Articles Posted in Trucking litigation

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The families of the Georgia Southern nursing students killed or injured this week when a tractor trailer ran over them on I-16 bear a huge burden of pain and grief. As a parent, I cannot imagine anything worse than the sudden death of a child who has had you wrapped around her finger from the first time you held her in your arms.

The families need time, space, privacy and gracious consideration from others to have space to grieve, each in their own way.

After any such tragedy waves of welcome and unwelcome people descend upon the survivors.

First may come the well-meaning relatives, friends, neighbors and pastors. I can imagine that each family’s home has been deluged with casseroles and that parents’ Sunday School classes have signed up to provide meals for the next month. That loving embrace can help one keep going through the early days.

But then, after the funeral, folks go back to their everyday lives, leaving parents and siblings to sit in the departed child’s bedroom and weep for hours in the dark. Each must process the stages of grief.

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For years, whenever I have visited Savannah, I have loved to sit at the riverfront and watch with fascination the huge ships stream past, with freight containers stacked high like a child’s colorful building blocks, filled with goods shipped to and from distant shores.

On Georgia highways – especially I-16, I-95, I-75 and I-85 – we see a steady stream of those freight containers mounted on tractor trailers from the ports of Savannah and Jacksonville. Just east of downtown Atlanta there is a vast intermodal freight yard, transferring freight containers between trains and trucks.

With the upcoming expansion of the Port of Savannah, intermodal truck traffic across Georgia will greatly increase. Usually the drivers are careful and safe, but when bad things happen the results can be catastrophic.

Most people who see intermodal freight on the highways don’t know what they are seeing. But if you see a tractor trailer with markings from China or Europe, it is an intermodal freight container.

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Several times recently, I have written about the projected inflation adjustment to minimum liability insurance coverages for interstate commercial vehicles. The process continues.

A few days ago, the Federal Motor Carrier Safety Administration issued a 14-page Report to Congress, concluding the following:

1. Current limits are inadequate in covering catastrophic crashes.

2. Simply adjusting existing limits to adjust for healthcare inflation would require raising limits:

a. From the current $750,000 to $3,188,250 for general tractor-trailers, rather than the $4.2 million that was discussed for inflation adjustment since the $750,000 minimum was first set in 1980.

b. From the current $1 million to $4,251,000 for low-hazard hazmat tractor-trailers, e.g., fuel trucks, rather than $4.4 million that was discussed.

c. From the current $5 million to $21,255,000 for high-hazard hazmat tractor-trailers;

d. From the current $1.5 million to $6,376,500 for small buses; and
e. From the current $5 million to $21,255,000 for large buses.

3. “The Agency has formed a rulemaking team to further evaluate the appropriate level of financial responsibility for the motor carrier industry and has placed this rulemaking among the Agency’s high priority rules.”

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NOTE TO TRUCK DRIVERS:
Our law practice focuses on representation of people who are seriously injured, and families of those killed, in crashes with large commercial vehicles. While those are often truck drivers, we do not handle truckers’ employment law matters. For legal advice on issues with your employer, see Truckers Justice Center. 

 

As a trucking accident personal injury and wrongful death lawyer based in Atlanta, I get a chance to see the trucking safety issues from the point of view of both innocent folks who are run over by tractor trailers and truck drivers who are themselves put at risk by companies that care too little about safety.

A blogging truck driver at Go By Truck News wrote this week that “A rogue motor carrier is a truck driver’s worst nightmare.”

He wrote that last year, D.A. Landis Trucking, Inc. was charged with conspiracy for ordering drivers to falsify their daily logbooks, maintain two sets of logs, falsely certify accuracy of the lying logs, had dispatchers also knowingly dispatched drivers on trips that were truck accidentto exceed hours-of-service requirements.

That is old news to those of us who have been digging through truck drivers’ logs and trip documents and both deposing and interviewing truck drivers.

He also gathered these tweets from tired truck drivers:

– “My dispatcher goes retarded when I tried to tell them I have only 1 hr left to drive.”

– “I have heard this from many dispatchers before. Come on we need you for one more.”

– “When it comes to driving we have 65mph trks n 100mph dispatchers with 26 hrs in a day!”

