When is the fine print too fine?

There is an old maxim that, “What big print giveth the fine print taketh away.” In a case involving a used car sale, our Georgia Supreme Court this week said, “not so fast.”

To make out a claim at common law for fraud, a plaintiff must show not only that he relied upon some misrepresentation, but he must show as well that his reliance was reasonable or justifiable.  In the case of Raysoni v. Payless Auto Deals, LLC, 2014 WL 6090438, decided by the Supreme Court of Georgia on November 17, 2014, the question was whether reliance upon a used car salesman’s representations was reasonable despite fine print disclaimers.

Mr. Raysoni went to a used car lot. He asked a salesman whether the vehicle in which he was interested had ever been in a wreck or damaged. The salesman told him it had not, and gave a Carfax report that showed no damage to the vehicle and no indication that it had been involved in any wreck. Relying on these representations, he bought the vehicle. A couple of months later, Raysoni learned that the minivan, in fact, had been in a wreck and had sustained frame damage as a result.

When he attempted to return the vehicle and rescind the purchase, the used car dealer refused. It relied upon fine print in the sales contract, which included, “NO SALESMAN VERBAL REPRESENTATION IS BINDING ON THE COMPANY,” “CUSTOMER SHOULD NOTE THAT THIS VEHICLE WAS ANNOUNCED HAVING UNIBODY DAMAGE AT THE AUCTION,” and “WE STRONGLY RECOMMEND CUSTOMERS SHOULD GET VEHICLE INSPECTED BY A MECHANIC OF THEIR CHOICE BEFORE MAKING THE PURCHASE.”

Finding it was a jury question whether reliance upon the salesman’s representations was reasonable, Justice Keith Blackwell noted for the Court:

No one should make the mistake of thinking, however, that capitalization always and necessarily renders the capitalized language conspicuous and prominent. In this case, the entirety of the fine print appears in capital letters, all in a relatively small font, rendering it difficult for the author of this opinion, among others, to read it. Moreover, the capitalized disclaimers are mixed with a hodgepodge of other seemingly unrelated, boilerplate contractual provisions—provisions about, for instance, a daily storage fee and a restocking charge for returned vehicles—all of which are capitalized and in the same small font.

Plaintiff’s lawyers estimated the font size of that fine print was 5.6.  I dare you to read anything in 5.6 font without a magnifying glass.

Kudos to my friends Mike Flinn of Carrollton and Charles Cork of Macon for their diligence in taking this consumer issue to the Supreme Court. While I generally refer “lemon car” cases to Mike Flinn, the judicial disapproval of obscure fine print to contradict a salesman’s representations to a consumer.

The case vaguely reminds me of a one I tried in my past life as an insurance defense lawyer. In an employee dishonestly insurance claim by a car dealer, I was representing the insurance company in its own name. My chief witness was the bean-counting dweeb of a claims adjuster from central casting. And my task was to try to persuade the jury that a used car salesperson was honest despite overwhelming and incontrovertible evidence to the contrary. I never understood why the insurer I represented didn’t just settle that case.  It was not much fun to stand up and take that beating.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy.

Airbag Defect Leads to Massive Recall

At least once a month for years, we have gotten calls from someone complaining about malfunction of an airbag in a motor vehicle collision. Usually it is a matter of an airbag not deploying in a situation in which it was never designed to deploy.

Most front airbags are designed to deploy in a direct frontal impact, and side air bags are generally designed to deploy in direct side impact. There are variations between models as to whether an oblique angle impact would cause an airbag to deploy, but generally a sideswipe collision will not activate an airbag.

Moreover, most people making those calls are upset but no one had a catastrophic injury in the wreck. The expense and difficulty of automotive product liability litigation is such that the cost-benefit analysis seldom justifies filing suit unless there is a death or catastrophic injury.

But now there is a widespread problem with airbags in a wide variety of vehicles deploying when they should not, potentially causing serious injuries to vehicle occupants.

Since 2008, there have been six rounds of recalls- the most recent involves 7.8 million vehicles, more than 100 models and 10 manufacturers, and focuses on vehicles equipped with defective airbags made by a Japanese supplier, Takata.  The National Highway Traffic Safety Administration (NHTSA) urges all owners of cars listed on the recall to get their airbags fixed immediately.

