The minimum liability insurance required for large trucks in interstate commerce was set at $750,000 forty years ago in 1981 at the beginning of the Reagan Administration. Everything else has gotten more expensive in the past forty years. Nothing costs the same since then–not the truck, the repairs, the gas, or the tolls, so it is completely unrealistic for the truckers to have the same insurance as they did forty years ago.

If adjusted for the Consumer Price Index, it would be $2,203,415.84 today. People who are injured by trucking negligence need to pay their medical bills so trucking safety advocates have sought for years to bring some balanced fairness to others on the road. If adjusted to the rate of medical inflation it would be about $5 million.

This year, legislation is moving forward in Congress to adopt a compromise increase to   $2 million as a reasonable compromise.

The principal opposition to this inflation adjustment on minimum insurance coverage for large trucks is the Owner-Operator Independent Drivers Association (OOIDA). While portraying itself as the representative of individual truck drivers, OOIDA operates largely as an insurance company. That is a pattern familiar in several national organizations that portray themselves as grassroots groups but are essentially insurance companies.

On June 10, 2021, U.S. House Committee on Transportation and Infrastructure approved a provision of the 2021 Highway Bill to increase the minimum insurance required for interstate motor carriers for the first time in forty years, from $750,000 to $2,000,000, over the opposition of congressmen allied with OOIDA.

The greatest threat of injury and death to truck drivers comes not from smaller vehicles on the highways, but from collisions with other large trucks. We have represented a number of semi-truck drivers over the years who were badly injured when their trucks were struck by other tractor-trailers. It is ironic that OOIDA would oppose the inflation adjustment of insurance that would protect its own members against the greatest threat of injury to themselves.

The legislative process is contentious. The struggle to update trucking insurance coverage for forty years of inflation is far from over. Those that oppose that update will pull out all the stops in the House Rules Committee and in the Senate to block measures for improved trucking safety and adequate compensation for the victims of large truck crashes.

Call us today at our Atlanta office 404-253-7862 or submit your inquiry online, and find out if we can help.

A senior counsel in the firm of Johnson & Ward, Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law. and Truck Accident Law. He is one of only three Georgia lawyers to earn board certification in Truck Accident Law. He has served as a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its eleventh annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation, and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. Mr. Shigley is a widower, father of two adult children, and an elder in his church. 

Property insurance policies typically include provisions that the policyholder must cooperate in investigation and adjustment. This includes an examination under oath (EUO) — answering a lot of questions from the insurance company’s lawyer. Failure of the policyholder to submit to the examination may preclude even an innocent insured from any recovery under the insurance contract.

Policyholders who represent themselves against insurance company lawyers make fatal errors.

Generally insurance companies may impose almost any conditions upon their obligations so long as they are not inconsistent with public policy.  An insured cannot avoid the binding effect by neglecting to read the insurance policy. With rare exceptions, the policyholder must comply with the conditions in order to hold the insurer liable in court.

Policyholders who appear for an EUO without a lawyer knowledgeable about property insurance law may make fatal mistakes that cannot be undone.

In the decade I spent in a law firm representing insurance companies, part of my work involved property insurance claims, particularly those of suspected fraud and arson. For years I spent a lot of time going through burned out residential and commercial buildings to see the evidence of arson that investigators had found.

In many cases, insurance companies hired me to conduct examinations under oath of policyholders. It was never a contest of equals because so many policyholders either came alone or hired a lawyer who knew nothing about this aspect of insurance law.

No do-overs: Eleventh Circuit decision on policyholder’s fatal error before hiring a lawyer.

In a recently reported decision an Allstate policyholder’s house burned. The insurer developed doubts whether he complied with condition of the homeowner’s insurance policy that the property must be used as a residence. The insurer gave notice for the policyholder to appear for an examination under oath. He showed up, angry and unrepresented, and refused to answer substantive  about his residence until the insurer recanted statements in a letter from its attorney which he found offensive.

The insurance company’s attorney, whose attitude can easily provoke such counterproductive anger, said, “[I]f you do not respond to the questions that are put to you here today, Allstate will treat that failure to respond as a material breach of the contract…. And … refusal to respond could result—probably will result in the denial of this claim for that reason standing alone.” The policyholder stated that he would answer the insurer’s questions but insisted that the insurer recant the disputed statements in the letter first. Of course, the insurance company recanted nothing.

A year later, the policyholder hired a lawyer who demanded payment and offered to have the policyholder appear for an EUO. The U.S. Eleventh Circuit Court of Appeals held that the offer to submit to an EUO a year after refusing to answer questions was too little too late, and ruled for the insurance company. Hutchinson v. Allstate Insurance Company, 2018 WL 3359549 (11^th Cir., decided July 10, 2018).

Long history of courts supporting insurers’ position on EUO’s.

For well over a century, Georgia law has recognized that a policyholder who fails to provide information requested by the insurance company in this process breaches the terms of the policy. That results in loss of the right to collect under the policy. Few excuses for failure to comply suffice. In an early case, the Georgia Supreme Court held that if an insured absents himself so that he cannot be found to be served with an EUO notice, that is construed as refusal to submit to the EUO. Firemen’s Fund Ins. Co. v. Sims, 115 Ga. 939, 42 S.E. 26 (1902)

Cooperation with the insurer’s investigation of the claim, including submitting to an examination under oath, is a condition precedent to the right to recover under the contract. Buffalo Ins. Co. v. Steinberg, 105 Ga.App. 366 (1), 124 S.E.2d 681 (1962).

This is ordinary contract law, which applies to contracts of insurance. “When a plaintiff’s right to recover on a contract depends upon a condition precedent to be performed by him, he must allege and prove the performance of such condition precedent, or allege a sufficient legal excuse for its nonperformance. ” Wolverine Ins. Co. v. Sorrough, 122 Ga.App. 556, 560 (3), 177 S.E.2d 819 (1970). See also, Halcome v. Cincinnati Ins. Co., 254 Ga. 742, 334 S.E.2d 155 (1985).

The intimidating EUO notice.

In cases of suspected insurance fraud, including arson, insurance companies typically have their lawyers send policyholders formal written notices to produce a long list of documents.

The list of documents requested may be overwhelming, especially when the policyholder’s files may have been lost in a fire. It may include several years of records of income taxes, banking, income, expenses, insurance policies and claims, debt, credit records, and the purchase of all the personal property claimed to be lost.

They notify the insured to show up at a specific time and place to answer questions under oath. To appear reasonable and avoid being accused of violating an implied covenant of good faith and fair dealing, the insurer may show some flexibility about scheduling. If the insurance company’s lawyer can subtly bait the policyholder into refusing to answer questions, the insurance company wins.

