Tractor Trailers. 18 wheelers. They are all over the highways, sometimes, literally all over the highways. The biggest vehicles on the road, and they often drive like they know it.
We call these the “bullies” of the highway. When an accident happens with a big rig, it is never small. The injuries are severe, catastrophic or fatal, but usually only to occupants of the other vehicle.
The investigation, begins, the facts are sorted out and claims are made for the injuries and damages caused. It is then that you find out: The driver was not an “employee” of the trucking company, but a small time, one man band, “independent contractor”.
He/she had no insurance, and the trucking company is denying responsibility for his/her actions.
What are your rights? Who do you look to for answers?
You need an attorney experienced in big trucking cases. You need a trial attorney.
You need a Certified Specialist in Injury/Death Law. Just because the driver was not an employee does not mean the company is not legally liable for the harm. Recent developments the law make the issue of agency in the trucking industry a delicate issue.
A determination of whether a truck driver was acting as an agent will significantly impact any case and, therefore, it is important in making this determination.
Often, courts use a six-part test in determining whether a driver was an agent of the trucking company:
(1) the right to control the manner in which the work was performed;
(2) the right to discharge;
(3) the method of payment;
(4) who provides the tools, materials, or equipment;
(5) the level of skill required to perform the work; and
(6) who deducts or pays for insurance, social security, and taxes on the employees behalf.
In recent years the central focus has been on the control that is exerted over the entity and the amount of control that is exerted while a driver is on the road transporting the materials, rather than focusing on the amount of control exerted at other times in the relationship.
A recent case out of Illinois is helpful (as trucking cases occur on federal highways, cases from almost any state can be helpful).
In the case, a truck driver was found to be an agent based on the amount of control of the company, as well as the type of business that was being conducted.
However, nine months later, another court found that the focus on the issue of control should be limited to the amount of control exerted while the driver is on the road, transporting the load, and not other matters.
Which of these is the better authority for a case in Arizona?
That has not yet been decided by the Arizona courts. How much “Control” is enough? Again, an issue that has yet to be decided in Arizona.
Is control over most or all aspects of the trip enough, or do claimants need to prove control over the conduct of the driver at the time of the collision?
Insurance companies and defense companies believe that the trucking companies should virtually be in the seat, holding the wheel and pressing the pedal.
Clearly, this is not the law in any state, but still begs the question as to how much control you need to prove to get to the insurance policy of the trucking company, as opposed to the lowly driver.
Despite the vagueness in this area of the law, it is clear that the courts still focus on the issue of “control”. The more you can show control by the trucking company over the actions or conduct of the driver, the more likely you can prove that the driver was an agent, and get to the policy or assets of the trucking company.
Christopher J. Zachar is the Owner and Managing Principal of Zachar Law Firm, P.C. in Phoenix, Arizona.
He regularly represents injured people and families against truck drivers and trucking companies in federal and state courts.
He is an Arizona Certified Specialist in Injury and Death Law, he is consistently selected as an Arizona SuperLawyer and has the highest (AV) rating by Martindale-Hubbell. Mr. Zachar can be reached at Czachar@zacharlaw.com or (602) 494-4800. Or you can get in touch at http://zacharassociates.com.