Over decades of representing victims of catastrophic truck crashes and their families, we often have seen fly-by-night truckers hired by larger entities that knew or should have known of the dubious safety records of the truckers they hired. Sometimes we have been able to assert claims against the larger companies for negligent hiring of unsafe truckers.

For several years, insurers for trucking freight brokers have tried relentlessly to use the Federal Aviation Administration Authorization Act (FAAAA) to preempt claims for negligent selection of unsafe motor carriers. The defense position has been that the FAAAA, 49 U.S.C. § 14501(c)(1)) trumps all other state and federal rules authorizing liability of motor carriers, brokers, and freight forwarders. That code section says:

“General rule.—Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.”

However, the same section states includes a “safety exception”:

(2)Matters not covered.—
Paragraph (1) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle, or the authority of a State to regulate carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization.

This statute out of the Airline Deregulation Act of 1978, which was codified in 1994 and recodified in 1995.  Though it was focused on contract and frieght claims, clever defense lawyers sought to expand it to block personal injury claims.

However, preemption of persoanl injury and wrongful death claims arising from truck crashes is based on an overly restrictive construction of what it means to “relate to” a service “with respect to the transportation of property.” The connection between the intended scope of the FAAAA on contractual and freight claims and claims for personal injury and wrongful death is too “tenuous, remote, or peripheral” for such preemption to pass the “smell test” of common sense.

In the case of C.H. Robinson v. Miller, a tractor trailer crossed the median on I-80, flipped over, blocked all lanes of travel, and caused a crash that rendered a 30-year-old man quadriplegic for life. C.H. Robinson was a freight broker that placed a load with a “chameleon” motor carrier—a truck company that changes names and applies for a new USDOT number to avoid government fines and insurance premiums. The lawsuit also asserted that the chameleon motor carrier has a history of  serious safety violations,  over 40% of its trucks were found illegally on the road when stopped for random inspections, that they had been cited many times for hours of service violations and false log books, and their percentage of out of service violations is twice that of the national average. All that information was accessible to the broker through the Federal Motor Carrier Safety Administration website.

However, the broker argued that all claims for negligent selection of the trucking company were barred by the FAAAA. A federal district judge in Reno went along with that argument. However, the US Ninth Circuit Court of Appeals agreed with the district court that common law negligence claims against brokers are not preempted because they fall within the FAAAA’s “safety exception.”

The freight broker petitioned the U.S. Supreme Court to reverse the Ninth Circuit’s rejection of the FAAAA defense. Several industry groups filed amicus (friend of the court) briefs supporting the broker’s position on FAAAA preemption. This week, the Supreme Court denied that petition. Lawyers for injury victims across the country breathed a sign of relief.

However, this is not a Supreme Court decision on the merits. Lawyers for frieght brokers, trucking companies, insurance companies, and their allies in big business will continue to argue for FAAAA preemption. As we have seen in other, more newsworthy court decisions, eternal vigilance is required to guard against  established rights being taken away by a majority on the U.S. Supreme Court. Eternal vigilance is required to protect future victims of truck crashes.

Kudos to my friend, Rena Leizerman, and Public Citizen for their hard work in beating back the industry claims of preemption. She and her husband, Michael, from Toledo, Ohio, will represent the quadriplegic injury victim at trial in 2023

If you or a loved one has suffered a femur fracture in a truck, car or motorcycle crash in Georgia, contact us online or call us at 404-253-7862.

Johnson & Ward has been a leading personal injury and wrongful death specialty law firm in Atlanta since 1949.

senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy, and Truck Accident Law). In 2019, he received the Traditions of Excellence Award for lifetime achievement. Mr. Shigley was lead author of  eleven editions of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010-21). He graduated from Furman University and Emory University Law School.

Log trucks crashes are distressingly common tragedies across rural Georgia, often causing death or terrible injuries.

Most log trucks operating in the middle of Georgia operate exclusively intrastate, inside the state of Georgia, and do not cross state lines. They are governed by the Georgia Forest Product Trucking Rules, which exempt applicability of numerous provisions of the Federal Motor Carrier Safety Regulations. Log trucks operating near state lines may cross into neighboring states, subjecting them to the Federal Motor Carrier Safety Regulations.

Length of loads.

Log trucks in rural Georgia frequently operate in darkness with tree length loads extending 20 feet beyond the rear of the trailer. Often the logs sag down in the rear, obscuring trailer tail lights. This presents severe hazard both when drivers approach from the rear under circumstances in which the end of the load is not clearly visible.

Here a photo from a crash in which an eyewitness confirmed that the rear of the load was sagging and the amber light on the end of the load of logs had been flickering on and off for 10 miles before the log truck turned only to major highway. Miraculously, the driver of the pickup truck survived.

