Atlanta Injury Law Blog

When a significant motor carrier collision happens, the pattern response is for the truck driver to immediately call the dispatcher, who calls the risk manager even at home in the middle of the night, who in turn calls in a “rapid response team” – a defense lawyer in the state where the crash occurred in order to claim work product privilege for anything that is done, and an investigator. The investigator, and sometimes the defense lawyer, may arrive
at the accident scene before the debris is cleared.

However, just because there is a defense lawyer on the scene, do not assume that the defense investigation is cloaked by work product privilege.

In this environment, critical evidence may be “lost” and the course of police investigation may be affected. They may then make sure that any harmful electronic evidence is deleted within a matter of days, and that documents are not retained a moment longer than required by law, if that long.

Driver logs may go missing, or may be reconstructed. Geopositional data downloads may be modified. In addition, police reports are often prepared without the benefit of input from people in the smaller vehicles, who were killed or seriously injured, while the truck driver and the company’s investigator are able to tell their story to the investigating officer. Without supportive independent eyewitnesses or unequivocal physical evidence, many cases may be lost at the starting line.

As lawyers for individuals and families harmed in trucking crashes, we too often get our first call about the case after much of the evidence has been destroyed. However, when we are called soon after the event, we seek to launch our own  rapid investigation.

Today I'm heading home from the American Association for Justice annual meeting in San Francisco. On Saturday, I was one of the speakers at the Interstate Trucking Litigation Group seminar.  I had a fairly dry topic, though one necessary in these difficult economic times, "Hard Times in Trucking Litigation: What to Do When the Trucking Defendant or Insurer Goes Under."

Some of the other topics covered in the interstate trucking seminar included:

• Overlooked Issues in Maximizing Damages in a Trucking Case
• Unique Discovery Issues in Trucking Cases
• When Low Speeds Can Cause Big Injuries: Understanding What Happens When a Big Truck Hits a Small Car
• Overdriving Headlights and Other Night Driving Issues in Interstate Trucking Cases
• Truck vs. Motorcycle
• Ethical Considerations in Interstate Trucking Cases
• The Small Commercial Vehicle Case
• Finding Insurance in Truck Crash Cases
• Brain Injuries in Trucking Cases

Though I have to leave for the airport before the business meeting, I will go on the board of the Interstate Trucking Litigation Group, and will be on the faculty of the "trucking litigation college" program this fall.

On Friday, 6/26/09, on I-44 near Miami, Oklahoma, a tractor trailer slammed into a line of stopped traffic, killing nine people.

The tractor trailer driver apparently made no attempt to slow or stop. Whether the driver was fatigued or distracted was not immediately reported.

Witnesses described the pileup in 100 degree heat as looking like a war zone, filled with twisted metal and dead bodies.

Witnesses described the pileup in 100 degree heat as looking like a war zone, filled with twisted metal and dead bodies.

Investigation and discovery in such an incident should include careful examination of the driver's logs, trip receipts, bills of lading, Prepass records, driver qualifications, and a long list of other operational records, as well as the driver qualifications, vehicle maintenance, etc.

Reportedly the tractor trailer  was 76 years old. We have handled several cases in which elderly truck drivers made tragic errors related to their medical conditions, including COPD (chronic obstructive pulmonary disorder) or obstructive sleep apnea.   While there is no hard age limit on truck drivers, the potential relation between age and physical condition is well known.  One must question whether there were any violations of Driver Physical Qualification rules uner  49 CFR Part 391.41.

Compounding the tragedy is the fact that the amount of liability insurance required of interstate motor carriers has not been adjusted for inflation in decades. The minimum requirement of $750,000 -- or the more common $1 million policy -- is grossly inadequate for a tragedy of this magnitude.  Attorneys working on such a case must explore all other potential sources of liability coverage, including a separate MCS-90 endorsement on the trailer, and potential exposure of shippers, brokers, etc., though those are tough theories of liability.
 

Trucking is a dangerous occupation. A lot of my work as a trucking safety trial attorney in Georgia involves representing injured truck drivers and survivors of truckers who are killed due to someone else's carelessness.

An often overlooked factor is that a lot of trucking insurance policies include substantial uninsured motorist (UM) insurance coverage.

That means that if a truck driver is killed or seriously injured due to negligence of a motorist who has only $25,000 coverage, the truck's UM coverage is available for damages above $25,000 up to the limits of the policy.

Today I received an insurance policy in a case where I represent the folks  who were hit by an inattentive truck driver.  The policy includes $1,000,000 UM coverage.  If the roles had been reserved, the truck driver or his survivors would have been able to collect up to the $1,000,000 UM coverage.

A driver was killed when he struck the rear of a parked tractor trailer on the side of a highway in California on the night of  January 29th.  The news report does not mention whether the unoccupied tractor trailer was properly parked with flashing hazard lights and refrecting triangles deployed to warn drivers of it presence.

The Federal Motor Carrier Safety Regulations, at 49 CFR 392.22, requires that when a commercial motor vehicle is stopped in a traffic lane or on the shoulder of a road, the truck driver must  immediately activate the vehicular hazard warning signal flashers, and within no more than ten minutes place three reflective warning triangles at specified locations.

Considering the pattern of other court cases in California construing the Federal Motor Carrier Safety Regulations, I expect a California court would find that failure to comply with this rule -- if that is in fact what happened --  would be negligence as a matter of law.

A tractor trailer driver lost control yesterday  morning on I-69 in Indiana, crashed through the high tension barrier cables in the median.  The trailer became detached and killed a man  driving the opposite direction whose car slid under the careening trailer.  According to a report by Rick Yencer of the Muncie Star Press, a state trooper said the man who was killed was wearing his seatbelt and could not have done anything to avoid the crash.

No cause for the loss of control by the truck driver was reported.  However, the press photo of the crash scene shows snow and ice.  The Federal Motor Carrier Safety Regualations, at 49 CFR 392.14, requires "extreme caution" when operating a commercial motor vehicle in "hazardous conditions, such as those caused by snow, ice, ... adversely affect visibility or traction."   It further requires that "speed shall be reduced when such conditions exist." 

I can only speculate based on the news story, but I easily imagine a combination of slick roads, excessive speed for conditions, perhaps combined with fatigue and legal medications affecting concentration. I have no idea if any of those factors contributed to this crash, but they are part of the checklist.

A trucking accident in New Hampshire today reminds me of one of the first interstate trucking personal injury cases I handled as a young lawyer roughly 25 years ago, before I gained much knowledge about things as crucial as the Federal Motor Carrier Safety Regulations.

In the New Hampshire accident this morning, a state snow plow truck was parked in the emergency lane on the side of I-89 when it was struck in the rear by a tractor trailer. Apparently the big rig driver was the most seriously hurt person, with an apparent head injury.

It was a rare Georgia snow storm just about this time of year in approximately 1982 or 1983.  A Georgia DOT dump truck was outfitted for snow removal, with a blade on the front and a salt spreader in back. Two workers were moving along slowly while clearing snow next to the median barrier on I-20 in Rockdale County. A flatbed tractor trailer running empty on the way home Texas was moving way too fast, skidded on an icy spot, and slammed into the DOT truck.  The Texas trucker obviously was not exercising the 'extreme caution" required by the regulations in hazardous weather conditions.

The guy who later became my client wasn't hurt significantly in the initial impact, but was trapped in the DOT truck, wedged between the median barrier and the 18 wheeler, when the DOT truck caught fire.By the time a coworker broken out the windshield and pulled him to safety, he had second and third degree burns over a large portion of his body.  However, due to his fear of becoming a drug addict, he refused pain medication through his month in the hospital for burn therapy and skin grafts.  The case was a learning experience for me in that it was my first case involving a serious burn injury, treatment in a Burn Center, etc.

That was also the first case in which I was involved with a structured settlement annuity.  The client was a simple country fellow who had sense enough not to let anyone know he had money.  He had the annuity payments deposited directly to an account he opened at a bank two counties away from his home on a farm his family had settled long before the Civil War.  He returned to light duty work at DOT for a couple of years until he became eligible for retirement.  The structured settlement annuity paid him a good, steady income every month until he passed away a couple of decades later in his late seventies.

A  federal court jury in  Kansas has returned a $23.5 million verdict arising from a 2006 wreck in New Mexico, according to an article by Ron Sylvester of the Wichita Eagle. The court cut the amount to $15.3 million because the jury decided the driver of the Swift Transportation was only 65 percent at fault even though she was on methamphetamine.

The  Swift  driver was backing into the highway from a rest stop when she hit a Yellow Freight truck. The Swift driver  tested positive for methamphetamine. She claimed she was rear-ended but accident reconstruction proved her version of the incident was not true.

The  of the Yellow Freight driver was killed and the passenger / co-driver had a catastrophic spinal cord injury. This verdict was for the spinal cord injury victim. The wrongful death case is set for trail next spring.

