Georgia Truck Accident Attorney Blog

Published on: September 23, 2009

Nominee for FMCSA chief blasted in New York Times

One of the things I do as a trucking trial attorney in Atlanta, Georgia, is monitor what’s happening with the Federal Motor Carrier Safety Administration in Washington, DC. Ultimately the political and bureaucratic decisions about truck safety regulations in Washington affect the safety of your family and mine on the highways of Georgia.

To say that it’s unusual for the New York Times to take an editorial position on trucking safety is quite and understatement. But it happened today.

Here are excepts from the editorial:

President Obama made a peculiar choice in June when he nominated Anne Ferro, a major trucking industry lobbyist in Maryland, to lead the agency that oversees truck safety. On its face, Ms. Ferro’s selection violates the spirit of Mr. Obama’s decision to limit the ability of lobbyists to enter government as high officials and influence policy from within.

The order bars hiring anyone who lobbied an executive-branch agency within the past two years, which technically means federally registered lobbyists. But it is hard to see how naming a trucking industry insider like Ms. Ferro, the president of the Maryland affiliate of the American Trucking Associations, to lead the Federal Motor Carrier Safety Administration squares with Mr. Obama’s promise of “a clean break” from business as usual.

. . .

Ms. Ferro’s record on road safety includes some pluses. As the chief of Maryland’s motor vehicle agency, from 1997 to 2003, she implemented a graduated licensing system for new drivers and an ignition interlock program for drunken drivers.

But her more relevant experience these past six years was in supporting the trucking industry’s efforts to thwart and defeat policies and programs needed to protect the public and promote the health and safety of truck drivers. Just in January, Ms. Ferro co-authored a letter to The Baltimore Sun essentially defending the Bush administration’s loosening of regulations on drivers’ schedules and driver fatigue in defiance of considerable evidence of danger and two court decisions.

Ms. Ferro’s record, we believe, is disqualifying. With more than 5,000 fatal truck crashes a year, Americans cannot afford conflicts of interest in the running of their truck safety agency.

A friend who is heavily involved in advocacy for highway safety tells me that several truck safety advocates and organizations are actively opposing her nomination. Several of them will be at the Senate confirmation hearing this afternoon. He tells me she is a really nice lady and says all the right things. But safety advocates have heard all the right things for 20 years with no follow-up. When they met with her and Secretary LaHood, there was no specific discussion by the Secretary LaHood about how he will direct her to will bring change to the FMCSA.

More later.
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Published on: September 21, 2009

$50 million verdict today for trucking brain injury case in California

By Ken Shigley

This afternoon in San Jose, California, a jury returned a verdict against two truck drivers, Gordon Trucking, and the state of California for nearly $50,000,000.00 ($49 million plus).

My friend Tommy Malone of Atlanta and Randy Scarlett of San Francisco represented Drew Bianche, a young man who had just graduated from college with a 4.0 GPA and had been accepted to medical school. Drew suffered a severe traumatic brain injury when two tractor trailers approaching from opposite directions on an unreasonably dangerous and narrow roadway sideswiped each other causing one of the trucks to the hit car Drew was riding in as a passenger.

The verdict was all compensatory damages, no punitive damages. Five percent of fault was allocated to the state, and 95% to the truckers.
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Published on: September 19, 2009

Tree trimming bucket truck kills 3 members of family in Walker County, Georgia

By Ken Shigley

Crashes involving specialty trucks of various sorts — crane trucks, concrete mixer trucks, dump trucks, etc. — are often part of my trucking accident personal injury and wrongful death law practice in Georgia. Each type of specialty truck involves somewhat different issues.

Yesterday in Walker County — near where I attended school for six years in Chattooga County — 3 members of one family were killed when a bucket truck used for tree trimming crossed the center line of Highway 136 and struck two vehicles.

The three family members were airlifted to Erlanger Hospital in Chattanooga but did not survive. They were Anthony Thomas Hixson Jr., 36., of LaFayette, his 13 year old daughter, and his brother-in-law, James Eugene Whitaker, 45, of Ringgold.

