Why would a concrete mixer truck flip over on Mayor / Ambassador Andrew Young?

May 11, 2015

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An overturning concrete mixer truck injured former Atlanta Mayor and United Nations Ambassador Andrew Young on Monday afternoon, May 11th, at the corner of Hemphill Avenue and 14th Street, in the trendy West Midtown area just north of the Georgia Tech campus. Young, the visionary 83-year-old icon of civil rights and Atlanta politics, was taken to a hospital as a precaution.

News photos of the scene make it clear to me what probably happened. In loaded cement mixer trucks the center of gravity is high and constantly shifting. Standard truck driver training materials in the ready-mix concrete industry detail the handling characteristics. Concrete industry training materials describe how a loaded cement mixer truck will tip up on two wheels when making a ninety degree turn on level pavement at 12 miles per hour, and will roll over at 16 miles per hour.

The news photos show a typical pattern of a concrete mixer truck overturning in a right turn at an intersection.

A while back, I handled a case in which concrete mixer truck rolled over when making a turn in a level intersection in Dalton, Georgia, landing on a family vehicle much as one landed on and crushed Young’s vehicle. In our case in Dalton, the truck driver had just obtained his CDL a couple of months earlier. (That's the one illustrated above.) His only training specific to operation of a concrete mixer truck consisted of showing him how to work the mixer controls.

At his deposition, I showed the concrete truck driver the standard industry training video. He swore that he had never been trained on any of that, and if he had been trained the accident and injury never would have happened.

As construction activity expands with economic recovery, concrete delivery increases. Too often, concrete truck drivers are not trained with standard industry training materials. Untrained, they do not know better than to take turns at 16 mph and flip over.

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Victims’ Families Need Time to Grieve, Should Report Ambulance Chasers

April 24, 2015

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The families of the Georgia Southern nursing students killed or injured this week when a tractor trailer ran over them on I-16 bear a huge burden of pain and grief. As a parent, I cannot imagine anything worse than the sudden death of a child who has had you wrapped around her finger from the first time you held her in your arms.

The families need time, space, privacy and gracious consideration from others to have space to grieve, each in their own way.

After any such tragedy waves of welcome and unwelcome people descend upon the survivors.

First may come the well-meaning relatives, friends, neighbors and pastors. I can imagine that each family’s home has been deluged with casseroles and that parents’ Sunday School classes have signed up to provide meals for the next month. That loving embrace can help one keep going through the early days.

But then, after the funeral, folks go back to their everyday lives, leaving parents and siblings to sit in the departed child’s bedroom and weep for hours in the dark. Each must process the stages of grief.

Soon come the claims adjusters, feigning sympathy, lulling the parents into complacency, and giving the impression that they will do everything they can to make things right. They are well trained to insinuate themselves into the confidence of grieving families for the calculated purpose of minimizing the cost for the trucking company and its insurers. Think of wolves in sheep’s’ clothing. No matter what they say, they are not on the side of the victims. They are there with one purpose, to save the company as much money as humanly possible.

And then, unfortunately, are the members of my profession who ignore ethics rules against solicitation. These are the proverbial “ambulance chasers” who descend upon the families, either in person or through agents often called “runners” or “cappers.” Defying both State Bar of Georgia ethics rules and Georgia criminal law, they solicit cases from grief-stricken families.
Over the years, clients and others have told me stories of being approached even in hospitals and funeral homes, in the first hours or day after a tragedy, by people who represent themselves as “counselors,” “investigators,” “spiritual advisers” and even clergy, who slip into conversation a question about whether they have a lawyer yet.

One client whose wife was killed when their car was run over by a tractor trailer on an interstate highway, and whose son called me to meet with him at home the week after the funeral, showed me a thick package he had received by Fedex from a law firm in Washington, DC, that apparently solicits victims of major catastrophes all over the country.

Georgia Rule of Professional Conduct 7.3 provides:

A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.”

It also provides:

A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer’s firm, lawyer’s partner, associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, a written communication to a prospective client for the purpose of obtaining professional employment if:
. . . . the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication; or the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer.

This Bar ethics rule further provides that a lawyer shall not compensate anyone for recommending the lawyer’s employment except under a bona fide lawyer referral service approved by the Bar. Thus, paying someone else to solicit cases is a disbarment offense.

While the maximum penalty for a violation of Rule 7.3 is disbarment, it is difficult for the Bar’s general counsel to prosecute those cases because there are seldom people motivated to both file grievances and show up to testify. Even out of state lawyers are theoretically subject to reciprocal discipline in their home state for violation of these rules in Georgia if the Bar has solid evidence upon which to prosecute the case.

Respectable plaintiffs’ personal injury lawyers across the country have almost universally condemned this insidious practice of solicitation of cases through runners. In some states there have been damage suits against lawyers who use “runners” on the basis of violation of Fair Business Practice statutes. In Florida, the Attorney General issued a statewide grand jury report on the fraudulent practices involved with solicitation of injury victims by “runners.” Texas recently passed a law attacking this practice as “barratry.” Another approach could be to make any fee contract obtained through use of runners voidable at any time in order to reduce the financial incentive, but that could be subject to abuse by clients falsely claiming at the time of settlement that a runner was involved in order to extort an innocent lawyer in to giving up an honestly earned fee.

Bottom-feeding, ambulance-chasing lawyers who are not concerned about their professional reputation have felt free to violate this rule. Because people who are solicited either hang up immediately, or are too unsophisticated and naïve to recognize a problem, there has been hardly any way to prosecute the cases. It is very difficult to do that without a sting investigation, which the Bar’s general counsel has not felt equipped to do. The main “runner” case for which there has been bar discipline in recent years came about only when federal agents executed a search warrant at a law office, found the “runner book” and turned it over to the State Bar.

