The deepest recession since the 1930s affects the trucking and insurance industries just as it does many others. For attorneys who represent the victims of catastrophic trucking accidents and their survivors, these extraordinary economic times present particular challenges.

Take this scenario: Without warning, you receive a mailed notice that the defendant trucking company in a case you’re handling has filed for bankruptcy in a distant state. The filing imposes an automatic stay of the litigation—litigation in which you have invested vast amounts of resources and on which your client’s future depends. Now what? You’re a trial lawyer, not a bankruptcy specialist. So what’s your first step?

There is a set of procedures you’ll need to follow, but fortunately they’re relatively uncomplicated. Here’s your emergency checklist for the steps you need to take when a trucking defendant goes under.

Resist the temptation to ball up the notice and fling it across your office. Immediately—and carefully—read the notice’s fine print. Note, highlight, and docket in your calendar system all the important deadlines and contact information that will be buried in it.

In some cases, you may not receive any notice from the debtor, trustee, or bankruptcy court. You may only learn about the bankruptcy filing from seeing a “suggestion of bankruptcy” filed in the trial court by the insurance defense counsel. Defense counsel should, simply out of professional courtesy, provide you with a copy of the notice of bankruptcy, but this doesn’t always happen. Find the bankruptcy court, and request a copy of the notice.

Docket a 90-day deadline to file a proof of claim. Corporations can file bankruptcy under Chapter 7 (liquidation) or Chapter 11 (reorganization). A proof of claim in a Chapter 7 bankruptcy must be filed within 90 days after the date first set for the §341meeting of creditors.1 Of course, if you are eager to bring your liability case back to life, there is no reason to wait that long.

If the case is filed under Chapter 11, the court will fix a “bar” date on notice to all creditors. The debtor is required to file a schedule listing all creditors and the amount owed to each. If the creditor and the amount owed to it are listed correctly on the schedule, the creditor is not required to file a proof of claim.2 But if you want to be sure your claim is included in the case, you should file a proof of claim.

Avoid violation of the automatic stay. Filing a bankruptcy petition operates as a stay on any litigation or collection proceedings by a creditor against the debtor. There are circumstances when the automatic stay is not applicable, but they are unlikely to be relevant in personal injury litigation.3

It is dangerous to disregard a notice of bankruptcy, as any judgment obtained during pendency of the stay is subject to being voided. Even if the party with a tort claim against the debtor does not have notice of the bankruptcy stay, a judgment obtained against the debtor may be voided.4 Failure to obtain relief from the automatic stay and notify the debtor’s insurer, even when one is entitled to relief, may void a judgment.5

Also, any individual who is injured by a willful violation of an automatic stay may recover actual damages, costs, attorney fees, and even punitive damages.6 In some jurisdictions, this provision is not limited to individuals but is also available to other entities such as corporations and partnerships.

Check out the rules and forms. If you don’t practice bankruptcy law, you will need quick access to the basic law and procedures and the proper forms. Cornell Law School has a good online summary,7 accompanied by links to the bankruptcy code,8 rules of bankruptcy procedure,9 and uniform bankruptcy forms.10

Each federal judicial district has a bankruptcy court, and each has its own local rules and forms, which vary widely. Some use their Web sites to post general orders, notices to the bar, and additional information from the clerks.11

Use these guidelines to make sure you’re following the correct procedure.

* Search the local rules, forms, and general orders for the information required to assert your claim and motion for relief from the automatic stay. Do not expect uniformity, as the rules, forms, and general orders may vary dramatically even among districts within the same state.
* Find out whether local counsel or pro hac vice admission is required. Local rules of some bankruptcy courts require a creditor to associate local counsel to do anything. Some, such as the bankruptcy court in Delaware, allow creditors’ counsel to file a proof of claim and motion for relief from automatic stay without either retaining local counsel or admission pro hac vice, and to participate in hearings by telephone conference.
* Register for e-filing. Each district requires separate registration into the CM/ECF (Case Management/Electronic Case Files) electronic filing system. Search the court’s Web site for information on registering for CM/ECF in that jurisdiction and any costs involved. If you need help, phone the clerk. In some districts, you may be required to prepare a “dummy” motion to file as a test before the court will issue you a user identification and password.
* Ask if a court appearance is required. Often, with the cooperation of the trustee and the debtor’s counsel, it is possible to obtain a consent order for relief from the stay, in which case no hearing is required. When it is, some courts permit a hearing on the motion by telephone conference.

Local courts vary, and some seem to go out of their way to make it easy for “outsiders” to use their systems. But others do not. Some require attorneys from other jurisdictions to associate with local counsel and move for admission pro hac vice just to file a routine motion for relief from the automatic stay. This will force you to do a serious cost-benefit analysis in some situations—for instance, if the truck driver files for personal bankruptcy as well. Your analysis may lead you to the conclusion that the case should be dismissed.

Prepare and file a proof of claim. Before filing the proof of claim, inspect the notice of bankruptcy to determine where to file it, or confirm with the clerk that you have the correct address. Especially in large Chapter 11 bankruptcies, claim procedures may be outsourced to a bankruptcy administration company or a law firm. Always check local rules for fees, payment methods, access to CM/ECF, and other procedures for filing motions.

