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 new study reports that surgeons who play video games at least three hours per week made about 37 percent fewer mistakes in laparoscopic surgery and performed the task 27 percent faster than their counterparts who did not play video games.Laparoscopic surgery — using a tiny camera and instruments controlled by joysticks outside the body — is performed on just about any part of the body, from an appendix to the colon and gall bladder. Kurt Squire, a University of Wisconsin researcher of video game effects on learning, said that "with a video game, you can definitely develop timing and a sense of touch, as well as a very intuitive feel for manipulating devices."

I expect smart kids will start responding to parents’ complaints about excessive video gaming by saying they are just preparing for careers as surgeons. Whatever.

All too often we see the results of vehicular crashes that occur when one driver attempts a left turn across the oncoming traffic lane without yielding to oncoming vehicles. 

The Georgia Driver’s License Manual, at page 40, paragraph 4,  includes the following instruction:

When making a left turn at an intersection, alley or driveway, yield the right-of-
way to all traffic from the opposite direction, then proceed when it is safe to do so.

Georgia Code § 40-6-71 states the legal rule:

The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.

The Georgia Pattern Jury Instructions summarize the rule as follows:

The driver of a vehicle intending to turn to the left within an intersection shall yield the right-of-way to any vehicle approaching from the opposite direction that is within the intersection or so close to it as to constitute an immediate hazard.

This rule is  important because we have to have clear rules about who has the right of way on the road, so there is no ambiguity about whose turn it is to proceed at an intersection.  It’s important because when a driver chooses to turn across a traffic lane without yielding to vehicles coming from the opposite directions, it can cause injury and sometimes even death to innocent people.   Ironically, it is seldom the driver of the car turning left that is hurt badly because he or she is shielded from the impact that happens on the passenger side of his or her car.   

And yet we continue to see drivers flinging themselves and their vehicles across oncoming traffic lanes — like possums crossing a country road  — without even looking at oncoming vehicles.  Too often it is a driver or passenger in an oncoming vehicle who is injured while trying desperately to avoid hitting the vehicle that blithely turns across their lane.

A charter bus carrying members of a  baseball team from Bluffton University, a Mennonite college in Ohio, crashed onto I-75 from an overpass at Northside Drive about 5:30 AM Friday morning, killing six people and closing the southbound lanes of the interstate for 5 hours. A witness who was driving alongside the bus said it exited on a ramp at about 60 MPH.  The bus hit the bridge’s 2-foot-high retaining wall and crashed through a 10-foot-high fence atop the wall and plunged back to I-75 below. 

The unusual design of the HOV lane left exit is attracting a lot of attention in the local media.  I have driven by that exit and others like it many times and wondered when it would produce a tragedy.  While the state folks are quoted in the media insisting that everything complied with federal design standards, the signage for that counterintuitive exit seems questionable.

I have two children close to the age of these college students.  It is difficult to contemplate the enormity of the loss these parents face.  They will be able to lean on their faith, but it still must be enormously painful.  I am reminded of a case we handled several years ago involving the crash of a college cheerleader van, and a crash involving a Taylor University van last year. I have often recommended to clients who have lost young adult children Lament for a Son, a book by a theology professor Nicholas Wolterstorff whose own son died in a mountain climbing accident at age 21.

Interstate charter buses are governed by Federal Motor Carrier Safety Regulations.  The National Transportation Safety Board is investigating, so it is likely any violations will be uncovered.  The Georgia State Tort Claims Act allows for negligent design claims against the DOT if road design failed to comply with standards when built.  But that’s a subject for another day.

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)

    The Federal Motor Carrier Safety Regulations often referred to in cases where tired truckers wreck include the following:

    49 C.F.R. § 392.3, Driver Impairment.

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

    § 390.11 Motor carrier to require observance of driver regulations.

 Whenever … a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.

FMCSR, 49 C.F.R. § 390.13, provides that

"No person shall aid, abet, encourage, or require a motor carrier or  its employees to violate the rules of this chapter."  It does not say "no motor carrier." 