The bucket truck belonged to Townsend Tree Service, an Indiana based company that has a large fleet of bucket trucks used for tree-trimming, clearance and vegetation management services for power and communication lines, pipelines and roadways. Townsend’s registered agent for service of process in Georgia is two blocks from my office.
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Published on: September 17, 2009

Trucking companies must require employees to follow the rules

By Ken Shigley

As an Atlanta trucking safety lawyer, I find trucking companies trying to disown their driver’s safety violations.

The Federal Motor Carrier Safety Regulations, which are intended to protect safety of the public, require trucking companies to see to it that their employees to obey the driver regulations.

49 C.F.R. § 390.11 requires: “Whenever . . . a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.”
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Published on: September 16, 2009

Atlanta school bus runs over & kills kindergartner

By Ken Shigley

Handling bus and truck liability cases in my Atlanta law practice, I have seen way too many kids killed or seriously injured in bus accidents. Recently I had represented several of the young men who were on the Bluffton University baseball team bus that crashed in Atlanta.

Yesterday in Atlanta, a school bus driver lost track of a kindergarten student who had exited the bus, and ran over the child. According to an article by Alexis Stevens in the Atlanta Journal Constitution, the Usher Elementary 5-year-old pupil was one of six kids to get off at the bus stop, located near the intersection of Vanderbilt Court and Hobart Drive, just north of I-20.

The bus driver has been charged with second degree vehicular homicide and failure to use due regard for school bus driver safety procedure, according to the Atlanta Police Department.

While Georgia law provides broad immunity to public school systems, there is liability to the extent of insurance coverage for negligence in operation of school buses. The immunity issues do not apply to privately operated school buses.
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Published on: September 15, 2009

Role of punitive damage claims in commercial truck crash cases in Georgia

By Ken Shigley

As an Atlanta, Georgia attorney handling many commercial truck accident cases, I am often asked about how important punitive damage claims are in these cases.

In Georgia, punitive damages are allowed “only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

Punitive damages are capped at $250,000 in collision cases in Georgia unless there was an intent to harm, which the evidence would rarely if ever support.

I personally handled a trucking wrongful death and personal injury case where the court allowed a punitive damage claim against a trucking company due to evidence that the company “turned a blind eye” to hours of service violations, and dispatched back to back trips that could not be completed lawfully.

Other trucking cases where punitive damage claims were allowed include:

* a “forced dispatch system” where a truck driver could not refuse a load and keep his job, so that hours of service violations, etc., were inevitable.

* payment for speed of delivery, encouraging drivers to speed
* failure to check driving records, as required by regulations
* rigorous delivery schedule with penalties for late deliveries
* failure to provide maintenance mechanics with necessary tools
* failure to discipline truck driver for violations
* failure to monitor the truck driver’s conduct, failure to conduct any investigation into the driver’s hours of service, re-dispatching the truck driver even though he had exceeded his hour of service limitations; and failure to have effective procedures in place to verify drivers’ hours of service when the company knew that hours of service regulations were in place to protect the safety of the monitoring public
* violation of hours of service rules, fatigued driving, falsification of driver logs, and failure of management to adequately monitor drivers’ hours
* violation of hours of service rules and falsification of driver logs

* combination of knowledge of safety issues, speed, use of radar detector, driver’s history of violations, and lack of qualifications of safety director

* Ignore smoking brakes, failure to stop until brake drum falls apart
* stopped in the interstate’s center lane for approximately 35 minutes before the collision without placing triangular warning devices on the highway, and failure to turn on tractor-trailer lights after it became dark

Some of the evidence that supports a claim for punitive damages is also useful in supporting a claim for “bad faith” attorney fees under OCGA 13-6-11, and for simply convincing a jury that the conduct justifies awarding adequate compensatory damages.
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Published on: July 11, 2009

Trucker admits lies in court, leading to $16 million settlement

By Ken Shigley

As a trucking trial attorney in Atlanta, Georgia, I occasionally have one of those “Perry Mason moments” when the defendant breaks down and confesses that his whole story was a pack of lies. Not often, but it does happen.

According to a report in the Dallas Morning News, this week in a courtroom in Cleburne, Texas, a truck driver for a drilling company made such a confession, leading to a $16 million settlement of a wrongful death case.

The family of Rhonda Kay Henson, 41, sued Pioneer Drilling and its driver for her death after two large pieces of gas well equipment fell from a Pioneer tractor-trailer. One piece, known as a spreader bar, struck Henson’s truck and killed her.