The proof of claim must be filed using Form B10. This form states that the creditor is required to attach supporting documentation, but in most personal injury cases, there is no judgment at the time the bankruptcy petition is filed and the complaint may not include a specific damages amount to support a proof of claim. The bankruptcy court may permit a proof of claim with a number at the high end of valuation without supporting documentation, but it is prudent to check with the clerk regarding local practice on that point.

What if this isn’t, in fact, OK? One suggestion is to insert a number that is the demand you would make based on your knowledge at the time and reserve the right to amend based on circumstances as matters develop.

Prepare and file the motion for relief from automatic stay. Until the stay is lifted, your case is stayed, so don’t overlook this step. There is no standard bankruptcy form for this motion, but some courts have a local form.

The motion for relief from the automatic stay should limit relief to the amount of liability insurance.12 In ruling on a creditor’s motion for relief from stay in order to proceed with a lawsuit nominally against the debtor, solely for the purpose of establishing the debtor’s liability and recovering from liability insurers, the bankruptcy court must first determine whether the proceeds of liability insurance policies are “property of the estate.” If they are not, then automatic stay does not extend to the proceeds, and the creditor can proceed with a lawsuit.13

There is some ambiguity in the case law about whether the relief from stay encompasses a surety contract, such as an appeal or supersedeas bond, but my law firm has successfully obtained orders for relief from the stay as to such bonds.

There is no clear, uniform deadline for filing this motion, but in most cases, it’s wisest to file it as soon as possible, preferably at the same time you file the proof of claim.

File a notice of hearing. Procedures for doing this vary widely among districts, so check the local rules and, if necessary, call the clerk. You may be surprised at how easy some courts make this.

For example, in the Northern -District of Georgia, you can log on to the judge’s Web page, see what dates are available for a hearing on a motion for relief, sign up, and electronically give notice of the hearing to everyone involved. You can also save a lot of time and effort by communicating with the trustee and the debtor’s bankruptcy attorney and seeking consent to an order granting relief from the automatic stay.

Digging deeper

After completing these initial procedures, you can start digging deeper into the specifics of the bankruptcy case.

Determine what’s dischargeable. Not all debts can be discharged in a bankruptcy. There are two types of debt that are not dischargeable and that may be relevant to your case: a debt related to personal injury that was caused by the debtor’s operation of a motor vehicle while the debtor was intoxicated by alcohol, drugs, or another substance;14 and a debt that arose from willful and malicious injury.15

Where pending civil litigation involves facts that may render a judgment nondischargeable, you may move for relief from the automatic stay to allow the underlying case to proceed to judgment so a trial court can determine liability and liquidate the debt. The bankruptcy court still retains the ultimate authority to determine whether a debt is dischargeable, although it may consider the evidence in the case and the findings of the trial court. Alternatively, that portion of the case may be referred to a federal court.

Circumstances that a court may consider sufficient to constitute cause for relief from the automatic stay include the following:

* when allowing the state court action to proceed to trial and judgment would liquidate the amount of the movant’s personal injury claim and allow a jury to make findings of fact that the bankruptcy court can consider when—applying the doctrine of collateral estoppel—it determines whether a debt is dischargeable
* when the state court action had progressed to the eve of trial before a bankruptcy petition was filed, and the parties are ready for trial
* when the debtor’s insurer has assumed full responsibility for defending the state court action
* when relief would result in a partial or complete resolution of the issues
* when the state court action involves matters of state law16

A creditor can file a complaint against the debtor in bankruptcy court asking the court to determine if the debt is dischargeable. In the case of a driver who was under the influence of drugs or alcohol at the time of the wreck, damages for serious bodily injury are not dischargeable.17 If the bankruptcy court finds that the debt is not dischargeable, then it will make this finding and lift the stay so that you can pursue the case in state court.

Look for the MCS-90. If a trucking company is bankrupt or otherwise out of business, it may well fail to cooperate with its insurer. In that case, the MCS-90 endorsement becomes all the more important.

All interstate motor carrier liability insurance policies must include the MCS-90 endorsement.18 This is a federally mandated endorsement to insurance policies, whose primary purpose is “to assure that injured members of the public would be able to obtain judgments collectible against negligent authorized carriers.”19 The MCS-90 is “in effect, suretyship by the insurance carrier to protect the public—a safety net . . . . [I]t simply covers the public when other coverage is lacking.”20

Courts that consider the applicability of an MCS-90 endorsement hold that “the operation and effect of ICC-mandated endorsements are a matter of federal law.”21 But since state law governs interpretation of the underlying insurance policy, both state and federal law may apply, to the extent that they do not conflict.22

The MCS-90 provides that

no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency, or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.23

Find out if the company is self-insured. While most trucking cases involve insurance coverage, at least 100 of the larger truck fleets are self-insured.24 A self-insurance program for a motor carrier has to meet the requirements for Federal Motor Carrier Safety Administration (FMCSA) approval, and any self-insurance authority granted by the FMCSA automatically expires 30 days after a carrier receives a less than satisfactory rating from the U.S. Department of Transportation.25

Still, there have been instances of self-insurance turning out to be illusory. For instance, Builders Transport, Inc., was an interstate motor carrier that insured itself for the first million dollars of liability, secured by a single $1 million bond held by a bank, against which there were probably hundreds of claims. Above the first $1 million, there were four layers of excess coverage that added up to $36.8 million, with an annual deductible “loss corridor” of between $1 million and $2 million.