                “The airbags are made by Japenese supplier Takata. The bags have faulty inflators than can rupture and send metal fragments flying out. At least four people have died in accidents related to the defect. A hot climate appears to trigger airbag failures, so the recalls are considered especially urgent for people living in Florida, Hawaii, and U.S. territories.”

Safety advocates say at least four people have died from the problem and there have been multiple injuries. They also say more than 20 million vehicles in the U.S. are equipped with the faulty air bags. Takata knowledge of the defect, reportedly, goes back to at least 2004 when Honda, the first manufacturer to launch a recall, received the first injury claim from an exploding “inflator” and reported it to the supplier.

The NHTSA warned people whose cars have been recalled during the past two years for faulty air bag inflators to take them to dealers right away. The inflators are made by Takata Corp., a Tokyo-based supplier of seat belts, air bags, steering wheels and other auto parts. So far, automakers have recalled about 12 million vehicles worldwide because of the problem.

“This message comes with urgency,” NHTSA said in a statement. The agency has been investigating the problem since June, and has cited reports of six inflators rupturing, causing three injuries.

Passenger or driver air bags or both could be affected depending on the vehicle. Toyota issues the latest recall Monday, covering passenger air bags in 247,000 older model vehicles including the Lexus SC, Corolla, Matrix, Sequoia and Tundra.

Like many of the other recalls, the Toyota recall includes areas that have high absolute humidity – south Florida, Puerto Rico, Guam, and the Virgin Islands to name a few. Toyota in documents posted to the NHTSA website, said the company and Takata are still trying to pinpoint the cause of the rupture and to gauge the influence of high absolute humidity.

Absolute humidity is a measurement of water vapor in the air, while relative humidity, which is commonly in weather reports, measures air moisture content relative to the air temperature.

Toyota has been testing the air bags, and it found an unusually high incidence of inflator failures along the coasts, according to spokesman John Hanson. The investigation continues and the recall could be expanded to more areas, Hanson said.

Toyota says it knows of no crashes or injuries from the cars it has recalled. Neither Toyota nor NHTSA could say exactly how far inland the recall area goes or what states it covers.

Last week, two U.S. senators questioned why the safety agency is allowing the recalls to be done on a regional basis because cars could be driven to, or people could move to the high-humidity states.

They also cited the May 27, 2009, death of 18-year-old Ashley Parham of Oklahoma City. She was driving a 2001 Honda Accord across a high school parking lot in Midwest City, Oklahoma, when it hit another car. The air bag inflated and sent shards of metal into her neck, causing her death.

“Based on NHTSA’s open investigation, the agency will take appropriate action, including expanding the scope of the recall if warranted,” an agency statement said.

Takata has said it recognizes the critical role that government plays in public safety, and it is supporting safety regulators.

“Takata identified two processes that, taken together, could have resulted in elevated moisture levels in the propellant. Elevates propellant moisture levels, when coupled with thermal cycling in automoviles, could cause the propellant density to decline over time and such a decline in density could lead to overly energetic combustion during deployment of the air bag.”

However, Takata’s claims that the problem was confined to problems of one particular propellant machine that compressed a powder mixture into a tablet, during a brief, discrete period of time, have proven to be false.

Takata also claimed that no manufacturer other than Honda would be affected even though the propellant chemistry had been used in over 100 million airbags over the previous decade. Takata claimed Honda’s inflator design was not significantly similar to that of other Original Equipment Manufacturers (OEMs) for which Takata supplied airbags. Takata reported to the NHTSA that a small number of bags, produced for another unidentified manufacturer during that time could not be defective because they had a different production process and better control systems.

In a statement made on February 19, 2010 Takata upheld that the problem had been fixed due to its “continuous improvement policy,” involving “numerous process improvements during this period, many of which improved the quality of the propellant and the inflators and enhanced the consistency of inflator performance.”

Faulty recordkeeping and poor recall notification procedures are other factors advancing the death and injury count. In numerous reports to NHTSA, Honda identified different impediments to identifying the correct recall population, ranging from confusion over which components and processes were confirmed as being within regulation, to a failure to trace defective airbags used as replacement parts.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. 

