Last in Line, First to Die!
By Christian Searcy
Searcy Denney Scarola Barnhart & Shipley, P.A.
When you are the last vehicle in a long line of emergently stopped vehicles on an interstate or other large highway, even in broad daylight with no view obstruction, you are the first to die from an 18 wheeler crushing your stopped vehicle because its driver was impaired. It matters not whether the driver was impaired due to alcohol, drugs, fatigue or preoccupation with onboard computer/communication devices, you are still dead! I have observed this unforgivable phenomena occurring throughout my 40 years of law practice, but we have observed a dramatic increase in the number of such occurrences over the past 15 years. What, if anything, can be done to protect society from these outrageous occurrences? How can we best represent the victims of these outrageous occurrences?
II. UNSPEAKABLE TRAGEDY ON THE INCREASE:
Throughout my 40-year career, I have become aware of instances in which 18 wheelers rear-ended long lines of vehicles emergently stopped on a major highway in broad daylight with no view obstruction. Throughout my career, on occasion, I have represented the victims of such occurrences. Up until the late 90’s, it seemed the cause was always a driver impaired by alcohol, drugs, or fatigue. From the late 90’s on, from my observation, it seems there has been more than a two-fold increase in this phenomena and that in many instances, the impairment of the driver is stemming from his attention to cell phones or onboard computer/communication devices. Studies have shown that when a driver is texting or reading maps, or getting directions, or information over a computer screen, the driver is more impaired than when legally intoxicated on alcohol or drugs. To have big rig trucks operating at highway speeds with drivers that are even more impaired than drunken ones, is a public hazard of a severe and reprehensible degree. I have not been able to find any type of industry-wide concern or movement in attempting to address this matter by devices that will black out communication devices when trucks are in motion. Alternative strategies, if any, have been seemingly ineffective.
III. THE SOLUTION FOR SOCIETY AND OUR CLIENTS:
- Totally preventable tragedy arising from driver distraction by today’s technology is a significant variation on an age-old theme. In the transport of freight, each tractor-trailer is a profit unit and time is money. When the tractor-trailer isn’t hauling freight, the profit unit, is not as profitable. Trucking companies have a financial incentive to violate hours of service rules in order to make their profit units more profitable. Likewise, tractor-trailer units are more profitable if they can continue moving freight while the driver conducts his paperwork and communications over onboard devices. Both variations place impaired drivers behind the wheel.
- What will change the behavior of the trucking industry? The trucking industry is very sensitive to and highly motivated by profit. It always has been and always will be. As long as it remains more profitable to violate hours of service rules and have drivers conduct their paperwork and business while hauling freight at high speeds, the totally preventable, disgusting phenomenon of crushing and burning innocent motorists stopped in positions of helpless peril will continue. Companies will cease chronic violation of hours of service and cease driver distraction by onboard devices, when the consequences of such behavior significantly outweigh the profit from them.
- How can the behavior of chronically violating hours of sleep rules and encouraging communication through onboard devices while moving at high speeds, become unprofitable? Certainly not by fines levied by the Federal or State departments of transportation. Those fines are so minuscule in comparison to the damages caused and the profits to be realized, that they will never be a significant impediment to the trucking industry putting impaired drivers behind the wheel of big rig trucks. What can render such conduct on the part of the trucking industry to be unprofitable? Vibrant compensatory damages for their injured victims magnified by punitive damages in an amount equal to, or greater than, the ill-gotten gains realized by trucking companies encouraging unsafe practices for profit.
- The larger the recovery for the victims of these senseless tragedies, the greater the deterrent for such behavior in the future on the part of the trucking industry. Historically, punitive damages have been the tools for social reform. Many states have legislated punitive damages to an ineffective level, or out of existence. In forums where punitive damages are allowed, they are an extremely effective tool in maximizing the amount it costs trucking companies to place an impaired driver behind the wheel. Having punitive damages as a viable issue during discovery in trial, broadens the scope of discovery, broadens the admissibility of evidence, and allows the trier of fact to recognize the righteous indignation society should feel regarding such behavior. Many times, the cases will settle before a jury has had the opportunity to render a verdict for punitive damages. However, when that occurs, the amount of settlement is usually many multiples of what it otherwise would have been, and practically speaking, the deterrent is therefore many multiples of what it would have been.
