trucking

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

While my trucking litigation law practice is in Atlanta, Georgia, I know that long haul trucking safety is not just an American issue.  With the long distances between populations centers in Australia, all the challenges facing American truckers are big deals there too.  Driver fatigue, for example, is every bit as big a problem for Aussie "truckies" as for American truckers.

At the Australian Trucking Convention this week in Canberra, which includes the ATA Safety Summit,  FleetSafe is exhibiting a range of trucking safety technologies, including:

  •  video based event recorders
  • in-vehicle black box monitoring systems
  • trailer reversing cameras
  • wireless CCTV systems
  • electronic tire inspection tools
  • RFID tire tracking and fuel management systems.

A FleetSafe spokesman said, “Safety is great for business. Safe working conditions mean reduced costs associated with accidents and down time which ultimately increases efficiency and profit. In the transport industry safety means more than simply compliance. It is about creating a culture of safety that saves the lives of drivers and other people on the roads. These are issues that affect us all.”

In my law practice in Georgia, I occasionally get calls about tractor trailers that hit someone and do not stop. Identifying and apprehending the hit and run trucker is always a big challenge.

State laws in most states  require drivers to change lanes or slow down for emergency vehicles stopped on the side of the road. Early Tuesday morning, northbound  on I-81 in Virginia, a tractor trailer driver broke that rule, struck a Virginia State Police car on the shoulder of the road, and injured a trooper who had appeared in a TV spot publicizing that law.

According to a rep rot by Marvin Anderson on Roanoke.com, the trooper had stopped another tractor trailer for speeding. According to state police, the trooper’s front and rear emergency lights were activated.  The trooper, who was seated in his patrol car, was transported to a hospital in Roanoke, treated and released. The driver of the truck that he  had stopped also was sitting in the patrol car at the time of the crash but was not hurt.

Virginia State Police were  analyzing footage from the trooper’s dashboard camera  searching for the driver of the truck, a dark-colored Freightliner Classic tractor with an extended front.  It has either a white or light gray box trailer and likely has significant damage to the right rear of the trailer. The trailer also may have maroon paint on the side where it hit the cruiser, and it may have broken lights and a cut or gash along the trailer.

Given the early morning hours and inattentiveness of the truck driver, one could speculate about the possibility that the trucker was fatigued and operating well beyond his legal hours of service. However, that’s just my "SWAG."

The Virginia police have an unusual advantage in that they at least have dashboard video of the tractor trailer. Perhaps detailed analysis in their state crime lab can tease out of a grainy video a portion of a company name, tag number, or a DOT or motor carrier number.  If not, perhaps a bulletin to law enforcement agencies and truck stops across the country can generate leads. I hope they don’t limit the search to truck stops along I-81.  By now it could be halfway across the country.

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.

Friday afternoon about 2 pm, I nearly became a statistic in the kind of trucking accident case that I see too often as a lawyer.

Leaving Atlanta for the weekend with my wife, we were on I-285 approaching I-85 at "Spaghetti Junction" when traffic in our lane designated for I-85 North ground to a halt. I had been sitting there for maybe 15 to 30 seconds, about a car length behind a tractor trailer with my hazard flashers on to alert drivers behind me.  Having seen so many cases of rear end collisions when freeway traffic stalls, I always hit the hazard flasher button in these situations.  I know we were sitting there long enough to wonder why just our late was stopped, read the writing on the back of the trailer in front, and to note that it had the older style of rear underride bar. 

Then I heard tires screeching.  Looking in my rear view mirror I saw a tractor trailer with tires smoking, angling from my lane into the lane to my right.

Conservatively estimating the speed of the flow of traffic before the stoppage at 40 miles per hour and the time I had been stopped at 15 seconds, the trucker behind me would have traveled 879 feet – nearly the length of three football fields — with a clear view of traffic stopped and my flashing hazard lights, before he stopped inches from my rear bumper.

Fortunately, he was able to stop.  But not before the image of a car pushed through the rear underride bar of a trailer in front flashed through my mind. That’s not how I want to die.

Was the truck driver behind me fatigued, inattentive, or both? Was he in the 11th hour or more of driving that day?  Fortunately, no one will have occasion to ask. And fortunately, there will be no occasion for the surviving truck driver to falsely claim that the person he killed had suddenly slammed on brakes without warning, hoping that no accident reconstruction would prove otherwise.

The Medical Review Board of the Federal Motor Carrier Safety Administration has recommended that CDL holders with a body mass index of 30 or higher be referred for sleep apnea testing. There is no timetable for action on this recommendation.

Sleep apnea is a serious disorder that interrupts a person’s breathing during sleep.  It can cause sleeplessness, fatigue, excessive snoring, acid reflux and other health problems, and can aggravate any existing heart or lung trouble. Certain physical features, such as excessive weight, are common to people with sleep apnea, although people who aren’t obese can suffer it as well.