Articles Posted in Trucking litigation

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When a loved one is killed or catastrophically injured in a collision with a tractor trailer, there may be a temptation to wait for a “decent interval” before hiring a lawyer who specializes in commercial trucking trial practice. The trucking company’s insurer may encourage that reluctance by saying some soothing things to lull you into inaction.

But it is important to know that the trucking company and its insurance company get a rapid response team to the crash scene before the vehicles are moved. While the victims are in an ambulance or in the emergency room, the trucking company has its investigators massaging evidence and trying to influence the police report.

Some electronic data from tractor trailers may be lost or destroyed within a few days if there is not quick action to assure that it is preserved. Every minute of delay leads to loss of crucial evidence.

Therefore, it is vitally important for the victim’s family to move quickly after a catastrophic truck crash to hire a lawyer who specializes in trucking cases and who can deploy his or her own rapid response team. While responses may be scaled to the seriousness of the case, the ultimate rapid response may include:

• a highly qualified accident reconstruction expert with solid experience in reconstructing crashes involving large commercial vehicles, not just car wreck.

• a trucking safety expert qualified to assess violations of trucking safety rules;

• a conspicuity expert qualified to assess visibility of vehicles in the conditions existing at the time of the crash;

• a forensic evidence photographer qualified to preserve the actual appearance of the vehicles and conditions under existing lighting conditions;

• a human factors expert who can assess perception and reaction under the conditions on
the roadway;

• a forensic computer expert qualified to obtain and interpret the wide array of event data recorders and computers on large commercial trucks.

In a catastrophic truck wreck it is a mistake to rely solely upon the police report, even when reasonably well qualified police accident reconstructionist are involved.
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ABCO Transportation, Inc., a refrigerated freight haulder based in Dade City, Florida, has a chronically unsatisfactory record with the Federal Motor Carrier Safety Administration with regard to unsafe driving violations. In my experience as a trucking trial attorney, when a trucking company has a record as bad as ABCO, often there are issues of management turning a blind eye to safety.

In ABCO’s case, this bad safety record culminated in a tragic crash on Wednesday on Thornton Road in Douglas County, Georgia, when an ABCO truck driver ran a red light, taking the lives of two co-workers at AutoTrader.com (a Cox Enterprises subsidiary) and injuring four others.

I was in Chattanooga, at the office of another trucking trial attorney, when I got a message to return a call from the family of two of the injury victims who had been referred by their family’s attorney in another state.

ABCO’s record with the Federal Motor Carrier Safety Administration shows unsafe driving violations with a 74.3 percentile score. Anything over 60th percentile is unsatisfactory. In the past two years, ABCO had 81 reported unsafe driving violations, and has rated unsatisfactory for unsafe driving violations for every reporting period since December 2010. That is probably the tip of the iceberg, as it only indicates the times they got caught.

Specific reported violations include:

– Failure to obey traffic control device, 8 violations – Following too close, 11 violations – Improper lane change, 3 violations – Lane Restriction violation, 5 violations – Improper passing , 1 violation – Reckless driving, 1 violation – Speeding, 14 violations – Speeding 15 or more miles per hour over the speed limit, 4 violations – Speeding work/construction zone, 4 violations
In 2011 and 2012, ABCO has had 18 reported crashes, 8 of which involved injuries, with a total of 17 people injured. These include:

– 6/22/12, Pennsylvania, 2 injured – 12/9/11, New York – 12/2/11, Ohio – 11/29/11, Colorado – 11/2/11, New York, 1 injured – 10/11/11, Virginia – 9/9/11, Missouri – 4/27/11, Kentucky – 4/7/11, Florida, 1 injured – 3/5/11, Alabama – 2/10/11, Virginia, 7 injured – 1/20/11, Ohio – 11/23/10, Florida, 1 injured – 11/3/10, Indiana, 1 injured – 10/25/10, Ohio – 8/29/10, Texas, 1 injured – 7/31/10, Virginia, 3 injured – 7/9/10, Connecticut
Regarding fatigued driving, one of the most common underlying causes of truck crashes, ABCO is right at the threshold for an unsatisfactory rating — 59.8 percentile when anything over 60 percentile is considered unsatisfactory. ABCO was over the 60 percentile threshold for unsatisfactory driver fatigue rating for 4 of the past 6 reporting periods. Reported violations only indicate when they got caught, so they are normally the tip of the iceberg. Violations include:

– False report of driver’s record of duty status, 8 (lying about driver logs)
– Requiring or permitting driver to drive more than 11 hours, 8 violations – Requiring or permitting driver to drive after 14 hours on duty, 20 violations
It was with that background that an ABCO Transportation tractor-trailer operated by 64-year-old Robert John Sansom, of Colorado ran a red light on Thornton Road in Douglas County, Georgia, on Wednesday, July 11th. Two women on their lunch break were killed — Tracy Downer and Michelle Chinnis, both of whom in sales for AutoTrader.com, a website owned by Cox Enterprises. Four other people were injured in the crash . According to an article by Alexis Stevens in the AJC, Downer previously worked in advertising at the AJC from 1993 to 2010, was married with a son and a daughter, and Chinnis is survived by a 16-year-old daughter.

