Truck safety systems that could save lives go unused. New legal tactic may change that

Sep. 29--Two years after a semi rammed into the back of his pickup in a highway work zone, Dale McWilliams can't stand up straight and has what his wife says is "kind of a hump back." Throbbing pain keeps the 72-year-old Rolla, Missouri, great-grandfather awake most nights.

"My husband, he's ruined for life," Judy McWilliams said. "He had 24 breaks in his ribs, eight breaks in his spine, a lacerated liver, a punctured lung and he had to go through two surgeries on his back."

It was the semi driver's fault. Authorities said he was reading a text when the big rig caused a seven-vehicle pileup on Interstate 70 in Clark County, Illinois, killing a Connecticut man and severely injuring the man's wife, McWilliams and a woman from Overland Park.

Under other circumstances, the victims might have been entitled to a combined $15 million settlement, said Kansas City attorney Jeff Burns, who represented the McWilliamses. But the truck driver didn't work for a big-name freight hauler like Walmart.

Instead, this semi driver's employer was one of the hundreds of thousands of small, thinly capitalized companies that dominate the U.S. trucking industry. Like most of them, Larry Wagner Trucking LLC had just $1 million in liability insurance. Not a lot of assets or a pot of money to go after with a lawsuit.

The insurance didn't cover all the hospital bills, let alone compensate the injured for pain and suffering. The dead man's family received just $26,850, after their lawyer took his cut.

"It makes me mad," Judy McWilliams said. "A million dollars -- that's nothing when you're talking about seven vehicles. I think there were 22 people who filed a claim against this guy, if I understood right."

Highway safety groups and even some within the trucking industry have long advocated, without success, for an increase in the required minimum insurance coverage for large trucks, but it hasn't changed in nearly 40 years.

So crash victims' attorneys often go looking for others they might sue. Shippers and freight brokers are ripe targets on the theory that they ought to have known that the trucking company they hired was unsafe, or would take risks to meet a tight deadline.

Now comes a new class of lawsuits that could end up doing more than providing greater compensation for victims of crashes like these and their families. If successful, the litigation could conceivably force safety improvements that could lead to fewer truck crashes, which killed more than 4,761 people in 2017, a 41 percent increase from the low point in 2009.

Two previously unreported lawsuits filed this year -- one in Kansas and the other in Indiana -- seek to hold truck makers responsible for not installing safety equipment that is already on the market and could prevent or mitigate deadly rear-end crashes in work zones and traffic jams.

One of the first truck product liability suits of its kind was filed over the summer at the federal courthouse in Kansas City, Kansas. It accuses Daimler Trucks of North America and the company's German parent company, Daimler AG, of selling a defective product by not equipping all of its new trucks with the latest safety equipment.

The suit was filed on behalf of the families of five people killed on July 11, 2017, when a truck driver failed to apply his brakes in time to avoid a collision with slow-moving traffic on the Kansas Turnpike near Bonner Springs.

That 2015 Freightliner Cascadia did not have a forward crash warning system with automatic emergency braking, the suit alleges. It could and should have, contends the lawyer representing family members of the three women and two men killed in the fiery wreck.

That equipment is standard on Daimler trucks sold in Europe, where the law requires it. No vehicles are required to have collision mitigation systems in the United States. But the lawsuit contends that because Daimler offers rear-end crash avoidance systems as an option in the U.S., the company is knowingly putting a dangerous product on the market when it sells trucks without that equipment.

Another lawsuit making similar claims against the maker of Volvo semi trucks is now pending in Indiana state court.

It's unclear how many similar lawsuits have been filed, if any. The Star consulted with several attorneys who specialize in truck crash cases. All were unaware of other lawsuits aimed at holding truck makers accountable for failing to equip their semi tractors with collision mitigation systems. Volvo, Daimler and the trade group that represents the makers of large trucks would be in a better position to know, but their representatives did not respond to requests for comment.

Whatever the number, the theory behind the Kansas and Indiana litigation is generating discussion within the legal community and bound to produce more lawsuits. But will that prompt heavy truck makers to do what the federal government has so far refused to make them do -- require that all new trucks on the market come with forward crash avoidance systems as standard equipment?

If so, it would be a rare win for truck safety advocates, who've struck out repeatedly with government regulators.

