Today I received the February issue of Trial magazine, which includes my article, When the Trucking Company Goes Under." It's based on a seminar paper I presented in San Francisco last summer. I've copied it below.
Continue reading ""When the trucking company goes under" article published in Trial magazine" »
As a commercial trucking trial attorney in Atlanta, Georgia, I am often called after another lawyer has messed around with a tractor trailer or big rig crash case, not knowing what he is doing, for about eighteen months. By then, much of the evidence that would have been invaluable in preparation of the case has been discarded, shredded, or otherwise lost or destroyed.
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.
Continue reading "How to tell motor carriers to preserve evidence after a truck crash" »
The owner of a trucking firm has pleaded guilty to criminal charges arising from the maintenance of a defective and almost brakeless tractor-trailer rig that caused a fatal six car crash in Pennsylvania last January. He is the third man to face criminal sentences due to that wreck. They are:
* Owner of tractor portion of rig - Victor M. Kalinitchii, 41, Philadelphia, homicide by motor vehicle, faces 3 1/2 to 7 years in prison.
* Driver - Valerijs N. Belovs, 56, from Northeast Philadelphia, homicide by vehicle, faces 8 1/2 to 17 years in prison.
* Maintenance - Joseph W. Jadczak Jr., 61, owner of Pratts Auto Service in Philadelphia, homicide by motor vehicle, faces 3 1/2 to seven years in prison.
If civil remedies aren't enough to get the attention of trucking company owners who put drivers on the road in unsafe vehicles, or require drivers to work when too fatigued to be safe, then perhaps criminal prosecutions can get their attention.
However, Georgia law on homicide by vehicle is written in terms that would be unlikely to reach beyond the driver of the vehicle. See OCGA § 40-6-393 and cross references. Do any of my fellow lawyers out there see an interpretation of those code section that would support criminal prosecution in Georgia of a truck owner or repair facility that put a defective truck on the road?
As a trucking trial attorney in Atlanta, Georgia, I occasionally have one of those "Perry Mason moments" when the defendant breaks down and confesses that his whole story was a pack of lies. Not often, but it does happen.
According to a report in the Dallas Morning News, this week in a courtroom in Cleburne, Texas, a truck driver for a drilling company made such a confession, leading to a $16 million settlement of a wrongful death case.
The family of Rhonda Kay Henson, 41, sued Pioneer Drilling and its driver for her death after two large pieces of gas well equipment fell from a Pioneer tractor-trailer. One piece, known as a spreader bar, struck Henson's truck and killed her.
On the witness stand, the truck driver admitted:
- He and other Pioneer officials falsified and back dated documents in his employee file after the accident.
- He was not aware of safety laws and regulations about securing and transporting large loads. Motor carriers are required to instruct employees on the regulations and assure that they comply.
- He had a long history of driving infractions including tickets, accidents, license suspensions and a citation for driving under the influence by a minor.
- He testified that he didn't know why he had lied to the court and jury.
After that testimony, court recessed and the parties entered into a settlement for $16 million.
The destruction of evidence and the lies do not surprise me. We see it all the time. The surprise is that he admitted it.
A while back, I was taking the deposition of a truck driver in Ohio who had killed a kid in Georgia. Eventually he confessed under oath that he had destroyed and backdated logs, and that he had been driving about double the legal hours at the time of the crash. I flew home thinking I was just the coolest lawyer since Perry Mason. When I called the client, I was told "we've been praying that if he had anything to get off his chest, he would." The prayers apparently worked.
I wonder who was praying in Texas!
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Continue reading "Trucker admits lies in court, leading to $16 million settlement" »
Not surprisingly, the "safety culture" of a trucking company is a huge factor in determining whether its drivers are involved in catastrophic truck crashes.
The Transportation Research Board published a couple of years ago "The Role of Safety Culture
in Preventing Commercial Motor Vehicle Crashes."
Some key points from that study are:
• Culture and safety have a clear connection.
• Safety culture is best defined and indexed by an organization’s norms, attitudes, values, and
beliefs regarding safety.
• Effective top to bottom safety communication and interactions enhance safety culture.
• Terms such as “accident” and “mishap” are often replaced with the terms “crash,” “wreck,”
and other more appropriate, straightforward terms in many safe cultures.
