Georgia May Give More Teeth to Uninsured Motorist Insurance Law

March 23, 2015

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."

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

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.
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


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.
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


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


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.

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

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.

Continue reading "Can electronic truck driver logs be cheated?" »

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.

Continue reading "Will new program protect your family against impaired truck drivers?" »

Good truck drivers sound off about rogue trucking companies pushing them to break the law

October 23, 2013

As a trucking accident personal injury and wrongful death lawyer based in Atlanta, I get a chance to see the trucking safety issues from the point of view of both innocent folks who are run over by tractor trailers and truck drivers who are themselves put at risk by companies that care too little about safety.

A blogging truck driver at Go By Truck News wrote this week that "A rogue motor carrier is a truck driver's worst nightmare."

He wrote that last year, D.A. Landis Trucking, Inc. was charged with conspiracy for ordering drivers to falsify their daily logbooks, maintain two sets of logs, falsely certify accuracy of the lying logs, had dispatchers also knowingly dispatched drivers on trips that were truck accidentto exceed hours-of-service requirements.

That is old news to those of us who have been digging through truck drivers' logs and trip documents and both deposing and interviewing truck drivers.

He also gathered these tweets from tired truck drivers:

– “My dispatcher goes retarded when I tried to tell them I have only 1 hr left to drive.”

– “I have heard this from many dispatchers before. Come on we need you for one more.”

– “When it comes to driving we have 65mph trks n 100mph dispatchers with 26 hrs in a day!”

– “Dispatch was kind enough to plan my first load for 4am central time. My paperwork is invalid and dispatch won’t be in for another 3 hrs.”

Go By Truck News urges truck drivers to check the safety records of any company they consider working for, and to make sure they know the rules, including these:

FMCSR 392.6 Schedules to conform with speed limits. “No motor carrier shall require a run nor permit nor require the operation of any commercial motor vehicle between points in such period of time as would necessitate the commercial vehicle being operated at speed greater than those prescribed by the jurisdictions in or through which the commercial motor vehicle is being operated.”

FMCSR 390.13 Aiding or abetting violations. “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.”

FMCSR 392.3 Ill or fatigued operator. “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.” (This regulation was mentioned in my prior article and worth repeating again here).

He is spot on in stating that, "A good safety director will educate a driver about these regulations, rewarding and not penalizing a driver for declining to take a load if they are too fatigued. A good company with a pattern of safe behavior will give a trucker an opportunity to develop a disciplined sleep routine."

He urges that, "it’s often the employer / load planner / dispatcher pushing the trucker beyond their limits. However, all truckers should take a stand with the Trucker Mike’s 'Mantra' – 'I will NEVER let anyone ‘push’ me, instead I’ll be fired for being SAFE if need be!'”

This afternoon, my friend Steve Gursten in Michigan forwarded this plea he received from a truck driver who wants to drive safely but works for a rogue trucking company that won't allow him to follow the law:

The company that I drive for has me doing illegal runs. I feel if I don't do them my miles will be cut or they will find a way to get rid of me. I need to care for my family. I have been too many companies and they are all the same. The one I'm with now is the worst. I'm looking for other employment and coping the best I can. Is there anyone I can talk to like a whistle blower organization? Or maybe a letter too the sec of transportation? Companies, dispatchers, shippers and receivers need to be held accountable. Until we have better legislation in place to address this, us truckers will always be at the bottom of the hill. And of course we know which direction s##t rolls.


That is right in line with my impression over the years that most truck drivers are just ordinary good guys working hard to make a living, but are too often pushed by employers, motor carriers, shippers, brokers, etc., to make illegal runs on impossible schedules, so that they are often pushed beyond the limits of human endurance.

That is why I generally try to handle these cases by digging for a root cause analysis in the corporate safety management system -- or lack thereof.

I suggested referring this guy to Truckers Justice Center in Minnesota, operated by a lawyer who represents whistle blowing truck drivers nationwide

If your or a family member were run over by a tractor trailer, or if you are a truck driver badly injured in the line of duty, I would be glad to talk with you with no obligation.

Continue reading "Good truck drivers sound off about rogue trucking companies pushing them to break the law" »

What Sleep Deprivation Does to the Brain

October 23, 2013


Sleep deprivation among overworked big rig truck drivers is a well-known safety hazard on the highways. For years there have been political, regulatory and court battles over which driver fatigue and hours-of-service regulations should be implemented.

It is intuitive common sense that sleep deprivation reduces alertness in any job, including one that involves operating an 80,000 pound vehicle across the county on our highways so that dozing off can be a major threat to safety of others. Truck drivers are not different from the rest of us. They just operate bigger machines on the roads.

