Atlanta Injury Law Blog

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.

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.

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.
   

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."

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. 

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.

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.

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.

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.

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.

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.

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. 

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.

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.)

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

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. 

(Continued below)

    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. 

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.

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.

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.

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.

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).

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).

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).

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.

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.

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. 

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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:

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.

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.

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.

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.

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 Endorseme