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In trucking accident cases in Georgia, one interesting legal twist is that punitive damages are tried in the second phase of a bifurcated trial, are subject to a “clear and convincing evidence” standard and are generally capped at $250,000. But the same conduct that would support punitive damages can support an award of attorney fees and expenses of litigation pursuant to O.C.G.A. § 13-6-11 in the case in chief under the “preponderance” (greater weight) of the evidence standard. There is no cap on that claim.

Therefore, if a hypothetical plaintiff got a verdict for $5 million compensatory damages and $20 million punitive damages, the $20 million punitive damages would in almost all trucking cases be reduced to $250,000, reducing the judgment from $25 million to $5,250,000. However, with a claim for fees and expenses under OCGA Section 13-6-11, based on violation of Federal Motor Carrier Safety Regulations, the result would be a judgment for about $7 million plus expenses, rather than $5,250,000.

Evidence that appellants failed to comply with mandatory safety regulations promulgated for the benefit people in the position of the injured plaintiff is evidence that the trucking company 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 violation of fire exit safety regulations).
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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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Trucking accident trials often revolve around Federal Motor Carrier Safety Regulations and evidence of how they were violated. Some of the regulations often referred to in cases where tired truckers wreck include the following:

49 C.F.R. § 392.3, Driver Impairment.

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, or 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.

FMCSR, 49 C.F.R. § 390.11 Motor carrier to require observance of driver regulations.

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.

FMCSR, 49 C.F.R. § 390.13, provides that

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

It does not say “no motor carrier.” A company owner who makes irresponsible dispatching decisions may become an individual defendant.

FMCSR, 49 CFR 390.5 defines “person” as follows:

Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals.

FMCSR, 49 CFR § 395.3 Maximum driving time for property-carrying vehicles.

Subject to the exceptions and exemptions in § 395.1:

(a) No motor carrier shall permit or require any driver used by it to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle:

(1) More than 11 cumulative hours following 10 consecutive hours off duty; or (2) For any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty, except when a property-carrying driver complies with the provisions of § 395.1(o) or § 395.1(e)(2).
(b) No motor carrier shall permit or require a driver of a property-carrying commercial motor vehicle to drive, nor shall any driver drive a property-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver’s services, for any period after-
(1) Having been on duty 60 hours in any period of 7 consecutive days if the employing motor carrier does not operate commercial motor vehicles every day of the week; or (2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates commercial motor vehicles every day of the week.

FMCSR, 49 CFR § 395.8 Driver’s record of duty status.

(a) Except for a private motor carrier of passengers (nonbusiness), every motor carrier shall require every driver used by the motor carrier to record his/her duty status for each 24 hour period using the methods prescribed [herein]….
* * * *
(e) Failure to complete the record of duty activities of this section or § 395.15, failure to preserve a record of such duty activities, or making of false reports in connection with such duty activities shall make the driver and/or the carrier liable to prosecution.

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As a Georgia attorney litigating hard-fought trucking accident cases, I often get into cases after the trucking company claims to have discarded driver logs and other records that they are only required to routinely keep for six months.

Then when we try to get driver logs, trip receipts, inspection and maintenance records, etc., in discovery, they respond that they no longer exist.

Sometimes it’s amazing that a company would have been so bold as to discard or destroy those records when they knew there was an accident with injury. If the records were favorable, one might suppose they would have kept them for use in their defense.

The duty to preserve evidence “arises not only during litigation but also extends to the period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir.2001). Therefore, once a party reasonably anticipates litigation, it has a duty to suspend any routine document purging system that might be in effect and to put in place a litigation hold to ensure the preservation of relevant documents-failure to do so constitutes spoliation. Lewy v. Remington Arms Co., Inc., 836 F.2d 1104, 1112 (8th Cir.1988); Thompson v. United States Dep’t of Hous. & Urban Dev., 219 F.R.D. 93, 101 (D.Md.2003).

And, certainly, there is a duty not to initiate a document destruction procedure if the party reasonably anticipates litigation. Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264 (E.D.Va.,2004).
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As a lawyer handling both sides of injury and death cases for decades, I can’t count the times I have searched for sufficient insurance coverage to cover a client’s loss. In trucking, there is at least an endorsement on the trucking company’s insurance policy that protects the public, even though the insurer may have a right to sue its insured trucking company to get the money back.

49 C.F.R. § 387.7(d) permits a motor carrier to meet its financial responsibility in one of three ways: (1) obtaining liability insurance, including an MCS-90 endorsement; (2) obtaining a surety bond; or (3) obtaining written authorization from the Federal Motor Carrier Safety Administration to self-insure. When a motor carrier opts not to use an insurance policy to meet its financial responsibility requirements, then the regulations do not require the carrier to maintain a minimum of $750,000 in insurance.

In practice, we see policy limits of $1,000,000 more often than $750,000.

The MCS-90 endorsement ensures that a motor carrier has independent financial responsibility to pay for losses sustained by the general public arising out of its operations. The endorsement is designed to protect the public, not the policyholder; the obligation the endorsement creates runs to the public, not to the insured. It seeks to ensure that ultimate responsibility lies with the insured trucking company.

MCS-90 does not provide insurance coverage per se. Rather, the endorsement creates a suretyship and carries with it a right to reimbursement.

MCS-90 endorsement of tractor-trailer liability policy requires the insurer to cover any loss under the policy, irrespective of the amount of the policy’s deductible.

