Thomas Harris was on his way to work one morning, before the sun rose, when he got into an automobile accident.
Other cars had slowed to a stop behind him on State Highway 183 in Fort Worth. An 18-wheeler hit them, creating a five-vehicle wreck. The driver of the 18-wheeler didn’t have his high beams on, and didn’t see the cars soon enough to stop.
Ever since that 2016 accident, Harris has had pain in his neck and back. It’s so persistent, he needs a nightly massage from his girlfriend.
“Literally every night she has to rub me until I go to sleep,” he said. “Or I’ll stay up all night.”
Harris now works at a construction firm, and his boss looks out for him, warning him away from the heaviest lifting and encouraging him to take breaks.
Harris, a resident of North Richland Hills, won a settlement after suing the trucking company. Harris’ lawyer, Victor Rodriguez, said he proved the employer never trained the driver to use his brights in nighttime conditions, even though he only worked the overnight shift. The lack of training supported a negligence argument against the company and helped Harris win.
A non-disclosure agreement forbids Harris from naming the company or the amount of any settlement.
His case, however, would likely have played out much differently under a new proposal in the Texas Legislature that would limit evidence allowed at a trial, potentially making cases harder to win and trucking companies less willing to settle.
Under the proposed HouseBill19, evidence of negligence in training, hiring or supervising drivers would no longer be allowed in the first phase of a new, two-phase trial process. Only evidence of improper truck maintenance and driver fault could be used in phase one.
Evidence of improper training could be shown in the second phase, but only if the driver was first found to be negligent. And in the second phase, plaintiffs like Harris would have to prove gross negligence, a much higher legal standard that requires proving a company “proceeds with conscious indifference” to safety.
Proving gross negligence also requires a unanimous jury verdict, whereas the lower threshold only needs 10 out of 12 jurors.
Rodriguez says the bill de-incentivizes safety.
“If this bill stands, most cases [would] make it to phase one, and you’re done,” Rodriguez said. “And the jury has never heard any unsafe, negligent conduct about what the trucking company has done, other than if there was an unsafe truck or not, which, that’s not every case. Not even close to it.”
The sponsor of the bill, sRep. Jeff Leach, a Plano Republican, has made this change to legal procedure a priority.
“There [are] folks who have very, very real concerns about what will happen and the impacts on our economy and on our roadways if we don’t do something this session,” Leach said during a committee meeting. He stated a commitment to “hold companies responsible who need to be held responsible.”
A spokesperson for Leach said he was unavailable for an interview.
Unfair Lawsuits?
Trucking and insurance companies are backing the measure, saying their industry is beset by unfair lawsuits.
Plaintiffs’ attorneys are dragging out the evidence-gathering process in order to find any bit of information they can use, said David D.J. Burrus, a Houston attorney who represents trucking companies.
“What’s happening is, you have a fender bender in a parking lot, and these attorneys are [saying] ‘You’ve clearly negligently retained [the driver],’” said Burrus in an interview. He said there is too much leeway “to discover all this information about your hiring process, your retention process.”
The research arm of the national trucking lobby, the American Transportation Research Institute, said in a report last year large settlement awards are going up nationally.
Proponents of HB 19 argue settlements and lawsuits have, in turn, increased insurance rates for trucking companies and that those high rates push small firms out of business.
Any company that has a commercial policy is seeing that policy “growing at a rate and by leaps and bounds [which] we can’t sustain,” according to John Esparza, president of the Texas Trucking Association.
Experts say the claim is difficult to verify.
Tom Baker, an insurance expert at the University of Pennsylvania Carey Law School, cautioned to be “very skeptical” about claims that higher premiums are due to lawsuits. The insurance market has its own business cycle, and at the moment, there are higher premiums for all kinds of insurance, he said.
Daniel Schwarcz at the University of Minnesota Law School said regulators either do not collect data on insurance rates or don’t make the information publicly available.
In an email, the Texas Department of Insurance said the limited data it collects on commercial automobile insurance covers all vehicles owned or used by a business, not just trucks, making it it hard to draw conclusions about trends in premiums for commercial trucks.
‘There Never Has Been A Litigation Crisis’
When it comes to making it tougher to sue industries, Texas has been here before. In the early 2000s, Texas tightened the rules for suing over medical malpractice. Advocates of tort reform made similar arguments about high insurance premiums driving doctors out of the state, according to University of Texas Law School professor Charles Silver.
Silver’s research, however, showed those claims were untrue. He and two co-authors found no significant changes in the frequency of medical malpractice claims, payouts, defense costs, or jury verdicts in the years before the 2003 reforms. And the number of physicians in the state rose both before and after the change.
“There never has been a litigation crisis of any type in the personal injury sector,” Silver said. “To the extent that they’re saying that there is, it’s fiction.”
For his research, Silver used a now-defunct database called the Texas Closed Claims Database, in which the state insurance department reported data on paid claims from lawsuits. The data covered medical professional insurance, commercial automobile insurance, and others.
The department last published the database for 2012, after the Texas legislature passed, and Gov. Greg Abbott signed, a 2015 measure repealing several data reporting requirements for insurance companies.
Texas And Highway Safety
State lawmakers are considering the legislation as Texas stands out among large states in the number of per capita fatal crashes involving large trucks. A recent Federal Motor Carrier Safety Administration report shows Texas had 20.52 fatal crashes involving a large truck per million people in 2018.
The FMCSA analysis also shows Texas with more fatal crashes involving large trucks than California, a more populous state.
The crash data has consumer advocates like Adrian Shelley of Public Citizen concerned about HB 19.
“What I don’t see this addressing here is the real, root problem, which is the safety on our roads,” Shelley said during testimony on an earlier version of the bill.
Trucks are logging more Texas miles, too. The most recent roadway inventory report from the Texas Department of Transportation says daily vehicle miles of travel by trucks in the state rose 6.5% in 2018 and inched even higher in 2019.
A Battle Featuring “Democrats Versus Republicans”
The major interest groups in this fight — big business and trial lawyers — have historically donated significant money to political campaigns. The recently concluded 2020 election cycle was no different.
The political action committee of the business group Texans for Lawsuit Reform gave Leach’s campaign over $1 million during the 2020 election cycle. In all, TLR donated over $10 million to Republicans and just under $1 million to Democratic candidates, according to followthemoney.org.
The Texas Trial Lawyers Association gave much less: about $2 million to Democratic candidates for state and local office in Texas and $54,000 to Republican candidates.
Silver said the battle over tort reform in Texas was “Democrats versus Republicans,” and recalled the state’s long history with these confrontations.
“Republicans, after defeating Gov. Ann Richards [in 1994], they occupied a position of power,” said Silver. “They were able to push through pretty much whatever they wanted.”
The fate of HB 19 depends on whether Leach can summon enough votes in the Texas House, where his party has a 16-seat majority. A companion bill in the Senate was referred to the Senate transportation committee.
For Thomas Harris, the motorist who was injured in an accident involving an 18-wheeler, driving can still be nerve-wracking. He said his case showed him there are trucking companies out there that might not properly train their drivers.
“Knowing that,” he said, “is a paranoia for me.”
Got a tip? Email Bret Jaspers at bjaspers@kera.org. You can follow Bret on Twitter @bretjaspers.
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