Dive Brief:

• The American Trucking Associations (ATA) joined 240 other trade organizations on Wednesday in a letter to Congress, asking lawmakers to enact "temporary and targeted liability relief legislation" related to the COVID-19 pandemic.
• The groups are asking for protection from lawsuits related to COVID-19 as states begin to lift social-distancing measures and allow businesses to reopen. The ATA and the U.S. Chamber of Commerce said the temporary protection will safeguard businesses, nonprofit organizations, educational institutions and healthcare providers from unfair lawsuits. The cosignatories wrote they were concerned that, even as they follow COVID-19 and reopening guidelines, "they will be forced to defend against an onslaught of frivolous lawsuits. The prospect of such litigation and associated exorbitant legal costs are a deterrent to reopening."
• The groups said many U.S. businesses are only one lawsuit away from closing, and are exposed to "maximum economic vulnerability."

Dive Insight:

"As we move from the crisis to recovery, we should be supporting truck drivers and ambulance drivers, not ambulance chasers," said Bill Sullivan, ATA EVP of advocacy, in an email to Transport Dive. "Allowing the plaintiffs bar to use [COVID-19] to open a new front on their assault on the trucking industry is something that cannot be allowed."

Exposure-related lawsuits are the main tactic the lawyers may be developing, according to Bryan Quigley, SVP at the Chamber's Institute for Legal Reform.

"This is where someone sues a business, claiming they got sick because of something else the business could have done to protect that person," Quigley said in an email to Transport Dive. "No one will be spared from the threat of litigation: trucking companies, grocery stores, furniture stores, manufacturers, and others all face potentially crippling lawsuits."

Tort reform is one of the ATA's top federal legislative goals, perhaps second only to a major federal infrastructure bill. One reason is frivolous lawsuits, but another is what ATA President Chris Spear calls "nuclear verdicts" — big jury awards won by trial attorneys, in some cases when the carrier is not at fault.

Spear told ATA members late last year he wanted tort reform in every state, when he attended the ATA's Management and Conference Exhibition (MCE) in October 2019. He declared "war" on nuclear verdicts, and told the press at the event the trial attorneys were "taking food" off the tables of drivers and their families.

A jury award that struck Spear as particularly unfair was a 2014 accident in western Texas: A pickup truck lost control on Interstate 20 and drove into an oncoming tractor-trailer owned by Werner. The Werner driver was going 25 mph under the speed limit due to icy conditions, and even after his truck was hit, the Werner driver was able to bring his rig to a controlled stop, Spear told MCE attendees. A child in the pickup truck was killed. Werner argued in court it could not have avoided the pickup truck, and that the pickup truck lost control and crossed the median.

No traffic citation was given to either party, and even though the Werner truck was struck, a Houston jury awarded the plaintiffs about $89.6 million following a six-week civil trial. Werner appealed the verdict in 2018, and the case is ongoing. Spear did not say the lawsuit was frivolous but noted the size and scope of the award for the plaintiff, saying the Werner driver stayed in his lane.

"Nuclear verdicts are strangling our industry," Spear told the MCE attendees. "I am sick and tired of playing defense while trial lawyers buy jets and yachts at the expense of trucking jobs."

Over time, the nuclear verdicts have caused some insurance companies to exit the trucking market. Zurich and AIG unit Lexington left the market in 2015, according to DC Velocity. Werner took to self-funding its insurance for the first $10 million of each liability. In January, a Werner truck had a severe accident. Werner officials approved $10 million in self-insurance for the accident payment, which reduced its earnings per share by $0.11. The company reported $27.7 million in net income for Q1 2020.

The ATA is among numerous trade groups — including the National Restaurant Association, the American Medical Association, the American Dental Association and the American Association of Post-Acute Care Nursing — concerned about liability as U.S. offices and factories reopen.

"Absent a targeted safe harbor for those that work to follow applicable guidelines, the fear and uncertainty from boundless liability threatens to impede our country’s social and economic recovery," the letter reads. "In the wake of prior crises, Congress came together to pass timely and targeted liability protections with strong bipartisan support because lawmakers understood the acute economic threat of lawsuits at moments of maximum economic vulnerability."

In April, the National Association of Manufacturers asked Congress to protect manufacturers from potential lawsuits brought on by employees. The association suggested in its American Renewal Action Plan that lawmakers "should limit lawsuits in state and federal courts claiming damages for COVID-19 exposure in the workplace" to those with claims that companies knew they were exposing employees to the virus and "acted with reckless indifference or conscious disregard."

Congress is currently holding hearings on such legislation, and has been told the courts will step in to set standards for lawsuits if Congress does not. On May 12, David Vladeck, a law professor at Georgetown University and a former Federal Trade Commission official​, told the Senate Judiciary Committee that "if in fact the federal government remains off the playing field in setting these kinds of standards, then inevitably the courts are going to do it."