Articles Posted in Trucking litigation

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In a few hours I will fly home to Atlanta after speaking at the American Association for Justice Interstate Trucking Litigation Group continuing legal education seminar.

The faculty at these national seminars form an invaluable nationwide network of knowledge, contacts and resources. If you are a lawyer seeking to handle any trucking cases for plaintiffs, I urge you to join the ITLG. Whenever I speak at these programs, I learn a great deal more from others than I can possibly teach them. While I learn something from almost every speaker, the faculty dinners may be the most valuable part of my participation.

Las Vegas — “Sin City” — has never been my cup of tea. But I can walk through that environment without finding it particularly tempting, and jog down Las Vegas Boulevard at dawn (as I did Saturday morning) while there are still plenty of people wandering in and out of casinos with drinks in their hands. It will be good to et home to Atlanta tonight.
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As a trucking trial lawyer in Georgia, I often encounter defendants seeking to exclude evidence of corporate misconduct by just admitting that that they are responsible for the driver. Rather than letting into evidence the whole story of the corporation’s systemic disregard for safety for years, they try to focus on a couple of second on the road and then engage in subtle character assassination against the person who is injured or killed.

For a long time that worked. But now, as an illustration of the law of unintended consequences, tort reform may bring an end to that tactic.

The General Assembly of Georgia in 2005 passed a tort reform bill that includes O.C.G.A. § 51-12-33, as follows:

(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

In other states that similarly require allocation of fault between defendants, courts have held that the jury may be required to allocate percentages of fault between an employee driver and his employer against whom separate claims similar to negligent training, entrustment, hiring and supervision are made.

In Tennessee, “negligent entrustment does not create vicarious liability and the jury must allocate fault between the defendants.” Ali v. Fisher, 145 S.W.3d 557, 564 (Tenn., 2004).

In Kansas, “fault in a negligent entrustment case must be apportioned between the entrustor and the entrustee.” McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982).

In Texas, evidence that a driver trainer had only a weekend training course and never failed a trainee, and released a truck driver to drive solo before the terminal manager approved him to drive solo was sufficient to constitute a jury question on a claim of negligent training. Builders Transport v. Grice-Smith, 167 S.W.3d 1 (Tex. App. – Waco, 2005)
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As a trucking accident trial lawyer in Georgia, I find myself spending a lot of time in conference rooms for the depositions of truck drivers and trucking company owners. Since I sometimes represent truck drivers who are injured by the negligence of other truck drivers, it is not uncommon to spend a very long day with truckers on both sides of the table.

At this point few things surprise me. A few examples from depositions this week in a small town far from the nearest interstate highway:

* An owner of a certified interstate motor carrier for ten years was completely unaware that a motor carrier is responsible for leased trucks, the drivers of which are deemed to be employees of the motor carrier. That has only been the law since 1956. It is amazing how many people in the trucking business — and how many judges — are totally unaware.

* A motor carrier that never did anything to verify driving records or prior employment, never required drug tests, never maintained driver qualification files, never required drivers to agree to follow the Federal Motor Carrier Safety Regulations, and never audited driver logs.

* A truck driver who thought he was still legal to drive 17 hours and 45 minutes after he reported for duty at 3:30 AM. The federal hours of service regulation limits truckers to driving 11 hours out of 14 hours on duty.

* A plaintiff truck driver who was appalled at the degree of ignorance of the trucking business on the part of the carrier and driver that slammed into him, costing him many months of lost wages and the necessity of surgery.

The defendants don’t seem like bad guys. Just untrained and uninformed. As one of them said, the case was a “wakeup call.” It’s an expensive way to learn.
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Individuals and families who suffer catastrophic loss due to trucking accidents always face hardship. In the midst of a the worst recession in a generation, the hardship is often even greater. Responding to that harsh reality facing our potential clients, I have adopted a new fee schedule that cuts average fees by more than 10%. And, as my own small scale “bailout plan” for injured individuals, I have adopted a new lower fee category for early settlements.

This fee schedule applies only to select auto and truck accident cases in which I am hired directly by an individual or family who assists by gathering police reports, photos, medical bills, and certified copies of medical records. I don’t accept every case, and do require full disclosure of factors in the client’s background that could adversely affect value of the case. Higher fees percentages apply to other categories of cases, such as products liability, professional liability, etc.

