When Do Social Media Posts Violate Employees’ Non-Solicitation Provisions?

The following is a guest post from Richard Escoffery, a partner at Elarbee Thompson, a labor, employment and complex commercial litigation law firm. Twenty years ago, while in law school at Emory, Mr. Escoffery was a research assistant in our firm. He is listed in Best Lawyers® in America, Georgia’s Top Rated Lawyers, AV® Peer Review Rated by Martindale-Hubbell, and Georgia Super Lawyers Rising Stars.  Rich represents companies in a full range of employment-related litigation and frequently helps his clients with difficult employment decisions and compliance issues. His clients include large and mid-sized companies in a wide variety of industries, including manufacturing, aerospace, restaurant, healthcare and financial services. Rich also helps clients protect their competitive interests by drafting carefully-tailored non-compete, non-solicitation, and non-disclosure agreements and by representing them in unfair competition litigation involving claims such as breach of contract based upon restrictive covenants, breach of the duty of loyalty, misappropriation of trade secrets, tortious interference, and computer theft. In addition, he helps his clients proactively manage online consumer reviews and address reputation attacks.  Rich is considered a pioneer in developing tailored effective reputation management solutions.

For a business to succeed, it must allow employees to form close relationships with its customers and other employees, and have access to its confidential information.  To prevent employees from using these relationships and information to unfairly compete against them, many employers require their employees to sign restrictive covenants.  The most common covenants prohibit employees from working for competitors in a similar capacity, soliciting the company’s customers or employees, and using or disclosing the company’s confidential information.  While the law varies from state to state, courts often enforce these provisions when they are tailored to protect the employer’s legitimate business interests.

Traditionally, whether a former employee was soliciting customers or employees in violation of his agreement has been relatively easy to determine.  Solicitation generally happened when the individual reached out to prohibited customers by phone, letter, fax, or e-mail and asked for their business – or tried to hire away their former co-workers by similar means.  With the rise of social media, however, there is no longer a bright line as to what constitutes solicitation.  What happens, for example, when an employee leaves the company, joins a competitor, and announces his new job on LinkedIn?  If his former employer’s customers and employees are among his LinkedIn contacts, has he just violated his agreement?

The courts have only just started to wrestle with these issues.  Based upon the early case law, however, it appears that courts are reluctant to find a violation when an employee simply updates his LinkedIn account to reflect his new job.  On the other hand, if the language in an employee’s LinkedIn profile or Facebook post actively seeks business or employees – and is directed to prohibited customers and employees – violations may be found.  Moreover, well-counseled employers are beginning to revise their non-solicitation agreements to take social media into account.  Some employers are now specifically requiring departing employees to delete LinkedIn contacts with customers and co-workers, for example, and not restore these contacts for a period of time after their employment ends.

While it remains to be determined exactly how the courts will come out on these issues, employers and employees alike need to understand the impact of social media on their restrictive covenants, and take steps to ensure that their interests are protected.

 

Fiery crash as FedEx truck jumps median into bus load of students: 10 dead, 37 Injured

In my truck and bus crash practice in Atlanta, I have worked on some horrible crash cases. One was the Bluffton University baseball team bus crash several years ago. In that Atlanta case a tour bus carrying 33 members of the college baseball team en route to a spring tournament in Florida crashed off an overpass at I-75 and Northside drive in Atlanta. Five students were killed, as well as the bus driver and his wife.  Four students had critical injuries and the others had less serious injuries. I represented ten of the team members.

Today, the news from California includes what appears to be an even a worse bus crash in which a FedEx truck jumped the median barrier and crashed head on into a bus taking high school students from Los Angeles to visit a college in northern California. As both vehicles burned, a massive fire and column of black smoke could be seen from a long distance.

A total of ten people died in this crash on I-5. Eight people on the bus were killed – including five students, three chaperones one of whom was a college recruiter, and the drivers of both the FedEx truck and the bus. According to one report, 36 or 37 people sustained injuries that included burns, broken legs and noses and head injuries of undetermined severity.

It will likely to take a while to determine why the FedEx bus veered across the median. Investigation will undoubtedly include examination of the “black box” data recorder in the FedEx truck, data transmitted from the truck during its operation, the driver’s work hours, fatigue and physical condition, toxicology examination, mechanical inspection of the truck remains, site reconstruction including skid, gouge and yaw marks,  interviews with everyone who was in the area who can be identified, etc. One concern is that sometimes when vehicles are completely destroyed by fire, it becomes difficult if not impossible to read data in a severely burned electronic control module.

This was a trip meant to open doors to a group of low-income and first-generation prospective college students. Three buses, two from Los Angeles and one from Fresno, were en route Thursday evening to Humboldt State University in Arcata near Eureka in northern California when the FedEx truck crossed a median and slammed into one of the buses.

Tommy Chang, the instructional superintendent for the Los Angeles School District said the trip was meant to be a great opportunity to see what California offered to students in terms of higher education.

“Humboldt State University is deeply saddened by a tragic accident…involving a charter bus filled with prospective students,” the school said in a statement. “They were on their way to visit campus for the April 11 Spring Preview event. Our hearts go out to those who have been affected, and we are here to support them, and their families, in any way possible.”