Possible defenses against EUO notices.

While the law is clear about the requirement for policyholders to cooperate with the insurer’s investigation and participate in an EUO, there are a few circumstances that have precluded summary judgment in favor of the companies. Then the reasonableness of the EUO notice becomes a jury question and may open the door to settlement negotiations. Examples include:

• Medical inability to comply. Blackburn v. State Farm Fire & Cas. Co., 174 Ga.App. 157, 329 S.E.2d 284 (1985).
• Reasonableness of notice for EUO more than sixty days after receipt of a demand for payment before. Northern Assur. Co. of America v. Karp, 257 Ga. 403, 54 S.E.2d 129 (1987).
• Alleged errors in EUO transcript as justification for refusal to sign transcript. Nichols v. Pearl Assur. Co., 71 Ga. App. 378, 31 S.E.2d 127 (1944).

Hire a property insurance lawyer early.

Remember that adage that anyone who tries to represent himself has a fool for a client.

Anyone facing an insurer that sends a notice to appear for an examination under oath should not try to go it alone. It is important to immediately hire a lawyer with experience in property insurance. Many lawyers who are good in automobile insurance matters are clueless about property insurance.

While my practice no longer focuses on this area, I can guide folks to other lawyers who practice property insurance law.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, and past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His Atlanta-based law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. Work on all these types of cases requires expertise in insurance law.

Every summer there are far too many instances of children dying when left in a hot vehicle. One such tragedy involving a child care center without adequate insurance led to a claim against a city government for negligent licensing of the child care center.

Many child care centers in Georgia have no liability insurance because child care centers in Georgia are not required to carry any specific amount of liability insurance. The regulations governing Family Child Care Learning Homes require only “notification of the absence of a liability insurance policy sufficient to protect its clients,” though the amount of insurance that would be  sufficient is never defined. The Rules for Child Care Learning Centers require only that a program seeking an  exemption from licensure “shall comply with the requirements regarding notification to parents of enrolled children if the program does not carry liability insurance.” Parents are asked to sign an acknowledgment that the center “does not carry liability insurance sufficient to protect my children in the event of an injury, etc.”

When I was chairman of the board of directors of a non-profit, church-based child development center, we carried substantial liability insurance, adopted strict policies and procedures, and installed state of the art security technology. We were a rare exception.

If a child is badly injured or killed in many Georgia child care centers, the absence of liability insurance is likely to leave the family without any effective legal recourse.

In the recent case of Calloway v. City of Warner Robins, 336 Ga.App. 714, 783 S.E.2d 175 (2016), a three-year-old child died of heat stroke when left in a hot vehicle for several hours while in the care of workers a child care center. Lacking effective recourse against the child care center and its employees, the parents included as defendants the City of Warner Robins and the city clerk for negligence in issuance of a business license without following certain procedures.

The Court of Appeals (McFadden, J.), held that the city was protected by sovereign immunity because a “municipality’s act of granting or revoking a business license constitutes a governmental function,” even if the issuance of the license was negligent.  Likewise, the city clerk who was sued only in his official capacity was protected by sovereign immunity.

From time immemorial the doctrine of sovereign immunity has restricted citizens’ rights to seek legal redress against the government for its wrongdoing. Georgia has subscribed to the doctrine of sovereign immunity since 1784, when it was adopted by statute from the common law of England. The concept of sovereign immunity is a carryover from the quaint legal fiction that “the King can do no wrong,” which survived the transition from individual absolute sovereign to representative democracy. Limiting the governmental treasury’s exposure to tort liability is the more contemporary justification for the rule.

Whatever the rationale, through most of Georgia’s history, the state enjoyed almost complete immunity for the wrongs of its agents. Sovereign immunity is recognized to be “a harsh doctrine, not an equitable one.” Indeed, it is just the opposite of equity–it is the state declaring that it cannot be sued even where it would otherwise be liable.

The extent to which governmental entities receive the protections of sovereign immunity varies, depending on the type of entity involved and the type of negligence claimed. Generally speaking, the state is subject to a broader waiver of sovereign immunity than counties and municipalities, with the prevailing law being that the state waives immunity unless liability is specifically excluded by the Georgia Tort Claims Act.

The inverse is true of counties and municipalities, which require a specific statutory waiver before they can be liable. In addition to the government’s own immunity, government officials enjoy personal immunity for their allegedly wrongful acts, referred to as official, or qualified, immunity, which is not absolute, but protects them from the burdens of liability and litigation in many circumstances.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.

Uninsured / Underinsured Motorist (UM/UIM) insurance coverage exists to cover your damages when you are injured due to the negligence of another motorist who has little or no insurance. Whenever we meet with a new client who was injured in a car wreck, we review all the auto insurance policies in the household to determine what UM/UIM coverages may be available.

Sometimes that is a big deal. For example, we had a case recently in which the at-fault driver only had the minimum $25,000 liability coverage but out client had $50,000 excess UM/UIM coverage on five vehicles covered under separate stackable policies. That added $250,000 UM/UIM coverage to the $25,000 available from the at fault driver’s insurer.

But when I explain UM/UIM coverage to clients, they often express reluctance to make a claim against their own insurance company for damages caused by another driver. When I explain that is the purpose of UM/UIM coverage for which they have paid premiums, most folks can understand that.

For some people, fear of cancellation or premiums increases underlies reluctance to make a claim on their own policy. We are often asked, “How will making a claim for this accident affect my insurance rates?” The insurance industry has done a great job of scaring customers from using their insurance benefits, even though the insurance company cannot legally punish them for doing so by taking actions such as increasing premium rates.

In Georgia, O.C.G.A. §  33-9-40 provides that an insurer may not surcharge premiums or rates charged or cancel policies as result of insured’s involvement in multivehicle accident when the insured is not at fault. That statute clearly states: “No insurer shall surcharge the premium or rate charged on a policy of motor vehicle insurance or cancel such policy as a result of the insured person’s involvement in a multivehicle accident when such person was not at fault in such accident.”

But what about a risk that the insurance company would refuse to renew the insurance policy at the end of the policy period? O.C.G.A. § 33-23-45 deals with cancellation and nonrenewal of auto and motorcycle insurance policies. It is a long, detailed and convoluted statute. Among other things, it provides:

(C) With respect to any driver or with respect to any automobile or its replacement, except when the replacement is such that together with other relevant underwriting or eligibility rules it would not have been insured as an original policy risk of the insurer, for two or fewer of the following within the preceding 36 month period:

(i) Accidents involving two or more motor vehicles in which the driver of the insured automobile under this subparagraph was not at fault;

(ii) Uninsured or underinsured motorist coverage claims;

(iii) Comprehensive coverage claims; and

(iv) Towing or road service coverage claims.

