Truck Accidents

There are crucial differences between commercial trucking cases and other motor vehicle collision cases. Ignorance of those differences can compound tragedy for the victim and her family.

Such cases often involve complex technology, business practices, insurance coverages, and the discovery of documents and electronic records unfamiliar to the vast majority of lawyers.

A family member was killed or catastrophically injured in a crash with a big truck.  These accidents often cause death or traumatic brain injuries, burns, amputation, and back injuries. It is your responsibility to decide how to proceed. What should you do?

Below are answers to some frequently asked questions.

What should I do first after a catastrophic truck crash in Georgia?

In a truly catastrophic truck crash, most victims can’t do any of this. But if someone is able, here are key points:

• Turn off your engine and turn on hazard flashers.
• Call 911.
• Take quick photos with your cell phone of the scene showing the positions of vehicles.
• Safely move your vehicle out of the road and safe from traffic.
• Speak honestly with the officer without admitting fault, as your emotional first reaction may not match the physical evidence.
• Find out when and where you may get the police report.
• If first responders offer you a ride in an ambulance, take it.
• Shock can delay the recognition of injuries.
• Exchange contact and insurance information with all other drivers.
• An easy way to do this is to take cell phone photos of the driver’s license, insurance card, tags on all vehicles and trailers, and all information on the sides of the truck and trailer.
• Notify your insurance company. There is a phone number to call on your insurance care or the insurer’s app or website.

What should I do first after a truck crash in Georgia?

How should you select a lawyer for a catastrophic truck crash case?

After a catastrophic truck crash, don’t just hire a law firm with a TV ad or billboard. Most such firms are structured to run routine car wreck cases through the mill quickly. However, most “billboard law firms” do not send their lawyers to specialized national training programs on trucking law.

An expert and ethical lawyer in another field might not be familiar enough with trucking cases to act timely and appropriately.

 Much as you want a board-certified surgeon for major surgery, look for an experienced, board-certified truck accident civil trial lawyer. Johnson & Ward (404-253-7862) has represented Georgia accident victims since 1949. Ken Shigley is a former State Bar president and was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy in Civil Trial Practice, Civil Pretrial Practice, and Truck Accident Law. Ken Shigley “specializes in wrongful death cases against trucking companies.”Atlanta Journal – Constitution, May 7, 2018.

Why is it important to authorize a well-qualified truck accident lawyer to act quickly on your behalf?

Insurance companies will try to lull you into inaction. After a catastrophic truck crash, the trucking company’s insurance adjuster may try to lull you into inaction by promising to “do the right thing” and perhaps making an offer of settlement that may tempt an unsophisticated victim who is still in shock but at a bargain price in light of what the company knows. The objective is to deal directly with the victim, telling her that she doesn’t need an attorney until they can legally erase critical data about what happened.

Why is it important to be aware of the Insurer’s rapid response team?

The trucking company’s insurer immediately dispatches to the scene a “rapid response team” including investigators, technical experts, and a defense lawyer. Sometimes, they may arrive before all the victims are loaded into ambulances and begin trying to spin the evidence in the company’s favor while your loved is en route to the hospital.

Why is it important to know that important evidence may “disappear” after a catastrophic truck accident  while you are innocently delaying action?

We have seen truck accident cases in which critical evidence about the truck operation “went missing” while law enforcement officers were busy containing the scene, directing traffic, and getting emergency medical first responders to the scene. We have seen a  trucking company remove the truck from impound, take it out of state, and erase electronic data even though the lawyers had agreed on a time for a joint inspection. In one case, we found that the defense lawyer and the company’s expert arrived early and were directing a salvage yard employee to repeatedly pick up the victim’s car on a forklift and drop it, apparently to affect wiring to brake lights before testing.

• • Why is it important to consider the possibility of a temporary restraining order (TRO) after a catastrophic truck crash?

Based on long experience, at Johnson & Ward we selectively consider whether to file a petition for temporary restraining order (TRO) in the county where a truck is impounded after a crash to preserve evidence pending a joint expert inspection. In one case the TRO assured preservation of a dashcam video we found upon inspection, which in turn led to an $8 million settlement.

• Why is it essential to quickly send a notice to preserve evidence after a catastrophic truck accident?

 An experienced truck accident lawyer will also send a letter putting the company, driver and insurer on notice to preserve a the truck’s telematics data, the truck driver’s driving hours data, the driver’s cell phone for forensic download, including all apps as well as phone connection time), truck maintenance records, and electronic data and video uploaded to other companies Immediately send the trucking company.