Extended log loads also create a hazard when a log truck turns and the end of the load swings out into another lane.

Conspicuity of projecting loads.

“Conspicuity” is a fancy word for visible. It means “easily seen or noticed; readily visible or observable.” When loads extend more than four feet from the end of the trailer, they are required to have a strobe or LED light flashing 60 times per minute and plainly visible from 500 feet. See O.C.G.A § 40-8-23  and Georgia Forest Products Trucking Rules, Section 4-393.11PL. Unfortunately, many local law enforcement officers and even state troopers have too little training to recognize violations and their significance. They often ignore violations and blame dead victims.

For daytime conspicuity, the end of the load must also be marked with a flag of bright red or orange fluorescent color and shall be not less than 18 inches square. Of course, a flag alone is no help in the ark.

In addition, the Georgia Forests Products Trucking Rules include specifications and diagrams for placement of reflectors and reflecting tape. In the real world, those rules are rarely enforced. Here is a comparison between the requirements and reality in a log trailer involved in a fatal crash when it made a U-turn across traffic lanes in predawn darkness,

With the overloaded log truck violating the rules on lights and reflectors, here is an illustration of what was visible to an oncoming driver about a second before impact with logs extending in the dark across his lane of travel.

Insurance.  Intrastate commercial trucks operating only in Georgia, including log trucks, are only required to carry $100,000 liability insurance coverage, which is horribly inadequate in any of the catastrophic crashes they are likely to cause. Many, however, are contractually bound by paper companies to which they haul logs to carry $1,000,000 liability insurance.

Logging trucks near state lines may cross to paper mills in neighboring states. When operating in interstate commerce, they are subject to the Federal Motor Carrier Safety Regulations. Interstate commercial motor vehicles are required to have at least $750,000 liability insurance coverage, but most have $1,000,000 coverage, sometimes more. When dump trucks haul certain agricultural commodities within 150 miles from the source, they are exempt from certain regulations.

Log truck drivers generally are paid less than over the road truckers in interstate commerce. We understand that most log truck owners and drivers are decent people. A high school classmate spent most of his life as a pulpwood hauler.  Some good, experienced truck drivers choose to make less money in order to be home every night. However, our observation in log truck crash cases has been that they are generally less experienced, less trained and less sophisticated. We had one case in which a log truck driver who had been fired from an over-the-road truck driving job could only find work driving a log truck. Within two months of starting, he made a U-turn in predawn darkness, leaving his unilluminated log of logs extended

Log truck drivers are required to have a Commercial Driver’s License (CDL).  He was intelligent and a good guy. However, the Georgia Forest Products Trucking Rules exempt a lot of driver qualification rules governing interstate truckers. They may drive a log truck at 18 rather than 21, need not be even minimally literate, are not required to pass road tests, or be subject to rules on background screening, safe driving hours, etc.,

Maintenance of log trucks is often substandard. The Georgia Forest Product Trucking Rules exempt intrastate log trucks from the daily safety inspection of trucks and trailers required under the Federal Motor Carrier Safety Regulations. Because log trucks often operate in rough areas at in forests, they take a beating. Without a requirement of daily pre-trip and post-trip inspections, it is common to see a log truck that has taken a beating. Tires, brakes and suspension may be in bad shape, and required lamps and reflectors are often missing or caked with mud.

If you or a loved one are badly harmed in a catastrophic accident involving a log truck in Georgia, it is important to act immediately to preserve crucial evidence.

 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 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 tenth 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 2008-2019, 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. He is a widower,  father of two adult children, and an elder in his church.

Over decades representing individuals and families devastated by highway crashes with large trucks, one of the most poorly understood hazards we have seen is that of tractor trailers parked on the side of the road. Among the hazards presented by semi trucks parked in the emergency lane is decapitation of people in an approaching car due to trailer underride.

Often late at night on Georgia highways, we see tractor trailers parked on what many people commonly refer to as the “emergency lane” next to the traffic lanes. Unfortunately, many people even in the trucking industry do not appreciate how dangerous this can be for the truck driver and for motoring public.

Stopping on the roadside increases risks of a potential deadly crash, which can be prevented through management practices that include good trip planning, vehicle inspections, and appropriate equipment maintenance.

Due to the severe risk posed by parking on the roadside, trucking company management should require drivers not to stop along the roadside in non-emergency situations. At the very least, trucking companies should instruct drivers to exit the highway and find a safe place to park when necessary.

The hazard is multiplied when large trucks park on the roadside at night without using hazard flashers and warning devices. Just about every time I make a road trip at night, I see an unilluminated tractor trailer parked in the dark inches from the traffic lane.