The key number is two. If you have an accident that is not your fault and then make a UM/UIM claim for that accident, you are within the two events allowed under this code section. The insurance company cannot raise premiums, cancel coverage or refuse to renew your policy. Could an insurer refuse to renew if an insured make a UM/UIM claim for such an accident and also used his comprehensive or road service coverage? Apparently so. But if you use AAA for towing and the other driver’s liability property damage coverage instead of your own for car repairs, then there is risk of lawful nonrenewal based making a UM/UIM claim based on the accident for which you were not at fault.

If there is a notice of nonrenewal, the insured may within 15 days from receipt of the notice ask for a review by the Commissioner of Insurance.

If you have an accident for which you are not at fault, have used your comprehensive or road service coverages to get your own car towed and repaired, and then need to make a UM/UIM claim, you have options. One is to talk with your agent and determine whether the insurance company intends to raise premiums or non-renew your policy. If you can’t get a straight answer, then shop around for other coverage.

Perhaps someone in the legislature will see the wisdom of modifying this statute so that a single accident leading to UM/UIM, comprehensive and towing claims, could not trigger nonrenewal.

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Ken Shigley is Certified Civil Trial Advocate of the National Board of Trial Advocacy, past president of the State Bar of Georgia (2011-12) and chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section.

The approaches to finding significant additional insurance coverage are not really legal alchemy or voodoo.  But they do involve a critical knowledge of subtle complexity gathered over 38 years in law practice that does not appear in books or legal research databases.

It is no secret that big truck wrecks can cause a lot of carnage. When an 80,000-pound tractor trailer bigger than a Sherman tank runs over a small passenger car stopped in traffic at highway speed, a tremendous amount of kinetic energy is unleashed.  We often see the catastrophic outcomes involving multiple fatalities and injuries.

The minimum insurance required for interstate trucking companies has not changed since President Reagan was in office. Even though there has been a lot inflation over the past 30 years and the purchasing power of that insurance has steadily dwindled, all Congress has been able to do is block an inflation adjustment in response to industry lobbying.

Minimum insurance for general freight tractor trailers in interstate commerce was set at $750,000 in 1981. Minimum coverage for interstate hazmat trucks and passenger buses was set at $5,000,000 in 1985.

If the $750,000 minimum insurance limit were adjusted for inflation from 1981 according to the Consumer Price Index, it would be about $2 million. Adjusted at the medical inflation rate, which is more appropriate for personal injury claims, it would be $4,422,000. But we all know how effective Congress is these days.

It’s even worse In Georgia. For trucks operating only inside Georgia, the minimum insurance required coverage for big commercial trucks is only $100,000. That has remained stagnant for decades.

That’s where we come in, searching for additional insurance that is invisible to most lawyers. Here are a few examples.

From $1 million insurance to $50 million insurance. In a truck crash case on an interstate highway in south Georgia with multiple death and injury claims, the trucking company’s insurer insisted that there was only $1 million insurance coverage, so all the families had to just divide that and sign releases. Lawyers for several of the families brought me to look for more coverage. Knowing where and how to look, I found another $50 million of insurance coverage.

 From $1 million insurance to $10 million insurance.  In another recent case involving multiple fatalities in a tractor trailer crash on an interstate highway in Georgia, the trucking company’s insurer represented that there was only a single $1 million insurance policy. They insisted that we needed to have a mediation to decide how to divide that policy and release all claims.  We declined and pursued a combination of intermodal freight and maritime law theories. That led to uncovering $10 million in additional coverage.  We settled confidentially before trial for at least as much as the expected jury verdict value in the small south Georgia county where the case was filed.  Ironically, that was paid mostly by an insurance company that had before suit denied in writing that it had ever heard of the company it insured.

From $250,000 to $2 million. In another case, involving a defective piece of warehouse equipment rather than a tractor trailer, the insurer for the Florida welding shop that made a knockoff work stage on special order, represented that there was only $250,000 insurance for a wrongful death claim. We kept digging and found that company had a cumulative total of $1 million coverage under insurance policies they did not realize overlapped. After collecting that million in Florida, we then came back to Georgia, classified a forklift as an office supply to due the distributor for violation if the Georgia Fair Business Practices Act, and collected their $1 million policy limit. In the end we collected $2 million after the first insurance company insisted there was only $250,000 coverage.

From $25,000 to $400,000.  In one recent case, a log truck was making a u-turn in the dark on a rural highway without proper lights and reflectors. Witnesses said it was not visible until they were “slap up on it.” A man driving to work in predawn darkness was killed. The 18 wheeler log truck incredibly had only $25,000 insurance coverage.  After litigating over insurance coverage and bankruptcy issues as well as the original wrongful death claim, we collected about 16 times that much from the insurer for the logger who loaded the truck and the insurance agent that improperly handled the logger’s phone call reporting  the claim. It was less than the theoretical value of the claim but it was enough for the decedent’s daughters to get a good launch in adult life.

This often requires creatively “thinking outside the box.” I will not publish the methods for free on the internet, but I am happy to assist clients and lawyers anywhere in the country who hire me for that purpose.

Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

The “laying on of hands” can resonate powerfully. In my background, it has spiritual and theological implications as a ritual of blessing or of healing. Can this and other senses beyond sight and hearing also be part of legitimate trial advocacy in conveying truth to jurors?

The Georgia Court of Appeals recently said yes in the context of a case where two experts disagreed on whether there was a difference in temperature of the hands of a plaintiff who had a diagnosis of complex regional pain syndrome (also known as reflex sympathetic dystrophy), due to medical malpractice. (Kudos to Lloyd Bell who ably tried the case and called me to brainstorm about this while the appeal was pending.)

In Piedmont Newnan Hosp., Inc. v. Barbour, — S.E.2d —-, 2015 WL 4316873 (Ga.App.,2015), decided on July 16, 2015, the trial judge allowed jurors to feel the hands of the plaintiff to decide whether there was a difference in temperature. The plaintiff’s expert had testified that such a difference in temperature between the hands was a diagnostic criteria for CRPS. The defense expert said there was no such difference in temperature. The judge let jurors hold the hands and decide for themselves whether there was a temperature differential. The result was a substantial verdict for the plaintiff.

On appeal, the court rejected defense arguments that the trial judge abused his discretion by allowing jurors to make a medical diagnosis, that it made them witnesses who could not be cross-examined, that the exercise had no probative value, and that such a practice has been rejected by other courts around the country.

Federal Rule of Evidence 401 (O.C.G.A. § 24–4–401) states that relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Temperature of the hands was indisputably relevant to deciding whether the plaintiff had CRPS.