• Why is it important to promptly send a request for insurance information after a serious truck accident?
  Georgia Code Section 31-3-28 requires insurers doing business in the state to provide, within 60 days from receiving a written request, a statement under oath of the policies it has issued to the person or company against whom a claim is made. Some insurance information about interstate motor carriers is on the carrier profile in a website of the Federal Motor Carrier Safety Administration, but that is often incomplete.  An experienced trucking trial attorney knows to put this request for insurance information in proper form, sworn to before a notary, and to address it to all the right companies. Insurance groups like State Farm and Progressive have multiple companies that provide various types and levels of insurance coverage. An lawyer experienced in this field will ensure the request is addressed to all relevant entities.

• Who can be held liable in a catastrophic Georgia truck accident?
  • The truck driver and trucking company are the usual defendants in a lawsuit for injuries or death caused by a truck accident.The trucking company may try to avoid scrutiny of its bad corporate management practices by admitting that it employed the driver and the driver was simply negligent. To keep the focus on the corporate negligence of the company, an experienced trucking lawyer may choose to allege negligence supervision and other categories of corporate negligence as root causes of the crash, which could in extreme circumstances serve as the basis for an award of punitive damages.Sometimes, a freight broker or shipper that has control over the time, manner, method, routes, etc., may be liable. If there is even a remote possibility of the trucking company’s insurance company becoming insolvent, it is important to get information about brokers, add them to the suit, and then consider dismissing them without prejudice with a right to bring them back in upon notice. Cargo loaders may be liable for unsafe loading. In general freight loads, there rules and industry best practices for cargo securement to prevent the load from shifting, falling, or spilling during transport. This is crucial for safety and compliance with regulations. In the forest products context, we recently recovered an additional million dollars from the company that loaded a log truck in the woods with tree-length timber hanging twenty feet off the end of the trailer. In catastrophic crashes of container freight trucks hauling freight to and from ocean ports, sometimes the coordination of Ocean Bills of Lading, maritime law, and Federal Motor Carrier Safety Regulations can allows bringing into the truck wreck case an ocean carrier and the maritime insurance on the ship that entrusted the freight container to a trucker at the dock. Inland truck hauling is typically brokered to small trucking companies or owner-operators with $750,000 to $1,000,000 liability coverage. That ,au sound like a lot, but when there are multiple deaths or catastrophic injury with a huge life care plan, it’s a drop in the bucket. This is a murky area of law which few lawyers understand. For our mediation of one such case, two insurance executives in bespoke suits flew in from London.
  • Vehicle manufacturers and maintenance contractors are also on the list of potential defendants. That happens perhaps most often when brakes fail, or a truck wheel comes off.
• Why is it often important to hire an accident reconstruction expert after a catastrophic truck crash in Georgia?
  An accident reconstruction expert will download and analyze electronic data from the truck, take a great many forensic photos of the vehicles and accident scene, get a 3D scan of the accident scene (both ground level and aerial by drones) and vehicles, determine the physics of how the crash occurred, and generate graphic illustrations of the crash. This expert may also collaborate with illustrators to create videos and still illustrations of the dynamics of the crash. However, employment of an accident reconstruction expert is not always necessary or cost-effective. An experienced truck accident trial attorney can decide when it is prudent and cost-effective to hire an accident reconstruction expert.
• Why is it important to interview police and motor carrier enforcement officers after a catastrophic truck crash?
• Even though they file official reports, when officers are interviewed within a reasonable time after a catastrophic crash, they may provide other details, nuances, and colorful narratives that are not included in written reports. Several agencies may respond to a major crash and may have more evidence, including dashcam and bodycam video, still photos, knowledge of additional witnesses, and dramatic observations that have not been included in reports. When a crash involves agricultural products, it is worth checking to find whether the Georgia Department of Agriculture also sent an investigator to the scene.
• Why is it important to visit the scene of an accident after a catastrophic truck crash?
• Developing a major case is like weaving a tapestry. Many threads of evidence from a variety of sources may be woven together to make the total, persuasive presentation.
• Observe the scene. Yogi Berra famously said, “You can observe a lot just watching.”  Walking the area and driving all approaches to the crash scene can reveal crucial insights. In such an overview of the scene, it is important to observe and photograph any signs, distractions, or visual obstructions.
  1. Look for unlisted witnesses. Canvassing the area may lead to finding the one crucial eyewitness, not mentioned in a police report, who puts it all together.  We had a case in which a neighborhood canvass led to two 12-year-old boys who were playing touch football in the area when the fatal event happened; their observations broke the case open.
  2. Find all sources of video evidence. Today, businesses have security cameras, residences have doorbell video cameras, and there may be traffic monitoring or security cameras on nearby utility poles. Your attorney or investigator may Identify and contact everyone who has a video camera in the area, arrange for the download, and purchase copies of recordings. Sometimes, bystanders who are not listed on the police report take photos and video of the crash scene that they post on social media, so an online search can find gold.
