The Roundabout

CLM’s Transportation Community regularly gathers claims, risk, and legal experts in the transportation field to discuss trends in the industry. In this edition, moderator James Foster leads a discussion on virtual vs. in-person mediation, the importance of preserving all evidence, and strategies to counter plaintiffs’ attorneys’ efforts to use anger to sway jury sentiment.

JIM FOSTER: What have you found effective in resolving trucking claims? Are you still mediating virtually or are you pushing for an in-person mediation? Have astronomical demands, excessive life care plans, and litigation funding made it more difficult to settle

GRACEMARIE MENDE: While trucking claims have nuances, claim handling basics can drive resolution faster than any specialization. At all times during the life of a file, identifying every possible outcome, strengths and weaknesses of the facts, and pros and cons of each possible outcome should drive resolution. Venue may dictate the likelihood of excessive verdicts, however, we can combat this by identifying our weaknesses early and making offers ahead of time. While not a hard and fast rule, I consistently caution adjusters and counsel to resist the urge to wait for a demand or request a demand when we have enough information to identify some exposure. Additionally, to address the ever-growing life care plans, future wages, and reasonability, we are expanding our use of focus groups. Whether we engage a vendor to assist or encourage counsel to put out ads on Facebook for someone looking to make cash for the day, getting consistent feedback is imperative to understand the future of a file. We have had to adapt based on this feedback when it comes to how juries evaluate medical bills, and we’ve consistently had positive feedback from surveillance on needs for future care or impact on future pain and suffering.

MISTI RAMIREZ: I am still attending most mediation virtually. While I have always thought in person mediation is most effective, you can’t beat the cost and convenience of virtual mediation. Therefore, we take a case- by-case approach when deciding on either virtual or if we push for in person. There are some cases where you know in-person is absolutely necessary.

Yes, astronomical demands, life care plans, and funding always make it more difficult to settle, and the reason is simply the expectations from all parties that are set by these issues. Again, in these situations many times the only way I find that it can be settled reasonably is with good investigative findings.

CHRISTOPHER VOSSLER: Get a handle on the facts as soon as possible. The good, the bad, and the ugly. Evaluate and vet your driver and know who your opponent is and how she/ he operates. As for remote mediation, it is a mix for us. We push for in-person. The process is much more meaningful if the plaintiff is away from the comfort of her/his family room or kitchen. In terms of success at mediation, I think it all comes back to who you have as a mediator and who you are negotiating with on the other side. I find that having a really good, experienced plaintiff’s lawyer on the other side can increase the chances of success at mediation. Litigation funding, however, has forced us to try a case that would have settled in the absence of that scenario.

JIM FOSTER: Why is it important in trucking cases to immediately preserve all of the evidence, and has this helped to prevent spoliation of evidence claims? Would you recommend the preparation of, and constant contact with, the truck driver and preparation of corporate representatives? In your view, does this help to reduce the likelihood of a Nuclear Verdict?

GRACEMARIE MENDE: I can’t preach about this enough. Preservation across auto accidents is imperative, regardless of the size of the vehicle or the severity of the accident. Witnesses get lost, statements change, assumptions become problematic, however, data is consistent. Vehicle downloads can help determine fault in word-vs.-word accidents, identify fraud and staged accidents, and further defend a driver’s performance. On the defense side, we have an obligation to know our strengths and weaknesses. Juries have consistently taught us, in absence of information, they will speculate and come up with their own version of events. Long gone are the years of, “If we don’t have it, it doesn’t exist.” Whether it’s cellphone forensics, vehicle data, or drive cams, data can make or break your defense.

MISTI RAMIREZ: In our business we do not always have the luxury of immediate preservation and constant contact with the driver and corporate representative as we deal with many “mom and pop” trucking companies. However, when we are handling cases for our larger clients, or have the type of insured that reports their claims on time and is willing to work with us, then yes, preservation and preparation absolutely prevent spoliation and the likelihood of a nuclear verdict.

In any scenario, we always work to maintain communication and build a rapport with the driver and corporate representatives—especially now, when we are seeing more tactics from the plaintiff side to secure default judgments. If we build a relationship with the drivers and companies early, we will not only be able to defend the cases better, but also they will keep us informed when they are contacted and/ or served.

CHRISTOPHER VOSSLER: Crucial physical evidence often disappears quickly. Witnesses’ memories fade, and just days after an event history tends to be re-written in the minds of those who want money. Accessing and preserving all available evidence puts us in the best possible position to evaluate the case and chart a course for resolution. As for the driver, it’s crucial to establish a trusting relationship as soon as possible. Let’s face it, the driver is often your most important witness. I provide him/her with my personal contact information, I stay in touch with him/ her regularly, and I reassure the driver that I and my colleagues are here to get them through this process. Most of them have never been in an accident before or been through litigation. We must keep this in mind. Presenting a prepared, likeable driver can lead the jury to form a favorable impression of the motor carrier. At the very least, it prevents the jury from disliking the company. A prepared and confident corporate representative can deprive the opportunistic plaintiff’s lawyer from obtaining the sound bites that seem to fuel a nuclear verdict.