Autumn Stirs Sweet Memories

As our mornings turn cooler and trees change from green to yellow and orange, memories of the sights, smells and pleasures of autumns past come flooding back.

Memories of sights, colors and smells can stir our emotions and a deep, instinctive level.

When I see trees changing colors and the first frost on a meadow, I go back in time to autumns in the forests and fields of Lookout Mountain where we lived and Shinbone Valley where I went to school as a child.

The smells of new mown grass, burning leaves and hot cider stir memories of playing pickup football with other little boys in the end zone of the rural high school where my father was principal. That town, which could have been the model for the fictional Mayberry, had both a red light and a high school back then.

Smells of autumn also bring back sweet, and sometimes bittersweet, memories of high school football games and the excitement of fall weekends during college.

Once when coaching my son’s youth soccer team just before sundown in the last game of the fall season, trying to restrain our boys from running up the score too much, I looked across the field toward a line of brightly colored autumnal trees illuminated by the setting sun.

At that moment I felt a flash of epiphany, a peaceful feeling that, “It just never gets any better than this.”

Memory is a fascinating thing. While memories of color and smells may stay with us for life, fortunately most of us can’t remember physical pain. Otherwise, no woman would have a second child and the human race would have died out long ago. We can remember our reactions to physical pain, but can’t reproduce the sensation of pain in our minds. On the other hand, we can recall and relive emotional pain decades ago as if it were yesterday.

As we move through the fall toward Thanksgiving next month, let’s all pause to remember the good things and count the blessings of treasured moments of ordinary life.

The Importance of Creativity

Most folks think of creativity in terms of art and music. But creativity is important to breaking new ground in any field.

Ancient people viewed creativity solely as divine inspiration. That is still as important as ever. But by modern times creativity was viewed as a form of human intelligence that bridges the gap between routine productive talent and the vision to develop something new.

Creativity requires the ability to approach problems with both solid knowledge and a fresh eye, combining old principles in new ways. Creativity can be highly productive if it is accompanied by hard work and perseverance.

Creativity is not the same thing as IQ. The world is full of people with high IQ scores who are not creative and those with average IQ who are. Combine IQ, creativity and grit, and you really have something.

You may know of Atlantans whose creativity and perseverance made them billionaires. Sara Blakely got a creative idea for footless pantyhose, added bulge-hiding undergarments, and built Spanx from scratch within a few years. Ted Turner creatively combined unrelated elements to build a little billboard company into a cable TV empire.

Creative approaches to service abound. Millard Fuller combined old tools in new ways to launch Habitat for Humanity, which has built 800,000 homes for the poor. Gary Haugen conceived a way to enlist lawyers to combat human trafficking; now International Justice Ministry is working in many developing countries.

College degrees are not essential to creative genius. You know of Bill Gates, Steve Jobs and Mark Zuckerburg leaving college to start Microsoft, Apple and Facebook. Elizabeth Holmes was 19 when she got an idea for a new way to make blood tests cheaper, easier and painless. She left school to start Thernos and is a billionaire at 30.

In law, most work is just competent use of familiar tools. When I defended cases for insurance companies, it was routine work that built a base of experience.

But sometimes we have to get creative:

  • An equipment distributor substituted a defective knockoff for a workstage sold with a forklift to a family business, killing the founder’s son. Georgia law barred suit against sellers. We figured out how to base a wrongful death case on the Fair Business Practices Act due to deceptive acts, classifying a forklift as an “office supply.
  • When a child was injured in a condominium pool, the condo association’s insurer was unmotivated to negotiate because it did not see that its insured had valuable assets to protect. We figured out how to levy on the condo association itself, then make pro rata assessments against unit owners. The insurer then settled quickly
  • When a child was injured in a condominium pool, the condo association’s insurer was unmotivated to negotiate because it did not see that its insured had valuable assets to protect. We figured out how to levy on the condo association itself, then make pro rata assessments against unit owners. The insurer then settled quickly.
  • When a truck towing an intermodal container freight trailer killed several people, the truck’s $1 million insurance was inadequate. Combining motor carrier and maritime laws in a new way, we pulled in the intermodal shipping and logistics companies. A judge denied motions to dismiss and we have a trial date set.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy.