One of my great frustrations as State Bar president in 2011-12 was the difficulty of aggressively prosecuting such violations. Lacking law enforcement resources, the General Counsel’s office was extremely reluctant to organize the kind of sting investigation I knew, as a former prosecutor, could be effective. I appointed a committee to organize training for State Court solicitors, law enforcement and hospital attorneys on how to carry out these investigation. That committee included former FBI agents, State Court solicitors and hospital counsel. While we passed a tweak of lawyer advertising rules, which the Supreme Court later approved, we were unable to get overburdened law enforcement agencies or prosecutors interested in making "runner" cases.

The State Bar needs to enforce the ethical rules and uphold virtue in the legal profession, but it cannot make strong disciplinary cases against such unethical lawyers without evidence required to support a prosecution. Anyone who receives such a solicitation should get the name and number of the caller and then immediately call the State Bar of Georgia Office of General Counsel at (404) 527-8720, and offer to assist in investigation and file a grievance for violation of Rule 7.3.

Sting investigations could be undertaken by law enforcement, but they are reluctant to commit resources for such investigations when the criminal offense is only a misdemeanor. Thus, I eventually came to the conclusion that the only way to get meaningful enforcement is to make it a felony.

In 2014, the Georgia legislature passed Georgia Code Section 33-24-53 to read to somewhat strengthen the law against injury case solicitation as follows:

(a) As used in this Code section, the term: (1) ‘Capper,’ ‘runner,’ or ‘steerer’ means a person who receives a pecuniary benefit from a practitioner or health care service provider, whether directly or indirectly, to solicit, procure, or attempt to procure a client, patient, or customer at the direction or request of, or in cooperation with, a practitioner or health care service provider whose purpose is to obtain benefits under a contract of insurance or to assert a claim against an insured or an insurer for providing services to the client, patient, or customer. Capper, runner, or steerer shall not include: (A) Any insurance company or agent or employee thereof who provides referrals or recommendations to its insureds; or (B) A practitioner or health care service provider who procures clients, patients, or customers through the use of public media or by referrals or recommendations from other practitioners or health care service providers. (2) ‘Practitioner’ means an attorney, health care professional, owner or partial owner of a health care practice or facility, or any person employed or acting on behalf of any of the individuals in this paragraph. (3) ‘Public media’ means telephone directories, professional directories, newspapers and other periodicals, radio and television, billboards, and mailed or electronically transmitted written communications that do not involve in-person contact with a specific prospective client, patient, or customer. (b) Except as provided for in paragraph (5) of subsection (a) of Code Section 50-18-72, it is unlawful for any person in an individual capacity or in a capacity as a law enforcement officer, law enforcement records staff member, wrecker services staff member, emergency staff member, physician, hospital employee, or attorney to solicit, release, or sell any information relating to the parties of a motor vehicle collision for personal financial gain. This subsection shall not apply to mass public media advertisement and solicitation. (c) It is unlawful for: (1) Any person in an individual capacity or in a capacity as a public or private employee or any firm, corporation, partnership, or association to act as a capper, runner, or steerer for any practitioner or health care service provider. This paragraph shall not prohibit an attorney or health care provider from making a referral and receiving compensation as is permitted under applicable professional rules of conduct; and (2) Any practitioner or health care service provider to compensate or give anything of value to a person acting as a capper, runner, or steerer. It is also unlawful for any capper, runner, or steerer to recommend or secure a practitioner’s or health care service provider’s employment by a client, patient, or customer if such practitioner or health care service provider obtains or intends to obtain benefits under a contract of insurance or asserts a claim against an insured or an insurer for providing services to the client, patient, or customer. (d) Any natural person convicted of a violation of this Code section shall, on the first offense, be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment of not less than 30 days and a fine not to exceed $1,000.00. Any natural person convicted of a second or subsequent violation of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not more than ten years and by a fine of not more than $100,000.00 per violation.”

The weakness of this law is that law enforcement agencies are seldom motivated to initiate effective investigations for a misdemeanor first offense, so there is unlikely to ever be a felony second offense to prosecute.

I hope that the families affected by this tragedy will reject those who solicit them in violation of the State Bar and Georgia criminal law prohibitions, do their own due diligence research, and select qualified lawyers to seek justice.

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When Eagles weep. Five Georgia Southern nursing students killed by tractor trailer on I-16

April 23, 2015

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Georgians are shocked and saddened today by a truck crash on I-16 in Bryan County that snuffed out the promising young lives of five nursing students at Georgia Southern University.

The grief is personal for a 2013 Georgia Southern graduate in our office who was a close friend of two of the five girls who were killed. For me as the father of two young adults, I shudder to comprehend their parents’ loss. One friend on the coast described the whole event as "surreal."

The crash happened about 5:45 AM in predawn darkness on Wednesday. The five nursing students were in a sedan and SUV headed east on I-16, going to their last day of clinical training for the semester at St. Joseph's/Candler Hospital in Savannah. Traffic had slowed due to another accident ahead.

A tractor trailer failed to stop and crashed into the stopped traffic, causing a seven vehicle pileup. The Georgia Southern students were in an SUV and a passenger car, both of which were impacted. The passenger car burst into flames.

The tractor trailer was operated by Total Transportation of Mississippi, LLC, based in Richland, MS, a suburb of Jackson. A subsidiary of US Xpress which is based in Chattanooga, Total has unsafe operation score worse than 90% of all motor carriers in the US. On the Federal Motor Carrier Administration website, it lists 748 trucks and 938 drivers, registered to haul general freight in 48 states.