The National Transportation Safety Board sent a special team from Washington to the scene on Interstate 5 near the town of Orland, about 100 miles north of Sacramento. The reason the FedEx truck crossed the median remains under investigation but that investigation could take months. The NTSB will investigate the human, mechanical and environmental issues. First it will seek collect perishable information that can disappear very quickly.

It will be interesting to see if this California crash contributes to evolving safety standards. After the Bluffton University bus crash in Atlanta, that tragedy led to changes in highway signage standards as well as a movement toward requiring seat belts on tour buses.

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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.

 

New Georgia law seeks crack-down on use of “runners” to solicit injury victims

This year the Georgia legislature enacted a statute to make the second offense of using a runner to solicit a personal injury case a felony. It’s at least a step in the right direction. It now awaits Governor Deal’s signature.

Too many times during my career, I have been asked to take over cases that were already ruined  through mishandling by bottom feeding lawyers who solicited the cases in clear violation of Bar ethics rules, either directly or through a “runner” or a chiropractor. By the time those clients fired their original lawyers and came to me, great damage had been done to their cases. Sometimes I was able to salvage a respectable case, but often those cases were “FUBAR” (WWII era military acronym for “fouled(?) up beyond all recognition”)

And too many times, I have had calls from injured people who said they wanted to get a “real lawyer” rather than the idiots who were calling them on the phone to solicit them a day or two after a wreck.

Just this week, I had a call from a sibling of a man who died due to possible medical malpractice, telling me that the decedent’s children were besieged by calls from lawyers prior to the funeral, who apparently had received information about the case that had to have been leaked through staff at the hospital, medical examiner or coroner’s office.

One of the things I tried to attack during my term as State Bar president was the use of “runners” to unethically solicit people who have been involved in car wrecks. I appointed a committee to explore options for attacking the problem. However, vigorous prosecution of these cases would require an effective sting investigation, which as a former prosecutor I was willing to attempt. However, that is something with which the Bar’s general counsel has never felt comfortable. Sting investigations could be undertaken by law enforcement, but they are reluctant to commit resources for such investigations when the criminal offense is only a misdemeanor. Thus, I eventually came to the conclusion that the only way to get meaningful enforcement is to make it a felony.

This stain on the legal profession is not limited to Georgia. In some states there have been damage suits against lawyers who use “runners” on the basis of violation of Fair Business Practice statutes. In Florida, the Attorney General issued a statewide grand jury report on the fraudulent practices involved with solicitation of injury victims by “runners.” Texas recently passed a law attacking this practice as “barratry.” Another approach could be to make any fee contract obtained through use of runners voidable at any time in order to reduce the financial incentive, but that too could be subject to abuse by clients falsely claiming at the time of settlement that a runner was involved in order to extort an innocent lawyer in to giving up an honestly earned fee.

Respectable plaintiffs’ personal injury lawyers across the country have almost universally condemned this insidious practice of solicitation of cases through runners.

Georgia Rule of Professional Conduct 7.3, punishable by disbarment, already provides:

A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer’s firm, lawyer’s partner, associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, a written communication to a prospective client for the purpose of obtaining professional employment if:

. . . .  the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication; or the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer.

This Bar ethics rule further provides that a lawyer shall not compensate anyone for recommending the lawyer’s employment except under a bona fide lawyer referral service approved by the Bar.

Finally, the Rule provides that, “A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.”

However, bottom feeding lawyers who were not concerned about their professional reputation have felt fee to violate this rule. Because people who are solicited either hang up immediately, or are too unsophisticated and naïve to recognize a problem, there has been hardly any way to prosecute the cases. As discussed above, it is very difficult to do that without a sting investigation, which the Bar’s general counsel has not felt equipped to do. The main “runner” case for which there has been bar discipline in recent years came about only when federal agents executed a search warrant at a law office, found the “runner book” and turned it over to the State Bar.

Therefore, as State Bar president, I pushed to provide training for State Court solicitors, law enforcement and hospital attorneys on how to carry out these investigation. I appointed a committee to address the problem, and included former FBI agents, State Court solicitors and hospital counsel. While we passed a tweak of lawyer advertising rules, which is still pending in the Supreme Court nearly two years later, we were unable to get overburdened law enforcement agencies or prosecutors interested in making these cases.

It is not just bottom feeders in the legal profession who engage in this practice. Chiropractors and medical clinics use such solicitations too.

Now the legislature has taken a stab at it, making the second offense a felony. HB 828 passed at the close of the session on March 20th. While I was not involved in drafting this bill, I did have conversations on the topic several months ago with one of the lead sponsors.  Its bipartisan sponsors include Rep. Wendell Williard (R-Sandy Springs, chair of House Judiciary Committee), Rep. Ronnie Mabra (D-Fayetteville), Rep. Dustin Hightower (R-Douglasville), Rep. Trey Kelley (R-Cedartown), Rep. Calvin Smyre (D-Columbus) and Rep. Pam Stephenson (R-Atlanta). The Senate sponsor was Sen. Hunter Hill (R- Atlanta).

