Last week, the Austin American Statesman reported the following story:

Under a Texas Supreme Court ruling delivered [last week], a trucker fired for refusing to drive an unsafe vehicle saying he feared for himself and other drivers may have fared better in the courts had he followed his employer’s demand, driven the truck and had an accident.

Trucker Louis Martinez III filed suit for wrongful termination in 2007 after he was fired for refusing to drive a truck carrying a load of steel shelving that was stacked higher than allowed and was improperly secured with broken straps, court records show.

It was the fifth time the company, Safeshred Inc., had asked him to drive an improperly loaded or permitted truck, the Supreme Court acknowledged. After pointing out the safety concerns, Martinez agreed to drive the truck but soon returned after feeling the load shift, the court said, adding that he was fired after refusing an order to return to the road.

The court noted a certain Catch-22 in its reasoning.

Had Martinez chosen to drive the truck and been hurt, he could have sued Safeshred and sought punitive damages based on “the employer’s malicious intent in ordering the illegal act,” the ruling stated.

But by refusing to drive, Martinez never performed the illegal, and potentially dangerous, act he was ordered to perform. “Thus, allowing punitive damages based on the unrealized consequences of the illegal directive would amount to impermissibly punishing the employer for harm the plaintiff never actually endures…

A jury determined that Martinez, whose route for Safeshred included Austin, was improperly fired for refusing to perform an illegal act and awarded him $7,569 in lost wages (he found a new job two months later), $10,000 in mental anguish damages and $200,000 in punitive damages.

A lower appeals court later threw out the $10,000 award, ruling that such damages were not allowed in Martinez’s claim.

On Friday, the Supreme Court also tossed out the $200,000 award, ruling that Martinez did not qualify for punitive damages, either.

To receive punitive damages, Justice Debra Lehrmann wrote for the unanimous court, Martinez had to show he was fired with malice.

The court, however, rejected Martinez’s argument that malice could be shown by Safeshred’s indifference to the risk facing Martinez or the public had he driven the improperly loaded truck.

In cases involving workers terminated for refusing to perform an illegal act, the court said, malice can apply only to the act of firing, such as circulating untrue rumors about employees, interfering with their ability to find a new job or post-firing harassment.

“A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business,” Lehrmann wrote.

The court noted a certain Catch-22 in its reasoning.

Had Martinez chosen to drive the truck and been hurt, he could have sued Safeshred and sought punitive damages based on “the employer’s malicious intent in ordering the illegal act,” the ruling stated.

But by refusing to drive, Martinez never performed the illegal, and potentially dangerous, act he was ordered to perform. “Thus, allowing punitive damages based on the unrealized consequences of the illegal directive would amount to impermissibly punishing the employer for harm the plaintiff never actually endures,” Lehrmann wrote.

Friday’s opinion was based on previous rulings affirming Texas as an employment-at-will state, allowing employers to fire workers “for a good reason, a bad reason, or no reason at all,” the court said. Expanding punitive damages to actions beyond the act of firing an employee “would be an improper expansion” of the employment-at-will doctrine, the court said.

The case is Safeshred v. Martinez, 10-0426.

Very cool.  See their literature here.

Todays Trucking website had an interesting interview with Jerry Moyes, the founder of Swift Transportation:

Rule on Rearview Cameras for Cars Is Delayed for Review – NYTimes.com.

Safety regulators will not complete the details of a rule mandating rearview cameras on all passenger vehicles until the end of the year, Transportation Secretary Ray LaHood told Congressional leaders on Tuesday.

The requirement is intended to protect children and other pedestrians from being hit by vehicles when the drivers are backing up and fail to see them. About 228 deaths occur annually in such cases, the government says. It estimates that using a camera to eliminate the rear blind spot could cut that number roughly in half.

Mr. LaHood said safety regulators had “made significant progress in developing the final rule” but will delay issuing the mandate until later this year. A 2008 law originally called on regulators to set new rear visibility standards for vehicles by Feb. 28, 2011, but Mr. LaHood already had extended the deadline several times. In January, he told Congress that he expected the department to issue the requirement by Feb. 29.

“Further study and data analysis — including of a wider range of vehicles and drivers — is important to ensure the most protective and efficient rule possible,” Mr. LaHood said in a statement issued late Tuesday. “The department remains committed to improving rearview visibility for the nation’s fleet and we expect to complete our work and issue a final rule by Dec. 31, 2012.”

The requirement is intended to protect children and other pedestrians from being hit by vehicles when the drivers are backing up and fail to see them. About 228 deaths occur annually in such cases, the government says. It estimates that using a camera to eliminate the rear blind spot could cut that number roughly in half.

The National Highway Traffic Safety Administration has said that including cameras would add up to $200 to the cost of a vehicle, or a total of $2.7 billion for the auto industry, at least some of which would be passed on to consumers.

The agency’s original proposal called for the requirement to be phased in, with all vehicles having the feature by September 2014. A rearview camera already comes standard on 45 percent of cars and trucks in the current model year.

Among the details that regulators want to resolve are how quickly a camera image must appear on the screen when the driver shifts the vehicle into reverse gear and the size of the area that must be shown.

The American Trucking Association filed a legal challenge to the Transportation Department’s new rules:

The American Trucking Associations, based in Arlington, Virginia, filed a petition today challenging the regulation at the U.S. Court of Appeals in Washington. The group cited the Hobbs Act, a U.S. law that “prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce,” according to the Justice Department’s criminal resources manual.

We cannot allow this rulemaking, which was fueled by changed assumptions and analyses that do not meet the required legal standards, to remain unchallenged.