Recession Fee Schedule

Settlement within 45 days after sending demand package to insurance company and before suit is filed.

Normal Rate: 33 1/3%
Recession Rate: 25% (new early settlement category)

This discounted fee rate is available only if I am hired within one year after the accident and the client obtains the police reports and medical bills and records. Early settlements are seldom optimal settlements, but the decision belongs to the client.

Settlement after suit filed and before entry of pre-trial order

Normal Rate: 33 1/3%
Recession Rate: 29%

Settlement between entry of pre-trial order and conclusion of trial

Normal Rate: 40%
Recession Rate: 35%

Settlement on post-trial appeal, after appeal brief written

Normal Rate: 45%
Recession Rate: 40%

If I advance litigation expenses for experts, depositions, etc., as is usually necessary, I will be reimbursed at the time of settlement. I use a line of credit for funding of litigation expenses and pass through to the client the actual interest charged on those funds.

All contingent fees are calculated as a percentage of the total amount recovered from the party at fault or its insurance company. Representation includes efforts to negotiate compromises with lienholders, but any legally enforceable lien for medical expenses, etc., must be paid out of the client’s share of any recovery.

In trucking cases that go to trial, we sometimes have opportunities to add to other damages a claim for attorney fees and expenses. For example, violations of mandatory motor carrier safety rules may be the basis for a jury to add an award for attorney fees for “bad faith” The extent to which an insurance company explicitly considers a claim for fees and expenses in pre-trial negotiation varies.

Call (877) 778-7944 (toll free) or contact us online.
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A Kansas federal court jury has awarded a $23.5 million verdict for a serious spinal cord injury arising from a 2006 wreck in New Mexico, according to a news story by Ron Sylvester of the Wichita Eagle. The judge reduced the amount to $15.3 million because the jury decided the driver of the other truck was only 65 percent at fault.

A Swift Transportation truck driver was backing up from a rest stop onto the highway when she hit a Yellow Freight truck. The driver of the Swift Transportation truck tested positive for methamphetamine but claimed she was rear-ended. Accident reconstruction proved that story to be false.

The driver of the Yellow Freight truck was killed and the passenger / co-driver had a severe spinal cord injury. This verdict was for the spinal cord injury victim. The wrongful death case is set for trail next spring.

This was not the biggest verdict against Swift Transportation. Last year an Arizona jury awarded $36.5 million to the family of a man killed in a collision with Swift trucks.

At this firm we frequently represent truck drivers who are injured by the negligence of other truckers.
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A tractor trailer driver going too fast to see his way through dense fog Monday morning in Fresno, California killed a young woman on her way to work.

According to a report by Jim Steinberg and Vanessa Colón of The Fresno Bee, a big-rig drive Martin Nelson, 22, of Fresno, failed to see stopped traffic in heavy fog. He struck a Ford Explorer, killing the woman inside.

At least two critically important provisions of the Federal Motor Carrier Safety Regulations appear to have been violated here.

First, 49 C.F.R.§ 392.14 requires:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . . rain, dust, . . . adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.

Two California court cases have held that a trial court must instruct a jury on the federal “extreme caution” standard of care rather than the regular negligence standard under state law. Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001); Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). See also, George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006).

Second, 49 C.F.R. § 392.1 requires:

Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.

This case involves a 22-year-old truck driver. My hunch, based on experience in trucking cases, is that his employer checked to see that he had a CDL (Commercial Driver’s License, checked to see if he had any moving violatons in the past three years, and tossed him the keys. I seriously doubt that the employer made any efforts at all to assure that he understood and appreciated the need to slow down or pull over when hazardous driving conditions made operation of the tractor trailer unsafe.

As a result, an innocent motorist is dead and her family grieves.

The challenge facing an attorney handling such a case is often to educate judges who don’t even know that they are ignorant of motor carrier safety law. That is a continuing challenge as it requires getting a busy judge to focus on a body of federal law with which he or she may have great familiarity. Too many lawyers and judges think a tractor trailer crash is “just a big car wreck” and fail to recognize the legal and technical issues that must be considered.
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In my trucking litigation law practice, I all too often see fatal truck accidents that happen in bad weather Despite a federal safety regulation requiring “extreme caution” in hazardous weather, and instructions in the Commercial Drivers License Manual to slow down by at least one-third, truckers under economic pressure from employers, shippers, and sometimes their own creditors, too often speed ahead through rain and snow.

