Articles Posted in Trucking insurance

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tt-wreck-300x225A family member was killed or catastrophically injured in a crash with a big truck. Now it is your responsibility to decide how to proceed. What should you do?

  1. Act quickly. The trucking company and its insurance company may use any delay to “lose” or delete critical evidence. Don’t let them do that.
  2. Hire a well-qualified trucking lawyer. Don’t just hire a firm with a tv ad or billboard. Much as you want a board-certified surgeon, look for a board-certified truck accident civil trial lawyer. The National Board of Trial Advocacy is authorized by the American Bar Association to run certification programs that include vetting of experience and ethical practice and require tough written examinations. Ken Shigley was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy: Civil Trial Practice(1995), Civil Pretrial Practice (2012), and Truck Accident Law (2019). He is a former President of the State Bar of Georgia, lead author of eleven annual editions of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-21), and received the Traditions of Excellence Award for lifetime achievement (2019). Partners John Adkins and Ed Stone are younger, energetic versions of the same.
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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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log-load-300x200Log trucks crashes are distressingly common tragedies across rural Georgia, often causing death or terrible injuries.

Most log trucks operating in the middle of Georgia operate exclusively intrastate, inside the state of Georgia, and do not cross state lines. They are governed by the Georgia Forest Product Trucking Rules, which exempt applicability of numerous provisions of the Federal Motor Carrier Safety Regulations. Log trucks operating near state lines may cross into neighboring states, subjecting them to the Federal Motor Carrier Safety Regulations.

Length of loads.

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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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pinball different pathWhat do you do when insurance coverage is grossly inadequate for a catastrophic truck crash personal injury or wrongful death case?

Big truck wrecks can cause a lot of carnage. When a small passenger car is run over at highway speed by a 80,000 pound tractor trailer bigger than a Sherman tank, a tremendous amount of kinetic energy is unleashed. The results are often than catastrophic.

Unfortunately, the liability insurance required for big trucks has not been adjusted since President Reagan’s administration. Minimum insurance for general freight tractor trailers in interstate commerce was set at $750,000 in 1981. Minimum coverage for interstate hazmat trucks and passenger buses was set at $5,000,000 in 1985.

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The Georgia House of Representatives last week passed a bill which, if passed by the Senate and signed by Gov. Deal, would incrementally strengthen the leverage of automobile insurance policyholders who make claims under their “UM” (uninsured / underinsured motorist coverages.

The sponsors of this legislation, House Bill 303, are Rep. Dusty Hightower (from my old hometown of Douglasville), Rep. Alex Atwood (of St. Simons Island, but who I knew at Douglas County High School eons ago), and my other friends, Rep. Ronnie Mabra of Fayetteville, Rep. Tom Weldon of Ringgold, Rep. Trey Kelley of Cedartown (where I tried my first case as a young prosecutor before he was born) and Rep. Stacey Evans of Smyrna. Hats off to them for their efforts.

UM coverage protects a policyholder who is injured due to the negligence of a person who has no liability insurance, or less liability insurance than the injured person has in UM coverage. Unless rejected in writing, new auto insurance policies in Georgia include UM coverage equal to the amount of liability coverage.

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Truck driving is one of the most dangerous jobs around. Over the years I have represented individuals and families who were hurt when hit by a big truck. I have also successfully represented a number of truck drivers injured due to the carelessness of the driver of a smaller vehicle or other truckers.

One of the big concerns in suing the driver of an ordinary passenger car for serious injury to a truck driver is that the car may have inadequate insurance coverage to adequately compensate the seriously injured truck driver.

A recent decision by the Georgia Court of Appeals may change that.
In McGraw v. IDS Property & Cas. Ins. Co., — S.E.2d —-, 2013 WL 3215464 (Ga.App., decided June 27, 2013)( Reconsideration Denied July 5, 2013), the Court applied in the commercial vehicle context a statute passed in 2008 to require that automobile insurance policies must include Uninsured Motorist (UM) coverage equal to the amount of liability coverage unless the policyholder affirmatively elects UM coverage in a lesser amount.

OCGA § 33–7–11(a)(1) “requires insurance policies issued in Georgia to contain provisions for UM coverage which at the option of the insured shall be (i) not less than $25,000 per person, or (ii) equal to the policy’s bodily injury liability insurance coverage, if higher than $25,000 per person.” Infinity Gen. Ins. Co. v. Litton, 308 Ga.App. 497, 499(2), 707 S.E.2d 885 (2011). This Code section further provides that “[i]n any event, the insured may affirmatively choose [UM] limits in an amount less than the limits of liability [for bodily injury].” OCGA § 33–7–11(a)(1)(B). “This Code section was intended to make a policy’s liability limits the default provision for UM coverage, unless an insured affirmatively elects UM coverage in a lesser amount.” Infinity Gen. Ins. Co., 308 Ga.App. at 499(2), 707 S.E.2d 885 (citation omitted).

