safety tech until insurance costs decrease, but costs won’t decrease until safety tech is much more common and largely effective.

For now, we’re at a slow-moving catch-22.

Talking liability waivers with Ken (Shhh, it’s a webinar!)

August 27, 2015 by Levinson and Stefani Leave a Comment

Do waivers mean no liability?

We all know Ken is thrilled when he doesn’t have to wear a suit and tie to a conference, one of the added benefits of being asked to take part in a webinar.

Here he is as one of the panelists on Defeating Liability Waivers in Personal Injury Cases, organized by Strafford Publications. You’ve likely signed a waiver at some point in your life, whether at the gym, an amusement park or a spa. Ken’s at work right now discussing how signing a waiver form doesn’t necessarily protect a company or individual from negligence.

Under the right circumstances, a waiver can be challenged as unenforceable according to state laws. Some of the key issues he and the other panelists are discussing at the moment:

  • What makes a liability release form valid or invalid?
  • How can personal injury attorneys defeat liability releases on substantive law grounds?
  • How can personal injury attorneys use procedural strategies to defeat personal injury releases?
  • What are the public policy considerations that support and oppose liability waivers?
  • Are liability releases signed by a parent on behalf of a minor child enforceable?
  • When are liability releases prohibited?

If you’d like to know more or have questions about liability waivers, feel free to drop Ken a line.

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