“We cannot allow this rulemaking, which was fueled by changed assumptions and analyses that do not meet the required legal standards, to remain unchallenged,” Bill Graves, president and chief executive officer of the American Trucking Associations, based in Arlington, Virginia, said in a statement today.

While the final rule maintained an 11-hour limit on truckers’ driving day, instead of shortening it to 10 hours as proposed, the industry objects to a requirement of a 34-hour rest period each week that would require drivers to be off two consecutive nights, said Sean McNally, a spokesman for the trucking group.

Many more fatalities and injuries are caused by speeding than fatigue, making the department’s focus on driving hours misplaced, the group said in its statement. The industry supports regulations that would require installation of speed- limiting devices on trucks, the group said.

Werner Enterprises Inc. (WERN) and C.R. England are among trucking companies that have objected to a government requirement that the weekly time off include the periods between 1 a.m. and 5 a.m. on two consecutive days. Trucking companies describe the rest as a restart because it resets drivers’ weekly limits of time on duty.

The trucking regulator underestimated the cost of the restart requirement, McNally said. It will reduce flexibility and may undermine safety by forcing drivers onto the road during rush hour, he said.

The original proposal by the Federal Motor Carrier Safety Administration required two 12 a.m. to 6 a.m. rest periods during the restart. Groups such as Advocates for Highway and Auto Safety had argued that loopholes in previous rules let drivers average 82 hours of work in seven days when they were supposed to be limited to 60 hours.

The trucking regulator is also facing criticisms from safety groups and the International Brotherhood of Teamsters union for sticking with the 11-hour driving maximum. The government was sued in 2003, 2006 and 2009 for allowing 11-hour driving shifts. The third lawsuit was settled with an agreement that FMCSA would redo the regulation.

There were 3,675 truck-related fatalities in 2010, up 8.7 percent from 3,380 in 2009, according to preliminary data from the National Highway Traffic Safety Administration. As recently as 2006, there were 5,027 fatalities.

Trucking Industry Challenges U.S. on Driver Rest Rules – Bloomberg

The U.S. House of Representatives Transportation and Infrastructure Committee has removed the provision of the proposed transportation bill that would have allowed an increase in truck weight from 80,000 pounds to 97,000 pounds.

Here’s another example of a multi-vehicle accident involving tractor-trailers.  The plaintiff lawyers are bound to be circling.  It’s going to be a reconstruction nightmare.  As we posted a couple of days ago, this is the sort of trucking / transportation accident that begs for investigation by a full defense team.  See our earlier post.

From the Associated Press:

FLORIDA HIGHWAY PILEUP KILLS AT LEAST 10 PEOPLE

A long line of cars and trucks collided one after another early Sunday on a dark Florida highway so shrouded in haze and smoke that drivers were virtually blinded. At least 10 people were killed.

Visibility was so poor that when rescuers first arrived, they could only listen for screams and moans to locate victims, police said. At least 18 people were hurt.

Authorities were still trying to determine what caused the pileup south of Gainesville on Interstate 75, which had been closed for a time because of the mixture of fog and heavy smoke from a brush fire that may have been intentionally set. At least five cars and six tractor-trailers were involved, and some burst into flame.

Photographs of the scene revealed a gruesome aftermath, with twisted, burned-out vehicles scattered across the pavement and smoke still rising above the wreckage. Cars appeared to have smashed into the big rigs and, in one case, a motor home. Some cars were crushed beneath the heavier trucks.

* * *

via The Associated Press: Florida highway pileup kills at least 10 people.

The Safe and Efficient Transportation Act would raise the maximum weight for commercial trucks that routinely travel on highways to 97,000 pounds in Texas and most other states. The current threshold in most places is 80,000 pounds unless the truck has a permit to be overweight.

The article linked to below has a very good discussion of the safety ramifications and the effect of the extra weights on roads and bridges.

via Trucks on federal highways could soon be heavier | Your Commute | News from Fort Worth, ….

There was a fatality accident over the weekend in Idaho involving two small passenger vehicles and four tractor-trailers.  (Yes, the incident made the news in our Austin, Texas newspaper).  Apparently, a man lost control of his car and hit a semi.  The semi then lost control and collided head-on with another semi.  A third tractor-trailer swerved to avoid the accident and hit a fourth semi.  A man in an SUV swerved to avoid the accident and went into a ditch.  One of the tractor-trailer drivers was killed, while two other individuals were hospitalized with injuries.

With accidents involving multiple vehicles, you cannot rely on the official accident report to be accurate or comprehensive.

The accident involved four tractor-trailers and resulted in a fatality and two hospitalized individuals.  As we all know, there is a high likelihood of litigation.

With accidents involving multiple vehicles, you cannot rely on the official accident report to be accurate or comprehensive.  While most law enforcement officers generally do the best they can, they are often understaffed, undertrained, and under-equipped to perform a proper accident investigation.  Further, most municipal police departments and local state police offices do not staff qualified accident reconstructionists, and the officers investigating the accident are not investigating with the thought of civil litigation in mind.   As a result, oftentimes they fail to gather and record pertinent data and information.  They make mistakes.  They misidentify (or completely fail to identify) potential witnesses.  If they create a diagram that is inaccurate or not drawn to scale, their report can greatly distort the points of impact, final resting places, and vehicle positions before and after the accident.  Once they commit this data and these “findings” to their official reports, the mistakes or inaccuracies can be difficult to overcome during discovery and litigation.

On serious accidents, we believe it is very important to have a knowledgable accident reconstruction team on the scene immediately after the accident.

At the minimum, the team should consist of a local adjuster who has working relationships with local law enforcement; an accident reconstructionist; and an attorney.  Such a team can ensure that:

Donald Schneider, the founder of Schneider Transportation Services, has died at the age of 76.

Schneider National, Inc. | Truckload and Transportation Services