Articles Posted in Trucking litigation

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Drivers of commercial tractor trailers, semis and big rigs are responsible for piloting an 80,000 pound rocket down highways shared with you and your family.

You may pray that they are well-trained, well-managed, safe and responsible. Most are. Some are not.

The duties of a commercial truck driver are spelled out in the Federal Motor Carrier Safety Regulations, Commercial Drivers License (CDL) manuals, training materials published by industry associations and companies such as J. J. Keller, and company policies and procedures. While only statutes and regulations have the force of law, the others may be used as evidence of standards of care and of negligence when violated.

Some of the truck driver’s duties include:

– Know and understand the safety regulations and policies.

– Perform pre-trip and post-trip inspections, carefully going through a detailed checklist of the tractor and trailer.

A proper pre-trip inspection takes an experienced truck driver 20 to 30 minutes.Too often in truck accident cases we find inspections were no more than a quick walk-around or less, with a vertical line hurriedly drawn down the checklist rather than even bothering to inspect and check off each item. Earlier this week I was at a truck stop for my expert’s inspection of a tractor trailer involved in a fatal accident when we saw another truck driver do a 20 second “pre-trip inspection” that involved glancing at his tires. The result of inadequate pre-trip inspection can be operation of an 80,000 pound truck on the highway with unsafe equipment.

– Understand and comply with hours of service regulations, and truthfully log their driving, on-duty but not driving and off-duty time.

They are limited to driving 11 hours in a 14 hour work day, after which they must take a 10 hour rest break. The driver is responsible for planning a route with the hours of service rules in mind, and for notifying dispatch when he is out of legal hours.

I have handled cases in which drivers falsified logs in order to appear legal far beyond exhaustion of both their legal hours of operation and their bodies. Sometimes they are pressed to drive far beyond legal hours by trucking company dispatchers, third party logistics companies, freight brokers, shippers and consignees who turn a blind eye to safety. Those companies may share the legal blame, but the truck driver is still responsible as the pilot of the ship.

– Inspect his cargo to make sure it is safely distributed and secured before the trip, at particular points en route, and at the end of a trip.

Except when taking a sealed trailer that he is not allowed to open without special permission, the driver is required to inspect inside the trailer to make sure weight is properly distributed and the right methods and equipment have been employed to prevent the lad from shifting.

When operating a truck with a flatbed trailer, the driver must assure that the load is and remains securely tied down, following commodity-specific rules in order to prevent spilling, leaking, falling or blowing of cargo.

A while back, I handled a case in which a truck driver failed to secure a forklift on a flatbed trailer, with the result that the forklift came loose in a curve on a mountain road and landed on top of an oncoming vehicle. Police and the coroner were picking pieces of people out of that flattened car for days.

– Plan a route that takes into account weight limitations on roads and bridges, low height restrictions of bridges and tunnels, railroad crossings, one way streets and awkward turns.

A confused or careless truck driver can kill people when attempting a u-turn that blocks a highway in the dark or stuck in a railroad crossing or low bridge.

– Use extreme caution when road or adverse weather conditions affect traction or visibility, and if necessary pull off the road and wait for conditions improve. CDL manuals instruct truck drivers to reduce speed by one-third in rainy conditions.

When a tractor trailer hydroplanes in a rain slick curve and knack knifes at highway speed into oncoming traffic, only a miracle an prevent deaths or catastrophic injuries, including that of the truck driver himself.


– Stop driving when ill or fatigued, even if still within the legal hours of service.

Sometimes we find that truck drivers work second jobs or pursue other activities during the required rest periods, so that. They are unsafely fatigued even when inside legal hours of operation. Other times we find truckers returning to work too soon after an illness, such as one who got a chiropractor to issue DOT medical certificate two weeks after open heart surgery.

Safety should always come first.

– Whenever stopped on the side of the road, truck drivers must activate hazard flashers, then put out reflective triangles or flares at specified locations behind the trailer.

– Hang up and drive.

Federal rules now ban use of hand held cell phones as well as text messaging during operation of a commercial motor vehicle in interstate commerce.

– Obey all state and local traffic laws.

Truckers must also obey local peed limits, traffic control devices, etc.