The cause of the truck driver’s inattention is unknown at this time. At that time of morning, fatigue is a likely suspect if he had driven through the night. Federal Motor Carrier Safety Regulations limit interstate truck drivers to driving 11 hours out of a 14 hour shift before a 10 hour break. Even if there is not an hours of service violation, a driver can be impaired by fatigue due to other factors including disruption of circadian rhythms.

Another common possibility is cell phone distraction. Federal Motor Carrier Safety Regulations prohibit use of handheld cell phones during operation of a commercial motor vehicle on the highway. However, at that early hour cell phone distraction may be somewhat less likely. In any event, I hope the SCRT team obtained a search warrant for the data recorded on the phone's SIM card.

I am 99.9% certain that the trucking company had a rapid response team, under the direction of a trucking defense lawyer, at the scene about as soon as ambulances arrived. Before the families of these students learned of their tragic loss, the company probably had at least one retired law enforcement investigator and a defense lawyer there to observe and, if possible, influence the investigation. We have handled cases in which crucial evidence was lost from a crash scene while the state troopers were dealing with hurt people and traffic but the company’s rapid response team was concerned only with minimizing the company’s legal problems.

The promising nursing students whose lives were tragically taken in this crash were:

• Emily Clark, 20, Powder Springs
• Morgan Bass, 20, Leesburg
• Abbie Deloach, 21, Savannah
• Catherine (McKay) Pittman, 21, Alpharetta
• Caitlyn Baggett, 21, Millen

For a parent, it is hard to imagine anything worse than the sudden death of a child. Contrary to the normal order of nature, it is like having a hole punched in the heart.

Two other nursing students, Megan Richards of Loganville and Brittney McDaniel of Reidsville, were injured and transported to a Savannah hospital for treatment. By Thursday afternoon, Richards had been treated and released. No information has been made public on McDaniel’s condition.

The crash scene as portrayed in news reports was strikingly similar to a case we are preparing for trial in the fall in Brunswick. In that incident on I-95, a truck driver was on his cell phone more than 20 minutes up to the time of the crash, talking with someone in Colombia, South America, and did not notice any of the vehicles stopped in the road ahead of him.

In this case, my educated guess is that it will take several months for the Georgia State Patrol Specialized Collision Reconstruction Team (SCRT) to complete all details of investigation and reconstruction. Unless alcohol or drugs turn up in the truck driver’s blood test, I expect these deaths will be prosecuted as five counts of misdemeanor homicide by vehicle, plus whatever other traffic charges may be included, in the State Court of Bryan County at Pembroke. Each misdemeanor count is punishable by up to 12 months incarceration. In that court, Ray Smith is the Solicitor General and Jack Carney is the Judge.

The prosecutor can withhold access to the SCRT investigative report while criminal charges remain pending. Most seasoned prosecutors, however, are willing to share that file with attorneys for victims.

Civil cases arising from this crash are likely to end up in federal court due to diversity of citizenship between plaintiffs (mostly Georgia) and defendants (company in Mississippi, driver unknown). One option would be the U.S. District Court for the Southern District of Georgia in Savannah. Because a couple of the young women were from metro Atlanta, another possibility would be the U.S. District Court for the Northern District of Georgia in Atlanta. If a Georgia resident could be found to credibly share fault, the civil cases could be filed in the county where that Georgia resident resides, avoiding the red tape of federal court.

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Georgia May Give More Teeth to Uninsured Motorist Insurance Law

March 23, 2015

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The Georgia House of Representatives last week passed a bill which, if passed by the Senate and signed by Gov. Deal, would incrementally strengthen the leverage of automobile insurance policyholders who make claims under their “UM” (uninsured / underinsured motorist coverages.

The sponsors of this legislation, House Bill 303, are Rep. Dusty Hightower (from my old hometown of Douglasville), Rep. Alex Atwood (of St. Simons Island, but who I knew at Douglas County High School eons ago), and my other friends, Rep. Ronnie Mabra of Fayetteville, Rep. Tom Weldon of Ringgold, Rep. Trey Kelley of Cedartown (where I tried my first case as a young prosecutor before he was born) and Rep. Stacey Evans of Smyrna. Hats off to them for their efforts.

UM coverage protects a policyholder who is injured due to the negligence of a person who has no liability insurance, or less liability insurance than the injured person has in UM coverage. Unless rejected in writing, new auto insurance policies in Georgia include UM coverage equal to the amount of liability coverage.

Where there are separate policies issued on each vehicle in a household, e.g., State Farm, then typically the UM coverages of all those vehicle can be “stacked” or added together. Where multiple vehicle are on the same policy, e.g., Allstate, the UM coverages cannot be stacked in Georgia policies, but might be if the policies were issued in some other states.

One problem in handling UM claims is that insurance companies too often take the approach that they have nothing to lose by denial, delay and stonewalling. While an insurer in a liability claim has a duty of good faith to its defendant policyholder, and may be held liable for bad faith refusal to settle for liability policy limits, there is no such deterrent to stonewalling in UM claims.

Now the only sanction for denial of a UM claim is a bad faith penalty of up to 25% plus attorney fees, which can only be recovered in a separate lawsuit after winning a judgment against the driver who was at fault. Until then, the UM carrier for the injured person can just sit back and thumb its nose at its policyholder with total impunity.

The proposed amendment to O.C.G.A § 33-7-11, if it becomes law, will make the following incremental changes:
• Damages of the UM policy limit or principal balance of the judgment against the uninsured motorist, whichever is less.
• Bad faith penalty or $25,000 or 25% of the damages, whichever is more.
• Post-judgment interest at the statutory rate from the date of judgment against the uninsured motorist.

The most significant change in this legislation is to impose a $25,000 penalty for bad faith denial. That might be enough to get the attention of some claims departments some of the time. However, having been around the block a few times, I am hopelessly cynical about the good faith of a lot of insurance companies.

