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.

Since 1981, forty years ago at the beginning of the Reagan Administration, minimum liability insurance required for large trucks in interstate commerce has remained unchanged at $750,000. 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 general rate of inflation over the past forty years, 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. But opponents of advancing public safety on the highways repeatedly have blocked an inflation adjustment on the amount of insurance required.

This year, a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section. 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 always difficult. 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

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 was a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

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. 

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.

This week in north Georgia there was a fatal crash between a tour bus en route to a North Carolina casino and a tractor trailer blocking traffic lanes while waiting to turn left. This happened on Georgia Highway 515 (also known as the Zell Miller Mountain Highway) at the intersection with Whitestone Road in Gilmer County.  The bus driver was killed and 43 passengers suffered a variety of injuries.

The preliminary investigation by the Georgia State Patrol  blamed the truck driver. Troopers reported that the truck driver was making a left turn onto Highway 515 southbound when he paused for traffic, leaving the trailer projecting across and blocking northbound lanes. The northbound bus driver was reportedly unable to avoid crashing into the truck’s trailer. However, first reports are not always conclusive.

This crash highlights issues with both tractor trailer operation and tour bus operation.

It is well known in the trucking industry that making a left turn across a highway with a long vehicle creates problems that automobile drivers do not have. Any properly trained truck driver and company dispatcher planning a driver’s route should know the widely accepted safety principles in trucking is that a tractor trailer driver should never start turning until there is enough time for the rear of the vehicle to clear the intersection without forcing opposing drivers to slow down or swerve. This is supported by a variety of industry safety publications, including each state’s Commercial Driver’s License Manual, the USDOT’s “Commercial Vehicle Preventable Accident Manual, A Guide to Countermeasures,” safety publications of J.J. Keller Company and other driver training manuals.

The left turn across traffic hazard is so well known that some national trucking companies  have manuals for their drivers that prohibit left turns and U-Turns. These manuals make it clear that these are among the most dangerous maneuvers a tractor trailer driver can perform. The root cause analysis of this crash will likely involve failure of the company to train and manage its drivers and dispatchers to avoid left turns across traffic on highways.

Why are left turns in tractor trailers so dangerous? Studies have shown that making such a turn from a stop takes the average truck at least 40 seconds to complete. During that time, the trailer is blocking the travel lanes and presents a hazard to all other traffic. Traffic traveling 60 mph will travel approximately three-fourths  of a mile while the truck is completing this maneuver.

This crash occurred in daylight in a location with limited sight lines, and a left turn across traffic rather than a U-turn. It is even more dangerous at night because the brightness of the truck’s headlights will mask the marker lights on the trailer. The reflective striping on the side of the trailer is invisible until the trailer is close to be at a 90 degree angle across the road. Combine these phenomena with the fact that a car driver sits low enough to see under the trailer and focus on lights that are farther away and you have created an invisible barrier for approaching traffic.

According to news reports, this truck is owned by Polcon Tile & Terrazo out of Charlotte, North Carolina.  The company lists five trucks for private delivery rather than as a motor carrier hauling for others. The Federal Motor Carrier Safety Administration (FMCSA) safety records online show that in January 2015, inspectors issued two unsafe driving violations to Polcon drivers. One was a lane restriction violation in South Carolina, and another for failure to obey a traffic control device in Georgia. More information is probably available through a Freedom of Information Act request to the FMCSA.

Because Polcon operates tractor trailers for its own deliveries rather than as a motor carrier hauling for others, its liability insurance information is not available online.  Since first posting about this crash, I have learned that the company has liability insurance in the amount of $7,000,000.

Over the past 20 years, we have represented numerous injured occupants of tour buses, college buses and vans, etc. Often we have utilized joint prosecution agreements to coordinate efforts of counsel for victims.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence”Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley has earned three national board certifications 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, 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.

Truck crash on I-16 at I-95 on 5/19/2015 killed 5. Truck driver admitted falling asleep, is charged with 5 counts of vehicular homicide.

In the spring of 2015, there were two separate five-fatality truck crashes on I-16 in Georgia. The first one got most of the publicity because the victims were all beautiful young nursing students, but both were equally lethal and egregious. In both cases, there were at least indications that a truck driver fell asleep before running over a line of stopped traffic.

