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Several times I have written about the difficult lifestyle of truck drivers, and how that adversely affects their health and the safety of others on the roads. It is virtually impossible to find healthy food or a place to exercise at truck stops across America. So truckers are somewhat more prone than other middle aged guys, become obese and develop cardiovascular illnesses, diabetes, sleep apnea, etc. (Not that I’m such a paragon of fitness either, but at least it’s easy for me to eat healthy, jog around the neighborhood and get to the gym in my office building if I make the time.)

But driving with my son from Los Angeles to Atlanta a few days ago, I noted something even worse affecting truckers’ lifestyle. Through Arizona and New Mexico we saw several truck stops with adjoining casinos. I didn’t stop to see if they have healthy food or exercise facilities, but they surely have places for truckers to drink and gamble away their earnings.

There are no casinos in Georgia, and certainly no truck stop casinos. For a number of reasons, primarily my view of morality, I would be happy to keep it that way.
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As a trucking accident trial attorney in Atlanta, Georgia, I often litigate about trucking accidents. As a seminar speakers, I often talk about them at continuing legal education seminars around the country. On this blog, I frequently write about them.

But last Sunday, I saw one.

While helping my son move his car and his stuff home from California, I was taking a turn driving east of Albuquerque when we saw a column of black smoke just ahead. As traffic ground to a halt, we saw that about 200 yards ahead on the westbound lanes of I-40, one tractor trailer had rear-ended another, and was beginning to burn.

Another bystander said that her husband had broken out a window in the cab of the striking vehicle and pulled the unconscious driver out before his rig burst into flames.

As traffic was blocked in both directions, my son and I waited over an hour, watching as the truck was engulfed in flames and a huge column of black smoke rose into the clear New Mexico sky.

Numerous emergency vehicles responded. Eventually a helicopter landed in our eastbound lanes and evacuated the truck driver.

While we waited, I talked with the drivers of trucks stopped behind us. A bulk freight tanker filled with plastic pellets was stopped behind me at an angle blocking both lanes. One of the other truckers thanked him for blocking both lanes that way, so that others would not get closer to the fire before stopping. He responded that he had no choice. Due in part to handling characteristics with that load, he had a hard time stopping without hitting us, and wound up at an angle across both lanes.

The truck drivers waiting on the road talked some about the new CSA 2010 (Comprehensive Safety Analysis) program coming online soon at the Federal Motor Carrier Safety Administration. A seasoned truck driver (about my age) was concerned that anyone who has been driving over the road for 30 years, with the diet and exercise difficulties that go with that, is bound to have medical conditions that require medication that would be reported under the new system.

They also talked a little about how they manage rest, diet and exercise. Or don’t manage it, as the case may be. One mentioned the near monopoly in the truck stop business, and the lack of healthy food or exercise facilities at truck stops. If the giant players in the truck stop industry would put in healthy food and fitness facilities, it would help a lot in improving truck driver health and public safety.

Eventually the helicopter took off and we were able to drive away. As we passed the burned out tractor trailer, it was difficult to recognize the completely incinerated tractor. Traffic was backed up for many miles on the westbound lanes of I-40 and probably was not cleared for quite a while longer.

No, I don’t know the causes of the crash — fatigue, distraction, speed, following too closely, or even sudden stopping in the middle of an open interstate through the desert.

Fortunately, it was another tractor trailer that was hit. While the trailer of the lead vehicle was destroyed, there was no direct impact to the cab. If a small vehicle had been hit in that manner, and then involved in the truck fire, it is unlikely any occupants would have survived.
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Every time I make my way from Atlanta to Savannah, I enjoy watching the container ships cruising up the river past downtown. They are always stacked high with hundreds of huge freight containers.

Thousands of those containers are unloaded from the ships onto truck trailers and trains at every major port to be transported across the country. Georgia highways are full of intermodal containers imported through the ports of Savannah, Jacksonville and Charleston.

Often the trailers used in these intermodal operations are old chassis repainted to look good but poorly maintained. Too often the trailers that were loaded in Shanghai or Rotterdam contained unbalanced loads that ride fine on a ship but are dangerous in highway curves.

Over the past several years there has been increasing concern about safety of intermodal freight operations.