– “Dispatch was kind enough to plan my first load for 4am central time. My paperwork is invalid and dispatch won’t be in for another 3 hrs.”

Go By Truck News urges truck drivers to check the safety records of any company they consider working for, and to make sure they know the rules, including these:

FMCSR 392.6 Schedules to conform with speed limits. “No motor carrier shall require a run nor permit nor require the operation of any commercial motor vehicle between points in such period of time as would necessitate the commercial vehicle being operated at speed greater than those prescribed by the jurisdictions in or through which the commercial motor vehicle is being operated.”

FMCSR 390.13 Aiding or abetting violations. “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.”

FMCSR 392.3 Ill or fatigued operator. “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, 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.” (This regulation was mentioned in my prior article and worth repeating again here).

He is spot on in stating that, “A good safety director will educate a driver about these regulations, rewarding and not penalizing a driver for declining to take a load if they are too fatigued. A good company with a pattern of safe behavior will give a trucker an opportunity to develop a disciplined sleep routine.”

He urges that, “it’s often the employer / load planner / dispatcher pushing the trucker beyond their limits. However, all truckers should take a stand with the Trucker Mike’s ‘Mantra’ – ‘I will NEVER let anyone ‘push’ me, instead I’ll be fired for being SAFE if need be!'”

This afternoon, my friend Steve Gursten in Michigan forwarded this plea he received from a truck driver who wants to drive safely but works for a rogue trucking company that won’t allow him to follow the law:

The company that I drive for has me doing illegal runs. I feel if I don’t do them my miles will be cut or they will find a way to get rid of me. I need to care for my family. I have been too many companies and they are all the same. The one I’m with now is the worst. I’m looking for other employment and coping the best I can. Is there anyone I can talk to like a whistle blower organization? Or maybe a letter too the sec of transportation? Companies, dispatchers, shippers and receivers need to be held accountable. Until we have better legislation in place to address this, us truckers will always be at the bottom of the hill. And of course we know which direction s##t rolls.

Wow!

That is right in line with my impression over the years that most truck drivers are just ordinary good guys working hard to make a living, but are too often pushed by employers, motor carriers, shippers, brokers, etc., to make illegal runs on impossible schedules, so that they are often pushed beyond the limits of human endurance.

That is why I generally try to handle these cases by digging for a root cause analysis in the corporate safety management system — or lack thereof.

I suggested referring this guy to Truckers Justice Center in Minnesota, operated by a lawyer who represents whistle blowing truck drivers nationwide
If your or a family member were run over by a tractor trailer, or if you are a truck driver badly injured in the line of duty, I would be glad to talk with you with no obligation.
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Georgia has long allowed people hurt in wrecks with intrastate trucking companies to sue the trucking company’s insurer directly, either alone or in the same lawsuit with the trucking company and truck driver. But it is necessary to have independent grounds for venue as to both in order to sue both the insurer and trucking company in the same lawsuit.

One advantage of this “direct action” statute is that the injury victim or decedent’s survivors would not have to chase down a trucker who might be elusive. Another is that it removes any doubt from jurors’ minds as to whether the defendant has insurance, though the amount of coverage is not revealed.

For year there has been doubt about how this applied to interstate trucking cases. If the trucking company was just operating within Georgia, and the insurance company was authorized to do business in Georgia, the direct action law clearly applied. If the trucking company was from another state, we operated in a gray area in deciding whether or not to include the insurer in a suit. Trucking companies and their insurers generally contended that the Georgia Direct Action Statute prevented plaintiffs from joining insurers of motor carriers that do not engage in intrastate commerce in Georgia. In representing plaintiffs, we often searched for aspects of intrastate trucking in the business of even an out-of-state trucking company.

Several months ago in a case in which I was involved, Judge Thomas Thrash of the U.S. District Court for the Northern District of Georgia ruled that the “direct action” statute also applies to interstate trucking cases in Georgia.