On April 22, 2015, in Bryan County, John Wayne Johnson, a truck driver from Louisiana driving for Total Trucking, a subsidiary of US Express, ran over vehicles stopped traffic. He killed five Georgia Southern University nursing students and injured two others. It appears he went to sleep as there was clear visibility on a long, straight stretch of road before he ran over the stopped vehicles. Johnson admitted he had been texting and exchanging sexually provocative message with a woman while driving but denied he was on the phone at the time of the crash.

Less than a month later, on May 19, 2015, on I-16  at its intersection with I-95, a line of traffic was stopped due to road work. David Gibbons of Pooler, driving from Georgia Freightways Corporation, while towing an intermodal container chassis trailer that carried a shipping container for CMA CMG (America), LLC, the US subsidiary of a French shipping line. The tractor-trailer was seen weaving for some distance prior to crashing into the line of stopped traffic, killing five people and injuring one. While the driver’s cell phone was allegedly destroyed in the resulting fire, phone bills indicated he was connected to the internet all day. He admitted to police on video at the scene, “I must have went to sleep.” The GBI crime lab found that he had a sleeping medication in his system, the most common trade name for which is Ambien. In deposition, he asserted his 5th Amendment right to remain silent on every question other than his name. (Disclosure: Our firm is involved as co-counsel in several of those cases.)

This spring, the Chatham County District Attorney charged Gibbons for five counts of vehicular homicide for the May 2015 crash.. This week, a Bryan County grand jury indicted Johnson for on nine counts based on the April 2015 crash, including five counts of first-degree vehicular homicide, serious injury by vehicle, reckless driving, following too closely, and failure to exercise due care. In an unusual move, the company that employed him was also indicted.

Several weeks ago, the civil cases arising from the Bryan County case were settled for substantial amounts. That was relatively simple as such things go since the trucking company and its parent company reportedly had $100 million in liability insurance coverage.

The Chatham County civil cases remain pending. It is more complex because a small trucking company with few assets had only had $1 million liability insurance coverage, so it is necessary to involve companies that are responsible for the flow of intermodal freight traffic into and through Georgia. Those cases remain actively in litigation with trial dates scheduled in 2017.

The conditions that led to both of these lethal crashes remain essentially unchanged. Truck traffic, largely to and from the Port of Savannah, may have had some cyclical waning but remains heavy. Tired and impaired truck drivers are still on the road. The Georgia Department of Transportation continues to repair sections of roadway, leading to lane closures and occasional traffic backups.

Moreover, trucking companies still resist use of forward collision avoidance technology and in-cab devices to monitor and alert drowsy drivers.  As Congress is concerned more about protecting trucking companies from implementation of more safety measures than with safety of the public on the roads, these tragedies will continue until being unsafe becomes more expensive than being safe.

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.

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 Georgia House of Representatives last week passed a bill which, if passed by the Senate and signed by Gov. Deal, would incrementally strengthen the leverage of automobile insurance policyholders who make claims under their “UM” (uninsured / underinsured motorist coverages.

The sponsors of this legislation, House Bill 303, are Rep. Dusty Hightower (from my old hometown of Douglasville), Rep. Alex Atwood (of St. Simons Island, but who I knew at Douglas County High School eons ago), and my other friends, Rep. Ronnie Mabra of Fayetteville, Rep. Tom Weldon of Ringgold, Rep. Trey Kelley of Cedartown (where I tried my first case as a young prosecutor before he was born) and Rep. Stacey Evans of Smyrna. Hats off to them for their efforts.

UM coverage protects a policyholder who is injured due to the negligence of a person who has no liability insurance, or less liability insurance than the injured person has in UM coverage. Unless rejected in writing, new auto insurance policies in Georgia include UM coverage equal to the amount of liability coverage.

Where there are separate policies issued on each vehicle in a household, e.g., State Farm, then typically the UM coverages of all those vehicle can be “stacked” or added together. Where multiple vehicle are on the same policy, e.g., Allstate, the UM coverages cannot be stacked in Georgia policies, but might be if the policies were issued in some other states.

