On September 7, 2021, Colorado House Bill 21-1188 took effect, expressly overturning the decision of the Colorado Supreme Court in Ferrer v. Okbamicael, 2017 CO 14M, 390 P.3d 836. Ferrer effectively stripped Coloradans of the ability to hold employers directly responsible for their failures to properly select, train, and supervise dangerous employees, including commercial truck drivers… but as of September 7, 2021, big truck carriers can once again be held accountable for the root causes of commercial truck crashes. As trucking lawyers, we applaud the Colorado House for enacting this bill.
Commercial truck driving, particularly the operation of tractor trailers, tankers, and other large commercial vehicles, is drastically different from driving a car or SUV. For this reason, commercial truck drivers are held to different licensing and operating standards under state and federal law. This includes limiting their hours of operation, requiring them to slow or stop driving in hazardous conditions, and ensuring they are medically fit to drive. Employers of these drivers are also held to higher standards; they must ensure that their drivers are fit and qualified to operate commercial vehicles, and monitor their compliance with hours of service, among other things. Many commercial trucking companies do not take these responsibilities seriously.
Before the 2017 Ferrer decision, an employer who failed to properly train or supervise its drivers, or who had hired an unqualified or dangerous employee, could be held accountable for their inaction when that employee injured someone in a crash. Injured Coloradans could bring a direct claim against the driver for negligence — as well as direct claims against their employer for failing to sufficiently vet, train, and/or supervise that employee. In other words: if you were injured by a commercial truck driver, you could hold the driver accountable for their actions in causing the crash and ensure that the ultimate underlying cause of that crash was exposed and the employer held accountable.
Practically speaking, this meant that during the “discovery” phase of litigation — the time when each party investigates the facts of the case — the injured Coloradan would learn about the history of the driver and the companies’ policies and procedures. If the driver had a history of bad driving before they were hired that the company ignored, such as prior crashes or even a DUI, that would be discoverable. Similarly, whether the company took steps to ensure the driver was properly trained or qualified to operate the often 70- or 80-ton commercial vehicle, or whether or not the employer had properly vetted or supervised the driver would also be exposed. This process worked to bring systemic or widespread issues within many companies to light and was essential to ensuring companies changed their own negligent behavior
Ferrer changed all that. Essentially, once employers admitted that they would be vicariously liable for the actions of their employee — essentially accepting that they were working for them at the time of a crash — direct negligence claims against an employer were barred. With direct negligence claims against the employer no longer permissible, trucking lawyers and Colorado courts were essentially powerless to allow any discovery into the driver’s past bad conduct, their qualifications, or the employer’s conduct in hiring, training, or supervising them. Personnel files, training materials, and company policies and procedures were all deemed “irrelevant” to the happening of the crash and remained hidden. Companies that failed to train their drivers to properly operate multi-ton tanker vehicles; companies that had given a company truck to a driver who did not possess a valid driver’s license; companies whose drivers were on drugs at the time of the crash: all are now able to shield themselves from scrutiny simply by acknowledging that the defendants were working for them at the time of the crash.
With the passage of House Bill 21-1188, however, Ferrer will no longer apply to lawsuits filed after September 7, 2021; consequently, direct negligence claims against employers can once again be brought in conjunction with the direct claims against the drivers. Practically speaking, this means that crash victims and their trucking lawyers will be able to expose and hold employers accountable for the root causes of commercial truck crashes – the systemic failure in vetting, hiring, training, and supervising their drivers – on Colorado roadways. A company that fails to run the proper background checks, train its drivers, or monitor their conduct on the Colorado roads will no longer be able to hide these failures from Colorado juries.
With the passage of House Bill 21-1188, Coloradans injured by commercial truck drivers will be able to hold the drivers and their employers accountable. For more information about this Bill or discuss your case against an interstate or intrastate trucking company, please don’t hesitate to contact us.