HB 19, the trucking litigation reform bill, passed the Senate on May 19 and is set on today’s House Eligible Items List. We expect Chairman Leach to concur in the Senate amendments later this evening. The Senate version makes the following changes in the version that passed the House (changes in italics):
- Requires a defendant to move for bifurcation on or before the later of the 120th day after the defendant’s original answer, or the 30th day after the date a claimant files a pleading adding a claim or cause of action against the defendant movant;
- Provides that a finding in the first phase that the defendant driver was negligent in operating the vehicle may serve as the basis in the second phase for a claim against the employer defendant, such as negligent entrustment, that requires a predicate finding of the driver’s negligence (does not apply to a claimant who has pursued a negligent entrustment claim in the first phase);
- Provides that a defendant’s failure to comply with a standard or regulation is admissible in the first phase only if: (1) the evidence tends to prove that the failure to comply was a proximate cause of the claimant’s injuries; (2) the standard or regulation is specific and governs, or is an element of a duty of care applicable to, the defendant, the defendant’s employee, or the defendant’s property or equipment when any of those is an issue in the action;
- Provides that if the employer defendant stipulates course and scope, the claimant may not in the first phase of a bifurcated trial present evidence on an ordinary negligence claim against the employer defendant, such as negligent entrustment, that requires a finding that the employee was negligence as a predicate to finding the employer negligent in relation to the employee’s operation of the vehicle;
- Allows a party to introduce evidence in the first phase of a bifurcated trial in regard to an employer defendant who is regulated by the Motor Vehicle Safety Improvement Act of 1999 or Chapter 644, Transportation Code. This evidence is limited to whether the employee driver at the time of the accident: (1) was licensed to drive the vehicle, (2) was disqualified from driving the vehicle under 49 CFR §§383.51, 383.52, or 391.15; (3) was subject to an out-of-service order, as defined by 49 CFR §390.5; (4) was driving the vehicle in violation of a license restriction imposed under 49 CFR §383.95 or §522.043, Transportation Code; (5) had received a certificate of driver’s road test from the employer defendant as required by 49 CFR §391.31 or had an equivalent certificate or license as provided by 49 CFR §391.33; (6) was medically certified as physically qualified to operate the vehicle under 49 CFR §391.41 (deleted “or corresponding state law”); (7) was operating the vehicle when prohibited to do so under 49 CFR §§382.201, 383.205, 382.207, or 382.215, 3, or 395.5 or 37 TAC §4.12, as applicable, on the day of the accident; (8) was texting or using a handheld mobile telephone while driving the vehicle in violation of 49 CFR §392.80; (9) provided the employer defendant with an application for employment as required by 49 CFR §391.21(a) if the accident occurred on or before the first anniversary date after the date the employee began employment with the employer defendant; (9) refused to submit to a controlled substance test as required by 49 CFR 383.303, 382.305, 382.307, 382.309, or 383.311 during the two years preceding the date of the accident; and whether the employer defendant: (1) allowed the employee to operate the employer’s commercial vehicle on the day of the accident in violation of 49 CFR §§382.201, 382.205, 382.207, 382.215, 382.701(d), 359.3, or 359.5 or 37 TAC §4.12; (2) had complied with 49 CFR §382.301 in regard to controlled-substance testing of the employee driver if the employee driver was impaired because of the use of a controlled substance at the time of the accident, and the accident occurred on or before the 180th day after the date the employee driver began employment with the employer defendant; (3) had made the investigations and inquiries as provided by 49 CFR §391.23(a) in regard to the employee driver if the accident occurred on or before the first anniversary date after the date the employee driver began employment with the employer defendant; (4) was subject to an out-of-service order, as defined by 49 CFR §390.5.
- Provides that the list of regulations above may not be construed to create a new rule or regulation or subject a person to a rule or regulation not applicable to the person without regard to this section;
- Clarifies that the bill does not preclude the claimant from: (1) bringing a negligence action against the employer for a claim, such as negligent maintenance, that does not require a predicate finding of the employee’s negligence, (2) or a claim for punitive damages arising from the employer’s conduct in relation to the accident, or from presenting evidence on that claim in the second phase;
- Prohibits a court from requiring expert testimony for admission into evidence of a photograph or video of a vehicle or object involved in the accident except as necessary to authenticate the photograph or video, and that a properly authenticated photograph or video is presumed admissible.