Swift Transportation was hit with a $36.5 million verdict last year in an Arizona case brought by  the family of a man killed in a collision with a Swift truck.

At this firm we frequently represent truck drivers who are injured by the negligence of other truckers. We are always available to review such incidents.

In today's  Atlanta Journal-Constitution includes there appears a tragically true story by Steve Owings, whose son was killed by a speeding tractor trailer on cruise control six years ago. In the wake of his son's death, Steve and his wife founded Road Safe America

Knowing Steve's motivation to make the roads safer for everyone, I'm taking the liberty of copying his full article here in order to give it wider distribution.

Big rig killed our son; drive safely on busiest traffic day

By Stephen C. Owings

For the Journal-Constitution

Wednesday, November 26, 2008

My rearview mirror has turned into a time machine. Every now and then, when I glance into it, I see my son Cullum backing out of our driveway, waving one last time as he pulls away. Then, the truth comes crashing home again: I’m still here, and he’s not.

The Sunday after Thanksgiving will be a hard day for us again this year. It marks the sixth anniversary of Cullum’s tragic, violent passing. He was a young man of 22 with great promise whose life was ended in its prime, without warning, on the Sunday after Thanksgiving in 2002, the busiest highway traffic day of the year. Stopped in an interstate traffic jam while headed back to school in Virginia with his younger brother, Pierce, Cullum saw the lights of the speeding tractor trailer rig in his rearview mirrors. As he was trying to get the car over to the left median to get out of the way, the big rig speeding on cruise control crashed into the boys’ car with full force, crushing it like a toy. That night, we got the phone call every parent dreads and will remember with horror for the rest of our lives: Pierce, who miraculously had survived, told us through his tears from the ambulance that Cullum had been killed.

My wife, Susan, Pierce and I will never stop asking the question why Cullum? However, we believe we have found answers to the many questions about why and how that wreck and thousands more heavy truck-car crashes happen each year. In an effort to learn all we could and then to educate motorists and big rig drivers about the inherent dangers for everyone when heavy commercial trucks travel at high speeds, we founded the nonprofit Road Safe America in 2003.

This Sunday will be the fourth annual national observance of Drive Safer Sunday in America, a day for which we have had state, congressional and media support for a national campaign urging everyone to drive more safely on the busiest highway traffic day of the year.

Since founding Road Safe America, we have been joined by the American Trucking Associations, all national safety advocacy organizations, numerous trucking firms, business executives, insurance companies and thousands of citizens in seeking a national regulation requiring activation of electronic speed limiting governors on all trucks 13 tons and up built after 1992. All trucks built since 1992 already come with the speed governors installed, so it would be a simple thing to activate them. Oddly, the Bush administration has opposed this common sense, inexpensive regulation that would save many of the lives of approximately 4,000 motorists and 1,000 truckers killed each year in crashes involving big trucks. We have asked President-elect Barack Obama to be more compassionate, and we hope his administration will appoint a secretary of transportation who takes action.

If saving lives is not motivation enough to support this cause, in this era of dependency on foreign sources of oil, consider the fact that activation of speed governing technology is already done by many trucking firms as a way to cut fuel use as well as improve safety. With a reduction of only 5 mph, millions of gallons of fuel can be saved annually in the nation’s trucking fleet.

The European Union, Australia, Japan and the Canadian provinces of Ontario and Quebec have regulations requiring speed-limiting devices set at 65 mph or slower on all large trucks. Sadly, instead of showing international leadership, the U.S. is behind the rest of the world in this area.

According to Australian government statistics, Australia experienced a reduction of 26.5 percent in heavy truck fatalities between 2002 and 2004 through speed governor requirements, aggressive fatigue management programs, random drug testing and seatbelt promotion within the trucking industry.

When an airliner goes down and 200 people perish, it is national news for weeks. But when twice that many are killed every month in crashes involving big trucks, where is the outcry?

No one at Road Safe America is anti-trucking or anti-trucker. In fact, the opposite is the case. In terms of annual deaths and injuries, trucking is the most dangerous profession in America, and we want to change that. We are trying to educate drivers of passenger autos and other vehicles about the need to operate more safely around large trucks because of the dangers present. Trucking is an absolutely vital industry to the economic health and prosperity of our nation. However, by limiting heavy commercial trucks’ speeds, we know that many more drivers will make it home to their families, and more motorists will live to see their loved ones again as well —- this Sunday and for many Sundays to come.

Stephen Owings is an Atlanta resident and the co-founder of Road Safe America.

A big rig driver unable to see his way through dense fog Monday morning in Fresno, California, was going too fast to see stopped traffic through the fog when he struck and killed a young woman .

Tractor trailer driver Martin Nelson, 22, of Fresno, failed to see stopped traffic in heavy fog when he struck a Ford Explorer, killing the woman inside, according to a news report by Jim Steinberg and Vanessa Colón of The Fresno Bee.

Two sections of the Federal Motor Carrier Safety Regulations appear to have been violated here.

First, 49 C.F.R.§ 392.14 sets a standard of "extreme caution" in hazardous conditions, as follows:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . . rain, dust, . . . adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.

The only appellate court decisions directly addressing the issue in the United States have held that a trial court must instruct a jury on this "extreme caution" standard of care rather than the "ordinary care" standard under state law. Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001); Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). See also, George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006).

Second, 49 C.F.R. § 392.1 requires motor carriers to take responsibility for hiring, training and supervising drivers who are instructed to comply with the rules, as follows:

Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.

In this fatal crash, a 22-year-old truck driver who I figure, based on my experience, had little or no such training and supervision. In all likelihood, the trucking company confirmed that he had a Commercial Driver's License, and  no moving violations in the past three years,then handed him the keys. Probably his employer did nothing to emphasize the need to slow down or pull over when hazardous driving conditions made operation of the tractor trailer unsafe.

Unfortunately, too few judges know or care what the Federal Motor Carrier Safety Regulations require.  It always requires a concerted effort to educate a judge on this area of law. When  judge does not know that he does not know, and does not care that he does not know, there is a huge mountain to climb in order to get the court to simply apply the law.

Fatal truck accidents in bad weather are an all too common -- and preventable -- tragedy that we see in our law practice. 

Despite the very clear federal standard requiring "extreme caution" in hazardous weather and pull over if necessary, and guidelines in the Commercial Drivers License Manual to slow down by at least one-third, truck drivers under pressure from employers and shippers too often forge ahead.

The latest to hit the news happened yesterday in Virginia's Shenandoah Valley on I-81, a road I've traveled numerous times.

The crash happened around 11:30 a.m. on I-81 near New Market. Snow squalls  made the road slick. In  a chain-reaction crash, a tractor-trailer driven by Jose Alberto Sarmiento, 36, of Edinburg, Texas, struck several vehicles before plowing into the back of a  Ford Escort. Three members of a Virginia family were killed.

According to a report by Pete DeLea in the Daily News Record of Harrisonburg, VA, Sarmiento has been charged with reckless driving and three counts of felony involuntary manslaughter.

The Federal Motor Carrier Safety Regulations, 49 C.F.R. §  392.14 requires:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured. 

Two California cases hold that it is reversible error for a trial court to fail to instruct a jury regarding this "extreme caution" standard.

In Crooks v. Sammons Trucking, Inc.,  2001 WL 1654986 (Cal.App. 3 Dist.,2001),  a tractor trailer driver forged on through heavy blowing snow until he was involved in a collision with another tractor trailer.  The trial court refused a request to charge the jury on the “extreme caution” standard under  49  C.F.R.§ 392.14, charging the jury instead on the state standard of ordinary negligence.  The appellate court held that for the trial court to disregard the regulatory standard and to instruct instead the jury with lower standard provided by state law was reversible error. 

Similarly, in Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005), the court held that it was reversible error for the trial court to refuse to instruct the jury on the “extreme caution” standard rather than the ordinary negligence standard under state law. Clearly, if the federal “extreme caution” standard preempts a state rule of “ordinary care,” the reasons are even stronger for it to preempt a state standard of “willful or wanton misconduct.”

In George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006), the Minnesota Supreme Court held that it was reversible error to give a “curative” instruction contradicting an attorney’s argument that a “reasonable care” standard did not apply, even though the full instructions included reference to standards of “utmost care” and “extreme caution.”

The Kentucky case of Jurek v. Hubbs, 2004 WL 1487116 (Ky.App.,2004), involved denial of the plaintiff’s motion for directed verdict based on 49  C.F.R.§ 392.14 rather than jury instructions.  However, the court recognized that the Federal Motor Carrier Safety

regulations govern the operation of commercial motor vehicles in the United States. To the extent that they establish a standard of care higher than the law, ordinances, or regulations of a particular state jurisdiction, a commercial driver must comply with the FMSCR.

