Punitive damages present a worst-case scenario for truck drivers, trucking companies, and their attorneys. Unlike compensatory damages, which are designed to make an injured party whole for the loss suffered as a result of an accident, punitive damages are designed to punish or deter the wrongdoer for his actions. As a result, awards for punitive damages are often much larger than awards for compensatory damages, and can place great financial strain on a driver and company. Because of the potential for larger verdicts, plaintiffs’ attorneys are becoming increasingly aggressive in seeking punitive damages claims.

Punitive damages are not recoverable for mere negligence on the part of a driver or company. Instead, a higher level of culpability needs to be proven for punitive damages to be recoverable. This is frequently referred to as “willful and wanton conduct,” which has been defined as a course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard for a person's own safety and the safety of others.

A plaintiff seeking punitive damages against a truck driver will have to establish evidence that the driver’s conduct that caused the accident was “willful and wanton.” As for the trucking company, more is required in that the trucking company generally needs to be shown to be complicit in the actions of the truck driver. Complicity can be established by showing: (1) that a company authorized the driver’s actions; (2) that the driver was unfit and the company was reckless in employing him; (3) that the driver was employed in a managerial capacity and was acting in the scope of the employment; or (4) that the company ratified or approved the driver’s actions.

In attempting to establish complicity so that punitive damages can be claimed against the trucking company, plaintiffs’ attorneys will likely seek evidence establishing that a driver has been violating regulations or company policies for an extended period of time. Plaintiffs’ attorneys will then argue that the company’s failure to monitor the driver and properly enforce their policies to stop such behavior constitutes complicity. Plaintiffs’ attorneys will generally pursue such an argument through extensive discovery on the topics of a company’s safety policies, its enforcement procedures, and its safety history. In some cases, given that the punitive damages claim against a company (rather than the driver) is the more difficult claim, the plaintiff may bring a punitive damages claim against the driver first, allowing him to develop evidence against the company while engaging in discovery regarding the driver’s actions and employment (even if liability for negligence has been admitted).

One example of these tactics would be if a driver was regularly texting while driving, in violation of the Federal Regulations and company policies. In such a case, the plaintiff’s attorney will investigate the extent of the cell phone use and the company’s knowledge of the cell phone use, and then criticize the trucking company for failing to devise and/or enforce a plan for ensuring that its drivers were not texting while driving. The plaintiff’s attorney will argue that by failing to monitor its driver and enforce its policy, the company authorized or ratified the actions and was “complicit” in the truck driver’s actions.

Given this, trucking companies involved in an accident need to be proactive and need to keep an eye out for any information which may make an already negative situation worse. Companies need to be aware of information that plaintiffs’ attorneys will be seeking, such as a driver’s history, previous accidents and safety violations, the company’s investigation of a driver when hired, and the condition of the truck and trailer involved. It is also important to determine whether any aggravating factors may be involved in the accident, such as fatigue, potential hours of service violations, phone use, and drug or alcohol use. Companies should also focus on their safety policies and information regarding the enforcement of policies regarding driver conduct.

Because of the potential impact of a punitive damages claim on a case, companies involved in serious accidents should ensure that attorneys and investigators are used as soon as possible following an accident. Companies need to be prepared for the worst case scenario. The best means of being prepared is by retaining experienced professionals who can quickly evaluate potential issues involved. If aggravating factors are potentially an issue, attorneys will be able to develop a strategy with the company to address such issues in the best manner possible. As we all know, negative facts do not go away. It is crucial that they be identified and dealt with immediately.

Punitive damages claims are becoming more prevalent in trucking litigation. Due to the potential exposure of a punitive damages claim, which could threaten the existence of a trucking company, it is imperative that a company be proactive in determining and addressing threatening facts and information as soon as possible after an accident.