Strategy is essential in litigation. Among the most important strategic considerations is determining in which court a case may be litigated and tried. Most trucking crash cases involve an analysis of jurisdiction and venue questions.

In Georgia state courts, cases must be filed in a county where a defendant is a resident. Federal courts are options if there is complete diversity of citizenship, meaning that all plaintiffs reside in a state different from all defendants, or if there is “federal question” jurisdiction. In tractor trailer crash cases, we usually but not always file in state courts in Georgia because of the relatively more user-friendly procedures in the state court system. Occasionally, we choose to file in a federal court when available rather than a small, rural county where the trucking company and its driver are located. Most often, plaintiff attorneys file cases in state courts against out of state trucking companies and drivers based on the Nonresident Motorist jurisdiction provisions which provide for venue where the crash happened or where the injured Georgia resident resides, Then the defense usually files a notice of removal to federal court under “diversity of citizenship” jurisdiction.

Rarely does a defendant in a trucking case claim “federal question” jurisdiction in federal court. However, that happened in a case recently in which we are co-counsel in five of six cases arising from a tragic crash at the intersection of I-16 and I-96 in Pooler just outside Savannah, and preparing the briefs in all six companion cases. As the plaintiffs and two defendants are Georgians, there was no diversity jurisdiction. The last defendant served filed notices to remove all six cases from the State Court of Chatham County to the U.S. District Court for the Southern District of Georgia, claiming that the Shipping Act of 1984 created federal question jurisdiction. We immediately filed motions to remand all the cases back to the State Court of Chatham County.

One of the six cases was assigned to the Hon. Lisa Godby Wood in Brunswick and five were assigned to the Hon. William Moore in Savannah. Within two weeks after completion of briefing on the motions to remand, Judge Wood on January 9, 2017, granted the motion to remand in an order that has been published online in the Westlaw database. Moody, et al v. Great West, et al, 2017 WL 77417 (Wood., J.)(S.D. Ga. Jan. 9, 2017).

Under federal case law cited by Judge Wood, removal statutes are construed narrowly and uncertainties are resolved in favor of remand. This is due to respect for state sovereignty and the independence of state courts, as state courts are generally presumed competent to interpret and apply federal law. Removal is also construed narrowly because the plaintiff is the master of the claim and may avoid federal jurisdiction by exclusive reliance on state law.

Shortly thereafter, Judge Moore announced he was taking his well-earned senior status as he approached his 77th birthday.  U.S. Magistrate Judge Stan Baker of Brunswick has been nominated as his successor. A U.S. Senate confirmation hearing for Judge Baker may come around the end of the year, though apparently no one really knows. We have no idea whether there will be an order on the motions for remand in the other five cases before Judge Baker takes office.

The defendants removed these case to the Southern District Court of Georgia claiming that there were federal questions a under the Shipping Act and Federal Motor Carrier Safety Regulations. Defense attorneys often attempt to remove their client’s case to a federal court in an effort to afford a higher level of protection for their out of state client who may fear a plaintiff’s “home court” advantage, or simply to bog down a case in federal court procedures that some lawyers believe are more likely to favor the defense.

However, the statutes concerning removal are construed narrowly out of respect for a state’s sovereignty and the state courts independence. To that end the Court looked to see if we had raised a federal claim or if perhaps there may have been a substantial federal question embedded somewhere in our claim.

Judge Wood’s order in January thoroughly eviscerated the claim of “federal question” jurisdiction in an intermodal trucking cases based on the Shipping Act of 1984. Judge Wood ruled that we had not raised a federal claim as our sole cause of action, wrongful death, was a state claim. While the legal theory makes reference to the Shipping Act and Federal Motor Carrier Safety Regulations, which are both federal law, the Court agreed that “the mere presence of a federal issue in a state cause of action” does not make it into a federal one.

The Court then looked at whether our claim contained a substantial federal question somewhere within it. When determining if there is the possibility of an embedded federal question in a claim there are a few factors a court will look at. First it’s important to understand what might be considered substantial. Substantiality depends on how important or impactful the issue at hand is going to be when weighed against the federal system as a whole. There are no “bright line” rules on this. In fact, the Supreme Court went so far as to compare a relevant precedent to that of a Jackson Pollock painting. What the Court will do is ask questions such as “Will this case control many other cases?”, or, “Does the federal government have an interest in litigating this case in a federal forum?”

Our team was successful in showing the Court that our claim was not going to have a substantial impact on the federal justice system or far reaching implications into federal law that may change the outcomes of future cases, but rather that our claim would have meaningful and substantial impact to the family members who were affected by the wrongful death of their loved one and the Court remanded to Georgia state court where this case belonged.

Despite the delay surrounding nomination of a new judge, we are optimistic that ultimately there will be a ruling in the other five cases consistent with Judge Wood’s order, and that all six cases will find their way back to the State Court of Chatham County for trial.