This bill enacts a new Code Section 33-24-53 to read as follows:

(a) As used in this Code section, the term:

(1) ‘Capper,’ ‘runner,’ or ‘steerer’ means a person who receives a pecuniary benefit from  a practitioner or health care service provider, whether directly or indirectly, to solicit,  procure, or attempt to procure a client, patient, or customer at the direction or request of,  or in cooperation with, a practitioner or health care service provider whose purpose is to  obtain benefits under a contract of insurance or to assert a claim against an insured or an  insurer for providing services to the client, patient, or customer. Capper, runner, or steerer shall not include:

(A) Any insurance company or agent or employee thereof who provides referrals or recommendations to its insureds; or

(B) A practitioner or health care service provider who procures clients, patients, or  customers through the use of public media or by referrals or recommendations from  other practitioners or health care service providers.

(2) ‘Practitioner’ means an attorney, health care professional, owner or partial owner of a health care practice or facility, or any person employed or acting on behalf of any of the individuals in this paragraph.

(3) ‘Public media’ means telephone directories, professional directories, newspapers and other periodicals, radio and television, billboards, and mailed or electronically transmitted written communications that do not involve in-person contact with a specific prospective client, patient, or customer.

(b) Except as provided for in paragraph (5) of subsection (a) of Code Section 50-18-72, it is unlawful for any person in an individual capacity or in a capacity as a law enforcement officer, law enforcement records staff member, wrecker services staff member, emergency staff member, physician, hospital employee, or attorney to solicit, release, or sell any information relating to the parties of a motor vehicle collision for personal financial gain. This subsection shall not apply to mass public media advertisement and solicitation.

(c) It is unlawful for:

(1) Any person in an individual capacity or in a capacity as a public or private employee or any firm, corporation, partnership, or association to act as a capper, runner, or steerer  for any practitioner or health care service provider. This paragraph shall not prohibit an attorney or health care provider from making a referral and receiving compensation as is permitted under applicable professional rules of conduct; and

(2) Any practitioner or health care service provider to compensate or give anything of value to a person acting as a capper, runner, or steerer. It is also unlawful for any capper, runner, or steerer to recommend or secure a practitioner’s or health care service provider’s employment by a client, patient, or customer if such practitioner or health care service provider obtains or intends to obtain benefits under a contract of insurance or asserts a claim against an insured or an insurer for providing services to the client, patient, or customer.

(d) Any natural person convicted of a violation of this Code section shall, on the first offense, be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment of not less than 30 days and a fine not to exceed $1,000.00. Any natural person convicted of a second or subsequent violation of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not more than ten years and by a fine of not more than $100,000.00 per violation.”

SECTION 2.

Code Section 50-18-72 of the Official Code of Georgia Annotated, relating to when public disclosure of records is not required, is amended by revising paragraph (5) of subsection (a)  as follows:

“(5) Individual Georgia Uniform Motor Vehicle Accident Reports, except upon the  submission of a written statement of need by the requesting party to be provided to the  custodian of records and to set forth the need for the report pursuant to this Code section;  provided, however, that any person or entity whose name or identifying information is  contained in a Georgia Uniform Motor Vehicle Accident Report shall be entitled, either  personally or through a lawyer or other representative, to receive a copy of such report;  and provided, further, that Georgia Uniform Motor Vehicle Accident Reports shall not  be available in bulk for inspection or copying by any person absent a written statement  showing the need for each such report pursuant to the requirements of this Code section.

For the purposes of this subsection, the term ‘need’ means that the natural person or legal entity who is requesting in person or by representative to inspect or copy the Georgia Uniform Motor Vehicle Accident Report:

(A) Has a personal, professional, or business connection with a party to the accident;

(B) Owns or leases an interest in property allegedly or actually damaged in the accident;

(C) Was allegedly or actually injured by the accident;

(D) Was a witness to the accident;

(E) Is the actual or alleged insurer of a party to the accident or of property actually or allegedly damaged by the accident;

(F) Is a prosecutor or a publicly employed law enforcement officer;

(G) Is alleged to be liable to another party as a result of the accident;

(H) Is an attorney stating that he or she needs the requested reports as part of a criminal  case, or an investigation of a potential claim involving contentions that a roadway,  railroad crossing, or intersection is unsafe;

(I) Is gathering information as a representative of a news media organization; provided, however, that such representative submits a statement affirming that the use of such accident report is in compliance with Code Section 33-24-53. Any person who knowingly makes a false statement in requesting such accident report shall be guilty of a violation of Code Section 16-10-20;

(J) Is conducting research in the public interest for such purposes as accident prevention, prevention of injuries or damages in accidents, determination of fault in an accident or accidents, or other similar purposes; provided, however, that this subparagraph shall apply only to accident reports on accidents that occurred more than 60 days prior to the request and which shall have the name, street address, telephone number, and driver’s license number redacted; or

(K) Is a governmental official, entity, or agency, or an authorized agent thereof, requesting reports for the purpose of carrying out governmental functions or legitimate governmental duties.

The bill is awaiting Governor Deal’s signature. While not foolproof, it takes a big step toward cracking down on the use of “runners” to solicit cases.  I hope that after it goes into effect, law enforcement and prosecutors will make it a priority to run the sting investigations required for effective enforcement and make examples of some of the bottom crawling lawyers and doctors who engage in this practice.