On the witness stand, the truck driver admitted:

– He and other Pioneer officials falsified and back dated documents in his employee file after the accident.

– He was not aware of safety laws and regulations about securing and transporting large loads. Motor carriers are required to instruct employees on the regulations and assure that they comply.

– He had a long history of driving infractions including tickets, accidents, license suspensions and a citation for driving under the influence by a minor.

– He testified that he didn’t know why he had lied to the court and jury.

After that testimony, court recessed and the parties entered into a settlement for $16 million.

The destruction of evidence and the lies do not surprise me. We see it all the time. The surprise is that he admitted it.

A while back, I was taking the deposition of a truck driver in Ohio who had killed a kid in Georgia. Eventually he confessed under oath that he had destroyed and backdated logs, and that he had been driving about double the legal hours at the time of the crash. I flew home thinking I was just the coolest lawyer since Perry Mason. When I called the client, I was told “we’ve been praying that if he had anything to get off his chest, he would.” The prayers apparently worked.

I wonder who was praying in Texas!

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Published on: July 11, 2009

1 killed, 2 critically injured in Savannah collision with 18 wheeler

By Ken Shigley

As a trucking trial attorney working statewide in Georgia, I often see how accident investigations go awry due to the trucking company’s rapid response to crashes, while the victims are unable to tell officers their side of the story and do not retain appropriate lawyers until months after important evidence has disappeared.

Late Thursday night, according to a report from WTOC TV, an 18 wheeler collided with a pickup truck at the intersection of Bay Street and West Lathrop Avenue in Savannah. All three men in the pickup were badly hurt. Joe Brown Jr. , 61, of Savannah died at the scene. Connally Brinson and Ricky Brown were reported in critical condition at Memorial University Medical Center.

This is at a broad intersection on a major thoroughfare about half a mile west of the historic downtown district of Savannah, approaching the docks. The news report contains little detail, but many of the 18 wheelers operating in that area are intermodal transport units, with road tractors pulling poorly maintained trailer chassis on which are mounted shipping containers. On the roads near the Port of Savannah, we often see intermodal tractor-trailers hauling freight containers to or from containers ships. The Federal Motor Carrier Safety Administration has issued new rules for safety of intermodal trailers, but the new rules have not yet been implemented.

Typically, after a catastrophic crash involving a big rig operated by a majlor trucking company, the pattern response is for the truck driver to immediately call the dispatcher, who calls the risk manager even at home in the middle of the night, who in turn calls a defense lawyer in the state where the crash occurred in order to claim work product privilege for anything that is done, and an investigator. The investigator, and sometimes the defense lawyer, may arrive at the accident scene before the debris is cleared. Evidence may be “lost” and the course of police investigation may be affected. They may then make sure that electronic evidence is deleted within a matter of days, and documents are not retained a moment longer than required by law, if that long. In addition, police reports are often prepared without the benefit of input from people in the smaller vehicles, who were killed or seriously injured, while the truck driver and the company’s investigator are able to tell their story to the investigating officer.

That is why it is important for family members of the victims to act quickly to contact a lawyer who knows how to mount a prompt response in order to secure the necessary evidence before it disappears.
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Published on: July 10, 2009

The Smart Consumer’s Guide to Hiring a Great Lawyer

By Ken Shigley

Lawyers who rely on traditional referrals and upon informed consumers researching experience and qualifications are at a distinct disadvantage these days. Many people just respond to a TV or billboard ad because they have no idea how to intelligently choose a lawyer.

Recently I ran across an e-book which you can download — The Smart Consumer’s Guide to Hiring a Great Lawyer. The book lists some excellent criteria for selecting a lawyer, which I have shamelessly annotated with references to yours truly.