In another case that applied the principle but did not involve jury instructions, the Virginia Supreme Court held, in Kimberlin v. PM Transport, Inc., 264 Va. 261, 563 S.E.2d 665 (Va.,2002), that it was reversible error to direct a verdict for the defendant where there was a question of fact whether truck driver violated the duty  created by 49  C.F.R.§ 392.14 to exercise extreme caution under hazardous conditions and whether violation of such duty was a proximate cause of the accident.  The court noted that while violation of the regulation does “not constitute negligence per se [It] simply creates an expanded duty of care for the operation of commercial motor vehicles under the conditions stated therein.”563 S.E.2d at 668-69.

As a trucking trial attorney, I see it all too often.  And now again.  Early yesterday morning a tractor trailer loaded with sand ran a stop sign in south central Florida, striking a van on the right side. and killing six men.  According to an Associated Press report by Christine Armario, investigators were still trying to determine while the West Coast Aggregate 18-wheeler failed to stop for the stop sign. Authorities were still seeking to identify the six victims who were thought to be HIspanic.

reported that the tractor-trailer was  hauling sand out of Ortona Sand Co., five to six miles from where the accident occurred.  The van, registered to a farm labor contractor, was not authorized to transport farm workers and had not passed vehicle safety inspections. 

According to USDOT information, West Coast Aggregate Haulers is based in Venice, Florida, and reports operation of only one power unit, hauling aggregate on interstate trips only. In the past 24 months West Coast Aggregate had two truck inspections, failing one of them. 

Florida requires only $300,000 liability insurance for trucks of intrastate haulers with a gross vehicle weight of 44,000 to 80,000 pounds, compared with the minimum $750,000 required for interstate truckers and the measly $100,000 required for intrastate haulers in Georgia.  However, we often find in Georgia that trucks hauling timber and  building materials such as sand actually carry $1 million liability coverage due to contractual requirements.

A Florida truck driver admitted that he was on his cell phone yesterday when he slammed into a school bus, killing a 13-year-old student. According to a report by Austin Miller of the Ocala Star-Banner, the school bus, which had stopped to let children off , had its warning lights on and stop signs out. The truck driver said he never saw the bus. He  failed to stop for it and rammed the school bus forward 294 feet. The bus was fully engulfed in flames. 

See our recent posts on cell phone distractions and the absence of seat belts on busses.

As a trucking accident trial lawyer in Atlanta, I’m watching the news and wondering what will be the implications in the trucking and insurance sectors.

High fuel prices, dependence on foreign oil, hurricanes, the subprime mortgage meltdown, the economic rise of China and India, the ongoing cost of war in Iraq and Afghanistan, and deferred spending on infrastructure combine to affect both trucking and insurance.

Prices of oil and other commodities have risen over the past few years due in large part to the increased world demand accompanying the economic development of China and India. Prices are moderated by any economic slowdown that decreases demand. However, even with such fluctuations, fuel prices remain several times greater than a decade ago.

Hurricanes, which some folks say have increased in intensity due to global warming, temporarily impact fuel prices when they hit production, refinery and port capacity in Louisiana and Texas. At the same time, payment of hurricane losses impacts an insurance industry that has already been impacted by investments turned sour.

In trucking, high fuel costs have both direct and indirect impacts. The direct impact of high fuel prices on truckers is obvious. Moreover, I keep getting anecdotal reports that motor carriers collect fuel surcharges and too often fail to pass it on to independent owner operators who actually purchase the fuel. The indirect impact is on demand, as shippers shift more long-haul business from trucks to rail. Any slowdown in the economy further depresses demand for shipping.

As more shipping shifts from long-haul trucks to multimodal freight logistics systems involving both long-haul rail and short-haul trucking, we are likely to see more freight containers bolted to poorly maintained trailer chassis. There will be a shift in the technical, regulatory and insurance issues involved in trucking accidents that result.  Unfortunately, judges who have poor understanding of trucking regulations and case law will not comprehend what is going on and render simplistic judgments with devastating impacts on innocent victims.

Under economic pressure, we can expect many trucking companies to cut corners on all aspects of safety. Those companies that carry more insurance than the law requires will be tempted to bet the company that, despite compromises on safety, they won’t face catastrophic injury claims.

Another result  of the economic conditions is a shakeout in the industry. I keep hearing reports of owner operators just walking away from rigs they can’t pay for any more. I expect we will see a trend toward reduction of capacity and consolidation in the trucking industry.

At the same time, the financial crisis that began with the meltdown in subprime mortgage-backed securities has reached beyond investment banking to the insurance giant AIG. Laying aside any feelings of schadenfreude (joy about another’s misfortune) due to the arrogant corporate culture of AIG under the leadership of former CEO Hank Greenberg, we have to recognize the large role of AIG in the insurance industry. As the implications of its downfall ripple through the insurance industry, I expect to share the pain.

While AIG is the teetering giant in the news today, we will soon find that the impact of the financial crisis is widespread in the insurance industry, affecting both the insurance companies that are familiar to the public and the reinsurers that loom in the background. If reinsurers begin to fail, watch out.

The insurance industry has a long history of blaming injury victims and trial lawyers for its own investment losses. Every time there is a financial crisis in which investments turned sour affect the insurance industry, it is soon followed by a new round of premium increases coupled with demands for "tort reform" as insurers blame injury victims and trial lawyers for their problems. But more often than not, the crisis is to due investment losses rather than underwriting losses.

Due to the financial meltdown, we are likely to see increasing insurance premiums for everyone, including truckers. For truckers who are already struggling, some may be put out of business by inability to purchase coverage at any price.

Some of the implications for public safety on the highways are obvious, as trucking companies struggle to make profits under these economic conditions, too many will cut corners on safety.

The end result will be that more people will be killed or injured. Lawyers like me will represent the victims. Insurance and trucking companies will fight even harder to avoid paying claims. Stubborn refusals to pay legitimate claims will result in more trials of cases they should settle, and more large jury verdicts.

So much for the macroeconomics. On the microeconomics side, families that are devastated when trucking companies operate in an unsafe manner need to understand that the insurance companies send "rapid response" teams to scenes of serious accidents, and will try to lull them into complacency while crucial evicence is "lost" or destroyed. Time is of the essence as it is essential to take early action to preserve evidence. We are prepared to fight the good fight against trucking and companies that are determined to avoid and delay payment of legitimate claims.

Georgia has seen two catastrophic armored truck accidents within the past week, at Calhoun and Tucker.

Gordon County officer killed.

Near Calhoun on August 22nd , Gordon County ordinance enforcement officer Kathy Cox was killed when a Loomis Fargo armored truck failed to stop behind a slowing vehicle, swerved into the oncoming lane, and hit Mrs. Cox's vehicle head on.  Both vehicles burst into flames, and she died in the conflagration.

Kathy Cox’s older sister, Karen, was in my class at Douglas County High School in the late sixties.  I remember Cathy as a child of 9 or 10, hanging around the house when I was in their home to work on  some class project.  Karen died in a motor vehicle accident roughly probably 20 or so years ago.  That family has been through a lot.

The Loomis armored truck from Chattanooga, where I was taking depositions this week, was driven by Daniel Allen Clark of Fort Payne, Ala., where I was born. The wreck occurred in Gordon County, where last year we won the largest jury verdict in the history of the county.

Loomis Armored, USA, Inc., now part of an international conglomerate of cash handling businesses, started out as Wells Fargo in the days of the California gold rush of the nineteenth century. It has 2,992 drivers of 4,575 armored trucks nationwide.
Ironically, Loomis announced on August 26th its acquisition in Georgia of EM Armored Car Service, Inc., in Savannah.


DeKalb County school bus hit, child critically injured.

Just five days later on August 27th in Tucker, a Garda armored struck struck a school bus that was stopped with its lights flashing and sign extended.  A 13-year-old girl who was boarding the bus at the time of impact was transported to Children’s Healthcare of Atlanta in critical condition.

Garda is a global security and cash logistics company based in Montreal, Canada. 

Garda has nine regional operating companies, including Garda Southeast based in Smyrna, GA, with 106 power units and 315 drivers. 

Both Loomis and Garda are interstate motor carriers required to comply with the Federal Motor Carrier Safety Regulations. Both can be held accountable by Georgia juries if the families select a lawyer who knows how to use those regulations.



 
 

A tractor trailer making an illegal u-turn on a bridge in pre-dawn darkness caused a Laurens County, Georgia, crash yesterday, as a car became wedged under the trailer, according to a report by Bernie O'Donnell of WMAZ-TV in Macon.  Problems with side conspicuity andtrailer underride are common. When we see motor carrier accidents in the very early morning, we naturally look into questions of hours of service violations and driver fatigue affecting attentiveness and judgment.