If a driver absolutely must stop on the side of the road, motor carriers should train drivers and dispatchers on actions that can be taken to reduce the risk of a loss in the event of a breakdown or other roadside emergency. Such actions include:

• Immediately turn on hazard flashers when slowing and leave them on while stopped.
• Immediately set out warning devices (reflective triangles or flares) in accordance with the Federal Motor Carrier Safety Regulations at 49 CFR § 392.22.
• Keep marker lights on after dark.
• Avoid parking on curves or on the downside of undulated roads that obscure the approach of oncoming traffic.
• Park as far off the traveled roadway as safely possible. Remember shoulders can be soft and have a steep drop-off or ditch.
• When stopped, set parking brakes.
• Notify employer as soon as possible to arrange roadside assistance.
• Avoid falling into traffic by using three points of contact exiting /entering the cab or climbing onto the catwalk or trailer.
• Walk along the side of the vehicle opposite traffic.
• Watch out for debris or uneven surfaces when outside the vehicle.
• Use a visible flashlight after dark.
• Wear reflective clothing (such as a high visibility safety vest) when exiting the vehicle.

National highway design standards from the American Association of State Highway and Transportation Officials (AASHTO) recommend construction standards for shoulder and right of way design. This includes the removal of dangerous obstructions such as, trees, steep slopes, or abutments. The reason for this design standard is to clear the roadside of obstructions which hinder a motorist from being able to recover from an unintended departure from the roadway. They also recommend guardrails feasible to redirect errant vehicles back onto the paved portion of the roadway.

The Roadside Design Guide defines a clear zone as the total roadside border area, starting at the edge of the traveled way, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a non-recoverable slope, and/or a clear run-out area. The desired minimum width is dependent upon traffic volumes and speeds and on the roadside geometry. Simply stated, it is an unobstructed, relatively flat area beyond the edge of the traveled way that allows a driver to stop safely or regain control of a vehicle that leaves the traveled way.

According to the Roadside Design Guide by the American Association of Highway Transportation Officials, highway shoulders, a clear zone is

The total roadside border area, starting at the edge of the traveled way, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a non-recoverable slope, and/or a clear run-out area. The desired minimum width is dependent upon traffic volumes and speeds and on the roadside geometry. Simply stated, it is an unobstructed, relatively flat area beyond the edge of the traveled way that allows a driver to stop safely or regain control of a vehicle that leaves the traveled way.

The Clear Zone, is further defined as

An unobstructed, traversable roadside area that allows a driver to stop safely, or regain control of a vehicle that has left the roadway. The width of the clear zone should be based on risk [of immediate danger]. Key factors in assessing risk include traffic volumes, speeds, and slopes. Clear roadsides consider both fixed objects and terrain that may cause vehicles to rollover.

Thus, the shoulder of the highway isn’t designed for parking at all. It is a “clear zone” or “recovery zone” and not a parking area. But every day we see 18-wheelers parked in the “recovery zone” or shoulder, over parked overnight and not illuminated.

Personal cars and trucks are doing the same thing, but the hazard they present is less severe. When a truck driver parks an 18-wheeler or other large Commercial Motor Vehicle (CMV) in on the shoulder of a highway in what is designed as a “Clear Zone,” the driver creates an eminent hazard to occupants any vehicle which may depart, for whatever reason, from the travel portion of the roadway.

Tractor trailers parked in the “clear zone” or “recovery zone” present a vastly greater danger to people in approaching cars that would another car parked in the same position. When a car veers out of its lane and collides with a stopped car of the same size, there may be serious injuries. But when the same car collides with an 80,000 pound tractor trailer, the physics of the collision is vastly different.   Semi-trucks are not only larger and heavier than regular vehicles, but their trailers also stand high off the ground. If a car traveling at highway speeds comes into contact with the trailer of an 18-wheeler, the big rig is the perfect height to sheer off the top of the car and kill or perhaps decapitate anyone inside.

Even if a parked semi-truck is illuminated at night, there is a recognized condition known as the “Moth Effect” which may contribute to an unwary driver running into a truck parked on the shoulder. The “Moth Effect” occurs when drivers are attracted to flashing lights or other things along the roadway, especially when fatigued.  The “Moth Effect” is especially likely when visibility conditions are reduced at night or in heavy rain which is common in Georgia.

When presented with catastrophic crashes that involve a commercial motor vehicle parked by the side of the road, we investigate deeply and retain appropriate experts. We have to determine why the driver chose that particular spot to pull off and stop.  We normally download electronic control module data and other electronic records from both vehicles. Was it an actual emergency or mechanical failure? Was the driver failing to follow safety rules and simply stopped for a “break.” Did the driver have the ability to stop in a safer location?