GETTING THE ISSUE OF PUNITIVE DAMAGES TO THE JURY
- Where we are representing the relatives of a victim(s) who was last in line and first to die, but there is no positive blood alcohol or positive drug screen on the part of the truck driver, how do we get punitive damages to the jury? The truck driver will invariably have some lame excuse for why he did not see the line of stopped cars in front of him in broad daylight with no view obstruction blocking his vision. How do we get the court to realize this is a case of reckless disregard for human life and safety and not just negligence on the part of the driver who does not see the stopped cars?
- The key is in getting the court to understand that the conduct is too flagrant to be explained by mere negligence. Once the court understands the circumstances of the collision cannot be explained by a non-impaired driver at the wheel, we need to get the court to understand that it is not the burden of the plaintiff to prove the cause of the driver’s impairment, but simply to prove the driver was impaired.
- An example is worth a thousand words. The following example is a verbatim transcript of my argument before the trial court in Jacksonville, Florida, which resulted in the court allowing the issue of punitive damages to go to the jury:
Michael Wright, in the scope and course of employment with Tree of Life, Incorporated, drove a 2003 Freightliner tractor-trailer truck pulling a 1998 Great Dane trailer owned by Penske Truck Leasing under lease to Tree of Life, Incorporated on 11/11/06, at or about Interstate 95 south near the Dunn Street entrance to Interstate 95 south.
At that time and place, at or about 2:25 P.M., a line of traffic was stopped. The last car in that line of stopped cars was the car owned and operated by Vincent James Modica with his beloved wife of 41 years, Judy Ann Modica, in the passenger seat.
At that time and place, in broad daylight, with no view of obstruction, the large semi tractor-trailer operated by Michael Wright bore down upon the Modica’s stopped vehicle without reducing speed, sounding a warning, or applying brakes until a split second before the operator of the semi tractor-trailer struck the Modica vehicle, driving over and pushing it into the stopped tractor-trailer in front of it causing the Modica vehicle to burst into flames. Vincent and Judy Ann Modica were killed in that terrible fiery crash.
Those facts are beyond dispute and have been proven and will be proven, not only by clear and convincing evidence, but beyond a reasonable doubt.
Is that conduct sufficient to sustain a claim of punitive damages against Michael Wright and Tree of Life, Incorporated?
Let’s see what the Florida Supreme Court says about that:
I hand you the Supreme Court Case ofBould v. Touchette, 349 So. 2d 1181 (Fla. 1977), which governs, and ask the court to turn to Page 4 – 2ndcolumn.
The Supreme Court discusses the facts of the case below on which it ultimately upheld the punitive damage verdict. “Shortly before noon on a clear day, they (the Simonsons) were forced to bring their vehicle to a stop at the end of a long line of traffic, as the road was under construction and traffic was being regulated by a flagman. The road was flat, straight and level more than a mile before the actual construction site…Without reducing speed, sounding a warning or applying brakes, the operator of the semi tractor-trailer truck struck the rear of the pick-up truck tossing it aside and continued over the Simonson’s vehicle and flattened it. The semi-trailer truck did not come to a stop until it had run through two other vehicles and collided with another large truck. The semi tractor-trailer truck was being operated by Touchette in the course and scope of his employment by Concrete Pipe.”
We could simply change Bould or Simonson into Modica and Touchette into Wright and we are talking about this case.
If you will turn to Page 8, you will see that the Florida Supreme Court quashed the Decision of the Fourth District Court of Appeals, which had reversed the jury’s punitive damage award, and remanded with instructions to enter the judgment in favor of plaintiffs.
It is the law of Florida that running into the back of a stopped car on the interstate in plain view, in broad daylight with no view obstructions, with plenty of time to stop, justifies punitive damages.