Skyrocketing fuel prices have put truckers into a world of hurt.  Now two U.S. Senators have introduced a bill that would require 100 percent of fuel surcharges levied on shipping customers to be passed through to the person actually paying for the fuel, in most cases the truck driver.  The bill was introduced by Olympia Snowe, R-Maine, and Sherrod Brown, D-Ohio. Called the TRUCC Act, which stands for “Trust in Reliable Understanding of Consumer Costs,” the bill “will go a long way toward helping truckers survive the brutal cost of fuel,” said Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Association.

I certainly sympathize with the owner-operator truckers who are having to pay the higher fuel prices, while the trucking companies pocket the fuel surcharges. That's wrong.

Fuel prices may also impact safety. Over the next year, I expect to see an increase in tragic trucking accidents in which truckers have scrimped on maintenance and stretched driving hours in order to make ends meet, while cutting corners on insurance coverage beyond the barest minimum. 

On a curvy road near Falmouth, Kentucky, a dump truck hauling rock from a quarry crashed into a school bus, killing a 16-year-old student. The truck driver had been working for the company two weeks, according to a news article by Roger Alford.

This incident highlights a couple of categories of safety issues I have recently encountered in my law practice. Last year I tried a case in Macon in which our safety expert was able to identify a host of safety violations in a dump truck that rear-ended our client on a bridge. The violations included broken springs and frame elements consistent with long-term wear and tear bouncing in and out of quarries. In another case, we have seen the hazards related to the lack of seat belts in school buses and tour buses.

Saturday morning, at the request of a patient's family  who urgently want to provide for his care needs, I visited an intensive care unit at Grady Memorial Hospital to attempt to interview a man who became a quadriplegic in a recent traffic collision. Laying paralyzed in a bed, breathing through a tube, he was too sedated to respond to a sibling's attempts to wake him. We may have to have a family member appointed by the probate court to handle his affairs.  The previous afternoon, I had met with a father whose beautiful 16-year-old daughter went out on a date, the boy who was driving wrapped his car around a telephone pole, she had a bad head injury, and died a few weeks later in the hospital.  I don't know if the evidence will ultimately be sufficient for me to do any good for these folks, but I will explore all reasonable options.

The seemingly random cruelty of fate is tangible at such times. When I was in my teens, a popular TV show included each week the "flying fickle finger of fate award." It was presented as comedy then, but too often it is part of tragedy.  It seems that nearly everyone I represent has been presented this unwelcome "award."

Sometimes well-meaning people try to say that it was "the Lord's will" or "the Lord took her" when a person was killed or catastrophically injured.  As a long-time adult Sunday School teacher, I think that is warped theology. It's wrong to blame God when people break rules and cause tragedies.  Hurricanes and tsunamis are acts of God.  Truck wrecks are acts of men and of corporations, and they should be held accountable for the harm they cause.

Sometimes we can obtain justice for victims and their families. Other times all we can do is provide the comfort that someone who is knowledgeable cared enough to try. A trial lawyer is called to be more that just a gladiator.  We need to remember that highest source of law and of professionalism is a rule of unselfish love, of sincere concern for the highest good for the other person.  While we are not grief counselors or psychologists, we need to be able to help folks get through the ordeal of their loss.

At Bamberg, SC, on 1/7/08, a beer truck, a log truck and two empty Freightliners were involved in a fiery pileup when the log truck lost a tire.  The beer truck burned completely and its driver died. The two empty trucks were driven by brothers  Two men from Rincon, Georgia were driving the empty Freightliners.  One of them, whose truck also burned, was flown to a hospital. See news report from Chantelle Janelle at WIS-TV in Columbia.

As a trial lawyer in Atlanta, Georgia, handling catastrophic truck accident cases, I often need to use accident reconstruction experts.  Following are some of the factors that the reconstruction expert may consider in such an analyis, as summarized by my Tennessee co-counsel Morgan Adams:

Center of mass formula. The formula to determine the center of mass location is: the total moments ÷ the total weight = the center of mass.

Datum used for accident reconstruction measurements (a datum is an imaginary plane from which all measurements are taken), arm (the distance that a weight is located from the datum), moment (the product of weight x its lever arm).

Track width - Measured to the center of the tire, or to the center of the dual wheels.

Rollover threshold – a ratio of vehicle center of mass-to-track width. This predicts at what lateral acceleration the vehicle or component will roll over.

Rollover threshold formula – the rollover threshold formula is: rollover threshold = track width ÷ height of the center of mass. RT = 1/2 TW/CM
If the rollover threshold exceeds the coefficient of friction of the road surface, there will be a spin out instead of a rollover.  If the rollover threshold is larger than the coefficient of friction, and the vehicle rolled over, there is a mistake somewhere in your calculations or measurements. Therefore, if the coefficient of friction of the road surface is .40, and the rollover threshold is .46, the vehicle should spin out.

Rollover velocity formula – the rollover velocity formula is: rollover velocity = √ radius of the curve x gravity x rollover threshold. As the combined center of mass displaces laterally, it is no longer perpendicular to the track width. The effective track width (TW1) should be determined by measuring the distance from the center of the dual wheels to a point perpendicular to the shifted location of the combined center of mass. This is done by subtracting x from TW. To see how much this would change the original result, subtract x from the track width and recalculate the velocity formula. By allowing for center of mass displacement, the speed is lowered by 5 miles per hour. Therefore, suspension displacement has to be accounted for in reconstructions.

Truck driver fatigue was the apparent cause of a fiery crash in a construction zone on I-39 in Illinois on January 2nd.  The truck driver admitted that he fell asleep entering the construction zone.  The tractor trailer crashed into multiple vehicles, killing three innocent travelers.

I don't just represent people who are run over by tractor trailers. I also represent truck drivers and their widows, and hear a lot of scary tales of how truckers are required to violate hours of service rules despite crushing fatigue in order to make impossible delivery schedules.  It is mind boggling that the Federal Motor Carrier Safety Administration continues to yield to trucking industry pressure to avoid requiring electronic monitoring of hours of service.  As long as the hours of service rules are enforced only through easily falsified paper logs, we will continue to see fatigue-related carnage on the highways.

Police in Kings Mountain, NC, say a driver’s lack of understanding of the English language appears to have led to a violent wreck between a train and a tractor-trailer.  Truck driver Ricardo Ercia was crossing several train lines in town at South Battleground Avenue and Oak Street when he didn’t obey a traffic sign calling for drivers to go through a second rail line crossing. Fortunatley, there were no serious injuries. The Federal Motor Carrier Safety Regulations require that truck drivers be able to read and understand the English language.

There are approximately 141,000 truck crashes every year in the US, according to a The Federal Motor Carry Safety Administration’s 2006 report.  In about 77,000 of these,  fault was attributed to the truck driver.   According to the FMCA 2006 report, the top 10 causes of truck accidents where the truck driver is a fault:

1. Prescription drug use (26%)

2. Traveling too fast (23%)

3. Unfamiliar with the roadway (22%)

4. Over the counter drug use (18%)

5. Inadequate surveillance 14%)

6. Fatigue (13%)

7. Illegal maneuver (9%)

8. Exterior distraction (9%)

9. Inadequate evasive action (7%)

10. Aggressive driving (7%)

We tend to focus a lot of time and effort on the fatigue issue, but according to the FMCSA report we should focus at least as much effort on uncovering prescription and OTC drug use inconsistent with driving a big rig, speed, unfamiliarity with the road, etc.

Fri., 3/9/07, Calhoun, GA. 

In a scene reminiscent of the 1982 Paul Newman movie, "The Verdict," the jury after three hours of deliberation Thursday afternoon sent a note to the judge asking if they were limited by the amount the plaintiff asked for.   In closing argument I had asked for a verdict of approximately $1.2 million for our client's permanently disabling leg injury.  When we got that question from the jury, my first thought was that I don't drink anywhere near enough to fit the Paul Newman role in the movie.

Today we won a $2,345,940.17 jury verdict against a Pennsylvania trucking company in the Superior Court of Gordon County, Calhoun, Georgia.  The verdict was broken down as follows: compensatory damages:  $1,742,845.70, attorney fees due to bad faith in the transaction, $580,948.57, expenses  of litigation $ 22,145.90.  Medical expenses were $112,228.  The highest offer from defendant's insurance company before trial was $125,000, going up to $400,000 on third day of trial. This was nearly three times the highest previous verdict in the history of Gordon County.

The specificity of the figures, down to the penny, helps to refute any allegation that it was a random verdict by a "runaway jury."  These jurors were all deeply conservative northwest Georgia folks who were determined to follow the law and the facts wherever they led, and to do the right thing.

It was a very good week.