The most recent such crash in the news was yesterday on I-81in Virginia’s Shenandoah Valley, a road I know well.

It happened about 11:30 a.m. near New Market, Virginia. The road was slickened by snow. A big rig operated by Jose Alberto Sarmiento of Texas, hit several vehicles before rear-ending of a Ford Escort, killing three members of a Virginia family.

According to a report by Pete DeLea in the Daily News Record of Harrisonburg, VA, Sarmiento has been charged with reckless driving and three counts of felony involuntary manslaughter.

The Federal Motor Carrier Safety Regulations, 49 C.F.R. § 392.14 requires:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

Every reported case that addresses the issue agrees that it is reversible error for a trial court not to instruct a jury on this “extreme caution” standard.

In Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001), a tractor trailer sped through blowing snow until striking another tractor trailer. The trial court denied a request to charge on the “extreme caution” standard under 49 C.F.R.§ 392.14, instructing the jury instead on the state standard of ordinary negligence. The appellate court reversed, holding that the trial court should have charged on the higher federal regulatory standard rather than the lower standard provided by state law. The same decision was reached in Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). Clearly, if the federal “extreme caution” standard preempts a state rule of “ordinary care,” the reasons are even stronger for it to preempt a state standard of “willful or wanton misconduct.”

The Minnesota Supreme Court in George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006), held that it was reversible error to give a “curative” instruction contradicting an attorney’s argument that a “reasonable care” standard did not apply, even though the full instructions included reference to standards of “utmost care” and “extreme caution.”

In Kentucky, Jurek v. Hubbs, 2004 WL 1487116 (Ky.App.,2004), involved denial of the plaintiff’s motion for directed verdict based on 49 C.F.R.§ 392.14 rather than jury instructions. However, the court recognized that the Federal Motor Carrier Safety “regulations govern the operation of commercial motor vehicles in the United States. To the extent that they establish a standard of care higher than the law, ordinances, or regulations of a particular state jurisdiction, a commercial driver must comply with the FMSCR.”

The Virginia Supreme Court held, in Kimberlin v. PM Transport, Inc., 264 Va. 261, 563 S.E.2d 665 (Va.,2002), that it was reversible error to direct a verdict for the defendant where there was a question of fact whether truck driver violated the duty created by 49 C.F.R.§ 392.14 to exercise extreme caution under hazardous conditions and whether violation of such duty was a proximate cause of the accident. The court noted that while violation of the regulation does “not constitute negligence per se [It] simply creates an expanded duty of care for the operation of commercial motor vehicles under the conditions stated therein.”563 S.E.2d at 668-69.
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As a lawyer handling catastrophic trucking accidents, I have repeatedly seen the deadly effects of driver fatigue as truckers are pushed beyond their physical limits by trucking companies and shippers.

Now the National Transportation Safety Board on Tuesday recommended that trucking companies and the government place increased emphasis on making sure truck drivers follow regulations governing proper rest. Additionally, officials at the NTSB recommended that the government should investigate the use of alarms and other devices to monitor drivers’ alertness. Experts estimate that fatigue is responsible for one in eight large-truck crashes.

The NTSB also called upon the Federal Motor Carrier Safety Administration to step up enforcement of trucking companies, making sure their record-keeping is up to date and drivers are being given adequate time to rest.

Investigators also debated the use of technology designed to warn of impending collisions and automatically engage the brakes. They discussed concerns that automatic braking could interfere with the stability of large rigs, so the board recommended that the National Highway Traffic Safety Administration study the technology and mandate its use if it proves effective.
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As a truck accident trial lawyer in Atlanta, I’m puzzling over how the falling dominoes in the current crisis on Wall Street will impact the trucking and insurance industries.

High fuel prices, hurricanes, dependence on foreign oil, the subprime mortgage mess, the economic rise of China and India, the cost of war in Iraq and Afghanistan, and deferred spending on American infrastructure combine to affect both trucking and insurance.