Therefore, when a vehicle insurance policy limits UM coverage to an amount less than the policy’s bodily liability limits without the insured having affirmatively chosen that lesser amount, the policy is not in compliance with OCGA § 33–7–11(a)(1). When that happens, the requirements of the statute take control over the terms of the policy. See OCGA § 33–24–12(a) provides that an otherwise valid insurance policy that contains a condition or provision not in compliance with the requirements of Title 33 “shall be construed and applied in accordance with such conditions and provisions as would have applied had the policy … been in full compliance with this title.”

In Dees v. Logan, 282 Ga. 815, 816, 653 S.E.2d 735 (2007), the court held, “When an uninsured motorist policy provision is in conflict with the clear intent of OCGA § 33–7–11, the policy provision is unenforceable and the statute controls.” When an insurer issues a policy with provisions not in compliance with the law the contract will not be rendered void but the provisions of the statute will be grafted into the policy”. Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 714(3), 300 S.E.2d 673 (1983).

In the McGraw case, the policy application included no signed election of UM coverage than the liability coverage. While the declarations page specifies UM coverage limits at the lesser amount, this cannot support an inference that the policyholder made an affirmative choice among the various UM coverage options available under OCGA § 33–7–11(a)(1), because it raised merely a conjecture or possibility of that fact.

Because an earlier policy, by default, provided this higher amount of UM coverage, the insurance company could not “renew” that policy with a lesser amount of coverage because, under OCGA § 33–24–45(b)(2), a policy renewal must provide “no less than the coverage contained in the superseded policy”). The superseding policies, therefore, would also provide the higher default amount of UM coverage unless the policyholder affirmatively chose the lesser amount.

So if a company vehicle has $100,000 liability coverage, there is no affirmative written rejection of equal UM coverage in the files, and an employee is injured in a collision caused by a motorist with $25,000 coverage or even no coverage, then the uninsured motorist coverage on the company vehicle automatically increases to $100,000.

Now consider the potential importance of this to a seriously injured truck driver. The minimum liability coverage for interstate motor carriers is $750,000, but most we see carry $1,000,000 and many strong trucking companies carry several million dollars of coverage in several layers. Even intrastate trucking companies, who are only required to carry $100,000 liability coverage, often carry $1 million or more in coverage.

If a truck driver has a catastrophic injury or is killed in a crash caused by a minimally insured driver, and the trucking company’s insurance policy was “issued or delivered” in Georgia without an affirmative election of UM coverage less than the liability coverage, this may provide a means to collect on a judgment against the uninsured or underinsured motorist who caused the crash.

This will not help the trucker for a company whose insurer did not “issue or deliver” the policy in Georgia. When I saw this decision I immediately went through my cases where I am representing truck drivers, and all of their policies were issued and delivered is other states.

I do not expect insurers for trucking companies to voluntarily open the records or the checkbook on such claims. We can in Georgia request coverage information from insurers before suit under O.C.G.A § 33-3-28, which provides in part:

“Every insurer providing liability or casualty insurance coverage in this state and which is or may be liable to pay all or a part of any claim shall provide, within 60 days of receiving a written request from the claimant, a statement, under oath, of a corporate officer or the insurer’s claims manager stating with regard to each known policy of insurance issued by it, including excess or umbrella insurance, the name of the insurer, the name of each insured, and the limits of coverage. Such insurer may provide a copy of the declaration page of each such policy in lieu of providing such information. The claimant’s request shall set forth under oath the specific nature of the claim asserted and shall be mailed to the insurer by certified mail or statutory overnight delivery.”

I expect insurers to take the position that this only requires disclosure of the coverage shown on a declarations page and that it does not require disclosure before suit of the underwriting file with policy application and renewal documents.

More likely, the way to pursue unknown excess UM coverage for a truck driver is to file suit against the inadequately insured motorist who caused the crash, serve the trucking company’s insurer with the suit as a UM carrier, and then conduct discovery of the underwriting files. At minimum, there must be requests for production of documents to the trucking company’s insurer seeking the policy application and renewal papers. A lawyer handling these cases for truck drivers must be prepared to compel records custodian of the insurance company, and possibly subpoena records and records custodians of insurance agents and brokers. Occasionally, this may result in increasing the available coverage for a truck driver or his family from $25,000 to $1,000,000 or more.
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