Death by a Thousand Cuts in the Trucking Industry
By Doug B. Marcello, Esq.
In today’s world of increased insurance deductibles and captives, trucking companies are reporting they are dying a “death by a thousand cuts” as their insurance companies pay out one relatively small legal settlement at a time.
According to a 2021 American Transportation Research Institute study, small verdicts and settlements – those under $1 million – are potentially raising insurance premiums for truckers, along with other factors. Quickly collecting a settlement against a trucker or trucking company has become an industry within itself, according to the study, with attorneys basing their business on collecting these small settlements and verdicts.
A separate ATRI 2022 study found that a considerable percentage of increases were unrelated to crash history. Instead, it’s litigation costs and economic conditions within the insurance industry driving premiums higher, according to the report. The result, according to ATRI, is that trucking companies are taking on more of the risk with increased deductibles and retentions.
While nuclear verdicts get the press (and rightfully so, as they can devastate a company in an instant), every business faces the endless trickle of lawsuits stemming from minor or questionable incidents. And insurance companies aren’t necessarily invested in proactively fighting to stem the tide.
There are some levers that you can work to control that could help limit the pay outs in the short term with an eye toward limiting costs in the long run.
Control: While it’s often the insurance company’s decision as to whether the “no injuries at the accident scene” claims get paid, this is essentially your money being paid to settle a lawsuit from a crash and you should have some control over how your money is being spent.
For the most part, you don’t have that control. But, if possible, at the time of purchasing the policy or at renewal, try to negotiate control over how your money is dispensed in a crash settlement. Or at the very least, negotiate for control of a veto of these payments.
Realistically, this is a long shot. But if you can sure this in negotiations, remember, it’s your money.
Counsel: If can’t control payments, can you at least select counsel? You should be seeking out an attorney who will take the fight to them. Any attorney who – within the permissible bounds – is aggressive and creative.
Claims: You have an advantage that opposing attorneys won’t – immediacy. You know about the accident before any of them. If you don’t act immediately and continue to press your advantage, you will have squandered your greatest advantage.
To capitalize on that advantage, immediately assess the accident. If it’s your fault, resolve it ASAP. Get their car fixed. Your lack of immediacy often leads them to an attorney.
You also cannot afford to ignore claims or to not pay them the requisite attention. Your claims people can’t just file the letters of representation and hunker down for a demand or a suit. You need to respond and carry the fight to them.
Delaying the inevitable in a claim costs money. If you delay, medical expenses grow unchecked and unchallenged, building up damages that will be leveraged into an excess settlement, or at least a rationale for some money in a case with no value. Change the delay period to an aggressive response by your claims period or counsel.
Safety: The best legal defense for an accident is not having an accident. And the price of your insurance premium is no longer the sole metric for your exposure to risk.
The American Transportation Research Institute found the “total cost of risk” is the sum of your premium, your deductible payments and your investment in safety. Not just a financial investment in safety, but a cultural development. Safety is an investment, not an expense.
To add to the culture of safety, training and technology are vital to reducing the claims and the payments from those claims. Add to that the exoneration power of in-cab videos in today’s YouTube society and investigating in technology and safety with one-time costs could mitigate hefty long-term expenses.
You must act to reduce your risks and respond aggressively to claims. You literally can’t afford to do otherwise.