Well, because there are only two possible explanations for running down a stopped vehicle in broad daylight with no view obstruction and plenty of room to stop:
Either the driver did it intentionally because, unless he was impaired, he could not help but see it, and if he did it intentionally, he’s guilty of murder; or
He was so impaired he never recognized a long line of cars stopped ahead of him in broad daylight with no view obstruction with plenty of time to stop.
Driving while impaired and killing two people justifies punitive damages.
Our punitive damage case doesn’t turn on proving the cause of his impairment, albeit alcohol, drugs, some other substance, or fatigue, as long as we prove he was impaired; and the undeniable facts show that he was impaired (since the random encounter with two people he didn’t know is unlikely to be intentional murder).
Having facts and proof that this driver was unquestionably operating the tractor-trailer in an impaired condition, it is relevant, although not necessary to offer proof of cause of his impairment, and we have established very powerful proof that the cause of his impairment was fatigue.
One, the Traffic Homicide Report details the evidence of what happened in the crash.
Two, the documents provided in discovery by Tree of Life and Penske – attached to the Forrest Baker Depositions.
Three, Exhibit T 8-1 Driver’s Duty Log for 11/06 – The Payroll Log shows that Wright drove either 300 or 360 miles and made either 10 or 12 stops, but his duty logs for that day only show 3.5 hours of driving were reported for that 300-360 miles.
Four, Federal Safety Regulations 49 C.F.R. 395.3 referred to at Page 3 or Forrest Baker’s Affidavit sets forth that:
a. Driver may be on duty no more than 60 hours in 7 days, or 70 hours in 8 days.
b. A driver is never permitted to drive more than 11 hours a day.
c. A driver is never permitted to be on duty for more than 14 consecutive hours.
d. Once a driver has reached maximum hours for a day, he must go off duty 10 consecutive hours before he can go on duty again.
e. After taking off 34 consecutive hours, you restart the 60/70, or 70/80 hours in a week once again.
The chronic violation of the Federal Safety Regulations pertaining to hours of service is evidence that both Mr. Wright and his employer, Tree of Life, Incorporated, showed a conscious disregard for the Federal Safety Regulations designed to protect the public from fatigued drivers behind the wheel. The manipulation of the data from XATA automatic on-board recording device was under the control of Penske and could not have been done without their cooperation.
Accordingly, the court should find that the Plaintiffs have made an appropriate evidentiary showing and enter an order allowing us to amend to claim punitive damages.
D. What was the effect of punitive damages being allowed in the Modica case cited above? Prior to the court granting the Motion to Allow Punitive Damages, the largest offer had been $2 million. The tragedy involved the wrongful death of a 65 year-old and 63 year-old husband and wife, survived by their 39 year-old and 36 year-old sons. After several weeks of trial when plaintiff’s rested their case, the defendants paid $17.5 million in settlement. One of the terms of settlement the plaintiff’s insisted on was that the settlement not be kept confidential.
In every other last in line, first to die case where the courts have allowed the issue of punitive damages to go to the jury, there were similar dramatic increases in the ultimate settlement value of the case, and even larger cases; however, in all other cases, confidentiality agreements prevent the disclosure of the amounts of those settlements. Nevertheless, I have consistently found that recognizing and developing the issue of punitive damages in the last in the line, first to die cases, gets the court and the jury on the right track to appreciate the true outrage involved in the causative facts of the tragedy. That realization leads to the just and enormous enhancement of the compensatory damages and the potential for punitive damages in behavior-changing amounts.
A. It is rewarding to go through the following sections of Chapter 49 of the Code of Federal Regulations in preparing our discovery requests:
- Section 395.3 – Maximum Driving Time for Property Carrying Vehicles
- Section 395.8 – Driver’s Record of Duty Status
- Section 395.5 – Maximum Driving Time for Passenger Carrying Vehicles
- Section 395.15 –Automatic Onboard Recording Devices
B. Be aware that many motor carriers and many drivers violate the hours of service regulations and falsify their reporting to attempt to disguise or cover up the violation.
- Some drivers will keep what is called a false log book (used to show regulating authorities when they are stopped) and an actual log book (used for purposes of getting paid).