When Builders Transport went into bankruptcy, a coverage nightmare ensued. The first-layer excess carrier eventually became insolvent. An injury victim with a judgment against Builders Transport tried to enforce the MCS-90 endorsement on the second-layer excess policy. The Fifth and Sixth circuits ruled that the MCS-90 endorsement is required only when insurance is used to satisfy the minimum financial responsibility requirements of the Federal Motor Carrier Safety Regulations and did not require the excess carrier to drop below its liability floor in order to provide “first dollar” coverage.26

A high deductible under a policy, as distinguished from a self-insured reserve, may produce a different outcome in the event the motor carrier becomes bankrupt. A Louisiana state appellate court held that where a motor carrier purchased a policy with $1 million coverage with an MCS-90 endorsement and a $1 million deductible, the insurer was required to “drop down” and provide “first dollar” coverage when the motor carrier became insolvent.27

“First dollar” insurance coverage provides liability coverage for the entire loss, subject to any deductible that the policyholder may have, to reimburse the insurance company. A policy that is “excess” or “umbrella” coverage, over an underlying layer of primary liability insurance coverage or a self-insured retention (SIR), may not provide any coverage for any amount that should be covered by the primary insurance coverage or the SIR.

The Gulf Insurance cases cited here arose out of the Builders Transport bankruptcy, where the SIR collapsed due to the trucking company’s bankruptcy and the inadequacy of the bond securing the SIR, and the first-layer insurance company became insolvent. The next layer of coverage was held not to drop down to cover the SIR or first layer of coverage that had disappeared due to insolvency.

Less common in recent years is the use of a fronting agreement. This is an arrangement in which a trucking company rents an insurance company’s licensing and filing capabilities in a particular state (or states).28 The commercial insurance company (the fronting company) issues its policy to the insured. The entire risk is then transferred from the fronting company to a captive insurance company through a reinsurance agreement, known as a fronting agreement.

In this setup, the insured obtains a policy issued on the paper of the commercial insurance company. But the financial risk of that coverage resides with the captive insurance company. Occasionally, the reinsurance company transfers the risk back to the insured, creating a full circle in which self-insurance-is made to look like commercial insurance, with the whole arrangement administered by a managing general agent. If the fronting agreement maintains the form of insurance rather than self-insurance, albeit subject to a high deductible, then the MCS-90 should provide protection to an injury victim if the motor carrier goes under.

Another possibility: If the truck driver, rather than the trucking company, files individual bankruptcy under Chapter 7 or Chapter 13, the rules and procedures are similar. But your cost-benefit analysis may be different. Do the facts of the individual case justify the trouble and expense of associating local counsel, obtaining admission pro hac vice, and paying filing fees in a distant state, when the trucking company is the target defendant?

That’s an intensely fact-specific, case-by-case determination. Generally, unless there is evidence of drug or alcohol use contributing to the cause of the crash, which raises the possibility of punitive damages and a judgment that is nondischargeable, the cost of keeping the driver in the case may not be justified.

Insolvency and insurance

Until recently, the idea of an insurance company going under seemed remote. In this economy, no one knows where the ripples from the turmoil in the financial markets will stop—and the trucking industry is not immune.

Insurer insolvency is governed by state rather than federal laws. Most states follow one of two model statutes from the National Association of Insurance Commissioners (NAIC), the now withdrawn Uniform Insurers Liquidation Act, or the more recent Insurers Rehabilitation and Liquidation Model Act.29 An insolvent insurer is subject to legal action, typically by the state insurance commissioner, to place the insurer into liquidation, rehabilitation, or conservatorship.

When an insurer enters insolvency proceedings, its reinsurer remains contractually obligated under the insolvency clause typical in reinsurance treaties. Most states require that the reinsurance contract include an insolvency clause providing that, if the reinsured insurer becomes insolvent, reinsurance proceeds must be paid to the insolvent insurer. Those funds are not earmarked for individual claimants but become general assets of the insolvent reinsured insurer. In such a case, policyholders and claimants then must take their place in line with other unsecured creditors who have claims against the estate.

The general rule is that a claimant or policyholder cannot make a direct claim against the reinsurer because there is no privity. There are three exceptions.

First, a reinsurance contract may include a “cut-through,” permitting funds to pass directly to the insured, rather than to the estate of the insolvent reinsured insurer. In addition, the insurance insolvency laws of a state may authorize cut-through arrangements. Find out whether cut-through agreements and guarantees conflict with receivership laws so that a reinsurer could owe payment to both a policyholder (including the obligation to pay a judgment) and a receiver for the same claim.