One problem in handling UM claims is that insurance companies too often take the approach that they have nothing to lose by denial, delay and stonewalling. While an insurer in a liability claim has a duty of good faith to its defendant policyholder, and may be held liable for bad faith refusal to settle for liability policy limits, there is no such deterrent to stonewalling in UM claims.

Now the only sanction for denial of a UM claim is a bad faith penalty of up to 25% plus attorney fees, which can only be recovered in a separate lawsuit after winning a judgment against the driver who was at fault. Until then, the UM carrier for the injured person can just sit back and thumb its nose at its policyholder with total impunity.

The proposed amendment to O.C.G.A § 33-7-11, if it becomes law, will make the following incremental changes:
• Damages of the UM policy limit or principal balance of the judgment against the uninsured motorist, whichever is less.
• Bad faith penalty or $25,000 or 25% of the damages, whichever is more.
• Post-judgment interest at the statutory rate from the date of judgment against the uninsured motorist.

The most significant change in this legislation is to impose a $25,000 penalty for bad faith denial. That might be enough to get the attention of some claims departments some of the time. However, having been around the block a few times, I am hopelessly cynical about the good faith of a lot of insurance companies.

The proposed language of the code section after amendment, if it is enacted in its current form, will be:

O.C.G.A § 33-7-11
“(j)(1) If the insurer shall refuse to pay any insured any loss covered by this Code section and the applicable automobile liability or motor vehicle liability policy within 60 days after a written demand has been made by the insured, the insurer shall be liable to the insured for:
(A) Damages equal to the applicable policy limits or the principal balance of the judgment rendered against the uninsured motorist in the original tort action, whichever amount is less;
(B) If the fact finder determines that the insurer’s refusal to pay the insured was made in bad faith, a penalty of $25,000.00 or 25 percent of the damages set forth in subparagraph (A) of this paragraph, whichever amount is greater; and
(C) Postjudgment interest on the damages provided in subparagraph (A) of this paragraph pursuant to Code Section 7-4-12 calculated from the date of entry of the judgment against the uninsured motorist in the original tort action.
(2) When an insured has prevailed on a claim pursuant to subparagraph (B) of paragraph 28 (1) of this subsection, the court in its discretion may hold the insurer liable to the insured for reasonable attorney’s fees and expenses of litigation for the prosecution of the case under this Code section that were incurred after the sixtieth day of the demand made by the insured.

(3) The amounts set forth in paragraph (1) of this subsection and the question of bad faith, shall be determined in a separate action filed by the insured against the insurer after a judgment has been rendered against the uninsured motorist in the original tort action.

(4) Payment of the amounts provided in paragraph (1) of this subsection shall fully discharge the insurer’s obligations under the judgment entered against the uninsured motorist in the original tort action. Payment of the damages provided in subparagraph (A) of paragraph (1) of this subsection shall reduce the principal amount of such judgment. Payment of the postjudgment interest provided in subparagraph (C) of paragraph (1) of this subsection shall reduce the postjudgment interest owed on such judgment.”

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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.

One of the big concerns in suing the driver of an ordinary passenger car for serious injury to a truck driver is that the car may have inadequate insurance coverage to adequately compensate the seriously injured truck driver.

A recent decision by the Georgia Court of Appeals may change that.
In McGraw v. IDS Property & Cas. Ins. Co., — S.E.2d —-, 2013 WL 3215464 (Ga.App., decided June 27, 2013)( Reconsideration Denied July 5, 2013), the Court applied in the commercial vehicle context a statute passed in 2008 to require that automobile insurance policies must include Uninsured Motorist (UM) coverage equal to the amount of liability coverage unless the policyholder affirmatively elects UM coverage in a lesser amount.

OCGA § 33–7–11(a)(1) “requires insurance policies issued in Georgia to contain provisions for UM coverage which at the option of the insured shall be (i) not less than $25,000 per person, or (ii) equal to the policy’s bodily injury liability insurance coverage, if higher than $25,000 per person.” Infinity Gen. Ins. Co. v. Litton, 308 Ga.App. 497, 499(2), 707 S.E.2d 885 (2011). This Code section further provides that “[i]n any event, the insured may affirmatively choose [UM] limits in an amount less than the limits of liability [for bodily injury].” OCGA § 33–7–11(a)(1)(B). “This Code section was intended to make a policy’s liability limits the default provision for UM coverage, unless an insured affirmatively elects UM coverage in a lesser amount.” Infinity Gen. Ins. Co., 308 Ga.App. at 499(2), 707 S.E.2d 885 (citation omitted).

