Atlanta Injury Law Blog

Yesterday afternoon, I was surprised by a request for permission to publish a paper I presented at a trucking litigation continuing legal education program in San Francisco last July. It  will appear in Trial magazine in February 2010. The topic is "Hard Times in Trucking Litigation: What To Do When the Trucking Company Goes Under."  It's not a pleasant topic, but one we have to understand when representing folks who are catastrophically harmed in a crash with a truck from a financially unstable trucking company.

Meanwhile, I'm taking depositions of trucking company records custodians and safety managers around the country, trying to complete my book on Georgia Personal Injury Practice in order to get it to the publisher in the next couple of weeks, and preparing to move up another rung on the State Bar of Georgia leadership ladder.

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In order to use Federal Motor Carrier Safety Regulation violations to support liability or punitive damages, it is essential to establish that the violation was a proximate cause of the crash.

Some judges don’t easily grasp the obvious connection between extreme driver fatigue and driver error. For example, in one Georgia case the court failed to recognize driver fatigue and extreme
hours of service violations as proximate causes of a crash, limiting proximate cause to a stop
sign violation only.

Therefore, one must consider the most effective methods to explain the connection between violation of safety rules and the predictable results.

With adequate support to educate the judge and build the record for appeal, Georgia law on causation is favorable.

A legal or proximate cause of injury, damage, loss or harm is any act or omission that is a contributing factor in bringing about the injury, damage, loss or harm.

What amounts to proximate cause is undeniably a jury question and is always to be determined on the facts of each case upon mixed considerations of logic, common sense,justice, policy, and precedent.

It is axiomatic that questions regarding proximate cause are `undeniably a jury question' and may only be determined by the courts `in plain and undisputed cases.

 

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The framers of the U. S. Constitution recognized in 1787 that no individual state could adequate deal with regulation of interstate commerce, so that was made one of the core functions of the federal government along with national defense and a few others.

The Supremacy Clause of the Constitution provides that any state law that conflicts with a federal law is "without effect."

Federal law displaces state law where (1) Congress expressly preempts state law; (2) congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme; or (3) state law conflicts with federal law or interferes with the achievement of federal objectives.

The Supremacy Clause invalidates state laws that "interfere with or are contrary to" federal law. “Federal regulations have no less pre-emptive effect than federal statutes.”

In passing the Motor Carrier Act, Congress expressed its clear intent to establish a floor rather than a ceiling – minimum safety standards, 49 U.S.C. § 31136, and minimum financial responsibility requirements, 49 U.S.C. § 31139. The express purpose of the Federal Regulations is to protect the traveling public by imposing financial responsibility on motor carriers.

The Federal Motor Carrier Safety Regulations implement the act, providing in 59 C.F.R. § 392.2 that: "[e]very commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a regulation of the Federal Highway Administration imposes a higher standard of care than that law, ordinance or regulation, theFederal Highway Administration regulation must be complied with.

In addition, 49 C.F.R. 392.14 provides, “if a regulation of a Federal Highway Administration imposes a higher standard of care than that law, ordinance, or regulation, the Federal Highway Administration must be complied with.” Thus, the Regulations are intended to preempt state law in tort actions in which a member of the public is injured by the negligence of a motor carrier's employee while operating an interstate carrier vehicle.

 

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Safersys.org is a web site maintained by the Federal Motor Carrier Safety Administration. Through this site, one may obtain extensive basic information about motor carriers within moments after learning of the potential case. A “Carrier Snapshot” search includes the company’s legal name, address, phone number, USDOT number, numbers of power units and drivers, inspection and crash data, “Safestat” safety rating, and a link to a report on the first layer of insurance coverage and a blanket agent for service of process.

One may also request through this site, for a $20 fee, a more detailed Company Safety Profile. One may also send a Freedom of Information Act (FOIA) request to the Federal Motor Carrier Safety Administration for all documentation regarding the trucking company.

 

 

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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.

 

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Any lawyer who assumes that a large commercial truck crash is just a bigger car
wreck is dangerously naive. Investigation, discovery, technology and law involved in the
crashes of large commercial trucks are substantially different from other motor vehicle
accident cases.

Counsel must be familiar with a national body of trucking law based primarily on the Federal Motor Carrier Safety Regulations, technology in the trucking industry, trucking insurance coverage issues, multistate discovery practice, and other aspects of investigation and discovery particular to trucking litigation.

Lawyers who are not prepared to invest the time required to master the intricacies involved should consider the ethical duty to associate other counsel.

Since many interstate trucking cases are removed to federal courts, competent handling includes and familiarity federal court practice and local rules.

 

 

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As a trucking safety attorney in Atlanta, Georgia, I have found it is extremely important to network with other attorneys doing the same kind of work throughout the United States.

At the American Association for Justice convention in San Francisco last Saturday, I spoke at the Interstate Trucking Litigation Group seminar on Saturday and had dinner with the other members of seminar faculty that evening.

My bride and I had to leave for the airport before the time scheduled for the ITLG business meeting on Tuesday. But when we landed in Atlanta, I had a text message informing me that I had been elected to the national board of directors of the Interstate Trucking Litigation Group. This will involve being on the faculty of the four-day "Trucking Litigation College," writing a substantive article for the ITLG newsletter, and a lot more networking with other people around the country who are very good at what I do.

That sort of thing is good for my clients because it exposes me to the latest ideas on how to effectively handle these cases.

 

 

 

 

 

 

 

 

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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.

 

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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.

 

 

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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.

 

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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.

 

 

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Last Friday, I was one of the speakers at the American Association for Justice Interstate Trucking Litigation Group seminar in Chicago.  It reminded me of my father's advice to surround myself with people smarter than myself.

The collection of new ideas for effective investigation, discovery, preparation and trial in truck crash cases was well worth the trip.  Of course, some of those ideas are too good to put out on the Internet. 

For whatever it's worth, I came home with invitations to speak at trucking litigation seminars next year on both coasts.  I may not be the brightest bulb on the tree, but the best part of being the faculty on such programs is the opportunity to glean ideas from the other speakers.

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When cell phones and then text messaging came along, a lot of folks just figured they could drive as safely talking on a cell phone as talking to a passenger. I was one of them.   A couple of years ago we began to see reports of studies showing that driving while talking on a cell phone was as dangerous as driving drunk and that text messaging while driving is an even bigger distraction.

The recent train wreck in the LA area that killed 25 and injured 130 occurred when the train engineer missed a signal light while text messaging with teenage train enthusiasts.  This may be the consciousness raising event that leads to changes in laws and enforcement practices comparable to what we saw a quarter century ago about driving while intoxicated.

Current state laws on this emerging topic include:
    * Cell phones:  California, Connecticut, New Jersey, New York and Washington, the District of Columbia and the Virgin Islands have banned driving while talking on handheld cell phones.
    * Text Messaging:  Alaska, Louisiana, Minnesota, New Jersey and Washington have a text messaging ban for all drivers.
    * New Drivers: 17 states and the District of Columbia restrict all cell phone use by novice drivers.
    * School Bus Drivers: In 16 states and DC, school bus drivers are barred from all cell phone use when passengers are present, except for in emergencies.
    * Other rules:  Some cities, such as Phoenix and Detroit, have cell phone laws, but nine  states have preemption laws that prohibit local jurisdictions from enacting restrictions. Utah and New Hampshire treat cell phone use as a larger distracted driving issue.

My guess is that legislators around the country will soon pass more laws requiring use of hands free devices when talking on cell phones while driving and banning text messaging while driving. 

In auto and truck accident litigation, we have become  diligent  about discovery of cell phone and text messaging records. With increased sophistication about electronic discovery, this will be an an even more important factor in accident litigation. 

There are at least three potential uses of cell and text evidence:

1. The defendant's cell phone and text usage while driving may be considered "conscious indifference to consequences" sufficient to support an award of punitive damages, similar to drunk driving.

2. The plaintiff's cell phone usage at the time of the incident may be used as comparative negligence evidence to reduce or eliminate a damages award.

3.  If the evidence reveals that a defendant driver was communicating with an employer, or to a customer on the employer's business, then the employer and its insurance policy may be drawn into the case.






 

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I'm just a truck wreck lawyer in Georgia, and it's been about 35 years since my last economics class.  Therefore, I was pleasantly surprised today when I learned that my blog post about  Implications of the economic crisis for trucking and insurance  was cited as one of  the best legal blog posts expressing  insight on the ongoing economic calamity. My econ profs at Furman way back when would be surprised.

 

 

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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.

 

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Too many attorneys  think that a tractor trailer collision is just a bigger car wreck.  They know not that they know not , and therefore do not spot the issues or take the steps required  to preserve and develop evidence or reach all the sources of insurance coverage. We are sometimes called upon to clean up  what others mess up.

So how can one identify an attorney qualified to handle  a catastrophic  trucking accident case? My good buddy  <a href="http://www.truckinjurylawyerblog.com/promo/about/"> Morgan Adams, Lt. Col., USMC (Ret.) </a> in Chattanooga recently wrote on this topic in his <a href="http://www.truckinjurylawyerblog.com/2008/03/articles/legal-issues/finding-the-best-lawyer-to-handle-a-truck-bus-or-commercial-vehicle-case/">blog</a>.

1.    A trucking  trial lawyer should have peer review ratings and specialty organization memberships that indicate experience, competence, and a  strong focus on trucking trial practice. Generally, the attorney should be member of his or her state trial lawyers organization, the American Association for Justice (AAJ), AAJ’s Interstate Trucking Litigation Group, and the Association of Interstate Trucking Lawyers of America. It is good to know if a lawyer  has chaired and spoken at several continuing legal education seminars in the area of trucking litigation, is  are Certified Civil Trial Advocates of the National Board of Trial Advocacy, and has participated significantly in local or state bar associations.

2.    A trucking accident lawyer should be able to fund complex, expensive litigation. The cost of accident reconstruction experts,  vocational experts, economists, video depositions of  defense witnesses and treating physicians, high quality  medical illustrations, and a lot of air travel around the country for depositions can be  pretty  expensive.  While the lawyer’s office need not be a veritable Taj Mahalr, there should be some indications of f success and competence. The key is whether the lawyer has access to funds, often through a large line of credit litigation specifically for  funding client litigation expenses , to be able to properly prepare a case for trial.