Second, there is persuasive authority for the notion of treating a policyholder as a third-party beneficiary of the reinsurance contract even in the absence of a cut-through agreement, where the reinsured insurer basically had nothing more than a fronting agreement with no intention to bear any of the risk.30

Finally, if both the insurer and the reinsurer fail, there are in each state insurer insolvency pool arrangements. Such arrangements tend to focus on limited coverage, primarily for smaller claims.

The recession has spared no industry and no region of the country. If you’re representing clients who deserve compensation for their injuries, you need to be prepared for the possibility that any defendant can go under at any time.

Basic knowledge of bankruptcy law, a quick response to the notice of bankruptcy, and familiarity with local court rules will help you meet this challenge calmly.

Kenneth L. Shigley is of counsel at Chambers, Aholt & Rickard in -Atlanta. He can be reached by e-mail at ken@carllp.com.

Notes:

1. Fed R. Bankr. P. 3002(c); 11 U.S.C. §341 (2006).
2. See 11 U.S.C. §1111 (2006).
3. See e.g. 11 U.S.C. §362(b)(2)(A)(2006).
4. See e.g. In re Allied Holdings, Inc., 355 B.R. 372, 377-78 (Bankr. N.D. Ga. 2006).
5. See e.g. In re Atl. Ambul. Assocs., Inc., 166 B.R. 613 (Bankr. E.D. Va. 1994).
6. See e.g. Fleet Mortg. Group, Inc. v. Kaneb, 196 F.3d 265 (1st Cir. 1999); see also 11 U.S.C. §362(k)(1) (2006).
7. Cornell U. L. Sch., Leg. Info. Inst., Wex: Bankruptcy, http://topics.law.cornell.edu/wex/bankruptcy.
8. Cornell U. L. Sch., Leg. Info. Inst., U.S. Code Collection: Title 11—Bankruptcy, http://uscode.law.cornell.edu/uscode/html/uscode11.
9. Cornell U. L. Sch., Leg. Info. Inst., Federal Rules of Bankruptcy Procedure, www.law.cornell.edu/rules/frbp.
10. Admin. Office U.S. Cts., Bankruptcy Forms, www.uscourts.gov/bkforms.
11. A compilation of links to bankruptcy court Web sites may be found in Admin. Office U.S. Cts., Local Rules of Court: United States -Bankruptcy Courts, www.uscourts.gov/rules/bk-localrules.html.
12. See e.g. In re Carraway Methodist Health Sys., 355 B.R. 853 (Bankr. N.D. Ala. 2006).
13. See e.g. In re Scott Wetzel Serv., Inc., 243 B.R. 802, 804-05 (Bankr. M.D. Fla. 1999).
14. 11 U.S.C. §523(a)(9) (2006).
15. 11 U.S.C. §523(a)(6) (2006).
16. See 11 U.S.C. §362(d) (2006); see e.g. In re Sonnax Indus., Inc., 907 F.2d 1280, 1286 (2d Cir. 1990) (list of 12 factors); In re Holtkamp, 669 F.2d 505 (7th Cir. 1982) (insurer was providing defense); In re Quay Corp., Inc., 2006 WL 208704 at *1 (N.D. Ill. 2006) (noting that judicial efficiency may constitute grounds for lifting an automatic stay); In re NW Airlines Corp., 2006 WL 382142 (Bankr. S.D.N.Y. 2006); In re Enron Corp., 306 B.R. 465 (Bankr. S.D.N.Y. 2004); Jonathan P. Friedland, Commercial Bankruptcy Litigation §6:28 (2d ed., Thomson West 2009).
17. 11 U.S.C. §362 (2006).
18. 49 C.F.R. §387.15 (2009); see e.g. Lynch v. Yob, 768 N.E.2d 1158, 1159 (Ohio 2002) (citing 49 U.S.C. §13902(a)(1) (2008) and 49 U.S.C. §31139 (2008)); see also Michael Jay Leizerman, Finding Insurance in Truck Crash Cases, 28 TRIAL (Feb. 2008), www.justice.org/cps/rde/xchg/justice/hs.x51/698.htm.
19. Hamm v. Canal Ins. Co., 10 F. Supp. 2d 539, 545 (M.D.N.C. 1998) (quoting Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 611 (5th Cir. 1989), modified, 901 F.2d 45 (5th Cir. 1990)), aff’d, 178 F.3d 1283 (4th Cir. 1999).
20. T.H.E. Ins. Co. v. Larsen Intermodal Servs., Inc., 242 F.3d 667, 672 (5th Cir. 2001) (quoting Canal Ins. Co. v. Carolina Cas. Ins. Co., 59 F.3d 281, 283 (1st Cir. 1995)).
21. See e.g. Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 610 (5th Cir. 1989), modified on other grounds, 901 F.2d 45 (5th Cir. 1990); see also Ford Motor Co. v. Transp. Indemn. Co., 795 F.2d 538, 545 (6th Cir. 1986); see also John Deere Ins. Co. v. Nueva, 229 F.3d 853, 856 (9th Cir. 2000).
22. See e.g. Ins. Corp. of N.Y. v. Monroe Bus Corp., 491 F. Supp. 2d 430, 439 (S.D.N.Y. 2007).
23. Fed. Motor Carrier Safety Admin., Form MCS-90: Endorsement for Motor Carriers Policies of Insurance for Public Liability under Sections 29 and 30 of the Motor Carriers Act of 1980 (emphasis added), www.fmcsa.dot.gov/documents/eta/sec387-form3.pdf.
24. Jeff Casale, Self-Insurance Helps Trucking Firms Lower Costs, Bus. Ins . (Sept. 15, 2008), www.businessinsurance.com/cgi-bin/article.pl?article_id=25868.
25. 49 C.F.R. §387.309(a)(3) (2009).
26. See Wells v. Gulf Ins. Co., 484 F.3d 313, 318 (5th Cir. 2007); Kline v. Gulf Ins. Co., 466 F.3d 450 (6th Cir. 2006).
27. Rideau v. Edwards, 985 So. 2d 311, 315 (La. App. 2008).
28. See e.g. White v. Ins. Co. of Pa , 282 F. Supp. 2d 618 (N.D. Ohio 2003), vacated, 405 F.3d 455 (6th Cir. 2005).
29. Larry P. Schiffer, Insurer Insolvency and Reinsurance ( July 2004), www.irmi.com/expert/articles/2004/schiffer07.aspx; see also Natl. Assn. of Ins. Commrs., NAIC Model Laws, Regulations and Guidelines ( July 2009), www.naic.org/documents/committees_models_table_of_contents.pdf.
30. Koken v. Legion Ins. Co., 831 A.2d 1196, 1236 (Pa. Commw. 2003) (citing Mellon v. Sec. Mut. Cas. Co., 1981 WL 207373 (Pa., Philadelphia Co. Comm. Pl. Apr. 15, 1981)), aff’d, 878 A.2d 51 (Pa. 2005).