In Bramlett v. Bajric, 2012 WL 4951213 (N.D.Ga.,2012), Judge Thrash ruled that:

[I]nsurers of interstate carriers can be joined as parties under the statute. First, the statutory language itself indicates that the joinder provisions apply to both intrastate and interstate carriers. O.C.G.A. § 40–2–140(c)(4) states that “[a]ny person having a cause of action, whether arising in tort or contract, under this Code section may join in the same cause of action the motor carrier and its insurance carrier.” (Emphasis supplied). The phrase “Code section,” as used throughout the Georgia Code, refers to the entire section 40–2–140.FN1 The proper title for the section is Title 40, Chapter 2, Article 6A, Section 40–2–140. See O.C.G.A. § 40–2–140 (emphasis supplied). In the absence of any constraining language, there is no reason to think that the § 40–2–140(c)(4)’s reference to “this Code section” refers to anything but the entire code section, 40–2–140. Therefore, the plain language of the statute indicates that injured parties are able to join the insurers of interstate motor carriers.

This is significant in the handling of serious injury and wrongful death cases arising in Georgia against interstate trucking companies.

Along with the ability to seek an award of contingent attorney fees for violation of Federal Motor Carrier Safety Regulations, which may be considered as evidence of bad faith in the transaction under O.C.G.A. § 13-6-11, this helps make Georgia courts a viable option when there is a question where to file suit for a catastrophic trucking case.
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Drivers of commercial tractor trailers, semis and big rigs are responsible for piloting an 80,000 pound rocket down highways shared with you and your family.

You may pray that they are well-trained, well-managed, safe and responsible. Most are. Some are not.

The duties of a commercial truck driver are spelled out in the Federal Motor Carrier Safety Regulations, Commercial Drivers License (CDL) manuals, training materials published by industry associations and companies such as J. J. Keller, and company policies and procedures. While only statutes and regulations have the force of law, the others may be used as evidence of standards of care and of negligence when violated.

Some of the truck driver’s duties include:

– Know and understand the safety regulations and policies.

– Perform pre-trip and post-trip inspections, carefully going through a detailed checklist of the tractor and trailer.

A proper pre-trip inspection takes an experienced truck driver 20 to 30 minutes.Too often in truck accident cases we find inspections were no more than a quick walk-around or less, with a vertical line hurriedly drawn down the checklist rather than even bothering to inspect and check off each item. Earlier this week I was at a truck stop for my expert’s inspection of a tractor trailer involved in a fatal accident when we saw another truck driver do a 20 second “pre-trip inspection” that involved glancing at his tires. The result of inadequate pre-trip inspection can be operation of an 80,000 pound truck on the highway with unsafe equipment.

– Understand and comply with hours of service regulations, and truthfully log their driving, on-duty but not driving and off-duty time.

They are limited to driving 11 hours in a 14 hour work day, after which they must take a 10 hour rest break. The driver is responsible for planning a route with the hours of service rules in mind, and for notifying dispatch when he is out of legal hours.

I have handled cases in which drivers falsified logs in order to appear legal far beyond exhaustion of both their legal hours of operation and their bodies. Sometimes they are pressed to drive far beyond legal hours by trucking company dispatchers, third party logistics companies, freight brokers, shippers and consignees who turn a blind eye to safety. Those companies may share the legal blame, but the truck driver is still responsible as the pilot of the ship.

– Inspect his cargo to make sure it is safely distributed and secured before the trip, at particular points en route, and at the end of a trip.

Except when taking a sealed trailer that he is not allowed to open without special permission, the driver is required to inspect inside the trailer to make sure weight is properly distributed and the right methods and equipment have been employed to prevent the lad from shifting.

When operating a truck with a flatbed trailer, the driver must assure that the load is and remains securely tied down, following commodity-specific rules in order to prevent spilling, leaking, falling or blowing of cargo.

A while back, I handled a case in which a truck driver failed to secure a forklift on a flatbed trailer, with the result that the forklift came loose in a curve on a mountain road and landed on top of an oncoming vehicle. Police and the coroner were picking pieces of people out of that flattened car for days.

– Plan a route that takes into account weight limitations on roads and bridges, low height restrictions of bridges and tunnels, railroad crossings, one way streets and awkward turns.

A confused or careless truck driver can kill people when attempting a u-turn that blocks a highway in the dark or stuck in a railroad crossing or low bridge.

– Use extreme caution when road or adverse weather conditions affect traction or visibility, and if necessary pull off the road and wait for conditions improve. CDL manuals instruct truck drivers to reduce speed by one-third in rainy conditions.