3.    Any lawyer you entrust with handling a catastrophic injury case should have the experience of litigating and trying truck accident cases. Continue Reading Questions & comments 2

I've been in St. Louis for the past couple of days serving on the faculty of the first national continuing legal education program sponsored by the new Association of Interstate Trucking Lawyers of America.  As usual, I've learned more than I've taught.  After all, if I can give everyone one new idea, but 20 other speakers give me one new idea each, it's well worth the trip. This new organization of trial lawyers from coast to coast specializing in trucking litigation is an immeasurably valuable resource.


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In my trucking litigation law practice based in Atlanta, I see plenty of instances where drug use -- including prescription medications -- appears to be a contributing factor in trucking accidents. Now the Government Accountability Office (GAO) has issued a report on truckers' drug tests that helps explain how and why.

Oregon Congressman Peter DeFazio is quoted in today's Atlanta Journal Constitution, warning people driving on the Memorial Day holiday weekend "check your rearview mirror early and often because the driver of that aproaching 18-wheeler may have failed one or more drug tests."

The GAO report describing a flawed oversight system that allows truckers to fail a drug test and yet move on to driving for another company. Fewer than half of the estimated 85,000 truck drivers who test positive in random drug tests each year are believed to complete the required treatment and follow-up testing to return to their jobs, according to a news report by Gregg Jones of the Dallas Morning News.

The GAO report found that some trucking companies don't bother to conduct the required pre-employment and random drug tests and have limited incentives to do so. According to the report, only about 2 percent of all trucking companies undergo checks each year by state agencies and the Federal Motor Carrier Safety Administration, which regulates interstate traffic.

In addition, truckers who choose to do so can beat the testing system by using false IDs and chemicals to alter their urine for drug tests. If caught, they easily move on to other trucking companies, which the GAO described as "job-hopping."  

If they fail both at beating the test and job-hopping, they can  "state-hop," since the states don't talk to each other. Among the report's recommendations is the creation of a national database of truckers who fail drug tests.

The report concluded that drug use could be significantly higher among truck drivers than what the random test data indicates because not all companies actually test, urinalysis can be unreliable and results can be altered. For example, GAO investigators who posed as truckers appearing for drug tests weren't required to empty their pant pockets at 10 of 24 sites. The requirement is designed to prevent a driver from using drug-concealing agents or substituting clean urine samples.

In 2006, 4,995 people were killed nationwide and 106,000 injured in crashes involving large trucks, the report noted. Statewide, about 500 people are killed each year in crashes involving large trucks. Although mechanical problems, speeding and driver fatigue are the most frequent factors in fatal accidents involving big rigs, studies have also found that drugs or alcohol substantially increase the risk of accidents. The trucking industry blames passenger cars for causing the majority of accidents.

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As a personal injury attorney in Atlanta, I was initially one of those who feared the worst when the Georgia legislature passed it omnibus tort reform legislation, Senate Bill 3, in 2005.   It was as if the political power structure had done everything it possibly could to kill victims of negligence -- and the lawyers who represent them.  Some thought it was the death knell for personal injury tort litgation in our state.

However, as soon as the bill passed, a few of us began to gather for a series of weekly breakfast brainstroming sessions focused on how to survive and prosper in the new environment. Those sessions helped transform the law practices of several of the participants. Other lawyers around the state began to go through the same sort of process of evaluation and change.

Three years later, we have seen an increase in the frequency and geographical distribution of impressive jury verdicts in injury and death cases. Even counties that had been viewed as black holes for plaintiffs are producing seven and eight figure jury verdicts.

The most recent was a $5 million verdict this week in a hospital malpractice wrongful death case in Gwinnett County. That case involved the death of a new mother due to a fall, as the hospital personnel had not followed fall precautions which were indicated.

Until very recently many of us had simply declined to accept cases in Gwinnett because the juries there were so notoriously hostile to personal injury and wrongful death plaintiffs. I haven't heard how the $350,000 cap on noneconomic damages in medical malpractice cases may affect that, if at all. It would not be surprising for an economist to reach a $5 million economic valuation on the life of a promising young adult.

A couple of weeks ago in Fulton County, which used to be a big-verdict venue but in recent years has become much more conservative, there was a $54 million verdict, which was reduced to a mere $10.25 million due to the statutory cap on punitive damages which was enacted in 1987.

Last year we had a $2.3 million verdict in a trucking case in conservative, rural Gordon County..  There have even been million dollar verdicts in some of the small, rural, deeply conservative counties.

The "loser pays" provision of S.B. 3 -- an "offer of setlement" feature in OCGA 9-11-68 which can require a party to pay the other side's attorney fees and litigation expenses if it fails to do 25% better at trial than in trial than in a rejected settlement offer -- was designed to intimidate and oppress plaintiffs.  However, it has primarily hurt the defense side. In one medical malpratice case, the plaintiff got some $4 million in fees and expenses added to the compensatory damage award under this provision.

There are quite a few other examples that I have not taken the time to compileon a Saturday morning of a holiday weekend.

Why have we seen an increase in substantial verdicts in Georgia after the tort reformers got everything they asked for in the legislature?  Certainly a few minor details of S.B. 3 have been held unconstitutional, but none of those points are substantially involved in these cases.

Another hypothesis is that tort reform has forced plaintiffs' lawyers to work harder and smarter in case preparation. With so many obstacles thrown in our path, we have to work hard in investigation, in selection and preparation of experts, and in all aspects of trial strategy and preparation.

When that enhanced preparation encounters the most democratic of all institutions in American society -- a jury of ordinary people from all walks of life with no political fears or aspirations related to their service on one case -- serious cases can get serious verdicts.

Three years ago, one might have predicted that by now we would be out of business and our clients would be out of luck.  Today, however, it's a great time to be a lawyer representing good people with legitimate claims of serious injury or wrongful death of a loved one.


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As a trial lawyer representing injury victims in trucking accident cases in Georgia, I'm always on the lookout for medications affecting driver alertness.  Another suspect medication has been added to the list.

The Federal Motor Carrier Safety Administration issued a warning Thursday on the anti-smoking drug Chantix, advising medical examiners "to not qualify anyone currently using this medication for commercial motor vehicle licenses." Chantix, made by Pfizer, Inc., was attacked in a study by a non-profit group on Wednesday for possible links to seizures, dizziness, heart irregularity, diabetes and more than 100 accidents. The U.S. Department of Transportation warned all of its agencies almost immediately after seeing the report which reported that Chantix was linked to 988 serious events in the last quarter of 2007.

For more information, see this article by Alicia Mundy and Avery Johnson of the Wall Street Journal.


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This afternoon I spoke on "Successful  Advocacy in a Trucking Case" in an American Association for Justice Litigating Trucking Cases Teleseminar.

Morgan Adams of Chattanooga spoke on Electronic On Board Recorders, while Robert Collins of Houston spoke on Daubert Issues & Biomechanists. 

As usual, I got more from the seminars that I contributed.


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Last Friday,  an Atlanta jury returned a verdict of $54.4 million in a truck wreck case involving the death of a a Jamaican immigrant. It was a great verdict resulting from great trial advocacy.

Of the $54.4 million in the verdict, $44.4 million was punitive damages. In my post about the verdict, I wondered how the plaintiff could avoid reduction of the punitive award to $250,000 under the tort reform law that has been on the books since 1987.

Well, on Monday, the judge did judge that, cutting the punitive award from $44.4 million to $250,000, and the total verdict from $54.4 million to $10,250,000.

Meanwhile, we are waiting on a Court of Appeals ruling in a case case year where we got a $2.3 million judgment in a trucking case involving a broken leg. No issue of punitive damages went to the jury, but we did include a claim for attorney fees and expenses of litigation based on "bad faith" conduct in violation of mandatory safety rules, specificially the Federal Motor Carrier Safety Regulations.  The jury was able to use that to add one-third of compensatory damages for attorney fees, plus all of our expenses of litigation. The Court of Appeals has until the end of July to rule in the case. 

Meanwhile, in another case a trial judge in Macon reviewing the same legal authorities, said he thought it would be reversible error not to include the "bad faith" attorneys fee claim in jury instructions.

If the plaintiff in the trial last week had emphasized the claim for bad faith attorney fees based on violation of Federal Motor Carrier Safety Regulations, a claim  which is not subject to a statutory cap, in addition to the claim for  punitive damages which is capped, the net result would be a judgment for about $13,583,333 plus expenses, rather than $10,250,000.  In effect, $3,333,333 may have been left on the table.  In such a case, the claim for attorney fees and expenses under Georgia law is potentially worth a great deal more than the "sexier" claim for punitive damages.

This is one of the points I am prepared to cover in a seminar presentation in St. Louis later this month for the Association of Interstate Trucking Lawyers of America, an organization for which I am on the National Advisory Board.




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This morning I got a call from a man in ICU at one of our local hospitals. He said he has hit by a tractor trailer yesterday, and that he had two fractured femurs, a ruptured spleen, ruptured discs, crushed vertebra, etc., and asked if I could meet him at the hospital.  I agreed to see him this afternoon at the hospital, which is near my home.

When I arrived a little early at ICU, I found another lawyer at the nurses' station. Apparently he ran a little late and I ran a little early, so me bumped into each other. He had noticed that when the guy shifted his hospital gown, there were no bruises to correlate with the types of injuries he was describing. The nurse told us that this man had no traumatic injuries, but does have colon cancer.

The lawyer who was at the nurse's station said he had heard of someone with a similar story trying to get a $5,000 advance from another lawyer, who refused the request.  Apparently the guy was trying to shake down lawyers for "advances" on his great case.

Later I posted a warning on a couple of lawyer listservs and received responses from several other attorneys who had been hit with the same scam.  One admitted he had signed up the case before he figured out it was a scam.  None acknowledged having made any advances, which would be highly improper.

One of my more paranoid friends has suggested that this could be a trap set by the various “anti-lawyer” groups attempting to film the meetings clandestinely and then use the video for a TV documentary or commercials to argue for tort reform. I am more inclined to believe he was just a scam artist playing his own little independent game.