 

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 castastrophic personal injury and wrongful death.

Does the GM ignition defect cover-up fit within the Georgia Fair Business Practices Act provisions for treble damages, exemplary damages and attorney fee awards?

The news this week is filled with reports about General Motors’ cover-up of an ignition switch defect that has caused numerous deaths and serious injuries. Congressional hearings have highlighted allegations that people died because GM failed to fix a 57-cent problem that the company had known about since 2005. One might say what GM did was an “unfair or deceptive” act in commerce.

For the past 20 years I have been looking for good products liability cases to use a legal theory I developed in a wrongful death case against both the manufacturer and distributor of a work stage attachment for a forklift. In that case, an equipment distributor substituted a knockoff in place of the forklift attachment a small, family-owned business had ordered. The knockoff looked like the picture of what had been ordered, but the latching mechanism was fatally defective. The motive was to avoid the risk of losing the sale of a reconditioned forklift with about a 5,000 percent markup.

To make a long story short, the Georgia Fair Business Practices Act prohibits unfair and deceptive acts or practices in the marketplace, and provides for treble damages, punitive damages and attorney fees.   To bring that piece of warehouse equipment within the FBPA, we classified the forklift as an office supply.

The trial judge’s initial reaction was, Huh? Can you do that? But the statutory definitions fit, the initially skeptical trial judge ruled in our favor, the Court of Appeals declined to consider the defendant’s interlocutory appeal, we were able to get seven figure settlement before trial, and there was never any published court decision on the point.

Seeing the current news about the General Motors ignition switch defect and cover up, which was uncovered by my friend Lance Cooper, I wonder if the Fair Business Practices Act might apply to injury and death cases in Georgia arising from the GM ignition defect.

The FBPA at O.C.G.A. § 10-1-393 provides that, “Unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce are declared unlawful.” That code section lists illustrative examples, which are far from exclusive, including “Representing that goods or services are of a particular standard, quality, or grade or that goods are of a particular style or model, if they are of another.” Other statutes and regulations, such as the Deceptive Trade Practices Act, may be considered for additional examples of “unfair and deceptive” acts and practices. It is notable that the Federal Trade Commission has ruled in the past that failure to warn of a defective or dangerous condition that could cause personal injury constitutes an ‘unfair’ trade practice.”

The Georgia Fair Business Practices Act is one of the many “little FTC acts” adopted in most every state in the US, mainly in the 1970s. Some of the “little FTC acts” cover property losses only. Others, including Georgia, are worded to refer to “injury or damages” so as to include personal injury.  I will not copy here the 30 page detailed analysis I years ago detailing how Georgia’s Fair Business Practice Act and Wrongful Death Act work together.

At O.C.G.A. § 10-1-399, the FBPA provides in part, provides that “any person who suffers injury or damages” as a result of violations of the FBPA may file suit individually for general damages, exemplary damages and, for intentional violations, attorney fees. In other states with “little FTC acts” worded like Georgia’s, courts have interpreted this to include personal injury and wrongful death.”

Courts have read into the Georgia statute a requirement that the transaction not be an isolated one, so that there must be some sort of pattern or practice. That was potentially a problem in our forklift case but we succeeded anyway. However, it would not be a problem where a giant manufacturer knows of a defect for nearly a decade and covers it up while selling millions of vehicles with that easily and cheaply corrected defect.

The GM ignition switch defect is only the most recent example of how a manufacturer’s failure to recall a faulty product and correct a problem, the results can be catastrophic. General Motors is learning this lesson the hard way after a delayed recall of compact cars with defective ignition switches. General Motors (GM) has linked 13 deaths to the problem while others, like Laura Christian whose daughter died in 2005 when her Cobalt’s airbags didn’t inflate, has found crashed that claimed 29 lives that we know of, and perhaps many others in which the cause of crashes was never figured out because investigators didn’t know what to look for.

The faulty ignition switches behind the recall can shut off the engine while the car is in motion. When that happens, power-assisted steering and power brakes are lost, and the airbags won’t inflate during a crash. These types of problems are difficult to navigate even for some of the most experienced drivers; however these cars were being marketed to the most inexperienced drivers and their parents.

Low-priced cards like the Chevrolet Cobalt and the Saturn Ion were marketed to the first-time buyers as well as for parents of new drivers. The cost was low and the safety ratings were high. What more could a parent or first-time buyer ask for in a car?

Kelly Bard and her parents were interested in purchasing a black Saturn Ion when we was 16 in Wisconsin.

“At the time, it had really high safety ratings,” Bard recalled. “It had good gas mileage, and it was what we could afford.”

However, soon after purchasing Bard ran into problems where the car would stall for no reason. Every time, the car would lose power-assisted steering and the key was moved from the “run” position. Bard reports that it would take all her strength just to be able to move the car out of harm’s way. Even after repeat visits to the dealership’s service department and supposed fixes, the Ion would keep stalling.

Bard recounts a near-miss on a freeway entrance ramp. Luckily the driver behind her was able to steer clear of her vehicle but this would not be the last time she had a very close call. As she was making a left turn a safe distance in front of an oncoming bus, the Ion stalled.