• In many instances, organizations, organizational subgroups, and professions may each have
identifiable safety culture.
• Recognition and certain rewards systems for safe behavior are an effective component of safety culture.
• Driver experience enhances a safety culture, especially if that experience is with one carrier.
Driver retention problems, however, have the potential for degrading a safety culture.
• Many levels of communicating safety culture are necessary in “remote workforce” industries
such as truck and bus operations.
• Policies, procedures, employee safety responsibilities, and safety messages must be clear and simple.
Hiring practices, safety training and education, company orientation, and safety management
are all key components of a safety culture.
• Measuring safety performance of drivers and the organization as a whole are key components of a safety culture.
Actions that companies may take to improve their safety culture include the following:
• Develop or redevelop internal definitions of culture and safety.
• Conduct “Swiss cheese” analyses, to determine what omissions in the management system contributed to accidents.
• Identify and dispel myths, such as the tendency to always blame weather or outside factors.
• Conduct institutional safety knowledge development.
• Define or redefine employee safety roles from top to bottom
• Assess the effectiveness of safety communication and reengineer systems of safety communication.
• Create or enhance a system of safety record data collection and analysis.
• Develop or redevelop motivational tools, such as tying driver compensation and advancement to safety.
• Improve driver retention.
It's a long report. I commend it to any truckers and safety managers who are interested in improving safety.
And I will certainly refer to it in "looking under the hood" of the management system of companies whose trucks crash into my clients, causing serious injury or death.
Continue reading ""Safety culture" is important for prevention of catastrophic truck crashes" »
Corporate shell games to avoid accountability for injuring or killing people are all too common. We see it an a variety of contexts. Today I got an email outlining how attorneys for nursing homes are directing their clients to lower their insurance coverage to $100,000 and set up an intricate network of corporate entities to protect the real estate and the owners' assets, while leaving anyone injured in their operations high and dry.
In the trucking context, there is a long history of motor carriers using creative subterfuges to avoid financial responsibility for people harmed by trucks hauling freight for them. Between 1935 and 1956, many interstate motor carriers attempted to immunize themselves from liability for the negligence of their drivers by leasing trucks and nominally classifying the drivers who operated the trucks as “independent contractors."
Because trip-leasing made it difficult for a member of the public injured by the operation of a leased vehicle to fix carrier responsibility, and in order to protect the public from the negligent conduct of the often judgment-proof truck-lessor operators, Congress passed a law in 1956 to require interstate motor carriers to assume full direction and control of the vehicles that they leased “as if they were the owners of such vehicles.”
The purpose of that legislation was to ensure that interstate motor carriers would be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants. Thus, since 1956, owner-operators who are independent contractors in relation to motor carriers have been considered “statutory employees” of the carriers in relation to any injured member of the public.
Congress has unambiguously expressed its clear intent to establish minimum national standards for safety and and financial responsibility of motor carriers. The Regulations authorized by Congress unambiguously support holding a motor carrier accountable for injury to an innocent member of the traveling public.
Under the Federal Motor Carrier Safety Regulations, the definition of “motor carrier” includes “a motor carrier’s agent,” “employee” includes “an independent contractor while in the course of operating a commercial motor vehicle,” and “lease” includes a “contract or arrangement in which the owner grants the use of equipment, with or without driver. . . .” The disjunctive reference to “contract or arrangement” must have some significance other than mere redundancy. In addition, the Regulations require that “[e]very motor carrier, its officers, agents . . . shall be instructed in and comply with the rules. . . .”
While the Regulations require a written lease, until last summer there had never been a reported court decision anywhere in the United States that let a motor carrier evade liability when it informally hired an owner-operator without bothering with the formality of a lease.
However, in one of our cases in which a jury had awarded over $2.3 million to our client for a serious permanent injury, a single judge of the Georgia Court of Appeals wrote a decision that disregards or misconstrues the Federal Motor Carrier Safety Regulations and conflicts with every relevant reported decision of both federal and state courts across the nation. See Clarendon Nat. Ins. Co. v. Johnson, 293 Ga.App. 103, 666 S.E.2d 567 (2008).
