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鈥檛 have his high beams on, and didn鈥檛 see the cars soon enough to stop.
Ever since that 2016 accident, Harris has had pain in his neck and back. It鈥檚 so persistent, he needs a nightly massage from his girlfriend.
鈥淟iterally every night she has to rub me until I go to sleep,鈥� he said. 鈥淥r I鈥檒l stay up all night.鈥�
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鈥� 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 , 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 鈥�鈥� 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.
鈥淚f this bill stands, most cases [would] make it to phase one, and you鈥檙e done,鈥� Rodriguez said. 鈥淎nd 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鈥檚 not every case. Not even close to it.鈥�
The sponsor of the bill, sRep. Jeff Leach, a Plano Republican, has made this change to legal procedure a priority.
鈥淭here [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鈥檛 do something this session,鈥� Leach said during a committee meeting. He stated a commitment to 鈥渉old companies responsible who need to be held responsible.鈥�
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鈥� 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.
鈥淲hat鈥檚 happening is, you have a fender bender in a parking lot, and these attorneys are [saying] 鈥榊ou鈥檝e clearly negligently retained [the driver],鈥欌�� said Burrus in an interview. He said there is too much leeway 鈥渢o discover all this information about your hiring process, your retention process.鈥�
The of the national trucking lobby, the American Transportation Research Institute, said in a 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 鈥済rowing at a rate and by leaps and bounds [which] we can鈥檛 sustain,鈥� 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 鈥渧ery skeptical鈥� 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鈥檛 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.
鈥楾here Never Has Been A Litigation Crisis鈥�
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鈥檚 research, however, showed those claims were untrue. He and two co-authors 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.
鈥淭here never has been a litigation crisis of any type in the personal injury sector,鈥� Silver said. 鈥淭o the extent that they鈥檙e saying that there is, it鈥檚 fiction.鈥�
For his research, Silver used a now-defunct database called the , 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 , and Gov. Greg Abbott signed, a 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 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.
鈥淲hat I don鈥檛 see this addressing here is the real, root problem, which is the safety on our roads,鈥� Shelley said during testimony on an earlier version of the bill.
Trucks are logging more Texas miles, too. The most recent 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 鈥淒emocrats Versus Republicans鈥�
The major interest groups in this fight 鈥� big business and trial lawyers 鈥� 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 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, .
The Texas Trial Lawyers Association gave much less: about for state and local office in Texas and $54,000 to Republican candidates.
Silver said the battle over tort reform in Texas was 鈥淒emocrats versus Republicans,鈥� and recalled the state鈥檚 long history with these confrontations.
鈥淩epublicans, after defeating Gov. Ann Richards [in 1994], they occupied a position of power,鈥� said Silver. 鈥淭hey were able to push through pretty much whatever they wanted.鈥�
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 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.
鈥淜nowing that,鈥� he said, 鈥渋s a paranoia for me.鈥�
Got a tip? Email Bret Jaspers at bjaspers@kera.org. You can follow Bret on Twitter .
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