Johnson v. Clarendon National Insurance Company, American Trans-Freight, LLC, ATF Trucking, LLC, ATF Logistics, LLC, and Robert W. Carnley, CIVIL ACTION FILE NO. 04-CV-43532

I have nothing against anyone with an impairment of vision or hearing.  I couldn't live in my house if I did.  But sometimes safety trumps equal opportunity. One of those circumstances is in the operation of 80,000 pound tractor trailers at 70 mph on public highways.  Recently we encountered a situation in which a truck driver who was blind in one eye failed to perceive in time  that a vehicle ahead of him was slowing to turn.  Binocular vision with depth perception might have helped.

The Federal Motor Carrier Safety Regulations, at 49  C.F.R.§ 391.41 (b)(10),  provides:

 “A person is physically qualified to drive a commercial motor vehicle if that person: Has a distant visual acuity of at least 20/40 (Snellen) in each eye with or without corrective lenses, or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses; and distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses; and field of vision of at least 70 degrees in the horizontal meridian in each eye . . . .”

The importance of binocular (two eyes) vision for depth perception was recognized long ago.  Here is an illustration by Leonardo da Vinci.


My bride for the past 23 years has monocular vision due to nerve damage from a brain tumor years ago. She is a wonderful person and a careful driver, but without normal depth perception it would not be safe for her to drive a tractor trailer on the highway.

I have written several times this year about proposals for toll lanes for trucks on metro Atlanta interstate highways.  An article this week shows another reason why this may become a necessity.

The Georgia Department of Transportation expects to spend $160 billion on road construction projects between 2005 and 2035. But revenues from the motor fuel tax that funds road improvement are projected to bring in only $86 billion during the same period. That leaves a $74 billion funding gap.  In addition, federal funding for highway construction has declined sharply in real terms because the federal motor fuel tax is set at 18.4 cents per gallon and is not indexed to inflation, Studstill told the more than 300-hundred attendees at the event. “This shortfall could result in a complete drawdown of the Federal Highway Trust Fund in 2009,” Studstill said. If this occurred, federal highway funds would be exhausted in three years. That leaves a $74 billion funding gap for Georgia roads.

At the same time, increasing road construction costs, population growth and more truck traffic through the state and from the booming port of Savannah increasing pressure on Georgia’s roads.

Three fiscal solutions have been proposed.  One is project-specific Special Purpose Local Option Sales Tax, or SPLOST, on a statewide or regional basis. Another is a statewide 1% sales tax  to replace the fuel tax.  The official estimate is that this would generate $1.5 billion per year, compared with $850 million from the fuel tax.

The third approach would involve public-private partnerships such as toll roads. Georgia law allows GDOT to partner with private or corporate businesses to help finance, design, construct, operate and/or maintain transportation projects. Four are under now consideration in Georgia.

There is also the possibility of rail or other transit relieving commuter pressure on metro Atlanta expressways, while we add another 2 million or more people in the next 25 years. Transit makes good sense in densely populated areas, and the area inside I-285 is rapidly becoming a much more densely packed urban environment.

As with moth things, there are no easy answers.  The tough choices are seldom if ever between good and bad, but between good and good, and between bad and bad.  My hunch is that the federal, state and local government officials will incrementally cobble together some imperfect combination of all these approaches, but we will stay perpetually behind the growth curve until something -- either good (e.g., fantastic new energy technology, etc. spurring stronger economic growth)  or bad (environmental, demographic and/or economic collapse)  -- causes a dramatic discontinuity in our current patterns.

• Severity.  23.1% of large truck collisions involved a fatality, and 28.7% caused an incapacitating injury.
• Tractor-trailers predominant.  62.2% of large truck collsions involved tractor-trailer combinations.
• Types of contact:  23.1% of large truck crashes involved rear end collisions, 17.8% invovled trucks off the road or out of lane, and 10.3% involved sideswipe collisions.
• Types of critical errors attributed to truckers: Of crashes where the trucker was determined at fault, 32.1% were off the road or out of lane, 28.6% lost control (too fast for conditions, etc.), 21.7% involved contact with another motor vehicle in the travel lane, and 10.3% involved turning or crossing an intersection.

A Nashville reporter did an analysis of truck wreck data and found that truck drivers who violated hours of service rules, fell asleep and caused wrecks were seldom ticketed and fined. Out of 64 truckers who were reported as "apparently asleep" and either injured or killed someone, 70% did not even get a ticket. Of 1900 truck drivers ticketed for driving excess hours, the average fine was $231. One trucker who admitted he fell asleep at the wheel slammed into a convenience store, killing a man pumping gas and causing an explosion. The trucker was never prosecuted or ticketed and still has a valid license - which shows no sign of the accident. He could be hired to haul hazardous material tomorrow.

What should a victim -- or more likely family members and friends -- do immediately after a catastrophic truck wreck?

In many types of personal injury or wrongful death cases, it doesn't matter a great deal if one waits several months to even think about talking to a lawyer. So long as evidence is preserved and suit is filed before the statute of limitation expires -- two years in Georgia -- haste in bringing a claim can sometimes seem, well, almost unsavory.

But interstate trucking cases are different. A couple of ways in which they are different were highlighted at a national seminar for trucking defense lawyers that I attended, very quietly, this week in Chicago.

First, you need to understand the speed with which trucking companies and their insurers spring into action after a truck wreck. One speaker, the risk manager of a major national trucking company, talked about how to manage claims from the first report of the accident. As soon as the truck driver reports the wreck to the dispatcher, the risk manager gets a call at home, even it's at 3 AM. The risk manager then places a call to their designated defense lawyer in that state -- at home at 3 AM. The defense lawyer then retains a claims investigator, under the cloak of "attorney work product," to immediately go to the scene. Within an hour or two after a crash occurs, the company thus has a claims investigator at the scene seeking evidence favorable to the defense. They will never talk about it at defense lawyer seminars, but I've been around too long to be surprised at the idea of an insurance claims investigator making unfavorable evidence, such as logs showing extreme violations of hours of service rules, "disappear" in the post-wreck confusion. Moreover, the trucking company's defense lawyer may also be at the scene, sitting in his car just out of range of any investigators' cameras, directing the claims investigator's activity.

The next step is to begin trying to lull the victim and her family into inaction by promising to "do the right thing," and perhaps making an offer of settlement that is large enough to be tempting, but at a bargain price in light of what the company knows. The objective is to deal directly with the victim, telling her that she doesn't need an attorney. Remember that the trucking company and insurance company at that point have a defense lawyer and several claims professionals working on their side, seeking to isolate the victim from professional assistance as long as possible.

Meanwhile, there is a tremendous amount of evidence that may be lost forever if the victim doesn't have a knowledgeable, forceful attorney who can quickly act to preserve it. The larger trucking companies generally use on-board computers and satellite communication systems that generate an enormous amount of data that may be invaluable to the victim's case. The companies that provide those services to truck fleets have record retention policies providing that data on truck operations is transmitted to the trucking companies, then purged from the provider's computer system within 14 to 30 days. The data transmitted to the trucking companies is subject to "modification" and it is extraordinarily difficult and expensive to prove that data was altered.

In addition, trucking companies typically have record retention policies to purge such records in no more than the six months that the Federal Motor Carriers Safety Regulations require for preservation of driver logs, or other retention periods for other records.

There is also "black box" data generated by engine control modules (ECM's) on all late model road tractor engines. Such data is extremely important in proving the performance of the truck and its drive. It must be downloaded according to manufacturers' protocols, and if not promptly downloaded may be lost forever.

Without immediately retaining a lawyer who is prepared to immediately demand that the companies preserve a long list of paper records and electronic data after a wreck, the company may well destroy that information according to internal records management policies that are permissible under the Federal Motor Carrier Safety Regulations. If necessary, one may need to file a suit just to require preservation of evidence prior to filing a personal injury or wrongful death case.

Allowing oneself to be lulled into inaction by representatives of a company that is busy gathering evidence favorable to the defense and avoiding preservation of unfavorable evidence, is a tragic outcome for trusting injury victims.

While a highly competent and ethical lawyer who practices in another specialty may have the resources to quickly identify a trucking lawyer, most lawyers really don't know the ins and outs of trucking cases well enough to take timely and appropriate action. Most of our cases come by referral from lawyers in other specialties with whom we share responsibility and fees. See attorney referrals.

Sometimes I get comments from truck drivers who say the items I post are too one-sided. Sorry about that. I certainly recognize that a majority of truck drivers are hard-working, reasonably safety conscious folks, and not all truck wrecks are the fault of the truckers. That doesn't meen I accept at face value the trucking industry propoganda that blames 80% of truck wrecks on other motorists, however.

Recently I met a truck driver at a roadside diner away from Atlanta to find out what he could tell me related to one of my cases. We had a good visit.

