Georgia Injury Lawyer Blog

This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 10:

10. Is my case likely to settle or will it go to trial and, if so, how long will the process take?

Answer: Over 90% of all serious injury claims are settled by means of compromise. While every case is different and dependent upon the facts involved, most cases do settle but sometimes it takes considerable time to achieve a settlement. This is because there are always unique issues concerning whether the at fault defendant’s liability is indisputably established and whether they have sufficient insurance coverage to pay all damages caused by their negligence. If there is sufficient coverage, and damages are clearly demonstrated, settlements can occur on a quicker basis than those cases where liability is disputed and/or the damages are difficult to assess.

Many times, injured individuals have prior medical histories which complicate settlement discussions. If someone with a bad back is injured in a hypothetical automobile collision, in such a case it is always difficult to separate the wheat from the chaff. Was the back already injured such that the new injury merely constituted an aggravation and, if so, to what extent was the problem aggravated by the trauma? These are difficult questions to resolve and many time reasonable men can differ over the value of such claims. The good news, again, is that in 90% of all cases, a compromise is worked out and a settlement achieved.

The time it takes to resolve a serious injury case, again, is dependent upon the facts involved. The clearer the evidence the quicker the settlement. The more ambiguities are involved in the case with respect to the issue of liability for the damages and the damages, the longer the process takes.

Continue reading "Georgia Serious Injury Cases: Frequently Asked Question Number 10" »

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Posted In: Automobile Accidents , Torts , Truck and Tractor Trailer Accidents , Wrongful Death

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Our Atlanta truck wreck lawyers handle automobile accidents involving personal injury and death claims frequently. Many of those accidents involve tractor trailers owned and operated by trucking companies, also known as motor carriers. These trucking companies fall into two categories: (1) interstate carriers and (2) intrastate carriers. Interstate carriers are those that operate and carry cargo across state lines and intrastate carriers operate entirely within the boundaries of a particular state. Those trucking companies that operate across state lines are required to register with the federal government and comply with various federal laws. Intrastate carriers need only comply with state laws although some states have adopted federal regulations as their own. Lawyers who litigate truck wreck cases are familiar with these laws and carefully scrutinize the facts of a case to determine whether there has been compliance by the truck driver and the trucking company. There are very important differences between the federal regulations that apply to interstate carriers and those regulations that apply only to intrastate carriers, none the least is the difference in the amount of liability insurance they are required to carry.

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Posted In: Automobile Accidents , Truck and Tractor Trailer Accidents , Wrongful Death

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This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 7:

7. If the at fault driver has no insurance coverage whatsoever, can I recover for my injuries under my own policy?

Answer: The answer is yes but only if you have uninsured/underinsured coverage under your own automobile policy. If an at fault driver is driving illegally without insurance, he or she is considered to be uninsured by operation of law. There simply is no insurance coverage and therefore they meet the definition of an uninsured driver. Thus, if you are injured by an at fault driver who has no insurance coverage policy at all, if you have been wise enough to purchase uninsured/underinsured motorist coverage as part of your own policy, you can file a claim against your carrier.

The good news here is that the premiums for an innocent insured cannot be raised if a claim is made for uninsured motorist coverage. Thus, in a hypothetical case where an individual causes an accident and he or she has no insurance coverage, one can make an application under one’s own policy for uninsured motorist coverage without a rise in their premiums. The law forbids an insurance company from raising the premiums of their insured simply because a claim is made particularly in the context of a claim being made by an innocent third party who has done nothing wrong but has only made a claim for paid coverage, the claim being necessitated by the acts of an at fault third party.

All of our readers are well advised to review their insurance policies carefully to determine whether they have uninsured/underinsured coverage. If they do not, we would recommend that they meet with their insurance agent, review their budget and purchase as much uninsured/underinsured coverage as is possible. This type of coverage protects the policyholder from the situation where the at fault driver has no insurance coverage or is underinsured, meaning that they have less insurance coverage than would provide complete compensation for the damage inflicted. We encourage all of our clients to study their policies to make sure that they have carefully reviewed this very significant issue and in situations where the family budget will allow the purchase of such coverage, it is a wise investment and form of protection that may be needed and could be crucial in a particular case, particularly where serious injuries are involved.

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Posted In: Automobile Accidents , Torts , Truck and Tractor Trailer Accidents , Wrongful Death

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This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 4:

4. If I obtain a settlement from the at fault defendant, do I have to pay taxes on my settlement?

Answer: Restitution for a loss is not considered to be income. According to the majority view and interpretation of current IRS law, if an injured individual obtains a settlement from an at fault third party, that settlement is not taxable. There are exceptions to this rule, however, with respect to punitive damages. If a jury returns a verdict for punitive damages in addition to compensatory damages, the punitive damage portion of the verdict is taxable. To date, most experts seem to agree that any verdict returned in a personal injury case is not taxable absent a verdict for punitive damages as well. This is the general view of the tax laws as pertains to personal injury settlements. While different variations of a claim could subject a particular claim to taxation, most tort claim settlements are not taxable because the monies obtained in settlement are not considered to be income by the IRS but rather are considered to be restitution for a loss, something by definition separate and distinct from traditional forms of income.

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Posted In: Automobile Accidents , Torts , Truck and Tractor Trailer Accidents , Uninsured Motorist Coverage , Wrongful Death

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As personal injury attorneys who handle many cases involving very serious injuries, we are frequently asked questions by clients and family members about matters commonly of concern to them. In order to provide our readers with some general guidance about serious injury cases in Georgia, we have decided to do a series of blogs on frequently asked questions in the context of such cases. This entry shall address the first of many of such questions, with future blogs on other FAQs to follow.

1. Who pays for my medical bills while I am recovering from my injuries?

Answer: You do. In Georgia, we do not have a “Pay As You Go” rule. In a hypothetical automobile accident where it is admitted that the other driver is at fault, there is still no duty of that driver or his insurance company to pay medical expenses for the injured victim as they are being incurred. Instead, the injured individual is required to use his or her own resources to pay for medical expenses as they are being incurred. If the expenses incurred exceed available insurance coverage, the insurance carrier for the at fault driver may decide to tender available coverage without further delay, but there is no legal requirement that they do so. However, if the medical expenses being incurred do not exceed available coverage, typically, such bills will not be paid until all medical reports are made available for review to make sure that the incurred medical expenses are related to the injuries caused in the hypothetical collision. Thus, in Georgia, as in many other states, it is imperative that the public protect itself through health insurance where it is possible to do so for budgetary and other reasons. If someone does not have health insurance, it then becomes difficult to obtain necessary medical treatment after one has been injured. Nonetheless, the at fault driver and its insurance carrier do not have to pay for necessary medical treatment after an accident, rather, the injured individual must pay for his or her own treatment and then seek reimbursement from the at fault driver and insurance carrier for those expenses later.

Another way that the public can protect itself is to purchase as part of their own automobile insurance policies what is known as Medical Payments coverage. Medical Payments coverage is paid regardless of fault if such medical expenses are incurred as a result of an automobile accident. Even without health insurance coverage, the public can protect itself by purchasing Medical Payments coverage as a part of their own automobile liability insurance policy. While all drivers are required to purchase minimal amounts of liability insurance coverage to protect other drivers, the public may protect itself through Medical Payments coverage which can pay medical expenses up to the limits of such coverage regardless of fault provided the expenses are proven to have arisen out of an automobile accident. This coverage can be important in serious injury cases because if the injured individual does not have other available health insurance then the medical payments coverage can pay medical expenses as they are being incurred, regardless of fault.

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Posted In: Automobile Accidents , Torts , Truck and Tractor Trailer Accidents , Uninsured Motorist Coverage , Wrongful Death

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Our truck accident attorneys constantly handle cases involving dangerous trucks and tractor-trailers on the highways. Now, it appears even more dangerous trucks will begin appearing on the U.S. highways after the Bush Administration last week opened the roads of this country to another Mexican trucking firm. There are now 12 Mexico based trucking carriers which have been granted authority to operate in the United States.