I must say that 99.9% of all potential clients with whom I have met in person over the past 30 years have been pretty sincere folks who honestly believed they had a case. While I decline most proposed cases because I see less legal or economic merit than they perceive, most are pretty decent folks. Often when I don't accept a case, I try to make an appropriate referral or give some free advice.

However, when a lawyer finds himself or herself in an interview with a potential client and "smells a rat," one should:

1. Politely but firmly decline any request for an advance of funds against a future recovery. See Rule of Professional Conduct 1.8 (e), which provides: "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; or
   (2) a lawyer representing a client unable to pay court costs and expenses of litigation may pay those costs and expenses on behalf of the client."
2. Be prepared to give a polite, respectful but firm lecture on your ethical duties as an attorney. See, e.g., Rules of Professional Conduct 1.16 (Declining or Terminating Representation) , Rule 3.1 (Meritorious Claims and Contentions), and Rule 4.1 (Truthfulness in Statements to Others).   In the unlikely event that you're on "Sixty Minutes," make it a speech that would make both your mother and your legal ethics professor proud.
   

Remember the example of South Dakota Republican Senator Larry Presler who, when being secretly taped in the Abscam sting investigation, responded, "Wait a minute, what you are suggesting may be illegal," and reported the incident to the FBI. 




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As a Georgia trial attorney handling trucking accident cases, I see too many instances of truck driver fatigue and drug usage leading to tragedy.  The pattern is exemplified in a Missouri case.  It has resulted in an $18 million settlement for the deaths of four family members (ages 55, 57, 81 and 94) on the way to a 50th wedding anniversary celebration. 

The truck driver had less than the required amount of rest the night before, according to subpoenaed cell phone records, and  was on eight prescribed medications that warned of possible drowsiness.   Witnesses said he was falling asleep at the wheel before he sped past warning signs and a flagman, slammed into a long line of cars, crossed the median and jackknifed on the opposite side of the highway.

According to a report by Joe Meyer of the Columbia Tribune, a family member said, "The money wasn’t something that we were after.  It was just a way to give a message in this part of town that the truckers should not be out there like that."

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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. 

 

 

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As an attorney in Atlanta, Georgia, with a practice heavily concentrated on trial of large truck and bus crash cases, I represent injured truck drivers (and their widows) almost as much as occupants of  other vehicles.  Posts about truckers violations of Federal Motor Carrier Safety Regulations sometimes give folks the mistaken impression that I am condemning truckers as a group.  However, I recognize that most truck drivers are hard working professionals who are conscientious about quality and safety.  I also recognize that they are often placed in untenable situations by the demands of shippers and carriers.

The trucking collision data consistently show that about 80% of fatal collisions involving large commercial vehicles are caused by the actions of other drivers on the road, such as those tho erratically dart in front of a tractor trailer.  When that happens, and a truck driver is seriously injured or killed, it is important to review all insurance information, including Uninsured / Underinsured Motorist coverage in the trucking company's insurance policy. If that insurance policy includes UM coverage equal to the liability limits, that may be enough to provide substantial help to the trucker and his or her family.

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I've spent the last few  days in New Orleans at the American Association for Justice Litigating Truck Collision Cases seminar.  I spoke on Federal Motor Vehicle Safety Standards (FMVSS) in relation to large truck products liability cases, debunking misconceptions about those minimal and largely outmoded standards.

Since I know opposing counsel read my blog, I won't go into a lot of detail about the new ideas I picked up in New Orleans.  Suffice it to say that an excellent faculty of lawyers, technical experts and trial consultants from across the country made the trip worthwhile. Information exchanged informally over dinner with other lawyers trying these cases from coast to coast was nearly as valuable as the information shared by speakers. Continue Reading Questions & comments 0

I spent most of this week trying a truck wreck case in Macon, GA, in the State Court of Bibb County.  While the jury was deliberating, the defense made an offer my client felt he could not afford to refuse ($850,000 for aggravation of preexisting degenerative condition resulting in cervical fusion),so the process stopped short of a jury verdict. The judge and jury were fair and attentive, we got  a few good breaks, and learned a few things that will be useful in future  trucking cases. Questions & comments 1

A Tennessee jury awarded $6.65 million in damages recently to the mother of a 17-year-old girl who died in a tractor-trailer accident. Lindsey Garretson was killed August 8, 2000 when a truck driven by Stuart Foy slammed into the back of her car on Interstate 40. Foy failed to slow the tractor-trailer, owned by KLLM Transport Services Inc., when vehicles began braking to avoid a mattress that had fallen off another truck.  Plaintiff attorneys argued that Foy should never have been employed by KLLM due to his record of reckless driving and several accidents.

We have handled similar cases in Georgia, collecting policy limits plus some, and this year we got a $2.3 million verdict against a trucking company for a badly broken leg. Unfortunately, the trucking companies that are the sloppiest about driving hiring, training and supervision are also the least diligent about maintaining more than the minimum required insurance coverage.

 

 

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All too often lawyers in general practice who occasionally handle a car wreck case -- and for that matter lawyers who handle car wreck cases all the time -- think they can handle a motor carrier crash because "it's just a big car wreck."  Until they have spent a year or two screwing up the case, they may fail to appreciate the complexities of Federal Motor Carrier Safety Regulations, the customs and technology in trucking, the methods for uncovering the rampant spoliation, destruction and falsification of evidence that we see in nearly every trucking case, the effect of rapid response teams swooping in on crash teams to control the evidence before the victim gets to the hospital, or the intransigent litigation conduct of trucking companies and their insurers.  Only then do many lawyers begin to appreciate the advantages of calling a trucking litigation specialist in the beginning.



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Insurance defense lawyers have a tough job when the value of a plaintiff's case exceeds the amount of liability insurance coverage.

The tripartite relationship between insurer, insured and defense counsel is unique in the legal profession, variously described as “deeply and unavoidably vexing” and presenting an ethical dilemma that would “tax Socrates.”  See Charles Silver, Does Insurance Defense Counsel Represent the Company or the Insured?, 72 Tex. L. Rev. 1583, 1587 (1994);  Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255, 273 (Miss. 1988).  The insurance defense lawyer serves two masters – the insurer that hires him and controls the defense, and upon whose continuing good will he may depend for future business, and the insured client who did not choose him, will not pay him, and may never be in the position to refer him future business.  This presents inevitable ethical conflicts.  Nancy J. Moore, The Ethical Duties of Insurance Defense Lawyers: Are Special Solutions Required?, 4 Conn. Ins. L. J. 259 (1997-1998).

Generally, in the “tripartite relationship” of insurer, insured and defense attorney, insurance defense counsel may not subordinate the interest of either insurer or insured to the other.  If their interests come into conflict, defense counsel cannot ethically continue to represent either without making disclosure to both and refraining from taking sides with either against the other.  If there is a coverage dispute between the insurer and insured, defense counsel must not take either side.  See generally, Restatement (Third) of the Law Governing Lawyers § 215 (2000); Susan Randall, Managed Litigation and the Professional Obligations of Insurance Defense Lawyers, 51 Syracuse L. Rev. 1 (2001); Thomas D. Morgan, Whose Lawyer Are You Anyway?, 23 Wm. Mitchell L.Rev. 11 (1997); Douglas R. Richmond, Lost in the Eternal Triangle of Insurance Defense Ethics, 9 Geo. J. Legal Ethics 475 (1996); Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 Duke L. J. 255 (1995); J. Kevin Owens, Wrestling with the Tar Baby: Ethical Obligations of Mississippi Insurance Defense Lawyers, 17 Miss. C. L. Rev. 359 (1997); Leo J. Jordan & Hilde E. Kahn, Ethical Issues Relating to Staff Counsel Representation of Insureds, 30 Tort & Ins. L. J. 25 (1994); Robert E. O'Malley, Ethics Principles for the Insurer, the Insured, and Defense Counsel: The Eternal Triangle Reformed, 66 Tul. L. Rev. 511 (1991).

Rule of Professional Conduct 1.2(4) provides that “[w]hen a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters covered by the insurance policy.”  However, the terms of an insurance policy may not limit the obligations owed by insurance company lawyers to insured clients, including the duty to inform the insured defendant of settlement offers and of the opportunity to settle within policy limits. See, e.g., Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255 (Miss. 1988).

The insurance company owes the insured a duty to use ordinary care and good faith in handling a claim against its insured.  See Smoot v. State Farm Mutual Automobile Insurance Co., 299 F.2d 525, 533 (5th Cir. 1962).  As Clarendon is well aware, it has a duty to give "at least equal consideration to the interests of the insured" and the "same faithful consideration it gives its own interest."  Southern General Insurance Company v. Holt, 200 Ga. App. 759, 409 S.E.2d 852 (1991);  Jones v. Southern Home Insurance Company, 135 Ga. App. 385, 217 S.E.2d 620 (1975); Great American Insurance Company v. Exum, 123, Ga. App. 515, 181 S.E.2d 704 (1971).  Even a negligent failure to compromise a claim may give rise to tort liability to the insured.  Delancy v. St. Paul Fire & Marine Ins. Co., 947 F.2d 1536 (11th Cir. 1991); Home Insurance Co. v. North River Insurance Co., 192 Ga. App. 551, 385 S.E.2d 736 (1989).  Failure to comply with a reasonable time limit for such settlement may also give rise to liability of a liability insurer for the full amount of a jury verdict in the underlying case.  Southern General Insurance Company v. Holt, 200 Ga. App. 759, 409 S.E.2d 852 (1991).  Here the only time limit was the return of the jury’s verdict.  See also, Kingsley v. State Farm Mut. Auto. Ins. Co., 353 F.Supp.2d 1242 (N.D.Ga. 2005); Ogle v. Nationwide Ins. Co. of America, 2006 WL 418148, *3+ (N.D.Ga. Feb 21, 2006) (NO. 1:04 CV 2802 GET).