Standing the law on its head, that decision provides judicial blessing for motor carriers to circumvent all responsibility for owner-operator drivers by avoiding either execution of a written lease or use of the word “lease” in an oral arrangement. The only case cited as authority for the holding was an unpublished Texas decision that has nothing to do with our case, either on the facts or on the law.
This decision enables interstate motor carriers to hire without accountability unqualified owner-operator drivers who have no motor carrier authority and no commercial driver’s license, and who make no pretense of complying with any of the Federal Motor Carrier Safety Regulations.
This decision allows violation of one of the Federal Motor Carrier Safety Regulations to exempt motor carriers from compliance with the rest of the regulations, thus enabling them to immunize themselves through semantics. In this time of economic turmoil, motor carriers are freed to roll back the clock more than half a century to the type of abuse that the 1956 adoption of the “statutory employer” rule was designed to eliminate.
Within the past few days we have filed a petition for certiorari to the Supreme Court of the United States. That is a statistical long shot, as the Supreme Court agrees to hear only a tiny percentage of even highly meritorious cases.
If this decision stands, interstate trucking companies that are inclined to evade safety and financial responsibility rules will be able to revert to the pre-1956 practice of using non-compliant, unqualified and financially incapable “independent contractor” truckers for whom the carriers would bear no responsibility to the public. All of this was pointed out the the Georgia Court of Appeals and Supreme Court, but under the circumstances I find it hard to believe that anyone other than the one judge whose name is on the decision actually read and reflected upon the briefs and the implications of the decision.
Avoiding the expense of equipment maintenance, safety management and financial responsibility required by federal law, they could undercut the cost structure of law-abiding motor carriers and owner-operators, subjecting lawful trucking operations to unfair competition from those that exploit this loophole.
As bad drives out good, if this Georgia Court of Appeals decision approving the evasion of interstate motor carrier responsibility stands, the safety of the public on highways throughout the United States will be adversely impacted.
And innocent people across the country will die because one judge of the Georgia Court of Appeals gave his blessing to an evasion of responsibility contrary to all other interstate motor carrier law in the United States.
No, I'm not attempting to argue my appeal in a blog, as if that were even possible. I'm just warning other folks around the country that they may see the same sort of evasion as motor carriers learn that this shell game fooled a state Court of Appeals.
Continue reading "Intricate shell games evade accountability" »
Today in Bartow, Florida, a jury returned a $65 million verdict -- all compensatory damages, no punitives -- in a truck crash case against Bynum Transport. I understand the case involved a stop light collision with contested liability. The damage award was apparently all to fund a huge life care plan for severely brain damaged 19-year-old plaintiff.
This case may illustrate the fact that conservative, small town jurors are fully capable of returning an adequate verdict in these cases. Bartow, where the population in the 2000 census was 15,340, is the seat of Polk County. The population is 2/3 white. Polk County has been considered one of the most reliably Republican counties in Florida, and John McCain easily carried it in the last election. So this was not a wildly liberal runaway jury, but apparently conservative folks who were willing to follow the rules.
I don't have any information yet on how much of that verdict may be collectable.
When you or a loved one have been badly hurt in a catastrophic trucking accident, you may expect someone from the trucking company or its insurer to try to lull you into complacency. The objective is to avoid paying the value of the case, which they recognize is substantial. The tactics may remind you of the old joke, “I’m from the government and I’m here to help you.” They are from the insurance company and are “here to help you.”
The standard tactics, which my friend Morgan Adams in Chattanooga discussed in a recent blog post, include some variation of the following:
1. Pretending to be your friend. At trucking defense seminars, claims adjusters talk about how they try to become friends with a family by apologizing and offering to buy them a car and a house in exchange for giving up their claims. The adjusters take every opportunity to demonize any lawyers that the family might hire to represent them. At all costs they want to prevent the family from talking to an experienced trucking lawyer who would know how to investigate the case, demand that the company preserve paper and electronic records, and discovery trucking company’s violations of laws that contributed to causing the crash. In one recent case we handled, the adjuster started out talking to the family about paying their deductibles and copays on medical expense, and replacing their car, while at the same time trying to dispose of the physical evidence. But when the family hired me, and I deployed a rapid response to preserve evidence and make appropriate demands, the company soon paid its million dollar policy limit. Insurance adjusters know that revealing the truth could increase the value of the case significantly, and will do whatever they can to prevent that.