The consumer interest group Public Citizen has issued a strong condemnation of this action taken under a provision of the NAFTA treaty which has started to allow large trucks and tractor - trailers open access to U.S. highways. Through its President, Joan Claybrook, former administrator of the National Highway Traffic Safety Administration, the organization issued the following statement:

Today, the Bush administration spat in the public’s face by allowing full access to U.S. roads to yet another Mexico-based carrier — despite Congress’ clear intent that the reckless NAFTA trucking pilot program be brought to an end.

The Federal Motor Carrier Safety Administration (FMCSA) announced today that the Baja-based carrier Madereria Las Lomitas is now authorized to send a truck throughout U.S. roads. That means 12 Mexico-based carriers are now sending 57 trucks across the U.S. and are no longer restricted to the border zone. This announcement comes on the heels of the administration’s shocking statement that it would continue with the NAFTA trucks pilot program even though President Bush last month signed into law an omnibus appropriations bill that cut all funds for the program.
FMCSA’s purposeful defiance blatantly disregards the newly passed federal law. The appropriations provision prohibits using any funds to “establish” a pilot program. The dictionary’s definition of “establish” includes “to introduce and cause to grow and multiply.” FMCSA has told reporters that the law bars only the “establishment” of new pilot programs and that its current pilot program — the exact same one that prompted Congress to cut off funding — was “established” in September 2007. Yet FMCSA continues to authorize new carriers, further “establishing” the program in any meaning of the term.

This dubious interpretation isn’t just tortured logic — it’s a willful repudiation of the clear intent of Congress to end this pilot project. Congress has repeatedly and overwhelmingly denounced the flawed program as dangerous and unjustified. The Bush administration’s insistence on pushing forward, despite requirements to put the public’s safety first, forced Congress to cut funding for the project.

It is absolutely unacceptable for the administration to pick and choose the laws it will respect. FMCSA has no basis to ignore this law and in doing so shows it has no regard for the well-being of American drivers.

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Posted In: Truck and Tractor Trailer Accidents

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On November 15th, United States Senator Dianne Feinstein of California wrote to the U.S. Department of Transportation urging the department to revisit its efforts to improve highway safety by requiring electronic onboard computers on all large trucks and tractor trailers. Senator Feinstein’s letter was prompted by two recent deadly accidents on California interstates involving tractor-trailers. In the letter, Senator Feinstein discussed the risk of long distance truck driver fatigue and requested information about current efforts to address what she deems to be a growing problem.

According to Senator Feinstein’s letter, the regulations which require truck drivers to record their hours of service in written log books continues to tempt drivers to falsify their books, and allow them to drive in excess of the hours deemed safe.

A study by the Insurance Institute for Highway Safety revealed that about a third of the drivers admit to often or sometimes omitting hours from their log books. Feinstein’s letter pointed out that even more disturbing, the Institute report disclosed that the percentage of drivers who reported dozing at the wheel at least once during the past month rose from 13% in 2003 to 21% in 2005.

In February, the Federal Motor Carrier Safety Administration (FMCSA) proposed to mandate electronic onboard recorders for motor carriers that display a pattern of violating the hours of service regulations. The FMCSA estimated that if its proposed rule were in effect, about 930 motor carriers employing about 17,500 drivers would be subject to it. The threshold for mandatory onboard recorders would be a finding based on review of hour of service records on each of two compliance reviews conducted within a two-year period that the carrier had a 10% or greater violation rate for any of the major hour of service regulations. Such carriers would be required to install recorders on all their commercial vehicles for a period of two years.

As previous blogs have disclosed, it is relatively easy and cost effective to install electronic monitoring devices on large trucks and tractor-trailers. Senator Feinstein’s efforts which would require all trucking companies to monitor and record electronically hours of service, would no doubt lead to safer highways for everyone.

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Posted In: Truck and Tractor Trailer Accidents

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Our serious injury lawyers handle many cases involving collisions between large trucks and automobiles. As large truck and tractor-trailer traffic rises on the nation’s highways, at least nine states are considering proposals to separate big rigs from cars on interstate highways. By designating certain lanes as “truck only” lanes, the states are hoping to reduce congestion, improve safety and increase commerce by allowing goods to move faster. Georgia, Ohio, Nevada, and several other states are studying a design to build or designate “truck only” lanes on various stretches of interstate highways. Georgia’s plan, would initially give consideration to “truck only” lanes on a 27 mile stretch of Interstate 75 northwest of Atlanta and a 20 mile stretch of Interstate 285 around the city. This proposal was considered after truck congestion in the area was predicted to increase by up to 60% in the next 20 years. At this time, we are aware of only the state of California having “truck only” lanes. California presently has two “truck only” lanes which cover only very small sections of highway.

Some experts contend that “truck only” lanes are a good idea for safety reasons alone. In 2005, it is estimated that 442,000 large trucks were involved in crashes. As we have blogged before, many of these tractor-trailer and large truck accidents involved automobiles, and in many of the cases, the drivers or passengers in automobiles were seriously injured or killed.

Many trucking advocates contend the “truck only” lanes would increase the opportunities for significant improvements in the transportation of freight on highways. According to these advocates, the key benefits of “truck only” lanes would be four fold. First, the public would be far less exposed to the risk of car/truck crashes. This wouldnot only save lives and prevent injury, but would also be an economic benefit to the trucking industry. Second, with lower traffic volumes in the lanes, trucks could operate more efficiently with reduced need for braking, accelerating and overtaking. Third, the added capacity would help alleviate congestion thereby reducing travel time and uncertainty of arrival time. Fourth, the argument for greater use of longer vehicles would be strengthened because they would not operate in the same lanes as passenger vehicles.

In general, passenger vehicles would benefit from “truck only” lanes in three ways. First, safety would improve. Second, the quality of the traveling experience would improve as motorists would be less concerned with having to move around large trucks. Third, “truck only” lanes would help improve speeds for passenger cars.

However, the issue of financing the construction of “truck only” lanes is extremely controversial. One estimate is that the cost of constructing a “truck only” lane alongside an existing rural interstate would cost approximately $2.5 million per lane mile, plus land acquisition costs. Obviously, the cost would vary considerably, depending on right-of-way availability, the topography of the land, the need for bridges and additional entrance and exit ramps.

Most proposals have assumed that the new lanes would be paid by tolls. Many questions arise about the appropriate level of tolls, which users should pay the tolls, and the extent to which tolls can cover the full cost. Predictably, most trucking industry representatives are opposed to placing the cost of constructing such lanes solely on the back of the trucking industry. The American Trucking Association has argued that truck operators help pay for the cost of current lanes so they have an equity position in them. They argue that to the extent this is true, a credit for this equity should be applied to the cost responsibility for the additional lanes to be constructed.

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Posted In: Automobile Accidents , Torts , Truck and Tractor Trailer Accidents

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Our wrongful death and serious injury lawyers work with our clients on a contingency fee basis. The contingent fee is perhaps the one device that gives seriously injured people, no matter what their financial means, an even break in the courtroom against giant corporations and insurance companies. Contingent fee practice has been an essential part of the United States justice system for more than a hundred years. It permits every American regardless of wealth or social standing the opportunity to pursue a valid claim against even the most powerful corporation or individual. In a large measure, it has made our judicial system the envy of the world. It is no surprise that it has been under almost constant attack for years by corporations and insurance companies.

Increasingly, there have been calls by organizations sponsored in secret by large corporations and insurance companies, to abolish the contingency fee. Big businesses and individuals who want to avoid accountability for their negligent and reckless acts are pushing for special protections in state legislatures and in the U.S. Congress. These wrongdoers have initiated a less obvious line of attack on the American consumer, an attack that directs itself not of the consumer, but an easier target, the lawyers that represent them. Many of these attacks are coordinated by the U.S. Chamber of Commerce.

Without the contingency fee, many people would never be able to bring a claim to redress wrongs done by large corporations and powerful individuals. In essence, the contingency fee allows a lawyer to advance his services and time in return for a percentage of the recovery. In this day and age, due to increasing burdens placed by the legislatures on claimants, the cost of bringing a lawsuit are extremely high. In fact, almost none of our clients could afford to bring a lawsuit without the contingency fee.