The proposed language of the code section after amendment, if it is enacted in its current form, will be:

O.C.G.A § 33-7-11
"(j)(1) If the insurer shall refuse to pay any insured any loss covered by this Code section and the applicable automobile liability or motor vehicle liability policy within 60 days after a written demand has been made by the insured, the insurer shall be liable to the insured for:
(A) Damages equal to the applicable policy limits or the principal balance of the judgment rendered against the uninsured motorist in the original tort action, whichever amount is less;
(B) If the fact finder determines that the insurer's refusal to pay the insured was made in bad faith, a penalty of $25,000.00 or 25 percent of the damages set forth in subparagraph (A) of this paragraph, whichever amount is greater; and
(C) Postjudgment interest on the damages provided in subparagraph (A) of this paragraph pursuant to Code Section 7-4-12 calculated from the date of entry of the judgment against the uninsured motorist in the original tort action.
(2) When an insured has prevailed on a claim pursuant to subparagraph (B) of paragraph 28 (1) of this subsection, the court in its discretion may hold the insurer liable to the insured for reasonable attorney's fees and expenses of litigation for the prosecution of the case under this Code section that were incurred after the sixtieth day of the demand made by the insured.

(3) The amounts set forth in paragraph (1) of this subsection and the question of bad faith, shall be determined in a separate action filed by the insured against the insurer after a judgment has been rendered against the uninsured motorist in the original tort action.

(4) Payment of the amounts provided in paragraph (1) of this subsection shall fully discharge the insurer's obligations under the judgment entered against the uninsured motorist in the original tort action. Payment of the damages provided in subparagraph (A) of paragraph (1) of this subsection shall reduce the principal amount of such judgment. Payment of the postjudgment interest provided in subparagraph (C) of paragraph (1) of this subsection shall reduce the postjudgment interest owed on such judgment."

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Ken Shigley is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, lead author of Georgia Law of Torts: Trial Preparation & Practice, and a double board certified civil trial attorney.

Ships, Trains, Trucks and Big Boxes -- The Complexity of Intermodal Freight

October 24, 2014

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For years, whenever I have visited Savannah, I have loved to sit at the riverfront and watch with fascination the huge ships stream past, with freight containers stacked high like a child’s colorful building blocks, filled with goods shipped to and from distant shores.

On Georgia highways - especially I-16, I-95, I-75 and I-85 - we see a steady stream of those freight containers mounted on tractor trailers from the ports of Savannah and Jacksonville. Just east of downtown Atlanta there is a vast intermodal freight yard, transferring freight containers between trains and trucks.

With the upcoming expansion of the Port of Savannah, intermodal truck traffic across Georgia will greatly increase. Usually the drivers are careful and safe, but when bad things happen the results can be catastrophic.

Most people who see intermodal freight on the highways don’t know what they are seeing. But if you see a tractor trailer with markings from China or Europe, it is an intermodal freight container.

Intermodal freight transport involves the transportation of freight in an intermodal freight container using multiple modes of transportation – ship, rail and truck. The huge operational and economic advantage is that it requires no handling of the freight itself when changing between ships, rail and trucks. The method reduces cargo handling, and so improves security, reduces damage and loss, and allows freight to be transported faster.

Since the 1980s, the use of intermodal freight systems has exploded. Safety of the equipment became a major concerns, as many of the trailers used were essentially worn out trailers that were stripped to the chassis and painted over. There was no reliable way of tracking the origins of trailers when they failed mechanically with disastrous results.

Beginning in 2009, the Federal Motor Carrier Safety Administration has required registration and safety standards for intermodal equipment.

Few lawyers handling trucking cases realize that the rules also are interrelated in a way that treats the intermodal container chassis trailer as a commercial motor vehicle. Most lawyers also do not understand that an intermodal equipment provider can be classified as a statutory employer of a truck driver towing its trailer, and may therefore be classified as a motor carrier.

Few lawyers recognize there is legal authority for treating the tractor and towed trailers as a single unit, with the truck driver as a permissive user of the trailer.

When intermodal tractor trailers are involved in catastrophic crashes, there are sometimes four types of companies involved that may share responsibility if you go far enough up the food chain.

- Motor carrier. Often the trucking companies towing intermodal container chassis trailers are small, fly by night companies, with only the $1 million insurance policy required by the huge intermodal freight companies. We often see such companies that have only 20 or 30 leased trucks and no substantial assets which can easily bankrupt or disappear if faced with a claim over the $1 million insurance policy.
- Intermodal Equipment Provider. Intermodal equipment or chassis are the trailers used in the transfer of goods from a ship or rail car to trucks for final delivery. Companies that provide the container chassis trailers are called Intermodal Equipment Providers. They may be separate from or the same as a VOCC.

- Vessel Operating Common Carrier (VOCC). (1) Holds itself out to the general public to provide transportation by water of passengers or cargo between the United States and a foreign country for compensation. (2) Assumes responsibility for the transportation from the port or point of receipt to the port or point of destination. (3) Uses, for all or part of that transportation, a vessel operating between a port in the United States and a port in a foreign country

- Non Vessel Operating Common Carrier (NVOCC). A shipment consolidator or freight forwarder who does not own any vessel, but functions as a carrier by issuing its own bills of lading or air waybills and assuming responsibility for the shipments.
The VOCC, NVOCC and Intermodal Equipment Provider are often subsidiaries of much larger conglomerates.

When a small trucking company with the minimum insurance coverage allowed for interstate motor carriers is involved in a catastrophic crash on the highway, the whole system hides behind the small trucking company, denying that any of the other entities could possibly have any legal exposure or insurance coverage applicable to the crash. Most folks take those representations at face value.