“I thought I was going to get T-boned by the bus. I refused to drive the car again until I felt like it was safe,” she said.

General Motors has admitted knowing for at least a decade that the switches were defective. Yet GM didn’t start recalling 2.6 million Cobalts, Ions and other small cars worldwide until February. CEO Marry Barra has said GM’s safety processes were lacking, and she has brought in an outside attorney to review them.

In 2005, GM notified dealers that the cars could still stall because of the ignition switches. However, GM still didn’t issue a recall for the cars theorizing that even in a stall, people could steer and brake without power systems. This “theory” proved unreliable.

Of the 29 reported fatalities, 15 were under the age of 25 and 18 were women. That is not surprising since small economy cars with good safety ratings particularly appeal to young women and their parents who help them buy cars.  In a situation where power steering and power brakes are not functioning safety experts say inexperience drivers are more likely to panic and be overwhelmed by the effort needed to control the car. Safety experts also say women are less likely to have the upper body strength to move a stalled car to safety.

Most driver education classes cover loss of power steering, said Bill Van Tassel, manager of driver education for the American Automobile Association. While some instructors have students practice in the vehicle, many just cover what to do in case it happens in the classroom without any application.

I would like to see GM do well and prosper, though not at the expense of a decade long cover up of  an easily remedied and potentially fatal defect. GM will surely have to pay for much of the damage done by this 57 cent defect. Whether state “little FTC act” statutes like Georgia’s can be employed to raise the ante remains to be seen.

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Ken Shigley is a past president of the State Bar of Georgia, which includes all lawyers and judges licenses in the state. He has had an “AV preeminent” peer rating from Martindale-Hubbell Law Directory for 25 years, board certification as a civil trial lawyer from the National Board of Trial Advocacy for 19 years, and for 10 years has been rated as a Georgia “Super Lawyer” (Atlanta Magazine) and among Georgia’s “Legal Elite” (Georgia Trend). He is lead author of Georgia Law of Torts: Trial Practice and Preparation (Thomas Reuters West, 2010-14). His practices focuses on catastrophic personal injury and wrongful death cases in Georgia.

What should Georgia’s court system look like in 20 years?

In 2011, as I prepared to take office as president of the State Bar of Georgia, this was the topic of brainstorming with lawyers and judges. After discussing it with then Chief Justice Carol W. Hunstein, we decided to form the Next Generation Courts Commission. I appointed judges, court clerks, court administrators and practicing lawyers from each class of court and all parts of Georgia. As chair, I picked Superior Court  Judge Lawton Stephens, a former legislator from Athens and major wit.

 

The Next Generation Courts Commission was was given a broad mission to develop recommendations for future improvement in the Georgia judicial system and to turn those into concrete proposals for legislation, budget proposals and court rules. We were determined that it not just issue a report that would be filed away. That is why we included legislators and judges who would be able to put recommendations into action.

 

Judge Stephens quipped that in 20 years, he and I may be going to Piccadilly Cafeteria at 5 PM for blue plate special suppers, and roaming a beach with metal detectors while wearing shorts with knee high black support socks with sandals. Jeff Foxworthy should be thankful that Judge Stephens did not choose to become a professional comedian.

Under Judge Stephens’ leadership, the commission divided into task forces charged with studying emerging technology and trends related to court systems involved with improved education, program improvement, business process, and funding for the courts.

After more than two years of hard work, The Next Generation Courts Commission has released its  final report, listing recommendations to be used by collectively by the judicial branch in collaboration with the legislature and State Bar of Georgia.  Here is a brief summary of the lengthy report:

Technology Recommendations:

To establish a statewide e-filing portal for electronic filing of civil case documents across all levels of court; promote electronic access to civil and criminal court records; create a web-based central registry of attorney conflicts and leaved of absence.

Program Improvement Recommendations:

To create centers within each judicial circuit for the use of low-income and self-represented litigants; use of standard forms throughout the state; expand Alternative Dispute Resolution programs; support the establishment of accountability courts.

Business Process Improvement Recommendations:

To outline a uniform approach for the clerk of court to maintain trial evidence; encourage collaboration between the Judicial Council and Board of Court Reporting and clerks of courts when developing rules and regulations; promote use of technology for interpretation and capture of the cort record; promote increased availability for interpretation services.

Education Recommendations:

To seek to fully-fund the Institute of Continuing Judicial Education through state funds; improve programs for judges, both on-site and remotely; provide training for new and experienced judges, as well as clerks, court administrators, and court support personnel; support efforts to make court procedures more transparent and navigable for self-represented litigants.

Funding Recommendations:

To increase state-based funding to provide statewide improvement; encourage legislative changes that allow for the currently established self-funded programs and user fees to be used for their intended purpose rather than going into the general revenue funds of state and local governments.

Judge Stephens who chaired the Commission noted, “We hope that the insight and recommendations presented will be met with not only understanding but also a healthy dose of skepticism. We do not have the solutions. Rather the solutions will come by working collaboratively towards a common vision for the future of the judicial system of Georgia.”

 

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.

 

General Motors recalls over 2.6 million vehicles due to potentially fatal ignition switch defect

Several years ago I handled a products liability case against an auto manufacturer that had designed its braking system on one model so that a poorly designed sensor would turn off the antilock braking system without warning. As a result, our client was a brain damaged quadriplegic. It took much expert analysis and discovery of records to figure that out.