Paralyzed Man Can Walk Again Thanks to Cell Transplant

Over years of representing clients with spinal cord injuries resulting in paraplegia or quadriplegia, I seize upon any new development that offers hope for improving the quality of their lives and function.

For several years I have seen articles about the use of stem cells to mend damaged spinal cords. One of the most promising ideas has been the use of olfactory nerve stem cells from the patient’s own nose.

Now there is a report of this idea moving from animal research to clinical implementation with a human patient. The effect on our representation of paralyzed clients is that we have a new item of potential medical expense to seek that provides hope from recovery.

A Polish paralyzed man is able to walk again after a new therapy that involved transplanting cells from his nasal cavity into his spinal cord.

Derek Fidyka, 40, was paralyzed from the chest down when he was stabbed repeatedly in the back in a knife attack in 2010. Thanks to a pioneering therapy, he can now walk using a frame. The treatment, a world first, was carried out by surgeons in Poland who worked with scientists in London.

He said walking with the support of a walker was “an incredible feeling”, adding: “When you can’t feel almost half your body you are helpless, but when it starts coming back it’s like you were born again.

Professor Geoff Raisman, chair of neural regeneration at University College London Institute of Neurology, led the London research team. He said what had been achieved was “more impressive than man walking on the moon.”

The treatment used olfactory ensheathing cells (OECs) that are specialist cells that form part of the sense of smell. OECs act as pathway cells that enable nerve fibers in the olfactory system to be continually renewed. In the first two operations, surgeons removed one of the patient’s olfactory bulbs and grew the cells in culture.

Two weeks later they transplanted the OECs into the spinal cord, which has been cut through in the knife attach apart from a thin strip of scar tissue on the right. They had just a drop of material to work with- about 500,000 cells.

About 100 micro-injections of OECs were made above and below the injury. Four thin strips of nerve tissue were taken from the patient’s ankle and placed across an 8mm (0.3 inch) gap on the left side of the cord.

The scientists believe the OECs provided a pathway to enable fibers above and below the injury to reconnect, using the nerve grafts to bridge the gap in the cord.

Before the treatment, Mr. Fidyka had been paralyzed for nearly two years and had shown no sign of recovery despite many months of intensive physiotherapy. He has also been going through an exercise program for five hours per day, five days a week. Fidyka first notices that the treatment had been successful after about three months when his left thigh began to put on muscle.

Six months after surgery, Fidyka was able to take his first tentative steps along parallel bars, using leg braces and the support of a physiotherapist. Two years after the treatment, he can now walk outside the rehabilitation center using a frame. He has also recovered some bladder and bowel sensation and sexual function.

Dr. Pawel Tabakow, consultant neurosurgeon at Wroclaw University Hospital, who led the Polish research team, said “It’s amazing to see how regeneration of the spinal cord, something that was though impossible for many years, is becoming a reality.”

This has not yet been approved by regulatory agencies in the US, but it is an advance that gives hope for the future.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy.

3D Printing Is Latest Advance in Vertebra Replacement

Since 1992, I have watched with great interest the development of 3D printing. When I first read about the concept at the dawn of the Internet, I was fascinated with the futuristic example of downloading the digital design for a replacement part for a sailboat in the middle of the ocean, and printing the part thousands of miles from port. It took a while for the technology and economic feasibility to catch up with the idea. Now my nephew in New York City is doing very well selling industrial 3D printers to companies around the world. This week a 3D printer was delivered to the International Space Station in order to demonstrate the feasibility of printing spare parts for spacecraft, not just in earth orbit but on future voyages to Mars and beyond.

In the medical context, doctors and scientists have worked to implement custom-printed materials into the medical world for the past several years we have seen for a while 3D printing of artificial hands and other bony structures.

The first spinal procedure using a 3D-printed vertebra replaced the second vertebra in a 12 year old boy’s neck. The boy had cancer, which was discovered after a traumatic soccer injury. After the procedure, the patient’s head was framed with pins and will remain that way for three months. Dr. Liu Zhongjun, the surgeon who performed the procedure, said the customized 3D printing technology made the disc replacement stronger and more convenient than other procedureNow comes new of another big advancement has come in recent weeks. Surgeons in China performed the first spinal disc replacement implanting a three-dimensional printed vertebra, according to a CNTV report.

