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Truck Accident Defenses: How the Trucking Company Fights Back

In 25 years of litigating cases, we’ve never seen a trucking company voluntarily admit fault. Defense lawyers who represent trucking companies are not paid to find the truth. They are paid to defend the trucking company, even from claims where they know the trucking company should settle. Make no mistake about it, if you or a loved one is hurt by a trucking company clients, the trucking company’s defense lawyer is going to fight you.

But why? The simple answer is that any doubt whatsoever that they can cast on your case will give them leverage with which to negotiate. At the end of the day, their goal is to save the trucking company as much money possible or to flat-out beat you.


In this article, we will discuss:

  • How legal defenses work in general
  • Why it is up to you and your attorneys to defeat the trucking company’s arguments
  • Typical arguments and defenses asserted by trucking companies
  • How you and your attorney can prepare for these arguments and defeat them

The Burden is on the Plaintiff to Prove The Trucker / Trucking Company is At Fault

As a plaintiff in a truck accident case, you have the burden of presenting evidence and proving the liability of the trucking company (and/or any additional defendants who are liable for your damages). In a civil court case, the party that caused you to suffer injuries does not owe you compensation for your damages unless you are able to prove to a jury that the party is liable and should be required to compensate you.

The defendant is also able to offer evidence to prove that the defendant was not liable for your injuries or to mitigate their portion of fault. As the plaintiff, the burden is on you to overcome the defenses that the defendant asserts. You need an experienced 18-wheeler accident attorney to prove your case, because the defendant will have very experienced defense attorneys working to disprove your case.

How Defenses Work, Generally

Think back to any court TV show you’ve seen, like Law and Order. In every criminal case portrayed, the prosecutor makes accusations against the alleged criminal, and the criminal’s defense lawyer tries to cast doubt on the accusations of the prosecutor. If a prosecutor says, ” We have any eye witness that puts the accused murderer at the scene,” the defense attorney will argue that the witness is mistaken, unreliable, crazy, etc. We all understand intuitively what is going on here, but to translate the idea into legal terminology, what you’re witnessing is that the prosecutor has to prove certain elements in order for the accused to be found guilty, and the defense lawyer’s job is to disrupt the prosecutors efforts. If the prosecutor cannot prove every one of the elements of their allegations, then the accused murderer walks.

As you might have imagined, the exact same concept applies to truck accident cases. When you accuse someone of hurting you through their carelessness, you must prove the elements of your case with evidence or you lose. So, you can’t simply say, “He ran and stop sign and hurt me,” and win your case. You have to translate your story into the elements of a personal injury case. In legalese, your attorney would argue that the truck driver owed you a legal duty not to inflict harm upon you, he then violated that duty, and his violation of that duty caused you to sustain actual damages. If the trucking company’s defense lawyer can disprove any one of those elements (duty, breach, causation, damages), then you lose your case.

Not a day goes by that our firm isn’t contacted by a prospective client who says something along the lines of, “This is a case you can’t possibly lose.” The truth of the matter is that there is not such thing as a perfectly winnable case. Obviously our track record shows that we are very good at winning, but no case has it’s own natural merit without a lawyer going through the painstaking process of proving all of the elements of the case. So, at it’s most basic level, a legal defense is little more than a defense lawyer’s attempt to cast doubt on the fact that your proved all the elements of your case.

So that’s what defenses are, generally speaking. However, over time, off-the-shelf defense strategies emerge. When you’ve litigated as many of these cases as we have, you can anticipate the type of defense that will be used in any given case. In the next section we will catalog some of these common defenses.