2. The misuse of annuities. Structured settlement annuities are a useful tool in settling cases because all the lifetime payments are tax-free and the burden of managing investments is lifted. However, in considering structured settlements, it is essential to focus first on what the defendant or its insurer is paying. Insurance companies will often show an unrepresented plaintiff that they will pay your family a million dollars over the next thirty years, while failing to mention that the annuity only costs $100,000 (or whatever) while the case has a present fair value in excess of a million dollars. In addition, they will use one of their own affiliated companies and brokers to issue the annuity, just switching the money from one hand to another. Thus, they play a shell game and get by with paying only a fraction of what the case is worth.
3. Inflation. No one knows exactly what future inflation will be, but we know that historically there is likely to be inflation. The adjusters will not seriously discuss with you how inflation will affect the value of funds paid.
4. Future medical expense. They exclude consideration of future medical expenses that eat into money paid to the family.They often fail to inform you of the impact of reimbursement claims by your health insurer, and do not protect your interests against such claims.
5. Future income loss. They exclude consideration of the full loss of income of the victim. People who have had major injuries often can’t work as much or as long as they would have, even if they initially return to work at the same job and at the same rate of pay.
6. Non-economic loss. They treat the non-economic losses of the family as having little or no value. The loss of quality of life, or the loss of a parent, is a matter of immense value which must be accounted for in a fair settlement of a case.
Remember the insurance adjuster’s job is to try to minimize payments on claims. No matter how friendly they may act, they are not there to help you.
In a few hours I will fly home to Atlanta after speaking at the American Association for Justice Interstate Trucking Litigation Group continuing legal education seminar.
The faculty at these national seminars form an invaluable nationwide network of knowledge, contacts and resources. If you are a lawyer seeking to handle any trucking cases for plaintiffs, I urge you to join the ITLG. Whenever I speak at these programs, I learn a great deal more from others than I can possibly teach them. While I learn something from almost every speaker, the faculty dinners may be the most valuable part of my participation.
Las Vegas -- "Sin City" -- has never been my cup of tea. But I can walk through that environment without finding it particularly tempting, and jog down Las Vegas Boulevard at dawn (as I did Saturday morning) while there are still plenty of people wandering in and out of casinos with drinks in their hands. It will be good to et home to Atlanta tonight.
Continue reading "Interstate Trucking Litigation Group seminar in Las Vegas" »
As a trucking trial lawyer in Georgia, I often encounter defendants seeking to exclude evidence of corporate misconduct by just admitting that that they are responsible for the driver. Rather than letting into evidence the whole story of the corporation's systemic disregard for safety for years, they try to focus on a couple of second on the road and then engage in subtle character assassination against the person who is injured or killed.
For a long time that worked. But now, as an illustration of the law of unintended consequences, tort reform may bring an end to that tactic.
The General Assembly of Georgia in 2005 passed a tort reform bill that includes O.C.G.A. § 51-12-33, as follows:
(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
In other states that similarly require allocation of fault between defendants, courts have held that the jury may be required to allocate percentages of fault between an employee driver and his employer against whom separate claims similar to negligent training, entrustment, hiring and supervision are made.
In Tennessee, “negligent entrustment does not create vicarious liability and the jury must allocate fault between the defendants.” Ali v. Fisher, 145 S.W.3d 557, 564 (Tenn., 2004).
In Kansas, “fault in a negligent entrustment case must be apportioned between the entrustor and the entrustee.” McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982).
In Texas, evidence that a driver trainer had only a weekend training course and never failed a trainee, and released a truck driver to drive solo before the terminal manager approved him to drive solo was sufficient to constitute a jury question on a claim of negligent training. Builders Transport v. Grice-Smith, 167 S.W.3d 1 (Tex. App. - Waco, 2005)
Continue reading "Georgia tort reform inadvertently puts brakes on a common defense tactic" »
As a trucking accident trial lawyer in Georgia, I find myself spending a lot of time in conference rooms for the depositions of truck drivers and trucking company owners. Since I sometimes represent truck drivers who are injured by the negligence of other truck drivers, it is not uncommon to spend a very long day with truckers on both sides of the table.