The 3D printing technology uses digital models of a patient’s anatomy to construct a “printed”, customizable implant made out of almost any material. While 3D printing isn’t exactly new, using 3D printing to create an orthopedic device could make these expensive items more readily available for the general public.

In June, French spine surgeon Vincent Fiere, MD, performed the first spine surgery using spine device company Medicrea’s customized spine cages created with a 3D printer. The company’s UniD ALIF customized cage is made with polyetherketoneketone and printed to reproduce the anatomical details of the patient’s vertebral plates. When the procedure was performed, the 3D printing technology and applications were still patent-pending.

It has been estimated that the 3D printing market for healthcare alone with generate more than $4 billion by 2018, according to Information Week.  The 3D printed medical costs models could also reduce surgical time, which is significant when average surgery costs $100 per minute.

Bigger medical device companies are also getting into the 3D printing game. Johnson & Johnson’s DePuy Synthes recently partnered with Tissue Regeneration Systems to develop 3D printing technologies as part of Johnson & Johnson’s long-term strategy to grow the company. The partners are working on implants for the large bone segmental defect treatment in trauma and orthopedic oncology. Johnson & Johnson is also putting more funding behind research and development collaborations after investing nearly $1.8 billion in research and development last year.

In a healthcare market that prizes quality outcomes for lower costs, technology such as computer navigation comes with a high price tag whereas 3D printing could become a relatively economical investment. However, it will still be awhile until we can expect hospitals across the nation to house something like a 3D printer capable of printing medical devices.

Most hospitals don’t currently have the technology or the staff to be able to implement this new type of technology. Even advancements with the most promising clinical outcomes take years to really become the standard of care.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. 

New App Guards Against Texting and Driving

If you are the parent of a teenage driver, the idea of your “invulnerable” teen texting while driving may be among your greatest fears. Now “there’s an app for that.”

Although texting and driving is not illegal in all states yet, it certainly is a dangerous activity anywhere you go especially on touchscreen phones that require more attention to hit the correct key. There are currently 43 states that ban text messaging for all drivers. Of the 7 states without an all driver texting ban, 4 prohibit text messaging by novice drivers. While some drivers can resist the urge to use their phone while behind the wheel, it is not always so easy for some. An app called SafeCell makes it easier to stop texting while driving by offering a cash-equivalent rewards at many retailers.

SafeCell also takes the guesswork out of complying with calling and texting laws that can vary by state, county and city by pushing current cell phone use laws to your phone using GPS and a proprietary database of all the cell phone use and texting laws. This means in addition to earning rewards you can avoid getting a ticket for a local law you didn’t know about.

When the app detect that you are traveling over five miles per hour and in a zone with applicable distracted driving laws it will disable phone, texting, and email capabilities. If you need to make an emergency call you can click the “Place Emergency Call button” to interrupt the app. While using the app you have the option of sending an auto text message to people who call or text stating that, “The person you are trying to reach is driving and will receive your message upon reaching their destination.”

The rewards accrue for every mile driven while obeying any applicable laws. If there are no laws in effect, but you practice safe driving you will still earn rewards. Not obeying laws while driving will take points from your rewards. If you need to use your phone or are a passenger you can pause or stop the app, but no reward points will be earned during this time.

500 miles logged equals $5 in rewards available for redemption at more than 300 retailers including Apple, Amazon, Cabela’s, Macy’s and many more. The rewards are issued in $5 increments and max out at $250 a year.

In addition to keeping you in line with the law and giving rewards, SafeCell creates driving logs for parents or employers to use in monitoring their kids or employees’ driving habits. These detailed trip reports provide added incentive to obey the law and safety concerns regarding cell phone use while driving.

The app is currently available for Apple and Android devices.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. 

Fatal Wal-Mart Truck Crash Case in NJ Case Moving Forward

In June, a Wal-Mart truck driver who had been awake 24 hours caused a deadly pileup in New Jersey. The Wal-Mart truck driver’s Twitter profile included the phrase, “move or get hit.”