Therefore, when a vehicle insurance policy limits UM coverage to an amount less than the policy’s bodily liability limits without the insured having affirmatively chosen that lesser amount, the policy is not in compliance with OCGA § 33–7–11(a)(1). When that happens, the requirements of the statute take control over the terms of the policy. See OCGA § 33–24–12(a) provides that an otherwise valid insurance policy that contains a condition or provision not in compliance with the requirements of Title 33 “shall be construed and applied in accordance with such conditions and provisions as would have applied had the policy … been in full compliance with this title.”

In Dees v. Logan, 282 Ga. 815, 816, 653 S.E.2d 735 (2007), the court held, “When an uninsured motorist policy provision is in conflict with the clear intent of OCGA § 33–7–11, the policy provision is unenforceable and the statute controls.” When an insurer issues a policy with provisions not in compliance with the law the contract will not be rendered void but the provisions of the statute will be grafted into the policy”. Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 714(3), 300 S.E.2d 673 (1983).

In the McGraw case, the policy application included no signed election of UM coverage than the liability coverage. While the declarations page specifies UM coverage limits at the lesser amount, this cannot support an inference that the policyholder made an affirmative choice among the various UM coverage options available under OCGA § 33–7–11(a)(1), because it raised merely a conjecture or possibility of that fact.

Because an earlier policy, by default, provided this higher amount of UM coverage, the insurance company could not “renew” that policy with a lesser amount of coverage because, under OCGA § 33–24–45(b)(2), a policy renewal must provide “no less than the coverage contained in the superseded policy”). The superseding policies, therefore, would also provide the higher default amount of UM coverage unless the policyholder affirmatively chose the lesser amount.

So if a company vehicle has $100,000 liability coverage, there is no affirmative written rejection of equal UM coverage in the files, and an employee is injured in a collision caused by a motorist with $25,000 coverage or even no coverage, then the uninsured motorist coverage on the company vehicle automatically increases to $100,000.

Now consider the potential importance of this to a seriously injured truck driver. The minimum liability coverage for interstate motor carriers is $750,000, but most we see carry $1,000,000 and many strong trucking companies carry several million dollars of coverage in several layers. Even intrastate trucking companies, who are only required to carry $100,000 liability coverage, often carry $1 million or more in coverage.

If a truck driver has a catastrophic injury or is killed in a crash caused by a minimally insured driver, and the trucking company’s insurance policy was “issued or delivered” in Georgia without an affirmative election of UM coverage less than the liability coverage, this may provide a means to collect on a judgment against the uninsured or underinsured motorist who caused the crash.

This will not help the trucker for a company whose insurer did not “issue or deliver” the policy in Georgia. When I saw this decision I immediately went through my cases where I am representing truck drivers, and all of their policies were issued and delivered is other states.

I do not expect insurers for trucking companies to voluntarily open the records or the checkbook on such claims. We can in Georgia request coverage information from insurers before suit under O.C.G.A § 33-3-28, which provides in part:

“Every insurer providing liability or casualty insurance coverage in this state and which is or may be liable to pay all or a part of any claim shall provide, within 60 days of receiving a written request from the claimant, a statement, under oath, of a corporate officer or the insurer’s claims manager stating with regard to each known policy of insurance issued by it, including excess or umbrella insurance, the name of the insurer, the name of each insured, and the limits of coverage. Such insurer may provide a copy of the declaration page of each such policy in lieu of providing such information. The claimant’s request shall set forth under oath the specific nature of the claim asserted and shall be mailed to the insurer by certified mail or statutory overnight delivery.”

I expect insurers to take the position that this only requires disclosure of the coverage shown on a declarations page and that it does not require disclosure before suit of the underwriting file with policy application and renewal documents.

More likely, the way to pursue unknown excess UM coverage for a truck driver is to file suit against the inadequately insured motorist who caused the crash, serve the trucking company’s insurer with the suit as a UM carrier, and then conduct discovery of the underwriting files. At minimum, there must be requests for production of documents to the trucking company’s insurer seeking the policy application and renewal papers. A lawyer handling these cases for truck drivers must be prepared to compel records custodian of the insurance company, and possibly subpoena records and records custodians of insurance agents and brokers. Occasionally, this may result in increasing the available coverage for a truck driver or his family from $25,000 to $1,000,000 or more.

Ken Shigleyis past president of the State Bar of Georgia (2011-12). His law practice focuses on representation of plaintiffs in cases of serious personal injury and wrongful death, including those occurring in commercial truck and bus accidents

Today the U.S. and Mexico signed an agreement to allow Mexican tractor trailers and big rigs to operate in the U.S. and suspend retaliatory Mexican tariffs that added 5 to 25 percent to the cost of U.S. exports sold in Mexico.

This is the latest development in the long-running controversy to concerns about the safety standards of Mexican trucking, which long blocked North American Free Trade Agreement (NAFTA) rules permitting Mexican trucks to cross beyond a 25- mile border zone.

The USDOT justifies today’s action by saying that Mexican trucks must comply with all Federal Motor Vehicle Safety Standards, and will have electronic monitoring systems to track hours on the road, and that Mexican tractor trailer truck drivers must take drug tests that are analyzed in the U.S., hand over complete driving records and prove their English-language skills.

A previous cross-border pilot program for trucking certification program in 2009 included only 157 Mexican trucks.

Reactions from interest groups has varied widely:

• The US Chamber of Commerce supports the agreement as “a vital step toward a more efficient U.S.-Mexico border,” according to a statement from COC president Thomas Donohue. Truckers drop trailers at the border before crossing. Older rigs, often called transfers, pick them up to cross and leave them for a long-haul truck waiting on the other side.

• Regarding safety concerns, the Conservative Daily News blog points out that while USDOT will pay for electronic on-board recorder (EOBR) to monitor hours of service of Mexican tractor trailers, an “EOBR cannot determine if the driver of the commercial vehicle is working other than driving, or if this driver is asleep or awake. It will not ‘automatically’ do anything as the driver still must manually enter whether a change of duty status has occurred or not.” It quotes a report issued from the Congressional Research Service in February of 2010 which stated:

“The rationale of eliminating the truck drayage segment at the border, and of NAFTA in general, is to reduce the cost of trade between the two countries, thus raising each nation’s economic welfare. However the cost to federal taxpayers of ensuring Mexican truck safety, estimated by the U.S. DOT to be over $500 million as of March 2008, appears to be disproportionate to the amount of dollars saved thus far by U.S. importers or exporters that have been able to utilize long-haul trucking authority. . . . Any accumulated savings in trucking costs enjoyed by shippers therefore should be weighed against the public cost of funding the safety inspection regime for Mexican long-haul carriers.”

• The American Association for Justice Interstate Trucking Litigation Group, of which I am a board member, urged USDOT to bring up to date liability insurance coverage requirements, which have been unchanged since 1980, prior to implementing the cross-border program. The $750,000 minimum liability coverage for interstate motor carriers adopted in 1980 would be nearly $2,000,000 today if simply adjusted for inflation. USDOT responded:

“Mexico-domiciled motor carriers must establish financial responsibility, as required by 49 CFR part 387, through an insurance carrier licensed in a State in the United States. Based on the terms provided in the required endorsement, FMCSA Form MCS-90, if there is a final judgment against the motor carrier for loss and damages associated with a crash in the United States, the insurer must pay the claim. The financial responsibility claims would involve legal proceedings in the United States and an insurer based here. There is no reason that a Mexico-domiciled motor carrier, insured by a U.S.-based company, should be required to have a greater level of insurance coverage than a U.S.-based motor carrier. Increasing the minimum levels of financial responsibility for all motor carriers is beyond the scope of this notice and would require a rulemaking. In accordance with section 350(a)(1)(B)(iv), FMCSA must verify participating motor carriers’ proof of insurance through a U.S., State-licensed insurer. As a result, participating motor carriers may not self-insure.”

• The Owner-Operator Independent Drivers Association (OOIDA) is bitterly critical of the action, and is challenging it in court in Washington. OOIDA asserts that Mexico has failed to institute regulations and enforcement programs that are even remotely similar to those in the United States, and there would be no relevant corresponding reciprocity for U.S. truckers. According to OOIDA, “This program will jeopardize the livelihoods of tens of thousands of U.S.-based small business truckers and professional truck drivers and undermine the standard of living for the rest of the driver community.”

• Teamsters Union president Jim Hoffa also questioned legality of the program because it grants permanent operating authority to Mexican trucks after 18 months in the “pilot program” without Congressional authorization, and because DOT would use money from the Highway Trust Fund to pay for electronic on-board recorders for Mexican trucks. He said, “opening the border to dangerous trucks at a time of high unemployment and rampant drug violence is a shameful abandonment of the DOT’s duty to protect American citizens from harm and to spend American tax dollars responsibly.”

• Industry groups that export to Mexico, and are impacted by retaliatory Mexican tariffs, support the decision. They include the National Cattlemen’s Beef Association (NCBA) , California grape growers , and Washington State apple growers.

This Georgia truck wreck lawyer may run down to the mall to buy a Rosetta Stone home study course on Spanish.

Ken Shigley is president of the State Bar of Georgia, author of Georgia Law of Torts: Trial Preparation and Practice, a Certified Civil Trial Attorney of the National Board of Trial Advocacy (one of 20 in Georgia), a board member of the Interstate Trucking Litigation Group, and designated as a “Super Lawyer” by Atlanta Magazine.

After the Georgia DOT and the bus company’s insurer paid their coverage limits, litigation was initiated in Ohio seeking to have the university’s liability insurance apply to the bus company and driver.

Recently, teh Ohio Supreme Court ruled that a driver of a rented bus is covered under a university’s auto insurance policy.

The representative parties for our team in Ohio argued that Niemeyer was an insured because he drove a bus, with Bluffton’s permission, that Bluffton hired. The university’s insurers each filed a declaratory judgment action, arguing that the university did not hire but rather contracted for transportation services, making Niemeyer an independent contractor and unforeseen third party they did not intend to cover.

In a 5-2 decision, the Ohio Supreme Court sided with the plaintiffs, reversing the lower court’s ruling. Considering the plain meaning of “hire” and “permission,” the court held that Niemeyer was an insured.

Justice Paul Pfeifer wrote for the majority, “We are not persuaded by the contention that the driver of a bus that Bluffton rented from a company in the business of renting buses is an unforeseen third party, when a clause in the insurance policy covers ‘anyone else’ driving a hired auto.” He added, “Whether the insurance company intended the clause to apply is immaterial because the language of the policy supports a conclusion that Niemeyer is an insured.”

Justice Evelyn Lundberg Stratton dissented, writing that,. “Today’s opinion unreasonably extends coverage to a third party and effectively opens the door for similar claims under other scenarios because the omnibus clause is standard in many insurance policies.”

This opens the door for additional compensation for injured members of the baseball team.

Ken Shigley is an Atlanta, Georgia, trial attorney. He has been designated a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend), and rated “AV Preeminent” by Martindale-Hubbell Legal Directory. In addition, he is author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010), a Certified Civil Trial Attorney of the National Board of Trial Advocacy, and currently president-elect of the 42,000 member State Bar of Georgia. He has extensive experience in litigation and trial of cases involving serious personal injury, wrongful death, trucking accidents, automobile accidents, products liability, premises liability, and insurance. Mr. Shigley is a graduate of Furman University and Emory University Law School. This blog post is subject to our ethical disclaimer.

The standard tactics, which my friend Morgan Adams in Chattanooga discussed in a recent blog post, include some variation of the following:

1. Pretending to be your friend. At trucking defense seminars, claims adjusters talk about how they try to become friends with a family by apologizing and offering to buy them a car and a house in exchange for giving up their claims. The adjusters take every opportunity to demonize any lawyers that the family might hire to represent them. At all costs they want to prevent the family from talking to an experienced trucking lawyer who would know how to investigate the case, demand that the company preserve paper and electronic records, and discovery trucking company’s violations of laws that contributed to causing the crash. In one recent case we handled, the adjuster started out talking to the family about paying their deductibles and copays on medical expense, and replacing their car, while at the same time trying to dispose of the physical evidence. But when the family hired me, and I deployed a rapid response to preserve evidence and make appropriate demands, the company soon paid its million dollar policy limit. Insurance adjusters know that revealing the truth could increase the value of the case significantly, and will do whatever they can to prevent that.