At this point few things surprise me. A few examples from depositions this week in a small town far from the nearest interstate highway:
* An owner of a certified interstate motor carrier for ten years was completely unaware that a motor carrier is responsible for leased trucks, the drivers of which are deemed to be employees of the motor carrier. That has only been the law since 1956. It is amazing how many people in the trucking business -- and how many judges -- are totally unaware.
* A motor carrier that never did anything to verify driving records or prior employment, never required drug tests, never maintained driver qualification files, never required drivers to agree to follow the Federal Motor Carrier Safety Regulations, and never audited driver logs.
* A truck driver who thought he was still legal to drive 17 hours and 45 minutes after he reported for duty at 3:30 AM. The federal hours of service regulation limits truckers to driving 11 hours out of 14 hours on duty.
* A plaintiff truck driver who was appalled at the degree of ignorance of the trucking business on the part of the carrier and driver that slammed into him, costing him many months of lost wages and the necessity of surgery.
The defendants don't seem like bad guys. Just untrained and uninformed. As one of them said, the case was a "wakeup call." It's an expensive way to learn.
Continue reading "A day full of trucker depositions" »
Individuals and families who suffer catastrophic loss due to trucking accidents always face hardship. In the midst of a the worst recession in a generation, the hardship is often even greater. Responding to that harsh reality facing our potential clients, I have adopted a new fee schedule that cuts average fees by more than 10%. And, as my own small scale "bailout plan" for injured individuals, I have adopted a new lower fee category for early settlements.
This fee schedule applies only to select auto and truck accident cases in which I am hired directly by an individual or family who assists by gathering police reports, photos, medical bills, and certified copies of medical records. I don't accept every case, and do require full disclosure of factors in the client's background that could adversely affect value of the case. Higher fees percentages apply to other categories of cases, such as products liability, professional liability, etc.
Recession Fee Schedule
Settlement within 45 days after sending demand package to insurance company and before suit is filed.
Normal Rate: 33 1/3%
Recession Rate: 25% (new early settlement category)
This discounted fee rate is available only if I am hired within one year after the accident and the client obtains the police reports and medical bills and records. Early settlements are seldom optimal settlements, but the decision belongs to the client.
Settlement after suit filed and before entry of pre-trial order
Normal Rate: 33 1/3%
Recession Rate: 29%
Settlement between entry of pre-trial order and conclusion of trial
Normal Rate: 40%
Recession Rate: 35%
Settlement on post-trial appeal, after appeal brief written
Normal Rate: 45%
Recession Rate: 40%
If I advance litigation expenses for experts, depositions, etc., as is usually necessary, I will be reimbursed at the time of settlement. I use a line of credit for funding of litigation expenses and pass through to the client the actual interest charged on those funds.
All contingent fees are calculated as a percentage of the total amount recovered from the party at fault or its insurance company. Representation includes efforts to negotiate compromises with lienholders, but any legally enforceable lien for medical expenses, etc., must be paid out of the client's share of any recovery.
In trucking cases that go to trial, we sometimes have opportunities to add to other damages a claim for attorney fees and expenses. For example, violations of mandatory motor carrier safety rules may be the basis for a jury to add an award for attorney fees for "bad faith" The extent to which an insurance company explicitly considers a claim for fees and expenses in pre-trial negotiation varies.
Call (877) 778-7944 (toll free) or contact us online.
Continue reading "Recession hardship for injury victims prompts attorney fee discount" »
A Kansas federal court jury has awarded a $23.5 million verdict for a serious spinal cord injury arising from a 2006 wreck in New Mexico, according to a news story by Ron Sylvester of the Wichita Eagle. The judge reduced the amount to $15.3 million because the jury decided the driver of the other truck was only 65 percent at fault.
A Swift Transportation truck driver was backing up from a rest stop onto the highway when she hit a Yellow Freight truck. The driver of the Swift Transportation truck tested positive for methamphetamine but claimed she was rear-ended. Accident reconstruction proved that story to be false.
The driver of the Yellow Freight truck was killed and the passenger / co-driver had a severe spinal cord injury. This verdict was for the spinal cord injury victim. The wrongful death case is set for trail next spring.
This was not the biggest verdict against Swift Transportation. Last year an Arizona jury awarded $36.5 million to the family of a man killed in a collision with Swift trucks.