A lot of people who see these collisions and are uninformed on the safety standards involved assume that it is always the fault of the driver of the car that struck the parked tractor trailer. Thus, it is necessary to thoroughly investigate and, we hope, refute potential defenses. If the driver of the car had a cell phone, it is worth the cost to do a forensic download and rule out driver distraction from a cell phone at the time of the crash. A reliably conducted medical examination or autopsy is needed to rule out alcohol or drug use that may have contributed to cause of the crash.

If a loved one is killed or injured due to collision with a tractor trailer parked on the roadside, call us at (404) 253-7962 for a consultation to see whether or not there is a viable case.

Ken Shigley is recipient of the 2019 Tradition of Excellence Award from the State Bar of Georgia General Practice and Trial Section. He 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, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). 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. He is licensed to practice law in Georgia. Representation of clients in others states, which possible, can be undertaken only in strict compliance with the multijurisdictional practice and pro hac vice rules of the other state.

People may enjoy watching “Ice Road Truckers” on television. But there is nothing entertaining about a tractor trailer bearing down upon you at excessive speed, out of control on an icy highway.

A truck driver from Georgia has been charged with three counts of “three charges of grossly negligent driving with death resulting,” the Vermont equivalent of vehicular homicide.

Last December 29, Lashawn Jones, 41, of Alpharetta, Georgia, was driving Roehl Transport Inc. tractor trailer on slush and ice on U.S. 4 near the Killington Ski Resort in Vermont. The truck driver lost control on slush and ice and collided head on with a vehicle occupied by three people – Ryszard and Anita Malarczyk from Hastings-on-Hudson, NY, and their friend, Jaroslaw Karczewski from Poland. All three were killed in the crash.

While we don’t see a lot of ice and snow in Georgia, when it does happen we see how often truck drivers ignore the Federal Motor Carrier Safety Regulations and the industry standards embodied in the Commercial Drivers License Manual regarding driving on ice. In a major ice storm that paralyzed metro Atlanta a couple of years ago, a Georgia Department of Transportation spokesperson said the next day that all the major problems involved tractor trailers.

Federal Motor Carrier Safety Regulations, 49 C.F.R. §  392.14 provides:

“Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.”

The Model Commercial Drivers License Manual, adopted with only stylistic differences in all states, and  referred to in 49 C.F.R. § 383.131(a)(1),  states the following in Section 2.6.2:

“Slippery Surfaces. It will take longer to stop, and it will be harder to turn without skidding, when the road is slippery. Wet roads can double stopping distance. You must drive slower to be able to stop in the same distance as on a dry road. Reduce speed by about one-third (e.g., slow from 55 to about 35 mph) on a wet road. On packed snow, reduce speed by a half, or more. If the surface is icy, reduce speed to a crawl and stop driving as soon as you can safely do so.”

Trucking companies that have insufficient focus on safety fail to train and supervise their drivers to assure compliance with these safety standards. When the inevitable crashes occur, they send their lawyers and “experts” to disingenuously argue that the rules don’t mean what they say, that the rules do not apply to them, that is the victims’ fault for being on the road in bad weather, and that their drivers did a magnificent job of trying to stop when driving highway speed on ice, etc.

If trucking companies would instruct their drivers to crawl or pull over when road conditions are icy, even if it throws off delivery times, a lot of lives could be saved in America.

Ken Shigley is a  double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is a member of the Board of Governors of the Academy of Truck Accident Attorneys,lead author of Georgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.  He can be reached at ken.shigley@johnsonward.com.

Last week in Cherokee County, a Comcast truck failed to stop behind a car that had stopped to turn, went into the opposite lane, and struck head-on an oncoming car, killing the driver.

According to media reports, at the intersection of Ga. 140 and Avery Road, a Ford Fiesta  stopped to turn left onto Avery Road just before 12:30 p.m. on September 28, 2015.  For unknown reasons, a Comcast truck steered to the left to avoid hitting the Ford and traveled into the westbound lanes striking a Chevy pickup head-on.

The driver of the pickup — who I understand was a really good guy with whom I have several friend in common —   died at the scene of the crash. The driver of the Comcast truck and an occupant of the Fiesta were also injured.

One must reserve judgment pending investigation, but the list of possible causes may include driver distraction (e.g., cell phone, texting, GPS manipulation, food or beverage, etc.), driver impairment (medical, fatigue, etc.), speed, following too closely, mechanical failure, etc.