49 CFR 390.5 defines "person" as follows:

Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals.

    § 395.3 Maximum driving time for property-carrying vehicles.

    Subject to the exceptions and exemptions in § 395.1:

(a) No motor carrier shall permit or require any driver used by it to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle:

    (1) More than 11 cumulative hours following 10 consecutive hours off duty; or
    (2) For any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty, except when a property-carrying driver complies with the provisions of § 395.1(o) or § 395.1(e)(2).
(b) No motor carrier shall permit or require a driver of a property-carrying commercial motor vehicle to drive, nor shall any driver drive a property-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver’s services, for any period after-
     (1) Having been on duty 60 hours in any period of 7 consecutive days if the employing motor carrier does not operate commercial motor vehicles every day of the week; or
    (2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates commercial motor vehicles every day of the week.

    § 395.8 Driver’s record of duty status.

(a) Except for a private motor carrier of passengers (nonbusiness), every motor carrier shall require every driver used by the motor carrier to record his/her duty status for each 24 hour period using the methods prescribed [herein]….
    * * * *
(e) Failure to complete the record of duty activities of this section or § 395.15, failure to preserve a record of such duty activities, or making of false reports in connection with such duty activities shall make the driver and/or the carrier liable to prosecution.

    A court may also consider the applicable administrative interpretations included in the Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed.Reg. 16370 (1997).  The agency "consolidated previously issued interpretations and regulatory guidance materials and developed concise interpretive guidance in question and answer form for each part of the FMCSRs." Id. at 16370.  "[A]n agency’s interpretation of its own regulations is entitled to a relatively high level of deference…. A court must accept the interpretation unless it is … plainly erroneous or inconsistent with the regulation."  United States v. Thorson, No. 03-C-0074- C, 2004 WL 737522, at *8 (W.D.Wis. Apr. 6, 2004); "Deference is particularly appropriate when an agency interprets its own regulation." Hickey v. Great W. Mortgage Corp., No. 94 C 3638, 1995 WL 317095, at *5 (N.D.Ill. May 23, 1995). 
 
   The Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 FR 16370-01 (1997) includes the following official administrative interpretations of the regulations:

Question 7: What is the liability of a motor carrier for hours of service violations?
Guidance: The carrier is liable for violations of the hours of service regulations if it had or should have had the means by which to detect the violations. Liability under the FMCSRs does not depend upon actual knowledge of the violations.
Question 8: Are carriers liable for the actions of their employees even though the carrier contends that it did not require or permit the violations to occur?
Guidance: Yes. Carriers are liable for the actions of their employees. Neither intent to commit, nor actual knowledge of, a violation is a necessary element of that liability. Carriers "permit" violations of the hours of service regulations by their employees if they fail to have in place management systems that effectively prevent such violations.

    In interpretation of 49 C.F.R. § 395.8, the regulatory guidance states:

 Question 21: What is the carrier’s liability when its drivers falsify records of duty status?
 Guidance: A carrier is liable both for the actions of its drivers in submitting false documents and for its own actions in accepting false documents.  62 Fed.Reg. at 16426. In short, “Motor carriers have a duty to require drivers to observe the FMCSRs.”

    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. 

Kudos to State Rep. Robert Mumford (R-Conyers) who on Tuesday introduced the Medical Malpractice Insurance Reform Act  . The bill wouldrequire the Insurance Commissioner to hold medical malpractice insurers tothe same rate-filing standards that auto and homeowner insurers have to meet.
"We need to do everything we can to make sure people are able to get affordable health care," said state Rep. Robert Mumford, R-Conyers. "In my view, tort reform has not produced the results it advertised."
An Associated Press analysis of state insurance records last year revealed six of the state’s top insurers of doctors and dentists have increased their liability rates _ in some cases by more than a third _ since new restrictions on malpractice cases became law in February 2005.
Supporters of Mumford’s measure point to California as an example of how theslight change could ultimately decrease medical malpractice rates. Three years after the state approved a similar measure, the malpractice premiums declined by 3 percent, according to Georgia Watch, a consumer advocacy group.

