Legal alchemy? Turning lead into gold by finding adequate insurance
If we have a nearly unique niche in our law practice it is the search for vastly more insurance for catastrophic truck crash cases where the visible insurance coverage is terribly inadequate. Other law firms — in Georgia and elsewhere — call us in to handle that part of a wrongful death or catastrophic personal injury case resulting from a tractor trailer crash.
The approaches to finding significant additional insurance coverage are not really legal alchemy or voodoo. But they do involve a critical knowledge of subtle complexity gathered over 38 years in law practice that does not appear in books or legal research databases.
It is no secret that big truck wrecks can cause a lot of carnage. When an 80,000-pound tractor trailer bigger than a Sherman tank runs over a small passenger car stopped in traffic at highway speed, a tremendous amount of kinetic energy is unleashed. We often see the catastrophic outcomes involving multiple fatalities and injuries.
The minimum insurance required for interstate trucking companies has not changed since President Reagan was in office. Even though there has been a lot inflation over the past 30 years and the purchasing power of that insurance has steadily dwindled, all Congress has been able to do is block an inflation adjustment in response to industry lobbying.
Minimum insurance for general freight tractor trailers in interstate commerce was set at $750,000 in 1981. Minimum coverage for interstate hazmat trucks and passenger buses was set at $5,000,000 in 1985.
If the $750,000 minimum insurance limit were adjusted for inflation from 1981 according to the Consumer Price Index, it would be about $2 million. Adjusted at the medical inflation rate, which is more appropriate for personal injury claims, it would be $4,422,000. But we all know how effective Congress is these days.
It’s even worse In Georgia. For trucks operating only inside Georgia, the minimum insurance required coverage for big commercial trucks is only $100,000. That has remained stagnant for decades.
That’s where we come in, searching for additional insurance that is invisible to most lawyers. Here are a few examples.
From $1 million insurance to $50 million insurance. In a truck crash case on an interstate highway in south Georgia with multiple death and injury claims, the trucking company’s insurer insisted that there was only $1 million insurance coverage, so all the families had to just divide that and sign releases. Lawyers for several of the families brought me to look for more coverage. Knowing where and how to look, I found another $50 million of insurance coverage.
From $1 million insurance to $10 million insurance. In another recent case involving multiple fatalities in a tractor trailer crash on an interstate highway in Georgia, the trucking company’s insurer represented that there was only a single $1 million insurance policy. They insisted that we needed to have a mediation to decide how to divide that policy and release all claims. We declined and pursued a combination of intermodal freight and maritime law theories. That led to uncovering $10 million in additional coverage. We settled confidentially before trial for at least as much as the expected jury verdict value in the small south Georgia county where the case was filed. Ironically, that was paid mostly by an insurance company that had before suit denied in writing that it had ever heard of the company it insured.
From $250,000 to $2 million. In another case, involving a defective piece of warehouse equipment rather than a tractor trailer, the insurer for the Florida welding shop that made a knockoff work stage on special order, represented that there was only $250,000 insurance for a wrongful death claim. We kept digging and found that company had a cumulative total of $1 million coverage under insurance policies they did not realize overlapped. After collecting that million in Florida, we then came back to Georgia, classified a forklift as an office supply to due the distributor for violation if the Georgia Fair Business Practices Act, and collected their $1 million policy limit. In the end we collected $2 million after the first insurance company insisted there was only $250,000 coverage.
From $25,000 to $400,000. In one recent case, a log truck was making a u-turn in the dark on a rural highway without proper lights and reflectors. Witnesses said it was not visible until they were “slap up on it.” A man driving to work in predawn darkness was killed. The 18 wheeler log truck incredibly had only $25,000 insurance coverage. After litigating over insurance coverage and bankruptcy issues as well as the original wrongful death claim, we collected about 16 times that much from the insurer for the logger who loaded the truck and the insurance agent that improperly handled the logger’s phone call reporting the claim. It was less than the theoretical value of the claim but it was enough for the decedent’s daughters to get a good launch in adult life.
This often requires creatively “thinking outside the box.” I will not publish the methods for free on the internet, but I am happy to assist clients and lawyers anywhere in the country who hire me for that purpose.
Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.