The assault on the contingency fee is nothing more than an attempt by powerful interests to deny access to justice to tens of thousands of Americans who are injured each year due to another’s wrongful acts.

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Posted In: Automobile Accidents , Brain Injury , Medical Malpractice , Pharmaceutical Manufacturer Liability , Police Chases , Products Liability , Torts , Truck and Tractor Trailer Accidents , Wrongful Death

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In serious injury and death cases our attorneys consistently face challenges from the defense to the testimony of our highly qualified expert witnesses. These challenges are based upon the rule of evidence known as the Daubert standard.

The Daubert standard is a legal precedent set in 1993 by the United States Supreme Court regarding the admissibility of expert scientific testimony during legal proceedings. In Daubert, the Supreme Court ordered federal trial judges to become the “gatekeepers” of scientific evidence. Trial judges were instructed to evaluate expert witnesses to determine whether their testimony is both “relevant” and “reliable”.

A two-prong test of admissibility was established. The relevancy prong refers to whether or not the expert’s evidence fits the facts of the case. The relevancy requirement has always existed in the law.

The reliability prong was new. The Supreme Court explained that in order for expert testimony to be considered reliable, the expert must derive his or her conclusions from the scientific method. The court then offered general observations of whether proffered evidence was based on scientific method including such things as empirical testing, peer review, the potential error rate, and whether the theory or technique is generally accepted by a relevant scientific community.

In practice, this standard has been burdensome, and grossly unfair to claimants in courtrooms. Trial judges are simply in no better position than juries to serve as “gatekeepers” to scientific evidence. In fact, many of these judges bring their own biases to their determinations. One example given is that under this standard, if Christopher Columbus were required to appear in a courtroom during his lifetime using the Daubert standard, his opinion that the world is round would have been inadmissible.

As part of the so-called Governor’s tort reform of 2005, the Daubert standard was adopted by the state legislature for use in Georgia. However, bowing to pressure from the Prosecuting Attorney’s of the state, who realized how gross unfairness of the Daubert standard, the governor and legislature exempted criminal cases from the Daubert standard. However, catering to the demands of the insurance industry and large corporations, the legislature adopted the Daubert standard for civil cases.

Currently pending before the Georgia Supreme Court is a case in which the Daubert standard is being challenged on constitutional grounds. An argument is being made that it denies equal protection to adopt the standard in civil cases and not in criminal cases. It will be very interesting to see how the Georgia Supreme Court handles this challenge, especially in light of the fact that in recent years, large insurance companies and corporations have thrown millions of dollars into the judicial races in attempts to elect candidates who will follow their agenda.

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Posted In: Automobile Accidents , Brain Injury , Civil Procedure , Dangerous Drugs , Medical Malpractice , Pharmaceutical Manufacturer Liability , Police Chases , Products Liability , Torts , Truck and Tractor Trailer Accidents , Wrongful Death

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Our truck accident attorneys review cases every week in which large trucks, exceeding the posted speed limits or traveling too fast fopr conditions, have been responsible for serious injuries and deaths.

We have previously blogged concerning the organization, Road Safe America, located here in Atlanta, Georgia, describing the excellent work they do in attempting to make the nation’s highways safer. Road Safe America has been leading a campaign to influence federal transportation officials to promulgate regulations requiring devices on commercial trucks to limit their top speed to 68 mph. Interestingly, the idea is supported by many large trucking companies and opposed by many smaller independent carriers.

Data for the year 2005 revealed that truck accidents involving large trucks and/or tractor trailers killed 5,212 people. Of those, 803 were truck occupants, 3,944 occupants of other vehicles, and 485 pedestrians or bicycle riders.

Steve Owings, founder of Road Safe America, whose son was killed in a big rig accident in 2002, has enlisted the support of the American Trucking Association for his effort to limit the speed of large trucks on the nation’s highways. The proposal has already been approved by the Governor’s Highway Safety Association, which advises states on traffic safety issues. The Governor’s Highway Safety Association Board of Directors found the speed limit proposal to be “very reasonable”.

Most independent truckers oppose the idea because it would force them to drive slower. As we have blogged before, in the trucking industry, miles covered equals money earned. Therefore, the incentives are for independent truckers to drive faster speeds to cover more miles in order to earn more money.

Many of the large tractor trailers on the road today are already equipped with ECM devices which could be easily programmed to act as governors, limiting the speed the big rigs can travel. We feel this is an imminently reasonable proposal, which will more than likely save many lives every year on the highways.

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Posted In: Truck and Tractor Trailer Accidents

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Our serious injury lawyers have previously written about the importance of uninsured motorist coverage. There are many nuances in the Georgia uninsured motorist coverage statutes and case law with which every attorney should be familiar.

One principle, pronounced by the Supreme Court in Thurman v. State Farm Mutual Auto Insurance Company, 278 Ga. 162, 598 S.E.2d 448 (2004) involves uninsured motorist benefits after payment of subrogation claims to health and/or workers’ compensation insurers. In Thurman, the Supreme Court held that reimbursement to a health or workers’ compensation insurer reduced available coverage under the liability policy, thereby making UM coverage available.

The plaintiff in Thurman was a postal carrier for the United States Postal Service who was injured on the job when her truck was struck by a vehicle driven by the defendant. The plaintiff filed suit against the defendant for more than defendant’s insurance policy with limits of $100,000. Eventually, the plaintiff and her husband settled with the defendant for the amount of $95,550.19, policy limits reduced by the amount paid the United States Postal Service for damage to the postal truck.

Because the plaintiff had received payments for lost wages and medical expenses from her employer’s workers’ compensation carrier pursuant to the Federal Employees Compensation Act and from her employer’s group health insurance carrier pursuant to the Federal Employees Health Benefits Act, those two carriers claimed subrogation rights from the proceeds of the settlement. The defendant’s liability insurance carrier issued three checks, one to the plaintiff, one to the worker’s compensation carrier, and one to the group medical insurance carrier. As a result, the plaintiff received $60,887.87.

The plaintiff then turned to her uninsured motorist carrier, State Farm, contending that the defendant was uninsured since their $75,000 in UM coverage exceeded the net proceeds, $60,887.87, which they received from the liability carrier. The trial court granted summary judgment to State Farm and the Court of Appeals affirmed.

The Supreme Court granted plaintiffs petition for writ of certiorari. In it’s holding, the Supreme Court determined that the subrogation payments made by the defendant’s liability insurer for the worker’s compensation carrier and to the group medical insurance carrier constituted a “payment of other claims or otherwise” which thereby reduced the amount of available coverage under the defendant’s insurance policy to less than the amount of UM coverage the plaintiffs had with State Farm.

This is a very important holding. It is essential that every attorney practicing serious injury law be aware of this case. Failure to obtain available coverage under a UM policy under the circumstances addressed in Thurman would be a disservice to one’s clients.

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Posted In: Automobile Accidents , Torts , Truck and Tractor Trailer Accidents , Uninsured Motorist Coverage

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Our lawyers frequently encounter heavy truck collision cases involving death and serious injury where the truck driver is in violation of federal regulations concerning the hours that can be driven in a given period. As we have written before, driver fatigue is a serious and potentially deadly problem.
Federal regulations permit a truck driver to drive a maximum of 11 hours after 10 consecutive hours off duty. They can drive a maximum of 60 hours in a seven-day period or 70 hours during an eight-day period. Before starting a shift that will run for seven or eight days straight, they must take off 34 or more consecutive hours.Last year authorities investigating a Florida crash that killed seven children discovered that, except for a brief nap, the truck driver involved had been awake but not necessarily driving for more than 34 hours before the accident. The tractor-trailer he was driving struck the rear of a car carrying the children. The car had been stopped behind a school bus dropping off students.

Estimates on the role driver fatigue plays in truck accidents differ. As many as 30 percent to 40 percent of heavy truck accidents may be related to truck driver fatigue, according to data from the National Transportation Safety Board.