HB 938 would prohibit the use of wireless telecommunications devices for sending or reading text messages while operating a motor vehicle. A conviction would be punishable by a fine of not less than $50.00 nor more than $100.00. In addition, two points would be assessed to violators of this provision. The bill provides exceptions for engaging in a wireless communication using a wireless telecommunications device in emergency situations.

This bill would amend Code Section 40-5-57.4 by requiring the driver's license of any operator of a motor vehicle, who is determined to be at fault for causing an automobile accident while texting, be suspended. A first suspension shall be for a period of 90 days. A second or subsequent suspension shall be for a period of six months. The suspension will terminate after the suspension period and when the person pays a restoration fee of $60.00 or, $50.00 when processed by mail.

HB 944 would prohibit a person from writing, sending, or reading a text-based communication on a wireless telecommunications device while operating a motor vehicle. It provides for exceptions in emergency situations. Any conviction for a violation would be a misdemeanor punishable by a fine of not more than $300.00.

Ken Shigley is a trucking safety trial attorney representing seriously injured people and families of people killed in tractor trailer, big rig, semi, intermodal container freight, log truck, cement truck, dump truck, log truck and bus accidents statewide in Georgia.

Mr. Shigley has extensive experience representing parties in interstate trucking collision cases, and in the past two years has spoken at national interstate trucking litigation seminars in Chicago (trucking insurance), New Orleans (trial tactics and side underride issues), St. Louis (punitive damages), San Francisco (dealing with insolvent trucking companies), Atlanta (trucking insurance, closing argument), Nashville (use of Federal Motor Carrier Safety Regulations), and Amelia Island (overview of trucking litigation).

He served as chair of the Southeastern Motor Carrier Litigation Institute in 2005, is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice, and is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America.

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a "Super Lawyer" (Atlanta Magazine), among the "Legal Elite" (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Treasurer of the 41,000 member State Bar of Georgiam and the unopposed nominee for President-Elect to serve as President in 2011-12.This post is subject to our ethical disclaimer.

Virginia Tech's Transportation Institute released a study last July that found that when truckers text, they are 23 times more likely to be involved in a crash or near miss.

Both houses of Congress are considering bills to restrict texting. Nineteen states have banned the practice. The new federal regulation provides that drivers of commercial vehicles caught texting may be fined up to $2,750.

Texting and cellphone use have been banned in many major commercial fleets, including FedEx's 43,000 vehicles and the 100,000 used by United Parcel Service.

This will be more material for my presentation to the Interstate Trucking Litigation Group at Vancouver, British Columbia, in July.

In this era of enormous budget pressures on state government, the job of shoring up support for adequate funding of the judicial branch of state government could be all consuming.

However, I will also seek to promote virtue in the legal profession (broad topic!) and pursue concrete improvements in the judicial system in Georgia.

Between an active law practice and the demands of this new role, I will have to manage my time carefully for the next two and a half years. But the insights and exposure inherent in such a position only enhance the capacity to represent our clients.

This morning I received a comment on this blog from a truck driver who tells it like it is. Rather than leaving it buried in "comments," I'm posting it on its own. For obvious reasons, I must protect this truck driver's identity.