Where the insurance company has refused to take advantage of opportunities to settle a claim within policy limits, the plaintiff wins a judgment for some multiple of the policy limits, and the insured is on the hook for the excess, the insurance defense lawyer should exercise great caution.  If the plaintiff's attorney asks for contact information to communicate directly with the insured defendant's corporate or coverage counsel regarding the insured's interests vis-a-vis the insurance company, the insurance defense lawyer should either facilitate that communication or report a potential malpractice claim to his own legal malpractice insurance company. Continue Reading Questions & comments 0

It's always a good day when you pick up a fi fa in the amount of $2,245,940.17, and at the same time get an order for the defendant to submit an appeal bond to cover that plus a year's post-judgment interest.  Continue Reading Questions & comments 2

Wisconsin jurors heard testimony this week about a trucker who stayed out all night with friends the night before a fatal crash, and had his truck on cruise control in tenth gear when he fell asleep and overturned in 2005.  A bus carrying a high school marching band collided with the overturned big rig on I-94 near Eau Claire.  Five of the kids died in the crash. The truck driver claimed that he was just trying to pull over to go to the bathroom when he overturned.

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We were pleased to get word today that a federal court in Georgia denied a motion for partial summary judgment to exclude a claim for punitive damages against a trucking company that had chosen to turn a blind eye to drivers' hours of service violations.  For discussion of legal issues involved, see previous posts on punitive damages and driver fatigue.

(NOTE: This comment specifically excludes identification of any attorney, corporation, witness, case, court or locality, and incorporates reference to our disclaimer and terms of service.  It will be removed from this site before trial of the case.) Continue Reading Questions & comments 0

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

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A leading case on punitive damages regarding systemic failure to manage drivers’ hours in the interstate commercial driver fatigue context is Came v. Micou, 2005 WL 1500978 (M.D.Pa.,2005), in which the plaintiff overcame summary judgment on a claim for punitive damages.  Among the several factors considered in determining that the defendants’ conduct  constituted “reckless indifference to the rights of others” were failure to monitor the truck driver’s conduct,  failure to conduct any investigation into the driver’s hours of service,  re-dispatching the truck driver even though he had exceeded his hour of service limitations; and failure to have effective procedures in place to verify drivers' hours of service when the company knew that hours of service regulations were in place to protect the safety of the monitoring public. 

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    Punitive damages are designed to "penalize, punish or deter" conduct that shows "willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences."  Such conduct must be proven by "clear and convincing evidence."  Therefore, we pursue a punitive damages claim at trial only if the evidence obtained during discovery and investigation credibly supports that claim.

    O.C.G.A. § 51-12-5.1 provides for punitive damages as follows:

(a) As used in this Code section, the term "punitive damages" is synonymous with the terms "vindictive damages," "exemplary damages," and other descriptions of additional damages awarded because of aggravating circumstances in order to penalize, punish, or deter a defendant.
 (b) Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

     Under Georgia law, gross negligence alone is not enough to meet the standard of O.C.G.A. § 51-12-5.1 .  See, e.g., Carter v. Spells, 229 Ga.App. 441, 494 S.E.2d 279 (1997) (mere violation of a rule of the road); Coker v. Culter, 208 Ga.App. 651, 431 S.E.2d 443 (1993)(a little speed, a little beer (0.03 gr/%), a little distraction); Bradford v. Xerox Corp., 216 Ga.App. 83, 453 S.E.2d 98 (1994)(speeding on wet road, loss of control, no evidence of alcohol or bad driving history); Cullen v. Novak, 201 Ga.App. 459, 460(2), 411 S.E.2d 331 (1991)(running red light only).

    Georgia case law includes several examples of a “pattern or practice” sufficient to support punitive damages in the trucking context.  Those examples are not, however, comprehensive or exclusive. See, e.g.,Smith v. Tommy Roberts Trucking Co., 209 Ga.App. 826, 828(2), 435 S.E.2d 54 (1993)(driver in hurry to deliver load, paid for fast driving, quick deliveries,  employer knew of two moving violations, and failed to check bad driving record  as required by the Federal Motor Carrier Safety Regulations);  J.B. Hunt Transport v. Bentley, 207 Ga. App. 250, 255(2), 427 S.E.2d 499 (1992)( “forced dispatch” system so that drivers could not refuse a load without losing job;  driver required to take truck out again without requested brake repair).

    There are also cases with less dramatically onerous facts in which there are still genuine issues of material fact for a jury to determine.  For example, in Fowler v. Smith, 237 Ga.App. 841, 516 S.E.2d 845 (1999), evidence was sufficient to overcome a motion for partial summary judgment on a punitive damages claim where there was some evidence that the trucker may have violated 49 CFR § 392.22(b) by being stopped in the interstate's center lane for approximately 35 minutes before the collision without placing triangular warning devices on the highway, and that he did not turn on his tractor-trailer lights after it became dark and his main truck lights were not on at the time of the collision.

    There are no controlling Georgia cases regarding punitive damages truck driver fatigue, so it is useful to consider the Georgia statute in case law in the light of other interstate trucking punitive damages in jurisdictions with similar standards for punitive damages. 
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Fortunately no one was injured when the driver of an 18-wheeler mail truck fell asleep on I-75 near Macon at 3:30 AM, over-corrected when he woke with a start, and went over an embankment.  However, two of three northbound lanes were closed several hours and the GA DOT will have to replace a guard rail.  All too often we see such incidents result in serious injuries including fatalities. 

 49 C.F.R § 392.3 provides:

No driver shall operate a motor vehicle, and a commercial 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.

49 C.F.R. § 390.13 requires that " No person shall aid, abet, encourage, or require a motor carrier or  its employees to violate the rules of this chapter."

49 C.F.R. § 395.3 spells out the hours of services rules, which I won't repeat here.

However, we also see retired FMCSA officials, who have gone through the "revolving door" to serve as shills for the businesses they used to regulate,  coming in to testify as expert witnesses for the defense, claiming that the fatigue and hours of service regulations don't mean what they say and that the official Regulatory Guidance published by the FMCSA has no significance.  I spent an afternoon recently deposing one of those guys in another state.  It's amazing what former regulators will say in order to profit from their former government positions.  But even a greased pig can be caught in time.


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Richard Miller at Maryland Injury Lawyer Blog this week posted a commentary on the adverse inference from spoliation (loss or destruction) of truck driver logs, referring to case law including a Georgia case.  It's a topic of continuing interest in trucking litigation. Continue Reading Questions & comments 1

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.

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The MCS-90 is an endorsement on a trucking company's liability insurance policy, required by the Federal Motor Carrier Safety Regulations, which serves the function of a surety for safety of the public. Even if the the trucking company is not entitled to liability coverage due to some exception or exclusion in the insurance policy, an injured member of the public may recover under the MCS-90 endorsement and the insurance company may then seek reimbursement from the trucking company.



The purpose of the Federal Motor Carrier Act("FMCA"), and the regulations issued under the Act, especially the MCS-90, was to stem the unregulated use of vehicles in interstate commerce, which threatened public safety. Integral Insurance Company v. Lawrence Fulbright Trucking, 930 F.2d 258 (2d Cir.1991).  One of the "significant aims" of federal rules regulating motor carriers is to eliminate "attendant difficulties" of fixing financial responsibility for damage and injuries to members of the public. Transamerican Freight Lines v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 37, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975).  Accordingly, the MCS-90 should be construed and applied to protect members of the public injured by interstate motor carriers from uncompensated losses by mandating coverage where there would otherwise be no coverage).  American Alternative Ins. Co. v. Sentry Select Ins. Co., 176 F.Supp.2d 550 (E.D.Va., 2001).

"A motor carrier of property has a duty under federal law to guaranty its financial responsibility for injuries to the public.  Purchasing coverage under an MCS-90 endorsement is one way for a carrier to fulfill this duty." Harco National Insurance Company v. Bobac Trucking et al, 1995 WL 482330 at * 4 (N.D.Ca. 1995); Barbarula ex rel. Estate of He v. Canal Ins. Co., 353 F.Supp.2d 246 (D.Conn., 2004). The MCS-90 is not insurance coverage per se, but operates as a suretyship for the benefit of the public resting on top of the motor carrier’s liability policy.  See, e.g., Canal Ins. Co. v. Carolina Cas. Ins. Co., 59 F.3d 281, 283 (1st Cir. 1995); John Deere Ins. Co. v. Truckin’ U.S.A., 122 F.3d 270, 274 (5th Cir. 1997).  It does not create in the insurer a duty to defend, but only a duty to member of the public pay any judgment against the motor carrier resulting from negligence in operation, maintenance or use of motor vehicles even if not specifically listed on the policy.  See, e.g., Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 614 (5th Cir. 1989); Industrial indem. Co. v. Truax Trucklines, Inc., 45 F.3d 986, 991 (5th Cir. 1995); National Am. Ins. Co. v. Century State Carriers, Inc., 785 F.Supp. 793, 795 (N.D. Ind. 1992).

The MCS-90 is applicable to interstate motor carriers.  For intrastate carriers within Georgia a different law applies.  I will cover that in a separate posting.
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Occasionally, a motor carrier or freight broker may be held liable for negligent hiring of an incompetent independent contractor if it should have known, or might by the exercise of reasonable care could have found out, that the contractor was not competent. 



A competent contractor is defined as "a contractor who possesses the knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others.”  A company whose core purpose is the interstate transportation of property on the highways has a duty to use reasonable care in the hiring of an independent trucker, including a duty to make an inquiry into that trucker's qualifications, knowledge, skill, experience, available equipment, financial responsibility, and compliance with laws governing motor carriers. Peachtree-Cain Co. v. McBee, 254 Ga. 91, 327 S.E.2d 188 (1985); Puckrein v. ATI Transport, Inc., 186 N.J. 563, 897 A.2d 1034 (N.J., 2006); Schramm v. Foster, 341 F.Supp.2d 536, Fed. Carr. Cas. P 84,364 (D. Md. 2004); Restatement (Second) of Torts § 411 (1965); Reuben I. Friedman, Annotation, When is Employer Chargeable with Negligence in Hiring Careless, Reckless, or Incompetent Independent Contractor, 78 A.L.R. 3d 910, 916 (1977); Lee & Lyndahl, Modern Tort Law § 8.03 (1991) W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71 (5th ed.1984).
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The "statutory employee" rules regarding "independent contractor" truck drivers generally are sufficient to hold trucking companies financially responsible for their drivers' negligence. However, when there are gaps to be filled an old Restatement of Torts rule that was used by courts prior to development of the "statutory employee" rule, may be just the right tool to hold the company to a nondelegable duty to the public.