When a tractor trailer hydroplanes in a rain slick curve and knack knifes at highway speed into oncoming traffic, only a miracle an prevent deaths or catastrophic injuries, including that of the truck driver himself.


– Stop driving when ill or fatigued, even if still within the legal hours of service.

Sometimes we find that truck drivers work second jobs or pursue other activities during the required rest periods, so that. They are unsafely fatigued even when inside legal hours of operation. Other times we find truckers returning to work too soon after an illness, such as one who got a chiropractor to issue DOT medical certificate two weeks after open heart surgery.

Safety should always come first.

– Whenever stopped on the side of the road, truck drivers must activate hazard flashers, then put out reflective triangles or flares at specified locations behind the trailer.

– Hang up and drive.

Federal rules now ban use of hand held cell phones as well as text messaging during operation of a commercial motor vehicle in interstate commerce.

– Obey all state and local traffic laws.

Truckers must also obey local peed limits, traffic control devices, etc.

There is much more that could be included, but this may give you a taste of the issues we examine regarding truck driver duties.
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NOTE TO TRUCK DRIVERS:
Our law practice focuses on representation of people who are seriously injured, and families of those killed, in crashes with large commercial vehicles. While those are often truck drivers, we do not handle truckers’ employment law matters. For legal advice on issues with your employer, see Truckers Justice Center. 

When we share the road with semi tractor trailer drivers who pilot 80,000 pound big rigs on highways across the country, we hope they are well-qualified and safety conscious. Most are but some are not.

Among the many things I examine as a trucking accident litigation trial attorney in Georgia are the qualifications, experience and background of the truck driver.

Commercial truck and bus drivers are required to have knowledge of and comply with all government trucking safety regulations and company policies. Motor carriers operating truck and bus lines are required to make sure drivers are adequately trained and monitor drivers’ performance.

Entry level truck drivers must obtain a Commercial Driver’s License, usually referred to as a CDL. That requires training in driver qualifications, hours of service, safe operations and whistle blower protection. The CDL manuals for all states in the US are materially identical. Drivers are required to know and understand pertinent provisions of the Federal Motor Carrier Safety Regulations, so the CDL manual explains the regs in simpler, graphic terms.

Drivers of specialized commercial vehicles need additional training specific to those types of vehicles. Trade organizations and safety materials publishing companies produce training videos and manuals for a wide variety of specialized commercial vehicles such as concrete mixer trucks, crane trucks, etc.

These CDL manuals and specialized training materials are extremely useful in cross examining truck drivers after they crash.

In applying for a truck driving job, a truck driver must provide his or her CDL, employment history, driving records, record of convictions and violations, medical history, drug and alcohol history, and physical exam.

Trucking companies are required to conduct a road test of the driver, testing knowledge, skills, experience and training, using the same type vehicle the driver is expected to operate. The test must be conducted by an employee who is qualified to do so.

When representing the victims of a catastrophic semi tractor trailer crash, all this fair game for thorough and sifting examination. Any lawyer who thinks a commercial truck crash is just a bigger car wreck will be clueless and unprepared, vastly reducing the prospects for success in representing his client. That is why our years of experience in trucking litigation matters.

Source: Federal Motor Carrier Safety Regulations; Truck Accident Litigation (3d edition)
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In trucking accident personal injury litigation in Georgia, plaintiffs often assert a claim for attorney fees and expenses of litigation including attorney fees under O.C.G.A. § 13-6-11, which was enacted as part of the Code of 1863. A decision this week by the Georgia Court of Appeals relied on existing case authority that an award of fees under this statute must be based on findings of fact, not determination simply as a matter of law.

O.C.G.A. § 13-6-11 provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

“Indicative of whether a party acts in good or bad faith in a given transaction is his abiding by or failing to comply with a public law made for the benefit of the opposite party, or enacted for the protection of the latter’s legal rights. Evidence that appellants failed to comply with mandatory safety regulations promulgated for the benefit of appellees is some evidence that appellants acted in bad faith in the transaction, within the meaning of O.C.G.A. § 13-6-11.” Meyer v. Trux Transp., Inc., 2006 WL 3246685 (N.D.Ga., decided Nov. 8, 2006)(FMCSA violations); Windermere, Ltd. v. Bettes, 211 Ga.App. 177 (1993)(landlord’s to violation of fire exit safety regulations).