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Common Arguments and Defenses Asserted by Trucking Companies

Comparative Fault: The easiest explanation for the comparative fault defense is to say that it allows the trucking company the opportunity to say that you are also at fault for your accident. If the jury agrees with them a little, you get less compensation. If the jury agrees with them a lot, you get no compensation. It’s Texas’s way of discouraging lawsuits wherein the injured person was also negligent. The specific version of comparative fault used in is called the doctrine of modified comparative fault. Under the doctrine of modified comparative fault, if the plaintiff (you, the injured party) is found to be 51% or more at fault for the accident, the plaintiff is barred from recovering any compensation. In other words, if you get hurt and the jury says you mostly caused your own injuries, it doesn’t matter that they may also think the trucker was partially at fault; you lose. Alternatively, if the jury determines you are partially at fault, but they put less than 51% of fault on you, then the trucking company does have to compensate you, only they must only pay for their portion. Two examples:

  • Example 1: A truck driver runs through a red light and hits your car, but you weren’t wearing a seat belt. If the jury believes that your decision not to wear a seat belt made a minor accident into a major one, they may very well put the majority of fault on you. Let’s imagine that they determine that you are 60% at fault and the trucker is 40% at fault. If your losses are $100,000, you may think that the trucker has to pay for his 40% ($40,000). But since your percentage of fault is greater than his, you get nothing. Again, once your fault is found to be 51% or higher, you lose your case outright.
  • Example 2: Your car gets side swiped by a big truck as you’re both changing lanes into the same lane. Neither of you used your turn signals. Technically, you had the right of way, but, again, you also broke the law by not using your turn signal. Imagine that you sustained $100,000 in losses and a jury says that you are 20% at fault and the trucking company is 80% at fault. Well, you’ve won your case since the jury determined that the truck driver was mostly at fault. However, it’s not all good news. Since the jury put 20% of fault on you, the trucking company doesn’t have to pay the full $100k. They must only pay 80% of $100k ($80,000). Trucking companies often assert that the plaintiff was also negligent and attempt to avoid liability or at least mitigate liability.

    Statute of Limitations: If you’ve been injured in an accident, you must file your claim within a certain time period or your claim is barred. The statute of limitations for personal injury claims in Texas is usually two years from the date of the accident or the date the injury was discovered, whichever is later. The statute of limitations issue can get complicated when you were in an accident, but your injury or resulting condition is not discovered right away.

    • For example, back or neck injuries may not be discovered until months later or may get progressively worse after the accident. The trucking company will often try to argue that the statute of limitations should be calculated based on the date of the accident, and not the date you discovered your resulting medical condition.

    Failure to Mitigate Damages: A plaintiff has a duty to keep their losses to a minimum. This is known as the duty to mitigate damages, and it exists so that no one ever says, “Well, I was injured and the guy that hurt me has deep pockets, so I’m going to get every medical procedure under the sun and run up a huge bill.”

    This means that if you’re injured in an accident, you have a duty to seek medical attention and have your injuries treated promptly so that your condition doesn’t deteriorate, costing the trucking company more than they should have otherwise paid. A plaintiff is not entitled to compensation for injuries he or she allowed to worsen by not getting treated at the time of the injury. You also have a duty to get reasonably priced medical treatment, and only get treatment that you actually need.

    • For example, if you are experiencing back or neck pain, but you don’t go to the doctor until weeks or months after the accident, a trucking company will likely claim that you failed to mitigate your damages. If the doctor determines that the injury could have been prevented or would have been much less serious if you had sought medical treatment much sooner, it could severely damage your case. And you may have been avoiding the doctor for good reason, such as a lack of health insurance. Clearly, there is a fine line between you not realizing how badly you’ve been hurt and you maliciously trying to make your injuries more severe by failing to get timely medical treatment. You can guess how the trucking company will try to make it seem like you were doing the latter by using this defense against you.

    Victim was Intoxicated: If someone is injured in a truck accident and it’s determined that they were driving under the influence of alcohol at the time of the accident, that makes things more complex. Trucking companies will argue that the victim is more at fault than the truck driver because of presence of alcohol in their system. The jury ultimately decides how to interpret this evidence, but it certainly makes things more difficult for the injured party if they were drinking prior to the accident. Where things get bad is when someone had a drink hours before, so there is a little alcohol in their system, and then they get hit by a truck and injured, having nothing to do with intoxication, yet the trucking company lawyer still tries to argue that the alcohol was a factor. The same thing happens with prescription drugs.