 

Currently, most insurers have to get a rate increase approved by the Commissioner before they raise premiums on consumers. But medical malpractice insurers aren’t held to the same standard. An insurer can "file and use" the higher rate immediately, even if the Insurance Commissioner has not yet reviewed the request. Rep. Mumford’s bill would require "prior
approval" for malpractice insurers. It would also require public hearings on any rate increase over 10 percent, so that doctors could voice their opinion about costly insurance. Finally, the bill would give Georgians more information about what’s behind high rates by requiring malpractice insurers to file information with the Insurance Commissioner about their claims
experience and what claims they have paid. This information would then be turned into an annual report and made available to the public.
 
Two years ago, when we were trying to tell legislators that doctors needed insurance reform more than a "one size fits all" cap on damages, the legislative leadership didn’t want to slow down the train long enough to consider what might really work in holding down medical malpractice insurance premiums.  We tried to tell them that the legislation that contained premiums in California wasn’t the damages cap but the later enactment of insurance reform, but of course they didn’t want to listen.

These sorts of changes are sorely needed in the medical liability insurance market, which is dominated by one organization (MAGMutual). Despite a lack of understanding about what was causing high medical malpractice insurance rates, Georgia enacted tort "reform" in 2005. But

since Georgia passe the bill, doctors haven’t seen rates go down. In fact,some companies have actually raised their rates.

The Truck Safety Coalition is hosting its 2007 Sorrow to Strength Conference at Arlington, VA, on March 10-13, 2007.

Sorrow to Strength is designed for survivors of truck crashes and families/friends of those who have died or been injured. The conference allows survivors to come together for a weekend of sharing, remembrance, workshops and public policy actions to advance truck safety. This conference is open to all survivors, advocates, and legal/medical professionals interested in advancing truck safety.

The last Sorrow to Strength Conference in 2005 produced an agenda of important truck safety priorities, included visits arranged by TSC staff with key lawmakers in Congress and senior officials with the U.S. Department of Transportation, and release of a report comparing truck safety in each state at a press conference in Washington, DC. This year’s conference comes at a critical crossroads in truck safety, as trucking interests seek to roll back truck safety rules and laws.

WHEN: Saturday, March 10th – Tuesday, March 13th, 2007

WHERE: Hilton Garden Inn – Arlington/Courthouse Plaza. For reservations, call the hotel directly at 1.877.STAYHGI (1.877.782.9444) or 703.528.4444.

COST: With the Truck Safety Coalition Group/Convention Code (TSG), Friday, Saturday and Sunday is $99 per room per night (tax not included) and $189 for Monday night. There is no fee for the conference itself. Scholarship funding is available to assist with travel costs.

This conference will be organized to discuss both personal experiences and how to work as a powerful, effective constituency. Throughout Sorrow to Strength, you will have the opportunity to meet with safety experts, elected officials, and safety supporters. You play an important role in the fight to improve truck safety and bring down truck crash deaths and injuries. Please, join us for this important meeting.

For more information or to answer any questions about Sorrow to Strength contact the Truck Safety Coalition at crash@trucksafety.org or 1.888.353.4572. For more information see  www.trucksafety.org.

Allen Smith, a former truck driver who publishes the TruthAboutTrucking.com blog, has listed the "Top 10 Causes of Truck Accidents" as follows:

1. Prescription Drug Use 26%
2. Traveling Too Fast 23%
3. Unfamiliar with Roadway 22%
4. Over-the-counter Drug Use 18%
5. Inadequate Surveillance 14%
6. Fatigue 13%
7. Illegal Maneuver 9%
8. Exterior Distraction 8%
9. Inadequate Evasive Action 7%
10. Aggressive Driving Behavior 7%