Florida ranked 21st, tying with Delaware, for the number of truck crash deaths per 100,000 people in 2004, with 2.17 deaths, according to data from the 2004 Fatality Analysis Reporting System and the National Center for Statistics Analysis. Wyoming was first with 8.08 deaths per 100,000 people. Hawaii was last with 0.32.

Many in the trucking industry blame shippers, not trucking companies, for the pressure some drivers are under to deliver. We have seen many cases in which truck drivers falsify logbooks so they can make up time and mileage. In many of these instances, when confronted with the falsified data, the drivers have responded that if they did not drive in excess of the mandated hours they would lose their jobs.

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Posted In: Truck and Tractor Trailer Accidents

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As Georgia injury lawyers, it is not uncommon for us to review potential wrongful death claims involving truck driver fatigue. We often see this in the context of tractor-trailer accidents where the truck driver has fabricated his driver’s log and/or driven far in excess of his allowable hours. Many times there is demonstrated sleep loss involving the use of amphetamines, methamphetamines or other stimulants used by the driver to overcome the fatigue.

According to a newsletter we recently ran across published by a well respected truck safety organization, there is an interesting correlation between sleep loss, fatigue and the serious impairment caused by being legally drunk. Studies have shown that the impairment from sleep loss and long working hours are almost the same caused by alcohol consumption. The longer one is awake, the slower the reaction time. If one gets too little sleep (4 or less hours) this is equivalent to the effects of .05% blood alcohol for the long working hours. In one study, where people were kept awake for 24 straight hours, the slowed perception reaction time had approximately the same effect as .10% blood alcohol level which is above the level (.08%) now nationally recognized as being legally drunk. Thus, it can be clinically demonstrated that if one loses sleep for a long period of time one’s perception and reaction time is dangerously slowed.

In our personal injury practice we often see the evidence of serious impairment caused by fatigue and lack of sleep. The end result of such fatigue we see in our practice is a serious collision. Increasingly, we see this particularly in the context of truck drivers who are trying to increase their wages by driving longer and longer hours and greater and greater distances. Even though large trucks make up just 4% of all registered vehicles, and 7% of all vehicle miles traveled, the same trucks are involved in 11% of all crash fatalities. This year, as in years past, approximately 5,000 people will be killed in truck crashes and collisions throughout the country. We know from our experience that many of these crashes are preventable and would not occur if drivers kept shorter hours and were not seriously impaired by fatigue. While commercial airline pilots typically fly only about 30 hours a month, most truck drivers drive around 300 hours a month. For some reason, this has become acceptable in the workplace even though the number of people killed in truck crashes annually exceed the number of people that are killed in major airline crashes. Query why this is so?

With improvements in technology, before long, employers and trucking companies will be able to monitor precisely the hours being kept by their truck drivers. We can only hope that legislation will follow which mandates that employers not only monitor the number of hours driven but also the number of hours taken by the driver to rest. Too many hours driving means too much fatigue which also means possible impairment of perception and reaction times. Because we see the end result of this, which is serious injury, death and tragedy for our client’s families, and we can only hope that the speed of technology will continue to develop to the point where trucking companies will have no choice but to monitor and address the significance safety issues caused by driver fatigue.

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Posted In: Truck and Tractor Trailer Accidents , Wrongful Death

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As a Georgia personal injury lawyer, it never ceases to amaze me how the trucking industry lobbies to limit the rights of victims who either suffer wrongful death or serious injuries in truck accidents caused by negligent, careless, or drunk drivers.

In researching an issue last week, I ran across a website of the American Trucking Association who proudly listed, on a state-by-state basis, some of their legislative efforts to deny accident victims fair compensation. They published their "Tort Reform Scorecard 2006". Rather than concentrating their efforts on driver safety and other ways of preventing human tragedy caused by the negligent, if not criminal, operation of their trucks, they invest in trying to change the laws to limit what they have to pay to fairly compensate people with serious injuries. They seek to eliminate joint and several liability, limit or eliminate punitive damages and attorney fee awards. In some states, like Georgia and Alabama they have backed legislation limiting damages for non-economic damages.

Our firm recently settled a wrongful death case involving a truck driver using drugs who was found to have been hiding vials of urine under his belt in case he got caught and was subjected to drug testing!

In another recent case involving serious spinal injuries to our client, the truck driver switched driving positions with his friend who happened to be riding along for company. This friend who had no commercial drivers license had recently been scheduled for back surgery because he had a spinal cord injury as a result of being struck by lightening. The friend was taking prescription narcotic pain medication to ease his back pain and he had numbness in one of his legs. To top it all off they switched seats going south on I-75 at 70+ mph with a load of steel on the trailer!!

It is maddening to hear the trucking industry and other groups tout their alleged accomplishments which they refer to as tort reform. Trucking companies as well as all other businesses should be able to be held accountable for the actions of their employees who injure or kill innocent people and they should be required to make such victims completely whole for all of the damages those victims or their families sustain. "Reform" which limits an innocent victim's rights in favor of a corporations bottom line is wrong.

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Posted In: Automobile Accidents , Brain Injury , Torts , Truck and Tractor Trailer Accidents , Wrongful Death

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We recently read a blog posted by Ronald Miller in his excellent Maryland Injury Lawyer Blog about an interesting correlation which exists between truck driver compensation and safety outcomes. According to a study by Cornell University (about which the Miller wrote), the more a truck driver is paid the less likely he is to engage in risky behavior. This actually seems to be common sense. Those drivers who have to drive too many hours or drive while fatigued are obviously doing so in order to increase their wages. If they were paid a fair wage based on reasonable work hours and driving conditions there would be no reason for them to engage in such risky behavior. Regrettably, the anecdotal experience we have as lawyers here in Georgia tends to indicate that the study conducted by Cornell University is absolutely “spot on”.

A case we are currently handling is a good example of this interesting correlation. In this case, the truck driver was paid by the mile. The more miles he drove, the more money he made. Unfortunately, his mileage rate was lower than is customary and thus he had to work long hours and drive while fatigued to make a decent wage. Of course, this was a deadly mixture because this driver, in order to keep driving such long hours and distances began taking methamphetamine and amphetamine and finally cocaine. The term “speed ball” is almost an industry term by now base on this phenomenon and refers to drivers who are hyped up all the time on stimulants in order to allow them to drive longer and longer hours and greater and greater distances. Why? To increase their compensation.

The attorneys here at our office certainly can attest based on our experience in handling many such cases that truck drivers will speed and drive without proper rest in order to make more money. Thus, if trucking companies paid good wages on the front side and provided good working conditions, the risk to the public would go down. Thus, the implication of the study conducted by Cornell University is that the trucking industry needs to engage in some self-evaluation. If there is reform in wages, there will be an impact on safety. This is nothing more than common sense. Regrettably, in our judgment, because of the desire to maximize profits at the expense of the public, accidents will continue to occur until the reform is mandated either by a government body, the insurance industry, or the employer/trucking companies themselves.

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In previous blogs our lawyers discussed the dangers of drivers operating large trucks while under the influence of alcohol and/or drugs. This is a continuing problem in the United States which often leads to serious injuries and fatalities.

Interstate motor carriers and certain intrastate motor carriers are subject to the Federal Motor Carrier Safety Regulations as prescribed by the United States Department of Transportation. These regulations control a wide range of activities involving large trucks and tractor-trailers. One section, part 382, addresses controlled substances and alcohol use. The regulations prohibit a driver from reporting to duty or remaining on duty while having a breath alcohol concentration of 0.04% or greater. It also makes it illegal for an employer having knowledge that a driver has an alcohol concentration above that level to permit a driver to drive. The regulations also prohibit a driver from reporting for duty or remaining on duty while using any controlled substance or testing positive for any controlled substance.