    Character Attacks: I can’t tell you how often we’ve seen trucking companies attack the character of an accident victim or their family members in an effort to damage how the jury regards the plaintiff. This plays into the idea that if a jury perceives the victim or their family as bad people, they are less likely to award them the same level of restitution as if they were fully sympathetic and regarded them as good people. This is when it’s important the have an experienced truck accident lawyer handling your case who knows how to fend off these kinds of attacks.

    The Injured Party was Already Sick: Along the same lines, trucking companies will often argue that if an elderly person was injured in an accident, or someone who was already suffering some kind of ongoing condition, the trucking company shouldn’t be held responsible for their injuries the same way as if that person were well.

    The theory they’re operating under here is if an elderly person or someone who is already dealing with a disease or medical condition that might make then more likely to sustain greater injury in a crash, the trucking companies don’t want to pay that extra amount. So, in essence they’re argument is, you’re more at fault for your injuries because of you age or your existing medical conditions. That’s a complex argument to refute, but experienced attorneys will anticipate their defense and be ready for them.

    Road Conditions: After a truck accident, the insurance company of the trucking company might try to argue that the crash was the result of road conditions in an attempt to displace a percentage of fault away from their client. They can argue that the asphalt was bad, the road was abnormally slick, etc. This is just another way the companies attempt to chip away at the percentage of liability they might ultimately incur.

    Fault of Another Vehicle: It might not surprise you that trucking companies will often attempt to blame another unidentified vehicle. If the trucking company can make the jury believe that the truck driver had no option but to swerve into another lane because another car stopped suddenly in the road, or something similar, they can mask their driver’s negligence as a knee-jerk reaction to someone else’s negligence.

    Using Social Media: All too often, a plaintiff undermines their own case with social media. with so much of one’s life online, it can be all too easy to find something that hurts an accident victim’s chances of winning their case. For instance, if someone claims they were seriously injured in a car accident, but minutes after the accident they update their status on Facebook to read “Just got hit. Don’t worry though. I’m ok.” that can pose problems for their case. And a plaintiff might have a difficult time convincing a jury of their injuries if the weekend after the accident the victim posted Instagram selfies of themselves at the bar with their friends, or checking in at their local movie theater to see the new popular film on a day when they stated they were too injured to go to work. It’s all about perception. And if the trucking company can make it look like you’re not telling the truth, regardless of how honest and sincere you may be, your case could be in trouble.

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    How You and Your Attorney Can Prepare for These Arguments and Defeat Them

    An experienced truck accident attorney can help you avoid and defeat common trucking company defenses, therefore, ensuring that you get the maximum value for your truck accident claim. As soon as possible after you have been in a truck accident, contact a truck accident attorney. This will help avoid any problems regarding the statute of limitations. Contacting an attorney sooner, rather than later, will also ensure that you have a stronger case against the trucking company. Trucking companies are required by law to keep numerous business records and other electronic data on file for certain periods of time.

    The quicker your attorney is able to begin an investigation and put the trucking company on notice of your claim, so that none of the records relating to your case are destroyed, the better your case against the trucking company will be. Grossman Law Offices has an in-house investigation team, and upon hiring our firm, we will immediately put the trucking company on notice of your claim and begin building a solid case against the trucking company. Our attorneys can also assist you in obtaining medical treatment promptly in order to avoid giving the trucking company a valid claim for failure to mitigate damages.

    If you have any questions about what you’ve just read, please give us a call. Don’t be in the dark about your legal options. You’re not committing to anything by calling us, we’ll be happy to answer whatever questions you may have. (855) 326-0000 (toll free).


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