At this firm we frequently represent truck drivers who are injured by the negligence of other truckers.
A tractor trailer driver going too fast to see his way through dense fog Monday morning in Fresno, California killed a young woman on her way to work.
According to a report by Jim Steinberg and Vanessa Colón of The Fresno Bee, a big-rig drive Martin Nelson, 22, of Fresno, failed to see stopped traffic in heavy fog. He struck a Ford Explorer, killing the woman inside.
At least two critically important provisions of the Federal Motor Carrier Safety Regulations appear to have been violated here.
First, 49 C.F.R.§ 392.14 requires:
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . . rain, dust, . . . adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.
Two California court cases have held that a trial court must instruct a jury on the federal "extreme caution" standard of care rather than the regular negligence standard under state law. Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001); Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). See also, George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006).
Second, 49 C.F.R. § 392.1 requires:
Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.
This case involves a 22-year-old truck driver. My hunch, based on experience in trucking cases, is that his employer checked to see that he had a CDL (Commercial Driver's License, checked to see if he had any moving violatons in the past three years, and tossed him the keys. I seriously doubt that the employer made any efforts at all to assure that he understood and appreciated the need to slow down or pull over when hazardous driving conditions made operation of the tractor trailer unsafe.
As a result, an innocent motorist is dead and her family grieves.
The challenge facing an attorney handling such a case is often to educate judges who don't even know that they are ignorant of motor carrier safety law. That is a continuing challenge as it requires getting a busy judge to focus on a body of federal law with which he or she may have great familiarity. Too many lawyers and judges think a tractor trailer crash is "just a big car wreck" and fail to recognize the legal and technical issues that must be considered.
Continue reading "Big rig crash in morning fog kills woman" »
In my trucking litigation law practice, I all too often see fatal truck accidents that happen in bad weather Despite a federal safety regulation requiring "extreme caution" in hazardous weather, and instructions in the Commercial Drivers License Manual to slow down by at least one-third, truckers under economic pressure from employers, shippers, and sometimes their own creditors, too often speed ahead through rain and snow.
The most recent such crash in the news was yesterday on I-81in Virginia's Shenandoah Valley, a road I know well.
It happened about 11:30 a.m. near New Market, Virginia. The road was slickened by snow. A big rig operated by Jose Alberto Sarmiento of Texas, hit several vehicles before rear-ending of a Ford Escort, killing three members of a Virginia family.
According to a report by Pete DeLea in the Daily News Record of Harrisonburg, VA, Sarmiento has been charged with reckless driving and three counts of felony involuntary manslaughter.
The Federal Motor Carrier Safety Regulations, 49 C.F.R. § 392.14 requires:
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.
Every reported case that addresses the issue agrees that it is reversible error for a trial court not to instruct a jury on this "extreme caution" standard.
In Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001), a tractor trailer sped through blowing snow until striking another tractor trailer. The trial court denied a request to charge on the “extreme caution” standard under 49 C.F.R.§ 392.14, instructing the jury instead on the state standard of ordinary negligence. The appellate court reversed, holding that the trial court should have charged on the higher federal regulatory standard rather than the lower standard provided by state law. The same decision was reached in Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). Clearly, if the federal “extreme caution” standard preempts a state rule of “ordinary care,” the reasons are even stronger for it to preempt a state standard of “willful or wanton misconduct.”
The Minnesota Supreme Court in George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006), held that it was reversible error to give a “curative” instruction contradicting an attorney’s argument that a “reasonable care” standard did not apply, even though the full instructions included reference to standards of “utmost care” and “extreme caution.”
In Kentucky, Jurek v. Hubbs, 2004 WL 1487116 (Ky.App.,2004), involved denial of the plaintiff’s motion for directed verdict based on 49 C.F.R.§ 392.14 rather than jury instructions. However, the court recognized that the Federal Motor Carrier Safety "regulations govern the operation of commercial motor vehicles in the United States. To the extent that they establish a standard of care higher than the law, ordinances, or regulations of a particular state jurisdiction, a commercial driver must comply with the FMSCR."