Regarding problems caused by other motorists on the highway, he talked about seeing drivers who have a newspaper propped on the steering wheel, while eating and talking on their cell phones and whipping around in front of his truck. Certainly we all should use common sense, pay attention, avoid such distractions, and drive defensively.

As for the new hours of service rules, he lamented the inflexibility of a system that penalizes the driver who recognizes the need to pull over for a "power nap" in the middle of his authorized hours. He has a point.

He told of times when he was forced to violate hours of service rules, and perhaps to falsify logs, due to the demands of employers and shippers. He told the story of a shipper who did not release a load to him until about seven hours past the scheduled pickup time, but insisted that it had to be at the destination by a deadline with which it was impossible to comply without grossly violating several Federal Motor Carrier Safety Regulations. That made me start thinking about the potential responsibility of shippers and brokers under 49 CFR 390.13, which provides that "No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter." It doesn't say "no motor carrier," but "no person."

Finally, on the way out of the cafe, I noted that this good guy who drives trucks for a living has a rebuilt Volvo as his personal vehicle. He knows, as I know, that it's really hard to get killed in a Volvo.

Today's New York Times reports that a growing shortage of qualified over the road truck drivers is leading cokmpanies to offer generous 401(k), stock option and health care packages to new recruits and cash bonuses and prizes to drivers who refer viable candidates. To compete with other companies for experienced drivers, some are outfitting more of their cabs with satellite radio and television and introducing policies to allow drivers to bring pets and spouses on the road. Schneider holds "driver recognition days" every few months at regional repair shops, featuring Elvis impersonators, free barbecue and raffles for motorcycles and iPods. Part of the problem is that trucking competes with construction work for the same labor pool, and construction allows workers to be at home with their families, bearing less stress, rather than being away for a week or more at a time under difficult time pressure. In 2004, according to the U. S. Department of Labor, the average annual pay for a truck driver was $34,920, compared with $37,890 for a construction worker. The driver shortfall is expected to worsen in coming years since about 219,000 of the country's 1.3 million long-haul truckers are over 55 and are likely to retire in the next 10 years. To meet the growing need, some carriers are turning to new sources of labor like women, retirees and especially Hispanics. The number of truck drivers who are not white males increased to 30 percent in 2004, up from 26.6 percent in 2001. Hispanics now account for 15 percent of all truck drivers, up from 12 percent during the same period, federal records show. The article reports on efforts to attract husband-wife driver teams.

The article does not mention the effect of all these factors on public safety. A shortage of qualified drivers leads some companies to scrape the bottom of the barrel, and the pressures of the job tempt drivers to break the safety rules. The result is too often dead and maimed people on the highways.

The Birmingham News reports today that tired truck drivers have killed 104 people on Alabama roads in the past three years. As we have frequently noted here, this is part of a national problem. From 2002 through 2004, the latest year for which statistics are available, there were 10,797 Alabama accidents in which the truck driver was listed on the wreck report as being at fault. In those crashes, 104 people died. That does not include the many instances in which driver fatigue was a dominant factor, but the reporting police officer did not mention it on the accident report. (I see that all the time. Recently an Ohio truck driver admitted to me in deposition that his log was completely falsified and he had been driving 20 of 24 hours before running over a family and killing their son, but the state trooper did not mention driver fatigue on the accident report because he relied on the phony log.) The Federal Motor Carrier Safety Administration says 15 percent of all truck crashes nationwide are caused by fatigue. Based on that percentage, 1,619 of the Alabama crashes during the three-year period were attributable to drowsiness.

A study of truck crashes conducted by the U.S. National Transportation Safety Board found that 31% of fatal-to-the-driver commercial truck crashes were caused by driver fatigue. That problem is worldwide.

New studies in Canada, Australia and South Africa report a significant percentage of long-haul truck drivers average 4 hours sleep our of 24. (13% in Canada, 1/3 in South Africa). It is widely accepted that both fatigue and sleep deprivation are major contributors to truck accidents. A study published in the South African Journal of Science reports that falling asleep at the wheel contributed to a quarter or more road accidents involving heavy vehicles. Truckers reported working well in excess of the lawful hours which were poorly enforced. These restrictions cannot be enforced and drivers are under pressure to supplement their income and to meet company expectations.

For those drivers who do manage to get some sleep in their truck, the South African study reported that their sleep was interrupted mostly by noise as well as light, outside activity and extremes of heat or cold. Nearly 80% of drivers surveyed complained of interrupted sleep; in this case poor sleep is associated with up to 62% of incidents where drivers nodded off at the wheel, increasing the risk of causing a road accident. Sleep apnea and other sleep disorders were associated with two-fold increase in sleep-related road accidents compared with drivers without sleep disorders. Drivers who snore or show signs indicative of sleep apnoea are also more likely to be overweight. Obese drivers who snore or experience excessive daytime sleepiness fall asleep at the wheel more often and are twice as likely to have an accident compared to those who do not snore. Almost all the drivers interviewed stated that they started driving between 1 am and 8 am, a period when melatonin levels are high and the stimulus for sleep is also high.

A Canadian study of truckers' sleep patterns reported that drivers slept an average of only 4.78 hours--2 or more hours less than their reported ideal amount of sleep. Schedules had a "significant effect" on how long drivers slept in a given period. On average, daytime drivers slept for longer periods than night drivers (5.38 hours vs. 3.83 hours). The average 4.78 hours of sleep from the study was "much shorter than most standards." Sleep research shows the chances of falling asleep during normal waking hours increase if a person sleeps less than six hours and has "successive days" of too little sleep. Not enough sleep leads to more errors and inattentiveness and diminished psychomotor skills. Research also shows that "night driving after relatively little sleep is a better predictor of fatigue-related accidents than is night driving alone."

The South African and Canadian studies is consistent with what we see here too often. A couple of weeks I took a deposition of a truck driver in Ohio who wound up admitting that he had gotten only 4 hours sleep in the last 24, that he had grossly violated the hours of service regulations, that his logs were completely falsified, etc. He stopped just short of admitting that he was asleep on cruise control when he ran over a family in Georgia and killed their kid. More often the truck drivers deny everything, even if their logs cannot be found and they "can't remember" if they had stopped for rest.

And it's not just innocent travelers on the road who are hurt. Frequently I see news reports of truck drivers who were killed when they inexplicably ran off the highway and crashed in the early morning hours.

A U.S. District Court judge in Colorado has ruled that violation of the FMCSR driver log rule is negligence of a matter of law, but that the plaintiff must present evidence of a causal relationship between the violation and the wreck. In Hill v. Western Door, 2005 WL 2991589 (D.Colo.,2005), the court ruled:

[T]he requirement that drivers keep an accurate log of their duty status is related to the safety of other travelers on the road. Drivers are required to record their duty status so compliance with the limitations on hours of service contained in Part 395 can be monitored and enforced. FMCSR 395.3 and 305.5 provide specific limitations on the number or hours a commercial vehicle operator can be driving during certain periods of time. Although the regulations do not explicitly declare their purpose, the tie between safety and fatigue is clear. Safety undoubtedly is one of the key purposes of the limitations on hours of service in Part 395, and of the record keeping requirement of FMCSR 395.8. I find that this regulation was intended to promote the safe operation of commercial vehicles, including the safety of people, like the plaintiffs, who share the road with commercial vehicles. Although FMCSR 395.8 also might have been designed to aid the management and organization of commercial vehicles, as the defendants argue, the connection between safety and limitations on driving times is so clear that I cannot disregard that purpose. A tired driver has the same potential to jeopardize the safety of others on the road as does a truck stopped on the highway.

Then, unfortunately, the court found that in the absence of evidence in the record to show a causal connection between the log violation and the wreck, summary judgment was granted on the log book violation portion of the claim.

Hill v. Western Door should be read in conjunction with Came v. Micou, 2005 WL 1500978 (M.D.Pa.,2005), in which the plaintiff presented evidence of causation through two expert reports -- one an expert on trucking safety and the other an expert on driver fatigue issues -- to the effect that the violations were the precipitating factors leading to the collision.

Three headline-making fatal truck accidents occurred in a 15-hour period this week, killing 19 people. A truck wreck Jan. 25 killed seven children in Florida. A few hours later in Illinois, a wreck killed two adults and three children, plus the driver of the big rig. The next morning, a wreck killed six people in Texas.

Washington, 12/2/05.

The Federal Motor Carrier Safety Administration's regulations governing minimum standards for entry-level truck driver training are inadequate based on the record developed during the rulemaking process, a federal appeals court ruled today.

The minimum requirements adopted last May by the Federal Motor Carrier Safety Administration involve only classroom education and in only four areas: medical qualification and drug and alcohol testing; hours-of-service regulations; wellness; and whistleblower protection.

