One Wreck, Six Defendants: Why You Have to Look Past the Driver

The instinct after a truck wreck is to think about the man behind the wheel. He's the one who was there. He's the one on the crash report. He is also frequently the least significant defendant in the case, and in Mississippi, stopping with him can cost an injured family most of what they should have recovered.

There's a specific statutory reason for that.

Mississippi does not do joint and several liability

Miss. Code Ann. § 85-5-7(2):

"in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several"

and

"a joint tortfeasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault."

Subsection (4) preserves joint and several liability only for those who "consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it."

You need to understand what that means practically. In a state with joint and several liability, you can sue one solvent defendant and collect the whole judgment. In Mississippi you cannot. Each defendant pays his own allocated share and no more. So if a jury assigns 40 percent to a shipper that loaded a trailer improperly and that shipper was never sued, that 40 percent is gone. It isn't redistributed. Nobody picks it up.

Identifying every responsible party isn't thoroughness for its own sake. It's the difference between a full recovery and a partial one, and it has to happen inside the three-year limitations period under Miss. Code Ann. § 15-1-49.

Who else may be responsible

The motor carrier. Vicariously for the driver, and directly for its own conduct. Federal law is unusually helpful in defining that conduct. 49 C.F.R. § 390.5 defines "motor carrier" to include "a motor carrier's agents, officers and representatives as well as employees responsible for hiring, supervising, training, assigning, or dispatching drivers." The regulations treat those functions as safety functions.

The equipment owner, if it isn't the carrier. Tractors and trailers are often owned by someone other than the operating carrier.

The shipper. At many facilities, shipper personnel load and seal a trailer and the driver never sees inside. The shipper is also expressly named in 49 C.F.R. § 390.6, which prohibits a "motor carrier, shipper, receiver, or transportation intermediary" from coercing a driver into violating the safety regulations.

The broker. Freight brokers select carriers. A broker that tendered a load to a carrier with a poor safety record made a choice, and that choice is examinable. Note that under FMCSA's public data, a broker can see a carrier's Unsafe Driving, Hours-of-Service, Vehicle Maintenance, Controlled Substances and Driver Fitness scores — the Crash Indicator was removed from public view after the FAST Act of 2015, but the rest is right there.

The receiver. Also named in § 390.6. A receiver that penalizes late arrivals is applying pressure to a driver's clock.

A maintenance contractor. Many carriers outsource brake work and inspections. If a shop certified a truck that shouldn't have passed, that's a defendant.

A parts or vehicle manufacturer. In an underride case, a defective or non-compliant rear impact guard. In a tire failure case, the tire.

A governmental entity. Rare, but road design and signage cases exist. Be careful here — if a public entity is involved, the Mississippi Tort Claims Act applies and the deadlines shrink drastically. Miss. Code Ann. § 11-46-11 requires a notice of claim at least 90 days before suit and provides that actions "shall be commenced within one (1) year."

Independent contractor is usually not the escape it sounds like

Carriers frequently argue that a driver was an owner-operator and therefore not their responsibility. The federal regulations anticipated this. 49 C.F.R. § 390.5 defines "employee" to include "a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle)." Whether that resolves a particular case depends on the facts and the theory, but the label on the contract is not the end of the inquiry.

The coverage question

49 C.F.R. § 387.9 requires an interstate for-hire carrier hauling general, non-hazardous freight to carry only $750,000 in public liability coverage. That number hasn't moved since 1980. Hazmat carriers face higher floors — $1 million for oil and most hazardous materials, $5 million for bulk hazardous substances, explosives, and poison-gas materials.

In a catastrophic case the federal minimum is often nowhere near sufficient, which makes the coverage inventory part of the legal strategy rather than an afterthought:

Does the carrier have excess or umbrella coverage above the primary policy
Does the equipment owner have separate coverage
Does the broker or shipper have coverage
What is the injured person's own uninsured and underinsured motorist coverage worth

That last one is often decisive. Under Miss. Code Ann. § 83-11-101, UM coverage is in every Mississippi auto policy unless the named insured rejected it in writing on a Department of Insurance-approved form. Always demand the signed rejection — if it doesn't exist or is defective, the coverage does.