JIM FOSTER: Why is the communication by, and between, the trucking company, insurance carrier, TPA, and defense attorney important to set an agreed-to resolution or exit strategy and has this collaboration helped to reduce indemnity payments and expenses? Should the initial case evaluation report assessing liability, damages, and further investigation be an important roadmap for resolution of a trucking case? What strategies have you found effective to defuse plaintiffs’ bar’s playbook and “reptile theory” tactics to make the jury angry, leading to what the plaintiffs’ bar hopes is a Nuclear Verdict?

GRACEMARIE MENDE: A case evaluation report is certainly a roadmap, but should not be treated as the Bible. Similar to an adjuster’s evaluation of liability and damages, a case evaluation report is simply a summary of facts and analysis with the information up to a point in time. There are pieces of the report that are destined to change; however, these reports do need to be accurate and confidently provide a valuation and action plan with what’s known to date. While there are plenty of instances where not everyone can agree on the action plan or compromises must be made, communication and transparency is critical for success. We are losing the collaboration game to the plaintiffs’ bar. There are no egos on their side, they share anything and everything they are working on. If we cannot communicate with each other, we will fail to learn from diversity of thought and experiences of our peers.

MISTI RAMIREZ: Communication between all parties on the defense side is the best way to set the case on the course for a reasonable resolution. Everyone in the equation plays a key role, and we all have to be rowing in the same direction to accomplish the shared goal. I have found that when there is proper communication of the strategy and resolution plan, then execution of the plan is smoother and quicker, which leads to a measurable reduction in the overall cost of the claim. I think we are still trying to find the most effective strategies against the reptile theory. While not every jury trial leads to a Nuclear Verdict, even smaller verdicts when there is clearly excessive and fraudulent treatment and billing is discouraging. The defense bar needs to work together on sharing their victories, and information on tactics that have worked in their cases. We also need to heavily focus on early investigation, preservation and preparation. Case by case we need to be aggressive and creative in combating the medical treatment, billing, and scheme between the plaintiff’s counsel and the treating doctors.

CHRISTOPHER VOSSLER: We now tend to be in a better position to evaluate a case early on due to the use of on-board technology and emergency response programs. The sharing of this information by and between the stakeholders, in a meaningful and candid way, can guide counsel, insurers, and motor carriers. Is this a case worthy of pre-suit resolution from the standpoint of the claimant? From the standpoint of the motor carrier and/or insurer? Are the facts so clear and compelling so as to justify a “stand and fight” approach? Good collaboration and communication can lead to earlier, more reasonable settlements at lower cost in terms of defense costs. Early case evaluation reports can be quite useful, provided that there is enough information upon which to make a reasonable and complete evaluation. In my jurisdiction, we may not have access to all the medical bills and reports until four-to-six months after we answered the complaint. In that case, the early case evaluation report does not provide the full damages picture. It should, however, be a good guide regarding the need for discovery depositions, expert depositions, and the viability of dispositive motions. Strategies to diffuse the reptile playbook include witness preparation; motions practice directed to unnecessary and improper allegations in the pleadings; motions in limine; and, finally, taking every opportunity to educate our judges about “the reptile” and the need to focus on the facts and evidence of the case at hand.

Meet the Panel

James A. Foster is a partner at Chicago-based Cassiday Schade LLP. He leads an emergency response team for catastrophic transportation accidents and serves as chair of CLM’s Transportation Community and co-dean of CLM Claims College’s School of Transportation.

Gracemarie Mende is the director of auto claims with Arch Insurance Group overseeing severity, coverage, and complex auto matters. In a prior life, Gracemarie was the head of claims for Watford Insurance Company, a specialty carrier writing auto, GL, professional liability, property, and more, and held various roles within the Mid-Atlantic Claims Region of Chubb NA. She brings over 12 years of experience in multiple lines of business with a specialty in auto and transportation matters. Across the country, Gracemarie has her eye on the ever-changing climate with auto claims and continues to work with partners across all aspects of claims to improve adjusting, performance, evaluating, and early resolution.

Misti Ramirez is the co-founder of EMA Risk Services, along with Erika Anderson. Misti’s 18-year journey in the transportation claims industry has been marked by her dedication to advocating for the interests of her clients. Through her extensive experience, she has honed her skills in navigating complex legal landscapes and understanding the intricate nuances of the transportation defense industry. Her deep-rooted passion for defending trucking companies, drivers, and insurance carriers has been the driving force behind her unwavering advocacy. She is committed to working with her partners in the industry to achieve fair and reasonable outcomes of all claims, both within and outside the realm of litigation.

Christopher Vossler is a trial attorney at Howd and Ludorf, LLC who has litigated high exposure cases in Connecticut for over 35 years. His primary areas of practice are transportation, product liability, and toxic tort litigation. He also defends claims related to sports and recreation.