This is similar to the scenario in a case I tried several years ago in Calhoun in Gordon County. A box truck failed to stop behind a retired teacher who was preparing to make a turn at an intersection. The truck driver was not medically qualified to drive a commercial truck, lacked depth perception, and failed to accurately judge time, speed and distance as he approached the stopping car. He crossed into the opposite lane, passed through the intersection on the wrong side, and crashed into an approaching pickup truck. Fortunately, our client was able to avoid headon impact but the driver’s side of his vehicle was shorn away in the impact. He lived but had a shattered femur that caused a permanent impairment. The jury in Gordon County awarded a verdict of $2.3 million for his injury.

Even though the first priority is the need to process grief and celebrate the life of the loved one who was killed, in such cases it is important for family members to act quickly to make sure the case is properly investigated. Commercial vehicles generally have a great deal of data that can be downloaded after a crash. If police fail to do a thorough investigation and reconstruction, and allow a truck to be removed from impound before the family has a chance to send its own investigator, that electronic data evidence may be lost. For example, we had a case involving a fatal collision south of Atlanta. The police impounded the truck, but somehow allowed the trucking company to remove it from impound prematurely. The truck was repaired, put back in service and driven several hundred miles, overwriting data about the crash. We were able to retrieve some data from a Garmin GPS unit that was found on the dash in the truck cab, but that was far less valuable that the data that was erased.

The first step in such an investigation is to immediately serve the company with a notice of the need to preserve evidence, including a list of categories of evidence to preserve inviolate. Then as soon as practicable an inspection should be scheduled with a competent accident reconstruction expert.

Georgia wrongful death law includes two types of potential claims. First is the wrongful death suit for the “full value of the life,” which may include both economic damages such as value of lifetime income and benefits reduced to present value, and intangible value of life for what the experience of living was worth to the person who was killed. This claim must be brought by specific categories of survivors in priority order: spouse, children, parents, and then by the representative of the estate on behalf of other heirs at law. Second is a “survival action” for pain and suffering before death, medical and funeral bills, etc. The “survival action” must be filed by the executor or administrator of the estate. Sometimes we include both claims in a suit, and sometimes for tactical reasons we file one and leave out the other.

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Ken Shigley is a trial attorney practicing statewide in Georgia, focused on serious personal injury and wrongful death cases, especially arising from commercial truck accidents. 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.

What do you do when insurance coverage is grossly inadequate for a catastrophic truck crash personal injury or wrongful death case?

Big truck wrecks can cause a lot of carnage. When a small passenger car is run over at highway speed by a 80,000 pound tractor trailer bigger than a Sherman tank, a tremendous amount of kinetic energy is unleashed. The results are often than catastrophic.

Unfortunately, the liability insurance required for big trucks has not been adjusted since President Reagan’s administration. 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.

There has been a lot of inflation in the past 30 years. 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. If adjusted at the medical inflation rate, which a lot of folks say is more relevant for personal injury claims, it would be $4,422,000. But a dysfunctional Congress that can’t seem to accomplish anything on this except responding to lobbyists by blocking action in an Appropriations subcommittee markup of the transportation funding bill.

The situation is even worse for trucks operating only inside Georgia, where the minimum required coverage for big commercial trucks is only $100,000. That has remained unchanged for decades.

Confronted with inadequate insurance for catastrophic claims, we have to think outside the box. What other sources of insurance coverage are legitimately accessible?

•  From $400,000 to ~ $3 million.  A tractor trailer driver distracted by an international cell phone call ran over a line of traffic stopped due to another accident up the road, killing three people and injuring several others. The trucking company’s insurer insisted there was only a single $1,000,000 policy. The insurer’s representatives insisted that all the victims’ families should just figure out how to split that.  Our client’s share would have been around $400,000. The family had a relative who was a corporate counsel for a major corporation in New York find a lawyer in Georgia, and ultimately chose me. Everyone else agreed to divy up  that $1 million policy. We declined and pursued a combination of intermodal freight and maritime law theories. That led to uncovering a lot more insurance. A year later we settled a hair under $3 million, more than the record verdict in the small county in south Georgia. 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 about $200,000 to several million. Another tractor trailer ran over a line of traffic stopped in a construction zone, killing 5 people and injuring others. Again, the trucking company’s insurer insisted there was only a single $1 million policy. The trucking company itself had no unencumbered assets, just a bunch of leased equipment. We should just divide that between the give wrongful death  claims and go away. Lawyers for several of the families brought me in to lead the hunt for more coverage. Knowing where to look, I found another $50 million of insurance coverage. That case is still pending.
• 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.

All this requires a bit of creativity, approaching problems with old knowledge, curiosity and a fresh eye. Creativity can be productive if it is accompanied by hard work and perseverance.  Creativity is not the same thing as IQ. The world is full of people with high IQ scores who are not creative and those with average IQ who are. Combine IQ, creativity and grit, and you really have something. I don’t claim any particular genius, but sometimes curiosity leads to creative approaches to solving legal problems.