The court discussed cases from other states in which jurors were allowed to use touch, taste and smell to determine facts. This included cases where they were allowed to feel a lump in a plaintiff’s arm, fractured skull, arms and legs to determine temperature differentials, and other body parts. The court also cited favorably two old Georgia moonshine cases, Union v. State, 7 Ga.App. 27, 27(4), 66 S.E. 24 (1909) (no error if jurors tasted liquid from jug admitted into evidence in illegal whiskey trial); Morse v. State, 10 Ga.App. 61, 63(3), 72 S.E. 534 (1911) (jurors may utilize all of their senses, including taste and smell, in determining whether liquid was an intoxicating liquor).

What are the implications of this ruling for trial advocacy? How else can lawyers find ways to allow jurors to use all their senses in the search for truth? And how much would be too much, overreaching to the point of turning off judges and jurors?

Consider all the senses and think outside the box. Traditionally, we think of “five senses” — sight, hearing, touch, smell, and taste – a short list credited to Aristotle. But researchers now have expanded the list to 21 senses:

• Sight:  This really includes is two types of seeing based on two distinct types of receptors present, one for color (cones) and one for brightness (rods).
• Taste:  Again, this may be broken down into five types of taste based on different taste receptors — sweet, salty, sour, bitter, and umami. The taste sense, unlike sight, is a sense based off of a chemical reaction. “Umani” is Japanese for pleasant savory taste, when receptors detect the amino acid glutamate, generally found in meat and some artificial flavoring.
• Smell:  Like taste, the sense of smell involves olfactory sensors that work off of a chemical reaction.  Smell combines with taste to produce flavors. Olfactory memory can be powerful and closely linked to deep emotional response. Think of how often your own memories are linked to smells – cookies baking in your grandmother’s kitchen, the smells of nature in a favorite place, etc.
• Touch:  This involves four distinct types of touch sensors perceiving pressure, temperature, pain, and itching.
• Thermoception:  Apart from sense of temperature on touch, this is the ability to sense heat and cold in the environment and internally in the body.  It involves hot and cold receptors and a distinct brain function.
• Sound:  People with normal hearing detect vibrations along some medium, such as air or water that is in contact with ear drums.
• Proprioception:  This sense gives you the ability to tell where your body parts are, relative to other body parts.
• Tension Sensors:  Receptors in muscles allow the brain the ability to monitor muscle tension.
• Nociception (pain):  In the past, pain was though to be just the result of overloading other senses, such as “touch.” But now it is considered its own unique sensory system.  There are three distinct types of pain receptors: cutaneous (skin), somatic (bones and joints), and visceral (body organs).
• Equilibrioception (balance):   The sense that allows you to keep your balance and sense body movement in terms of acceleration and directional changes.  This sense also allows for perceiving gravity.  The sensory system for this is found in your inner ears and is called the vestibular labyrinthine system.  But some people who have lost both vestibular nerves, and thus do not have this sense at all, are able to compensate admirably by use of visual cues. For example, my daughter lost both auditory and vestibular nerves in the removal of neurofibromatosis tumors but has been able to complete triathlons. How do you swim over a mile, bike over 50 miles and then run a half marathon, with no sense of balance? Doctors at Harvard included her in a study to figure it out.
• Stretch Receptors:  These are found in such places as the lungs, bladder, stomach, and the gastrointestinal tract.  A type of stretch receptor, that senses dilation of blood vessels, is also often involved in headaches.
• Chemoreceptors:  An area of the medulla in the brain detects blood born hormones and drugs and controls the vomiting reflex.
• Thirst:  This monitors hydration and tells us when we need something to drink.
• Hunger:  We are all quite familiar with this one.
• Magnetoception:  This is the ability to detect magnetic fields, which is principally useful in providing a sense of direction when detecting the Earth’s magnetic field.  Humans don’t have as much of this as birds that migrate following magnetic fields. But humans do have some sense of magnetoception, though it is poorly understood.
• Time:  Human perception of time varies widely, and may be more accurate when people are younger rather than older. People with brain damage often lose the ability to keep track of time. Others seem to have a biological alarm clock and habitually wake up ten minutes before the time they set on an electronic or mechanical alarm clock. Researchers have determined that the mechanism we use for sensing time involves the cerebral cortex, cerebellum, and basal ganglia.

I am not smart enough to immediately think of appropriate ways to employ all these senses of jurors in trial advocacy. However, here are a few examples both commonplace and slightly outside of customary usage. Any lawyer tempted to try techniques that are not customary should seek the judge’s permission in advance and have a trial memorandum to show the judge that it really is OK to allow a slightly unconventional demonstrative aid.

• Smell. Olfactory memory can be emotionally powerful and a tremendous tool in persuasion.
  • Alcohol. If alcohol is at issue, one could use containers of the type of alcohol involved as demonstrative aids during closing argument, open and pour them while talking, thus filling the courtroom with the smell of beer or whiskey. I tried this in a mock trial at the Ultimate Trial Advocacy Course at Harvard years ago, but have never had the right occasion to try it in court.
  • Drugs. I started out as a prosecutor. It was not unusual to have officers testify about the smell of drug contraband. One could also give jurors the opportunity to smell a bag of marijuana, for example, as jurors were allowed to taste moonshine in old Georgia cases.
  • Charred materials. We sometimes have cases in which vehicles burned and the contents have smoky, charred aroma. A customary response is to just get photos of those things and keep the nasty smells out of our files and offices. But introduction into evidence of smelly remains from fires could powerfully reinforce the reality of the fire.
  • Chemicals. Where appropriate and with suitable precautions, jurors could be allowed to smell brake fluid, gasoline and other chemical that are involved in a case.
• Touch. As in cases cited by the Court of Appeals in Barbour, jurors may be invited to lay hands on the injured person to confirm aspects of any injury tactilely as well as visually. A possible side effect may be in forming a connection between jurors and the person they actually touch.
  • Rough scars. Discoloration from a laceration or burn may fade, but the skin remains uneven, bumpy or of an unnatural texture.
  • Unevenly healed fractures. Even when bones knit together, there may be a palpable lumpiness at the fracture site. Jurors could feel that.
  • Medical implants. If an injured person has some sort of medical implant palpable from the outside – plates and screws in an arm or leg, screws securing a rod in a femur, feeding tube, port for chemo, etc. – jurors might be invited to feel from the outside what is visible only on radiology images.