The challenge is to get past the monkeys to the organ grinders, the much larger companies that set the wheels in motion.

The potential for holding a VOCC, NVOCC or Intermodal Equipment Provider accountable for negligent operation of the tractor and intermodal trailer is not widely understood. The intricacies of the legal relationships lay buried in the fine print of motor carrier and maritime regulations, international treaties, shipping documents and the Federal Register. It requires deep study far beyond what most lawyers have even attempted.

We have dug deeply into this area of law and are currently litigating these issues. We are prepared to represent families severely impacted by catastrophic crashes involving intermodal container chassis trailers towed across the highways of Georgia.

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Inflation Adjustment of Interstate Truck and Bus Insurance Moving Forward

August 7, 2014

Several times recently, I have written about the projected inflation adjustment to minimum liability insurance coverages for interstate commercial vehicles. The process continues.

A few days ago, the Federal Motor Carrier Safety Administration issued a 14-page Report to Congress, concluding the following:

1. Current limits are inadequate in covering catastrophic crashes.

2. Simply adjusting existing limits to adjust for healthcare inflation would require raising limits:

a. From the current $750,000 to $3,188,250 for general tractor-trailers, rather than the $4.2 million that was discussed for inflation adjustment since the $750,000 minimum was first set in 1980.

b. From the current $1 million to $4,251,000 for low-hazard hazmat tractor-trailers, e.g., fuel trucks, rather than $4.4 million that was discussed.

c. From the current $5 million to $21,255,000 for high-hazard hazmat tractor-trailers;

d. From the current $1.5 million to $6,376,500 for small buses; and

e. From the current $5 million to $21,255,000 for large buses.

3. “The Agency has formed a rulemaking team to further evaluate the appropriate level of financial responsibility for the motor carrier industry and has placed this rulemaking among the Agency’s high priority rules.”

I figured there would be some political compromise in the process, and apparently there has been some.

It still would be an advantage to leased “independent contractor” drivers to also require uninsured / underinsured (UM / UIM) coverage on these vehicles, as these driver work in a highly dangerous occupation, often with no medical insurance, no workers compensation insurance and no UM / UIM insurance to protect themselves and their families if they are injured on the job.
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Ken Shigley is a past president of the State Bar of Georgia and currently chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Author of Georgia Law of Torts: Trial Practice & Procedure, he is a board certified civil trial attorney of the National Board of Trial Advocacy. His regional litigation law practice is based in Atlanta, GA.


Pickup driver dies in I-20 early morning crash in DeKalb County, striking tractor trailer stalled in traffic lane

August 1, 2014

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The 30-year-old driver of a pickup truck was killed in predawn darkness at 5:30 AM this morning when his pickup truck he was driving ran into the back of a tractor-trailer that had broken down in the middle of I-20 in DeKalb County, according to news reports. The pickup driver was not identified.

DeKalb police Capt. Stephen Fore told an AJC reporter that the preliminary investigation indicates that the tractor-trailer “experienced problems with the air brakes and came to a stop in one of the travel lanes.

WSB-TV news video shows that the tractor trailer was stopped in a middle lane , not parked in an emergency lane, and without any flares or reflective triangles deployed to warn oncoming drivers.

Media reports do not identify the trucking company. However, news photographs show the name “Triple Crown Services” on the trailer. Based in Fort Wayne, Indiana, Triple Crown Services has reported to the Federal Motor Carrier Safety Administration that it has 740 power units and 699 drivers. It has disclosed $5,000,000 liability insurance coverage with Zurich American Insurance Company.

Triple Crown Services had had notable problems with vehicle maintenance. The Motor Carrier Safety Management System (SMS) reports that Triple Crown has a 78 % bad rating for vehicle maintenance. Anything above 75% is unacceptable. This rating is based on 675 truck inspections in the past 24 months, 320 of which discovered a total of 573 vehicle safety violations. I haven’t gone through all of it, but a quick glance reveals that a lot of their violations involve problems with reflective devices, lights and brakes.

We see crashes with trucks stopped in the roadway too often.

Drivers moving at highway speed cannot be expected to perceive, react and avoid a tractor trailer stopped dead in a traffic lane at night with no warnings when other traffic is moving.
Experts on conspicuity (visibility), human factors and trucking industry standards are often useful in such situations.

Federal Motor Carrier Safety Regulations are very specific about measures required to prevent this very sort of tragedy from happening. 49 CFR 392.22 requires emergency signals for stopped commercial motor vehicles as follows:

(a) Hazard warning signal flashers. Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section. The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b) of this section.

(b) Placement of warning devices--

(b)(1) General rule. Except as provided in paragraph (b) (2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by Sec. 393.95 of this subchapter, in the following manner:

(b)(1)(i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;

(b)(1)(ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and

(b)(1)(iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.

(b)(2) Special rules--(i) Fusees and liquid-burning flares. The driver of a commercial motor vehicle equipped with only fusees or liquid- burning flares shall place a lighted fusee or liquid-burning flare at each of the locations specified in paragraph (b)(1) of this section. There shall be at least one lighted fusee or liquid-burning flare at each of the prescribed locations, as long as the commercial motor vehicle is stopped. Before the stopped commercial motor vehicle is moved, the driver shall extinguish and remove each fusee or liquid- burning flare.