Where I work essentially...if you don't make the logs appear legal and continue running past your 70 hour limit and are caught by the DOT,shut down for 10 hrs and written up for a 'Violation'(as opposed to falsifying your logs to 'look legal' and keep rolling) you will be suspended for 2 weeks by the 'safety dept' and your truck will most likely be given to a new driver while your suspended,on the other hand,if you are late delivering,you will be written up and possibly terminated. How many hours you have to operate is irrelevant. Freight comes first. Technically isn't "coercion" like this against the law ?

But recently I met members of a Georgia family who are incredibly blessed to be alive. A tractor trailer crossed the median of an interstate highway and struck them head-on. Another truck struck them from behind, knocking them back into the first truck. Miraculously, none of them were catastrophically injured. Of course they had some injuries, but it is amazing that anyone came out alive.

But there are exceptions. On New Year's Eve, a trucker from Texas was charged with DUI and vehicular homicide after he struck a Michigan couple's car and killed the wife, as he got off the I-75 exit at Sam Nunn Parkway in Perry, Georgia.

Janice Hanes, 65, of Fenwick, Michigan, was declared dead at the hospital in Perry. Murray Hanes, 66, her husband, was transported by ambulance to The Medical Center of Georgia in Macon with head injuries.

Luis Lopez Guzman Jr., 50, of San Antonio, also was charged with DUI and leaving the scene of an accident. He was driving a 2000 Kenworth tractor-trailer when he struck the Hanes' pickup truck. According a news report by Becky Purser on Macon.com, he fled the scene and was apprehended on I-75 headed south toward Florida. The news reports do not identify the company for which he was driving.

The Federal Motor Carrier Safety Regulations are quite strict about use of alcohol by truck drivers. 49 C.F.R. § 392.5 bans use or possession of alcohol in operation of a commercial motor vehicle. "No driver shall . . . [u]se alcohol, . . . or be under the influence of alcohol, within 4 hours before going on duty or operating, or having physical control of, a commercial motor vehicle; or . . . [u]se alcohol, be under the influence of alcohol, or have any measured alcohol concentration or detected presence of alcohol, while on duty, or operating, or in physical control of a commercial motor vehicle." Any driver is violation of this is placed in "out of service status" for 24 hours. "No motor carrier shall require or permit a driver to . . . [v]iolate any provision [of this section or] [b]e on duty or operate a commercial motor vehicle if, by the driver's general appearance or conduct or by other substantiating evidence, the driver appears to have used alcohol within the preceding 4 hours."

Intoxication of a truck driver is grounds for punitive damages in a personal injury case and in a survival action by the estate of a decedent in Georgia. While a wrongful death claim in Georgia does not include punitive damages, the measure of damage is the full value of the life of the decedent, including both economic and intangible aspects of life.

Police investigators in Garden City, Georgia, found 24 safety violations on a log truck that lost its load of logs, which crushed and killed a pedestrian.

The log truck was driven by Daniel Morris of Uvalda, Ga. He reportedly swerved as he neared an intersection, dislodging the trailer of logs. Neal James Hamilton, 57, of Lansing, Mich., was crushed by the falling load of logs.

Violations on the log truck included faulty brakes, balding tires, improper lights, failure to secure the load of logs properly, and a defective fifth wheel that attached the trailer to the truck.

Log trucks in Georgia are regulated by the Georgia Forest Products Trucking Rules. Those rules are relatively lax when compared with the Federal Motor Carrier Safety Regulations, but it sound like even those weak rules were ignored in this case.

The victim was from Lansing, the capital of Michigan, where I recently took the deposition of an expert witness at Michigan State University.

I was therefore quite interested in a recent report of a truck accident on the New York Thruway near Pembroke, New York, when a young mother of two sons was killed on Christmas Eve. She was a teacher of special needs children and had sons ages 3 and 1. According to a Buffalo News report, she had just dropped off her older son at a relative's house in Rochester (where my daughter attends RIT), and was on her way to finish her Christmas shopping.

New York State Police are investigating whether the truck driver was using his laptop computer when he crashed into the young mom's car, which was disabled after striking a deer. Other vehicles had swerved around her but the trucker did not.

Electronic distractions are a huge issue in traffic safety, particularly in trucking. Cell phones, text messaging, and the various electronic devices for communication with trucking dispatchers, are increasingly subjects of study.

The Federal Motor Carrier Safety Regulations, at 49 C.F.R. § 392.22, requires that when a tractor trailer stops on a highway or shoulder, the driver must activate hazard warning signal flashers, and within ten minutes must place either bidirectional reflective triangles or flares.

I don't know the details of this tragedy in Charlotte, but I do know some of the questions that should be asked.

Sean Thornton, the youngest of three children of Daniel and Susan Thornton, was killed in his child car seat when a big rig slammed into the rear of the family minivan and pushed it off the road into the woods. It came to rest in cold marsh water. The family was en route to a post-Christmas Florida vacation.

The child's mother, Susan Thornton, 38, was driving. According to KDKA-TV in Pittsburgh, the impact badly mangled her foot and it may have to be amputated. The father, Daniel Thornton, 47, has a broken jaw. The five-year-old sister has a broken foot, leg and arm. An eight-year-old brother has a cracked skull.

