Recently, our own Sam Coffey & Sean Goldstein were invited to contribute to the Daily Business Review on Liability Law.

Florida defense counsel provided an opinion piece suggesting that the victims of tractor trailer accidents should be precluded from obtaining all discovery from a trucking company based upon relevancy concerns.

Florida defense counsel provided an opinion piece suggesting that the victims of tractor trailer accidents should be precluded from obtaining all discovery from a trucking company based upon relevancy concerns.

This is a dangerous proposition for a host of reasons, including stymieing any ability of the victim to seek punitive damages, address claims for negligent or intentional destruction of evidence, or fully defend against a comparative negligence defense.

The ‘Clooney v. Geeting’ Trap

The defense cites to the outdated case of Clooney v. Geeting, to support its argument above. In fact, the authors cited Clooney as a defense in a tractor trailer wreck earlier this year where a driver lost control of his rig on a wet roadway, jackknifed and ran over a disabled vehicle operated by our client that had come to rest in a construction zone on Interstate 95 several minutes prior to the truck driver losing control due to his own negligent actions of driving above the speed limit in heavy rain conditions. See Rhodes v. Rojas and Velox Transport Solutions, Palm Beach County, Florida. Ms. Rhodes later settled a portion of her case for nearly policy limits of $1 million with the trucking company.

Discovery Is Relevant on the Issue of Punitive Damages

Where punitive damages may be an issue, Florida law liberally affords the right to discovery.  Fla. Stat. Section 768.72(1) states, in part, “the rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages.”

Importantly, Clooney did not involve a claim for punitive damages. In the modern era, telematic data allows a trucking company to track vehicle performance of a tractor trailer and may show a history of excessive speed or excessive hours that has been ignored by the trucking company. If the employer condones or consents to the conduct of a reckless driver by failing to take corrective action despite daily reports of safety violations, this supports a claim for punitive damages.

Florida appellate courts have repeatedly commented that the negligence of a trucking company is a relevant issue. In Petrik v. N.H. Insurance, the First DCA found that a trucking company was, indeed, subject to additional liability for its direct negligence. In Dunmore v. Eagle Motor Lines, where the decedent was run over by a truck leased by Eagle and entrusted to/driven by Pitts in the course and scope of Pitts’s employment. The First DCA, again, held that the liability of Eagle was not in the same right or derivative of the Pitts defendants, as it would be in a vicarious liability claim.

In Capodanno v. Premier Transportation & Warehousing, Judge Kenneth A. Marra found that Clooney only stands “for the position that juries should not be allowed to consider prior driving records” when a negligent hiring theory of recovery would impose no additional liability on the employer than already imposed under a vicarious liability doctrine.

Finally, Trevino v. Mobley stated, “Clooney v. Geeting should be abandoned and no longer followed by the courts in this state.”

Discovery Is Relevant to Defend Against the Comparative Fault Defense

Florida’s comparative fault system requires a jury to compare the fault of all negligent parties in apportioning fault. To exclude a trucking company who has acted in a negligent or reckless manner would be highly prejudicial to the victim, resulting in a miscarriage of justice.

The author’s proposition allows a trucking company to do the following without added liability: hire a driver with a bad driving record and problems with substance abuse, fail to properly maintain its equipment so the equipment is safe to operate on the roadway, and turn a blind eye to a driver who consistently speeds and drives in a reckless manner.

Discovery Is Relevant on the Issue of Destruction of Evidence

Too often as truck accident lawyers, we are called out only after a family has gone through the grieving process over the loss of a loved one or a person has gone through extensive hospitalization and rehabilitation.

As we begin our work oftentimes the condition of the scene of the accident has been changed or the tractor trailer involved in the accident has been altered or destroyed that precludes or prejudices an ability to prove what happened. An anecdotal example of destruction of evidence is a trucking company that intentionally did not preserve the data on the engine black box. Without this data, that should be preserved for all parties to get to the merits of an accident, the family of a person who unfortunately loses their life in a trucking accident where there are no independent witnesses will be limited to the testimony of the driver.

Trucking companies have go teams made up of insurance company investigators, accident reconstruction experts, risk management and others who get calls within minutes of the accident so they can get to work immediately. In those instances where the evidence like black box data or the equipment involved in the accident is not preserved due to negligence or intentional misconduct, there is a remedy for the victim under Florida Standard Civil Jury Instruction 301.11(a) and (b) that deals with the failure to maintain evidence. These jury instructions would be unfair to the truck driver for the bad acts of a trucking company that he does not control and meaningless against a trucking company for destruction of evidence if fault of a trucking company were not an issue under Florida law.

Samuel A. Coffey is the managing partner and Sean C. Goldstein is an associate of Coffey Trial Law in Fort Lauderdale. They focus on trucking accidents, traumatic brain injury and catastrophic personal injury cases. Contact Coffey at sam@ct-law.com and Goldstein at sean@ct-law.com.