MCS-90 endorsement does not create a duty to defend claims which are not covered by the policy but only by the endorsement, such as a vehicle that was not listed. Thus, a trucking company that violated terms of the policy needs to defend itself since the insurance company may be able to sit back until a judgment is entered, pay under the MCS-90 endorsement, and then sue the trucking company to get its money back.
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As Georgia attorney working on trucking accident cases, I often seen why truck drivers’ paper logs are often called “comic books.” In one recent case, for example, a truck driver from Croatia who was trained by some unidentified Russian guy in North Carolina, worked for a trucking company owned by a Bulgarian in Florida, and said he studied the Federal Motor Carrier Safety Regulations by having his 10-year-old daughter translate them from English to Croatian, admitted that he generally filled out his logs the next day. No wonder his logs looked perfect.

In light of such experiences, you can see why I was encouraged to see that National Transportation Safety Board (NTSB) has recommended that all motor carriers to use electronic onboard recorders (EOBRs). The Federal Motor Carrier Safety Administration’s (FMCSA) current proposal calls for an EOBRs mandate only for “repeat violators” of hours-of-service rules. Earlier the NTSB expressed concern that the FMCSA proposal lacks the “resources or processes necessary to identify and discipline all carriers and drivers who are pattern violators.” According to the NTSB,”the only way in which EOBRs can effectively help stem hours-of-service violations, and thereby reduce accidents involving a commercial driver’s reduced alertness or fatigue, is for the FMCSA to mandate EOBR installation and use by all operators.”
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As a Georgia attorney handling trucking accident cases, I often see cases where crashes occurred in bad weather. While most state laws define the standard of negligence liability as “ordinary care,” when a motor carrier driver is driving in adverse weather, an “extreme caution” standard under 49 C.F.R. § 392.14 should preempt any lower standard under state law. “Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a [federal] regulation … imposes a higher standard of care than that [state] law, … the … regulation must be complied with.” (49 C.F.R. § 392.2.)

There is case authority it is reversible error for a trial court to fail to instruct the jury on the “extreme caution” standard in a case where an interstate commercial motor vehicle was operated in inclement weather. This is a higher duty of care than “reasonable or prudent” standard under a state’s basic speed law, and thus operators of commercial motor vehicles are required to comply with regulation. Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005).
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For attorneys representing plaintiffs in trucking accident cases in Georgia, the claim for punitive damages is an important but not always crucial part of the case.

Punitive damages under Georgia law are designed to “penalize, punish or deter” conduct that shows “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Proof must be by “clear and convincing evidence.” O.C.G.A. § 51-12-5.1.

The Federal Motor Carrier Safety Regulations are a starting point for the use of corporate conduct as a foundation for punitive damages.

49 C.F.R. § 390.13 provides that a motor carrier should not aid, abet, encourage, or require its employees to violate any of the rules of the FMCSR.

49 C.F.R. § 392.6 provides that no trucking company may schedule a delivery in such a way that would require the driver to operate his or her vehicle at speeds greater than those prescribed by the rules of the road in effect at the location in question.

49 C.F.R. § 395.3 provides that no trucking company shall permit or require any driver to exceed the maximum hours of driving time allowed under the FMCSR. All trucking companies “shall systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles subject to its controls.” This general duty of a trucking company to maintain its vehicles in good working order includes a duty to maintain repair records and inspection reports and driver reports, which are to be filed by a driver each day on each vehicle driven, 49 C.F.R. § 396.11, and a duty to make periodic inspections of each vehicle, 49 C.F.R. § 396.11.

Courts may also consider the applicable administrative interpretations included in the official Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed.Reg. 16370 (1997). For example, the Regulatory Guidance includes the following official interpretations of the regulations:
Question 7: What is the liability of a motor carrier for hours of service violations?
Guidance: The carrier is liable for violations of the hours of service regulations if it had or should have had the means by which to detect the violations. Liability under the FMCSRs does not depend upon actual knowledge of the violations.
Question 8: Are carriers liable for the actions of their employees even though the carrier contends that it did not require or permit the violations to occur?
Guidance: Yes. Carriers are liable for the actions of their employees. Neither intent to commit, nor actual knowledge of, a violation is a necessary element of that liability. Carriers “permit” violations of the hours of service regulations by their employees if they fail to have in place management systems that effectively prevent such violations.
In interpretation of 49 C.F.R. § 395.8, the regulatory guidance states:
Question 21: What is the carrier’s liability when its drivers falsify records of duty status?
Guidance: A carrier is liable both for the actions of its drivers in submitting false documents and for its own actions in accepting false documents. 62 Fed.Reg. at 16426. In short, “Motor carriers have a duty to require drivers to observe the FMCSRs.” Id.

The national body of law supporting punitive damages in trucking case includes:
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As a Georgia trucking attorney, I sometimes see motor carriers create a shell game in which they claim after a tragic accident happens, to have been acting as a broker or logistics company, rather than as a motor carrier. Of course, when you dig into their marketing materials, they usually represented to shipping customers they were pretty much a “one stop shop” that covered everything from pickup to delivery.

49 C.F.R. § 371.7(b) provides, “A broker shall not, directly or indirectly, represent its operations to be that of a carrier.” A broker may be treated as a carrier if it does not delineate the broker role. See, e.g., KLS Air Express, Inc. v. Cheetah Transp. LLC, 2007 WL 2428294 (E.D.Cal.,2007).
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As a trucking accident trial attorney in Georgia, I’ve become acutely aware of how often a truck driver’s medical condition and even perfectly legal prescription medications can impact safety.

Recently the Federal Motor Carrier Safety Administration issued a warning on the anti-smoking drug Chantix, advising medical examiners “to not qualify anyone currently using this medication for commercial motor vehicle licenses.” Manufactured by Pfizer, Inc., Chantix, ahs seizures, dizziness, heart irregularity, diabetes and more than 100 accidents. The U.S. Department of Transportation warned all of its agencies almost immediately after seeing the report which reported that Chantix was linked to 988 serious events in the last quarter of 2007. This was reported in many places in the media, including this article by Alicia Mundy and Avery Johnson of the Wall Street Journal.
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