 Ken Shigley is a past president of the State Bar of Georgia, former chair of the board of the Institute for Continuing Legal Education in Georgia, lead author of Georgia Law of Torts: Trial Preparation and Practice now in its eighth annual edition, a Certified Civil Trial Attorney of the National Board of Trial Advocacy, past chair of the Motor Vehicle Collision, Highway & Premises Liability Section of the American Association for Justice, past chair of the Georgia Insurance Law Institute, and a Diplomate of the National College of Advocacy. He has handled many catastrophic truck crash cases involving wrongful death, serious personal injury, neck and back injury, brain injury, spinal cord injury and burns. 

Photo our expert used to identify negligent maintenance issues even though trucking company had sold their dump truck out of state.

Tom was having a good day. Between sales calls, he stopped his pickup truck at a red light at the end of bridge waiting to turn left onto a freeway ramp. He had been sitting there about thirty seconds when he heard a loud screeching sound. A dump truck fully loaded with gravel crashed into his rear, crushing the bed of his pickup and knocking the top of his toolbox through his rear window. By the time Tom hired us, the dump truck company had sold the truck and “lost” all the maintenance records. However, we had an expert who could tell from photos of the property damage that there were rusty cracks in mechanical components that may have contributed to the crash. While driver distraction and speed were bigger parts of the case, proof of poor maintenance helped establish that the company had been sloppy about safety for a long time.

Although many of the commercial truck crash cases we handle are caused by some combination of speed, fatigue or distraction, some also involve mechanical failure. That may be discovered by a motor carrier enforcement inspection after a crash, in an expert inspection we arrange if we are hired quickly enough, or it may be disclosed later in expert examination of photos of property damage.

When mechanical problems are found after a crash, most often the root cause is in the company’s systemic failure to follow the well-established rules in maintenance management. Perhaps just as important, evidence of poor maintenance over a long period of time helps jurors believe that the company neglected everything else about safety.

Federal Regulations require trucking companies and key personnel involved with vehicle inspection and maintenance to understand and comply with rules on vehicle safety.  The Federal Motor Carrier Safety Regulations at 49 C.F.R. § 396.1 mandates:

“Every motor carrier, its officers, drivers, agents, representatives, and employees directly concerned with the inspection or maintenance of motor vehicles shall comply and be conversant with the rules of this part.”

One of photos in which our expert pointed out evidence of negligent maintenance, even though trucking company had gotten rid of the truck before we were hired.

But too often when we dig out the truth behind a catastrophic truck crash, we learn that truck maintenance personnel were not trained and did not adequately understand what is required.

Regarding brake system, for example, the Federal Motor Carrier Safety Regulations at 49 C.F.R. § 396.25 outlines the following requirements for anyone who performs maintenance, inspection or repairs on air brake systems:

(a) The motor carrier shall ensure that all inspections, maintenance, repairs or service to the brakes of its commercial motor vehicles, are performed in compliance with the requirements of this section.

(b) For purposes of this section, “brake inspector” means any employee of a motor carrier who is responsible for ensuring all brake inspections, maintenance, service, or repairs to any commercial motor vehicle, subject to the motor carrier’s control, meet the applicable Federal standards.

(c) No motor carrier shall require or permit any employee who does not meet the minimum brake inspector qualifications of §396.25(d) to be responsible for the inspection, maintenance, service or repairs of any brakes on its commercial motor vehicles.

(d) The motor carrier shall ensure that each brake inspector is qualified as follows:

(d)(1) Understands the brake service or inspection task to be accomplished and can perform that task; and

(d)(2) Is knowledgeable of and has mastered the methods, procedures, tools and equipment used when performing an assigned brake service or inspection task; and

(d)(3) Is capable of performing the assigned brake service or inspection by reason of experience, training or both as follows:

(d)(3)(i) Has successfully completed an apprenticeship program sponsored by a State, a Canadian Province, a Federal agency or a labor union, or a training program approved by a State, Provincial or Federal agency, or has a certificate from a State or Canadian Province which qualifies the person to perform the assigned brake service or inspection task (including passage of Commercial Driver’s License air brake tests in the case of a brake inspection); or

(d)(3)(ii) Has brake related training or experience or a combination thereof totaling at least one year. Such training or experience may consist of:

(d)(3)(ii)(A) Participation in a training program sponsored by a brake or vehicle manufacturer or similar commercial training program designed to train students in brake maintenance or inspection similar to the assigned brake service or inspection tasks; or

(d)(3)(ii)(B) Experience performing brake maintenance or inspection similar to the assigned brake service or inspection task in a motor carrier maintenance program; or

(d)(3)(ii)(C) Experience performing brake maintenance or inspection similar to the assigned brake service or inspection task at a commercial garage, fleet leasing company, or similar facility.

(e) No motor carrier shall employ any person as a brake inspector unless the evidence of the inspector’s qualifications, required under this section is maintained by the motor carrier at its principal place of business, or at the location at which the brake inspector is employed. The evidence must be maintained for the period during which the brake inspector is employed in that capacity and for one year thereafter. However, motor carriers do not have to maintain evidence of qualifications to inspect air brake systems for such inspections performed by persons who have passed the air brake knowledge and skills test for a Commercial Driver’s License.