“An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.” Restatement (Second) of Torts § 428;  Black v. Montgomery Trucking Co., Inc., 129 Ga.App. 36, 198 S.E.2d 378 (followed Restatement rule), reversed on other grounds without mention of either Restatement rule or federal statutes or regulations, 231 Ga. 211, 200 S.E.2d 882 (1973)(compare Dove v. National Freight, Inc., 138 Ga.App. 114, 225 S.E.2d 477 (1976)); Venuto v. Robinson, 118 F.2d 679 (3rd Cir., 1941)( Restatement (Second) of Torts § 428 applied to hold interstate motor carrier liable for negligence of independent contractor driver); Hodges v. Johnson, 52 F.Supp. 488 (D.C.VA. 1943)(same); War Emergency Co-op. Ass'n v. Widenhouse, 169 F.2d 403 (4th Cir. 1948)(same); Lehman v. Robertson Truck-A-Way, 122 Cal.App.2d 82, 264 P.2d 653 (Cal.App. 3 Dist. 1953)(same); Louis v. Youngren, 12 Ill.App.2d 198, 138 N.E.2d 696 (Ill.App. 1 Dist., 1956).  See also, Eli v. Murphy, 39 Cal.2d 598, 248 P.2d 756 (Cal, 1952)(nondelegable duty of motor carrier to public).
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During the first half of the twentieth-century, interstate motor carriers attempted to immunize themselves from liability for negligent drivers by hiring inadequately insured, risky trucks and their drivers – like C&C and the Carnleys in this case.  The companies would classify the drivers who operated the trucks as "independent contractors," and disclaim any association when those uninsured trucks and drivers caused injury to the general public.  See, e.g., White v. Excalibur Insurance Company, 599 F.2d 50, 52 (5th Cir.1979); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 37 (Tex.App.-Fort Worth 2002).



To address this problem, Congress amended the Motor Common Carrier Act in 1956 to require that a motor carrier assume "full direction and control" of leased vehicles in order to prevent trucking companies from eluding liability by engaging in such evasive "independent contractor" relationships.  The federal and state filing requirements were designed to provide a minimal form of coverage for the general public when insolvent and uninsured actors injured them.  See White, 599 F.2d at 53 ("Congress wished to impose on lessee-carriers responsibility for the operation of leased vehicles 'as if they were the owners of such vehicles." ') (citing 49 U.S.C. § 304(e)(2), now codified at 49 U.S.C. § 11107(a)(4)).  "Because the carrier now has both a legal right and duty to control vehicles operated for its benefit, the employees of the vehicle-lessor are deemed statutory employees of the lessee-carrier to the extent necessary to insure the carrier's responsibility for the public safety just as if the lessee-carrier were the owner of the vehicles." Id. (citing Simmons v. King, 478 F.2d 857, 867 (5th Cir.1973)).

As a result of the regulatory authority granted in the Act, Federal Motor Carrier Safety Regulations require a certificated interstate carrier who leases equipment to enter into a written lease with the equipment owner providing that the carrier-lessee shall have exclusive possession, control, and use of the equipment, and shall assume complete responsibility for the operation of the equipment, for the duration of the lease. 49 C.F.R. §§ 376.11-.12.  This FMCSR was enacted to protect the public by providing it with financially responsible carriers, Indiana Refrigerator Lines, Inc. v. Dalton, 516 F.2d 795, 796 (6th Cir.1975), and by preventing a carrier from "evad[ing] its responsibility to the public by obtaining its trucks through leasing arrangements rather than ownership and employment of drivers."  Toomer v. United Resin Adhesives, Inc., 652 F.Supp. 219, 229 (N.D.Ill.,1986).

The FMCSR  requires a carrier lessee to execute a written lease, to clearly identify the vehicle as in the employ of the carrier, and to observe other formalities evidencing its control over the vehicle and its responsibility for its actions, including displaying the carrier's placard. 49 C.F.R. § 1057.11(a)-(d).  The majority of authorities concerning such cases involving the liability of carrier-lessees holds that when a carrier-lessee permits a lessor-driver to use its authority without compliance with  Federal Motor Carrier Safety regulations, it is responsible for injuries caused by the lessor-driver, even if the lessor-driver was embarked on an undertaking of his own while using the carrier-lessee's authority. Rodriguez v. Ager, 705 F.2d 1229 (10th Cir., 1983); Carolina Cas. Ins. Co. v. Insurance Co. of North America, 595 F.2d 128 (3rd Cir., 1979); Wellman v. Liberty Mut. Ins. Co., 496 F.2d 131 (8th Cir., 1974);  Rediehs Express, Inc. v. Maple, 491 N.E.2d 1006 (Ind.App.,1986); Kreider Truck Service, Inc. v. Augustine,  76 Ill.2d 535, 311 Ill.Dec. 802, 394 N.E.2d 1179 (1979); Cox v. Bond Transp., Inc., 53 N.J. 186, 249 A.2d 579 (1969).

Therefore, when a member of the public is injured by the negligence of the driver of leased commercial motor vehicle, under federal law the  motor carrier bears responsibility to the injured person for the negligence of the commercial motor vehicle driver. Dove v. National Freight, Inc., 138 Ga.App. 114, 225 S.E.2d 477 (Ga.App. 1976); Judy v. Tri-State Motor Transit Co., 844 F.2d 1496, 1051 (11th Cir. 1988); Radman v. Jones Motor Co., Inc., 914 F.Supp. 1193, 1198 (W.D.Pa. 1996).  The Motor Carrier Act creates “an irrebuttable statutory employment relationship between [a] driver and the carrier-lessee.” Holliday v. Epperson, No. 1:02-CV-1030-T, 2003 WL 2340746, at *3 (W.D.Tenn. Aug.26, 2003); Gilstorff v. Top Line Express, Inc., No. 96-3081, 1997 WL 14378, at *2 n. 6 (6th Cir. Jan.14, 1997) (suggesting that the Sixth Circuit adopts this interpretation of ICC regulations); Wyckoff Trucking, Inc. v. Marsh Brothers Trucking Service, 58 Ohio St.3d 261, 569 N.E.2d 1049, 1053 (Ohio 1991) (adopting the “doctrine of statutory employment” and holding that “if the driver is negligent, the carrier-lessee is liable as a matter of law for accidents that occur while a lease is still in effect???”).  See also Baker v. Roberts Express, Inc., 800 F.Supp. 1571, 1574 (S.D.Ohio 1992) (adopting the Ohio Supreme Court's interpretation of ICC regulations in Wyckoff Trucking ). 

Federal Motor Carrier Safety Regulations preempt conflicting state laws, including “independent contractor” laws.  “Th[e] Constitution, and the Laws of the United States which shall be made in Pursuance thereof ..., shall be the supreme Law of the Land....” U.S. Const. art. VI, cl. 2.  “Federal regulations have no less pre-emptive effect than federal statutes.” Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982).  See also Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985)("state laws can be preempted by federal regulations as well as by federal statutes").  A state law that sets a lower standard for protection of public safety than one expressed or implied by the FMCSR is preempted. Cf.,  Yellow Freight System, Inc. v. Amestoy, 736 F.Supp. 44 (D.Vt., 1990), federal regulations requiring the trucking company to bear financial responsibility for operation of trucks under their authority preempt contradictory state laws of agency.  See, e.g., Empire Fire and Marine Insurance Co. v. Truck Insurance Exchange, 462 So. 2d 76 (Fla. App. 1985); A.C. v. Roadrunner Trucking, Inc, 1993 U.S. Dist. LEXIS 7251 (C.D.Utah 1993); Conlee v. George Transfer, Inc., 1995 Me. Super. LEXIS 206 (1995); Price v. Westmoreland, 727 F.2d 494 (5th Cir., 1984); Proctor v. Colonial Refrigerated Transportation, Inc., 494 F.2d 89 (1974); Simmons v. King, 478 F.2d 857, 867 (5th Cir. 1973); see also, Wellman v. Liberty Mut. Ins. Co., 496 F.2d 131, 136 (8th Cir. 1974); Mellon Nat'l Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473, 477 (3rd Cir. 1961). Therefore state laws and court decisions on independent contractor status, decided without reference to the federal Motor Carrier Act or Federal Motor Carrier Safety Regulations are inapplicable.  See., e.g., Montgomery Trucking Co., Inc. v. Black, 231 Ga. 211, 200 S.E.2d 882 (Ga. Oct 05, 1973); Dove v. National Freight, Inc., 138 Ga.App. 114, 225 S.E.2d 477 (Ga.App. Mar 01, 1976); Flowers v. U. S. S. Agri-Chemicals, 139 Ga.App. 430, 228 S.E.2d 392 (1976).

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A Vallejo, California jury awarded an 8-year-old Vacaville boy and his mother $11.3 million Thursday in connection with a freeway wreck that killed his father and twin sister. 



The jury found Swift Transportation Company liable for the actions of its big rig driver, who cut across two lanes of traffic on westbound Interstate 80 to avoid missing the entrance to the Cordelia scales. The evidence was that the truck driver was fatigued because he had driven past the 70-hour limit in a seven-day period.The 1994 Honda Passport the Pratt family was riding in struck the back of the truck, cutting open the passenger side of the Honda. The  Swift truck driver was traveling at 60 mph when he applied his brakes quickly, slowing to about 30 mph as he cut across two right lanes in an attempt to access the scales, where trucks are required to weigh in.  A second phase of the trial will determine punitive damages  in nine months. Continue Reading Questions & comments 0

A federal jury in Tucson, Ariz., has awarded $15 million to a tow-truck operator who lost his right leg after being hit by a tractor-trailer on Christmas Eve 2002, according to news reports.



