Sleepy Drivers and Truck Accidents

By: Roger D. Horgan

The job driving a large truck over long distances is exhausting. A good driver must be on high alert at all times because of the complexity of the task and the great harm tractor trailer accidents can cause. The Federal Motor Carrier Safety Regulations exist to protect the public from harm that these enormous, heavily loaded vehicles cause.

Among the most important regulations are those that prohibit drivers of commercial trucks from driving for too long. It is entirely predictable that a driver who is on the road—beyond the normal and safe limits of human endurance—will lose his edge. The driver then becomes a far greater risk of harm than one who is well rested.

It is the predictability of accidents caused by tired drives that exposes drivers and their employers to punitive damages claims—intended to punish wrongdoers—on top of normal compensatory damages. Pennsylvania Courts have ruled that failure to adhere to driving time limits can be considered recklessness and supports a claim for punitive damages, for example Gaffin v. George Walker, Jr. and Pocono Produce Co., Inc. There is no specific limit on the amount of punitive damages. This is why punitive damages remain an incentive for drivers and their employers to comply with the regulations…and save lives!

Liens and Subrogation in Auto Accident Cases

By: Roger D. Horgan

Medical liens and subrogation. These obscure misunderstood words can have a dramatic impact on the victim of automobile negligence. These concepts come into play when the victim’s auto insurance is insufficient to pay all of the medical expenses arising from an accident. After the auto coverage has been exhausted, the victim’s health plan will step in to pay the remaining bills, under the terms of that plan. The health plan’s claim well then seek reimbursement from the proceeds of the accident litigation, also known as enforcing a lien or seeking subrogation.

The problem with medical liens is that they can overwhelm a case and lead to negative and unjust results. If the defendants liability coverage is inadequate, and the health plan insists on 100% reimbursement of what it paid, the true victim may bear the shortfall and be left with little or nothing. Many accident victims are sorely disappointed to find that they must reimburse their health insurance company even though they have paid for that coverage.

The lienholders have enormous power over the resolution of the case and how much the accident victim ultimately receives. The best way to prevent being held hostage in this manner is to purchase as much uninsured and underinsured motorist protection as you can possibly afford. This enlarges the pot from with you and the lienholder are paid, and it increases the likelihood that you, the accident victim, can be fully and fairly compensated.

The Phantom Insurance Company

By: Roger D. Horgan

We all know that one must have insurance to drive the car. However, when you get in an accident, the other guy might only have minimal insurance. Therefore, Pennsylvania residents have the option of purchasing under-insured motorist coverage (UIM coverage). This coverage is designed to permit you to recover more than the limit of the other guy’s insurance. Frequently an accident victim pursues two claims at once: one against the responsible driver and another against his own insurance company for UIM coverage.

This allows the courts to address those suits together. It also creates certain complications which arise from judicial tradition and Rule 411 of the Rules of Civil Procedure, prohibiting the mention of liability insurance to a jury. This prohibition requires the jury to focus on the facts of the case rather than upon the amount of insurance coverage available to satisfy the claim.

This creates an inherent difficulty when the case is tried in front of a jury. The insurance companies have successfully argued that the jury considering the case should not be told that one of the defendants is an insurance company. Nevertheless, because the insurance company is a party to the lawsuit it is permitted to have its attorney participate fully in the trial. So, the jury does not know who the second defense attorney is  representing, but the victim’s attorney is required to contend with two attorneys. Two attorneys are better than one, and the plaintiff has a harder case. 

In one recent case, the judge decided this was unfair and ordered a new trial following a defense verdict. In that case, the jury was not told that State Farm insurance Company was a party to the case or that the second defense attorney who participated in the trial represented State Farm. The jury eventually found that the driver was not negligent, and the jury returned a defense verdict. After the trial, Judge O’Reilly concluded  that the procedure designed to hide the identity of the insurance company denied the plaintiff due process of law, and ordered a new trial. In doing so, he concluded that Rule 411 did not  require that the identity of the insurance company in an UIM case be hidden. He stated in his opinion that the practice of not identifying insurance carriers in motor vehicle cases was the perpetuation of a myth that had outlived its usefulness. He concluded that it was fundamentally unfair to permit the double-teaming of the plaintiff in the name of serving this outmoded principle. 