Tom’s neck after surgery required when negligently maintained dump truck crushed the rear of his pickup

But when a truck crash is caused, in whole or in part, by brake failure, we usually find that the person responsible for maintenance at the trucking company had no idea what a certified brake was, much less qualifying as one.

In addition, 49 C.F.R. § 396.13 requires:

“Before driving a motor vehicle, the driver shall:

(a) Be satisfied that the motor vehicle is in safe operating condition;

(b) Review the last driver vehicle inspection report; and

(c) Sign the report, only if defects or deficiencies were noted by the driver who prepared the report, to acknowledge that the driver has reviewed it and that there is a certification that the required repairs have been performed. The signature requirement does not apply to listed defects on a towed unit which is no longer part of the vehicle combination.”

However, when mechanical failure contributes to the cause of a truck crash, we are likely to find in depositions of the maintenance supervisor and the truck driver that the driver vehicle inspection report was never shown to any driver, either the driver that filled out the report or the next driver.

Another section of the Federal Motor Carrier Safety Regulations, 49 C.F.R. § 396.11, states:

“(c) Corrective action. Prior to requiring or permitting a driver to operate a vehicle, every motor carrier or its agent shall repair any defect or deficiency listed on the driver vehicle inspection report which would be likely to affect the safety of operation of the vehicle.Every motor carrier or its agent shall certify on the original driver vehicle inspection report which lists any defect or deficiency that the defect or deficiency has been repaired or that repair is unnecessary before the vehicle is operated again.”

When we dig into the records, we are likely to find the company did not comply with this rule either.

Requirements for annual truck inspections are outlined in 49 C.F.R. § 396, Appendix G. However, it is not unusual to find that the person in charge of maintenance was unfamiliar with this requirement, and therefore could not credibly sign off on inspection requirements with which he is unfamiliar.

That very knowledge on the part of maintenance personnel is required of trucking companies. The Federal Motor Carrier Safety Regulations at 49 C.F.R. § 396.19 requires:

“(a) It shall be the motor carrier’s responsibility to ensure that the individual(s) performing an annual inspection under §396.17(d) (e) or is qualified as follows:

(a)(1) Understands the inspection criteria set forth in 49 CFR Part 393 and Appendix G of this subchapter and can identify defective components;

(a)(2) Is knowledgeable of and has mastered the methods, procedures, tools and equipment used when performing an inspection; and

(a)(3) Is capable of performing an inspection by reason of experience, training, or both as follows:

(a)(3)(i) Successfully completed a State or Federal sponsored training program or has a certificate from a State or Canadian Province which qualifies the person to perform commercial motor vehicle safety inspections, or

(a)(3)(ii) Have a combination of training and/or experience totaling at least 1 year. Such training and/or experience may consist of:

(a)(3)(ii)(A) Participation in a truck manufacturer sponsored training program or similar commercial training program designed to train students in truck operation and maintenance;

(a)(3)(ii)(B) Experience as a mechanic or inspector in a motor carrier maintenance program;

(a)(3)(ii)(C) Experience as a mechanic or inspector in truck maintenance at a commercial garage, fleet leasing company, or similar facility; or

(a)(3)(ii)(D) Experience as a commercial vehicle inspector for a State, Provincial or Federal Government.

(b) Evidence of that individual’s qualifications under this section shall be retained by the motor carrier for the period during which that individual is performing annual motor vehicle inspections for the motor carrier, and for one year thereafter. However, motor carriers do not have to maintain documentation of inspector qualifications for those inspections performed either as part of a State periodic inspection program or at the roadside as part of a random roadside inspection program.”

The Federal Motor Carrier Safety Regulations at 49 C.F.R. § 396.25 requires that the brake inspector must be “knowledgeable of and has mastered the methods, procedures, tools and equipment used when performing an assigned brake service or inspection task.” But when brakes fail, we are likely to find that the maintenance personnel lacked the knowledge of how to deal with a simple brake out of adjustment with an automatic slack adjuster, which disqualifies them as brake inspectors.

When there is a truck crash in which mechanical problems are an issue, when we review personnel files of trucking company mechanics, we are likely to find that they too are deficient in training, experience or certification.

While we seldom see a truck crash case in which mechanical failure is the sole cause, if hired early enough we are able to get a thorough inspection to find what mechanical issues are involved. In representing the victims of a catastrophic truck crash in which mechanical issues are involves, we work closely with experts who inspect the truck and guide us through the technical details required to build the case.

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Ken Shigley is an Atlanta-based trucking, personal injury and wrongful death trial attorney. He is past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, past board member of the AAJ Trucking Litigation Group, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is also lead author of Georgia Law of Torts: Trial Preparation and Practice and a chapter author of Handling Motor Accident Cases, both published by Thomson Reuters, and one of just eighteen Georgia lawyers who have earned double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification. He may be contacted at ken.shigley@johnsonward.com or 404-253-7862.