Posted On: September 26, 2009

Truck driver distraction is target of petition to Federal Motor Carrier Safety Administration

A prominent highway safety organization, Advocates for Highway and Auto Safety, has petitioned the Federal Motor Carrier Safety Administration to evaluate risks posed by drivers of commercial vehicles using electronic devices and to then issue regulations to limit such distractions.

Electronic distractions that cause concern include cell phones, text messaging, CB radios, email, on-board computers and navigation devices.

Recent studies have shown that driving while talking on a cell phone -- even hands free -- increases accident risk equivalent to driving with 0.08 blood alcohol, the threshold for DUI, and that texting while driving increases accident risk 23 times.

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Posted On: September 24, 2009

7 injured when speeding truck crashed on I-24 in Dade County, Georgia

While I am an Atlanta trucking trial attorney now, many years ago I was a child at Mentone, Alabama, frequently trekking to Chattanooga with my parents. Our usual route was through Dade County, separated from the rest of Georgia by Lookout Mountain,(historically known as "the independent state of Dade"). While our route was on old two-lane U.S. 11, I was fascinated by the early stages of construction of I-59.

Recently on the short section of I-24 from Chattanooga to Nashville that dips down into Dade County, Georgia, a truck going too fast for rainy conditions lost control, hit another vehicle. Both vehicles crossed into the eastbound lanes and struck two more vehicles. Seven seven people were injured, and some were transported to Erlanger Hospital in Chattanooga. There is no word on their conditions.

The report from WRCH-TV in Chattanooga doesn't specify what type of truck was involved. If it was a commercial truck governed by the Federal Motor Carrier Safety Regulations, then 49 C.F.R. § 392.14 requires that "extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . rain . .. "

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Posted On: September 23, 2009

Trucking safety agency nominee grilled in Senate hearing

As a trucking accident trial attorney in Atlanta, I see all the time how regulatory decisions in Washington impact safety on the roads throughout the U.S. A Senate committee hearing today on the nomination of Ann Ferro as administrator of the Federal Motor Carrier Safety Administration brought that into focus.

Sen. Frank Lautenberg, chair of the surface transportation subcommittee, told President Obama's nominee for FMCSA director nominee Ann Ferro, at a Senate confirmation hearing, that the motor carrier administration is "an agency in dire need of reform," and that "given your ties, Ms. Ferro, to the trucking industry ... I am concerned about your ability to take the bold action we need to keep Americans safe."

In her opening statement, Ferro talked the talked about reform of trucking safety regulation in her opening statement:

"Uncompensated time, compensation by the mile or load, professional drivers classified as laborers – these are all aspects of a supply-chain model that rewards squeezing transportation costs out of the equation; factors that shift the cost onto the driving public and professional driver."
"Furthermore, the agency must get on with considering a universal electronic on board recorder rule, improving the Hours of Service rule, rolling out tougher standards for entry, implementing effective identification and sanctioning high risk carriers."

The committee did not vote on Ferro's nomination. Additional questions will be submitted to the nominee, who will have until Tuesday to respond.

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Posted On: September 23, 2009

Nominee for FMCSA chief blasted in New York Times

One of the things I do as a trucking trial attorney in Atlanta, Georgia, is monitor what's happening with the Federal Motor Carrier Safety Administration in Washington, DC. Ultimately the political and bureaucratic decisions about truck safety regulations in Washington affect the safety of your family and mine on the highways of Georgia.

To say that it's unusual for the New York Times to take an editorial position on trucking safety is quite and understatement. But it happened today.

Here are excepts from the editorial:

President Obama made a peculiar choice in June when he nominated Anne Ferro, a major trucking industry lobbyist in Maryland, to lead the agency that oversees truck safety. On its face, Ms. Ferro’s selection violates the spirit of Mr. Obama’s decision to limit the ability of lobbyists to enter government as high officials and influence policy from within.

The order bars hiring anyone who lobbied an executive-branch agency within the past two years, which technically means federally registered lobbyists. But it is hard to see how naming a trucking industry insider like Ms. Ferro, the president of the Maryland affiliate of the American Trucking Associations, to lead the Federal Motor Carrier Safety Administration squares with Mr. Obama’s promise of “a clean break” from business as usual.

. . .

Ms. Ferro’s record on road safety includes some pluses. As the chief of Maryland’s motor vehicle agency, from 1997 to 2003, she implemented a graduated licensing system for new drivers and an ignition interlock program for drunken drivers.

But her more relevant experience these past six years was in supporting the trucking industry’s efforts to thwart and defeat policies and programs needed to protect the public and promote the health and safety of truck drivers. Just in January, Ms. Ferro co-authored a letter to The Baltimore Sun essentially defending the Bush administration’s loosening of regulations on drivers’ schedules and driver fatigue in defiance of considerable evidence of danger and two court decisions.

Ms. Ferro’s record, we believe, is disqualifying. With more than 5,000 fatal truck crashes a year, Americans cannot afford conflicts of interest in the running of their truck safety agency.

A friend who is heavily involved in advocacy for highway safety tells me that several truck safety advocates and organizations are actively opposing her nomination. Several of them will be at the Senate confirmation hearing this afternoon. He tells me she is a really nice lady and says all the right things. But safety advocates have heard all the right things for 20 years with no follow-up. When they met with her and Secretary LaHood, there was no specific discussion by the Secretary LaHood about how he will direct her to will bring change to the FMCSA.