 Jurors on Nov. 8 ordered Little Bear Transport of Salt Lake City to pay Bruce Austin of Bowie, Ariz., $5 million in compensatory damages and $10 million in punitive damages after a five-day trial in U.S. District Court.   According to press reports, a Little Bear Transport truck was traveling west on Interstate 10 on Dec. 24, 2002, when it swerved into the median and struck several vehicles involved in an earlier fatal crash; the out-of-control rig then hit Austin, the 58-year-old owner of a tow-truck company, who was in the process of loading up one of the disabled vehicles. Austin's right leg and left thumb were severed; he also suffered a broken left shoulder and broken ribs.  Little Bear Transport admitted the big rig's driver, Kenneth Virgil Howard, had falsified his logbook before the crash in hopes of making it home for Christmas, according to court documents cited by the press.
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An article in today's Dallas Morning News explains the obvious: "Trucking companies sometimes go to extraordinary lengths to avoid admitting fault in fatal accidents. They purge onboard computers, falsify records and destroy documents that federal law requires them to keep."

We've seen it too often. 


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Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the "Super Lawyers" listings violate professional responsibility rules against ads that compare lawyers’ services or create an "unjustified expectation about results."  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the "Super Lawyers" issue of Atlanta Magazine, "Legal Elite" issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer’s services with other lawyers’ services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."

The "Super Lawyers," "Legal Elite," and "Preeminent Lawyers" lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.
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The Large Truck Crash Causation Study announced by U.S. Federal Motor Carrier Safety Administration this past spring is now available to the public. LTCCS is the first-ever national study to attempt to determine the critical events and associated factors that contribute to serious large truck crashes allowing the DOT and others to implement effective countermeasures to reduce the occurrence and severity of these crashes.  A few key points are:

• 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.

It's a long report. I encourage you to read it.
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No statistics are available, but I'm beginning to suspect that the new hours of service rules adopted by the Federal Motor Carrier Safety Administration may be helping to reduce the incidence of fatigue related truck crashes.  This is just an impressionistic hunch and extremely preliminary, but there may be a trend.

For nearly a year and a half, I have had news feeds on Google and Yahoo to provide material about tractor trailer crashes for the "Truck Wreck of the Day" feature on this blog.  A year ago there were frequent news stories about dramatic and devastating truck wrecks that appeared to a fit a pattern consistent with driver fatigue.  I still see some, a lot of which involve injury to the truck driver only.  However, the overall impression in seeing the news stories stream through is that there appear to be fewer wrecks fitting that pattern.

And, as I drive the interstates, I see rows of trucks lined up for the drivers to take their mandatory rests breaks.

Could it be that the  new hours of service rules, which have been subjected to much criticism from drivers and safety advocates, are actually doing some good?  The jury is still out. Continue Reading Questions & comments 0

While there are no published decisions adopting this position, it is theoretically possible to hold trucking company owners and officers personally liable for their personal participation in dispatching drivers on trips that cannot possibly be lawfully completed.

Violations of Federal Motor Carrier Safety Regulations provide applicable standards of care, breaches of duty, and evidence of negligence, specifically including:

49 C.F.R. § 390.13: "No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter."

49 CFR 390.5: "Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals."

49 CFR 392.3: "No driver shall operate a motor vehicle, and a commercial 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."

49 C.F.R. § 395.3 (2003 version): "Except as provided in §§ 395.1(b)(1), 295.1(f), and 395.1(I), no motor carrier shall permit or require any driver used by it to drive not shall any such driver drive: (1) More than 10 hours following 8 consecutive hours off duty; or (2) For any period after having been on duty 15 hours following 8 consecutive hours off duty.

Violations of Federal Motor Carrier Safety Regulations establish standards of care upon which a jury should be instructed in negligence actions. . See, e.g., Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist., 2005); Donaldson v. J.D. Transportation Co., Inc., 2005 WL 1458230 (Tx. App. 2005); Payne v. Cornhusker Motor Lines, Inc., 2005 WL 1867727 (Mo.App. 2005); Ngueyn v. Arce, 34 Fed.Appx. 879, n. 4 (4th Cir., 2002)(not selected for publication); Green v. Prouty, 2001 WL 1773871 (Ohio App. 5 Dist., 2001); Muehlhauser v. Erickson, 621 N.W.2d 24 (Mn. App., 2000); Hagan v. Gemstate Manufacturing, Inc., 328 Or. 535, 982 P.2d 1108 (1999); Harmon V. Grande Tire Co., Inc., 821 F.2d 252 (5th Cir., 1987); Osborne Truck Lines, Inc., V. Langston, 454 So.2d 1317 (Ala. 1984); Gorby v. Schneider Tank Lines, Inc., 741 F.2d 1015, 39 Fed.R.Serv.2d 1217, 17 Fed. R. Evid. Serv. 97 (1984). In appropriate cases FMCSR violations may also be charged as negligence per se or negligence as a matter of law. In Hill v. Western Door, 2005 WL 2991589 (D.Colo.,2005), the court held that violation of the FMCSR driver log requirement is negligence as a matter of law. If the driver's violation is negligence per se, there is certainly a good faith argument that the acts of the company owners who aid and abet the violation by dispatching the driver under circumstances that the violation must occur also constitutes negligence per se. See also, North American Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 123-4 (Tx. App. 2001); Crooks v. Sammons Trucking, Inc, 2001 WL 1654986 (Cal.App. 3 Dist. 2001)(unpublished opinion); cf., J.R. Mabbett & Son, Inc. v. Ripley, 185 Ga.App. 601, 365 S.E.2d 155 (1988). In addition, FMCSR violations may be considered as foundations for award of punitive damages in appropriate cases. See, e.g., Trotter v. B & W Cartage Co., Inc., 2006 WL 1004882 (S.D.Ill., 2006); Came v. Micou, 2005 WL 1500978 (M.D.Pa., 2005).

Georgia cases outside the trucking context support the principle of personal liability of corporate officers for their personal acts and omissions. In Moore v. Barge, 210 Ga. App. 552, 436 S.E.2d 746 (1993), the court wrote:

Although shareholders or officers in a corporation enjoy a limited liability, they may be held liable individually for their own tortious or wrongful acts. Zagoria v. DuBose Enterprises, 163 Ga.App. 880, 886, 296 S.E.2d 353 (1982), rev'd on other grounds, 250 Ga. 844, 302 S.E.2d 674 (1983); Wrigley v. Nottingham, 111 Ga.App. 404, 406, 141 S.E.2d 859, rev'd in part on other grounds, Nottingham v. Wrigley, 221 Ga. 386, 144 S.E.2d 749 (1965). "One who is sued in his personal capacity, whether the alter ego, an officer or agent of a corporation, may not escape personal liability for his tortious misconduct damaging employees or third persons by hiding behind the corporate veil even in those situations where the corporation might also be a proper party to the action." Wrigley, 111 Ga.App. at 406, 141 S.E.2d 859. (210 Ga. App. at 553)

In Beasley v. A Better Gas. Co., 269 Ga. App. 426, 604 S.E.2d 202 (2004), a fatal gas fire occurred two years after the gas company's employees made an installation, and the gas line was later damaged, constituting an intervening proximate cause. There was no evidence that the president of the gas company had an individual role. While finding no liability under those facts, the court noted:

The general rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, and an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or co-operated therein. . . . Cherry v. Ward, 204 Ga.App. 833, 834(1)(a), 420 S.E.2d 763 (1992). Where "the evidence is insufficient to pierce the corporate veil ... the liability of the corporate officers for a tort committed by the corporation is dependent upon separate evidence of direct participation in the tort." (Citation and emphasis omitted.) Speir v. Krieger, 235 Ga.App. 392, 400(4), 509 S.E.2d 684 (1998).

Of course, discovery of the facts of an owner's or officer's personal participation in dispatching drivers to make runs that cannot be completed without violation of FMCSR's is difficult, and persuading a judge to adopt this line of reasoning may be difficult. But it could happen.

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A recent decision in the U.S. District Court for the Southern District of Illinois uses the Regulatory Guidance to the Federal Motor Carrier Safety Regulations for a construction of the Regs supporting punitive damages. See Trotter v. B & W Cartage Co., Inc., 2006 WL 1004882 (S.D.Ill.,2006).

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Sometimes it seems like half the job in catastrophic trucking litigation is analysis of insurance coverages. Recently I was consulted by a lawyer in my hometown about a situation in which an owner-operator's insurer had tendered policy limits of $1,000,000. There was also a Lloyd's "contingent liability endorsement" for an additional $1,000,00 issued to a freight broker. While I found no cases directly on point anywhere in the United States, analysis of the coverages was sort of weirdly interesting to someone geeky enough to have lectured seven consecutive years at the Insurance Law Institute. See the analysis below.

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Recently I wrote about the truck driver who in a deposition referred to the trucking company's safety director as the "safety moron." Well, yesterday I went to the frozen north to take the deposition of that safety director. He admitted they had no idea when the trucker left the shipper, or when or if he took any of the required rest breaks on a 900+ mile trip. They had no idea what happened to the driver's log, had made no effort to recover or preserve it, and no idea if they had ever audited this driver's logs in the past. The company had purchased a sophisticated truck communications system that had the capability to track truck locations nationwide by GPS, but was not using most of its features and did not coordinate it with the dispatch system, so that all the data from one had to be manually copied to the other so time entries may have been wildly inaccurate.

Finally, he admitted that the driver had told him that he was apparently asleep when he ran over my clients in extreme southern Georgia -- something that the driver vehemently denied in his deposition.

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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.

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TV lawyer shows never portray the tedious work of reviewing documents, researching law, and analyzing the effect of contracts and insurance policies. The recent decision of the Georgia Court of Appeals in Ryder Integrated Logistics, Inc. v. Bellsouth Tecomms. Inc. illustrates the sometimes mind-numbing work involved in figuring out who pays what after a catastrophic incident such as a major truck wreck. This case involves an indemnification agreement between two companies, a primary insurance policy and an excess insurance policy, with everyone trying to pass the buck. See the full text below.

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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.

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The past couple of weeks I've been going around the country taking truck drivers' depositions and racking up Skymiles. If nothing else, some have provided comic relief.

-- A truck driver whose CB handle is "Alabama Outlaw" swore that no state or federal motor carrier rules apply to him, even though he was driving a 13 ton truck hauling cargo for hire on a bill of lading from a shipper in Georgia bound for an ultimate destination in California. Maybe he has found an "Alabama Outlaw" exemption to motor carrier safety rules.