This is a great illustration of  why it is so important to preserve the right to thorough discovery to uncover the truth. Without a persistent plaintiffs’ lawyer forcing disclosure, GM would have kept all this secret without regard to the harm done to people.

Now we have a news story about another hidden auto defect involving a poorly designed switch. According to investigative reports in the Wall Street Journal, GM engineers knew of ignition-switch problems on the 2005 Cobalt that could disable power brakes, power steering and air bags, but continued to launch the car without correcting the defect.

GM was forced to recall 2.6 million vehicles, many of them Cobalts earlier this year because of a fault that turns odd the ignition switch while the car is being driven. Also recalled were Saturn Ion, Chevrolet HHR, Pontiac Solstice and G5 and Saturn Sky. The recall was expanded from 1.6 million to 2,591,665 cars, now including all model years of the Chevrolet Cobalt, Chevrolet HHR, Saturn Ion, Saturn Sky, Pontiac G5 and Pontiac Solstice made from 2003-2011.

It is estimated that 12 people have died and 34 people have been seriously injured because of the ignition-switch problem

The company believed the vehicles could be safely coasted off the road after a stall, according to testimony from a GM engineer in one of dozens of civil suits against the automaker because of deaths related to the ignition-switch problems.

The Chevy Cobalt ignition defect lawsuit arose from a fatal crash in which the victim was driving her Cobalt at highway speed when the ignition failed and airbags failed to deploy because the car was turned off at the time of the crash. Other who were involved in a similar situation explained to the National Vehicle Safety Administration that the car was difficult, if not impossible to steer when the ignition failed. During the 2013 court case, an engineer testified that GM believed drivers should be able to handle a car even without power steering.

To make matters worse, after the manufacturers re-engineered the faulty ignition on the Chevrolet Cobalt and Saturn Ion in 2006, they failed to create a new part number for the non-defective ignition that they designed. According to the publication in Automotive News, not following the protocol of renumbering helped stall its own engineers’ investigation into problems with the cars.

Although GM officials issued service bulletins to its dealers about the Cobalt as early as 2005, it did very little to help get defective vehicles off the roads. In a meeting on May 15, 2009, GM engineers learned that data in the black boxes of Chevrolet Cobalts confirmed a potentially fatal defect existed in hundreds of thousands of cars. However, GM did not tell this to the families of accident victims and GM customers.

In interviews, letters, and legal documents during the months and years that followed the initial report, GM said there was no evidence of any defect in their cars even though they learned about the potentially fatal defect. The U.S. government is investigating General Motors’ handling of the defect and probing reports that it knew there was a problem for years.

After levying a $1.2-billion fine on Toyota last month over an unreported safety problem with its accelerator pedals, U.S. Attorney General Eric Holder said he expected that settlement to serve as a model for how prosecutors would approach future cases involving “similarly situated companies.”

Although the Japanese automaker faces a large fine, criminal prosecution of individuals involved is not likely. Since it announced the recall, GM has faced a number of private lawsuits, as well as class actions by auto owners who say the recall affected the value of their vehicles.

A wrongful death lawsuit was filed in Minnesota recently on behalf of three teenaged girls who were injured or killed in a 2006 crash. The lawsuit accuses GM of knowing about the ignition switch defect, but failing to fix the vehicles. In two private lawsuits in Texas, the plaintiffs urge GM to tell owners of affected Saturn and Cobalt cars not to drive the cars. A U.S. senator on Monday asked the federal government to force General Motors to establish a fund to compensate consumers affected by the problem.

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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 the representation of plaintiffs in cases of catastrophic personal injury and wrongful death.

When truck drivers are hurt by other drivers in Georgia, check uninsured motorist coverage on the truck

When a commercial truck driver is killed or seriously injured due to the negligence of the driver of a smaller vehicle, it is important to find out whether the insurance policy on the commercial truck includes uninsured / underinsured (UM/UIM) coverage. If so, that UM/UIM coverage would be available to compensate the truck driver or his/her family.

Getting that UM/UIM coverage information from the trucking company and its insurer prior to litigation can be tricky. Official Code of Georgia § 33-3-28 does require pre-suit disclosure of insurance coverage information by insureds and insurers. It 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.”

Although the statute really has no teeth, a lot of insurance companies are pretty good about disclosing liability limits if the question is posed exactly the right way.  For example, if two entities within the same group of insurance companies issue the primary auto policy and the umbrella policy, you have to send the request to each of the two entities, supported by an affidavit from the claimant to comply with procedure in the statute. If one does not ask the entity issuing the umbrella policy, the related entity will not provide that information.

The statute does not talk about disclosure of UM/UIM coverage, but neither does it exclude it. Voluntary compliance by a trucking company’s insurer regarding a request for UM/UIM coverage information on behalf of an injured truck driver cannot be assumed. Some will, some won’t.

Once that information is obtained, some trucking insurance policies include UM/UIM coverage the match the liability policy limits, most often $1,000,000, though the minimum liability coverage for general freight haulers in interstate commerce is $750,000. The UM/UIM coverage is not required, but it doesn’t cost much extra. It is always worth checking to determine whether it exists.