There is much more that could be included, but this may give you a taste of the issues we examine regarding truck driver duties.
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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, see Truckers Justice Center. 

When we share the road with semi tractor trailer drivers who pilot 80,000 pound big rigs on highways across the country, we hope they are well-qualified and safety conscious. Most are but some are not.

Among the many things I examine as a trucking accident litigation trial attorney in Georgia are the qualifications, experience and background of the truck driver.

Commercial truck and bus drivers are required to have knowledge of and comply with all government trucking safety regulations and company policies. Motor carriers operating truck and bus lines are required to make sure drivers are adequately trained and monitor drivers’ performance.

Entry level truck drivers must obtain a Commercial Driver’s License, usually referred to as a CDL. That requires training in driver qualifications, hours of service, safe operations and whistle blower protection. The CDL manuals for all states in the US are materially identical. Drivers are required to know and understand pertinent provisions of the Federal Motor Carrier Safety Regulations, so the CDL manual explains the regs in simpler, graphic terms.

Drivers of specialized commercial vehicles need additional training specific to those types of vehicles. Trade organizations and safety materials publishing companies produce training videos and manuals for a wide variety of specialized commercial vehicles such as concrete mixer trucks, crane trucks, etc.

These CDL manuals and specialized training materials are extremely useful in cross examining truck drivers after they crash.

In applying for a truck driving job, a truck driver must provide his or her CDL, employment history, driving records, record of convictions and violations, medical history, drug and alcohol history, and physical exam.

Trucking companies are required to conduct a road test of the driver, testing knowledge, skills, experience and training, using the same type vehicle the driver is expected to operate. The test must be conducted by an employee who is qualified to do so.

When representing the victims of a catastrophic semi tractor trailer crash, all this fair game for thorough and sifting examination. Any lawyer who thinks a commercial truck crash is just a bigger car wreck will be clueless and unprepared, vastly reducing the prospects for success in representing his client. That is why our years of experience in trucking litigation matters.

Source: Federal Motor Carrier Safety Regulations; Truck Accident Litigation (3d edition)

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In trucking accident personal injury litigation in Georgia, plaintiffs often assert a claim for attorney fees and expenses of litigation including attorney fees under O.C.G.A. § 13-6-11, which was enacted as part of the Code of 1863. A decision this week by the Georgia Court of Appeals relied on existing case authority that an award of fees under this statute must be based on findings of fact, not determination simply as a matter of law.

O.C.G.A. § 13-6-11 provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

“Indicative of whether a party acts in good or bad faith in a given transaction is his abiding by or failing to comply with a public law made for the benefit of the opposite party, or enacted for the protection of the latter’s legal rights. Evidence that appellants failed to comply with mandatory safety regulations promulgated for the benefit of appellees is some evidence that appellants acted in bad faith in the transaction, within the meaning of O.C.G.A. § 13-6-11.” Meyer v. Trux Transp., Inc., 2006 WL 3246685 (N.D.Ga., decided Nov. 8, 2006)(FMCSA violations); Windermere, Ltd. v. Bettes, 211 Ga.App. 177 (1993)(landlord’s to violation of fire exit safety regulations).

“Even slight evidence of bad faith can be enough to create an issue for the jury.” Morrison Homes of Florida, Inc. v. Wade, 266 Ga.App. 598 (2004). “The question of bad faith . . .is for the trier of fact to determine.” Monterrey Mexican Restaurant of Wise, Inc. v. Leon, 282 Ga.App. 439 (2006).

As trucking cases involve a body of mandatory motor carrier safety regulations — federal regulations for interstate trucking and analogous state rules for intrastate trucking — violation of those rules may be used by a jury as the basis for an award of fees and expenses under the “bad faith” prong of O.C.G.A. § 13-6-11. I have had trial judges who were skeptical of this theory read overnight the authorities I presented and come back the next morning to announce that it would be reversible error not to allow that issue to go to the jury.

