COVID-19 Update: How We Are Serving and Protecting Our Clients. Learn More
Published on:

How will the COVID-19 pandemic affect truck crash cases?

pandemic-287x300Throughout history, epidemics  have swept through populations.  Waves of pandemic — bubonic plague, cholera, smallpox and influenza — have killed  hundreds of millions of people. Now we face the  COVID-19 pandemic.

The effects of this epidemic, both medical and economic, could be historically devastating. For at least the next few months, our lives will be changed radically by  “social distancing,” closing of schools and businesses, decrease of business especially in travel, retail and hospitality industries, shortages of food and supplies, and unpredictable ripple effects.

As any trucker will tell you, if a truck doesn’t deliver it, you don’t get it. To keep hospitals supplied, grocery stores stocked, fuel tanks filled, mail and online purchases delivered, trucks must keep running. We should appreciate the work good truckers do.

Truck crashes will occur less often during this time of pandemic emergency  because highway  traffic is already reduced. With less vehicles on the highways, there will be fewer  cars that could be hit by tired truckers.

But there will be some crashes anyway. For a lawyer called upon to represent the victims of those crashes, it is important to be prepared to deal with the changed legal environment.

Under the federal  Emergency Declaration, rules governing motor carriers and drivers are temporarily changed in several significant ways if they are providing direct assistance in support of relief efforts. Direct assistance includes deliveries needed for immediate restoration of essential services, such as medical care, or essential supplies such as food, related to COVID-19 outbreaks during the emergency.

In addition, Georgia has a Judicial Emergency affecting operation of the courts.

This Emergency Declaration provides regulatory relief for commercial motor vehicle operations that are providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for:

(1) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;

(2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants;

(3) food for emergency restocking of stores;

(4) equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;

(5) persons designated by Federal, State or local authorities for medical, isolation, or quarantine purposes; and

(6) persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

Direct assistance does not include routine commercial deliveries, or transportation of mixed loads that include essential supplies, equipment and persons, along with supplies, equipment and persons that are not being transported in support of emergency relief efforts related to the COVID-19 outbreaks.

Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services that are not in support of emergency relief efforts related to the COVID-19 outbreaks or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. 49 CFR 390.23(b).

Upon termination of direct assistance to emergency relief efforts related to the COVID-19 outbreaks, the motor carrier and driver are subject to the regular safety rules limiting work hours to mitigate fatigue, except that a driver may return empty to the motor carrier’s terminal or the driver’s normal work reporting location.

However, if the driver informs the motor carrier that he or she needs immediate rest, the driver must be permitted at least 10 consecutive hours off duty before the driver is required to return to the motor carrier’s terminal or the driver’s normal reporting location.

Once the driver has returned to the terminal or other location, the driver must be relieved of all duty and responsibilities and must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers.

Nothing contained in the Emergency Declaration can be construed as an exemption from the controlled substances and alcohol use and testing requirements, the commercial driver’s license requirements, the financial responsibility (insurance) requirements, the hazardous material regulations, size and weight requirements, or any other portion of the regulations not specifically exempted under to 49 CFR § 390.23.

Motor carriers or drivers already subject to an out-of-service order are not eligible for the relief granted by this declaration until they have met the applicable conditions for its rescission and the order has been rescinded by FMCSA.

When terrible truck crashes  occur during the pandemic emergency, many of the rule violations that we use to establish accountability will not be applicable. However, it is important to know where to focus efforts. Some of the steps to consider in representing victims of truck crashes in the time of pandemic include:

  •  Interview clients and witnesses through videoconferencing technology, e.g., Facetime, Skype, Zoom, Facebook Messenger video chat, in order to maintain social distancing to prevent spread of the virus.
  •  Use BuyCrash to download police crash reports. We have been doing this for a while already.
  •  Email records retention letters in most instances to contacts listed online with the Federal Motor Carrier Safety Administration, with proof of delivery and receipt.
  • Modify the usual “spoliation” letters  to focus on what freight was being transported to determine whether the emergency exemptions to normal rules may apply. Knowing that some insurance companies will seek to portray every delivery as an emergency delivery, even if it is not, lawyers for crash victims must be prepared to pierce through any misrepresentations.
  •  In some catastrophic cases, we have used temporary restraining orders (TRO) to preserve evidence. In normal times, we have walked the TRO petition through the local superior court. Now we must e-file it and contact the presiding judge of superior court in the subject county by phone and email. In the time of pandemic emergency, we would draft the TRO to allow more time than usual and protocols to preserve social distancing. I would take the position that Chief Justice Melton’s Declaration of Judicial Emergency supports extending the usual time limits in TRO’s. However, trucking companies would argue that they must get operable equipment back into service to make emergency relief deliveries.
  • Extend timelines for litigation, e-filing lawsuits early enough to allow plenty of time for extending deadlines. E-file early and allow plenty of time to complete service of process. Selectively use of requests for waiver of service, sometimes delivered  to companies by email using delivery and read receipts, and perhaps with longer than the usual minimum 30 days time allowed for response and stating an extended time filing an answer in court.
  •  Use video conferencing for any conferences, depositions and hearings until the pandemic ends.

We have been through worse crises. It will be tough but we will endure. The best is yet to be.

 


d5f209c6-4729-e911-80ea-1402ec94d03c-300x300

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

Effective January 2, 2020, he moved his existing law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862. 

Posted in:
Published on:
Updated:

Comments are closed.

Contact Information