According to Georgia State Patrol spokesman Thornell King, the Thornton family's 2007 Toyota Sienna van had slowed due to traffic congestion when it was struck in the rear at a high rate of speed by the 1999 Freightliner tractor-trailer truck hauling a load of paper products, driven by Willie Hill, 50, of Jacksonville.

Hill reportedly had picked up a load at Riceboro, en route to Gulfport, Mississippi. Riceboro is the site of a large Interstate Paper plant producing linerboard.

Media reports show a double trailer in the woods. News reports do not identify the trucking company involved.

I bet the family has been directly solicited by lawyers trolling the hospital or sending them promotional packages, in direct violation of bar rules that would subject them to disbarment if reported.

Therefore, I am providing (below the break) a "spoliation letter" suitable for adaptation to the specific circumstances of a commercial trucking case. I would prefer that clients or attorneys who do not ordinarily handle large trucking cases contact me soon after the incident occurs, But if I am contacted later, it would be much better if the first attorney had used some variation on this letter soon after the event, and in any event within six months.

[truck driver] VIA FEDERAL EXPRESS

Re: [client] vs. [motor carrier] & [truck driver]
Date of crash : [date]
Location : [accident location]

Dear [registered agent or president] and Mr. [truck driver]:

I have been retained to represent [client] with regard to serious bodily injuries incurred in the above-referenced crash. Please direct all future communication to me. I look forward to working with you toward the prompt and amicable resolution of this case.

Enclosed is a copy of my letter to [motor carrier’s insurer] in which I have given your insurance company an opportunity to protect your assets and income from the risk of liability exposure in excess of insurance policy limits, provided the matter is settled within thirty (30) days from the delivery of [client]’s medical records which we have ordered.

I cannot offer you any legal advice, but I do suggest that you immediately confer with an independent attorney of your own, who is not paid by the insurance company, and who is experienced in insurance law in Georgia.

As you know, this incident occurred on [date], when a [motor carrier] tractor driven by a [motor carrier] driver, [truck driver], [describe wreck]. A copy of the police report is enclosed, though I assume you already have it. [truck driver] was charged with [citation].

This is to notify you of our intent to make a claim and, if necessary, pursue litigation. In the event of litigation, of course, I would be obligated to probe more deeply into violations of Federal Motor Carrier Safety Regulations that may be underlying causes of such driver error and may provide the basis for punitive damages. In that context, I have noted that [motor carrier] has Safestat data [characterize Safestat data].

This letter is also to formally demand preservation of certain evidence relevant to this collision. If you fail to properly secure and preserve those important pieces of evidence, it will give rise to a legal presumption that the evidence would have been harmful to your side of the case. The destruction, alteration, or loss of any of the relevant evidence, may constitute spoliation under applicable law. If you fail to preserve and maintain this evidence, we will seek sanctions available under law. We specifically request that the following evidence be maintained and preserved and not be destroyed, modified, altered, repaired or changed in any manner.

1. The tractor and trailer involved in this collision.

2. All copies of [truck driver]’s daily logs for the day of the collision, and for the six-month period preceding the collision, together with all material required by 49 C.F.R.396.8 and 395.15 for the driver involved in the above matter.

3. All existing driver/vehicle inspection reports required under 49 C.F.R.396.11 for the vehicles involved in the collision.

4. All existing daily inspection reports for the tractor and trailer involved in this collision.

5. All existing maintenance, inspection and repair records or work orders on the tractor and trailer involved in the above collision.

6. All annual inspection reports for the tractor and trailer involved in the above collision covering the date of the collision.

7. [truck driver]’s complete driver’s qualification file, as required by 49 C.F.R.391-51, including, but not limited to:
a. Application for employment;
b. Inquiries into driver’s employment history;
c. Responses to inquiries into driver’s employment history;
d. Driver’s employment history;
e. CDL License;
f. Driver’s Certification of Prior Traffic Violations;
g. Driver’s Certification of Prior Collisions;
h. Pre-employment MVR;
i. Annual MVR for last two years;
j. Annual review of driver history;
k. Certification of road test;
l. Medical examiner’s certificates for last two years;
m. Drug testing records;
n. HAZMAT or other training documents;

8. Photographs, videos, computer generated media, or other recordings of the interior and exterior of the vehicles involved in this collision, the collision scene, the occurrence, or relating to any equipment or things originally located at or near the site of the occurrence;

9. The driver’s pre-employment, random, and post-collision alcohol and drug testing results;

10. Any lease contracts or agreements covering the driver or the tractor or trailer involved in this collision;

11. Any interchange agreements regarding the tractor or trailer involved in this collision;

12. Any data and/or printout from on-board recording devices, including, but not limited to, the ECM (electronic control module), or any on-board computer, tachograph, trip monitor, trip recorder, trip master or other recording or tracking device for the day of the collision and the six-month period preceding the collision for the equipment involved in the collision;

13. Any post-collision maintenance, inspection, or repair records or invoiced in regard to the tractor and trailer involved in the above collision;

14. Any weight tickets, fuel receipts, hotel bills, or other records of expenses, regardless of type, regarding the driver or the tractor or trailer involved in this collision for the day of the collision and the thirty (30) day period preceding the collision;