Perhaps lawyers more creative than I will think of ways to use others of those many senses for communicating the truth to jurors at trial. In doing so, however, lawyers should take care not to just develop a “bag of tricks” but to employ all the senses as a means of communicating truth.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of the Institute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

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Clients who have been injured often express concern about their medical bills showing up on credit reports, harming prospects for major purchases, credit cards, employment and even security clearances in their work.

Anyone looking for a job, applying for a mortgage or car loan, renting an apartment, getting a cell phone, or seeking a new or renewed credit card can be affected. Those who work in sensitive roles in the financial services industry and in jobs requiring national security clearances have additional headaches when medical bills that remain unpaid pending a settlement show up on credit reports.

After a significant injury, it can take months or years to get the insurer for the party responsible to settle, and most will not pay anything on medical bills until the entire case is settled. Even if the person injured has health insurance or medical payments coverage under an auto insurance policy, insurers can take months to process payments, looking for any excuse to stall or cut payments.

Such delays can result in medical providers reporting unpaid balances to credit reporting agencies. Until now, those medical bills could linger on a person’s credit report for years, even long after the balances were paid off. We have seen individuals haunted by bad credit reports resulting from balances that the medical providers had never bothered to bill to insurance and had mailed to the wrong address for the patient. Only when trying to buy a car years later did the patient become aware of those balances for which no bills had ever been received.

Now, due to action by the Attorney General of New York, the three major credit reporting agencies — Experian, Equifax and TransUnion — have agreed to a nationwide change in their practices regarding reporting of medical debts. Under this agreement, the three companies will:

• Establish a six-month waiting period before reporting medical debts on consumers’ credit reports. This will providing more time for consumers to resolve issues that might amount only to a delayed insurance payment or another dispute. That is not enough time to resolve most liability cases, but it does allow some opportunity for dealing with recalcitrant health insurance or auto medical payments coverage.
• Remove medical debts from an individual’s report after the debt is paid by insurance. While I am not naïve enough to believe this will happen automatically, it will help folks get their lives back to normal after a long ordeal with an injury or illness.

In practice, we often try to avert medical bill balances ever being reported to credit agencies by communicating with the medical providers about the status of clients’ cases. When a particular provider is unwilling to voluntarily defer reporting, this change in practices by credit reporting agencies will help.

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Ken Shigley is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, lead author of Georgia Law of Torts: Trial Preparation & Practice, and a double board certified civil trial attorney.

However, a case decided by the Georgia Court of Appeals on May 26, 2012 reveals a trap door for the unwary in the exercise of this right. Cox v. Progressive Bayside Ins. Co., __ Ga. App. __, __ S.E.2d __, 2012 WL 1860704 (Ga.App., 2012).

In that case, Cox filed suit against Dobson within the two year limitation period for her injuries. Dobson was an uninsured motorist. Cox successfully had Dobson personally served with the suit papers.

After expiration of the limitation period, Cox dismissed without prejudice and refiled within six months pursuant to OCGA § 9–2–61.  However, because Dobson had diedm Cox did not get personal service on him.  Eight days after the renewal action was filed, the sheriff reported that Dobson was dead.

If Cox had promptly asked the probate court to appoint an adminstrator for the estate of Dobson, filed a motion to substitute the administrator as defendant, and served the administrator with the lawsuit, Cox would have been OK>

Progressive, as uninsured motorist (UM) insurance carrier filed a suggestion of death. Cox failed to file a motion to substitute an executor or adminstrator for Dobson. Eleven months later, the court granted a motion to dismiss.

The Court of Appeals, in a decision written by Presiding Judge Mikell, held:

Cox did not meet the procedural requirements of perfecting service against Dodson because he was deceased at the time she filed the renewal suit. In Georgia, a deceased person cannot be a party to legal proceedings and any suit brought against a deceased defendant is a nullity.^FN5 The fact that Cox may have perfected service against Dodson in the prior suit does not affect the fact that she has not perfected service against him in the renewal suit and accordingly, no action was ever commenced. . . . Because the renewed complaint was filed against a deceased person and Cox never attempted to substitute defendants prior to the trial court’s hearing on the motion to dismiss, we find that the trial court did not err in denying Cox’s request to substitute parties.

In a typical uninsured motorist case where the tortfeasor has died, estate administration is likely to be as absent as liability insurance. To enforce rights under uninsured motorist insurance coverage, it may be necessary to have a county administrator appointed as administrator of the decedent’s estate in probate court. The administrator can be served or acknowledge service in the injury suit. The plaintiff’s attorney must also separately serve the auto insurance company under the UM coverage.

If the deceased tortfeasor was from outside Georgia, questions might arise about jurisdiction of a Georgia probate court to appoint an administrator for this purpose. However, in Tweed v. Houghton, 103 Ga.App. 57, 118 S.E.2d 496 (1961), the court held that potential liability insurance coverage could be an asset of the estate warranting appointment of an administrator in a county where there would have been venue against the decedent nonresident motorist if he had lived. If, for example, there had been coverage on the decedent’s vehicle which was either inadequate or denied due to nonpayment, that can provide the basis to have an administrator of the estate appointed and served. Then, when the UM carrier is served, it cannot defend on the ground that the tortfeasor’s estate was not served.

In serving any lawsuit, it is important to read the return of service papers that come back from the sheriff. If there is a note that the defendant could not be served, it is vitally important to follow up. If the defendant has died, it is important to promptly investigate and if necessary get the county administrator appointed so that there is someone who can be served with process on behalf of the estate.

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Ken Shigley is Immediate Past President of the State Bar of Georgia and currently chair of the board of the Institute for Continuing Legal Education in Georgia, so he is well respected among judges, lawyers and court officials across Georgia. He has successfully handled cases in many of Georgia’s 159 counties from the mountains to the sea. Mr. Shigley has dual board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification. He has spoken on  continuing legal education programs from coast to coast and is now on the boards of the American Association for Justice Motor Vehicle & Premises Liability Section and Trucking Litigation Group.

In practice, however, the system is absolutely riddled with inefficiency. While Medicare’s contract with its sole source recovery contractor, Chickasaw Nations Industries, calls for providing a “conditional payment letter” within 30 days after request, that does not happen. We have had cases where it took 6 to 12 months to get the “conditional payment” number from them, and even then it is not a reliable number.

Legislation now pending in Congress, HR 4796, the Medicare Secondary Payer Enhancement Act of 2010 would correct this problem by requiring the Center for Medicare Services (CMS) to respond to requests for their lien amount within 60 days. Self-funded by a $30 application fee, this bill costs the taxpayers nothing, and it has the broad support of coalitions in insurance, large businesses and plaintiffs’ trial lawyers, all of whom have been frustrated by the inefficiency of the current system. The bill may not be perfect, but it is a vast improvement over the current mess.