Specific testing is mandatory under the regulations. Prior to the first time a driver operates a vehicle, the driver must be tested for alcohol and controlled substances. In addition, post-accident testing is required as soon as practicable following an incident involving a commercial motor vehicle operating on a public road. Random testing is required in accordance with directives described in the regulations. Finally, it is required that an employer shall test for alcohol or controlled substance test when the employer has reasonable suspicion to believe that the driver has violated any prohibitions of the regulations concerning alcohol and/or controlled substances.

While the federal government has issued these alcohol and controlled substance regulations, our lawyers are unfortunately continuing to review cases in which drivers of heavy trucks and tractor-trailers are under the influence of alcohol and/or controlled substances at the time of the incident giving rise to the serious injuries or fatalities.

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Regrettably, something we have seen recently, which is very troubling, are cases where fly-by-night trucking companies which have failed to register with either state or federal authorities operate nonetheless with minimum insurance coverage insufficient to protect the rights of the innocent motoring public. The state and federal regulatory scheme is such that all commercial motor carriers for hire are required to register with state and federal authorities. The reasons for this are obvious. By registering with the state, the state can make sure that all commercial motor carriers are financially responsible should they cause damage to the public. Also, by registering with the state, the state can collect taxes and other fees and also regulate the safety of the motor carrier’s operations. The same is true on a federal level. The problem emerges, however, when the commercial motor carrier fails to register at all. In this context, in order to get business, such a carrier typically will still have to have an insurance certificate from an insurance company certifying to their client/customer that they have insurance coverage. The problem is such insurance coverage is typically inadequate to protect the needs of the public and also creates legal problems in the event of a subsequent claim.

If a motor carrier fails to register with either the state or federal government, then typically the insurance company also fails to file required certificates of coverage also required by such authorities. On a state level, motor carriers are required to file a Uniform Bodily Injury Certificate of Insurance (usually in the form of a Form E filing) which indicates that the insurance company for the commercial motor carrier has issued a liability insurance policy to the motor carrier. Unless a Form E is filed, however, in many states, there is no automatic liability of the insurance carrier for the negligent acts of the commercial motor carrier. Thus, we have the anomalous situation where those who comply with the law, that is those who register with the state and file certificates of insurance are in a position to protect the public whereas those who disobey the law are benefitted thereby because the insurance companies can then claim that having filed no Form E with the state, they have no liability to the public. This unjust result obviously needs to be addressed by legislatures nationwide and yet the problem continues to exist.

Not only is this a problem on a state level, this is also a problem on the federal level. Commercial motor carriers for hire who operate in interstate commerce are required to file with the Federal Motor Carrier Safety Administration a Form MCS-90 which again certifies that they have adequate insurance coverage to protect the public in the event of a accident involving personal injuries. For those carriers that fail to register with the federal government but nonetheless operate in interstate commerce, the same problem emerges. The insurance company does not file the MCS-90 because they have not been requested to do so. The insurance company nonetheless has information to believe that the insured for which it has provided coverage is operating commercially in interstate commerce. Nonetheless, by virtue of not filing a MCS-90 form with the federal government, the insurance company can make the argument that it has no duty to the public in the event of a subsequent claim for personal injuries. Again, those who violate the law benefit from their violation whereas those who comply with the law are required to provide insurance coverage for the public in the event of a motor vehicle accident. Again, this anomalous result which still exists today, needs to be addressed by Congress.

It has been our unfortunate experience that when fly-by-night carriers cause great damage to our clients, regrettably, collecting under their insurance policies has proven to be exceedingly difficult. While we will continue to do everything we can to represent our innocent clients most of the legal problems encountered in such cases could be easily addressed by state and federal authorities. We can only hope that this loophole in the law will be corrected before other innocent people needless suffer from the acts of fly-by-night motor carriers operating in intrastate and interstate commerce.

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Our lawyers recently completed a case in which the driver of a heavy truck which caused a collision with serious injuries was found to be disabled and medically unable to be operating the vehicle. For many years, The National Transportation Safety Board, NTSB, has been pushing for increased regulations to prevent medically unqualified drivers from operating commercial vehicles such as tractor trailers and heavy trucks.

Based on investigations of accidents involving drivers with serious medical conditions, the NTSB determined that serious problems exist in the medical certification process for commercial vehicle drivers. According to the NTSB, these problems can lead to increased highway deaths and injuries for commercial vehicle drivers, passengers, and the motoring public.

The NTSB study found that many commercial vehicle drivers who have serious medical conditions which are known to their employers, physicians, or others, are never reported to the appropriate board or motor vehicle licensing authorities. Enforcement authorities cannot in most instances determine the validity of a medical certificate during safety inspections and other routine stops, because of the absence of procedures or information sources to validate the medical information on the driver’s certificate. According to the NTSB, in the absence of a mechanism to track all medical certification examinations, a commercial driver with a serious medical condition who is denied a medical certificate by one examiner, may be able to obtain a medical certificate from another examiner. This bypasses the purpose of the medical certification process and can endanger the motoring public.

According to the NTSB, the Federal Motor Carrier Safety Administration, which has authority over commercial drivers, is working too slowly to complete directives from Congress that it, the FMSCA, ensure that medical examiners are qualified and know what to look for in conducting examinations on commercial drivers, track all medical certificate applications, enhance oversight enforcement in valid certificates, and provide a comprehensive mechanism for reporting medical conditions.

According to the NTSB, once these recommendations are implemented by the FMSCA, there should be a decrease in danger to the motoring public from medically unqualified drivers.

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In light of our lawyers' recent recovery of 3.25 million dollars in a tractor trailer collision case in which the truck driver was found to be under the influence of illegal drugs, we are repeating pertinent information contained in a previous entry.

Our lawyers are frequently handling cases in which the driver of a heavy truck is under the influence of illegal stimulents, such as methamphetamine.

Despite Federal regulations that limit the hours they can drive in a single day, truck drivers are constantly looking for ways to stay awake longer, drive farther, and make more money. Seventeen out of 20 truck drivers inter-viewed by the Center for Substance Abuse Prevention (CSAP) said that methamphetamine is easy to get at truck stops. The National Institute on Drug Abuse says that people in occupations (such as long-haul truckers) that demand long hours, mental alertness, and physical endurance, have been using methamphetamine at increased rates.

The use of stimulants by truck drivers to combat fatigue is fairly common. Surveys and roadside tests indicate that about one in five drivers use stimulants on at least some trips.

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Last Tuesday, our lawyers successfully negotiated a $3,250,000 settlement in a case involving the tragic death of a 64 year old woman in a heavy truck collision. The incident which led to the filing of a lawsuit in federal court in Atlanta, Georgia occurred in the early morning hours of February 5, 2007 on Cobb Parkway in Marietta, Georgia. During the early morning darkness, our clients’ decedent was traveling northbound on Cobb Parkway toward her place of work. Her vehicle struck the rear of a tractor trailer which had stopped in the left lane of the two northbound lanes. The impact caused her vehicle to "underride" the trailer and she was pronounced dead at the scene.

It was determined that the tractor trailer was illegally occupying the left lane and attempting to make a "wide" right turn from the left lane. Additional investigation by our office discovered that at the time of the incident the tractor trailer driver had methamphetamine and a cocaine metabolite in his blood. Our lawyers retained the services of the former head of toxicology for the Georgia State Crime Lab who determined that the ingestion of the illegal drugs by the truck driver had occurred shortly before, of even during the trip by the driver from North Carolina to Georgia.

In previous blog entries we have discussed the dangers of heavy truck and tractor trailer drivers operating large rigs will under the influence of illegal drugs and the frequency of this illegal activity. This case serves as a tragic reminder of the dangers involved. Unfortunately, many drivers feel the need to resort to illegal stimulant drugs in order to overcome fatigue so that they can drive more miles and earn more money.

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A federal appeals court recently struck down a Bush administration regulation that increased the number of hours that truck drivers are permitted to drive without rest. This is the second time the regulation has been struck down

The U.S. Court of Appeals for the D.C. Circuit held that the Federal Motor Carrier Safety Administration’s (FMCSA) hours-of-service rule for truckers, issued in Aug. 2005, could put motorists at risk. The rule dramatically increased both the consecutive number of hours that truckers may drive before taking a rest; and, the total number of hours truckers may drive per week.