• How is fault determined in a truck accident in Georgia?
  • In general, ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. The absence of such diligence is termed ordinary negligence.
  • Electronic evidence is present in most trucking crash cases. Modern commercial trucks are brimming with computer equipment recording engine operation, braking, driver logs, dashcam video, and satellite uploads of data to fleet management systems. Through evidence such as police reports, black box data, driver logs, witness statements, and accident reconstruction.
  • In truck accidents, negligence may be determined by violation of both written laws and regulations and industry standards from a variety of sources.
  • The written rules start with basic traffic laws such as speeding and  improper turns or lane changes.
  • Evidence of negligence includes violation of safety regulations  for large trucks found in the Federal Motor Carrier Safety Regulations for trucks operating across state lines and the similar Georgia Transportation Safety Rules for trucks operating only within Georgia. These are summarized in simplified form in the Commercial Drivers License (CDL) Manual. These regulations include ill or fatigued driving, driver work time limits, distracted driving, secure loading of trucks, hazardous materials, equipment inspections, and basic driver proficiency in English.
  • Experienced trucking trial lawyers may weave these regulations and the CDL Manual together with a variety of industry training materials that reinforce essentially the same industry standards. Some of these are published by J. J. Keller, Delmar (Alice Adams), Jimmy Cox, Schneider Training Academy, and Smith System. Layered together and interlinked, these sources of trucking industry standards can provide irrefutable evidence of the “rules of the road” making up the standard of ordinary care and negligence for prudent truckers in the same or similar circumstances.
  • For specialized types of trucks, there are additional sources of industry standards helping to define ordinary care and negligence. For example, for concrete mixer truck drivers the National Ready Mixed Concrete Association provides certification standards for concrete delivery vehicles and provides excellent training materials and online courses that go beyond the basic CDL manual to cover the unique aspects of operating a concrete mixer truck with a high, shifting center of balance. For log trucks hauling timber from forests to paper and fiber board mills across rural Georgia, there are the Georgia Forest Products Trucking Rules.
  • Expert witness testimony is often useful to explain in simple terms how all these support the necessary degree of care.
• What damages can I recover in a personal injury truck crash claim?
  • Generally, in a personal injury case, you may recover medical expenses, past and future income loss, past and future pain and suffering, loss of earning capacity, emotional distress, and property damage.
  • An experienced trucking trial lawyer can guide you through gathering and presenting proof of these damages. It is usually prudent to include all these claims when filing suit.  But sometimes it is tactically prudent to not bother with  relatively minor categories of damages that would drag the jury into trivial bookkeeping questions and set a low bar for their deliberations.
• 9. What if I was partially at fault for the accident?
• Georgia follows modified comparative fault. You can recover damages if you are less than 50% at fault, but your compensation will be reduced by your percentage of fault. Insurance representatives often try to make any degree of minor negligence on the part of the victim look like 50%.  But if a good case is well-presented, jurors are not likely to see it that way.
• 10. How long do I have to file a truck accident lawsuit in Georgia?
• The general rule is that you have two years from the date of the accident, or the date of a victim’s death, to file suit in court. Insurance representatives often try to lull good people into inaction until their time runs out. There are limited exceptions to the two-year limitation, but it is foolish to assume you can rely on those.
• 11. Should I talk to the trucking company’s insurance adjuster?
• No. There is seldom anything good that can come of talking with the adjuster before you have an appropriate attorney. The adjuster would probably try to get you to give a recorded statement without preparation, trick you into saying things that hurt your case, lull you into inaction while they prepare a defense, and try to get you to sell out cheaply.   Just get the adjuster’s name and contact information and say you will talk to an attorney first. Always consult an attorney before speaking with any insurance representatives.
• What makes truck accident claims more complex than regular car accidents?
• Lawyers who are not trained in the specifics of large truck crashes often make the mistake of thinking it is just a bigger car wreck. It is not. Truck accidents involve layers of complexity with multiple potential defendants, specific technologies, federal regulations and state regulations, industry standards, and specialized corporate legal teams.
• . What federal laws apply to truck accident claims?
• The Federal Motor Carrier Safety Regulations (FMCSRs), authorized by the Motor Carrier Act, govern issues like driver qualifications,  hours-of-service, equipment maintenance,
• How much is my truck accident case worth?
• Anyone who claims to be able to answer that question before digging into the details of the case is not qualified to handle the case. The value of your case depends on the severity of your injuries, liability, available insurance, long-term effects on your life, and a multitude of other, subtle factors. An experienced truck accident trial attorney can guide you in that evaluation.
• 12. What is the statute of limitations for wrongful death claims in Georgia?
• Generally, you have two years from the date of death to file a wrongful death lawsuit in court. There are “tolling” rules that can extend the deadline if necessary but, as in most of life, it is foolish to assume you have more time. An experienced trucking accident personal injury lawyer can guide you through that.
• 14. How is “full value of life” determined in Georgia?
