Articles Posted in Trucking industry

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truck-crash-2-1-300x169Over decades of representing victims of catastrophic truck crashes and their families, we often have seen fly-by-night truckers hired by larger entities that knew or should have known of the dubious safety records of the truckers they hired. Sometimes we have been able to assert claims against the larger companies for negligent hiring of unsafe truckers.

For several years, insurers for trucking freight brokers have tried relentlessly to use the Federal Aviation Administration Authorization Act (FAAAA) to preempt claims for negligent selection of unsafe motor carriers. The defense position has been that the FAAAA, 49 U.S.C. § 14501(c)(1)) trumps all other state and federal rules authorizing liability of motor carriers, brokers, and freight forwarders. That code section says:

“General rule.—Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.”

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car-accident-300x240 Since 1981, forty years ago at the beginning of the Reagan Administration, minimum liability insurance required for large trucks in interstate commerce has remained unchanged at $750,000. Everything else has gotten more expensive in the past forty years. Nothing costs the same since then–not the truck, the repairs, the gas, or the tolls, so it is completely unrealistic for the truckers to have the same insurance as they did forty years ago.

If adjusted for the general rate of inflation over the past forty years, it would be $2,203,415.84 today. People who are injured by trucking negligence need to pay their medical bills so trucking safety advocates have sought for years to bring some balanced fairness to others on the road. If adjusted to the rate of medical inflation it would be about $5 million. But opponents of advancing public safety on the highways repeatedly have blocked an inflation adjustment on the amount of insurance required.

This year, a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section. as a reasonable compromise.

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rear-underride-300x133Over decades representing individuals and families devastated by highway crashes with large trucks, one of the most poorly understood hazards we have seen is that of tractor trailers parked on the side of the road. Among the hazards presented by semi trucks parked in the emergency lane is decapitation of people in an approaching car due to trailer underride.

Often late at night on Georgia highways, we see tractor trailers parked on what many people commonly refer to as the “emergency lane” next to the traffic lanes. Unfortunately, many people even in the trucking industry do not appreciate how dangerous this can be for the truck driver and for motoring public.

Stopping on the roadside increases risks of a potential deadly crash, which can be prevented through management practices that include good trip planning, vehicle inspections, and appropriate equipment maintenance.

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This week in north Georgia there was a fatal crash between a tour bus en route to a North Carolina casino and a tractor trailer blocking traffic lanes while waiting to turn left. This happened on Georgia Highway 515 (also known as the Zell Miller Mountain Highway) at the intersection with Whitestone Road in Gilmer County.  The bus driver was killed and 43 passengers suffered a variety of injuries.

The preliminary investigation by the Georgia State Patrol  blamed the truck driver. Troopers reported that the truck driver was making a left turn onto Highway 515 southbound when he paused for traffic, leaving the trailer projecting across and blocking northbound lanes. The northbound bus driver was reportedly unable to avoid crashing into the truck’s trailer. However, first reports are not always conclusive.

This crash highlights issues with both tractor trailer operation and tour bus operation.

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I-16 truck crash May 19 2015

Truck crash on I-16 at I-95 on 5/19/2015 killed 5. Truck driver admitted falling asleep, is charged with 5 counts of vehicular homicide.

In the spring of 2015, there were two separate five-fatality truck crashes on I-16 in Georgia. The first one got most of the publicity because the victims were all beautiful young nursing students, but both were equally lethal and egregious. In both cases, there were at least indications that a truck driver fell asleep before running over a line of stopped traffic.

On April 22, 2015, in Bryan County, John Wayne Johnson, a truck driver from Louisiana driving for Total Trucking, a subsidiary of US Express, ran over vehicles stopped traffic. He killed five Georgia Southern University nursing students and injured two others. It appears he went to sleep as there was clear visibility on a long, straight stretch of road before he ran over the stopped vehicles. Johnson admitted he had been texting and exchanging sexually provocative message with a woman while driving but denied he was on the phone at the time of the crash.

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Cherokee county mapLast week in Cherokee County, a Comcast truck failed to stop behind a car that had stopped to turn, went into the opposite lane, and struck head-on an oncoming car, killing the driver.

