Georgia Truck Accident Lawyers Blog

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.

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.

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.

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.

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.

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.