The Virginia Supreme Court held, in Kimberlin v. PM Transport, Inc., 264 Va. 261, 563 S.E.2d 665 (Va.,2002), that it was reversible error to direct a verdict for the defendant where there was a question of fact whether truck driver violated the duty created by 49 C.F.R.§ 392.14 to exercise extreme caution under hazardous conditions and whether violation of such duty was a proximate cause of the accident. The court noted that while violation of the regulation does “not constitute negligence per se [It] simply creates an expanded duty of care for the operation of commercial motor vehicles under the conditions stated therein.”563 S.E.2d at 668-69.
Continue reading "Truck wreck kills three in hazardous weather" »
As a lawyer handling catastrophic trucking accidents, I have repeatedly seen the deadly effects of driver fatigue as truckers are pushed beyond their physical limits by trucking companies and shippers.
Now the National Transportation Safety Board on Tuesday recommended that trucking companies and the government place increased emphasis on making sure truck drivers follow regulations governing proper rest. Additionally, officials at the NTSB recommended that the government should investigate the use of alarms and other devices to monitor drivers’ alertness. Experts estimate that fatigue is responsible for one in eight large-truck crashes.
The NTSB also called upon the Federal Motor Carrier Safety Administration to step up enforcement of trucking companies, making sure their record-keeping is up to date and drivers are being given adequate time to rest.
Investigators also debated the use of technology designed to warn of impending collisions and automatically engage the brakes. They discussed concerns that automatic braking could interfere with the stability of large rigs, so the board recommended that the National Highway Traffic Safety Administration study the technology and mandate its use if it proves effective.
Continue reading "NTSB urges stronger enforcement of truck driver rest period rules" »
As a truck accident trial lawyer in Atlanta, I'm puzzling over how the falling dominoes in the current crisis on Wall Street will impact the trucking and insurance industries.
High fuel prices, hurricanes, dependence on foreign oil, the subprime mortgage mess, the economic rise of China and India, the cost of war in Iraq and Afghanistan, and deferred spending on American infrastructure combine to affect both trucking and insurance.
Oil prices have risen due in large part to the increased world demand accompanying the economic development of China and India, while we are dependent upon Arabs, Russians, etc. for our supply. On the other hand, oil prices are moderated by any economic slowdown that decreases demand.
Hurricanes, which may be increasing in intensity due to global warming, temporarily impact fuel prices as they hamper production, refinery and port capacity on the Gulf coast. Payment of hurricane losses impacts the insurance industry that has already been impacted by the financial mess.
In trucking, high fuel costs have both direct and indirect effects. The direct impact of high fuel prices on truckers is obvious. Moreover, I have heard from truckers that motor carriers collect fuel surcharges and too often fail to pass it on to independent owner operators who actually purchase the fuel. The indirect impact is on demand, as shippers shift more long-haul business from trucks to rail. Any slowdown in the economy further depresses demand for shipping.
As more shipping shifts from long-haul trucks to multimodal freight logistics systems involving both long-haul rail and short-haul trucking, we are likely to see more freight containers bolted to poorly maintained trailer chassis. We will see a shift in the technical, regulatory and insurance issues involved in trucking accidents that result. Unfortunately, some judges who have poor understanding of trucking regulations and case law will not comprehend what is going on and render simplistic judgments with devastating impacts on innocent victims. The challenge for lawyers will be to ferret out the details of business relationships in order to overcome the multiple layers of defenses.
Under economic pressure, we can expect many trucking companies to cut corners on all aspects of safety. Those companies that carry more insurance than the law requires will be tempted to bet the company that, despite compromises on safety, they won’t face catastrophic injury claims.
There is already an ongoing shakeout in the trucking industry. That will continue. I keep hearing reports of owner operators just walking away from rigs they can’t pay for any more Some of those used trucks will wind up being exported to other countries. I expect we will see a trend toward reduction of trucking industry capacity and consolidation in the trucking industry.
At the same time, the financial crisis that began with the meltdown in subprime mortgage-backed securities has reached beyond investment banking to the insurance giant AIG. Laying aside any feelings of schadenfreude (joy about another’s misfortune) due to the arrogant corporate culture of AIG under the leadership of former CEO Hank Greenberg, we have to recognize the prominent role of AIG in the insurance industry. As the implications of its downfall ripple through the insurance industry, I expect to share the pain.