According to media reports, at the intersection of Ga. 140 and Avery Road, a Ford Fiesta  stopped to turn left onto Avery Road just before 12:30 p.m. on September 28, 2015.  For unknown reasons, a Comcast truck steered to the left to avoid hitting the Ford and traveled into the westbound lanes striking a Chevy pickup head-on.

The driver of the pickup — who I understand was a really good guy with whom I have several friend in common —   died at the scene of the crash. The driver of the Comcast truck and an occupant of the Fiesta were also injured.

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driving-in-fogOnce again, a tractor trailer making a u-turn in dark or fog on a rural Georgia road has proven fatal. Once again, a turning tractor trailer forms a deadly and virtually invisible fence across a highway.

On September 30th at Lenox, Georgia, a man was killed when he collided with a Scruggs Concrete semi-truck attempting to make a u-turn in the roadway in foggy conditions. He was killed when the collision sheared off the top of his pickup truck.

This is an all too common form of truck crash across the United States, largely due to poor training and management at companies that operate the trucks.

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NOTE TO TRUCK DRIVERS:

Our law practice focuses on representation of people who are seriously injured, and families of those killed, in crashes with large commercial vehicles. While those are often truck drivers, we do not handle truckers’ employment law matters. For legal advice on issues with your employer or truck driving schools, see Truckers Justice Center. 

One day in Kansas City, I took the deposition testimony through an interpreter of a Bosnian immigrant truck driver. He was driving with a Florida Commercial Driver’s License (CDL) when he crashed an 18-wheeler into my client on a Georgia interstate highway.

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One of the leading causes of tragic tractor trailer crashes is the influence drugs – even perfectly legal prescription or over-the-counter medications — on drivers’ motor skills, balance, coordination, perception, attention, reaction time, and judgment. Even small quantities of some legal drugs can have a crucial impact on driving ability.

In 2009, the National Highway Transportation Safety Administration reported results of a study finding that 18% of fatally injured drivers tested positive for at least one illicit, prescription, or over-the-counter drug. Perhaps more significantly, drugs 7 times as likely as alcohol to be present in weekend nighttime drivers — 16% testing positive for drugs compared with only 2% above the legal limit for alcohol. In our practice, we have also seen the catastrophic impact of drivers who combined some alcohol with a mix of various legal and illegal mind-altering drugs.
When you combine the witch’s brew of drugs and alcohol with the huge kinetic force of an 80,000 pound tractor trailer, the danger is exponentially greater than when a similarly intoxicated person is driving a small passenger car.

On March 25, 2015, the Federal Motor Carrier Safety Administration (FMCSA) lowered the boom on a Georgia-based truck driver for drugged driving. Robert Lee Turner was declared “an imminent hazard to public safety” and banned from operating any commercial motor vehicle in interstate commerce.

Turner was operating an intermodal tractor trailer when he hit and seriously injured Corporal William Solomon, a Georgia Ports Authority police officer, who was doing routine traffic control duties at the Garden City Terminal. After he tested positive for cocaine, he was arrested and charged with DUI.

“Commercial drivers should have no doubt that we will vigorously enforce all federal safety regulations to the fullest extent possible by law,” said FMCSA Chief Counsel Scott Darling. “FMCSA is committed to raising the bar for commercial vehicle safety, and we will remain vigilant in removing unsafe truck and bus drivers from our roadways.”

Turner was not terribly atypical of truck drivers hired by small trucking companies that are contracted to tow intermodal container chassis trailers from the ports of Savannah and Jacksonville. The larger companies that control the international ocean shipping of intermodal freight containers attempt to hide behind these small, minimally insured companies. When disasters occur in their operation on Georgia highways, most victims and most attorneys don’t know any better than to accept the relatively paltry amount of insurance dangled before them. A significant part of our practice involves navigating the little-known path through federal regulations to reach the more adequate insurance coverage of the intermodal companies.
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Over the years in my Atlanta based trucking litigation practice, I have had truck drivers tell me – reluctantly in deposition testimony, and sometimes voluntarily in confidential talks over coffee at roadside Waffle Houses – how paper logs of their hours of service are easily fabricated “comic books.”

Often I have gone behind those records to a variety of electronic records of a variety of related transactions to prove that the logs were wildly inaccurate. With tractor trailers now becoming rolling computer networks, I have anticipated that those who are motivated to cheat would find ways to cheat the computers too.

