Articles Posted in Trucking insurance

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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.
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As a lawyer handling both sides of injury and death cases for decades, I can’t count the times I have searched for sufficient insurance coverage to cover a client’s loss. In trucking, there is at least an endorsement on the trucking company’s insurance policy that protects the public, even though the insurer may have a right to sue its insured trucking company to get the money back.

49 C.F.R. § 387.7(d) permits a motor carrier to meet its financial responsibility in one of three ways: (1) obtaining liability insurance, including an MCS-90 endorsement; (2) obtaining a surety bond; or (3) obtaining written authorization from the Federal Motor Carrier Safety Administration to self-insure. When a motor carrier opts not to use an insurance policy to meet its financial responsibility requirements, then the regulations do not require the carrier to maintain a minimum of $750,000 in insurance.

In practice, we see policy limits of $1,000,000 more often than $750,000.

The MCS-90 endorsement ensures that a motor carrier has independent financial responsibility to pay for losses sustained by the general public arising out of its operations. The endorsement is designed to protect the public, not the policyholder; the obligation the endorsement creates runs to the public, not to the insured. It seeks to ensure that ultimate responsibility lies with the insured trucking company.

MCS-90 does not provide insurance coverage per se. Rather, the endorsement creates a suretyship and carries with it a right to reimbursement.

MCS-90 endorsement of tractor-trailer liability policy requires the insurer to cover any loss under the policy, irrespective of the amount of the policy’s deductible.

MCS-90 endorsement does not create a duty to defend claims which are not covered by the policy but only by the endorsement, such as a vehicle that was not listed. Thus, a trucking company that violated terms of the policy needs to defend itself since the insurance company may be able to sit back until a judgment is entered, pay under the MCS-90 endorsement, and then sue the trucking company to get its money back.
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