The approaches to finding significant additional insurance coverage are not voodoo or alchemy.  But they do involve a critical knowledge of subtle complexity gathered over 38 years in law practice.  I will not publish the methods for free on the internet. But I am happy to assist clients and lawyers who hire me for that purpose.

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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 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 families of the Georgia Southern nursing students killed or injured this week when a tractor trailer ran over them on I-16 bear a huge burden of pain and grief. As a parent, I cannot imagine anything worse than the sudden death of a child who has had you wrapped around her finger from the first time you held her in your arms.

The families need time, space, privacy and gracious consideration from others to have space to grieve, each in their own way.

After any such tragedy waves of welcome and unwelcome people descend upon the survivors.

First may come the well-meaning relatives, friends, neighbors and pastors. I can imagine that each family’s home has been deluged with casseroles and that parents’ Sunday School classes have signed up to provide meals for the next month. That loving embrace can help one keep going through the early days.

But then, after the funeral, folks go back to their everyday lives, leaving parents and siblings to sit in the departed child’s bedroom and weep for hours in the dark. Each must process the stages of grief.

Soon come the claims adjusters, feigning sympathy, lulling the parents into complacency, and giving the impression that they will do everything they can to make things right. They are well trained to insinuate themselves into the confidence of grieving families for the calculated purpose of minimizing the cost for the trucking company and its insurers. Think of wolves in sheep’s’ clothing. No matter what they say, they are not on the side of the victims. They are there with one purpose, to save the company as much money as humanly possible.

And then, unfortunately, are the members of my profession who ignore ethics rules against solicitation. These are the proverbial “ambulance chasers” who descend upon the families, either in person or through agents often called “runners” or “cappers.” Defying both State Bar of Georgia ethics rules and Georgia criminal law, they solicit cases from grief-stricken families.
Over the years, clients and others have told me stories of being approached even in hospitals and funeral homes, in the first hours or day after a tragedy, by people who represent themselves as “counselors,” “investigators,” “spiritual advisers” and even clergy, who slip into conversation a question about whether they have a lawyer yet.

One client whose wife was killed when their car was run over by a tractor trailer on an interstate highway, and whose son called me to meet with him at home the week after the funeral, showed me a thick package he had received by Fedex from a law firm in Washington, DC, that apparently solicits victims of major catastrophes all over the country.

Georgia Rule of Professional Conduct 7.3 provides:

A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.”

It also provides:

A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer’s firm, lawyer’s partner, associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, a written communication to a prospective client for the purpose of obtaining professional employment if:
. . . . the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication; or the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer.

This Bar ethics rule further provides that a lawyer shall not compensate anyone for recommending the lawyer’s employment except under a bona fide lawyer referral service approved by the Bar. Thus, paying someone else to solicit cases is a disbarment offense.

While the maximum penalty for a violation of Rule 7.3 is disbarment, it is difficult for the Bar’s general counsel to prosecute those cases because there are seldom people motivated to both file grievances and show up to testify. Even out of state lawyers are theoretically subject to reciprocal discipline in their home state for violation of these rules in Georgia if the Bar has solid evidence upon which to prosecute the case.

Respectable plaintiffs’ personal injury lawyers across the country have almost universally condemned this insidious practice of solicitation of cases through runners. In some states there have been damage suits against lawyers who use “runners” on the basis of violation of Fair Business Practice statutes. In Florida, the Attorney General issued a statewide grand jury report on the fraudulent practices involved with solicitation of injury victims by “runners.” Texas recently passed a law attacking this practice as “barratry.” Another approach could be to make any fee contract obtained through use of runners voidable at any time in order to reduce the financial incentive, but that could be subject to abuse by clients falsely claiming at the time of settlement that a runner was involved in order to extort an innocent lawyer in to giving up an honestly earned fee.

Bottom-feeding, ambulance-chasing lawyers who are not concerned about their professional reputation have felt free to violate this rule. Because people who are solicited either hang up immediately, or are too unsophisticated and naïve to recognize a problem, there has been hardly any way to prosecute the cases. It is very difficult to do that without a sting investigation, which the Bar’s general counsel has not felt equipped to do. The main “runner” case for which there has been bar discipline in recent years came about only when federal agents executed a search warrant at a law office, found the “runner book” and turned it over to the State Bar.

One of my great frustrations as State Bar president in 2011-12 was the difficulty of aggressively prosecuting such violations. Lacking law enforcement resources, the General Counsel’s office was extremely reluctant to organize the kind of sting investigation I knew, as a former prosecutor, could be effective. I appointed a committee to organize training for State Court solicitors, law enforcement and hospital attorneys on how to carry out these investigation. That committee included former FBI agents, State Court solicitors and hospital counsel. While we passed a tweak of lawyer advertising rules, which the Supreme Court later approved, we were unable to get overburdened law enforcement agencies or prosecutors interested in making “runner” cases.