The court said: "The (FMCSR staff's) Adequacy Report determined that effective training for CMV drivers required practical, on-the-road instruction on how to operate a heavy vehicle. But FMCSA ignored this evidence and opted for a program that focuses on areas unrelated to the practical demands of operating a commercial motor vehicle."

The appeals court agreed with Advocates that the sharp contrast between FMCSA's earlier conclusions and the terms of the final rule shows the agency's actions to be "arbitrary and capricious" and in violation of the Administrative Procedure Act. "The agency, without coherent explanation, has promulgated a rule that is so at odds with the record assembled by DOT that the action cannot stand. Accordingly, we grant the petitions for review and remand the final rule to the agency for further rulemaking consistent with this opinion."

It does seem incredible that the FMCSA would adopt truck driver minimum training standards that do not include having to actually drive a truck on the highway. But, hey, new lawyers have been admitted to practice law for generations without ever actually trying a case or counseling a client.

On 11/11/05 in Gwinnett County, a Gainesville man was killed when a tractor-trailer ran a red light and struck his pickup truck.

Kevin Tanner, 32, died from his injuries at Gwinnett Medical Center about eleven hours after the tractor-trailer driver, Theodore Banks, 28, reportedly of Jonesboro, allegedly ran the red light and hit him.

Tanner, a native of Hall County, was the sole proprietor of D&D Electric. He is survived by his wife, Amy Cargile Tanner; son, Brandon; and daughter, Hailey.

See Gainesville Times article.

Elgin, IL, 11/30/05.
A truck carrying 42,000 pounds of gravel sped through a red light, stuck a minivan and 8 other vehicles, and killed the driver of the minivan. The driver of the gravel truck was to be tested for drugs and alcohol. See news story.

In many states trucks carrying road construction materials, timber, and products of mines, farms and forests, are minimally regulated and have lax safety practices.

The Administrator of the Federal Motor Carrier Safety Administration (FMCSA), outlined a new effort on the part of the agency to concentrate more on truck driver-related issues.

As part of this shift of emphasis, FMCSA plans to start work on the following in 2006:

Development of a Commercial Driver's License (CDL) learner's permit with a single federal standard.

Inclusion of the driver medical certificate with the CDL.

Tougher medical examiner standards in order to screen out drivers involved in accidents who should never have been put behind the wheel.

Increase research on driver fatigue factors and especially focus on the physical problems associated with sleep apnea and problems exacerbated by a poor diet and lack of exercise.

Wireless roadside inspection technology that would allow federal safety inspectors to "plug into" trucks so they can get a quick read on vehicle issues.

Expansion of FMCSA's TACT [Targeting Aggressive Cars and Trucks] program that puts state troopers in commercial trucks to write citations for aggressive behavior they see on the part of both cars and truckers.

See Fleetowner article.

According to a report from the General Accounting Office, states fail to report one-third of commercial trucking accidents that they are required to report to the Federal Motor Carrier Safety Administration. Large trucks make up 3 percent of the nation's registered vehicles, but they were involved in 11 percent of all fatal crashes in 2003. To reduce the truck and bus accident fatality rate, the FMCSA sets national safety goals and works in partnership with states to reach them. Crash data collected by states and submitted to the FMCSA is key to these efforts, and to be fully useful, this data must be complete, timely, accurate, and collected in a consistent manner. However, with one-third of truck crashes unreported, the crash data does not meet general data quality standards of completeness, timeliness, accuracy, and consistency. See story.

Today has been proclaimed "Drive Safer Sunday" in Georgia as part of a campaign begun by the family of an Atlanta college student killed by a speeding trucker in Viginia three ywars ago.

Cullum Owings was returning to Washington & Lee University with his younger brother after a visit home to Atlanta. He planned to join the Peace Corps after graduation. A long-haul trucker, with his cruise control set 7 miles over the 65 mph speed limit, hit their car as it was stopped in traffic on I-81 in Rockbridge County, Va. Cullem tried to swerve into the median to get out of the approaching trucker's way, but was struck in the driver's door and killed.

Cullem's parents have started Road Safe America, campaigning for highway safety and for a federally mandated governor on tractor trailers to prevent the trucks from driving over 65 mph. See AJC article.

From 2001 to 2004, commercial vehicle wrecks in South Carolina increased 39%, from 2,264 to 3,147, while truck safety enforcement staffing remained at the same level. The number of trucks licensed to haul cargo in SC increased over the four-year period by about 6 percent to 862,879,while the number of tractor-trailer rigs involved in collisions during the period increased by about 17 percent. Responding to this data and an incident in which a DUI truck driver with three prior DUI convictions killed four people, blamed car drivers for 80% of commercial vehicle collisions. See article in Columbia State newspaper.

I am chairing the Southeastern Motor Carrier Liability Institute, at the Georgia Bar Center in Atlanta, GA - Nov. 10-11, 2005. It is co-sponsored by the Georgia, Alabama, Tennessee and North Carolina Trial Lawyers Associations. Anyone interested in attending may register online at http://gtla.org.

Nov. 10 (Thursday)

9:00 AM Trucking 101: The Basics -- Morgan Adams, Law Office of Morgan Adams, Chattanooga, TN

9:40 AM Insurance Issues in Trucking Litigation - Mike Goldberg Strawinski & Goldberg, Atlanta, GA

10:40 AM -- Advances in Trucking Technology - Cale Conley Conley & Griggs, Atlanta, GA

11:25 AM -- Motor Carrier Cargo Claims -- Karen Fultz Cozen O'Connor, Atlanta, GA

1:00 PM -- What to Expect of Law Enforcement Investigation of Truck Wrecks -- Sgt Tharon Dukes Georgia State Patrol, SCRT Unit, Athens, GA

1:40 PM -- 0 "ECM:Black Box" Technology -- Chris Ferrone Triodyne, Inc., Northbr ook, IL

2:35 PM -- Large Vehicle Accident Reconstruction -- Julian "Bucky" Beaver Southeast Collision Analysis, Inc., Brunswick, GA

3:15 PM -- Tractor Trailer Products Liability -- Mike Mesteyer, Leger & Mesteyer, New Orleans / Baton Rouge, LA

4:00 PM -- Punitive Damages in Motor Carrier Cases -- Harry Hall, Farmer, Price, Hornsby & Weatherford, L.L.P, Dothan, AL

4:40 PM -- Truck School - Inspection and Explanation of a Big Rig -- Don Asa D&A Consultants Scottsdale, AZ

5:25 PM Adjourn - continue truck inspection outside

TBA Group dinner

Nov. 11 (Friday)

9:00 AM -- Defense & Industry Perspective in Motor Carrier Litigation -- Clay Porter, Dennis, Corry, Porter & Smith, L.L.P. Atlanta, GA

9:40 AM -- Negligent Hiring & Retention -- Alfred N. Corriere Vansant & Corriere LLC, Albany, GA

10:35 AM -- Jury Selection in Trucking Cases -- Andrew M. Sheldon, JD, Ph.D. Sheldon Associates, Atlanta, GA

11:15 AM -- Trucks Stopped on the Roadside -- Jay Sadd, Slappey & Sadd, Atlanta, GA

12:45 PM -- NHTSA Regulations Related to Trucking Litigation -- Alan J. Kam, Highway Traffic Safety Assoc., LLC, Washington, DC

1:30 PM -- Hours of Service Regulations -- Whitney Morgan Motor Carrier Safety Consulting, Inc. Birmingham, AL

2:30 PM -- Use of Federal Motor Carrier Safety Regulations in Litigation -- Ken Shigley, Shigley Law Firm, LLC Atlanta, GA

3:00 PM Discovery in a Motor Carrier Liability Case --Steve Lowrey, Carter & Tate, PC, Savannah, GA

3:45 PM -- Truck-Train Collision Cases -- Michael Warshauer, Warshauer Thomas Thornton & Rogers PC ,Atlanta, GA

4:15 PM -- Driver Fatigue: Sleep Medicine Perspective -- James Geyer, MD, Neurology Consultants of Tuscaloosa PC, Tuscaloosa, AL

5:00 PM Adjourn

As often as I call attention to news stories of horrible crashes caused by the negligence of trucking companies and their drivers, I must point out that they are not always at fault.

At 2 AM today, July 5th, a tank truck driver was shot in the head with a bottle rocket by one of a gang of juveniles on Donald Hollowell Parkway (formerly Bankhead Highway) in southwest Atlanta. Others in the gang apparently threw bricks and chunks of concrete at the truck. The truck, carrying 7500 gallons of diesel fuel, flipped over and began leaking. The truck driver has serious face and head injuries. Police evacuated nearby apartments. See news story. While he lay injured in his overturned truck, these thugs broke the truck windows, pulled him out, beat and robbed him. He required seven hours of brain surgery, and apparently has a long road to recovery.