Feeling cheated

When people are maimed or killed in truck wrecks, the victims and grieving survivors often have good reason to feel cheated. Most truckers don't carry enough insurance to fully compensate people for all the damage that an 80,000-pound semi can do.

Across the trucking industry, $1 million in liability coverage is standard for all but the largest general freight haulers. It's the minimum that most shippers and freight brokers require of truckers who haul their non-hazardous cargo. And therefore it's the maximum that most trucking companies are willing to pay for.

Federal law sets the floor even lower. All trucks over 10,000 pounds are required to have at least $750,000 worth of insurance. While that's sufficient to cover the cost of more than 90 percent of crashes where the trucker is at fault, it falls far short of covering the costs of the worst ones.

Even some in the trucking industry -- the big haulers, mostly -- think the government should raise the minimum liability requirement several fold so crash victims would receive fair compensation, and as a way to make the roads safer. With more money to lose on claims, they say insurance companies would likely insist that their policy holders have the latest safety equipment and only the best drivers.

"Trucking companies should have adequate liability insurance to maintain the public's trust and cover the medical costs associated with truck crash victims," the Trucking Alliance, an association of large, safety-conscious companies, states.

But other industry factions -- the small guys with the bare bones insurance policies -- oppose any change because they worry that higher premiums would put them out of business. Therefore, lawmakers and bureaucrats at the federal Department of Transportation haven't raised the current minimum insurance requirement since it was set in the early 1980s.

That inaction has led to a surge in truck crash-related litigation in recent years. Sometimes, that litigation or the threat of it results in monster settlements in the tens of millions of dollars. Other times, crash victims' lawyers come up empty, because the trucking company involved has too few assets to make filing a lawsuit worthwhile and, when they look around, it doesn't seem like there's anyone else to sue, either.

Until a couple of months ago, that's where things stood for the families of the five Turnpike crash victims.

A dry hole

It was a clear day, around lunch time. Traffic was backed up in the westbound lanes of I-70 near where 174th Street crosses over the highway, two miles east of the toll plaza. Kenny B. Ford had passed signs advising motorists of a possible slowdown, but he didn't hit the Freightliner's brakes until it was too late to avoid a collision.

Teresa J. Butler, 61, of Urbana, Ilinois, was at the rear of the queue, behind the wheel of a 2015 GMC Terrain. At her side was her 63-year-old friend and hospital co-worker Karen L. Kennedy of New Palestine, Indiana. Their SUV was the first vehicle hit.

The truck then rammed the Buick in front of them, killing Topeka residents Sheldon Cohen, an 83-year-old professor emeritus of chemistry at Washburn University, and his wife, Virginia Cohen, 79.

Finally, Ricardo Mireles, 38 and also from Topeka, died when the truck pushed his Ford Taurus under the trailer of another semi and all three vehicles caught fire.

The Kansas Highway Patrol spent close to a year investigating the wreck, producing a report said to be hundreds of pages long. It provided the basis for Ford's still-pending prosecution in Leavenworth County on five counts of misdemeanor motor vehicular homicide.

Lawyers for the victims' surviving family members spent almost that amount of time conducting their own probe. Its aim: learn whether Ford's employer, Colorado-based Indian Creek Express, had any insurance beyond the $1 million in liability coverage the company had reported to the Federal Motor Carrier Safety Administration.

When that turned out to be a dry hole, they drilled further, looking for other pools of insurance money from other sources and came up empty again.

"We looked at every possibility, but we couldn't find any additional insurance,'" said Gary Patterson, a Topeka attorney who represented Mireles' two grade school-aged children.

Suing Indian Creek Express was a consideration, but the lawyers for the four families gave up once they evaluated the company's financial situation.

"We probably could have, had we wanted to litigate against them," Patterson said. "But they would have just declared bankruptcy and we would have been left with a million dollars and an expensive lawsuit...so we decided to punt and just take the million."

That doesn't go far when it's split four or five ways after paying attorneys fees that can range from 30 to 40 percent. The amount would have been the same even if one of the victims survived with horrible injuries and racked up millions of dollars in medical bills.

"What this case has taught me is that anybody operating a truck in commerce should have $5 million in coverage," said Chad Beckett, who represented Butler's family.

That's about how much would be required by a proposed law introduced in Congress in July. Companion legislation filed that same month would require that all new large trucks be equipped with forward crash warning systems with automatic emergency braking.