A lawsuit brought by Public Citizen, a consumer advocacy group, challenged two aspects of the rule: a provision that allowed truck drivers to drive for 11 consecutive hours before taking rest time, increased from the old rule of 10 hours; and, a provision which allowed drivers to “restart” their weekly tally of hours after they had taken a break as short as 34 hours.

The 34-hour restart allowed truckers to drive 77 hours in seven days or 88 hours in eight days – a more than 25 percent increase over pre-2003 rules. On-duty hours during which truckers may drive also climbed, so that a driver working 14-hour shifts under the new rules can now work as many as 84 hours in seven days or 98 hours in eight days – the latter a 40 percent increase over the old limits.

“The trucking profession has become ‘sweatshops on wheels’ because of the excessive and unsafe hours of work and driving time required of truck drivers,” said Daphne Izer, founder of Parents Against Tired Truckers (PATT). “I have paid the ultimate price for government policies that legally allow truck drivers to work and drive exhausted. My 17-year old son Jeff and his three close friends were killed in a preventable crash caused by truck driver fatigue. I welcome the court’s decision that puts people before profits.”

Each year, more than 5,000 people in the United States are killed and more than 110,000 injured in crashes involving large trucks. Truck driver fatigue is a major contributor in many of these crashes.

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A study by the National Highway Traffic Safety Administration (NHTSA) reported that in 2004, one out of eight traffic deaths resulted from a collision involving a large truck. In that year 416,000 large trucks were involved in traffic crashes in the U.S. Of those, 4,862 were involved in fatal crashes. A total of 5,190 people died (12% of all the traffic fatalities reported in 2004) and an additional 116,000 were injured in those crashes. Among those killed in crashes involving large trucks, 77 percent were occupants of another vehicle, 3 percent were pedestrians, and 24 percent were occupants of large trucks.

A widely cited study by Jones and Stein (Jones I. and H. Stein, Defective Equipment and Tractor-Trailer Crash Involvement. Accident Analysis and Prevention 21:469-81, 1989), reported that brake defects were quite common and were found in 56% of the tractor-trailers involved in crashes. In the more recent Large Truck Crash Causation Study sponsored by the DOT, it was concluded that 29.4% of all large truck crashes involved brake failure, brakes out of adjustment, or other brake related issues.

Compounding the brake defects issue even more is the fact that although original equipment (OE) brakes must comply with federal motor vehicle safety standards which specify maximum stopping distances according to vehicle weight, loading, pedal effort (with and without power assistance) and brake condition (green and burnished linings), there are no federal performance standards for aftermarket (AM) brake linings. It is typically assumed that replacement AM brake linings perform the same as or better than the OE brake linings on a vehicle. Unfortunately, there is currently no methodology or rating system available that can assure OE-equivalent brake performance from AM brake linings.

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Our lawyers are frequently handling cases in which the driver of a heavy truck is under the influence of illegal stimulents, such as methamphetamine. In a recent case involving a death caused by a heavy truck, our lawyers discovered that the driver had methamphetamine, amphetamine, and cocaine in his blood at the time of the collision.

Despite Federal regulations that limit the hours they can drive in a single day, truck drivers are constantly looking for ways to stay awake longer, drive farther, and make more money. Seventeen out of 20 truck drivers inter-viewed by the Center for Substance Abuse Prevention (CSAP) said that methamphetamine is easy to get at truck stops. The National Institute on Drug Abuse says that people in occupations (such as long-haul truckers) that demand long hours, mental alertness, and physical endurance, have been using methamphetamine at increased rates.

The use of stimulants by truck drivers to combat fatigue is fairly common. Surveys and roadside tests indicate that about one in five drivers use stimulants on at least some trips.

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Large trucks are prone to rollover accidents which can result in serious injury and death. Their high centers of gravity increase the risk of rolling over, particularly on curving ramps.

In 2005, 50 percent of deaths among occupants of large trucks occurred in crashes in which their vehicles rolled over, compared with 60 percent of SUV occupant deaths and 46 percent of pickup occupant deaths (both SUVs and pickups also have high centers of gravity). In contrast, 24 percent of passenger car occupant deaths occurred in vehicles that rolled over.

Electronic stability control (ESC) systems are designed to continuously monitor how well a vehicle is responding to a driver’s input. When the sensors detect the vehicle is straying from the driver’s intended line of travel, ESC brakes individual wheels to keep the vehicle under control. ESC may also modulate engine speed. ESC has been found to lower the risk of a single vehicle crash among passenger vehicles by 41 percent.16 The impact ESC could have on large truck crashes and rollovers is not known.

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Our lawyers handle more fatal accident cases involving large trucks, than fatal accidents involving automobiles. Our experience is supported by national statistics.

On average, drivers of large trucks travel many more miles than passenger vehicle drivers. In 2005, large trucks accounted for 3 percent of registered vehicles and 7 percent of miles traveled. Per unit of travel, large trucks are involved in more fatal crashes than passenger vehicles — 2.1 compared with 1.7 crashes per 100 million miles traveled in 2005.

The disparities between large trucks and passenger vehicles vary by specific vehicle type, with passenger cars having the lowest fatal involvement rate (1.5) and tractor-trailers having the highest rate (2.4). The higher fatal involvement rate for large trucks occurs although much higher proportions of their miles are traveled on interstate highways, which are the safest roads.

The higher fatal involvement rate is attributable to the size disparity between large trucks and passenger vehicles. Large trucks have a lower rate of nonfatal crashes resulting in injuries or property damage only compared with passenger cars.

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Almost all modern tractor-trailers and heavy trucks are equipped with electronic control modules. These modules record relevant data concerning the truck’s operation and allow it to be downloaded and accessed. The benefits for a lawyer representing a client in a tractor-trailer or heavy truck crash case can be significant.

An electronic control module can be used to gather a variety of information surrounding a crash when, or just before it occurs. This information may include data concerning the vehicle speed, the brake pedal and throttle position. The data is typically recorded continuously over a specified time interval, such as three minutes. It is then replaced unless an event occurs in which case the electronic control module saves the data surrounding the event, such as thirty seconds before and fifteen seconds after a crash. Events that trigger the electronic control module to save such data can include sudden deceleration, airbag deployment, or manual activation by the driver.

This data can be used by accident reconstructionists and attorneys to determine the actual speed of a vehicle just before a collision occurs. This is extremely helpful in many cases in which there are no witnesses to the accident and the driver denies excessive speed. Our attorneys have been able to access and use this data in several tractor-trailer/heavy truck cases to bring about very successful results for our clients.

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Our lawyers continue to litigate serious injury and death cases involving tractor-trailer and heavy truck collisions wherein the impairment of the operator by the use of illegal drugs has played a major factor. As surprising as it may seem, the use of illegal drugs while operating tractor-trailers and heavy trucks by commercial operators is not uncommon.

A study by the Insurance Institute of Highway Safety found that alcohol use among heavy truck operators is less prevalent than the use of illicit drugs. The study found that the use of marijuana, cocaine, or amphetamines/methamphetamines while operating tractor-trailers and heavy trucks was much more prevalent than the use of alcohol. Almost 5% of the truck drivers tested who had been involved in serious collisions tested positive for illicit drug use, but only .2% tested positive for alcohol.

Federal regulations require carriers to test all commercial drivers for drugs before employment, after crashes, and on a random basis. Our lawyers frequently encounter cases involving fatalities and extremely serious injuries wherein the operator of the truck was under the influence of not only one illicit drug, but a combination of illicit drugs. The dangers attendant with operating a large truck while under the influence of illicit drugs are obvious. Our lawyers have been successful in many cases in recovering not only compensatory damages but punitive damages, based upon the use of the illicit drugs.