Now we have a little more science to explain the need for sleep. Researchers at the University of Rochester have found that sleep serves a function of cleaning out toxic waste products produced by cells in the brain that accumulates while we are awake. Those byproducts include beta-amyloid protein, clumps of which form plaques found in the brains of Alzheimer’s patients. Other neurodegenerative disorders, such as Parkinson’s disease or chronic traumatic encephalopathy, are also associated with a backup of too much cell waste in the brain.

Thus, sleep has been called the “ultimate brain washer.”
As we sleep, neurons shrink, widening channels for cerebrospinal fluid to flush out metabolites, cellular waste products, twice as fast. This a network that drains waste from the brain, called the glymphatic system, works by circulating cerebrospinal fluid throughout the brain tissue and flushing waste into the bloodstream, which then carries it to the liver for detoxification and elimination. All of us need sleep to allow this to happen.

When we become chronically sleep derived, gunk builds up in our brains. As most of us have experienced, too little sleep causes slower reactions, worse decision making, mental fog and crankiness. If sleep deprivation persists, it can cause increased risks of migraines, seizures and even death. As the body craves sleep, it will take precedence over our work duties.

In my law practice, I have often discussed fatigue issues with truck drivers. One who stands out in my memory was a trucker from Ohio who reluctantly admitted in deposition that his entire log was falsified to make his trips look good. But the truth was that he had been driving 20 of the previous 24 hours when he hit a family and killed their son. His plan to was to make a quick turnaround in Atlanta and go straight back to Ohio. If he had made it that far, he would have been driving for something like 32 hours out of 40. His employer had no system in place to guard against that. A federal judge stated in an order that the company “turned a blind eye to safety.”

Other interstate truck drivers have told me informally, sometimes over many cups of coffee at a Waffle House or truck stop along the interstate, of being pressured by trucking companies, shipper and brokers to make delivery runs that could not possibly be made without violating hours-of-service rules. Sometimes there are long delays in getting loads, which they are then expected to get across the country by a delivery deadline that is not adjusted to the load time. The entire malfunction of the logistics system is dumped on the weary shoulders of a truck driver who is only human.

That is why in trucking cases we seek the root cause of a crash, which often is in the company’s management system that ignores the body’s need for rest, rather just a tired driver’s actions in the last ten seconds before a crash.

Most of us who have endured long periods of chronic sleep deprivation due to demands of work, parenting or other activities, can relate to the effects of chronic fatigue and sleep deprivation on professional truck drivers. While there is a temptation to take pride in ability to soldier on without adequate sleep, biology ultimately catches up with us all.

Continue reading "What Sleep Deprivation Does to the Brain" »

Congress requires FMCSA to set rules on sleep apnea testing and treatment for truck drivers

October 18, 2013

Despite the political gridlock and recent shutdown of the federal government, Congress has managed to pass legislation to address the danger of sleep apnea in the trucking industry. At this writing, it awaits the President's signature.

House Resolution 3095 is a simple, two-page bill sponsored by two members of Congress sped through Congress. It requires the Federal Motor Carrier Safety Administration to commit to formal rule making on sleep apnea testing and treatment for truckers and other professional drivers.

The trucking industry, predictably enough, estimates that “the impact of screening, diagnosis, and treatment for obstructive sleep apnea could exceed $1 billion annually.” But that is a bargain compared to the carnage on the highways due to drivers of 80,000 pound tractor trailers falling asleep at the wheel.

The downside of this, warns my friend Michael Leizerman in Ohio, is that by requiring the FMCSA to go through full rulemaking and cost-benefit analysis when addressing screening, testing or treatment of sleep apnea, it may delay rather than speed up efforts to address the very real problem of sleep apnea. As Michael pointed out in a recent blog post, the FMCSA has already published the online Fatigue Management Training program and has many simple and inexpensive ideas to make fatigue awareness part of a motor carrier’s safety culture.

Untreated sleep apnea can lead to fatigued driving and is thus a medically disqualifying condition for truck drivers. FMCSR 391.41(b)(5). We have seen too many cases in which our clients were run over by truck drivers who were often good folks but were dangerous behind the wheel due to fatigue, drowsiness and untreated sleep apnea.

As Michael Leizerman has pointed out, this legislation requires the FMCSA to go through a full rule making process which will add years of delay to the implementation of much needed efforts to forcefully address the problem of sleep apnea among truck drivers.

Continue reading "Congress requires FMCSA to set rules on sleep apnea testing and treatment for truck drivers" »