I am too familiar with the mean streets in the area where this happened due to work on a negligent security / carjacking & murder case a few years ago. Having examined criminal incident reports for a single convenience store in the area and interviewed police officers, I have warned my family members to never get off I-285 at any exit in that vicinity, even in daytime.

Given the usual performance of the Fulton County District Attorney's Office, the savage animals who attacked the trucker will probably be on the street long before their victim gets out of the hospital. I could go on a riff about men who sire children but don't raise them, leaving it to welfare moms to raise fatherless sons and daughters in crack-infested public housing projects, but that's a subject for another forum.

Trucking is essential to the national economy. Virtually every product sold is transported by truck. Truck drivers, overworked and underpaid, are the heroes of country music ballads. Popular culture holds them up as rough-hewn "knights of the road," and many are.

But trucking is also a major highway safety hazard. As a hub of transportation in the Southeast, Georgia ranks among the top five states in the nation in the number of fatalities due to crashes of large trucks, ranking just behind California, Texas and Florida. In 2003, the most recent year for which data are available, there were 208 fatalities in large truck crashes in Georgia, accounting for 9.1 percent of all traffic fatalities in our state. The Georgia experience is consistent with the nation. In 2003, one out of nine traffic fatalities in the United States involved large trucks. In that year, 457,000 large trucks were involved in traffic crashes in the United States; 4,669 were involved in fatal crashes. A total of 4,986 people died (12 percent of all the traffic fatalities) and an additional 122,000 were injured.

Sources:
Fatality Accident Reporting System (FARS), National Highway Transportation Safety Administration, http://www-fars.nhtsa.dot.gov (viewed May 1, 2005).
Traffic Safety Fact, 2003 Data, Large Trucks, National Highway Transportation Safety Administration, http://www-nrd.nhtsa.dot.gov/pdf/nrd-30/NCSA/TSF2003/809763.pdf (viewed May 1, 2005).

According to the National Highway Traffic Safety Administration, the number of highway deaths attributable to large trucks rose for the second year in a row in 2004, increasing by 3.7 percent and topping 5,000 for the first time since 2002. The increase to 5,169 deaths follows a 1 percent gain in 2003, when truck-related fatalities totaled 4,986. See eTrucker article.

There are certainly many factors, including errors of other drivers. However, inadequate enforcement of trucking safety rules is a key factor. As I review my news feeds on trucking accidents from around the country every day, I am continually struck by the number of horrific truck crashes between about 2 AM and dawn that involve truck drivers from small companies that generally have poorer internal enforcement of hours of service rules than do the larger companies. Time and time again, I see reports of a small company trucker straying out of his lane or crashing into something between midnight and dawn. While the articles seldom identify root causes, the circumstances point to driver fatigue and sleep deprivation.

The Federal Motor Carrier Safety Administration has determined that bus driver fatigue combined with poor brake maintenance by a trucking company tired driver to kill eight on a Texas church bus in 2003. As is commonly the case, the church that owned the bus was never informed that it was required to comply with Federal Motor Carrier Safety Regulations, including driver medical qualifications. The bus driver, who had chronic insomnia and sleep apnea, had never obtained the required medical certificate. The bus struck a tractor-trailer that had been pulled off on the side of the Interstate when poorly maintained brakes began smoking. See Newsday article.

Nearly 23,000 pounds of bell peppers en route from El Salvador to Canada spilled Wednesday when a tractor-trailer flipped, forcing authorities to close northbound lanes of Interstate 65 in northern Alabama for 15 hours. Alabama state troopers confiscated beer cans from the scene. See Decatur Daily article and WAFF News story.

49 CFR § 382.201 sets a higher standard regarding alcohol use by truack drivers that preempts state laws as follows: "No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. No employer having actual knowledge that a driver has an alcohol concentration of 0.04 or greater shall permit the driver to perform or continue to perform safety-sensitive functions.

49 CFR § 382.205 prohibits all on-duty use of alochol by commercial truck drivers. 49 CFR § 382.207 prohibits use of alcohol within four hours prior to performing any safety-sensitive function.

In San Luis Obispo, at 1:49 AM on 3/22/05, a local radio personality was killed when his vehicle struck the side of a tractor-trailer rig that got stuck over an hour earlier in the middle of a U-turn, blocking all lanes. Police were setting out flares, but had not yet set flares on the side from from the driver was approaching. He clearly did not see the trailer, left no skid marks, and died on impact when his SUV wedged under the trailer. The local news story reflects many common misunderstandings about tractor trailer wrecks, as well as the fact that dead men aren't there to tell their story and some folks are psychologically inclined to blame the victim.

Some of the issues raised in this crash are:

Research indicates that fatigue can play a major role in accidents, particularly for older drivers and for drivers on the road for 12 hours or more. What causes fatigue? According to Amerisafe workers compensation administrators, normal fatigue can be caused by three categories of stress factors:
- Physical environment such as temperature and vibration.
- Physiological factors such as poor or inadequate sleep, drugs and alcohol, or irregular eating habits.
- Psychological factors such as anger, fear, and frustration.
Professional drivers are exposed to many of these factors every day.

Below are ten tips to help alleviate potential fatigue brought on by the day-to-day business of truck driving:

A article in eTrucker.com reports conflict on the effectiveness of the new Hours of Service rules that went into effect last year. An Insurance Institute for Highway Safety study says truck drivers' sleep time had increased under the new rule, but they reported slightly more instances than when the old rule was in effect of driving drowsy or falling asleep at the wheel. When drivers were asked about dozing at the wheel at least once in the past month, the reported percentage increased from 13 percent in 2003 to 15 percent in 2004. "The new rule was supposed to improve safety, but our survey shows the opposite," says Anne McCartt, IIHS vice president for research.A quarter of drivers who were surveyed by IIHS said they drive more than the new daily limit of 11 hours. Eight of 10 drivers said they're taking advantage of the restart provision that allows them to drive 25 percent more in a week.

On the other hand, an American Truckers Association study study, based on government accident records and data from 70 carriers reported there were decreases between 2003 and 2004 in total injuries and injuries related to DOT recordable accidents, and that By increasing the daily off-duty requirement to 10 continuous hours, the new rules greatly reduced the possibility of chronic sleep deprivation and the development of a sleep debt during a driver's workweek.

See article, and full text below.

Each year truck crashes kill over 5,000 people and injure almost 150,000 more on our nation's roads and highways. Nearly one in four passenger vehicle deaths in multiple-vehicle collisions involve a large truck. In 1998, 98% of the fatalities in two-vehicle crashes involving passenger vehicles and large trucks were occupants of the passenger vehicles. When commercial drivers become fatigued from excessive daily and weekly work hours, they substantially increase the risk of crashes that result in death or serious injuries. According to the Federal Motor Carrier Safety Administration (FMCSA), more than 750 people die and 20,000 more are injured each year due directly to fatigued commercial vehicle drivers.

The new hours adopted in 2004 (and now invalidated by a court order which is stayed pending further action) are supposed to address that problem by adopting a 24-hour sleep-rest cycle. The old rule required that commercial drivers operate a truck or bus no more than 10 consecutive hours before resting for minimum of 8 hours. This permitted fatigued drivers to spend 16 hours driving in any 24 hours period. The rationale for the new rule is to set a rotating schedule of work/rest based on a 24 hour period instead of an 18 hour period which requires longer rest periods for the drivers. Whether it is adequate to address the problem of driver fatigue is another question. See article.

Federal Motor Carrier Safety Regulations requiring the trucking company to bear financial responsibility to members of the traveling public for operation of trucks under their authority preempt contradictory state laws of agency. A number of these cases involve injuries to "unauthorized" passengers, including truck stop waitresses.

State tort laws generally define the duty of drivers as ordinary care under an ordinary negligence standard. Occasionally, state laws set a different standard such as requiring proof of "willful or wanton" conduct in order to hold a defendant liable. However, when a motor carrier driver is driving in adverse weather, an "extreme caution" standard under 49 C.F.R. § 392.14 should preempt any lower standard under state law. Of course a trial court judge may or may not be willing to hold a state statute is preempted by a federal regulation.

An article in the Denver Post on 3/7/05 describes the inadequacy of truck driver training, pressure to falsify log books and drive far in excess of the legal hours of service, numbing fatigue, monotony, loneliness and fatigue that are all too common in the trucking industry.

This week I spent two days at the ABA Transportation Megaconference in New Orleans. Most of the attendees were defense lawyers, in-house counsel for trucking companies, claims professionals, and a few trucking industry executives. Only one token plaintiff's lawyer was on the program. If there were other plaintiffs' lawyers in the audience, they kept a low profile, as did I. It was a great program for a lawyer who represents the victims in motor carrier cases, as it gave me a good look at the other side's perspective and concerns.

Other than the technical stuff on "black box" technology, relationships between various insurance coverages, etc, here are some key points from the seminar: