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. 

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.

NOTE TO TRUCK DRIVERS:
Our law practice focuses on representation of people who are seriously injured, and families of those killed, in crashes with large commercial vehicles. While those are often truck drivers, we do not handle truckers’ employment law matters. For legal advice on issues with your employer or truck driving schools, see Truckers Justice Center. 

One day in Kansas City, I took the deposition testimony through an interpreter of a Bosnian immigrant truck driver. He was driving with a Florida Commercial Driver’s License (CDL) when he crashed an 18-wheeler into my client on a Georgia interstate highway.

I asked where he got his truck driver training. He said some Russian guy in North Carolina, whose name he could not recall, trained him. How did he study the Commercial Drivers License manual, published in English?   He said his 10-year-old daughter read it and translated it for him. She may have been a precocious child, but really? I didn’t think then to dig into how he was able to take and pass the Florida CDL tests.

For several years, a high percentage of our serious truck crash cases have involved immigrant truck drivers who have to testify through interpreters. They drive the highways of America in little bubbles of their home countries, talking by cell phone as they drive with people in their home countries, listening to music in a native dialect, and never really interacting with America language or culture.

When I look back over the past several years, all the truck drivers with inadequate English whom I have encountered in truck crash cases had obtained their CDL’s in either Florida or New Jersey. Perhaps that is just a coincidence. Perhaps.

I deeply respect the immigrant work ethic that leads many newcomers to this country to work hard in jobs that it is hard to find enough Americans to do. Occasionally I have represented hard-working immigrant truckers, visited in their homes and met their wives and children.  But language proficiency has real implications for safety. That is why interstate commercial truck drivers are required to be able to read and speak English well enough to read signs, make entries on records and interact with the public and police. (49 C.F.R Section 391.11)

Now FBI and Florida law enforcement officials have charged four people, including three Russian immigrants, with operating a fraudulent business to provide CDL’s to unqualified immigrants.

Ellariy Medvednik,, Natalia Dontsova, Adrian Salari, and Clarence Davis  have all been indicted for conspiracy to aid and abet the unlawful production of Florida driver licenses and commercial driver licenses. According to the indictment, they were associated with Larex, Inc., a commercial truck driving school that marketed itself online to Russian speakers.

Russian speaking people from elsewhere seeking Florida CDLs would contact Medvednik to arrange for Larex’s services at a price of $2,000 to $5,000. It only took a few days to get a license through the school. A typical truck-driving school lasts three or four weeks and costs at least $6,000.

Many of the CDL applicants were Russian-speaking immigrants living in New York, Illinois, California and Virginia. These  would travel to Florida to obtain their CDLs with the intention of returning to those states immediately afterward.

However, to obtain a Florida CDL, an individual must first possess a Florida driver license. Florida restricts its driver licenses and CDLs to Florida residents. The Russian defendants would provide false documentation that the applicants resided with them in Florida, so that the applicants could obtain Florida driver licenses.

They would then proceed to fraudulently obtain a Florida CDL.  Dontsova, using covert communication equipment, provided answers to the students during the written portion of the CDL exam, leading to issuance of a CDL permit.

Second, Larex hired Davis, a third-party tester authorized by the State of Florida, to administer vehicle inspection tests, basic control skills tests, and road tests. According to the US Attorney, Davis routinely passed and certified students who should have failed based on their test performance. Based on Davis’s certifications, these Russian applicants were able to obtain Florida CDLs. At least 600 people have been identified as utilizing Larex’s services with Davis as the third-party tester to obtain a CDL.

The FBI started investigating the school in June 2013 after the Orange County Tax Collector’s Office noticed that many people had applied for a CDL using the same home address. This led to a sting investigation in which a Russian-speaking informant posed as an applicant and went through the whole process, and ultimately a federal search warrant for the records at Larex.

The implication for public safety across the United States is that hundreds of unqualified truck drivers, who are not sufficiently proficient in English to qualify for a CDL, and who could not pass either the written or the road tests, were authorized to drive 80,000 tractor trailers on every highway in the United States. Most probably were hired for small, fly-by-night trucking companies that to turn a blind eye to  driver qualifications and compliance with safety rules.

I hope they do not run into my future clients on the road.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of the Institute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy. Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.