-- A Florida trucker who goes by the nickname and CB handle "Trash" smokes unfiltered Camels, has a skull and crossbones tattoo on his forearm, called the trucking company's safety director the "Safety Moron," and characterized the Federal Motor Carrier Safety Regulations as a "pain in the butt." He rearended a camper on I-75 in south Georgia about 5:30 AM after driving from Milwaukee and could not recall if he had had any rest stops before the wreck in south Georgia. No log book could be found when the State Patrol searched the truck cab after the wreck.

-- In Macon, a dump truck driver swore that the fellow he rearended on a bridge had whipped off an exit ramp at high speed, pulled crooked into a lane in front of the dump truck on a bridge, and suddenly slammed on his brakes, causing the collision. Funny how the impartial eyewitnesses didn't see it that way at all. It's his story and he's sticking to it.

-- One trucker in Ohio, who other than his "Joe Dirt" hairdo does not fit the "comic relief" category at all, broke down crying in his deposition after making a remarkable confession. He admitted that his driver logs were completely falsified, that during the time period his log showed him "off duty" he had driven the truck to trips to Chicago and Atlanta, that he was behind the wheel 20 out of 24 hours prior to the accident, and was probably on cruise control when he ran over a family at 3 AM and killed their son. He further admitted that he lied to the State Patrol about the falsified logs to avoid criminal prosecution. I'm going to send a copy of that deposition to the District Attorney in the county where this wreck occurred.

Truckers are fallible humans, generally no better or worse than lawyers or people in most other occupations. Though I tend to see the ones who are somewhat lax about safety and create problems for innocent motorists, I recognize that they are a small minority.

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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.

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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.

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Lawyers preparing a suit against an interstate motor carrier have an investigation tool that many overlook. The Freedom of Information Act, 5 U.S.C., Section 552, may be used to obtain records about a trucking company from the U.S. Department of Transportation. A request may be addressed to John H. Schnackenberg, FOIA Program Officer, U.S. Department of Transportation, Federal Highway Administration, Washington, D.C. 20590. The FOIA request should refer to the date and place of the crash from which the representation arises, and specify the categories of documents requested. Those may include:

(1) The office of Motor Carrier Safety accident report submitted by the carrier regarding the specific accident, specifying the time, date, place and truck driver.

(2) Copies of the initial notice of applicable DOT-OMCS rules sent to the motor carrier by the FOMCS, DOT.

(3) Copies of all correspondence of records received from or sent to the carrier.

(4) All "driver equipment and compliance checks" completed on standard DOT - OMCS equipment and roadside check forms along with copies of any such reports returned to the DOT.

(5) All case reports prepared by any DOT - OMCS agent on this carrier.

(6) All safety compliance surveys conducted by any DOT - OMCS agent on the carrier.

(7) All notices of Civil Forfeiture Claims or Federal Court action documents sent to the above-mentioned companies, by DOT along with any enclosures attached thereto and answers received from the carrier.

(8) All memoranda and/or reviews maintained in the carrier's files created by any state or federal agent, Regional Director, OMCS National Director or Counsel for the U.S. Department of Transportation.

(9) All settlement agreements, consent orders, or federal court action documents in reference to actions taken against the above-listed company, and any related news releases.

(10) The safety rating as maintained by the DOT - OMCS on the company on the date of the accident, and the carrier's present safety rating.

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In Weaver v. Chavez, decided 11/7/05, a district appeals court in California held that a trial court's failure to instruct the jury on the standard of care of "extreme caution" in adverse weather, pursuant to 49 C.F.R. § 392.14, rather than the negligence standard under state traffic law, was reversible error. This is significant because of the clarity of reasoning in support of upholding a standard of care under the Federal Motor Carrier Safety Regulations, which is higher than the standard of care under state law. While the rationale has long been clear, a number of court decisions around the country have muddied the water by failing to recognize FMCSR standards as preemptive rules of law or as constituting negligence per se.

See full text of decision below:

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A southbound tractor trailer ran over Robert Groves' Jaguar near Valdosta on August 16th, killing him and leaving just a pile of twisted metal. See news story. Law enforcement officials saw this as part of a trend.

"We're seeing a trend here lately with commercial motor vehicles, they seem not to be allowing enough stopping distance between the vehicles," said Cpl. Jeffrey Kidd of the Georgia State Patrol. Ricky Smith, an accident investigator for Georgia DOT, said "this year we've had several rear end accidents in tractor trailers, just not paying attention, running up on cars too fast and basically running over them." In my law practice, I'm seeing the same thing. In recent weeks I have started work on two cases in which tractor trailers ran over the rear of smaller vehicles traveling late at night on I-75 through rural Georgia. One of the trucks was southbound from Ohio to Florida, the other southbound from Wisconsin to Florida. Fatigue and sleep deprivation are likely factors in both.

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A jury in Shelby County, Alabama, has given a $29 million verdict for wrongful death in a crash caused by a dump truck driver who tested positive for methamphetamines. The defendant hauling company the company had failed to test the driver for drugs at any time during his employment and had no records of any maintenance or pre-trip inspections on the dump truck. See article.

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Courts often have been reluctant to allow claims for punitive damages for what some judges have perceived as mere technical violations of hours of service, log book requirements, and other Federal Motor Carrier Safety Regulations. See, e.g., Pittman v. Clay, 2001 WL 1352914 (E.D.Pa.,2001).

However, a recent case illustrates how to lay the foundation for using FMCSR violations to support a claim for punitive damages. In Came v. Micou, 2005 WL 1500978 (M.D.Pa.,2005), the plaintiff overcame summary judgment on a claim for punitive damages based on the following parts of the Regulations: (1) operating the Decker rig in violation of the hours of service regulations pursuant to 49 C.F.R. 395.3; (2) operating the Decker rig when he was too tired to do so safely in violation of 49 C.F.R. 392.3; and(3) failing to properly record his duty status in violation of 49 C.F.R. 395.8.

Significantly, the truck driver testified that he was aware that the hours of service regulations were in place to prevent drivers from falling asleep behind the wheel and causing death or serious injuries.

The plaintiff introduced two expert reports to the effect that the violatoins werethe precipitating factors leading to the collision at issue. First was a report from a trucking regulation expert detailing how (1) that the truck driver had been on duty for at least 75.5 hours in the eight days prior to and including the day of the collision in violation of 49 C.F.R. 395.3(b)(2) and that the company should have been aware that the driver's hours of service had exceeded legal limits; (2) that the truck driver was driving in a state of low mental arousal or fatigue at the time of the collision in violation of 49 C.F.R. 392.3; (3) that the truck driver falsified his time logs in violations of 49 C.F.R. 395.8; (4) that the trucking company failed to have an effective procedure in place to verify drivers' hours of service and that the company's flawed log auditing system allowed drivers to exceed hours of service limitations; (5) that the driver's conduct while employed at the company was outrageous as he knew the hours of service regulations were in place to prevent fatigued drivers from operating large and heavy commercial motor vehicles; and (6) that the company's policy, procedures and actions were outrageous in that their management and employees knew the hours of service regulations were in place to protect the safety of the monitoring public and knew hours of service was a problem in their operations.

Second, there was a report from a fatigue expert who concluded that the driver momentarily fell asleep with a microsleep (sleep lapse) just prior to the collision. It was his opinion that the truck driver irresponsibly placed himself in a situation where he experienced drowsiness, loss of alertness, inattention, and a microsleep which caused him to fall asleep for a short time just prior to the crash; and that the crash could have been avoided if he had properly complied with the Hours of Service regulations, managed his sleep, work-rest scheduling, and took rest-breaks from driving.

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The long-haul trucking industry is facing a shortage of 20,000 drivers, according to the American Trucking Associations (ATA). And it will just get worse: By 2014, the industry group predicts, the shortage may increase to 111,000 if trends continue. The trucking industry hauls nearly 70 percent of the freight that is moved in the U.S. Of the 3.4 million truckers on the road, 1.3 million are long haulers, according to the ATA; that is the segment of the industry most affected by the shortage. See article.

Why? There are several reasons. First,the economy is growing annually at more than 3 percent, but the population from which carriers hire drivers is almost stagnant, growing annually at only half a percent. Second, average pay for long haul truck drivers has fallen slightly below the average pay for construction workers. Third, older drivers are retiring and younger drivers don't want to spend that much time away from home. For quality of life reasons, they prefer to work closer to home. Third, driver turnover is extremely high, due to a combination of some drivers changing jobs every time child support garnishments catch up with them, and some simply seeking what appears to be a "greener pasture" with another company.

The implications for public safety are obvious. As the industry is forced to scrape the bottom of the barrel for drivers, inevitably there will be more inexperienced, inadequately trained, marginal drivers steering big rigs down the Interstate. This may be especially true with smaller trucking companies that are less inclined to enforce high standards and require more than lip service in compliance with Federal Motor Carrier Safety Regulations.

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Liability insurance is required for motor carriers in order to assure independent financial means to pay for injuries to members of the public arising out of trucking operations. Travelers Ins. Co. V. Transport Ins. Co., 787 F.2d 1133, 1139 (7th Cir. 1986). The minimum levels of liability insurance coverage required for interstate motor carriers depend upon what they carry: $750,000 for vehicles over 10,000 pounds carrying non-hazardous freight, and $1,000,000 for those hauling hazardous materials and oil. Minimum limits of $5,000,000 are required for any interstate for hire or private carrier operating portable tanks, cargo or hopper type vehicles with capacity over 3,500 water gallons, and for motor carriers of passengers. 49 U.S.C.A. § 10927. Federal insurance requirements exempt intrastate carriers operating within a single state, vehicles hauling certain commodities, vehicles of agricultural cooperatives, trucking operations limited to hauling for a parent corporation, school buses, taxis, commuter vehicles, and vehicles chartered by schools. 49 U.S.C.A. § 13501(o)(instrastate); 49 U.S.C.A. § 13506(a)(5), (b)(commodities, corporate family); 49 C.F.R. § 387.27(b)(schools, taxis, commuters).