Victims and their families may choose separate attorneys or joint representation in such instances of serious personal injury or wrongful death, as this is a potential conflict that may be waived in writing after informed consent pursuant to Georgia Rule of Professional Conduct 1.7.

Whenever there are multiple victims of a crash such as this one, it is important to coordinate representation. Most recently, we were involved in the joint prosecution group coordinating representation of member of the Bluffton University baseball team arising from a bus crash in Atlanta in 2007. Where there are no substantial indications of fault on the part of any of the victims, the only potential conflict among them is generally concern about adequacy of insurance coverage and assets to cover all claims.

The Federal Motor Carrier Safety Administration website only shows for ABCO a $1,000,000 liability policy with Protective Insurance Company. However, an interstate motor carrier with 174 trucks is likely to carry an excess liability insurance policy with considerably higher limits, perhaps an additional $5,000,000 to $20,000,000. That information is not public and generally is reliably documented only in litigation.
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Wrongful death and catastrophic injury cases involving commercial trucks are seldom just about a moment’s inattention. Usually we find there are issues of training, supervision and rule violations, though frankly with a local delivery truck in rush hour it is sometimes simpler than that.

Lithonia truck driver Stephen Scott has been charged with second degree vehicular homicide and following too closely in the Friday crash that killed a Lawrenceville couple, Donna and John Kesse, on I-985 in Gwinnett County, according to media reports.

Traffic was slowed in the interstate’s southbound right-hand lane due to merging traffic from Ga. 20 about 3:20 p.m. Friday when a box truck driven by Scott slammed into the Keese vehicle, then careening into a Dodge Ram pickup truck and a Saturn minivan towing a small trailer with an ATV on it.
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In my commercial trucking accidents law practice, we often need to subpoena business and medical records from other states, especially in interstate trucking personal injury and wrongful death litigation. In cases filed in state courts of Georgia, rather than federal courts, it has been necessary to comply with an arcane variety of differing state laws in order to do so.

Until recently in Michigan, for example, it was necessary to retain a lawyer in that state and spend roughly a thousand dollars just to get a routine subpoena for documents issued and served.

Last week, the Georgia legislature passed the Uniform Interstate Discovery and Depositions Act has finally passed in Georgia. This new uniform law, when enacted in all states, will make interstate discovery for cases in state courts almost as easy as it is in federal courts. It will enable Georgia lawyers to get subpoenas for depositions, document production and inspection of premises in other states that have enacted the same uniform law, and will make it easier for lawyers in those states to do the same in Georgia.

HB 46, sponsored by Representatives Jacobs, Lindsey, Willard, Oliver, Lane and Weldon (all friends of mine), almost passed last year but got caught in the legislative traffic jam in the Senate at the end of the 2011 session. It was one of the first substantive bills to pass this year and go to Governor Deal for signature.

This is reciprocal, and only available to lawyers when both states have passed the same law. At a meeting of the Southern Conference of Bar Presidents next week in New Orleans, I plan to make a pitch to my counterparts from other Southern states that have not yet enacted this law to put it on their State Bar legislative agendas. As shown on this map, the Southern states that have not yet passed it Alabama, Florida, Louisiana, Arkansas, Oklahoma and Texas.Those that have passed this law include Virginia, Maryland, North Carolina, South Carolina, Kentucky, Tennessee and Mississippi.

Here is what the new law provides:
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For years we have explored cell phone distraction as a factor in the cause of motor vehicle accidents, including commercial trucking accidents. Discovery of cell phone records has become routine in litigation. We have read all the studies, deposed the experts and argued about the legal ramifications. I won’t rehash all that here.

Now the Federal Motor Carrier Safety Administration has issued a rule barring use of hand held cell phones by commercial truck drivers in interstate commerce. The agency stated the rationale for the rule in part as follows:

Using a hand-held mobile telephone may reduce a driver’s situational awareness, decision making, or performance; and it may result in a crash, near-crash, unintended lane departure by the driver, or other unsafe driving action. Indeed, research indicates that reaching for and dialing hand-held mobile telephones are sources of driver distraction that pose a specific safety risk.

The agency summarizes much of the research on cell phone distraction in explaining its conclusion that “it is the action of taking one’s eyes off the forward roadway to reach for and dial a hand-held mobile telephone … that has the greatest risk.”
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Fatalities in large truck accidents increased 8.7% in 2010, according to a report released last week by the National Highway Transportation Safety Administration.