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Industry standards require that trucking companies make a reasonable and good faith effort to inquire into the background history of drivers applying for employment. Federal regulations require at a minimum that a truck company should obtain any applicant’s prior accident record, out of service violations resulting in out of service and/or drug and alcohol related events determined by definition to be treated as positive while performing a safety sensitive function. The lack of such diligence by a trucking company not only shows to a driver the inattentiveness of the employer, but it also permits drivers to obtain employment that they may not have obtained had the proper information been requested and/or received. Without proper employment verifications, it cannot be determined by a trucking company whether a particular driver is or is not qualified to act as the driver for a commercial tractor-trailer. There are services available to trucking companies such as DAC Services that can be used to validate applications and obtain background information. The majority of fleet employers commonly use this service, however, regrettably (and unfortunately for our clients) we have been involved in numerous cases where trucking companies do not use such services nor do they conduct an adequate background investigation before hiring drivers.

When a trucking company is negligent in the hiring of a driver, that negligence often times results in subsequent injuries to the innocent motoring public. A driver should not be hired unless he or she is qualified. A trucking company should be diligent in obtaining necessary background information. In a case we handled just this past year, it was determined that several drivers that had been employed had serious felony convictions (including drugs) and numerous moving violations while previously employed by other companies. Indeed, in several cases, they had been terminated by prior employers for “preventable accidents.” Nonetheless, they were hired without an adequate background investigation. Needless to say, such cases settled because the trucking company was exposed for its negligent hiring of the drivers. Nonetheless, wrongful deaths and serious injuries resulted from the acts of the unqualified drivers which could have been anticipated had there been an adequate background investigation.

In any truck accident case, counsel should always inquire about the company’s employment screening practices to determine whether a negligent hiring claim is present. Juries are particularly interested in such evidence because they know that if an unqualified driver is hired, the chance of his/her being involved in an accident increases in proportion almost by definition. This is common sense. Nonetheless, because many trucking companies are negligent in their hiring practices, regrettably, we continue to see accidents which occur where drivers are hired who are not otherwise qualified and whose background clearly indicates that they neither were qualified nor should they have been hired to begin with.

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Our firm is handling a wrongful death, truck accident involving a driver that was operating his tractor-trailer under the influence of drugs at the time of the tragic incident. A wrongful death of an innocent person occurred in large part because the truck driver was under the influence of methamphetamine which is a known dangerous drug, particularly in the context of a commercially licenced truck driver. While no amount of money can compensate the family for this tragic and senseless death, nonetheless, when aggravating circumstances such as driving under the influence of drugs or alcohol are present in a particular serious injury or wrongful death case, punitive damages are necessary in order to deter other wrongdoers from future similar acts of misconduct. They are also necessary to punish the offender.

In this particular case, not only was the truck driver operating his truck while under the influence of dangerous intoxicating drugs (he also had benzoids in his bloodstream), he had taken other steps to avoid detection by law enforcement and regulatory officials. Indeed, in this particular case, the truck driver had secreted with his waistband two urine vials which he could use to deceive regulatory officials if he was stopped and asked for a urine sample. In short, he knew exactly what he was doing and took steps to conceal his drug use by having available urine vials hidden within his waistband so that he could give a urine sample without being apprehended for illegal drug usage by law enforcement. Unfortunately for the driver, in this particular case, the police officers conducted a thorough search, found the urine vials and charged the driver with vehicular homicide.

Punitive damages have long been necessary to punish wrongdoers and to deter similar acts of wrongdoing in the future. While it is well known that many truck drivers are operating their rigs while under the influence of intoxicating drugs, particularly uppers, speed and other similar intoxicants, the hope, of course, is that if juries impose significant punitive damages in cases like this, this may deter others from engaging in similar conduct. The senseless tragedy brought about by the wrongful act cannot be compensated in any event but, when juries are willing to impose additional penalties on top of other available damages, we believe that juries can send strong messages that they will punish those who engage in this type of egregious misconduct. If the financial punishment is severe enough, hopefully, deterrence of others will be the end result.

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Posted In: Automobile Accidents , Civil Procedure , Truck and Tractor Trailer Accidents , Wrongful Death

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According to the 2006 Federal Motor Carrier Safety Administration, one in 20 drivers will be involved in an accident this year. The government study also showed that there are roughly 141,000 truck crashes each year with 77,000 of these or over one-half being the direct fault of the driver. Aubrey Allen Smith is the author of “Truth About Trucking.” Mr. Smith apparently hails from Citrus Springs, Florida and has compiled a list of the top ten causes of these truck accidents. According to Mr. Smith, the top ten causes of truck accidents are as follows:

1. Prescription drug use - 26%
2. Traveling too fast - 25%
3. Unfamiliar with roadway - 22%
4. Over the counter drug use - 18%
5. Inadequate surveillance - 14%
6. Fatigue - 13%
7. Illegal maneuver - 9%
8. Exterior distraction - 8%
9. Inadequate evasive action - 7%
10. Aggressive driving behavior - 7%

In short, roughly 50% of the accidents for which statistics are available indicate that truck drivers are taking drugs or traveling too fast. One can hardly be surprised with the brutal work schedule these drivers keep and the pressures placed upon them by their employers to place profit above safety. While everyone has to make a living, the pressures on American truck drivers are clearly at an all time high and regrettably, the stress and strain is borne out by the statistical data which so reflects. In this age of de-regulation, regrettably, we believe that the statistics will only get worse. Because of the Government’s de-regulation of the truck industry, litigation with large awards may be the best deterrent available to save lives.

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The Fatality Analysis Reporting System (FARS) of the Federal Motor Carrier Safety Administration is a tool often overlooked by practitioners when it comes to available statistical data regarding vehicular accidents. For example, our firm has been handling several high speed police pursuit cases and in connection therewith obtained from the Federal Motor Carrier Administration information submitted to it on a nationwide basis to its Fatality Analysis Reporting System. Unfortunately, the statistics are likely under reported because there is no mandatory form which is utilized by all the states to report fatalities and motor vehicle accidents such as police pursuits. Nonetheless, what we saw is that from 1982 through 2004, 7,434 people were reported to FARS as being killed in high speed pursuit cases. The national average was approximately 350 deaths per year with approximately 20 deaths per year in Georgia.

The FARS reporting data also makes available to the public the number of fatalities from motor vehicle collisions involving commercial tractor trailers. Again, this data under-reports the extent of the problem but is still the best data we have. While the statistics do not show who was at fault in these accidents, nonetheless, the statistics are sobering. Indeed, from 1994 through the end of 2005, there were approximately 2,741 fatalities in Georgia. Regrettably, these statistics could be reduced were there a greater emphasis on safety. Nonetheless, what these statistics teach us is that people will continue to die on our public roads and highways in accidents involving commercial trucks and in situations involving high speed pursuits. We believe that these statistics prove that there is a greater need for regulation, not less, in both areas. While the current regulatory environment is not conducive to public safety, it appears that the best available tool to address these safety issues remains litigation. As the saying goes, “if you hit them in the pocketbook, maybe they’s start paying attention.” Because regulators have a “non-regulatory” free market approach today, trial lawyers today have the best chance of anyone to hold these companies accountable for their negligent acts.

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Posted In: Automobile Accidents , Police Chases , Truck and Tractor Trailer Accidents

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"Respect for life" can take many forms, and "Road Safe America" packs a powerful message about protecting lives from needless deaths on American roads.

I met Steve Owings, a member my church, on Tuesday to learn about how his life has changed since his son died when he was struck from behind by a speeding tractor-trailer in a horrible--and preventable--trucking "accident" in 2002. Brothers Cullum and Pierce Owens had almost finished their drive back to college after Thanksgiving break, when a large truck on "cruise control" set at more than 70 mph slammed into them in stopped traffic. Cullum died at his brother's side.

This father's mission now is to prevent similar tragedies for other families. He is working for common sense changes to cause the trucking industry in the United States to operate with safety measures that are used with success elsewhere in the civilized world. And he is making progress--but can use some help. With Steve's permission, I am helping spread the word quickly about his efforts through this blog--and will continue to help accomplish Road Safe America's goals to protect lives over time.

Like any father, I could not imagine what Steve and Susan Owings have felt since hearing from their surviving son of Cullum's death on the highway. Their commitment now to seeing changes made to protect other lives could not be clearer.