Not surprisingly, the defendants appealed. The Superior Court reversed the judge’s order, and remanded the case to the trial court with instructions to enter judgment in favor of the defendants. What is most interesting about the Superior Court’s decision is that it did not definitively rule whether the procedure of hiding the identity of the UIM carrier resulted in a denial of due process. Rather, it focused on the jury’s decision that the defendant driver was not negligent. Since the driver was found to be not negligent there could be no judgment against either that driver or the UIM carrier. The Superior Court relied upon the rule of law that a violation of due process does not necessarily lead to a remedy. A party who demonstrates a violation of due process is entitled to a remedy only if that party can also show that the violation resulted in prejudice to him. The Superior Court concluded that the plaintiff could not show prejudice since the identity of the insurance company had no bearing on whether or not the defendant driver was negligent. 

It is anticipated that UIM carrier’s will rely upon this case to argue that their identities should never be disclosed in these circumstances. However, plaintiffs will respond that this is a case that is very much limited to the fact that the defendant driver was not negligent. Plaintiffs’ counsel can be expected to continue to fight for the right to have cases tried on the reality of the parties, and not on the basis of myths and phantoms.

What are Punitive Damages?

In some circumstances, a jury is permitted to send a message in addition to making the victim of another’s wrongdoing whole. Sometimes, the conduct of an individual which results in harm to another is so extreme and outrageous that the law permits a jury to award damages intended to notify that particular defendant and others who might consider doing the same thing that society will not tolerate such conduct. In such cases, the defendant will be ordered to pay the normal damages, which usually include pain and suffering, lost wages, medical expenses etc. He may also be ordered to pay punitive damages due to the outrageousness of his conduct. To send a message.

As stated in a recent federal court case, “Pennsylvania law allows punitive damages when a defendant has an evil motive or reckless indifference to the rights of others; such damages are available only when the defendant’s actions are so outrageous as to demonstrate willful, wanton, or reckless conduct. This type of damage is not compensatory in nature, but is meant to heap an additional punishment on a defendant who was found to have acted in a fashion which is particularly egregious. To establish a claim for punitive damages the evidence must show that the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that he acted, or failed to act in conscious disregard of that risk.” Coello V. Frac Tech Services, LLC, United States District Court, Middle District of Pennsylvania, Civil Action No. 3:13–534(2013)(citations omitted.)

In the Coello case, the Court refused to dismiss a victim’s claim for punitive damages where it was alleged that a serious accident was caused by a truck driver’s extreme sleep deprivation. It was undisputed that the truck driver fell asleep at the wheel at the time of the accident. The victim alleged that the employer of the driver knew or should have known that the driver posed a high risk of harm to others by driving with sleep deprivation. This was because the driver had been scheduled for 60 hours of work over the previous 4 days, and worked during the 19 hours leading up to the accident. This was not a case of simple negligence, but rather one of intentional conduct by the defendant that inherently created a high risk of harm to others. If this conduct is proven at trial, the driver and his employer may face a verdict far above that which would be expected in the absence of such outrageous conduct.

In a case being heard in the Court of Common Pleas of Northampton County, the Court likewise refused to dismiss a claim for punitive damages where the victim alleged that the defendant intentionally blocked all of the lanes of travel on a state highway with a tractor-trailer, knowing that the visibility at this sharp turn limited visibility by oncoming traffic. McPoyle v. Mast Excavating, Inc., No. C-48-CV-2013-7658. The argument was that this driver knew to a certainty that he was creating a high risk of harm to others, but did so anyway. If true, he put his interests far above those of his fellow citizens, and he will pay the price.

Other cases in which punitive damages are routinely claimed include cases in which the defendant drove under the influence of alcohol or drugs, and cases in which establishments serving alcoholic beverages serve a visibly intoxicated person who thereafter injures others or himself. While the courts generally do not favor forcing a defendant to pay for more than the actual harm he caused, there are certain cases where that would just not be enough. Those are cases for punitive damages.


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