For motor carriers subject to federal regulation, insurers must cause insurance policies to be endorsed for public liability. The most common form of such endorsement is the MCS-90, which amends the insurance policy to fill coverage gaps and to assure compliance with the Motor Carrier Act and FMCSR. It remains in effect continuously until replaced or cancelled according to special cancellation requirements independent of the policy's cancellation requirements. It is considered public information, and registered motor carriers must keep it available to the public for inspection. 49 C.F.R. § 387.7(e); 49 C.F.R. § 387.29; 49 C.F.R. § 387.7(b)(1); 49 C.F.R. § 387.31(b)(1). While the FMCSA has exclusive jurisdiction over interstate motor carriers and is the primary repository for financial responsibility filings, the carriers file proof of insurance in their base registration state, which upon approval issues a registration receipt that authorizes operation in all jurisdictions under a federal permit. 49 C.F.R. § 1023 and 1162. Mexican trucking companies operating in the U.S. must comply. 49 C.F.R. § 350(a)(8).

The MCS-90 is not insurance coverage per se, but operates as a suretyship for the benefit of the public resting on top of the motor carrier's liability policy. See, e.g., Canal Ins. Co. v. Carolina Cas. Ins. Co., 59 F.3d 281, 283 (1st Cir. 1995); John Deere Ins. Co. v. Truckin' U.S.A., 122 F.3d 270, 274 (5th Cir. 1997). It does not create in the insurer a duty to defend, but only a duty to member of the public pay any judgment against the motor carrier resulting from negligence in operation, maintenance or use of motor vehicles even if not specifically listed on the policy. See, e.g., Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 614 (5th Cir. 1989); Industrial Indem. Co. v. Truax Trucklines, Inc., 45 F.3d 986, 991 (5th Cir. 1995); National Am. Ins. Co. v. Century state Carriers, Inc., 785 F.Supp. 793, 795 (N.D. Ind. 1992).

The MCS-90 covering the owner of a tractor or trailer also covers permissive users, including vicarious "logo liability," so that the judgment need not be against the named insured. See, e.g., John Deere Ins. Co. v. Nueva, 229 F.3d 853, 856 (9th Cir. 2000); Integral Ins. Co. v. Lawrence Fulbright Trucking, 930 F.2d 258 (2d Cir. 1991); Reliance Nat'l Ins. Co. v. Lewis, 2001 U.S. Dist Lexis 12901 (Aug. 24, 2001) (need to find official or westlaw citation); Lynch v. Yob, 768 N.E.2d 1158 (Ohio 2002); Pierre v. Provident Washington Ins. Co., 730 N.Y.S. 2d 550 (N.Y. App. Div. 2001); But see, Tamara B. Goorevitz, et al, "Coverage Expansion in Tractor Trailer Insurance?," 47:2 For The Defense 40 (Feb. 2005).

It overrides policy exclusions that would otherwise defeat coverage, including non-cooperation and notice clauses, Campbell v. Bartlett, 975 F.2d 1569, 1580-81 (10th Cir. 1992), and presumably including exclusions for intentional acts, intoxication, etc. Richard M. Mosher, "Liability Endorsements and Financial Responsibility," 47:2 For The Defense 45, 49 (Feb. 2005).

Courts are in conflict as to whether the MCS-90 does or does not apply when the motor carrier's particular trip was not subject to federal jurisdiction at the time of the accident, e.g., an intrastate shipment. Royal Indemnity Co. v. Jacobsen, 863 F. Supp. 1537, 1542 (D. Utah 1994)(MCS-90 applied to intrastate trip hauling exempt commodities); contra, General Security Ins. Co. v. Barrentine, 829 So.2d 980, 983 (Fla. 1st Dist. 2002(not applicable to intrastate trip); Branson v. MGA Ins. Co., Inc., 673 So. 2d 89, 92 (Fla. 5th Dist 1996); Standard Ins. Co. v. McKissack, 153 S.W.2d 997 (Tex. Civ. App. 1941).

However, the MCS-90 endorsement specifically provides that the coverage applies "whether ... such negligence occurs on any route or territory to be served by the insured or elsewhere," so it is rational for a court to hold that the endorsement applies whether or not federal regulations actually require it at the time of the accident. Fawley Motor Lines v. Cavalier Poultry Corp., 235 F.2d 416, 418 (4th Cir. 1956). The MCS-90 endorsement limit applies on a per-accident rather than per-person basis. Hamm v. Canal Ins. Co., 10 F. Supp. 2d 539 (M.D.N.C. 1998).

Priority of coverage between the carrier issuing the MSC-90 endorsement and other insurance policies is determined by the excess and other insurance clauses of the respective policies. See, e.g., Empire Fire & Marine Ins. Co. v. J. Transport, Inc., 880 F.2d 1291, 1295 (11th Cir. 1989).; Carolina Cas. Ins. Co. v. Underwriters Ins. Co., 569 F.2d 304 (5th Cir. 1978). If an insurer pays a claim under the MCS-90 endorsement that it would not otherwise have been required to pay under the terms of the insurance policy, it has a right of reimbursement against the insured motor carrier for the claim paid but not for cost of defending the underlying claim against the motor carrier. See, e.g., Harco Nat. Ins. Co. v. Babac Trucking, Inc., 107 F.3d 733 (9th Cir. 1997); T.H.E. Ins. Co. v. Larsen Intermodal Services, 242 F.3d 667 (5th Cir. 2001).

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The Interstate Commerce Commission Termination Act of 1995 (ICCTA), while reducing the scope of regulation, creates a cause of action for "private enforcement of the Motor Carrier Act in court." 49 U.S.C. §§ 101 et seq.; 49 U.S.C. § 14704; H. Rep. No. 104-222, at 221-22 (1995), reprinted in 1995-2 U.S.C.C.A.N. 850, 906-07.

A private damage suit based on § 14704 of the ICCTA has been allowed owner-operators against a motor carrier for violation of truth-in-leasing regulations. Owner-Operator Independent Drivers Assn. v. New Prime, Inc., 192 F. 3d 778 (8th Cir. 1999), cert. denied, New Prime v. Owner-Operator Independent Drivers Ass'n., Inc., 529 U.S. 1066 (2000). See also, Owner-Operator Independent Drivers Ass'n. v. Mayflower Transit, 161 F. Supp. 2d 948 (S.D. Ind. 2001). Contra, Renteria v. K&R Transportation, Inc., 1999 WL 33268638 (C.D. Cal. 1999).

Availability of a § 14704 cause of action for personal injury based directly on violation of the FMCSA is uncertain. In Marrier v. New Penn Motor Express, Inc.,140 F. Supp. 2d 326 (D. Vt. 2001), the court held that a dock worker had a private right of action under § 14704 for violation of 49 U.S.C.A § 1410(a), which requires carriers to a safe workplace and adequate equipment.

However, in Stewart v. Mitchell Transport, 241 F. Supp. 2d 1216 (D. Kan. 2002),in which the plaintiff failed to allege violation of a specific FMCSA, the court rejected an independent cause of action for personal injury, holding that congressional intent was to create a private right of action for commercial disputes but not for personal injury.

In Hall v. Aloha International Moving Service, Inc.,2002 WL 1835469 (D. Minn. 2002), the court rejected a property loss claim under § 14704 because the plaintiff had not shown that damages resulted from the alleged violation of a regulation. While most personal injury cases are based on negligence theories, counsel may consider including a cause of action for damages proximately caused by violation of federal regulations under an analysis similar to negligence per se or strict liability, with serious implications regarding the duty of a motor carrier to preserve evidence, and potentially a statutory claim for attorney fees. See generally, 49 U.S.C. § 14704(e);"The Private Right of Action under 49 U.S.C. § 14704 a New Theory of Recovery for Personal Injury Plaintiffs?," 34-FALL Brief 32, 36+ (2004).

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A Continental Express truck driver whose negligent driving in July 2004 killed a Nashville, TN, police officer may have been legally disqualified from driving due under the Federal Motor Carrier Safety Regulations due to prior incidents of speeding and reckless driving. See news story.

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4/12/05 - U.S. Senate members heard testimony that if electronic on-board recording devices are not eventually required, stronger deterrents are necessary to deter "egregious" hour-of-service violations.

Kenneth Mead, U.S. Transportation Department inspector general, testified April 5 before the Senate Commerce Committee on transportation safety programs. "We have conducted criminal investigations of egregious cases in which trucking company officials have been prosecuted for systematically forcing their drivers to drive well in excess of the limits," Mead testified.

Log book and hours rules need strengthening because unscrupulous carriers and drivers view violations as "the cost of doing business," he said.

See eTrucker article.

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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:

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Sleep apnea is a sleeping disorder which can leave people with excessive tiredness, and lethargy. An Austrailian news report discusses research on sleep apnea as a cause of road crashes. See story.

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Not even Wal-Mart could sell the idea of a 16-hour work day for truck drivers. The sponsor, a congressman whose district includes the home offices of Wal-Mart and J. L. Hunt Transport, withdrew this proposed amendment to the transportation reauthorization bill on 3/10/05. The current HOS rules -- which are being reworked by Federal Motor Carrier Safety Administration under a U.S. court order -- allow truck drivers 14-hour workdays with driving time limited to 11 hours. See article in Today's Trucking.

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Generally, companies are not responsible for the negligence of independent contractors. However, in the trucking industry anyone driving under the authority of a motor carrier is deemed to be an employee for whose negligence the trucking company is vicariously liable.

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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.

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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.

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Sometimes a tractor trailer driver really is an innocent Good Samaritan. In Reid v. Midwest Transp., Case # A04A1821, decided by the Georgia Court of Appeals on 11/19/04, a tractor trailer driver had pulled entirely off the roadway in an emergency lane on I-20, activated flashing lights, and ran into a ravine to render aid to victims of a five-car crash. The plaintiff came up behind the trailer in the rain and mist and struck it. Summary judgment was granted to the trucking company.

The court decision, however, omitted any discussion of requirements of Federal Motor Carrier Safety Regulations, expert testimony about requirements of the FMCSR to set out flares or reflective triangles, or conspicuity requirements for trailers. We do not know whether the plaintiff raised any such issues in the case. However, if the trailer failed to comply with conspicuity regulations or underride guard regulations, careful preparation might have produced a different result with regard to the carrier's independent negligence, even if the driver was protected by the Good Samaritan statute.

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