December 2007

Tort costs decline 5.5% is 2006

By Ken Shigley on December 18, 2007

Towers Perrin Tillinghast is an insurance consulting firm whose annual Update on U.S. Tort Cost Trends has been a highly controversial source of data for tort reform advocates. Crtiics have long accused Towers Perrin of bias as a shill for the insurance industry providing biased, contorted numbers to support an advocacy position.

Now the company has released its 2007 Update on U.S. Tort Costs Trends, which is available here. "Tort costs" are defined as: 1. benefits paid or expected to be paid to third parties, 2. defense costs, and 3.is administrative expenses. Tort costs in 2006 declined by 5.5% from the previous year. Personal tort costs declined 1.3% while commercial tort costs declined 7.7%, comprising a total of 1.87% of Gross Domestic Product.

While there are undoubtedly those who resent any portion of GDP going to a system designed compensate those who are injured by the carelessness of others, my hunch is that most folks wouldn’t think 1.87% of GDP is excessive for this purpose. It beats imposing all the economic and human impact of negligence onto the victims.

Truck wreck trial in Macon

By Ken Shigley on December 13, 2007

Posted in Trucking Litigation

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.

Dart Transport applies for HOS exemption to try another way to manage driver fatigue

By Ken Shigley on December 5, 2007

Posted in Trucking Rules

The current FMCSA hours of service rule for truck drivers has been subject to much criticism on multiple grounds. Now a Minnesota-based motor carrier has applied for an exemption in order to try another method of fatigue management. Considering the merits of night-time sleep and power naps when fatigued during the day, with electronic monitoring, the company’s proposal may have a lot of merit.

Dart Transit Co., based in Eagan, MN, has applied for a two-year exemption from two provisions of the hours-of-service regulations so that 200 of its owner-operators can operate in order to try a fatigue risk management system that would encourage quality nighttime sleep and use electronic onboard recorders to monitor drivers’ rest schedules.

“The purpose of this is to reduce driver fatigue by implementing a scientifically validated, risk-informed, performance-based fatigue risk management system,” says Gary Volkman, Dart’s vice president of safety and compliance. Dart believes the program will increase safety; improve the health, lifestyle and retention of drivers; and improve customer service. “What we want is a rested driver behind the wheel," Volkman says. "But we want a little more flexibility around when he gets that rest.”

Echoing criticisms of the HOS rule that have shown up in litigation and elsewhere, Dart argues that the 14-hour rule often penalizes drivers who stop to take a nap or sleep for less than eight hours – even when this opportunity occurs at night and is sensible for reducing fatigue. The requirement that split rest be taken in blocks of at least eight hours and two hours encourages drivers who have been on duty at night to try to obtain all or most of their sleep during the daytime hours when they are least likely to obtain sleep that is of good quality or long duration, Dart says.

Under Dart’s plan, the 200 owner-operators would be exempt only from the 14-hour clock and the split-rest limits. All other hours-of-service rules – 10 hours minimum daily rest, maximum 14 hours on duty per 24 hours, 11 hours driving per day and 70 hours per 8 days – would still apply.

A big focus of Dart’s plan is nighttime, or nocturnal, sleep, which studies have shown to be preferable. The company would use EOBRs and wireless communications to ensure that each driver’s truck is not moving for a minimum of six consecutive hours sometime during the period of 9 p.m. to 9 a.m. each night. In addition, Dart would use software from Circadian Technologies to analyze driver fatigue risk on a daily basis. Exempt drivers and their fleet managers would get these scores, along with instructions on how to improve them, such as temporary reductions in workload.

If FMCSA authorizes the exemption, Dart would take applications from owner-operators and conduct health screenings on applicants to exclude those at risk of untreated sleep disorders. The company also would provide education and training on fatigue and sleep to the participants and their fleet managers.