(b)(2)(ii) Daylight hours. Except as provided in paragraph (b)(2)(iii) of this section, during the period lighted lamps are not required, three bidirectional reflective triangles, or three lighted fusees or liquid- burning flares shall be placed as specified in paragraph (b)(1) of this section within a time of 10 minutes. In the event the driver elects to use only fusees or liquid-burning flares in lieu of bidirectional reflective triangles or red flags, the driver must ensure that at least one fusee or liquid-burning flare remains lighted at each of the prescribed locations as long as the commercial motor vehicle is stopped or parked.
. . . .
(b)(2)(v) Divided or one-way roads. If a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a divided or one-way highway, the driver shall place the warning devices required by paragraph (b)(1) of this section, one warning device at a distance of 200 feet and one warning device at a distance of 100 feet in a direction toward approaching traffic in the center of the lane or shoulder occupied by the commercial motor vehicle. He/she shall place one warning device at the traffic side of the commercial motor vehicle within 10 feet of the rear of the commercial motor vehicle.

The reason for such a rule is that drivers approaching at the speed limit often do not perceive that a tractor trailer is sitting still until too late to stop, and then impact with an 80,000 vehicle is much like impact with a cement barrier. Moreover, impact with the side or rear of a stopped tractor trailer with typically weak under-ride bars can easily lead to decapitation of occupants of the striking passenger vehicle.

When a tractor trailer stalls on a freeway and cannot even make it to the emergency lane on the side of the road, questions immediately arise about vehicle maintenance, truck driver impairment due to fatigue or other factors, hours of service compliance, etc.

The Georgia State Patrol Specialized Reconstruction Team (SCRT) should undertake a complete investigation and reconstruction of this crash. But sometimes I am disappointed to find that they have not done so after fatal collisions.

You can bet that the trucking company and its insurer had a rapid response team on the scene by the time the decedent.

When such incidents get into litigation, the challenge is to prove whether an unmarked tractor trailer or big rig had been sitting on the shoulder more than ten minutes. Often this requires an immediate demand for preservation of electronic data from electronic data recorders and satellite communications systems that many trucking companies employ.
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Ken Shigley is a past president of the 45,000 member State Bar of Georgia and currently Chair-Elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Author of Georgia Law of Torts: Trial Preparation & Practice, he is a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.

4 Injured In Atlanta Hotel Airport Shuttle Van Crash

June 17, 2014

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Four people were injured in a multi-vehicle accident on Thursday morning, June 12th, near Hartsfield-Jackson International Airport that involved an airport shuttle bus.

A Hilton Hotel van, a Ford pickup truck and a Ford Focus collided at the intersection of Loop Road and Toffee Terrace around 8:25 a.m., the East Point Fire Department said in a news release.

One man was ejected through the van’s window, authorities said. He was alert and oriented when police reached him, but complained of a broken finger in addition to leg and shoulder pain. There were five passengers total in the van. Two were transported to Grady Memorial Hospital and two were transported to South Fulton Hospital.

Last year, there was an accident between a hotel shuttle bus and a tractor trailer near Hartsfield- Jackson International Airport that injured 18 people. Criminal charges were filed against the owner of the shuttle bus service due to the fact the driver they employed did not have a proper license at the time of the accident.

In the case last year, state officials who regularly inspect airport and hotel shuttle buses said the rear brakes weren’t working properly on the shuttle. Investigators determines that the bus had no brake fluid and tires were worn down to the point that metal ply was showing through the outer rubber.

Hotel shuttle vans fall into a very lightly regulated category. O.C.G.A. § 40-1-100, amended effective July 1, 2013, includes a long list of exemptions from the definition of “motor carrier.” Among the exemptions is “(Hotel passenger or baggage motor vehicles when used exclusively for patrons and employees of such hotel.” O.C.G.A. § 40-1-100 (12)(B)(iv).

Although hotel passenger vans are exempted from motor carrier status in Georgia, safety rules abound, both governmental and nongovernmental, which would be applicable in injury litigation.
Over the years, we have handled numerous passenger van and bus crash cases.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of catastrophic personal injury and wrongful death.

Log truck jackknifes in Summerville, strikes oncoming car on Friday the 13th

June 16, 2014

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In Chattooga County, GA, near where I spent my childhood, a log truck jack knifed Friday and struck an oncoming passenger car. Two women in the car were transported to a hospital in Rome. Fortunately, an infant in the car, apparently secured in an infant seat, appeared to be unharmed.

From the news photo and map, it appear that the crash occurred as the log truck was driving into Summerville from the direction of Menlo while the women in the car were going the opposite direction toward Menlo.

I’ve been down that road hundreds of times. I still pass that way several times a year, most recently on Memorial Day weekend going to tend to family graves on Decoration Sunday at Mentone. My father was principal of Menlo School, back when Menlo had both a red light and a high school. I may be the only lawyer in Georgia who knows most of the words to the old Menlo Alma Mater and fight song.

According to the article by Jason Espy of the Summerville News, the log truck was operated by Triple J Logging. The old hometown newspaper is going high tech. Mr. Espy’s news story is accompanied on the Summerville News website by a 360 degree panoramic photo of the crash scene as several individual photos.

A quick check of the Federal Motor Carrier Safety Administration website reveals that the company based in Summerville has 17 power units and 17 drivers. Of its 24 DOT inspections in the past 24 months, eight ( 33.3% ) resulted in out-of-service violations. Since it is an intrastate carrier, its insurance coverage is not disclosed on the FMCSA website

Most of the safety violations for which Triple J Logging has been written up concern equipment problems. These have included cracked wheel rim, improperly secured cargo, wheel fasteners loose or missing, loose steering column, steering system components missing or worn out, multiple lighting violations, etc.

Records of the Georgia Secretary of State indicate that Triple J Logging, Inc., was incorporated in 2001. The officers are James R. Dawson (CEO & Secretary) and Jason Dawson (CFO). Its registered address is on John Jones Road, over Taylor’s Ridge from Summerville.

