Georgia Truck Accident Attorney Blog

Published on: June 19, 2008

Truck safety implications of rising fuel prices

As a trucking accident trial lawyer representing both occupants of passenger cars and truck drivers who are badly injured in trucking collisions, I have been thinking a lot lately about the implications of rising oil prices on the trucking industry in general, and trucking safety in particular.

If truckers are in financial distress, many will be even more tempted to cut corners on hours of service, maintenance, etc., with a foreseeable effects on safety.

The same economic distress will lead some to skip or delay payments on insurance premiums and cut out coverage above the minimum required. As long as there is an MCS-90 endorsement in place, we can recover damages up to the amount of the endorsement, typically one million dollars. However, if truckers can’t maintain insurance coverage, they can’t continue to legally operate.

One possible outcome is that the demise of small truckers may lead to trucking industry consolidation. Some larger carriers really do a better job in managing safety and reducing bad incidents. But it seems that some merely do a better job of cheating, making it harder to uncover unsafe practices.
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Published on: June 19, 2008

Trucking accidents may be documented by DriveCam — if they save the video

By Ken Shigley

As a trucking accident trial lawyer in Georgia, frequently lecturing at trucking litigation seminars around the country, I try to keep up with the latest in trucking safety technology. One recent development is DriveCam, about which my friend Morgan Adams in Tennessee recently wrote on his blog.

DriveCam utilizes a camera mounted in a truck cab that will retain the last few seconds of video of both the driver and what is in front of the truck before and after an emergency event like hard braking, swerving, collision, etc. The information is transmitted automatically to DriveCam headquarters for analysis and then to the truck or bus company. Employers can review data, even when there is not an accident, to analyze what led to the emergency situation. DriveCam thus enables trucking company safety directors to recognize safe drivers and penalize dangerous drivers.

If DriveCam data exists, it can potentially prove or disprove the cause of a collision, eliminating a lot of the swearing contests we encounter now. Some truck drivers may feel that Big Brother is riding with them, but at the same time some may be saved from liability or prosecution by the DriveCam videos. Of course, knowing how many trucking companies destroy records that are not favorable to them, I suspect that the only DriveCam videos we ever get to see will be those that exonerate the driver. If the video shows the driver was falling asleep, I suspect we will either never learn that DriveCam was in the cab or will get a response that, golly, it just wasn’t working that day.
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Published on: June 19, 2008

Georgia truck wreck spills explosive ammonium nitrate

By Ken Shigley

A recent truck accidnet on I-20 about 45 miles west of Augusta, Georgia, involved a truck loaded with 24 tons of ammonium nitrate used both as an oxidyzing agent in explosives and as fertilizer, overturned and began leaking. Three people were reported injured.

Ammonium nitrate mixed with diesel fuel is quite a volatile mix. If this spill occurred in a heavily populated area, and a spark was added, it could have had monumentally catastrophic consequences. Ammonium nitrate is a key component of military explosives such as the “daisy cutter” bomb. It was involved in the bombing of the Oklahoma City federal building bombing in 1995, as well as several accidental explosions in ports around the world over several generations.

Motor carriers hauling explosives must comply with strict “HazMat” shipping regulations and carry at least $5,000,000 liability insurance under 49 C.F.R.§ §387.303. “HazMat” truck drivers must clear security check by the Department of Homeland Security. However, agricultural ammonium nitrate is exempted from the Hazmat insurance requirements under 49 C.F.R.§ 387.301, even though it was agricultural ammonium nitrate that was used in the Oklahoma City federal building bombing.

Go figure.
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Published on: June 19, 2008

Truck accident lawyer selection

By Ken Shigley

Many lawyers think that a tractor trailer crash is just a big car wreck. Not knowing how much they don’t know, they fail to take necessary steps to preserve and develop evidence. So how can you as a consumer identify an appropriate lawyer for a trucking accident case? My friend Morgan Adams in Chattanooga recently wrote on this topic in his blog.

1. A trucking accident trial attorney should have peer review ratings and specialty organization memberships that indicate experience, competence, and a very strong focus on trucking trial practice. Generally, the attorney should be member of his or her state trial lawyers organization (e.g., Georgia Trial Lawyers Association), the American Association for Justice (AAJ), AAJ’s Interstate Trucking Litigation Group, and the Association of Interstate Trucking Lawyers of America. It is a plus if an attorney has chaired continuing legal education seminars in the area of trucking litigation, who are Certified Civil Trial Advocates of the National Board of Trial Advocacy, and who have participated in a meaningful way in local or state bar associations.

2. A trucking accident attorney should have the capacity to fund substantial litigation. The cost of accident reconstruction experts, economists, vocational experts, video depositions of multiple defense witnesses and treating physicians, custom medical illustrations, and extensive travel around the country for depositions can be quite expensive. While the lawyer’s office need not be palatial or in a state of the art office tower, it should have some of the earmarks of success and competence. The key is whether the lawyer has access to funds, often through a large litigation funding line of credit, to fund properly preparing a case for trial.

3. Any lawyer you entrust with handling a catastrophic injury case should have the experience of litigating and trying truck accident cases.
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Published on: June 18, 2008

Trucking companies responsible for negligence of “independent contractor” truck drivers as “statutory employees”

By Ken Shigley

As a lawyer representing folks injured in trucking accidents, I often see trucking companies still trying to claims they are not responsible for an owner-operator truck driver they classify as an “independent contractor.”

However, that is generally just a ruse to fool the uninitiated. A section of the Federal Motor Carrier Safety Regulations, at 49 C.F.R. § 390.5, defines the term”employee” as,

any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.

The Regulatory Guidance to 49 C.F.R. § 390.5, at Question 17, explains:

The term “employee,” as defined in § 390.5, specifically includes an independent contractor employed by a motor carrier. The existence of operating authority has no bearing upon the issue. The motor carrier is, therefore, responsible for compliance with the FMCSRs by its driver employees, including those who are owner-operators.

62 Fed. Reg. 16,407 (April 4, 1997). 49 C.F.R. Chapter III: Regulatory Guidance for the Federal Motor Carrier Safety Regulations, Interpretation to § 390.5, question 17 (1997)(emphasis added). See also 49 C.F.R. § 390.5.

The regulations “create an irrebuttable presumption of an employment relationship” – statutory employment – “between a driver of a leased vehicle furnished by a contractor-lessor and a carrier-lessee. . . . Any negligence on the part of the driver of the leased vehicle is imputed to the carrier-lessee as a matter of law. The common law doctrines of master-servant, respondeat superior and independent contractor are preempted by these regulations.” Johnson v. S.O.S. Transport, 926 F.2d 516, n.17 (6th Cir. 1991).
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