More than three million truck drivers in the United States are facing a regulatory upheaval which will cost the industry an estimates $2 billion and change the ways in which many truck drivers operate. Over the next few years it will become mandatory, by law, for all American truckers to carry an electronic onboard recorder (EOBR) in their vehicles. Although there are a number of EOBR on the market, in order to comply with the incoming federal mandate the device must all be able to track when a truck’s engine is running, record its duty status and ensure that drivers aren’t working for more than 14 consecutive hours, including a maximum of 11 actual driving hours within that window.

The idea is to make the mandatory “Hours of Service” logs that trucking companies are supposed to keep more accurate. The underlying objective is to reduce fatigue related crashes involving truck drivers who have been on the road over the legal amount of hours. But the new systems alone may not be a panacea for all driver fatigue risks.

Of course, a lot of truck drivers resist closer monitoring of their hours of service. I have heard truck drivers say it was nobody’s *#$%@ business” how many hours they work, apparently oblivious to the safety risks inherent in fatigued operation of an 80,000 pound vehicle.

Other trucks acknowledge that the new EOBR system is a step in the right direction and even helps them financially. One veteran trucker was recently quoted in a media report saying, “My gross revenues have been up year over year each year since using the electronic logs. Now is it due to the electronic logs? Not the machine itself, it’s the efficiency that’s been forced onto us by the machine.”

Resistance to change comes from the group of veterans that have been on the road for decades. One veteran trucker explained, “I worked better in a ‘nobody-hassling-me’ kind of environment. I modified my operation to make it work. As much as the libertarian in me says no to mandates, they’re coming. You might as well just wake up, face it, and deal with it.”

Concerns about the devices come from the people pushing for mandates as well as the truck drivers themselves. Truckers are fearful that this new device will be used more like a babysitter than a tool for change. Many are aware that a record which shows a trucker is slightly harder on fuel thanks to the way he revs, idles, and brakes could mean that he won’t get a job in an increasingly competitive market. Fears that trucking companies could misuse their expanded awareness have already been expressed in the courts. In 2011 the Owner Operator Independent Drivers Association (OOIDA) launched a lawsuit against the Federal Motor Carrier Safety Administration (FMCSA), the authority responsible for drafting the new mandate.

OOIDA complained that there was a risk of driver harassment in which carriers might persuade their drivers to get back on the road and complete a run even after they have passed the 11 hour limit that drivers are given to be on the road for a day. The worry was the fatigue, weather conditions, and traffic problems could all be problems that are ignored for the sake of the time sheet. There is also a growing concern about the reliability of the devices that the mandate specifies be in the vehicle.

According to Karen Levy, a PhD candidate in the Department of Sociology at Princeton, many drivers are already experimenting with hacks and methods of tampering. “Truckers are a particularly savvy and motivated bunch,” she says. “Some driver have figured out how to temporarily disconnect certain EOBR models from the truck, or to otherwise block their signals so they can’t record data. Another approach is to drive using multiple driver ID numbers which are sometimes called “ghost logs.”

New products, such as the Safety Pass Pro, enable truck drivers to override speed governors that their companies install to limit them to safe speeds. While the product is sold as a safety feature to facilitate passing or to slow down so that a “road rage” driver can pass the truck, it does not take a genius to understand how this can be used to enable truckers to drive at unsafe speeds.

Some examples of cheats and hacks I have heard about from truckers include: (1) when stuck in traffic, take the truck out of gear and snub out the truck, shifting the log from “driving time” to “off duty not driving”; (2) if an activity is under 5 minutes, the driver can fudge it back into the last duty status, so that a short hop from a truck stop to a terminal might not be recorded as driving time. These types of e-log hacks would not be detected in a surface scan but could raise questions in an in-depth log audit that compares logs to GPS locations.

Today, OOISA says it is not currently planning any further legal challenges against the FMCSA, whose rulemaking is nearly complete. Most observers believe the final rule will be enforceable on American highways by 2015.

Going forward in trucking accident litigation, we face new challenges in looking behind the electronic logs for cheats, hacks and truth.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of catastrophic personal injury and wrongful death.
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