Yes, I know modern maps often call it “Taylor Ridge” but having crossed it many times with my parents in the 1950s and 1960s, I still prefer the traditional “Taylor’s Ridge” possessive form. It was named for the colorful Cherokee leader, Richard Taylor.

Jack knifing of a tractor trailer is usually the result of truck driver negligence, such as overacceleration, overbraking, oversteering or speed too fast for condition. Wet pavement is sometimes a factor.

Because Triple J Logging is an intrastate carrier in Georgia, its insurance information is not posted on the FMCSA website. Under Georgia law, it is required to carry at least $100,000 liability insurance. However, many logging companies carry $1,000,000 liability coverage, partly because paper mills to which they deliver logs strongly encourage it.

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death. He spent his childhood living at Mentone, Alabama, and attending school at Menlo, Georgia, in Chattooga County.

Will insurance minimums for interstate trucks and buses increase to cover three decades of inflation?

May 30, 2014

The minimum insurance requirements for interstate general freight trucking have remained unchanged since 1980 while the purchasing power of that amount of money can continually eroded. Such long delays can produce updates that, when they come, can seem abrupt.

Last week, the Federal Motor Carrier Safety Administration (FMCSA) Motor Carrier Safety Advisory Committee (MCSAC) recommended updating the minimums coverage for interstate general freight trucking from $750,000 per collision, which set in 1980. Adjusting this number by the inflation rate for health care costs results in a present day value of $4,422,000.

After lengthy study, on May 20, 2014, the MCSAC voted to recommend the FMCSA begin rule making to change the minimum financial responsibility requirement to $4.422 million, with some phase-in period and with automatic adjustment to the medical CPI every four years. From what I hear, the inflation-adjusted insurance minimums will not likely go into effect until about 2017.

The process is not finished. Proposed regulations have to go through a process of publication and public comment. Large trucking companies, most of which already carry higher amounts of insurance, will likely support some increase in the minimum insurance requirement. So will the insurance industry. Small owner-operators who carry the lowest amounts of insurance and, in my own experience, have the weakest safety management programs, will adamantly oppose it. Reading some of the trucker blogs and tweets, it appears that some of the loudest opposition is likely to be emotional and profane.

The $4.4 million recommendation is based on the rate of medical inflation, as much of impact of catastrophic injury claims is driven by medical expenses, both past and future. If the general rate of inflation under the Consumer Price Index (CPI) since 1980 were applied, the inflation-adjusted figure would be $2,157,815.

There are also different minimum insurance requirements, unchanged since 1985, for low-hazardous carriers such as fuel ($1,000,000), small buses ($1,500,000) and large buses and hazardous materials carriers (both $5,000,000). I expect to see recommendations to adjust all of these for the rate of medical inflation since 1985.

Adjustments to insurance requirements to account for the rate of medical inflation would be most rational. I will join others around the country in advocating for that. I expect the trucking industry to advocate for a number at or below the general inflation rate, which small truckers vehemently oppose any increase. In the end, I would not be surprised to see the FMCSA settle on a number somewhere between the general and medical inflation rate adjustments. Wherever the numbers are set, I expect the final rule will also include a provision for future inflation adjustments so things might not get quite so far out of date going forward.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of catastrophic personal injury and wrongful death.

Can electronic truck driver logs be cheated?

April 9, 2014

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Over the years in my Atlanta based trucking litigation practice, I have had truck drivers tell me – reluctantly in deposition testimony, and sometimes voluntarily in confidential talks over coffee at roadside Waffle Houses – how paper logs of their hours of service are easily fabricated “comic books.”

Often I have gone behind those records to a variety of electronic records of a variety of related transactions to prove that the logs were wildly inaccurate. With tractor trailers now becoming rolling computer networks, I have anticipated that those who are motivated to cheat would find ways to cheat the computers too.

More than three million truck drivers in the United States are facing a regulatory upheaval which will cost the industry an estimates $2 billion and change the ways in which many truck drivers operate. Over the next few years it will become mandatory, by law, for all American truckers to carry an electronic onboard recorder (EOBR) in their vehicles. Although there are a number of EOBR on the market, in order to comply with the incoming federal mandate the device must all be able to track when a truck’s engine is running, record its duty status and ensure that drivers aren’t working for more than 14 consecutive hours, including a maximum of 11 actual driving hours within that window.

The idea is to make the mandatory “Hours of Service” logs that trucking companies are supposed to keep more accurate. The underlying objective is to reduce fatigue related crashes involving truck drivers who have been on the road over the legal amount of hours. But the new systems alone may not be a panacea for all driver fatigue risks.

Of course, a lot of truck drivers resist closer monitoring of their hours of service. I have heard truck drivers say it was nobody’s *#$%@ business” how many hours they work, apparently oblivious to the safety risks inherent in fatigued operation of an 80,000 pound vehicle.

Other trucks acknowledge that the new EOBR system is a step in the right direction and even helps them financially. One veteran trucker was recently quoted in a media report saying, “My gross revenues have been up year over year each year since using the electronic logs. Now is it due to the electronic logs? Not the machine itself, it’s the efficiency that’s been forced onto us by the machine.”

Resistance to change comes from the group of veterans that have been on the road for decades. One veteran trucker explained, “I worked better in a ‘nobody-hassling-me’ kind of environment. I modified my operation to make it work. As much as the libertarian in me says no to mandates, they’re coming. You might as well just wake up, face it, and deal with it.”

Concerns about the devices come from the people pushing for mandates as well as the truck drivers themselves. Truckers are fearful that this new device will be used more like a babysitter than a tool for change. Many are aware that a record which shows a trucker is slightly harder on fuel thanks to the way he revs, idles, and brakes could mean that he won’t get a job in an increasingly competitive market. Fears that trucking companies could misuse their expanded awareness have already been expressed in the courts. In 2011 the Owner Operator Independent Drivers Association (OOIDA) launched a lawsuit against the Federal Motor Carrier Safety Administration (FMCSA), the authority responsible for drafting the new mandate.