* The number of years the attorney has been practicing law. I have practiced law for 32 years, since 1977. That includes a hitch as an Assistant District Attorney prosecuting the full range of state criminal cases, three years in small town general practice, and a decade in an insurance defense firm defending personal injury, wrongful death and insurance coverage lawsuits for insurance companies, corporations and government agencies throughout Georgia. Since 1991, I have had a plaintiffs’ personal injury and wrongful death practice.
* The attorney specializes in the area of law that pertains to your case. For 18 years, my practice has been almost entirely representation of plaintiffs in personal injury and wrongful death cases. For a decade before that I handled the defense side of such cases. About 75% of my practice now involves commercial truck and bus crashes.
* The lawyer has good trial experience — actually takes cases to trial — not just going to court for hearings. I have tried about 125 cases to verdict before juries. I have had to document my trial experience for board certification with the National Board of Trial Advocacy in 1995, and for re-certification in 2000 and 2005.
* The attorney has a good track record and wins at trial. Recently, I have won jury verdicts for $2.3 million in a broken leg case in a conservative rural county in northwest Georgia, and $1.25 million for a cervical fusion despite strong evidence of assumption of the risk. Other cases during the same time period have settled favorably before or during trial because the other side knew we were prepared to take them to verdict.
* The lawyer has a good understanding of or experience with injury cases that are similar to yours. I have successfully handled cases involving wrongful death, spinal cord injury, brain injury, burns and back injuries, Competent handling of any of these cases requires a solid understanding of insurance law.
* The attorney has been recognized with awards and distinctions. Read my bio. Among other things, I’m a Certified Civil Trial Advocate of the National Board of Trial Advocacy, rated as a “Super Lawyer” in Atlanta Magazine, listed among the “Legal Elite” in Georgia Trend Magazine, have an AV rating in Martindale-Hubbell Law Directory, and am in the Bar Register of Preeminent Lawyers. Currently, I am the elected Treasurer of the 40,000 member State Bar of Georgia. (“He who tooteth not his own horn, getteth it not tooted.”)
* Quality of the lawyer’s website content is high and is very informative. See atlantainjurylawyer.com, georgiatruckingaccidentattorney.com, https://www.georgiatruckaccidentattorneyblog.com and atlantainjurylawblog.com. I had the first law firm website in Georgia (1996) and the second lawyer blog in the state.
* The attorney is the author of instructional books, articles, videos, etc. In addition to the links above and numerous articles and seminar papers, I am nearing completion of a book, tentatively titled Georgia Personal Injury Practice, with publication by West anticipated in early 2010.
* The lawyer is often called to speak to professional legal organizations and law schools. For a decade I served on the faculty of Emory University Law School’s Trial Techniques Program. In the past 16 years I have spoken at dozens of continuing legal education seminars. That has included chairing the Georgia Insurance Law Institute, Georgia Personal Injury Practice seminars for several years, and the Southeastern Motor Carrier Liability Institute. Currently, I am a trustee of the Institute for Continuing Legal Education in Georgia. Within the past three years I have spoken at seminars on trucking trial practice in Atlanta, Chicago, New Orleans, Nashville, St. Louis and Las Vegas. This month I am scheduled to speak on trucking litigation at seminars in San Francisco and at Amelia Island, Florida.
* The law office offers real client case studies. In the interest of client confidentiality, and to avoid giving opponents insights into litigation strategies, we don’t put much of that online. However, I can discuss relevant experience in past cases when we meet in person, though the identifies of client are always fully protected.
* The firm or lawyer has excellent client references or testimonials. A couple of years ago in the midst of a tough case, a client called me a “sheep dog.” (Read the explanation.) Also see references and testimonials at Kudzu.com and Avvo.com.
* The attorney is knowledgeable and confident. See everything linked above.
* The lawyer understands that your case is unique and listens to your needs. Check.
* The law office staff (receptionist, legal assistants, and paralegals) is courteous and responsive. Check.
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Published on: July 7, 2009

Wisconsin teen killed in Albany crash

By Ken Shigley

Disaster struck a Wisconsin family on Saturday while passing through Albany, GA, returning from vacation. A pickup truck that swerved from the oncoming lane on a four-lane state highway northeast of Albany.

According to a report in the Tomah Journal, Jesse Parker, 17, of Tomah, Wisconsin, was killed. HIs sister, Gabrielle, 16, was in critical condition. Their parents, Bradley and Jennifer Parker, were reported in good physical condition, though their grief must be unbearable.

The driver of the pickup, Janette Norem, 45, of Cordele, Ga., also died in the crash. A tractor trailer was also involved in the incident.
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