The Medicare Secondary Payer system at present makes it extremely difficult to reasonably settle cases and impairs access to justice by making it uneconomical for lawyers to represent seniors on Medicare in injury cases. HR 4796 should be passed.

Ken Shigley is president-elect of the State Bar of Georgia and author of Georgia Law of Torts: Trial Preparation & Practice. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale).

Mr. Shigley is a truck and bus safety trial attorney representing seriously injured people and families of people killed in tractor trailer, big rig, semi, intermodal container freight, log truck, cement truck, dump truck, log truck and bus accidents statewide in Georgia.  He has extensive experience representing parties in interstate trucking collision cases, He served as chair of the Southeastern Motor Carrier Litigation Institute and is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice. In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases.

This post is subject to our ethical disclaimer.

The Medicare Secondary Payer (MSP) system was intended to ensure that Medicare does not pay for health care services when a third party-for example, a group health or workers’ compensation plan-has primary responsibility. However, I cannot believe that anyone who ever spent a day litigating on either side of personal injury cases had any voice in designing the system.

The current MSP system is unwieldy and impossibly sluggish. It makes it difficult to obtain reliable verification of the amount of a Medicare lien and retains antiquated procedures for communicating with the Medicare bureaucracy, meaning delayed justice for plaintiffs and delayed payback of Medicare benefits to the government. Moreover, if a party responsible for repaying funds to Medicare disagrees with bureaucrat’s calculation, the appeals process is slow, arcane and obscure. (We won one of those administrative appeals last year, but it took forever.)

As a result, plaintiff lawyers sometimes must delay settlement negotiations and routinely hold settlement funds in escrow for many months and even years while attempting to verify and resolve Medicare liens. In some cases, Medicare has demanded additional reimbursement after a case has been settled and funds have been distributed.

Personally, I have cases where we have been waiting over a year after a liability settlement for Medicare to say how much a client must reimburse. In one case, we wrote to the Medicare office that handles the initial requests for information last December and still have not even received a response despite numerous phone calls in which we had to sit on hold for an hour or more before getting a nonresponsive clerk who could not tell us anything except to check back in a few weeks.

There has to be a better way.  The Medicare Advocacy Recovery Coalition (MARC) is working on legislation that would solve many of the recurring problems with the MSP system. MARC’s broad-based membership includes major insurers, large corporations, consumer advocates and trial lawyers.  This coalition is supporting the Medicare Secondary Payer Enhancement Act (MSPEA), which will streamline and expedite MSP procedures and provide some certainty that will benefit all involved in resolving third-party liability claims.

The MSPEA (H.R. 4796), which enjoys bipartisan sponsorship, would establish a workable procedure for parties to determine how much is owed to Medicare before a case is settled, create a right of appeal for parties who disagree with CMS’s calculation of the amount due, and establish a reasonable period of limitations. One notable feature: Plaintiffs may calculate the amount they believe is due, and Medicare will have 75 days to appeal that calculation. Or plaintiffs may request a final reimbursement amount, and CMS will have only 60 days to respond or lose its right to reimbursement.

This makes all kinds of sense. It would enable us to handle Medicare reimbursement essentially as we did prior to the past year and a half.  Even though it involved “coloring outside the lines” I would routinely calculate the amount owed to reimburse Medicare, and send them a letter with the calculation and a check. Six months later I would get a letter scolding me for not getting the official number from Medicare first, and a couple of years later I would get a second letter accepting my number. Now they say that if I don’t follow an incredibly slow bureaucratic procedure — by which time the client may be dead of old age — I am subject to draconian personal consequences.

On a related front, there remains considerable confusion and misinformation concerning set-aside requirements for third-party liability claims under §111 of the MSP Act. Many insurers and defendants erroneously require set-asides as a condition of payment. This misinformation has the effect of impossibly delaying settlements for senior citizens who are injured and have legitimate claims.

Ken Shigley is treasurer of the State Bar of Georgia, of which he has been elected to become president-elect on 6/19/10 and president on 6/4/11.

Mr. Shigley is a truck and bus safety trial attorney representing seriously injured people and families of people killed in tractor trailer, big rig, semi, intermodal container freight, log truck, cement truck, dump truck, log truck and bus accidents statewide in Georgia.  He has extensive experience representing parties in interstate trucking collision cases, He served as chair of the Southeastern Motor Carrier Litigation Institute and is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice.

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases.

This post is subject to our ethical disclaimer.

Increases of car and insurance rates of 5% to 11% in Georgia this year are — accordnig to insurance industry sources and experts — attributable to:

• the recession
• investment losses by insurance companies
• hurricanes
• rising cost of auto repairs

There is no mention of liability claims losses as a factor in rising premiums.

But I bet by the time of the next legislative session the insurance industry lobbyists will invent a way to blame all premium increases on injury victims, lawyers and juries.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is Secretary of the 40,000 member State Bar of Georgia.

In today’s economy, however, we can’t take anything for granted.  With the giants of industry and finance in deep trouble, insurance companies are not immune.  Heavily invested in stocks and commercial real estate, insurers are vulnerable to the downdraft in those sectors.

Reinsurers face similar problems. Reinsurance is a means by which an insurance company can protect itself with other insurance companies against the risk of losses. Insurance companies offset some of their risk exposure by selling it to reinsurers.

Due to the recession, the bear market and the credit crisis, more insurance companies are looking to reinsure more of their books of business in order to free up capital. But the reinsurance companies are facing all of the same problems, plus in some cases poor international currency exchange rates.

Reuters reported on April 1 that reinsurance rates for property catastrophe insurance rose by an average 8% worldwide based on January renewal rates. Reuters also reported in the same news release that reinsurance costs for US catastrophe risks rose by as much as 40% in 2008. So, it is clear that insurers around the world, and especially in the US, are struggling to find ways to reduce their risks in this very bad economic and financial time.

In this highly integrated world economy, everything is intricately interrelated. Problems in financial markets and real estate hurt insurance companies, which in turn hurts anyone who relies upon payments by insurance companies.

And when insurance companies experience financial problems, even in relatively ordinary times, they typically blame people who have been catastrophically injured for running up “frivolous” lawsuits, and push for new rounds of “tort reform.”  In other words, bad things roll downhill.

So what are mere mortals to do about this?  I have my own ideas, but don’t choose to publish them and give the other side of my cases a window into my mind.

Ken Shigley is a trial attorney in Atlanta, Georgia who was recently listed for the fifth consecutive year as a “Super Lawyer” (Atlanta Magazine).  He is also included among the “Legal Elite” (Georgia Trend Magazine) and in the Bar Register of Preeminent Lawyers (Martindale).  Mr. Shigley is a Certified Civil Trial Advocate of the National Board of Trial Advocacy. With longexperience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases, he now serves as Secretary  of the 40,000 member State Bar of Georgia.