While AIG is the teetering giant in the news today, we will soon find that the impact of the financial crisis is widespread in the insurance industry, affecting both the insurance companies that are familiar to the public and the reinsurers that insure the insurance companies. If reinsurers begin to fail, the shock waves will reverberate throughout the insurance industry.
The insurance industry has a long history of blaming injury victims and trial lawyers for its own investment losses. It seems that every financial crisis affecting insurers' investments is soon followed by a new round of premium increases. Unwilling to accept responsibility for investment losses, insurers blame the little guys and campaign for a new round of "tort reform."
Due to the financial meltdown related to securitization of subprime mortgages, we will likely see increasing insurance premiums for everyone, including truckers. Many truckers who are already struggling will be put out of business by increases in fuel and insurance costs unrelated to anything they did wrong.
As the truckers cut costs, safety management will be one of the first things cut. The end result will be that more people will be killed or injured. Lawyers like me will represent the victims. Insurance and trucking companies will fight even harder to avoid paying claims. Stubborn refusals to pay legitimate claims will result in more trials of cases they should settle, and more large jury verdicts.
In this environment more than ever, families that are devastated when trucking companies operate in an unsafe manner need to understand that the insurance companies send "rapid response" teams to scenes of serious accidents, and will try to lull them into complacency while crucial evidence is "lost" or destroyed. Time is of the essence as it is essential to take early action to preserve evidence. We are prepared to fight the good fight against trucking and companies that are determined to avoid and delay payment of legitimate claims.
Continue reading "Impact of the Wall Street crisis on trucking and insurance" »
As a trucking accident trial lawyer, I occasionally see trucking companies try to evade responsibility for their driver. Generally, that is covered adequately by 49 C.F.R. § 390.5 which in the interstate trucking context defines "employee" to include "an independent contractor while in the course of operating a commercial motor vehicle."
But when a really devious trucking company comes up with a scheme to try to evade that responsibility, we can fall back on what courts used before enactment of that “statutory employee” rule.
Before 1956, courts could rely upon the Restatement rule that, “An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.” Restatement (Second) of Torts § 428.
As a Georgia trucking attorney, I sometimes see motor carriers create a shell game in which they claim after a tragic accident happens, to have been acting as a broker or logistics company, rather than as a motor carrier. Of course, when you dig into their marketing materials, they usually represented to shipping customers they were pretty much a "one stop shop" that covered everything from pickup to delivery.
49 C.F.R. § 371.7(b) provides, “A broker shall not, directly or indirectly, represent its operations to be that of a carrier.” A broker may be treated as a carrier if it does not delineate the broker role. See, e.g., KLS Air Express, Inc. v. Cheetah Transp. LLC, 2007 WL 2428294 (E.D.Cal.,2007).
Many lawyers think that a tractor trailer crash is just a big car wreck. Not knowing how much they don’t know, they fail to take necessary steps to preserve and develop evidence. So how can you as a consumer identify an appropriate lawyer for a trucking accident case? My friend Morgan Adams in Chattanooga recently wrote on this topic in his blog.
1. A trucking accident trial attorney should have peer review ratings and specialty organization memberships that indicate experience, competence, and a very strong focus on trucking trial practice. Generally, the attorney should be member of his or her state trial lawyers organization (e.g., Georgia Trial Lawyers Association), the American Association for Justice (AAJ), AAJ’s Interstate Trucking Litigation Group, and the Association of Interstate Trucking Lawyers of America. It is a plus if an attorney has chaired continuing legal education seminars in the area of trucking litigation, who are Certified Civil Trial Advocates of the National Board of Trial Advocacy, and who have participated in a meaningful way in local or state bar associations.
2. A trucking accident attorney should have the capacity to fund substantial litigation. The cost of accident reconstruction experts, economists, vocational experts, video depositions of multiple defense witnesses and treating physicians, custom medical illustrations, and extensive travel around the country for depositions can be quite expensive. While the lawyer’s office need not be palatial or in a state of the art office tower, it should have some of the earmarks of success and competence. The key is whether the lawyer has access to funds, often through a large litigation funding line of credit, to fund properly preparing a case for trial.
3. Any lawyer you entrust with handling a catastrophic injury case should have the experience of litigating and trying truck accident cases.
Continue reading "Truck accident lawyer selection" »