The State Bar needs to enforce the ethical rules and uphold virtue in the legal profession, but it cannot make strong disciplinary cases against such unethical lawyers without evidence required to support a prosecution. Anyone who receives such a solicitation should get the name and number of the caller and then immediately call the State Bar of Georgia Office of General Counsel at (404) 527-8720, and offer to assist in investigation and file a grievance for violation of Rule 7.3.

Sting investigations could be undertaken by law enforcement, but they are reluctant to commit resources for such investigations when the criminal offense is only a misdemeanor. Thus, I eventually came to the conclusion that the only way to get meaningful enforcement is to make it a felony.

In 2014, the Georgia legislature passed Georgia Code Section 33-24-53 to read to somewhat strengthen the law against injury case solicitation as follows:

(a) As used in this Code section, the term:
(1) ‘Capper,’ ‘runner,’ or ‘steerer’ means a person who receives a pecuniary benefit from a practitioner or health care service provider, whether directly or indirectly, to solicit, procure, or attempt to procure a client, patient, or customer at the direction or request of, or in cooperation with, a practitioner or health care service provider whose purpose is to obtain benefits under a contract of insurance or to assert a claim against an insured or an insurer for providing services to the client, patient, or customer. Capper, runner, or steerer shall not include:
(A) Any insurance company or agent or employee thereof who provides referrals or recommendations to its insureds; or (B) A practitioner or health care service provider who procures clients, patients, or customers through the use of public media or by referrals or recommendations from other practitioners or health care service providers.
(2) ‘Practitioner’ means an attorney, health care professional, owner or partial owner of a health care practice or facility, or any person employed or acting on behalf of any of the individuals in this paragraph.
(3) ‘Public media’ means telephone directories, professional directories, newspapers and other periodicals, radio and television, billboards, and mailed or electronically transmitted written communications that do not involve in-person contact with a specific prospective client, patient, or customer.
(b) Except as provided for in paragraph (5) of subsection (a) of Code Section 50-18-72, it is unlawful for any person in an individual capacity or in a capacity as a law enforcement officer, law enforcement records staff member, wrecker services staff member, emergency staff member, physician, hospital employee, or attorney to solicit, release, or sell any information relating to the parties of a motor vehicle collision for personal financial gain. This subsection shall not apply to mass public media advertisement and solicitation.
(c) It is unlawful for:
(1) Any person in an individual capacity or in a capacity as a public or private employee or any firm, corporation, partnership, or association to act as a capper, runner, or steerer for any practitioner or health care service provider. This paragraph shall not prohibit an attorney or health care provider from making a referral and receiving compensation as is permitted under applicable professional rules of conduct; and (2) Any practitioner or health care service provider to compensate or give anything of value to a person acting as a capper, runner, or steerer. It is also unlawful for any capper, runner, or steerer to recommend or secure a practitioner’s or health care service provider’s employment by a client, patient, or customer if such practitioner or health care service provider obtains or intends to obtain benefits under a contract of insurance or asserts a claim against an insured or an insurer for providing services to the client, patient, or customer.
(d) Any natural person convicted of a violation of this Code section shall, on the first offense, be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment of not less than 30 days and a fine not to exceed $1,000.00. Any natural person convicted of a second or subsequent violation of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not more than ten years and by a fine of not more than $100,000.00 per violation.”

The weakness of this law is that law enforcement agencies are seldom motivated to initiate effective investigations for a misdemeanor first offense, so there is unlikely to ever be a felony second offense to prosecute.

I hope that the families affected by this tragedy will reject those who solicit them in violation of the State Bar and Georgia criminal law prohibitions, do their own due diligence research, and select qualified lawyers to seek justice.

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Ken Shigley is past president of the State Bar of Georgia, a certified civil trial attorney of the National Board of Trial Advocacy, lead author of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters West, 2010-15), and chair-elect of the Motor Vehicle Collision, Highway & Premises Liability Section of the American Association for Justice. His practice is focused primarily on commercial trucking liability cases. The firm also includes, in an “of counsel” capacity, David Nissenberg, author of The Law of Commercial Trucking: Damages to Persons and Property, a two-volume text on commercial trucking law which is supplemented annually.

The 30-year-old driver of a pickup truck was killed in predawn darkness at 5:30 AM this morning when his pickup truck he was driving ran into the back of a tractor-trailer that had broken down in the middle of I-20 in DeKalb County, according to news reports. The pickup driver was not identified.