15. Any trip reports, dispatch records, trip envelopes regarding the driver or the tractor or trailer involved in this collision for the day of the collision and the thirty (30) day period preceding this collision;

16. Any e-mails, electronic messages, letters, memos, or other documents concerning this collision;

17. The collision register maintained by the motor carrier as required by federal law for the one (1) year period preceding this collision;

18. Any drivers’ manuals, guidelines, rules or regulations given to drivers such as the one involved in this collision;

19. Any reports, memos, notes, logs or other documents evidencing complaints about the driver in the above collision;

20. Any DOT reports, memos, notes or correspondence concerning the driver or the tractor or trailer involved in this collision;

21. Any downloadable computer data from the tractor’s computer system to include but not be limited to Electronic Control Modules, Event Data Recorders, Eaton VORAD collision warning system, and other similar systems;

22. The pre-trip inspection report completed by the driver for the trip involved in this collision;

23. All OmniTRAC, Qualcomm, NVPc, QTRACS, OmniExpress, TruckMail, TrailerTRACS, SensorTRACS, JTRACS, and other similar systems data for the six (6) months prior to the collision for this driver and truck. You are hereby notified that you are required to place your supplier of the above system, as your agent, on notice that it is to save this data;

24. All settlement sheets and expense sheets for the truck driver pertaining to trips taken for the day of the collision and thirty (30) days prior to the collision;

25. Cargo pickup or deliver orders prepared by motor carriers, brokers, shippers, receivers, driver, or other persons, or organizations for thirty (30) days prior to the date of the collision as well as the day of the collision;

26. All documents pertaining to the ownership of the tractor and the trailer involved in this crash, including but not limited to title and registration documents;

27. Accounting records, cargo transportation bills and subsequent payments or other records indicating billings for transportation or subsequent payment for the transportation of cargo, with both the front and back of cancelled checks for cargo transported by the driver and/or truck involved in the collision for thirty (30) days prior to the date of the collision, as well as the day of the collision;

28. Any other items associated in any way with the wreck, documents, database, or other piece of evidence concerning or reflecting upon the driver, the collision, the tractor, trailer, or the truck;

29. [motor carrier]’s entire personnel file on [truck driver];

30. Any and all communications via CB radio, mobile or satellite communication systems, e-mail, cellular phone, pager or other cab communication device to include the bills for the devices for the seven (7) days before, the day of, and the two (2) days after the collision;

31. Any and all computer, electronic, or e-mail messages of any type created in the seven (7) days prior to the collision and the first forty-eight (48) hours immediately after the collision, by and between the defendant and any agents or third parties, as well as any computer message, which relate to this particular incident, whether generated or received by you or your agents. We require you to put any vendor which hosts or stores this data for you on notice of the need to preserve this data;

32. If not previously listed, all documents required by Federal Motor Carrier Safety Regulation 395.8, specifically those items identified in the Department of Transportation’s interpretation of the regulation.

33. All documents identifying the insurer of the trailer involved in the crash, including but not limited to all documents naming the insurance company and policy number on such trailer.

34. All documents identifying any freight broker that was involved in making arrangements for transportation of the freight that was in the trailer at the time of the crash.

In order to assure that your obligation to preserve documents and things is met, please immediately forward a copy of this letter to all persons and entities with custodial responsibility for the items referred to in this letter.

In regard to the tractor and trailer involved in this collision, we would like to set up a mutually convenient time for our expert to inspect, examine, and conduct tests on the unit. We specifically request that you make no repairs or adjustments to the tractor or trailer, until this inspection is completed. Please contact us to discuss the scheduling of an inspection.

In addition, in order to facilitate early resolution of this matter within the limits of your insurance coverage, I respectfully request copies of each and every liability insurance policy applicable to this vehicle which was in effect as of [date]. [client]’s affidavit pursuant to O.C.G.A. § 33-3-28, requiring disclosure of all liability insurance coverage, is enclosed. Please provide that information to me within thirty days from your receipt of this letter. In order to facilitate compromise, I would appreciate it if you would also send me, by return mail, a copy of the declarations page of each such insurance policy.

I look forward to working with your counsel and your insurer toward the prompt and amicable resolution of this tragic matter.

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Ken Shigley is a trucking safety trial attorney representing seriously injured people in tractor trailer, big rig, intermodal container freight, cement truck, dump truck and bus accidents statewide in Georgia. He served as chair of the Southeastern Motor Carrier Litigation Institute in 2005, is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice, and is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America.

He has extensive experience representing parties in interstate trucking collision cases, and in the past two years has spoken at national interstate trucking litigation seminars in Chicago (trucking insurance), New Orleans (trial tactics and side underride issues), St. Louis (punitive damages), San Francisco (dealing with insolvent trucking companies), Atlanta (trucking insurance, closing argument), Nashville (use of Federal Motor Carrier Safety Regulations), and Amelia Island (overview of trucking litigation).

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a "Super Lawyer" (Atlanta Magazine), among the "Legal Elite" (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Treasurer and a candidate for President-Elect of the 41,000 member State Bar of Georgia.This post is subject to our ethical disclaimer.