If the insurer does not comply with a pre-suit request for information under O.C.G.A. § 33-3-28, it may be necessary to file suit against the driver at fault, serve the trucking company’s insurer as a UM/UIM carrier, and conduct formal discovery to obtain a complete copy of the policy.

This comes to mind because of a news story today of a fatal crash in Gwinnett County, Georgia. Eric Murray, 39, a truck driver from Minneapolis, Minn., was driving a tractor-trailer that was struck by a minivan that was attempting to merge onto I-85 northbound from Beaver Ruin Road. A passenger in the tractor-trailer, Bryant Garrott, 62, of Minneapolis, was also injured Gwinnett Medical Center.

Gwinnett Police charged Maria Zeelaya Torres, 44, of Norcross, with second degree vehicular homicide for causing the crash.

Over the years, we have represented numerous injured truck drivers. Recently, we recovered a good settlement for a truck driver who was injured when he rear-ended an SUV on an expressway even though the police blamed the truck driver for the wreck.ely that she has more the mandatory minimum auto insurance.

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Ken Shigley, past president of the State Bar of Georgia, has an Atlanta based law practice focused on commercial transportation accidents involving serious personal injury and wrongful death

Cracking Down on Distracted Driving

We have all seen drivers distracted by their electronic devices behind the wheel. The Federal Motor Carrier Safety Regulations now forbid interstate truck drivers from texting or talking on a hand held cell phone while driving. But recently we were hired in a multiple fatality crash on a Georgia interstate highway in which the truck driver admitted to police that he did not see the vehicles he hit because he was distracted by talking on his cell phone.

In January 2014, the National Transportation Safety Board released its 2014 Most Wanted List, the top 10 advocacy and awareness priorities for the agency for 2014, which include improving operational safety on mass transit, impaired driving, and distracted driving.

Included in this “top 10” list is to treat distracted driving like drunk driving.  Accident investigations and safety studies conducted by the NTSB in all modes of transportation underscore the dangers of using portable electronic devices while operating a car, train, plane or marine vessel. It is the hope of the NTSB that all instances of distracted driving will be treated in the same manner as driving under the influence. In addition to banning the use of these devices while driving the NTSB will continue education and company policies to help reinforce laws and regulations by explaining the dangers of distraction and what companies expect from their employees.

Occupant protection is also new to the Most Wanted list for 2014. While preventing accidents is always the goal, the NTSB says saving lives and reducing injuries in the event of an accident is also critical. Increasing the use of available occupant protection systems and improving crashworthiness to preserve survivable space can mean the difference between life and death.

Also new to the list this year is passenger vessel safety. Between 2000 and 2010, the NTSB has investigated several accidents involving passenger vessels. For decades, NTSB accident investigations involving passenger vessels revealed in numerous cases that the cause of an accident was not the failure of the vessel but the lack of good safety practices that led to the loss of life and injuries. It is the hopes of the NTSB that when these new safety measures are put into action there will be far fewer fatalities in the nation.

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 castastrophic personal injury and wrongful death.

 

 

NHTSA Smart Key Compliance

Keyless ignitions, introduced in the late 1990’s, were intended to offer drivers convenience. Instead, they have disrupted a well-established set of driver behaviors and expectations, and introduced rollaway and carbon monoxide poisoning hazards that have resulted in injuries and death. Since 2010, there have been eight publically acknowledged deaths and two serious injuries from carbon monoxide poisonings linked to keyless ignition.

Due to this growing problem, the National Highway Traffic Safety Administration has opened a compliance investigation into 34 recent model-year vehicle that defy the letter and intent of Federal Motor Vehicle Safety Standard 114. Vehicle conditions that allow the vehicle to be turned off in a gear other than park, allow the key fob to be removed from a running vehicle with no warning to the driver, and allow vehicles to be restarted without the key fob present are all at issue and, incidentally, are all conditions that Safety Research & Strategies informed the agency about in a 2010 meeting.

On January 28, the agency’s Office of Vehicle Safety Compliance sent information requests to major car manufacturers including Toyota, Ford, General Motors, Nissan, Mazda, Hyundai, and Kia. The requests sought information on how 2012 and 2013 model-year vehicles’ keyless ignition systems operate under different scenarios to determine if the Theft Protection and Rollaway Prevention Standard had been violated.

According to the National Highway Traffic Safety Administration (NHTSA), the investigation was started after a Ford recall (13V-475), for 23,000 Ford Focus vehicles, equipped with keyless starting systems that did not have an audible warning when the driver exited the vehicle. In September, Ford made the decision to recall, even though, “it was not determined that a non-compliance to FMVSS 114 Section 5.1.3 existed in these vehicles,” Ford noted in its Part 573 Notice of Defect and Noncompliance. Ford also added:

“While the applicability of this section of FMVSS 114 to keyless ignition systems is ambiguous, in the interest of Ford’s consistent cooperation with the agency, Ford will conduct a notification and remedy campaign to add a ‘key in ignition’ door chime to address the agency’s question with respect to requirements of FMVSS 114 Section 5.1.3 (Theft Protection).”

