An Interview with Ted Perryman, Principal (and CDL holder) at Roberts Perryman Law Firm on “reptile theory.”
It’s no secret that trucking insurance rates are increasing this year, and many in the transportation industry are questioning why they are facing double-digit insurance rate increases. As cited in our Q3 Trucking Insurance market update, poor profitability in the commercial auto insurance sector is the key driver to rate increases, and auto liability claims are the main reason for lack of profitability. Large jury verdicts against trucking companies involved in accidents have become more common, with two record-breaking awards in 2018 alone.
So why are juries penalizing trucking companies, and in turn, increasing the industry’s insurance rates? It may have something to do with the “reptile theory”, a strategy increasingly used by plaintiff’s attorneys when trying trucking accident cases. We recently spoke with Ted Perryman, principal of Roberts Perryman, a leading law firm representing the interests of the trucking industry, to learn more about the reptile theory approach to trucking litigation and how to defend your company. Ted has more than 30 years of experience as a leading advocate and defense attorney for the trucking industry and holds a Class A license in Missouri.
Jim: What is reptile theory and how is it related to trucking auto liability claims?
Ted: It is an approach to convince a jury that the trucking company and its drivers are a danger to society and more importantly dangerous to the motoring public that must share the roadway. In order to protect the public (and themselves) the jury is asked to send a message to the trucking company that unsafe practices will not be tolerated. The jurors are reminded that the only way to send this message is through a large verdict. The trial is not just about compensating the injured party, but protecting themselves and others (such as their loved ones) from careless trucking companies who place profits over safety. Allegedly, there is a portion of the human brain that is reptilian in nature. As such we have a protective instinct and when asked to protect others and ourselves, it provokes a response in jurors deciding the case. The injured party is not being greedy in asking for money, but has a much bigger goal in mind and that is making our highways safer by requiring trucking companies to follow the rules and adhere to the regulations.
Jim: How is the plaintiff’s bar using reptile theory during litigation against trucking companies?
Ted: We see it used in depositions of the truck driver and safety director. Plaintiff’s attorneys will carefully review every document in the DQ file, HOS logs and maintenance records to find non-compliance with regulations and so-called standards of care. For example, if the DQ file is missing an annual review or if sections of the driver application contains errors, it will be argued as a regulatory violation. Unfortunately, it does not end with document errors or insignificant HOS issues. Today, personal injury lawyers are focusing on training or the lack thereof. Jurors expect continuing training. Disciplinary systems are examined. Safety programs are scrutinized to determine if they are effective. If a driver receives a speeding ticket, what steps does the motor carrier take to re-train him to comply with the law?
Jim: What are trucking defense attorneys doing to combat the use of reptile theory?
Ted: We are taking a two pronged approach. First, the trucking company and driver must be prepared to respond to the reptile theory approach. Preparation is the key. The driver and safety director have to be able to handle questions such as putting “profits over safety” and contentions that “professional” drivers have a higher responsibility. With training and preparation, we can put our best foot forward. Second, as defense attorneys, we must be able to communicate the positive side of trucking. Trucking companies spend millions of dollars every year on safety. Most motor carriers are committed to safety and hiring quality drivers. We have to share this story. Often the reptilian approach attempts to portray even the truck driver as a “victim” of a greedy motor carrier. It is argued that the trucking company sets the driver up for failure. There is an attempt to drive a wedge between the motor carrier and the driver. We have to support our drivers and let them know we are in their corner after an accident. More importantly, we have to let jurors know how difficult it is drive a truck and how drivers dedicate their lives to being safe. The defense attorney has to like truck drivers. We have to make sure our commitment to safety is front and center.
Jim: If facing litigation, what can trucking company owners, risk managers, safety directors, and drivers do to prepare for their defense?
Ted: The most important thing for a driver, owner, safety director to do is to give us their time. When an accident occurs and injuries are claimed, the preparation starts immediately. While investigating the accident, hiring a professional accident reconstructionist and preserving evidence are important, trucking cases are not just about who was at fault. In today’s reptilian climate, we have to examine the culture of the trucking company. We have to spend time with owners, safety directors and drivers in order to tell our story. Often a claim is seen as something the insurance adjuster will “handle.” Not true in the reptile age. The character, culture and processes of the trucking company are on trial. While “who ran the stop sign” remains an issue, for personal injury lawyers using the reptile approach it is secondary. We need to get to know the owner, safety director and driver so we can tell their story. I have yet to meet an owner of a trucking company who has not told me that accidents and claims keep him or her up at night. We have to tell that story and in order to do so, you have to spend time with your clients and understand their business. With reptiles lurking about, you need more than just a snake charmer.
At The Daniel & Henry Company, we encourage our clients to develop a “Culture of Safety” and make the safety of the motoring public and your drivers a high priority. Not only will this lead to fewer accidents—and lower insurance costs—but you will also be in a better position to defend yourself if the reptile theory is used against you and your drivers. If you do find yourself facing litigation, contact your insurance company immediately and cooperate with your assigned defense counsel.
If you need support with your safety or loss control programs, the trucking insurance professionals at The Daniel & Henry Company are here to help you understand what measures you can take to reduce risk and insurance costs. Please contact us today if you have any questions about parking related insurance claims or any other risk management matter. Please contact Roberts Perryman for trucking-related legal matters.