“Even slight evidence of bad faith can be enough to create an issue for the jury.” Morrison Homes of Florida, Inc. v. Wade, 266 Ga.App. 598 (2004). “The question of bad faith . . .is for the trier of fact to determine.” Monterrey Mexican Restaurant of Wise, Inc. v. Leon, 282 Ga.App. 439 (2006).

As trucking cases involve a body of mandatory motor carrier safety regulations — federal regulations for interstate trucking and analogous state rules for intrastate trucking — violation of those rules may be used by a jury as the basis for an award of fees and expenses under the “bad faith” prong of O.C.G.A. § 13-6-11. I have had trial judges who were skeptical of this theory read overnight the authorities I presented and come back the next morning to announce that it would be reversible error not to allow that issue to go to the jury.

However, it is clear that it is a fact question, not one that the court can determine as a matter of law. Meek v. Mallory & Evans, Inc., Case No. A12A1290, decided Nov. 8, 2012 in an opinion written by Judge Gary Andrews, was a landlord-tenant case, the merits of which are not relevant to this discussion. However, the trial court had awarded fees under OCGA § 13-6-11 as a matter of law. The court held:

the language of OCGA § 13-6-11 prevents a trial court from ever determining that a claimant is entitled to attorney fees as a matter of law. “Although the trial court may grant attorney fees or litigation expenses under OCGA § 13-6-11 where it sits as the trier of fact, it is not a trier of fact on a motion for summary judgment.” Covington Square Assoc. v. Ingles Markets, 287 Ga. 445, 448 (696 SE2d 649) (2010)

Does this make any difference in how lawyers handling trucking accident personal injury cases handle attorney fee claims under OCGA § 13-6-11? Not really. However, it does stand as a reminder that this is an issue to be determined by the jury, or occasionally by a judge serving at the trier of fact without a jury. It does require presentation of at least evidence even if it is perfunctory.
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When there is a catastrophic crash involving an interstate commercial motor vehicle, there can be a broad range of places to consider filing suit. The usual state rules strictly limiting venue options are preempted by the federal Motor Carrier Act which provides:

A motor carrier or broker providing transportation … shall designate an agent in each State in which it operates by name and post office address on whom process issued by a court with subject matter jurisdiction may be served in an action brought against that carrier or broker. 49 U.S.C.A. § 13304(a).

This enables courts to obtain personal jurisdiction over an interstate motor carrier in states where the carrier may or may not do business, but in which it has a registered agent, for incidents occurring in a third state. McKamey, 744 A.2d at 532 n. 14 (citing cases).

By designating an agent in another state pursuant to the Motor Carrier Act, a corporation undertakes a “voluntary, reasoned act,” acknowledging that it may be sued in that state as a result of its interstate commercial enterprise-irrespective of where it may have committed the tort at issue. See Leonard v. USA Petroleum Corp., 829 F.Supp. 882, 886 (S.D.Tex.1993); Chick v. C & F Enterprises, LLC, 938 A.2d 112 (NH 2007).

A wide variety of strategic and tactical factors may come into consideration, including differences in substantive, evidentiary and procedural rules in various states, location of other potential defendants such as brokers and shippers, availability of witnesses and quality of the courts. These may be the possibility of a motion to dismiss or transfer a case based upon the doctrine of forum non conveniens. However, consideration of venue options may be far broader than most lawyers recognize.

Thanks to my friend Morgan Adams in Chattanooga for pointing this out to me.
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Large truck operations are governed by the Federal Motor Carrier Safety Regulations and largely identical state trucking safety rules. Sometimes people are surprised that these safety rules no not apply to tractor trailers only. Under 49 CFR 390.5, a commercial motor vehicle is defined to include any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle –

a. Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight 10,001 pounds or more, whichever is greater; or
b. Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
c. Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
d. Is used in transporting material found by the Secretary of Transportation to be hazardous.
Every state has adopted most portions of the Federal Motor Carrier Safety Regulations for intrastate transportation.
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