In this compliance probe, the agency asked for a host of details related to manufacturers’ keyless ignition systems, ranging from the electronic architecture of the systems, when the electronic code that makes up the NHTSA’s two-part system is purged from the system and the audio and visuals cues used to alert the driver that he or she has exited the vehicle. The NHTSA also asked for data from consumer complaints and the safety information manufacturers provide to their customers about keyless entry.

In December 2011 NPRM, the agency cited only a handful of complaints about the keyless entry feature on vehicles. However, a more recent search found more than 70 complaints in NHTSA’s VOQ database related to rollaway or carbon monoxide poisoning.

The most recently reported fatalities occurred in Greenville, South Carolina. Bill and Woo Thomaston died of carbon monoxide poisoning after apparently leaving their 2006 Toyota Avalon running in a basement garage. On June 9, police found the couple unconscious in the bedroom of their home. The battery and the fuel tank empty. The key fob was apparently still inside the vehicle.

In many vehicles, key slots and metal keys with indents have been replaced with plastic key fobs, containing an electronic code unique to a particular vehicle, and push-button ignitions. As these systems evolved, automakers in concert with NHTSA changed the definition of the key from a physical object to an invisible code.  Consumers, meanwhile, continued to regard the plastic fob as the physical key to the car. One cannot start a vehicle without the key fob however it plays no role in turning the vehicle off, and shutting down the engine doesn’t automatically lock a vehicle’s transmission into “park” as required by FMVSS 114. Drivers must execute a certain sequence of events such as move the transmission into park, push the ignition button, open and shut the driver’s door. As simple as this might sound to drivers, there are those out there who have not completed the sequence correctly and suffered the sometimes fatal consequences.

Twenty consumers complained that they had actually left the car running-on multiple occasions; six mentioned carbon monoxide poisoning as a possible danger. In addition, two deaths and two injury accidents were reported to the agency. There are nine known fatalities and four serious injuries related to keyless ignition carbon monoxide poisonings. The chief complaint was rollaway: 43 drivers reported rollaway incidents, resulting in four injuries; five other owners mentioned that carbon monoxide poisoning was a danger.

More consumers complained about the possibility of rollaways. Consumers reported four injuries and 33 rollaway incidents. Another five consumers mentioned that it was possible to shut off the vehicle without the transmission automatically locking in park. These complaints covered a wide range of vehicle models including Toyota RAV4, Camry, Prius, and Lexus ES, Hyundai Sonata, Volkswagen Passat, Routan and Tiguan, Nissan Altima and Murano, Buick Verano, and Pontiac Sunfire.  Of the 34 vehicles that were tested, 73 percent did not automatically lock the transmission in Park. Four GM models behaved as thought the key was still inside the vehicle even though the engine was no longer running and the transmission was in drive.

In December 2011, the agency opened a Notice of Proposed Rulemaking to again amend FMVSS 114. The agency’s proposal recognizes that the current keyless ignition systems have led to driver confusion, resulting in vehicles left running and/or out of the “park” position and the consequent rollaways and carbon monoxide poisonings. The NPRM pointed out, as did SRS more than a year prior, that the lack of standardization in combination with the lack of visual and tactile cues about the status of the vehicle engine has set the stage for the real world incidents in which drivers mistake the fob for the key, inadvertently leave the vehicle running and/or exit the vehicle without placing it into “park.”

The Final Rule is anticipated in 2015, the agency said.

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 castastrophic personal injury and wrongful death.

 

 

 

Brooklyn – Doraville bus unsafe driving record crashes in Virginia

Occasionally we see a report of a commercial vehicle crash in which the alleged cause of the wreck perfectly matches the company’s poor safety record. Today, a bus en route from Brooklyn, New York to Doraville in metro Atlanta, operated by Indianapolis-based Princess Tours, Inc., ran off a road in Virginia.  The bus driver, Qilong Xiao, 50, of Flushing, N.Y., was charged with reckless driving.  According to Virginia State Police spokeswoman, speed was believed to be a factor in the crash.

The Federal Motor Carrier Safety Administration reports that Princess Tours has an unaccepted 74.8% rating for “unsafe driving” based upon repeated citations for excessive speed.

This crash happened on a snow covered highway. Both trucks and buses in interstate commerce are required to exercise “extreme caution” in weather conditions affecting traction and visibility. The Commercial Driver’s License manuals gets a little more specific, telling drivers: “Reduce speed by about one-third (e.g., slow from 55 to about 35 mph) on a wet road. On packed snow, reduce speed by a half, or more.  If the surface is icy, reduce speed to a crawl and stop driving as soon as you can safely do so.”

I would bet a steak dinner at Bone’s that this bus driver didn’t comply.

It appears this may be consistent with the “Chinatown bus lines” operations that in recent years have become notorious for unsafe operations, especially in routes running out of New York City. Popular due to low fares, these operations often use older vehicles in which equipment issues are common. Princess, however, appears to operate on a tour charter basis, unless it was operating under contract with one of the “Chinatown bus lines.”

According to the Federal Motor Carrier Safety Administration, Princess has liability insurance for the first million dollars with Prime Insurance Company and from $1 million to $5 million with Axis Surplus Insurance Company.

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 castastrophic personal injury and wrongful death.