2. The misuse of annuities. Structured settlement annuities are a useful tool in settling cases because all the lifetime payments are tax-free and the burden of managing investments is lifted. However, in considering structured settlements, it is essential to focus first on what the defendant or its insurer is paying. Insurance companies will often show an unrepresented plaintiff that they will pay your family a million dollars over the next thirty years, while failing to mention that the annuity only costs $100,000 (or whatever) while the case has a present fair value in excess of a million dollars. In addition, they will use one of their own affiliated companies and brokers to issue the annuity, just switching the money from one hand to another. Thus, they play a shell game and get by with paying only a fraction of what the case is worth.

3. Inflation. No one knows exactly what future inflation will be, but we know that historically there is likely to be inflation. The adjusters will not seriously discuss with you how inflation will affect the value of funds paid.

4. Future medical expense. They exclude consideration of future medical expenses that eat into money paid to the family.They often fail to inform you of the impact of reimbursement claims by your health insurer, and do not protect your interests against such claims.

5. Future income loss. They exclude consideration of the full loss of income of the victim. People who have had major injuries often can’t work as much or as long as they would have, even if they initially return to work at the same job and at the same rate of pay.

6. Non-economic loss. They treat the non-economic losses of the family as having little or no value. The loss of quality of life, or the loss of a parent, is a matter of immense value which must be accounted for in a fair settlement of a case.

Remember the insurance adjuster’s job is to try to minimize payments on claims. No matter how friendly they may act, they are not there to help you.

Ken Shigley is an interstate trucking trial attorney in Atlanta, Georgia. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers. He served as chair of the Southeastern Motor Carrier Litigation Institute, is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is a frequent speaker at continuing legal education programs for the Interstate Trucking Litigation Group of the American Association for Justice. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Secretary of the 40,000 member State Bar of Georgia.This post is subject to our ethical disclaimer.

Many lawyers in such situations may overlook the fact that many trucking insurance policies include uninsured motorist (UM) insurance coverage equal to the liability coverage. It’s not always there, but it’s definitely worth checking.

So if a truck driver is hurt or killed 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 UM limits of the policy on the truck.

This morning I received an insurance policy in a case where I represent the folks who were hit by an 18 wheeler. The policy includes $1,000,000 for both liability and UM coverage. If the trucker had been killed due to negligence of the other driver, rather than the other way around, the truck driver’s family could collected on 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. He served as chair of the Southeastern Motor Carrier Litigation Institute, is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is a frequent speaker at continuing legal education programs for the Interstate Trucking Litigation Group of the American Association for Justice. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Secretary of the 40,000 member State Bar of Georgia.This post is subject to our ethical disclaimer.

The current levels of insurance coverage required for interstate motor carriers were set in 1980.

The Motor Carrier Act of 1980 set minimum insurance standards for interstate trucks at $750,000 for trucks hauling general freight up to $5 million for trucks carrying hazardous materials.

Adjusted to inflation according to the Consumer Price Index:

• $750,000 in 1980 equals $1,921,811in 2009, and is worth only $292,693 today.

• $1 million in 1980 equals $2,562,415 in 2009, and is worth only $390,257 today.

• $5 million in 1980 equals $12,812,075 in 2009, and is worth only $2,491,933 today.

My friend Steve Gursten in Michigan has done a good job summarizing some horror stories of the inadequacy of the 1980 levels of coverage required for trucking companies on michiganautolaw.com.

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. He served as chair of the Southeastern Motor Carrier Litigation Institute, is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is a frequent speaker at continuing legal education programs for the Interstate Trucking Litigation Group of the American Association for Justice. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Secretary of the 40,000 member State Bar of Georgia.This post is subject to our ethical disclaimer.

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

Oil prices have risen due in large part to the increased world demand accompanying the economic development of China and India, while we are dependent upon Arabs, Russians, etc. for our supply. On the other hand, oil prices are moderated by any economic slowdown that decreases demand.