However, it is clear that it is a fact question, not one that the court can determine as a matter of law. Meek v. Mallory & Evans, Inc., Case No. A12A1290, decided Nov. 8, 2012 in an opinion written by Judge Gary Andrews, was a landlord-tenant case, the merits of which are not relevant to this discussion. However, the trial court had awarded fees under OCGA § 13-6-11 as a matter of law. The court held:

the language of OCGA § 13-6-11 prevents a trial court from ever determining that a claimant is entitled to attorney fees as a matter of law. “Although the trial court may grant attorney fees or litigation expenses under OCGA § 13-6-11 where it sits as the trier of fact, it is not a trier of fact on a motion for summary judgment.” Covington Square Assoc. v. Ingles Markets, 287 Ga. 445, 448 (696 SE2d 649) (2010)

Does this make any difference in how lawyers handling trucking accident personal injury cases handle attorney fee claims under OCGA § 13-6-11? Not really. However, it does stand as a reminder that this is an issue to be determined by the jury, or occasionally by a judge serving at the trier of fact without a jury. It does require presentation of at least evidence even if it is perfunctory.
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When there is a catastrophic crash involving an interstate commercial motor vehicle, there can be a broad range of places to consider filing suit. The usual state rules strictly limiting venue options are preempted by the federal Motor Carrier Act which provides:

A motor carrier or broker providing transportation … shall designate an agent in each State in which it operates by name and post office address on whom process issued by a court with subject matter jurisdiction may be served in an action brought against that carrier or broker. 49 U.S.C.A. § 13304(a).

This enables courts to obtain personal jurisdiction over an interstate motor carrier in states where the carrier may or may not do business, but in which it has a registered agent, for incidents occurring in a third state. McKamey, 744 A.2d at 532 n. 14 (citing cases).

By designating an agent in another state pursuant to the Motor Carrier Act, a corporation undertakes a “voluntary, reasoned act,” acknowledging that it may be sued in that state as a result of its interstate commercial enterprise-irrespective of where it may have committed the tort at issue. See Leonard v. USA Petroleum Corp., 829 F.Supp. 882, 886 (S.D.Tex.1993); Chick v. C & F Enterprises, LLC, 938 A.2d 112 (NH 2007).

A wide variety of strategic and tactical factors may come into consideration, including differences in substantive, evidentiary and procedural rules in various states, location of other potential defendants such as brokers and shippers, availability of witnesses and quality of the courts. These may be the possibility of a motion to dismiss or transfer a case based upon the doctrine of forum non conveniens. However, consideration of venue options may be far broader than most lawyers recognize.

Thanks to my friend Morgan Adams in Chattanooga for pointing this out to me.
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Large truck operations are governed by the Federal Motor Carrier Safety Regulations and largely identical state trucking safety rules. Sometimes people are surprised that these safety rules no not apply to tractor trailers only. Under 49 CFR 390.5, a commercial motor vehicle is defined to include any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle –

a. Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight 10,001 pounds or more, whichever is greater; or
b. Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
c. Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
d. Is used in transporting material found by the Secretary of Transportation to be hazardous.
Every state has adopted most portions of the Federal Motor Carrier Safety Regulations for intrastate transportation.
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When a loved one is killed or catastrophically injured in a collision with a tractor trailer, there may be a temptation to wait for a “decent interval” before hiring a lawyer who specializes in commercial trucking trial practice. The trucking company’s insurer may encourage that reluctance by saying some soothing things to lull you into inaction.

But it is important to know that the trucking company and its insurance company get a rapid response team to the crash scene before the vehicles are moved. While the victims are in an ambulance or in the emergency room, the trucking company has its investigators massaging evidence and trying to influence the police report.

Some electronic data from tractor trailers may be lost or destroyed within a few days if there is not quick action to assure that it is preserved. Every minute of delay leads to loss of crucial evidence.

Therefore, it is vitally important for the victim’s family to move quickly after a catastrophic truck crash to hire a lawyer who specializes in trucking cases and who can deploy his or her own rapid response team. While responses may be scaled to the seriousness of the case, the ultimate rapid response may include:

• a highly qualified accident reconstruction expert with solid experience in reconstructing crashes involving large commercial vehicles, not just car wreck.