NHTSA said in its annual report that 3,675 people died in trucking related accidents in 2010, an increase of 295 over the 3,380 fatalities in 2009. The number injured in trucking accidents increased 12% from 17,000 to 19,000. (Those number are surely rounded off.)

NHTSA did not clearly identify a cause, but increased truck traffic due to gradual economic recovery is likely a major factor.
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Throughout rural Georgia, clearly unsafe log and pulpwood trucks operate on the highways with little apparent concern for safety of the public with whom they share the roads. Just as trucking accident cases are different from car wreck cases, log truck cases are different from other trucking accident cases.

– Insurance coverage. Most log trucks in Georgia operate intrastate, solely within Georgia, just hauling logs from Georgia forests to Georgia paper mills. Under Georgia law, they are only required to have $100,000 in liability insurance coverage. Other log trucks haul across state lines to paper mills in adjacent states, and must have at least $750,000 liability insurance. In practice, pulpwood vendors and paper companies often require by contract that loggers hauling pulpwood for them carry $1,000,000 liability insurance.

– Different rules. Loggers operating solely within Georgia, or who are engaged in a trip that is entirely inside the state, are governed by the Georgia Forest Products Trucking Rules. Log trucks hauling loads across state lines are governed by the Federal Motor Carrier Safety Regulations. While similar in a number of ways, there are crucial differences, particularly with regard to conspicuity (visibility) of extended loads at night.

– Venue. Owners and drivers of log trucks often reside in rural counties where jury pools are likely to include their friends and relatives and forest products are vitally important to the local economy. Suit must be filed in the county of residence of a defendant who has liability. The potential for “home cooking” is obvious. Within the past year I have reviewed several log truck cases in which the owner and driver were residents of counties with populations under 5,000. While I don’t want to over generalize, it is not uncommon for jurors on log truck cases in such counties to say, in effect, “we know this logger broke the rules, but so does every other log truck we see every day, and we’re not going to hold this one accountable for doing what we see everyone else doing.” To avoid that, the plaintiff may have to move outside Georgia in order to establish diversity of citizenship required for federal court jurisdiction.

– Law enforcement issues. In counties where the forest products industry is prominent, law enforcement officers are likely to have friends and relatives in the business, and thus may be sympathetic to the loggers. Moreover, most deputy sheriffs and city police are not trained on the requirements of the Georgia Forest Products Trucking Rules, so they don’t know what to look for in an accident investigation. Ignorant of the rules, they don’t know enough to enforce the rules or even to call in state investigators who do know the rules. The result is incomplete investigations, failure to document the facts, blaming the victim, and jumping to the conclusion that the logger bears no responsibility.

– Experts. Many of the prominent expert witnesses who testify capably about interstate motor carrier wreck cases lack the background to be credible expert witnesses in logging and pulpwood trucking cases.

If you or a loved one have been seriously hurt with a brain, spinal cord or back injury, or a family member has been killed, by one of these log trucks, you need an attorney experienced in log truck accident cases, who knows the pitfalls in log truck accident litigation and how to work around them.
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As a trucking accident attorney in Atlanta, I have sometimes wondered how can one predict which truck drivers will be in crashes. Now a study by the American Transportation Research Institute reveals the predictive value of driver records. Drawing on data from 582,772 U.S. truck drivers over a two-year time frame, the study shows that:

* A ‘failure to use/improper signal’ conviction was the leading conviction associated with an increased likelihood of a future crash. A truck driver convicted of this offense had a risk of future crash increased by 96 percent.

Nine additional convictions were also significant crash predictors:

* A past crash – 88 percent * An improper passing violation – 88 percent * An improper turn conviction – 84 percent * An improper or erratic lane change conviction – 80 percent * An improper lane/location conviction – 68 percent * A failure to obey traffic sign conviction – 68 percent * A speeding more than 15 mpg over speed limit conviction – 67 percent * Any conviction – 65 percent * A reckless/careless/inattentive/negligent driving conviction – 64 percent
Prudent trucking companies try to assess the crash risk of drivers. Others just don’t seem to care enough to examine anything. One former employer of a truck driver — whose new employer had not followed the rule requiring background checks — told me “I wouldn’t trust that boy to drive a wheelbarrow.” If the new employer had bothered to call the former employer, he would not have been hired, the new crash would not have happened, and my client wouldn’t have had his back broken.
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Monday morning, an unidentified man died when he drove his Honda into the rear of an unoccupied tractor-trailer truck parked on the shoulder of a southbound ramp on to Interstate 85 in DeKalb County., according to a report by Rhonda Cash of the Atlanta Journal Constitution.

