Over the past decade, trucking companies in Texas courts have been subject to a significant rise in large verdicts due to techniques from plaintiffs’ attorneys, including the reptile theory, which highlight unrelated safety violations by the company and driver, instead of focusing on the underlying incident. This tactic is used to inflame the jury and divert their attention from the facts of the case to receive an unsubstantiated excess award. During the recently concluded legislative session, House Bill 19 was introduced to counter these tactics and help level the playing field for trucking companies by reducing the number of such verdicts. While HB 19 underwent significant amendments on the House and Senate floors, and lost some of its strongest components, the bill is a step in the right direction and creates more fairness in litigation for trucking companies.
Trials can be Bifurcated into Phases, Separating Compensatory Damages and Exemplary Damages.
The first major change created by HB 19 is that a defendant may move for a bifurcated trial separating the determinations of compensatory and exemplary damages into two different phases. Specifically, in Phase 1 the jury will only determine compensatory damages—all economic and noneconomic damages—and in Phase 2 a jury will determine exemplary damages. Phase 1 will focus on the underlying negligence and comparative fault between drivers. A jury must find the employee driver was negligent before moving on to Phase 2 and assessing exemplary damages against the employer. While the act requires the court to provide for a bifurcated trial when requested, and a court does not have discretion to deny bifurcation, there is a time restraint, as the defendant must move for a bifurcated trial within 120 days after filing its original answer.
Plaintiffs are Limited in Phase 1 to Only Presenting Evidence of Safety Violations that Caused or are Related to the Underlying Incident.
One common tactic utilized by plaintiffs’ attorneys in trucking litigation is presenting evidence of all prior safety violations of a trucking company and its drivers to inflate verdicts by enraging juries and portraying defendants as bad and unsafe actors. HB 19 helps address this issue by limiting plaintiffs in Phase 1 to presenting only violations that caused the underlying injury. Accordingly, a plaintiff’s award for compensatory damages will no longer be based on a driver or company’s safety violations that are unrelated to the underlying incident. This should help prevent unreasonable damages awards in Phase 1 of the bifurcated trial; however, it has no effect on Phase 2, and plaintiffs can present evidence of unrelated safety violations during the exemplary damages stage of trial.
Plaintiffs Are Limited in what Claims they can Assert against an Employer Defendant in Phase 1.
HB 19 created additional limitations on plaintiffs by limiting them to a respondent superior cause of action based on the employee’s underlying negligence during Phase 1 of trial. In order to receive this limitation, the employer defendant must admit that they employed the driver and that the driver was in the course and scope of employment at the time of the accident. The employer driver has the same amount of time to make these admissions—120 days— as it does to move for a bifurcated trial and should include the admissions in the motion for a bifurcated trial.
While this is seemingly a significant protection for trucking companies, HB 19 has some exceptions that weaken this provision. Specifically, in Phase 1 of a bifurcated trial, a plaintiff can still produce evidence of the following to show negligent entrustment, which they are otherwise prohibited from admitting into evidence in Phase 1:
- Whether the driver was licensed to drive at the time of the accident;
- Whether the driver was disqualified from driving at the time of the accident;
- Whether the driver was subject to an out-of-service order at the time of the accident;
- Whether the driver was medically certified as physically qualified to operate a vehicle;
- Whether the driver was using a phone at the time of the accident;
- Whether the driver provided the employer with a proper application if, when the accident occurred, the driver was employed for less than a year;
- Whether the driver refused to submit to an alcohol and controlled substance test;
- Whether the employer allowed the driver to drive on the day of the accident;
- Evidence of some alcohol and controlled substance testing violations by the employer;
- Whether the employer properly investigated the driver if, when the accident occurred, the driver had been employed for less than a year; and
- Whether the employer was subject to an out of service order.
Furthermore, this provision does not limit a plaintiff’s right to bring claims in Phase 1 based on an employer’s own negligence which are not based solely on the negligence of the employee, such as negligent maintenance.
Photographic and Video Evidence of Vehicles Involved in an Accident are Admissible.
Currently, admission of photographs and videos of vehicles involved in an accident is left up to the judge’s discretion. However, this evidence is often crucial to preventing exploding verdicts, as photographs that show minor damage to vehicles undercut a plaintiff’s description of the severity of an accident and their focus on unrelated safety violations. HB 19 helps combat this issue and promotes the admission of such photographs and video by stating they are presumed admissible if authenticated and do not require expert testimony to be admitted. This evidence is admissible even if it refutes a party’s assertion regarding the severity of the accident. Accordingly, trucking companies will have a much easier time admitting such evidence which can show the accident was not as severe as a plaintiff claims.
While there is still a further need for changes in trucking litigation to prevent unsubstantiated excess verdicts, HB 19 is a step in the right direction to resolve some of the issues that face trucking companies during litigation. These changes do not take place until September 1, 2021, and the impact of such legislation is yet to be seen.
 Tex. H.B. 19, 87th Leg., R.S. (2021).