Since that crash, most of the attention has been centered on comedian Tracy Morgan because he is most well-known. However he is not the only one that was affected by the incident.

The adult children of James McNair, killed in the June crash in Cranbury that injured comedian Tracy Morgan and others, are moving forward with their suit against Wal-Mart and its truck driver. Wal-Mart owned the truck that authorities said caused the crash and employed Kevin Roper, the driver that had been awake for 24 hours when the crash occurred.

While Wal-Mart claims that its driver was within the legal hours of service, the Federal Motor Carrier Safety Regulations go beyond just a mechanical application of the hours of service rules.

49 C.F.R. § 392.3 provides that, “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.”

Thus, if a driver has been awake for 24 consecutive hours, the impairment from fatigue may trump an assertion that he was only driving 11 hours and on duty 13 of those hours.

49 C.F.R. § 390.3 requires that “every employer shall be knowledgeable of and comply with all regulations . . .  applicable to that motor carrier’s operations” and just as importantly, “every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations….”

So a company is responsible for making sure its driver know the rules and comply with them.

49 CFR 390.13 mandates that companies not “aid, abet or encourage drivers’ violations of regulations.” Therefore, if a company pushes drivers to perform beyond the limits of fatigue, it has a problem.

There seems to be no limit to the ways a company can make a show of conforming to safety rules while actually turning a blind eye to safety. The reality of a company’s safety management and culture is always subject to scrutiny. While Wal-Mart has cultivated an image of a relatively safe trucking operation, investigation of this case will probably turn over a lot of rocks.

In cases we have had with Wal-Mart in the premises liability context, we have found an interesting contrast between pretense and reality regarding safety practices.

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Ken Shigley is a past president of the State Bar of Georgia and currently chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Author of Georgia Law of Torts: Trial Preparation & Practice, he is a board certified civil trial attorney of the National Board of Trial Advocacy.

 

Inflation Adjustment of Interstate Truck and Bus Insurance Moving Forward

Several times recently, I have written about the projected inflation adjustment to minimum liability insurance coverage for interstate commercial vehicles. The process continues.

A few days ago, the Federal Motor Carrier Safety Administration issued a 14-page Report to Congress, concluding the following:

1.    Current limits are inadequate in covering catastrophic crashes.

2.    Simply adjusting existing limits to adjust for healthcare inflation would require raising limits:

  • a.    From the current $750,000 to $3,188,250 for general tractor-trailers, rather than the $4.2 million that was discussed for inflation adjustment since the $750,000 minimum was first set in 1980.
  • b.    From the current $1 million to $4,251,000 for low-hazard hazmat tractor-trailers, e.g., fuel trucks, rather than $4.4 million that was discussed.
  • c.    From the current $5 million to $21,255,000 for high-hazard hazmat tractor-trailers;
  • d.    From the current $1.5 million to $6,376,500 for small buses; and
  • e.    From the current $5 million to $21,255,000 for large buses.

3.    “The Agency has formed a rulemaking team to further evaluate the appropriate level of financial responsibility for the motor carrier industry and has placed this rulemaking among the Agency’s high priority rules.”

I figured there would be some political compromise in the process, and apparently there has been some.

It still would be an advantage to leased “independent contractor” drivers to also require uninsured / underinsured (UM / UIM) coverage on these vehicles, as these driver work in a highly dangerous occupation, often with no medical insurance, no workers compensation insurance  and no UM / UIM insurance to protect themselves and their families if they are injured on the job.

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Ken Shigley is a past president of the State Bar of Georgia and currently chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Author of Georgia Law of Torts: Trial Practice & Procedure, he is a board certified civil trial attorney of the National Board of Trial Advocacy. His regional litigation law practice is based in Atlanta, GA.

FMCSA Should Require Uninsured / Underinsured Motorist Coverage for Truck Drivers

Trucking has inherent dangers, both for other motorists hit by big trucks and for truck drivers who are underpaid and underinsured for their labor in one of the most dangerous of occupations. More truckers and delivery men, die on the job than any other vocation, according to the Bureau of Labor Statistics.