Reportedly the Obama administration is considering a proposal to bill veterans’ private individual insurance carriers for treatment of service-related medical conditions at Veterans Administration medical center.  Currently the VA bills insurer only for treatment that is not service related.

As reported by Fred Lucas at CNS News, veteran groups are understandably negative about the idea.  They are concerned that shifting more of the cost to private insurance will do several things:

1.      drive up premiums for veterans;

2.      make it more difficult for injured veterans to find and retain health insurance;

3.      discourage employers from hiring disabled veterans; and

5.      make a war injury a pre-existing condition.

The other side of the debate is the concern that health insurers are getting a free ride, according to Adam Levine of CNN.

Senator Patty Murray (D.- Wash.) said,  “I believe that veterans with service-connected injuries have already paid by putting their lives on the line for our safety. When our troops are injured while serving this country, we should take care of those injuries completely. We shouldn’t nickel and dime them with their care.”

Indeed, generations of America’s youth have marched off to war with the promise that if they were injured fighting for our country, Uncle Sam would take care of the service-related medical needs.  That promise should be kept.

The toughest choices are not between good and bad, but between good and good, and between bad and bad.  But whatever decision is made, let’s hope the priority is on keeping faith with the veterans who took the bullets and the bombs for the rest of us.

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UPDATE 3/19/09 – The news today is that the administration has abandoned the proposal to shift veterans’ medical expense to the veterans’ private insurers. 

Ken Shigley is a trial attorney in Atlanta, Georgia who was recently listed for the fifth consecutive year as a “Super Lawyer” (Atlanta Magazine).  He is also included among the “Legal Elite” (Georgia Trend Magazine) and in the Bar Register of Preeminent Lawyers (Martindale).  Mr. Shigley is a Certified Civil Trial Advocate of the National Board of Trial Advocacy. With longexperience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases, he now serves as Secretary  of the 40,000 member State Bar of Georgia.

An often overlooked factor is that a lot of trucking insurance policies include substantial uninsured motorist (UM) insurance coverage.

That means that if a truck driver is killed or seriously injured due to negligence of a motorist who has only $25,000 coverage, the truck’s UM coverage is available for damages above $25,000 up to the limits of the policy.

Today I received an insurance policy in a case where I represent the folks  who were hit by an inattentive truck driver.  The policy includes $1,000,000 UM coverage.  If the roles had been reserved, the truck driver or his survivors would have been able to collect up to the $1,000,000 UM coverage.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is Secretary of the 40,000 member State Bar of Georgia.

Since automobile insurance became widespread in the 1920s, there has been a symbiotic relationship between tort law and liability insurance.

As a practical matter, the evaluation of personal injury claims is focused on three elements 

• tort liability of the defendant(s) (often a complex analysis of duties and breach of duty in itself),
• damages (which must be proximately caused by the defendants’ acts or omissions, and
•  the amount of liability insurance coverage.

In the current economy, we have to add another category of analsyis:

• financial health of the defendant’s insurance company.

This week there was news that A.M. Best Co.  downgraded the financial strength ratings of key subsidiaries of The Hartford Financial Services Group, Inc. from A+ (Superior) to A (Excellent).  The downgrade was due to its general account investment portfolio and retail variable annuity businesses. But one must wonder when and how problems in the corporate family will impact payment of claims in the property and casualty lines.

Recently we have also seen AIG’s meltdown, and concerns about Lincoln National, Prudential and other insurers.

Forbes reported a couple of weeks ago, in an article by Ieva Augstums, about the stress the recession places on the business model of the insurance industry.  Typically, insurers have made money by investing premium dollars before they have to pay out claims. But cratering stock prices and interest rates put stress on that business model, leading to concerns that insurers will have to dip into reserves to pay claims. The ripples are seen throughout the insurance industry.

In our catastrophic personal injury practice in Atlanta, we now regularly monitor reports on the financial health of defendants’ insurers.  Concerns about the economy may lead to efforts to get some cases on trial calendars faster, lest declining health of insurers might later cause more problems.

And this month I’m writing a paper for a seminar presentation in San Diego in July about what to do when trucking companies and their insurers go belly up.

We do live in interesting times.

Ken Shigley is a trial attorney in Atlanta, Georgia who was recently listed for the fifth consecutive year as a “Super Lawyer” (Atlanta Magazine).  He is also included among the “Legal Elite” (Georgia Trend Magazine) and in the Bar Register of Preeminent Lawyers (Martindale).  Mr. Shigley is a Certified Civil Trial Advocate of the National Board of Trial Advocacy. With longexperience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases, he now serves as Secretary  of the 40,000 member State Bar of Georgia.

Of course it is seldom if ever possible to identify the vehicle from which a ladder or mattress fell unless there is some unique identifying marking through which the owner can be traced. 

One might naturally think that the remedy for a person badly injured due to the dropped ladder or mattress creating havoc on the freeway would be through one’s own Uninsured Motorist insurance coverage. However, the Georgia Court of Appeals says no.

In Hohman v. State Farm Fire & Cas. Auto. Ins. Co., 283 Ga.App. 430, 641 S.E.2d 650 (2007), the injured person crashed when he swerved to avoid contact with another vehicle which was swerving around a ladder in the road. State Farm, as the uninsured motorist insurance carrier, admitted that there was an eyewitness to corroborate that there was a ladder in the road that led to the chain reaction.  However, the Court of Appeals went along with State Farm’s position that a UM claim could be made only if there was an eyewitness to corroborate ” it was entitled to summary judgment on Hohman’s claim because no eyewitness can corroborate her contention that the John Doe defendant was negligent in failing to properly secure a ladder to his vehicle and in leaving the ladder in the roadway since no witness, including Hohman, saw a vehicle carrying  a ladder or saw a ladder fall onto the highway from a vehicle.”

Of course the person who crashes because of the ladder in the road is no position to chase down witnesses on the expressway who have dodged the ladder and sped on.  In the real world, it is highly unlikely that a ladder or mattress would wind up in the expressway unless it were negligently loaded, and equally unlikely that a witness who saw the ladder fall from a vehicle would see a wreck in the rear view mirror, stop, back up on the expressway, and give his name to the police who arrive later.

Under the Georgia Court of Appeals decision, the family of a person killed in a crash caused by the ladder dropped in the expressway by some bum who kept going, and who has paid premiums over the years for uninsured motorist coverage, essentially has no opportunity to use that coverage.