More later.

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Posted On: September 21, 2009

$50 million verdict today for trucking brain injury case in California

This afternoon in San Jose, California, a jury returned a verdict against two truck drivers, Gordon Trucking, and the state of California for nearly $50,000,000.00 ($49 million plus).

My friend Tommy Malone of Atlanta and Randy Scarlett of San Francisco represented Drew Bianche, a young man who had just graduated from college with a 4.0 GPA and had been accepted to medical school. Drew suffered a severe traumatic brain injury when two tractor trailers approaching from opposite directions on an unreasonably dangerous and narrow roadway sideswiped each other causing one of the trucks to the hit car Drew was riding in as a passenger.

The verdict was all compensatory damages, no punitive damages. Five percent of fault was allocated to the state, and 95% to the truckers.

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Posted On: September 19, 2009

Tree trimming bucket truck kills 3 members of family in Walker County, Georgia

Crashes involving specialty trucks of various sorts -- crane trucks, concrete mixer trucks, dump trucks, etc. -- are often part of my trucking accident personal injury and wrongful death law practice in Georgia. Each type of specialty truck involves somewhat different issues.

Yesterday in Walker County -- near where I attended school for six years in Chattooga County -- 3 members of one family were killed when a bucket truck used for tree trimming crossed the center line of Highway 136 and struck two vehicles.

The three family members were airlifted to Erlanger Hospital in Chattanooga but did not survive. They were Anthony Thomas Hixson Jr., 36., of LaFayette, his 13 year old daughter, and his brother-in-law, James Eugene Whitaker, 45, of Ringgold.

The bucket truck belonged to Townsend Tree Service, an Indiana based company that has a large fleet of bucket trucks used for tree-trimming, clearance and vegetation management services for power and communication lines, pipelines and roadways. Townsend's registered agent for service of process in Georgia is two blocks from my office.

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Posted On: September 17, 2009

Trucking companies must require employees to follow the rules

As an Atlanta trucking safety lawyer, I find trucking companies trying to disown their driver's safety violations.

The Federal Motor Carrier Safety Regulations, which are intended to protect safety of the public, require trucking companies to see to it that their employees to obey the driver regulations.

49 C.F.R. § 390.11 requires: “Whenever . . . a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.”

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Posted On: September 16, 2009

Atlanta school bus runs over & kills kindergartner

Handling bus and truck liability cases in my Atlanta law practice, I have seen way too many kids killed or seriously injured in bus accidents. Recently I had represented several of the young men who were on the Bluffton University baseball team bus that crashed in Atlanta.

Yesterday in Atlanta, a school bus driver lost track of a kindergarten student who had exited the bus, and ran over the child. According to an article by Alexis Stevens in the Atlanta Journal Constitution, the Usher Elementary 5-year-old pupil was one of six kids to get off at the bus stop, located near the intersection of Vanderbilt Court and Hobart Drive, just north of I-20.

The bus driver has been charged with second degree vehicular homicide and failure to use due regard for school bus driver safety procedure, according to the Atlanta Police Department.

While Georgia law provides broad immunity to public school systems, there is liability to the extent of insurance coverage for negligence in operation of school buses. The immunity issues do not apply to privately operated school buses.

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Posted On: September 15, 2009

Role of punitive damage claims in commercial truck crash cases in Georgia

As an Atlanta, Georgia attorney handling many commercial truck accident cases, I am often asked about how important punitive damage claims are in these cases.

In Georgia, punitive damages are allowed "only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences."

Punitive damages are capped at $250,000 in collision cases in Georgia unless there was an intent to harm, which the evidence would rarely if ever support.

I personally handled a trucking wrongful death and personal injury case where the court allowed a punitive damage claim against a trucking company due to evidence that the company "turned a blind eye" to hours of service violations, and dispatched back to back trips that could not be completed lawfully.

Other trucking cases where punitive damage claims were allowed include:

* a "forced dispatch system" where a truck driver could not refuse a load and keep his job, so that hours of service violations, etc., were inevitable.

* payment for speed of delivery, encouraging drivers to speed

* failure to check driving records, as required by regulations

* rigorous delivery schedule with penalties for late deliveries

* failure to provide maintenance mechanics with necessary tools

* failure to discipline truck driver for violations

* failure to monitor the truck driver's conduct, failure to conduct any investigation into the driver's hours of service, re-dispatching the truck driver even though he had exceeded his hour of service limitations; and failure to have effective procedures in place to verify drivers' hours of service when the company knew that hours of service regulations were in place to protect the safety of the monitoring public

* violation of hours of service rules, fatigued driving, falsification of driver logs, and failure of management to adequately monitor drivers' hours

* violation of hours of service rules and falsification of driver logs

* combination of knowledge of safety issues, speed, use of radar detector, driver’s history of violations, and lack of qualifications of safety director

* Ignore smoking brakes, failure to stop until brake drum falls apart

* stopped in the interstate's center lane for approximately 35 minutes before the collision without placing triangular warning devices on the highway, and failure to turn on tractor-trailer lights after it became dark

Some of the evidence that supports a claim for punitive damages is also useful in supporting a claim for "bad faith" attorney fees under OCGA 13-6-11, and for simply convincing a jury that the conduct justifies awarding adequate compensatory damages.

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