Section 83-11-103(c) folds underinsured coverage in, defining an "uninsured motor vehicle" to include one whose liability limits "are less than the limits applicable to the injured person provided under his uninsured motorist coverage." That's a limits-to-limits comparison, which is why stacking matters. Under Miller v. Allstate Ins. Co., 631 So. 2d 789 (Miss. 1994), Class I insureds, the named insured and resident relatives, may stack UM coverage across policies regardless of which vehicle they occupied. Section 83-11-102 permits a non-stacking election for policies covering four or more vehicles, but the election has to have been made. Every policy in the household gets found and read.

Punitive damages

Mississippi allows punitive damages but on a demanding standard. Miss. Code Ann. § 11-1-65 requires clear and convincing evidence that the defendant "acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud," and requires bifurcation, meaning you go to trial on compensatory damages first, then a separate evidentiary hearing on punitive damages.

Caps run by net worth: $20 million for a defendant worth over $1 billion, scaling down to 2 percent of net worth for a defendant worth $50 million or less.

Two things worth knowing. The caps do not apply where the defendant was convicted of a felony causing the injury or was under the influence of alcohol or non-prescribed drugs. And the punitive damages question is one of the places where the company's own conduct - the hiring file, the maintenance history, the dispatch pressure - can stay in the case even where the admitted-agency rule under Nehi Bottling Co. of Ellisville v. Jefferson, 226 Miss. 586, 84 So. 2d 684 (Miss. 1956) would otherwise limit the direct negligence theories. The scope of that exception is not fully settled in Mississippi.

Getting an out-of-state carrier into a Mississippi court

Most trucking defendants aren't from here. Miss. Code Ann. § 13-3-57, the long-arm statute, reaches any nonresident who "shall commit a tort in whole or in part in this state against a resident or nonresident of this state." A wreck on a Mississippi highway is a tort committed in this state, and the statute expressly protects nonresident plaintiffs too.

Venue comes from Miss. Code Ann. § 11-11-3, which permits suit "in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred," and where that doesn't apply, allows a nonresident defendant to be sued "in the county where the plaintiff resides or is domiciled."

The deadlines, in one place

Personal injury: three years. Miss. Code Ann. § 15-1-49.
Wrongful death: borrows the underlying tort's period. Section 11-7-13 has none of its own; Jenkins v. Pensacola Health Trust, Inc. (Miss. 2006) holds that a wrongful death action "is limited by the statute of limitations applicable to the tort resulting in the wrongful death." For ordinary negligence that's three years, but the answer changes with the underlying tort.
Governmental defendant: 90 days' notice, one year to file. Section 11-46-11.
Records of duty status: six months. 49 C.F.R. § 395.8(k)(1).
Driver vehicle inspection reports: three months. Section 396.11.

The last two are why the investigation can't wait for the limitations period to become interesting.

Working with Coxwell & Associates

Using every legal option isn't a slogan. In Mississippi it's a consequence of § 85-5-7, because liability is several only, anybody you fail to identify is money the client never sees.

So the work runs in parallel from the beginning. Letters of Preservation to everyone who might hold evidence. A coverage inventory that includes the carrier, the equipment owner, the broker, the shipper, and every policy in the client's own household. Discovery aimed at the carrier's federal safety files, because that's where the direct negligence theories live and where the punitive damages question gets answered. And a hard look early at whether a shipper, a broker, a receiver, or a maintenance contractor belongs in the case because adding them at month thirty is a different problem than naming them at month three.

Our firm has been trying cases in Mississippi courts for a long time, including federal MDL work. What has stayed constant is that these cases are won on preparation done early, by people who assumed from the first week that the case was going to trial. As an attorney if you get involved in a case thinking, “I will settle this case,” and you do not work it hard, then you have done a great disservice to the injured client.

If a truck has hurt someone in your family, the most valuable thing you can do is talk to a lawyer who handles these cases before the retention clocks run out. Whether that's our firm or another one matters less than that somebody starts. We hope you will choose Coxwell & Associates, PLLC.

Sources

This article is provided for general informational purposes only and does not constitute legal advice, nor does it create an attorney-client relationship. Every case turns on its own facts. Statistics cited are drawn from the public sources listed and reflect the data years indicated; figures are updated periodically by the issuing agencies. If you have questions about a specific situation, consult a licensed attorney. Coxwell & Associates, PLLC, 500 North State Street, Jackson, Mississippi 39201. Free background information available upon request.