• a trucking safety expert qualified to assess violations of trucking safety rules;

• a conspicuity expert qualified to assess visibility of vehicles in the conditions existing at the time of the crash;

• a forensic evidence photographer qualified to preserve the actual appearance of the vehicles and conditions under existing lighting conditions;

• a human factors expert who can assess perception and reaction under the conditions on
the roadway;

• a forensic computer expert qualified to obtain and interpret the wide array of event data recorders and computers on large commercial trucks.

In a catastrophic truck wreck it is a mistake to rely solely upon the police report, even when reasonably well qualified police accident reconstructionist are involved.
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ABCO Transportation, Inc., a refrigerated freight haulder based in Dade City, Florida, has a chronically unsatisfactory record with the Federal Motor Carrier Safety Administration with regard to unsafe driving violations. In my experience as a trucking trial attorney, when a trucking company has a record as bad as ABCO, often there are issues of management turning a blind eye to safety.

In ABCO’s case, this bad safety record culminated in a tragic crash on Wednesday on Thornton Road in Douglas County, Georgia, when an ABCO truck driver ran a red light, taking the lives of two co-workers at AutoTrader.com (a Cox Enterprises subsidiary) and injuring four others.

I was in Chattanooga, at the office of another trucking trial attorney, when I got a message to return a call from the family of two of the injury victims who had been referred by their family’s attorney in another state.

ABCO’s record with the Federal Motor Carrier Safety Administration shows unsafe driving violations with a 74.3 percentile score. Anything over 60th percentile is unsatisfactory. In the past two years, ABCO had 81 reported unsafe driving violations, and has rated unsatisfactory for unsafe driving violations for every reporting period since December 2010. That is probably the tip of the iceberg, as it only indicates the times they got caught.

Specific reported violations include:

– Failure to obey traffic control device, 8 violations – Following too close, 11 violations – Improper lane change, 3 violations – Lane Restriction violation, 5 violations – Improper passing , 1 violation – Reckless driving, 1 violation – Speeding, 14 violations – Speeding 15 or more miles per hour over the speed limit, 4 violations – Speeding work/construction zone, 4 violations
In 2011 and 2012, ABCO has had 18 reported crashes, 8 of which involved injuries, with a total of 17 people injured. These include:

– 6/22/12, Pennsylvania, 2 injured – 12/9/11, New York – 12/2/11, Ohio – 11/29/11, Colorado – 11/2/11, New York, 1 injured – 10/11/11, Virginia – 9/9/11, Missouri – 4/27/11, Kentucky – 4/7/11, Florida, 1 injured – 3/5/11, Alabama – 2/10/11, Virginia, 7 injured – 1/20/11, Ohio – 11/23/10, Florida, 1 injured – 11/3/10, Indiana, 1 injured – 10/25/10, Ohio – 8/29/10, Texas, 1 injured – 7/31/10, Virginia, 3 injured – 7/9/10, Connecticut
Regarding fatigued driving, one of the most common underlying causes of truck crashes, ABCO is right at the threshold for an unsatisfactory rating — 59.8 percentile when anything over 60 percentile is considered unsatisfactory. ABCO was over the 60 percentile threshold for unsatisfactory driver fatigue rating for 4 of the past 6 reporting periods. Reported violations only indicate when they got caught, so they are normally the tip of the iceberg. Violations include:

– False report of driver’s record of duty status, 8 (lying about driver logs)
– Requiring or permitting driver to drive more than 11 hours, 8 violations – Requiring or permitting driver to drive after 14 hours on duty, 20 violations
It was with that background that an ABCO Transportation tractor-trailer operated by 64-year-old Robert John Sansom, of Colorado ran a red light on Thornton Road in Douglas County, Georgia, on Wednesday, July 11th. Two women on their lunch break were killed — Tracy Downer and Michelle Chinnis, both of whom in sales for AutoTrader.com, a website owned by Cox Enterprises. Four other people were injured in the crash . According to an article by Alexis Stevens in the AJC, Downer previously worked in advertising at the AJC from 1993 to 2010, was married with a son and a daughter, and Chinnis is survived by a 16-year-old daughter.

Victims and their families may choose separate attorneys or joint representation in such instances of serious personal injury or wrongful death, as this is a potential conflict that may be waived in writing after informed consent pursuant to Georgia Rule of Professional Conduct 1.7.