- Some drivers and/or companies will have false entries on their official records manipulating the driving time or on-duty not driving time to disguise violations.
C. Discovery regarding hours of service. Discovery regarding hours of service should be conducted with the suspicion that hours of service have been violated and records of driver’s duty status have been falsified until proven otherwise. Discovery of the following documents helps cross reference pertinent criteria to check for validity or invalidity of driver’s duty hours:
1. Driver’s log as required by 49 C.F.R. 395.8 for the day of the collision.
2. Driver’s logs for defendant driver for the 6 months preceding the collision in question.
3. Graph Grid required by 395.8 (g) for the day in question and for the 6 months preceding the collision.
4. Records of automatic on-board recording devices required by 49 C.F.R. 395.15 for the day of the collision and the 6 months preceding.
5. All payroll, or payment logs, or records for the driver in question for the time period, including the collision and 6 months prior thereto.
6. All W-2’s for the driver in question for the withholding period, which includes the collision in question, as well as all reporting periods for 6 months prior thereto.
7. All fuel receipts incurred from the time the truck left the carrier’s premises until the time of the collision.
8. All Bills of Ladings and manifests pertaining to property transported and/or delivered from the time the truck left the carrier’s premises until the time of the collision.
D. Cross referencing the data for the times,distances and speeds for any given 24-hour period and especially the 24-hour period in which the collision occurred frequently identify falsifications in driver’s duty status.
1. Where the driver’s log and grid show 3 ½ hours driving time, but show a route of 300 miles has been covered, one can conclude:
a. The driver has lied about the time he spent driving, or
b. The driver was flagrantly speeding throughout his route (a truck obeying speed limits on highways will average 50 miles in an hour).
c. Where driver’s log and grid shows driver’s 24-hour period of duty to begin with “driving,” the driver has probably cheated on listing his duty time, since it usually takes from 30-60 minutes for a driver to report to duty to the yard, get all of his paperwork, inspect his load, and perform the required inspections on his rig.
d. Where a driver logs 11 hours of driving time for the preceding 24-hour period and fails to get or log 10 solid hours of “off duty” time before resuming duty and driving, all of his driving for the following day is illegal and in violation of the safety regulations set forth in 49 C.F.R. 395.3.
2. Time and location of sequential fuel receipts can show the impossibility of compliance with the hours of service regulations in 49 C.F.R. 395.3.
3. Many times a driver and company’s violation of hours of service regulations fall into a pattern. Examination of the logs and data for the prior 6 month period will help to reveal such patterns. Where such patterns exist, they are a flagrant disregard of safety regulations.
E. The purpose of 49 C.F.R. Part 395 is to protect the public from the hazard of fatigued drivers operating huge trucks in their midst. The hours of service regulations have been written from the blood of innocent citizens massacred by huge trucks at the hands of drivers impaired from fatigue. Where a driver and carrier intentionally violate the safety regulations designed to guard against fatigue, they have shown a conscious disregard for the safety of the public using our highways. Where such a fatigued driver has caused injury or death, the driver and carrier have acted with conscious and reckless disregard for the life and safety of the public on the highways. Such conduct justifies a punitive damage award against them, in addition to compensatory damages.
F. All onboard recording devices.
1. We should request all onboard recording devices with the name of the manufacturer of that recording device and the name and the addresses of those responsible for maintaining and keeping records from that recording device.
2. Most of the larger trucking companies today have computerized devices in the ignition key of the vehicle, which is then downloaded into the company’s computer when the driver returns to the yard that day.
3. All records of any communication between the driver and the dispatcher with times of transmission and content.
G. Cellphones, I-Pads, or other Wireless Communication Devices.
1. For all cellphones onboard the truck at the time of the collision, the cellphone number and carrier for each such phone and the times and use for telephone and/or e-mail and/or text message or other usage for the day of the collision, as well as the times of receipt of transmission throughout the day of the collision.