They describe Road Safe America's goals as including:

Educating truck drivers and others about the risks of trucks and passenger vehicles sharing our nation's highways;

"Honoring" the companies, officials and others who help us achieve our mission.

The Owings are being listened to, both by reputable trucking companies that largely support their efforts, and by the government. Steve Owings has been appointed to FMCSA's Motor Carrier Safety Advisory Committee. Their Petition to require speed governors limiting tractor-trailers to 68 mph is in the administrative process, with substantial support of reputable trucking companies.

With Steve's permission, we are linking to this moving video about how he and Susan are making sure other deaths can be prevented by these safety changes, which we will explain in a later post.

We will explain more about Road Safe America and its progress on future posts. We admire Steve and Susan Owings for what they are doing to protect lives in the future.

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Posted In: Automobile Accidents , Truck and Tractor Trailer Accidents , Wrongful Death

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Our firm is currently representing a victim of a very serious tractor trailer collision which occurred on an interstate highway in South Georgia. In this particular collision, four people were killed and numerous other people seriously injured as was our client. We had the privilege of handling wrongful death cases on behalf of two families involved in this tragedy and those cases were resolved by means of settlement and compromise. While we were representing these families, we were contacted by another person (our current client) who also had been involved in the collision. He lives out of state. This person was unfamiliar with the Georgia statute of limitations and had not filed a lawsuit within two years. Here in Georgia, the typical statute of limitations for a personal injury claim is two years from the date of the occurrence. However, effective July 1, 2005, the Georgia Legislature passed a new law which tolls the statute of limitations for tort actions involving victims of alleged crimes. This new provision, little known to members of the Bar and not yet interpreted by any Georgia Court, is found at O.C.G.A. § 9-3-99. It reads in pertinent part as follows:

The running of the period of limitations with respect to any cause of action and tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action and tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.

When we were contacted by this out of state client (after 2 years had passed) concerning his serious injures which arose out of the same collision where our other two clients’ family members were killed, we decided to help him if we could. We filed a lawsuit on his behalf alleging that he was entitled to the “victims rights” benefits of O.C.G.A. § 9-3-99.

The truck driver involved was charged by the authorities with four counts of Vehicular Homicide. His employer, the trucking company, has filed a Motion to Dismiss our client’s case on the grounds that the new victim’s rights statute is allegedly unconstitutional and should not apply to a victim such as our client because he was not specifically named as a victim in the criminal charges filed against their driver. Of course, we contend that this is completely preposterous because our client was as much a victim as were the others, the only difference being that he survived his serious injuries whereas the other four victims were killed.

There is a good reason for the Georgia Legislature to toll the statute of limitations with respect to victims of criminal offenses committed in this state. When the authorities investigate a criminal offense that might also be the basis of a civil tort action against the offender, the victim is prejudiced because the authorities will typically not release to the victim or their representatives any information concerning the underlying investigation until the investigation is terminated. Indeed, the Open Records Act is specifically not applicable to open criminal investigations. Thus, as here, if a truck driver is under investigation for Vehicular Homicide, none of the victims of his acts can typically get access to the District Attorney’s file and cannot get access to the investigator’s file until the prosecution is terminated. In recognition of the impact of a criminal investigation on victims and their families, the Georgia Legislature decided to toll the statute of limitations during the pendency of any criminal investigation until “the prosecution of such crime or act has become final or otherwise terminated.” Rather than indefinitely tolling the statute, the Georgia Legislature, as part of this Bill, enacted a statute of repose which stated that “in no event should the statute exceed six years.” Thus, the rights of the victims are preserved and the rights of the authorities to effectively prosecute the offender was not compromised.

We were honored to represent two different families of the victims of this tragedy and were pleased that we were able to amicably resolve those wrongful death claims. Now, we are in a position where the trucking company who hired this dangerously negligent driver is seeking to dismiss the claims of yet another victim of this tragic collision by claiming that he is “not a victim at all.” Of course, the language of O.C.G.A. § 9-3-99 specifically states that any cause of action in tort that may be brought by the victim of an alleged crime “which arises out of the facts and circumstance relating to the commission of such alleged crime committed in this state” shall benefit from the tolling language of the statute. Thus, we believe that the trucking company’s attempt to declare this statute unconstitutional is not only directed at our single client but at all victims throughout the state because if the trucking company is successful in attacking this piece of legislation, their efforts will affect all victims of crimes throughout Georgia. For obvious reasons, we plan to vigorously defend our client’s rights and the rights of all victims of crime, particularly those victimized by trucking companies who injure others due to criminal acts of negligence committed in this state. We will file further postings on this blog as soon as we can report (as we are confident we will report) that the Court has overruled the trucking company’s challenge to this important victims’ rights legislation.

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Georgia law with respect to the financial responsibility for common carriers needs to be changed and it needs to be changed quickly. Simply stated, the minimum limits of insurance protection that is now available to the public is grossly inadequate and far less than federal limits. It is high time that Georgia enacts legislation which is at least as effective as federal law in protecting innocent members of the motoring public when it comes to the type of carnage that can be inflicted by a negligent trucking company.

In order to operate as a motor carrier in Georgia, a company must first obtain a certificate of public convenience pursuant to O.C.G.A. § 46-7-3. Under rules adopted by the Georgia Public Service Commission, in order to obtain a certificate of public convenience, a carrier must provide the State with a surety bond of only $100,000.00 for bodily injury or death of one person and $300,000.00 for bodily injury or death of all persons involved in an accident. This standard was issued by the Georgia Public Service Commission (PSC) under its Rule 7-2.1. Alternatively, the Georgia PSC stated that a motor carrier could present the PSC with proof of insurance in the same amount and that the proof could be the actual policy itself or a certificate of coverage from the insurance company.

The Certificate of Insurance in Georgia is known as a Form E (Uniform Motor Carrier Bodily Injury and Property Damage Liability Certificate of Insurance). The purpose of this insurance is to protect the innocent members of motoring public who may be damaged by the carrier’s operations. Unfortunately, in a case involving serious injury or death, $100,000.00 is clearly inadequate to address such a situation. Indeed, in any serious case where the injured victim remains in the hospital sometimes for days or weeks, the $100,000.00 minimum limits of insurance coverage is hardly sufficient to even compensate the victim for his or her medical expenses much less lost wages, pain and suffering and/or permanent disability caused by the injury. Unfortunately, the Georgia Legislature which is dominated by a business lobby mentality, does not seem very interested in calling for an amendment to this Rule. “Let them eat cake” seems to be the attitude which we have a hard time understanding. After all, we are talking about innocent victims.

Under federal law, the minimum limits of insurance coverage for the protection of the public is $750,000.00. Most responsible trucking companies carry much more by way of liability insurance coverage then the minimum limits because their assets are at risk in a serous case. Many responsible trucking companies carry 5 - 10 million dollars in coverage, and sometimes more. In a serious case where amputations are involved, paralysis, death or other truly severe injuries, such coverage is necessary to compensate the innocent third party victim who may be involved in an accident with a large truck. If a driver loses control, is speeding, crosses the centerline or otherwise strikes the innocent third party who has done absolutely nothing wrong, one can be assured that with the size of some of these rigs, the innocent third party will be severely damaged. If the person survives the injury, that person may undergo months, if not years, of pain and suffering not to mention a loss of their lifestyle, their job and the emotional stress attendant to such a situation which literally always affects the entire family. In such circumstances, it is ludicrous for the State of Georgia to have coverage limits of $100,000.00 to cover a serious injury or death. Indeed, $100,000.00 is the most any single person can collect from such an accident in Georgia and even if ten people were killed in a van, let’s say, coming back from a church, the most the family members could receive would be a total of $300,000.00 to be divided ten ways from a minimum limits carrier. In short, if a trucking company is irresponsible enough to carry minimum limits, they are still within the law and can operate legally in Georgia. If they have no assets at risk because they are a “fly by night carrier,” they are not likely to carry more coverage.

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