Hurricanes, which may be increasing in intensity due to global warming, temporarily impact fuel prices as they hamper production, refinery and port capacity on the Gulf coast. Payment of hurricane losses impacts the insurance industry that has already been impacted by the financial mess.

In trucking, high fuel costs have both direct and indirect effects. The direct impact of high fuel prices on truckers is obvious. Moreover, I have heard from truckers 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. We will see a shift in the technical, regulatory and insurance issues involved in trucking accidents that result. Unfortunately, some 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. The challenge for lawyers will be to ferret out the details of business relationships in order to overcome the multiple layers of defenses.

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.

There is already an ongoing shakeout in the trucking industry. That will continue. I keep hearing reports of owner operators just walking away from rigs they can’t pay for any more Some of those used trucks will wind up being exported to other countries. I expect we will see a trend toward reduction of trucking industry 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 prominent 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 insure the insurance companies. If reinsurers begin to fail, the shock waves will reverberate throughout the insurance industry.

The insurance industry has a long history of blaming injury victims and trial lawyers for its own investment losses. It seems that every financial crisis affecting insurers’ investments is soon followed by a new round of premium increases. Unwilling to accept responsibility for investment losses, insurers blame the little guys and campaign for a new round of “tort reform.”

Due to the financial meltdown related to securitization of subprime mortgages, we will likely see increasing insurance premiums for everyone, including truckers. Many truckers who are already struggling will be put out of business by increases in fuel and insurance costs unrelated to anything they did wrong.

As the truckers cut costs, safety management will be one of the first things cut. 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.

In this environment more than ever, 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 evidence 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 has 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. A member of the Million Dollar Advocates Forum, he has successfully tried trucking accident cases to multimillion dollar verdict. He has lectured on trucking litigation topics at continuing legal education programs both at home in Georgia and in Nashville, New Orleans and St. Louis, and is scheduled to do so in Chicago this fall. 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.

49 C.F.R. § 387.7(d) permits a motor carrier to meet its financial responsibility in one of three ways: (1) obtaining liability insurance, including an MCS-90 endorsement; (2) obtaining a surety bond; or (3) obtaining written authorization from the Federal Motor Carrier Safety Administration to self-insure. When a motor carrier opts not to use an insurance policy to meet its financial responsibility requirements, then the regulations do not require the carrier to maintain a minimum of $750,000 in insurance.

In practice, we see policy limits of $1,000,000 more often than $750,000.

The MCS-90 endorsement ensures that a motor carrier has independent financial responsibility to pay for losses sustained by the general public arising out of its operations. The endorsement is designed to protect the public, not the policyholder; the obligation the endorsement creates runs to the public, not to the insured. It seeks to ensure that ultimate responsibility lies with the insured trucking company.

MCS-90 does not provide insurance coverage per se. Rather, the endorsement creates a suretyship and carries with it a right to reimbursement.

MCS-90 endorsement of tractor-trailer liability policy requires the insurer to cover any loss under the policy, irrespective of the amount of the policy’s deductible.

MCS-90 endorsement does not create a duty to defend claims which are not covered by the policy but only by the endorsement, such as a vehicle that was not listed. Thus, a trucking company that violated terms of the policy needs to defend itself since the insurance company may be able to sit back until a judgment is entered, pay under the MCS-90 endorsement, and then sue the trucking company to get its money back.

The plain, unambiguous language of the MCS-90 endorsement recognizes the insurer’s right of reimbursement. The endorsement states, in pertinent part, “The insured agrees to reimburse the company … for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.” 49 C.F.R. § 387.15 Where policy includes pollution exclusion and insurer pays environmental cleanup costs purusant to MCS-90, insurer entitled to reimbursement from trucking company up to amount of coverage under policy.

The Shigley Law Firm, LLC, in Atlanta, Georgia, practices in the area of trucking litigation. Ken Shigley is on the Advisory Committee of the Association of Interstate Trucking Lawyers of America, former chair fo the Southeastern Motor Carrier Liability Institute, a Certified Trial Advocate of the National Board of Trial Advocacy, and Secretary of the 39,000 member State Bar of Georgia. He handles cases arising from big rig crashes all over Georgia, from Chickamauga to Chamblee, and from Soperton to Snellville.