OOIDA complained that there was a risk of driver harassment in which carriers might persuade their drivers to get back on the road and complete a run even after they have passed the 11 hour limit that drivers are given to be on the road for a day. The worry was the fatigue, weather conditions, and traffic problems could all be problems that are ignored for the sake of the time sheet. There is also a growing concern about the reliability of the devices that the mandate specifies be in the vehicle.

According to Karen Levy, a PhD candidate in the Department of Sociology at Princeton, many drivers are already experimenting with hacks and methods of tampering. “Truckers are a particularly savvy and motivated bunch,” she says. “Some driver have figured out how to temporarily disconnect certain EOBR models from the truck, or to otherwise block their signals so they can’t record data. Another approach is to drive using multiple driver ID numbers which are sometimes called “ghost logs.”

New products, such as the Safety Pass Pro, enable truck drivers to override speed governors that their companies install to limit them to safe speeds. While the product is sold as a safety feature to facilitate passing or to slow down so that a “road rage” driver can pass the truck, it does not take a genius to understand how this can be used to enable truckers to drive at unsafe speeds.

Some examples of cheats and hacks I have heard about from truckers include: (1) when stuck in traffic, take the truck out of gear and snub out the truck, shifting the log from “driving time” to “off duty not driving”; (2) if an activity is under 5 minutes, the driver can fudge it back into the last duty status, so that a short hop from a truck stop to a terminal might not be recorded as driving time. These types of e-log hacks would not be detected in a surface scan but could raise questions in an in-depth log audit that compares logs to GPS locations.

Today, OOISA says it is not currently planning any further legal challenges against the FMCSA, whose rulemaking is nearly complete. Most observers believe the final rule will be enforceable on American highways by 2015.

Going forward in trucking accident litigation, we face new challenges in looking behind the electronic logs for cheats, hacks and truth.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of catastrophic personal injury and wrongful death.

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Will new program protect your family against impaired truck drivers?

February 25, 2014

In 2003, a 15-year-old girl who had been in Brownies with my daughter was killed when her family’s vehicle was rear-ended by a tractor trailer on an interstate highway. She was riding in the back seat en route to a summer camp. The truck driver was charged with DUI. That event is in the back of my mind whenever a question arises of whether a truck driver may have been impaired at the time of a crash.

To be clear, most interstate truck drivers are highly responsible, safety conscious and would never dream of driving when impaired from alcohol or drugs.

But there are those who use stimulants, sometimes including meth or cocaine, to stay up for long driving hours, or who get behind the wheel after drinking. Others use either prescription or over the counter drugs which can affect attentiveness.

Aware of that risk, the Federal Motor Carrier Safety Regulations require mandatory post-accident alcohol and drug tests whenever anyone is killed or removed from that crash scene by ambulance, and when any vehicle is towed from a wreck with an interstate commercial vehicle and when.

Until now, however, there has not been an easy way to check on whether a truck driver has a history of driving under the influence.

On February 20th, the Federal Motor Carrier Safety Administration published a proposed rule that would establish a database of drivers with a commercial driver’s license (CDL) who have failed or refused to take a drug or alcohol test. This clearinghouse may help improve roadway safety by making it easier to determine whether a truck or bus driver is prohibited from operating a commercial motor vehicle for failing to comply with federal drug and alcohol regulations, including mandatory testing.

Current federal regulations require employers to conduct mandatory pre-employment screening of CDL driver qualifications based upon their driving record. However, there are not been a single federal repository recording positive drug and alcohol tests by CDL holder that employers would be able to search to ensure the driver is able to perform at a job where safety is the number one concern.

“Safety is our highest priority, and we will continue to embrace new tools and opportunities that protect the travelers on our nation's roads," said U.S. Transportation Secretary Anthony Foxx. "Today's proposal will help ensure dangerous drivers stay off the road, while encouraging the employment of the many safe drivers who follow our drug and alcohol requirements."

The proposed rule would give employers access to invaluable information with ease. The new rule also require employers to conduct pre-employment searches through the repository for all new CDL drivers and annual searched on drivers they currently employ.

"We are leveraging technology to create a one-stop verification point to help companies hire drug and alcohol-free drivers," said FMCSA Administrator Anne S. Ferro. "This proposal moves us further down the road toward improving safety for truck and bus companies, commercial drivers and the motoring public everywhere."

Under the proposed regulation, FMCSA-regulated truck and bus companies, Medical Review Officers, Substance Abuse Professionals, and private third-party USDOT drug and alcohol testing laboratories would be required to record information about any driver who:

• Fails a drug and/or alcohol test
• Refuses to submit a drug and/or alcohol test; and
• Successfully completes a substance abuse program and is legally qualified to return to duty.

Private, third-party USDOT drug and alcohol testing laboratories would also be required to report summary information annually so that they can help identify companies that do not have a testing program. To ensure the privacy of the drivers involved, each CDL holder would need to provide their consent before an employer could access the clearinghouse.

Drivers who refuse to provide their testing information could still be employed by the truck or bus company; however, they could not occupy safety-sensitive positions such as operating a commercial motor vehicle.

It is a violation of federal regulations to drive a truck or bus under the influence of a controlled substance or under the influence of alcohol. Federal safety regulations require that truck and bus companies that employ CDL drivers conduct random drug and alcohol testing programs. Carriers must randomly test 10 percent of their CDL drivers for alcohol and 50 percent of their CDL drivers for drugs each year.

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