Whenever there are multiple victims of a crash such as this one, it is important to coordinate representation. Most recently, we were involved in the joint prosecution group coordinating representation of member of the Bluffton University baseball team arising from a bus crash in Atlanta in 2007. Where there are no substantial indications of fault on the part of any of the victims, the only potential conflict among them is generally concern about adequacy of insurance coverage and assets to cover all claims.

The Federal Motor Carrier Safety Administration website only shows for ABCO a $1,000,000 liability policy with Protective Insurance Company. However, an interstate motor carrier with 174 trucks is likely to carry an excess liability insurance policy with considerably higher limits, perhaps an additional $5,000,000 to $20,000,000. That information is not public and generally is reliably documented only in litigation.
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Wrongful death and catastrophic injury cases involving commercial trucks are seldom just about a moment’s inattention. Usually we find there are issues of training, supervision and rule violations, though frankly with a local delivery truck in rush hour it is sometimes simpler than that.

Lithonia truck driver Stephen Scott has been charged with second degree vehicular homicide and following too closely in the Friday crash that killed a Lawrenceville couple, Donna and John Kesse, on I-985 in Gwinnett County, according to media reports.

Traffic was slowed in the interstate’s southbound right-hand lane due to merging traffic from Ga. 20 about 3:20 p.m. Friday when a box truck driven by Scott slammed into the Keese vehicle, then careening into a Dodge Ram pickup truck and a Saturn minivan towing a small trailer with an ATV on it.
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In my commercial trucking accidents law practice, we often need to subpoena business and medical records from other states, especially in interstate trucking personal injury and wrongful death litigation. In cases filed in state courts of Georgia, rather than federal courts, it has been necessary to comply with an arcane variety of differing state laws in order to do so.

Until recently in Michigan, for example, it was necessary to retain a lawyer in that state and spend roughly a thousand dollars just to get a routine subpoena for documents issued and served.

Last week, the Georgia legislature passed the Uniform Interstate Discovery and Depositions Act has finally passed in Georgia. This new uniform law, when enacted in all states, will make interstate discovery for cases in state courts almost as easy as it is in federal courts. It will enable Georgia lawyers to get subpoenas for depositions, document production and inspection of premises in other states that have enacted the same uniform law, and will make it easier for lawyers in those states to do the same in Georgia.

HB 46, sponsored by Representatives Jacobs, Lindsey, Willard, Oliver, Lane and Weldon (all friends of mine), almost passed last year but got caught in the legislative traffic jam in the Senate at the end of the 2011 session. It was one of the first substantive bills to pass this year and go to Governor Deal for signature.

This is reciprocal, and only available to lawyers when both states have passed the same law. At a meeting of the Southern Conference of Bar Presidents next week in New Orleans, I plan to make a pitch to my counterparts from other Southern states that have not yet enacted this law to put it on their State Bar legislative agendas. As shown on this map, the Southern states that have not yet passed it Alabama, Florida, Louisiana, Arkansas, Oklahoma and Texas.Those that have passed this law include Virginia, Maryland, North Carolina, South Carolina, Kentucky, Tennessee and Mississippi.

Here is what the new law provides:
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For years we have explored cell phone distraction as a factor in the cause of motor vehicle accidents, including commercial trucking accidents. Discovery of cell phone records has become routine in litigation. We have read all the studies, deposed the experts and argued about the legal ramifications. I won’t rehash all that here.

Now the Federal Motor Carrier Safety Administration has issued a rule barring use of hand held cell phones by commercial truck drivers in interstate commerce. The agency stated the rationale for the rule in part as follows:

Using a hand-held mobile telephone may reduce a driver’s situational awareness, decision making, or performance; and it may result in a crash, near-crash, unintended lane departure by the driver, or other unsafe driving action. Indeed, research indicates that reaching for and dialing hand-held mobile telephones are sources of driver distraction that pose a specific safety risk.

The agency summarizes much of the research on cell phone distraction in explaining its conclusion that “it is the action of taking one’s eyes off the forward roadway to reach for and dial a hand-held mobile telephone … that has the greatest risk.”
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