Now the Federal Motor Carrier Safety Administration has announced plans to add a fifth equipment marking option to its rules, allowing chassis to be identified through a system that uses technology to match equipment to the company responsible for its maintenance.

They hope this will clear the way for industry efforts to launch a global registry for intermodal equipment.

Of more immediate interest to families of people catastrophically injured in crashes of trucks hauling these freight containers is the difficulty of reaching the insurance coverage of the intermodal companies. Often the inland truck hauling is brokered to a small trucking company or owner-operator with only $750,000 to $1,000,000 liability coverage. That sounds like a lot, but when you’re looking at a $20,000,000 life care plan for a catastrophic injury, it’s a drop in the bucket.

Courts in Georgia have had a hard time coming to terms with the totality of intermodal shipping, tending to look at just the tip end of the spear and not at who is throwing the spear.

Last Friday, I spent a day in St. Louis at a seminar by David Nissenberg from San Diego, author of the book, Law of Commercial Trucking. He is a scholar of this area of law, and has painstakingly put together the legal theory to connect all the dots and reach the insurance policies of the ocean shipping companies that bring the containers into the US and load them on the trucks. In a tour de force, he combines international treaties, U. S. maritime laws and regulations, standard maritime bills of lading and other shipping documents, interlocking provisions of the Motor Carrier Act and Federal Motor Carrier Safety Regulations, Restatement of Torts, Restatement of Agency, etc.

David hasn’t published a paper on this. There are no cases on point yet anywhere in the U.S. To persuade a judge who is busy, understaffed, and knows little about this area of the law, will require some masterful explanation.

But when a catastrophic container freight trucking case comes along, we’re ready.

This is a great lesson for those naive lawyers who think an commercial trucking accident is just a bigger car wreck.
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The STAA (Surface Transportation Assistance Act), which also covers truck driver whistleblower cases, gives truck drivers a right to refuse to drive a commercial vehicle when it would violate the law to do so.

Examples include driver fatigue or illness, unwillingness to participate in an illegal activity, or a reasonable belief that a vehicle is unsafe because of worn tires, missing headlights, or low air pressure in brake system. STAA is supposed to protect drivers by preventing firing or other retaliatory action from truck companies. However, without effective legal representation those rights can be meaningless.

I don’t handle STAA claims. I could probably fill up my caseload with them, based on the number of calls I get from truck drivers whose employers insist that they run illegally, but there aren’t enough hours in the day to do everything.

If you are a truck driver whose employer gives you a choice between running illegal or losing your job, you might contact Truckers Justice Center , 900 West 128th Street, Suite 104, Burnsville, MN 55337, Telephone 952.224.9166, Fax 678.791.1728.
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Today a tour bus carrying the Morehouse College band to a football game in Albany hydroplaned, crashed and overturned on I-75 in Henry County, south of Atlanta.

The incident immediately brought to mind the crash of a tour bus carrying the Bluffton University baseball team as it passed through Atlanta on I-75 in 2007, and the crash of a University of West Georgia cheerleader van on I-20 in 1997. I was part of the joint prosecution group in both of those cases.

Several Morehouse band members were taken by ambulance to area hospitals, while others were taken by a transfer bus to be checked out fro injuries.

The Federal Motor Carrier Safety Regulations, 49 CFR §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 . . . adversely affect visibility or traction. Speed shall be reduced when such conditions exist.

The Commercial Drivers License Manual directs that speed should be lowered one-third below the posted speed limit in rainy conditions.

Chances are the bus has a data recorder to document the speed before the bus hydroplaned. My educated hunch is that the speed had not been reduced by one-third.
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A 25 year old Hahira woman was killed on October 20th when an 18 wheeler from Ohio ran a stop sign and her car crashed under the side of the trailer.

Christian Jennings at WALB-TV in Albany, reported that Julie Tyler, who made pictures of school children as a photographer for LifeTouch Portraits, was killed instantly in a side underride with a big rig operated by William Fishbaugh, 61, of Ohio. He was held at the Worth County jail on charges of running a stop sign, reckless driving and first degree vehicular homicide.

According to Georgia State Trooper Scott McClure, “The tractor trailer drug the vehicle down the road about 500 feet.” McClure continued, “He was unfamiliar with the area, but that’s more reason to pay attention while you’re out driving.” .