• The full value of a life is decided by the enlightened conscience of a fair and impartial jury.
• It includes both economic losses, such as loss of future income and benefits, and value of services to the family.
• The full value of life also includes intangible aspects of the value of experiencing life to the decedent. That may include evidence of relationships, hobbies and interests. Evidence supporting the intangible value of life can include a wide variety of witness testimony and the deceased’s photos, videos, writings, work product, etc.
• 15. Can I bring both a personal injury and a wrongful death claim?
• If the person died, the personal injury claim is no longer applicable. However, the estate may file a survival action for damages incurred before death. This is separate from the wrongful death claim on behalf of designated family members.
• 16. Is punitive damages recovery possible in wrongful death truck crashes in Georgia?
• In a “survival action” brought by the estate of the deceased, punitive damages may be awarded to penalize, punish or deter the defendant for willful misconduct, malice, fraud, wantonness, oppression, or a conscious indifference to consequences.
• Punitive damages are not available in the wrongful death action brought by designated family members for the “full value of the life.” An experienced Georgia trucking trial attorney can guide you through the tactical considerations in these claims.
• 17. What role does the truck driver’s employer play in a wrongful death claim?
• In interstate trucking the truck driver is a “constructive employee” of the trucking company even if classified as an independent contractor for other purposes. Insurance company representatives sometimes try to tell unsophisticated people that the company is not responsible for the driver’s negligence. That is not true. The trucking company employer is almost always vicariously liable for the negligence of its truck driver.
• The trucking company may also be liable for its own negligence in hiring, training, equipping, supervision or entrustment of the truck to the driver. In most serious cases, we find that something in corporate management was a root cause behind the crash. It often requires extensive effort to gather proof.
• 18. What if the truck was owned by an out-of-state company?
• Georgia courts have jurisdiction over incidents occurring within the state. If the accident occurred in Georgia, a lawsuit can be filed in Georgia. Service of process on a truck driver out of state can be challenging, especially if the driver is almost always on the road. However, interstate motor carriers must appoint a “blanket agent” for service of legal papers in all states.
• 19. Who has the right to file suit for wrongful death in Georgia, and how is the money divided among family members?
• Yes, Georgia Code Section 51-4-2 defines who recovers for wrongful death, but family members may reach a mutual agreement deviating from the statutory formula. Without such a mutual agreement, the
•  A surviving spouse has the right to sue for wrongful death in Georgia, the spouse gets no less than one third. The rest is divided equally among children.  If children of a deceased father are born to different mothers, either in or out of wedlock, all the children share equally.
• Where the surviving spouse is required to share a wrongful death recovery with the decedent’s minor child, the child’s share up to $15,000 may be held by the child’s natural guardian (usually a parent) without posting a bond. If a minor child’s share is $15,000 or more, a guardian of the child’s property must be qualified in probate court, and a bond posted. The bond requirement may be avoided if the probate court approves a structured settlement with annuity payments going to the child after attaining age 18, with the cash held by the child’s natural guardian remaining less than $15,000. It is often preferable to put much of a minor child’s recovery in an annuity designed to cover educational expenses after high school.
• If there is no surviving spouse, the right goes to surviving children. If the surviving spouse is missing, a court may permit the children to pursue the death claim alone.
•  Where a young man dies without a spouse or child, but a girlfriend is pregnant with his child at the time of his death, there may be a contest between the dead guy’s parents and whoever is representing the interests of the unborn child.
• In the absence of a surviving spouse, child or parent, the executor or administrator of the decedent’s estate can sue on behalf of the next of kin. If the next of kin is a minor, e.g., a sibling, an anomaly in current Georgia law requires that an administrator file suit on behalf of the minor beneficiary within two years from the date of death rather than tolling that time limit due to the child’s age.
• There is never a wrongful death claim for which no one is entitled to recover. If there are no spouse, children or parents surviving, Georgia Code Section 51-4-5 allows  the representative of the estate to file a wrongful death lawsuit on behalf of the next of kin, determined under  rules of descent and distribution defined in Georgia Code Section 53-17-12 (c), according to a family relationship chart.
• 20. How long does it take to resolve a wrongful death truck accident case in Georgia?
• It can take months to several years to conclude a wrongful death claim, depending on case complexity, disputes over liability and insurance coverage, and whether it goes to trial.  
• Under Georgia “tort reform” law, the defendant may a stall proceedings 90 days by filing a motion to dismiss instead of an answer, even if the motion is without merit. An experienced trucking trial attorney may ask the court as soon as possible for a scheduling conference to set a trial date. Even if that date is a year or two in the future, it helps keep the case on track and focuses the attention of the insurance company.
• We have had trucking cases that settled for the combined total of several insurance policies, in response to well-written and documented demand letters.
• Other cases take years, usually due to severe court backlogs, bankruptcies of trucking companies, and insolvency of their insurance companies. Problems with corporate management mismanagement and failing finances can have uncontrollable impact on claimants.