Oil prices have risen due in large part to the increased world demand accompanying the economic development of China and India, while we are dependent upon Arabs, Russians, etc. for our supply. On the other hand, oil prices are moderated by any economic slowdown that decreases demand.

Hurricanes, which may be increasing in intensity due to global warming, temporarily impact fuel prices as they hamper production, refinery and port capacity on the Gulf coast. Payment of hurricane losses impacts the insurance industry that has already been impacted by the financial mess.

In trucking, high fuel costs have both direct and indirect effects. The direct impact of high fuel prices on truckers is obvious. Moreover, I have heard from truckers that motor carriers collect fuel surcharges and too often fail to pass it on to independent owner operators who actually purchase the fuel. The indirect impact is on demand, as shippers shift more long-haul business from trucks to rail. Any slowdown in the economy further depresses demand for shipping.

As more shipping shifts from long-haul trucks to multimodal freight logistics systems involving both long-haul rail and short-haul trucking, we are likely to see more freight containers bolted to poorly maintained trailer chassis. We will see a shift in the technical, regulatory and insurance issues involved in trucking accidents that result. Unfortunately, some judges who have poor understanding of trucking regulations and case law will not comprehend what is going on and render simplistic judgments with devastating impacts on innocent victims. The challenge for lawyers will be to ferret out the details of business relationships in order to overcome the multiple layers of defenses.

Under economic pressure, we can expect many trucking companies to cut corners on all aspects of safety. Those companies that carry more insurance than the law requires will be tempted to bet the company that, despite compromises on safety, they won’t face catastrophic injury claims.

There is already an ongoing shakeout in the trucking industry. That will continue. I keep hearing reports of owner operators just walking away from rigs they can’t pay for any more Some of those used trucks will wind up being exported to other countries. I expect we will see a trend toward reduction of trucking industry capacity and consolidation in the trucking industry.

At the same time, the financial crisis that began with the meltdown in subprime mortgage-backed securities has reached beyond investment banking to the insurance giant AIG. Laying aside any feelings of schadenfreude (joy about another’s misfortune) due to the arrogant corporate culture of AIG under the leadership of former CEO Hank Greenberg, we have to recognize the prominent role of AIG in the insurance industry. As the implications of its downfall ripple through the insurance industry, I expect to share the pain.

While AIG is the teetering giant in the news today, we will soon find that the impact of the financial crisis is widespread in the insurance industry, affecting both the insurance companies that are familiar to the public and the reinsurers that insure the insurance companies. If reinsurers begin to fail, the shock waves will reverberate throughout the insurance industry.

The insurance industry has a long history of blaming injury victims and trial lawyers for its own investment losses. It seems that every financial crisis affecting insurers’ investments is soon followed by a new round of premium increases. Unwilling to accept responsibility for investment losses, insurers blame the little guys and campaign for a new round of “tort reform.”

Due to the financial meltdown related to securitization of subprime mortgages, we will likely see increasing insurance premiums for everyone, including truckers. Many truckers who are already struggling will be put out of business by increases in fuel and insurance costs unrelated to anything they did wrong.

As the truckers cut costs, safety management will be one of the first things cut. The end result will be that more people will be killed or injured. Lawyers like me will represent the victims. Insurance and trucking companies will fight even harder to avoid paying claims. Stubborn refusals to pay legitimate claims will result in more trials of cases they should settle, and more large jury verdicts.

In this environment more than ever, families that are devastated when trucking companies operate in an unsafe manner need to understand that the insurance companies send “rapid response” teams to scenes of serious accidents, and will try to lull them into complacency while crucial evidence is “lost” or destroyed. Time is of the essence as it is essential to take early action to preserve evidence. We are prepared to fight the good fight against trucking and companies that are determined to avoid and delay payment of legitimate claims.
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As a trucking accident trial lawyer, I occasionally see trucking companies try to evade responsibility for their driver. Generally, that is covered adequately by 49 C.F.R. § 390.5 which in the interstate trucking context defines “employee” to include “an independent contractor while in the course of operating a commercial motor vehicle.”

But when a really devious trucking company comes up with a scheme to try to evade that responsibility, we can fall back on what courts used before enactment of that “statutory employee” rule.

Before 1956, courts could rely upon the Restatement rule that, “An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.” Restatement (Second) of Torts § 428.
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