The Georgia Court of Appeals is, I understand, the busiest state appellate court in the United States in terms of cases per judge.   In such an overworked and understaffed appellate court, sometimes decisions are cranked out that just don’t make a lot of sense.

I suppose the only remedy in these cases would be if the police could secure the ladder or mattress, conduct a forensic investigation to trace the fallen object, and identify the vehicle from which it fell. That is extremely unlikely unless there is a death and the prospect of a vehicular homicide prosecution.

Ken Shigley is a seasoned trial lawyer practicing statewide  in Georgia,   A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed in the Bar Register of Preeminent Lawyers, as a “Super Lawyer” (Atlanta Magazine) and among the “Legal Elite” (Georgia Trend Magazine).  He is currently Secretary of the 40,000 member State Bar of Georgia. He is available for free consultations  about serious injury and wrongful death caes, either online or by toll-free call to (877) 778-7944

In the past year or so a number of insurers have represented to claimants that they were using a formula approved by the Insurance Commission that set a definitive amount for valuation of diminution of value.  That was incorrect. 

Today the Insurance Commissioner is issuing a directive to insurance companies to “cease using any language which implies the Department has endorsed a particualr formula or method to determine diminution of value.”

Instead, the Commissioner is informing insurance companies:

Effective immediately, any insurer disseminating information and/or appraisals to their insureds shall cease using any language which implies the Department has endorsed a particular formula or method to determine diminution of value. Specifically, any insurer disseminating information and/or appraisals to their insureds shall cease using any language which implies that the Mabry decision or any other requirement of the Department supports the proposition that the diminished value result obtained by a carrier’s use of a particular formula or method constitutes the definitive determination of the carrier’s liability to its insured. Any insurer not complying with this Directive will be subject to appropriate disciplinary action.

High fuel prices, dependence on foreign oil, hurricanes, the subprime mortgage meltdown, the economic rise of China and India, the ongoing cost of war in Iraq and Afghanistan, and deferred spending on infrastructure combine to affect both trucking and insurance.

Prices of oil and other commodities have risen over the past few years due in large part to the increased world demand accompanying the economic development of China and India. Prices are moderated by any economic slowdown that decreases demand. However, even with such fluctuations, fuel prices remain several times greater than a decade ago.

Hurricanes, which some folks say have increased in intensity due to global warming, temporarily impact fuel prices when they hit production, refinery and port capacity in Louisiana and Texas. At the same time, payment of hurricane losses impacts an insurance industry that has already been impacted by investments turned sour.

In trucking, high fuel costs have both direct and indirect impacts. The direct impact of high fuel prices on truckers is obvious. Moreover, I keep getting anecdotal reports that motor carriers collect fuel surcharges and too often fail to pass it on to independent owner operators who actually purchase the fuel. The indirect impact is on demand, as shippers shift more long-haul business from trucks to rail. Any slowdown in the economy further depresses demand for shipping.

As more shipping shifts from long-haul trucks to multimodal freight logistics systems involving both long-haul rail and short-haul trucking, we are likely to see more freight containers bolted to poorly maintained trailer chassis. There will be a shift in the technical, regulatory and insurance issues involved in trucking accidents that result.  Unfortunately, judges who have poor understanding of trucking regulations and case law will not comprehend what is going on and render simplistic judgments with devastating impacts on innocent victims.

Under economic pressure, we can expect many trucking companies to cut corners on all aspects of safety. Those companies that carry more insurance than the law requires will be tempted to bet the company that, despite compromises on safety, they won’t face catastrophic injury claims.

Another result  of the economic conditions is a shakeout in the industry. I keep hearing reports of owner operators just walking away from rigs they can’t pay for any more. I expect we will see a trend toward reduction of capacity and consolidation in the trucking industry.

At the same time, the financial crisis that began with the meltdown in subprime mortgage-backed securities has reached beyond investment banking to the insurance giant AIG. Laying aside any feelings of schadenfreude (joy about another’s misfortune) due to the arrogant corporate culture of AIG under the leadership of former CEO Hank Greenberg, we have to recognize the large role of AIG in the insurance industry. As the implications of its downfall ripple through the insurance industry, I expect to share the pain.

While AIG is the teetering giant in the news today, we will soon find that the impact of the financial crisis is widespread in the insurance industry, affecting both the insurance companies that are familiar to the public and the reinsurers that loom in the background. If reinsurers begin to fail, watch out.

The insurance industry has a long history of blaming injury victims and trial lawyers for its own investment losses. Every time there is a financial crisis in which investments turned sour affect the insurance industry, it is soon followed by a new round of premium increases coupled with demands for “tort reform” as insurers blame injury victims and trial lawyers for their problems. But more often than not, the crisis is to due investment losses rather than underwriting losses.

Due to the financial meltdown, we are likely to see increasing insurance premiums for everyone, including truckers. For truckers who are already struggling, some may be put out of business by inability to purchase coverage at any price.

Some of the implications for public safety on the highways are obvious, as trucking companies struggle to make profits under these economic conditions, too many will cut corners on safety.

The end result will be that more people will be killed or injured. Lawyers like me will represent the victims. Insurance and trucking companies will fight even harder to avoid paying claims. Stubborn refusals to pay legitimate claims will result in more trials of cases they should settle, and more large jury verdicts.

So much for the macroeconomics. On the microeconomics side, families that are devastated when trucking companies operate in an unsafe manner need to understand that the insurance companies send “rapid response” teams to scenes of serious accidents, and will try to lull them into complacency while crucial evicence is “lost” or destroyed. Time is of the essence as it is essential to take early action to preserve evidence. We are prepared to fight the good fight against trucking and companies that are determined to avoid and delay payment of legitimate claims.

Ken Shigley served as chair of the Southeastern Motor Carrier Litigation Institute, co-sponsored by the Georgia, Alabama, Tennessee and North Carolina Trial Lawyers Associations.  He is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is actively involved in the Interstate Trucking Litigation Group of the American Association for Justice.  He has won multi-million dollar jury verdicts in trucking cases and lectures on trucking and insurance topics at national continuing legal education programs. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he is also a Master of the Lamar Inn of Court at Emory Law School, a faculty member for ten years at the Emory University Law School Trial Techniques Program, and was recently elected Secretary of the 39,000 member State Bar of Georgia.

http://www.youtube.com/watch?v=hoAm6cTgAXA

Ken Shigley is a former chairman of the Georgia Insurance Law Institute and the Tort & Insurance Practice Section of the State Bar of Georgia.  A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he is also a Master of the Lamar Inn of Court at Emory Law School, a faculty member for ten years at the Emory University Law School Trial Techniques Program, and was recently elected Secretary of the 39,000 member State Bar of Georgia.