Politically, neither bill has much chance of passage right now, which is why the courts are seen as having the most promise for forcing change. A couple of weeks before those bills were announced with great fanfare in Washington, Dallas lawyer Leon Russell quietly sued the company that manufactured the truck involved in the Turnpike wreck.

Russell specializes in wrongful death and catastrophic injury lawsuits that involve product defects and negligent conduct. Court records show that he's sued car makers whose customers were injured or killed because the seats in their vehicles were poorly designed, or their roll bars failed, or their seat belts didn't work.

Russell is also known for suing truck manufacturers for having defective equipment or are missing safety features. Someone in Kansas thought he might be just the right guy to take another stab at the Turnpike crash case.

"A Kansas lawyer called and asked it I would be interested in taking a look at it," Russell said. "There's not many lawyers out there doing forward crash warning, automatic emergency braking cases. That's a fairly new area."

Safety systems optional

Forward crash warning systems have been available on large trucks for about 20 years. Automatic braking systems in various forms have been around for about a decade. The European Union has required both systems on all new models sold there since 2015.

But in the United States, the equipment is optional. The federal government hasn't set a standard for the technology in passenger vehicles or large trucks, let alone made it mandatory on new trucks as the National Transportation Safety Board has urged at least 10 times since the late 1990s.

Last year, Freightliner announced that its collision mitigation systems are standard equipment on all new Cascadia models. But customers can choose to have the gadgetry removed at the time of purchase and save $1,500 on a $150,000 semi.

In the industry, that's known as a "delete credit."

At the time Indian Creek bought the truck that killed five people on the Turnpike, the OnGuard collision avoidance system was a suggested option on new Cascadias. The suit claims that because Daimler was aware that the equipment could save lives, it was negligent by not installing the equipment on all its trucks.

It was a financially driven business decision that put the public at risk, Russell said in a phone interview.

"Freightliner, they've got the largest share of the heavy truck market," Russell said. "They certainly have the economies of scale to add this feature to all their trucks."

Daimler has so far not responded to the lawsuit through court filings. A company spokeswoman did not respond to The Star's requests for comment on the allegations or to discuss how many other lawsuits like it they might be facing.

However, Volvo Group North America did offer a forceful defense in the Indiana lawsuit, which alleged that the company had a profit motive in making forward crash warning and automatic emergency braking optional on its new trucks. The company said it was under no legal obligation to install the safety equipment on its trucks.

"The Volvo Vehicle was in conformity with the generally recognized state of art applicable to the safety of it at the time it was designed, manufactured, labeled, and sold," the company's lawyers said in court documents.

Accordingly, the company said, it is entitled to the presumption that its truck was not defective and "complied with all applicable codes, standards, regulations, or specifications established" by law.

The Star reported last year on a crash outside West Terre Haute, Indiana, that is at the center of the Volvo litigation. Again, it was a rear-end collision that occurred when a truck approaching a traffic backup failed to stop in time. The truck driver took his eyes off the road to look at a video screen seconds before he crashed into the rear of a Toyota Celica, killing all three of its occupants. The truck driver also died on that Saturday before Mother's Day in 2017.

Green Transportation Co. of Holland, Michigan, had just $1 million in liability coverage as compensation for the deaths of Stephanie Swaim, her boyfriend, Brian Lee, and his son Aaron Lee. So, thinking he had few other options, the attorney for Swaim's estate filed a lawsuit in December of 2017 against the car-hauling company whose truck broke down and caused the backup preceding the crash.

Volvo was one of several defendants added to the suit this April. Lawyer James O. McDonald said the company had a duty to equip all its trucks with the latest safety technology, rather than offer it as an upgrade.

"We liken it to Ford Motor Co. selling a car without brakes and saying you can buy the brakes, but they are optional," he said.

Anyone who does that, he said, is asking for a lawsuit.

Neither he nor Russell can predict what the final outcome of these cases will be. But if they are successful, the ramifications could be huge, says an attorney who initially represented a family in the Turnpike crash with regard to the insurance claim.

"When it comes to safety and distracted drivers, it shouldn't be an option, it should be put on every truck," Gary Patterson said. "It's going to take a couple of lawsuits, successful lawsuits, before they realize they are going to have to start doing that."

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