It’s every horseman’s nightmare—a trailer accident. There are many causes of these accidents, but in the chaos of attempting to remove the horses and tend to their wounds (or worse), questions that could pave the way for a subrogation opportunity often go unanswered. This post will discuss some of the primary reasons for trailer accidents, and subrogation opportunities that can be explored.
Interstate Hauling-ICC Termination Act
Often driver error is the cause of a trailer accident. When horses are being hauled over state lines, the ICC Termination Act (formerly known as the Carmack Amendment) provides the sole and exclusive remedy to shippers against a carrier for loss or damage to their horses in transit. The horse owner/insurer should be familiar with the strict notice requirements and other limitations of the Act.
Intrastate Hauling-Distracted Driving
When the planned route is within one state, the ICC Termination Act does not apply. Depending on the relationship between the owner and the hauler, claims for negligence, breach of warranty, bailment, or breach of contract may arise. There are new theories of negligence supported by recent events. In January, the United States Department of Transportation issued a nationwide ban on texting by drivers of commercial vehicles. After NTHSA reported almost 6,000 distracted driving deaths in 2008, this is an issue that is getting increasingly more attention. Not coincidentally, distracted driving in equine and livestock hauling is also becoming more prevalent. Mark Cole, managing member of USRider, a large national equine transportation company, has said “From our trailer accident study, we found that distracted driving was one of the primary reasons for trailer incidents.” When a commercial horse hauler is being used, it should be determined whether the driver was talking or texting on his phone while driving. Another area to explore is whether the driver is following company protocol. For example, had he logged more hours than allowed in order to make deadlines? Given the current political climate, such actions may give rise to a negligence claim.
Injuries often occur due to failure to properly load or secure horses in the trailer. Consideration should be given to weight distribution, how the horses were secured/wrapped, and whether the horses were protected from sharp edges. If the injury occurred due to human error, the ICC Termination Act will still apply to interstate hauling, but intrastate routes may provide a common law avenue for recovery. The hauler should be asked if a they use a safety checklist and whether a safety check was performed. An expert witness on the standard of care for loading and securing horses be consulted, as expert testimony will be critical if your case reaches the litigation stage. If the injury is due to some problem with the truck or trailer itself, consideration should be given to a products liability claim.
Defective Truck or Trailer—Products Liability
There have been several defects identified in horse truck and trailers, not always resulting in a product recall. Recently the Horse Transportation Safety Act of 2009 (H.R. 305) was introduced following the overturn of a double-deck truck carrying 59 Belgian draft horses. The accident resulted in the death of 18 of those horses. The bill would prohibit the interstate transport of any horse in a double-deck truck. It could be argued that the double-deck truck has a defective design which makes it unreasonably dangerous for the transport of horses.
Product defects resulting in accidents or fires typically cannot be fully evaluated at the scene of the accident. To protect your claim, take care to adequately document and photograph the accident scene, including the truck and trailer and the area of suspected defect. Preserve the truck and trailer and immediately place the potentially responsible third parties on notice of your claim. As part of your investigation, research product recalls, find out if the truck or trailer is under warranty, determine the maintenance history for the truck and trailer, and request a copy of all maintenance records. If the damage is only to the truck or trailer itself, you may be faced with the economic loss doctrine. The economic loss doctrine is a principle of law that bars tort claims brought to recover purely economic losses – such as lost profits or the cost to repair or replace a defective product. However, if horses or livestock are injured, the economic loss doctrine often will not apply to “other property” aside from the truck or trailer itself.
While the scene of a trailer accident is devastating and chaotic, early documentation of the evidence is critical. Ask questions to find out the who/what/when/where/why surrounding the accident and gather all of the shipping documents, maintenance records and recall information. Once you complete this initial fact gathering, determine if there are legal bars or limitations to recovery. A bit of effort at the outset gives your the best chance for recovery down the road.