When we get a last in line, first to die vehicular collision, it is in the best interest of our clients and of society to approach it from the very beginning as a compensatory and punitive damage case with “Bet the company” exposure to the carrier and insurer involved. The outrage of such collisions ever happening, and that they are occurring at an increasing rate, allows us to achieve the maximum recovery for our clients and the maximum benefit to society.
CHRISTIAN D. SEARCY is President and CEO of Searcy Denney Scarola Barnhart & Shipley, P.A. For the past 41 years, Chris Searcy has litigated cases involving catastrophic injury and wrongful death throughout the State of Florida and in other states as well. In 1977 at age 29, he became the youngest lawyer in the United States to achieve a $1 million dollar verdict for a single personal injury case. Since that time, he has compiled a long list of seven and eight figure verdicts and one nine figure verdict. In 2007, he achieved four eight figure verdicts in four different jury trials totaling over $100 million.
After earning a B.A. with distinction from the University of Virginia, Mr. Searcy received his Juris Doctorate from Stetson University College of Law, graduating in the top 10% of his class. He was admitted to The Florida Bar on May 1, 1973. He is admitted to practice in all Florida State Courts, as well as all United States District Courts in Florida, as well as the Eleventh Circuit Court of Appeals and the United States Supreme Court. He is Board Certified in Civil Litigation by the National Board of Legal Specialty Certification (formerly known as the National Board of Trial Advocacy) and Board Certified in Civil Litigation by The Florida Bar Association. He heads the firm of Searcy Denney Scarola Barnhart and Shipley, P.A., a firm composed of 27 lawyers and over 100 personnel, with its main office in West Palm Beach, Florida.
Throughout his career, Chris Searcy has been honored to serve his clients, his profession and his specialty through volunteering his time and efforts. He went through the Chairs and served as President of the Academy of Florida Trial Lawyers (now Florida Justice Association) (1983-1989) and he’s served on its Board since 1979. He went through the Chairs and served as President of the International Academy of Trial Lawyers (2003-2012) and serves on their Board as a past president. He is a Member of the Inner Circle of Advocates; a Diplomate in the American Board of Trial Advocates; a Fellow in the International Society of Barrister’s; and a Fellow in the American College of Trial Lawyers.
Chris Searcy has been selected for inclusion in The Best Lawyers in America in every edition since its inception 30 years ago. He was ranked as the #1 Lawyer in Florida in the 2013 Florida Super Lawyers Nomination, Research and Blue Ribbon Review Process. He is listed as one of the “Legal Elite” in Florida Trend magazine; named as one of the top lawyers in South Florida Legal Guide; and selected one of Lawdragon’s 500 Leading Lawyers in America.
Chris Searcy received the highest honor of the Florida Justice Association in 2005 when it bestowed him with the Perry Nichols Award in recognition of a lifetime of outstanding service to the cause of justice. He was the first recipient of the Florida Justice Association’s Compassionate Gladiator Award in 2006, and received the Al J. Cone Lifetime Achievement Award by the Florida Justice Association in 1997. In 2006, Chris Searcy was one of two lawyers in the country to receive the “Warhorse Award” from the Southern Trial Lawyers Association honoring his outstanding skill as a trial advocate and his extraordinary contributions to the cause of justice.
His Bar work and community service include: Chairman of the Rules of Civil Procedure Committee of The Florida Bar; Chairman of the Judicial Administration Committee of The Florida Bar; Chairman of the Standing Committee on Professionalism of The Florida Bar; Rules of Evidence Committee of The Florida Bar; Emeritus Member of the Board of Overseers of Stetson University College of Law; Emeritus Member of the Board of Directors of the College Foundation of the University of Virginia and present member of the Alumni Association of the University of Virginia Board of Managers. He is the Past President of The Florida Supreme Court Historical Society and serves on its Board of Trustees. He has served on the Judicial Nominating Commission for the United States District Court of the Southern District of Florida and the Middle District of Florida.
From a community perspective, Chris Searcy’s personal philosophy of advocacy for those in need has made its mark on South Florida, where he and his firm support numerous non-profit organizations committed to helping the disabled, improving education, and advancing community causes.
For more information on Searcy, Denney, please visit their website at: http://www.searcylaw.com/