DeKalb police Capt. Stephen Fore told an AJC reporter that the preliminary investigation indicates that the tractor-trailer “experienced problems with the air brakes and came to a stop in one of the travel lanes.

WSB-TV news video shows that the tractor trailer was stopped in a middle lane , not parked in an emergency lane, and without any flares or reflective triangles deployed to warn oncoming drivers.

Media reports do not identify the trucking company. However, news photographs show the name “Triple Crown Services” on the trailer. Based in Fort Wayne, Indiana, Triple Crown Services has reported to the Federal Motor Carrier Safety Administration that it has 740 power units and 699 drivers. It has disclosed $5,000,000 liability insurance coverage with Zurich American Insurance Company.

Triple Crown Services had had notable problems with vehicle maintenance. The Motor Carrier Safety Management System (SMS) reports that Triple Crown has a 78 % bad rating for vehicle maintenance. Anything above 75% is unacceptable. This rating is based on 675 truck inspections in the past 24 months, 320 of which discovered a total of 573 vehicle safety violations. I haven’t gone through all of it, but a quick glance reveals that a lot of their violations involve problems with reflective devices, lights and brakes.

We see crashes with trucks stopped in the roadway too often.

Drivers moving at highway speed cannot be expected to perceive, react and avoid a tractor trailer stopped dead in a traffic lane at night with no warnings when other traffic is moving.
Experts on conspicuity (visibility), human factors and trucking industry standards are often useful in such situations.

Federal Motor Carrier Safety Regulations are very specific about measures required to prevent this very sort of tragedy from happening. 49 CFR 392.22 requires emergency signals for stopped commercial motor vehicles as follows:

(a) Hazard warning signal flashers. Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section. The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b) of this section.

(b) Placement of warning devices–

(b)(1) General rule. Except as provided in paragraph (b) (2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by Sec. 393.95 of this subchapter, in the following manner:

(b)(1)(i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;

(b)(1)(ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and
(b)(1)(iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.

(b)(2) Special rules–(i) Fusees and liquid-burning flares. The driver of a commercial motor vehicle equipped with only fusees or liquid- burning flares shall place a lighted fusee or liquid-burning flare at each of the locations specified in paragraph (b)(1) of this section. There shall be at least one lighted fusee or liquid-burning flare at each of the prescribed locations, as long as the commercial motor vehicle is stopped. Before the stopped commercial motor vehicle is moved, the driver shall extinguish and remove each fusee or liquid- burning flare.

(b)(2)(ii) Daylight hours. Except as provided in paragraph (b)(2)(iii) of this section, during the period lighted lamps are not required, three bidirectional reflective triangles, or three lighted fusees or liquid- burning flares shall be placed as specified in paragraph (b)(1) of this section within a time of 10 minutes. In the event the driver elects to use only fusees or liquid-burning flares in lieu of bidirectional reflective triangles or red flags, the driver must ensure that at least one fusee or liquid-burning flare remains lighted at each of the prescribed locations as long as the commercial motor vehicle is stopped or parked.
. . . .
(b)(2)(v) Divided or one-way roads. If a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a divided or one-way highway, the driver shall place the warning devices required by paragraph (b)(1) of this section, one warning device at a distance of 200 feet and one warning device at a distance of 100 feet in a direction toward approaching traffic in the center of the lane or shoulder occupied by the commercial motor vehicle. He/she shall place one warning device at the traffic side of the commercial motor vehicle within 10 feet of the rear of the commercial motor vehicle.

The reason for such a rule is that drivers approaching at the speed limit often do not perceive that a tractor trailer is sitting still until too late to stop, and then impact with an 80,000 vehicle is much like impact with a cement barrier. Moreover, impact with the side or rear of a stopped tractor trailer with typically weak under-ride bars can easily lead to decapitation of occupants of the striking passenger vehicle.

When a tractor trailer stalls on a freeway and cannot even make it to the emergency lane on the side of the road, questions immediately arise about vehicle maintenance, truck driver impairment due to fatigue or other factors, hours of service compliance, etc.

The Georgia State Patrol Specialized Reconstruction Team (SCRT) should undertake a complete investigation and reconstruction of this crash. But sometimes I am disappointed to find that they have not done so after fatal collisions.

You can bet that the trucking company and its insurer had a rapid response team on the scene by the time the decedent.

When such incidents get into litigation, the challenge is to prove whether an unmarked tractor trailer or big rig had been sitting on the shoulder more than ten minutes. Often this requires an immediate demand for preservation of electronic data from electronic data recorders and satellite communications systems that many trucking companies employ.
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Ken Shigley is a past president of the 45,000 member State Bar of Georgia and currently Chair-Elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Author of Georgia Law of Torts: Trial Preparation & Practice, he is a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.