While strange to the uninitiated, this sort of event is common enough that the Federal Motor Carrier Safety Regulations include the following rule:

49 CFR 392.22 Emergency signals; stopped commercial motor vehicles.

(a) Hazard warning signal flashers. Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section. The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b) of this section.

(b) Placement of warning devices–

(b)(1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by Sec. 393.95 of this subchapter, in the following manner:

(b)(1)(i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;

(b)(1)(ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and
(b)(1)(iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.

(b)(2) Special rules–(i) Fusees and liquid-burning flares. The driver of a commercial motor vehicle equipped with only fusees or liquid- burning flares shall place a lighted fusee or liquid-burning flare at each of the locations specified in paragraph (b)(1) of this section. There shall be at least one lighted fusee or liquid-burning flare at each of the prescribed locations, as long as the commercial motor vehicle is stopped. Before the stopped commercial motor vehicle is moved, the driver shall extinguish and remove each fusee or liquid- burning flare.

(b)(2)(ii) Daylight hours. Except as provided in paragraph (b)(2)(iii) of this section, during the period lighted lamps are not required, three bidirectional reflective triangles, or three lighted fusees or liquid- burning flares shall be placed as specified in paragraph (b)(1) of this section within a time of 10 minutes. In the event the driver elects to use only fusees or liquid-burning flares in lieu of bidirectional reflective triangles or red flags, the driver must ensure that at least one fusee or liquid-burning flare remains lighted at each of the prescribed locations as long as the commercial motor vehicle is stopped or parked.

(b)(2)(iii) Business or residential districts. The placement of warning devices is not required within the business or residential district of a municipality, except during the time lighted lamps are required and when street or highway lighting is insufficient to make a commercial motor vehicle clearly discernible at a distance of 500 feet to persons on the highway.

(b)(2)(iv) Hills, curves, and obstructions. If a commercial motor vehicle is stopped within 500 feet of a curve, crest of a hill, or other obstruction to view, the driver shall place the warning signal required by paragraph (b)(1) of this section in the direction of the obstruction to view a distance of 100 feet to 500 feet from the stopped commercial motor vehicle so as to afford ample warning to other users of the highway.

(b)(2)(v) Divided or one-way roads. If a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a divided or one-way highway, the driver shall place the warning devices required by paragraph (b)(1) of this section, one warning device at a distance of 200 feet and one warning device at a distance of 100 feet in a direction toward approaching traffic in the center of the lane or shoulder occupied by the commercial motor vehicle. He/she shall place one warning device at the traffic side of the commercial motor vehicle within 10 feet of the rear of the commercial motor vehicle.

The reason for such a rule is that drivers approaching at the speed limit often do not perceive that a tractor trailer is sitting still until too late to stop, and then impact with an 80,000 vehicle is much like impact with a cement barrier. Moreover, impact with the side or rear of a stopped tractor trailer with typically weak under-ride bars can easily lead to decapitation of occupants of the striking passenger vehicle.

When such incidents get into litigation, the challenge is to prove whether an unmarked tractor trailer or big rig had been sitting on the shoulder more than ten minutes. Often this requires an immediate demand for preservation of electronic data from electronic data recorders and satellite communications systems that many trucking companies employ.

In making such demands, one must anticipate that a trucking company will also demand an opportunity to download data from the electronic control module of the striking vehicle This may require an immediate investment of several thousand dollars in accident reconstruction costs.

One must also anticipate disclosure of cell phone billing records to determine whether the driver was distracted by a cell phone when he collided with the stopped big rig.

If the driver who struck the stopped truck was speeding or distracted, then rules of comparative negligence, contributory negligence and failure to avoid consequences of another’s negligence would reduce or bar tort recovery.

Thus, the starting point for survivors in such a situation may be to immediately check cell phone records and download electronic data from the car, and then make a decision about requesting data from the trucking company.
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Trucking safety practices over the past year and a half have been impacted by adoption of the Comprehensive Safety Analysis (CSA) program.

The CSA has three components that measure safety performance, evaluating high-risk behaviors and crafting appropriate interventions.

For commercial motor carriers, the standards significantly alter how truckers and companies operate and maintain their vehicles and deal with federal compliance. Some of the changes include:

– CSA replaces the old SafeStat system with the Safety Measurement System (SMS). Under the SMS, safety fitness determinations are issued monthly; factors such as driver fitness, unsafe driving practices, vehicle maintenance, crash history and cargo loading or securing impact this monthly evaluation.

– Companies are required to modify their “on-duty” hours and maintain comprehensive electronic travel logs.

– Trucking companies that do not pass monthly safety evaluations are subject to earlier safety interventions, including:

– Early warning letters

– Targeted roadside inspections

– Focused compliance reviews Continue reading →

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