 

The current proposal to adjust trucking liability insurance requirements for three decades of inflation should be expanded to include mandatory uninsured / underinsured motorist coverage to protect truck drivers, many of whom are independent contractors who lack even the most basic workers compensation protection.

I have represented numerous truck drivers over the years who themselves have been seriously injured in crashes for which they often have had little or no insurance protection. They work hard to take care of their families, and most of them are very safety conscious.

Many of them have been employed as “independent contractors” for motor carriers, lacking decent medical insurance, workers compensation or uninsured motorist coverage.

Some have been seriously injured by a drunk or drugged driver of a passenger vehicle causing a catastrophic crash. One was a gasoline truck driver badly injured when a teenager who had been drinking and smoking marijuana hit him in the fuel tank, causing him to jackknife on a rain slick freeway. Fortunately, the rain may have helped prevent a deadly explosion. Another was a truck driver who had a bad back injury when an SUV towing a motorcycle trailer lost control right in front of him on an Atlanta area freeway.

The current minimum liability insurance requirements for interstate commercial trucks and buses have been in place unchanged since 1985.  The insurance level for general freight trucking has been $750,000 since 1980, and for all other categories of interstate truck and bus operations have stayed the same since 1985. There has been a tremendous amount of medical inflation since then.

A couple of months ago, the Federal Motor Carrier Safety Administration (FMCSA) Motor Carrier Safety Advisory Committee (MCSAC) recommended adjusting the minimum coverages for three decades of inflation, just to catch up on the loss of purchasing power of the insurance amounts. The categories are as follows:

Category

Minimum Insurance Since 1985

Recommended Adjustment for Medical Inflation

General Freight (unchanged since 1980)

$750,000

$4.2 million
Low hazardous (fuel, etc.)

$1,000,000

$4.4 million
Small Buses (up to 15 passengers)

$1,500,000

$6.3 million
Hazardous materials& large buses (16+ passengers)

$5,000,000

$21.2 million

 

The stiffest opposition to this inflation adjustment appears to come from the Owner Operator Independent Drivers Association, an insurance company presenting itself as a trade association representing small trucking operators. One hypothesis is that OOIDA Insurance Company sells only minimum limits $750,000 trucking policies and may have insufficient reserves to be competitive in the market for larger policies.

But the interests of individual truck drivers of leased trucks, working under the authority of motor carriers without having motor carrier authority themselves, may diverge from the interests of OOIDA Insurance Company.

Those drivers, concerned about the security of their own families, might see the advantage of having mandatory UM / UIM coverage equal to liability limits for protection of themselves and their families.

Uninsured / underinsured motorist insurance coverage provides protection for a person injured due to the negligence of another driver who has inadequate liability insurance. The minimum liability coverage for passenger cars and small private trucks varies from state to state, but those minimums generally range from $15,000 to $30,000. In Georgia, the minimum is $25,000. That is a drop in the bucket if you have a serious injury, have huge medical bills and are unable to work for any significant period of time. It is practically nothing if you don’t have medical insurance or workers compensation.

In addition, there are many drivers on the roads who operate with no liability insurance at all – 28% in Mississippi, 26% in New Mexico, 24% in Tennessee, Florida and Oklahoma, 22% in Alabama, 19% in Michigan, 18% in Kentucky and Rhode Island, 16% in Georgia, Ohio, Indiana, Arkansas and Washington.

I have always assumed that if some idiot causes serious harm to me, a member of my family or a friend riding with us, he will have minimum or no liability coverage. That is why for decades I have carried the high levels liability and UM / UIM coverage on my family vehicles, with umbrella policies up to $2 million. Better to have it and not need it than to need it and not have it.

If leased drivers in one of the most dangerous occupations had UM / UIM had the benefit of UM / UIM coverages equal to the proposed minimum liability coverages for the trucks they drive, it would be an enormous benefit for their peace of mind and the security of their families.

 

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Ken Shigley is a past president of the State Bar of Georgia and currently chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Author of Georgia Law of Torts: Trial Practice & Procedure, he is a certified civil trial attorney of the National Board of Trial Advocacy. His law practice is based in Atlanta, GA.