A federal court win for the home team was just published at Giddens v.The Equitable Life Assurance Society of the United States, 356 F.Supp.2d 1313(N.D.Ga.,2004) [Westlaw $$$].
We represented a dentist / real estate developer on a disability insurance claim after he had liver failure requiring a liver transplant at the Mayo Clinic. The insurance company took the position that during a long period of inability to work due to undiagnosed illness prior to diagnosis of liver failure, he abandoned both of his occupations, and therefore no longer had an occupation from which to become disabled. We won summary judgment before the Honorable Richard Story, U.S. District Judge in Atlanta.
The case is significant because it established Georgia precedent on (1) admissibility of disability opinions of treating physicians under Daubert despite lack of definitive tests and specialization in disability evaluation, with any deficiency going to weight rather than admissibility; and (2) rejection of insurer’s “occupation defense” that insured who was unable to work for extended time due to illness had abandoned occupation and therefore had no occupation from which to become disabled.
The insurer has filed an appeal pending in 11th Circuit Court of Appeals. We hope the appeal produces a published decision affirming Judge Story’s order, which other policyholders may use as precedent against The Equitable throughout the United States.
See the published order below:
March 2005
Trucker’s U-Turn on I-35 at 5 AM fatal to another trucker
Arkansas City, Kansas, 3/23/05. One truck driver was killed in a crash caused by another truck driver attempting a u-turn on I-35 at 5 AM. See article.
U-turn on the interstate? The list of potential violations of state traffic laws (improper turning, failure to yield, etc.) and Federal Motor Carrier Safety Regulations (failure to obey state traffic laws, probably hours of service violation, driving while impaired, etc.) one might investigate in such an incident is just incredible.
3 tractor trailers crash on I-59 in Mississippi at 2:44 AM
Near Poplarville, MS, at 2:44 AM 3/16/05, three 18-wheelers crashed and shut down the Interstate for several hours. The mess began when automobile carrier lost control and veered across the median, The trailer, which was carrying vehicles, came to rest blocking the roadway. Then another 18-wheeler struck the trailer, followed by a third 18-wheeler. Both trucks left the interstate to the right, where one of them overturned in the roadway. The impacts jarred vehicles loose from the auto carrier’s trailer and sent them tumbling onto the interstate. Fortunately, only minor injuries to the drivers were reported, but the southbound lanes of I-59 were closed for 11 hours.
See Picayune Item article.
While the cause for the initial loss of control is not mentioned in the article, one may easily speculate that driver fatigue played a role in the unexplained loss of control at 2:44 AM.
Fatal Kentucky crash caused by trucker falling asleep
On I-65 in Kentucky, about 10:30 PM on 3/23/05, a semitrailer driver fell asleep at the wheel and caused a multiple-car pileup that left one man dead. His semitrailer crossed the median into the northbound lane and clipped the rear of another semitrailer. A flatbed utility truck then ran into the back of the second truck and caught on fire.
The driver of the flatbed truck was pronounced dead at the scene. It was not yet known whether death was caused by trauma or smoke inhalation. See Hardin County (KY) News-Enterprise article.
Georgia trucker killed in 4 AM crash in SC
A truck driver from Pooler, Georgia was killed at 4 AM on 3/24/05, when his semitrailer veered off northbound I-95 in South Carolina, and crashed into a grove of trees in the median. A police spokesman said, “We don’t know if it was a medical condition or if he fell asleep or what at this point.” See Beaufort (SC) Gazette article. Ironically, the trucker was only a few miles from home, and driving away from his home, at the time of the crash.
Sealed load of bell peppers overturns in Alabama, beer cans in truck cab
Nearly 23,000 pounds of bell peppers en route from El Salvador to Canada spilled Wednesday when a tractor-trailer flipped, forcing authorities to close northbound lanes of Interstate 65 in northern Alabama for 15 hours. Alabama state troopers confiscated beer cans from the scene. See Decatur Daily article and WAFF News story.
49 CFR § 382.201 sets a higher standard regarding alcohol use by truack drivers that preempts state laws as follows: “No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. No employer having actual knowledge that a driver has an alcohol concentration of 0.04 or greater shall permit the driver to perform or continue to perform safety-sensitive functions.
49 CFR § 382.205 prohibits all on-duty use of alochol by commercial truck drivers. 49 CFR § 382.207 prohibits use of alcohol within four hours prior to performing any safety-sensitive function.
One of venue provisions in SB 3 held unconstitutional
Last week Judge Tony DelCampo in the State Court of DeKalb County held unconstitutional a provision of Georgia’s new tort reform statute affecting venue in medical malpractice cases. Section 9-10-31(c) provides for a medical malpractice defendant to transfer venue to the county where a negligent act occurred. Judge DelCampo held that this provision violates the provision of the Georgia constitution that joint tortfeasors can be sued in the county of any one of the defendants. See Fulton County Daily Report (subscription) article as follows:
Fatal crash with trailer that got stuck across highway in u-turn
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:
Will dismantling of DMVS increase truck wrecks in GA?
The General Assembly could pass legislation this week to dismantle the state Department of Motor Vehicle Safety, though it’s not clear why. See article.
“Representatives of the Federal Motor Carrier Safety Administration and the Federal Highway Administration indicated that, historically, there is a transition period after this type of change of 1 to 4 years where accident rates and fatalities will increase,” says a memo from the state Office of Planning and Budget dated February 2004.
Critics of the proposal to dismantle DMVS contend the state will lose millions of dollars in efficiency-promoting federal funding that came with the consolidation of functions under DMVS. About $1.8 million that the state receives annually will lapse at least temporarily, said Tom Marlowe, Georgia division director of the Federal Motor Carrier Safety Administration. Fatalities involving commercial vehicles dropped from 214 in 1994 to 164 in 2004, even though there were more trucks on the highway laragely due to to the fact that there are more inspections and there is more emphasis on truck safety. The Federal Motor Carrier Safety Administration are said to consider the DMVS “excellently managed” and on the way to being “a national leader” because of its success in cutting the rate of truck accidents.
Dangers of longer work hours for truckers
Truckers tell of enormous pressure to make deliveries on time. Falsifying their handwritten logbooks of hours is still common, and very hard for police or inspectors to catch. See Asheville (NC) Citizen-Times article.