Fishbaugh is a driver for Dutch Maid Logistics, Inc., based in Willard, Ohio. Dutch Maid is an interstate motor carrier with 91 power units, specializing in refrigerated shipments of fresh produce.

A troubling piece of information is that Dutch Maid has had dramatically unsatisfactory driver safety ratings for each of the last six biannual reporting periods. Moving violation data on Dutch Maid during that time period does not identify individual drivers. Reports of out of service violations by Dutch Maid drivers have primarily involved violation of driver impairment, fatigue and hours of service rules.

Earlier this year, Dutch Maid lost an appeal of a suit against its former insurance carrier over liability insurance issues arising out of a 2001 Michigan crash caused by an inattentive Dutch Maid driver in which two people were killed.

Dutch Maid Logistics is also a defendant in another negligence lawsuit in Allentown, Pennsylvania in 2008.
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As a trucking accident trial attorney in Atlanta, it may appear that I’m always focusing on the negative about truckers, even though I’m often representing innocent truckers against other truckers who injure them.

This Sunday, I want to call attention to a more positive story about truckers. CNN ran a profile of Rev. Joe Hunter, chaplain to truckers, who reaches his mobile congregation reaches out to truckers at fuel stops, in parking lots, on the CB and through a radio show called “Heaven’s Road.” He holds worship services at Wednesday night service at the Truckers Chapel at a truck stop on I-75 south of Atlanta.

Just as it is tough for truck drivers to find nutritious food at places where an 18 wheeler can easily park, Rev. Hunter points out that most churches can’t park an 18 wheelers.
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A prominent highway safety organization, Advocates for Highway and Auto Safety, has petitioned the Federal Motor Carrier Safety Administration to evaluate risks posed by drivers of commercial vehicles using electronic devices and to then issue regulations to limit such distractions.

Electronic distractions that cause concern include cell phones, text messaging, CB radios, email, on-board computers and navigation devices.

Recent studies have shown that driving while talking on a cell phone — even hands free — increases accident risk equivalent to driving with 0.08 blood alcohol, the threshold for DUI, and that texting while driving increases accident risk 23 times.
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While I am an Atlanta trucking trial attorney now, many years ago I was a child at Mentone, Alabama, frequently trekking to Chattanooga with my parents. Our usual route was through Dade County, separated from the rest of Georgia by Lookout Mountain,(historically known as “the independent state of Dade”). While our route was on old two-lane U.S. 11, I was fascinated by the early stages of construction of I-59.

Recently on the short section of I-24 from Chattanooga to Nashville that dips down into Dade County, Georgia, a truck going too fast for rainy conditions lost control, hit another vehicle. Both vehicles crossed into the eastbound lanes and struck two more vehicles. Seven seven people were injured, and some were transported to Erlanger Hospital in Chattanooga. There is no word on their conditions.

The report from WRCH-TV in Chattanooga doesn’t specify what type of truck was involved. If it was a commercial truck governed by the Federal Motor Carrier Safety Regulations, then 49 C.F.R. § 392.14 requires that “extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . rain . .. ”
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As a trucking accident trial attorney in Atlanta, I see all the time how regulatory decisions in Washington impact safety on the roads throughout the U.S. A Senate committee hearing today on the nomination of Ann Ferro as administrator of the Federal Motor Carrier Safety Administration brought that into focus.

Sen. Frank Lautenberg, chair of the surface transportation subcommittee, told President Obama’s nominee for FMCSA director nominee Ann Ferro, at a Senate confirmation hearing, that the motor carrier administration is “an agency in dire need of reform,” and that “given your ties, Ms. Ferro, to the trucking industry … I am concerned about your ability to take the bold action we need to keep Americans safe.”

In her opening statement, Ferro talked the talked about reform of trucking safety regulation in her opening statement:

“Uncompensated time, compensation by the mile or load, professional drivers classified as laborers – these are all aspects of a supply-chain model that rewards squeezing transportation costs out of the equation; factors that shift the cost onto the driving public and professional driver.”

“Furthermore, the agency must get on with considering a universal electronic on board recorder rule, improving the Hours of Service rule, rolling out tougher standards for entry, implementing effective identification and sanctioning high risk carriers.”

The committee did not vote on Ferro’s nomination. Additional questions will be submitted to the nominee, who will have until Tuesday to respond.
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