I usually sue both.
As a general rule, the trucking company is liable for accidents caused by the truck driver if, at the time, he was acting “within the scope of his employment.”
Many years ago, I had a lawsuit against a mailman who caused an accident with his mail delivery truck. But he wasn’t on his route when it happened – he was buying a pumpkin for his girlfriend.
Because he was not “within the scope of his employment” – no one had told him to get the pumpkin, and he obviously wasn’t doing anything to fulfill his duties or to advance the business of the post office – the judge decided the U.S. Postal Service did not have to pay for the accident. (The mailman’s personal insurance covered the loss.)
There are all kinds of fine points to this, but, basically, so long as the driver is acting on behalf of the company, or is doing what he was told to do, the company will also be liable for what he does.
Simple as this rule is, it does not prevent confusion. Insurance lawyers argue that the driver’s acts were not authorized by the company; that he was merely acting for his own benefit; that he was an “independent contractor” and not an employee; that the driver did not have the “authority” to choose the route he chose.
And there have traditionally been jurors who don’t see the justice in being asked to award damages against the employer for the employee’s mistake.
So a good lawyer has to develop his own checklists to address; which include:
• asking for a copy of the driver’s paycheck and company practices manual in discovery, to establish his relationship with the company;
• asking for instructions given the driver by the company relative to his route, to establish that he was not acting on his own;
• asking for copies of company training materials to establish that the driver was either doing what he was supposed to consistent with company policy or, in the alternative, acting as a “rogue”.
• Reminding the jury that companies can only act through their employees, which is why the employer is responsible for what the employee does “on the job”.
If you are like most people, you might wonder “Why does this matter? It’s all covered by insurance anyway, isn’t it?”
The answer to the second question is yes – the insurance covers the driver and the company. But I – and a lot of other attorneys – think that juries will award more damages against a corporation than against an individual.
So if the jury thinks the damages are going to be paid ultimately by the trucking company, rather than just the driver, the award will probably be more.
I have been a lawyer over 30 years. I’m used to dealing with good arguments, and also with baloney. If you’ve been hurt by a truck, talk with an experienced Cincinnati Truck Accident Lawyer about the case. Call me, William Strubbe, at 513-621-4775.
Because all situations are different, and because there may be other facts pertaining to your case that I don’t know about, you should not rely on this answer for legal advice. I am not your attorney, and no lawyer client relationship has been formed.