Truck Injury Lawyer Blog : Truck Accident Lawyer & Attorney: Morgan Adams : Contingency Fee Truck Accident Lawyer

Truck driver Roumen Todorov Velkov, of Globe Carrier Co., killed five (5) people when he hit a line of stopped cars on Interstate 26 Sunday night, October 24, 2010. It does not appear the truck driver ever braked.

There is an excellent article about the problems in the trucking industry that may have lead to the crash (here) with information about the crash itself, but it ignores some of the likely causes which experienced counsel would consider. What are these causes?

1. Fatigue
2. Controlled Substances (Drugs and Alcohol)
3. Overdriving of Headlights (By the time you see something in the road at night, with your headlights, you cant stop in time because you are driving too fast) 
4. Improper training.
5. Negligent Hiring of an unqualified driver
6. Distracted driving - Cell Phones and Texting
7. Faulty Maintenance (bad brakes)

These families will all need help and certainly have our prayers. Unfortunately minimum insurance coverage has not increased for tractor trailers since the 1980's (See Here) so there will likely only be $750K to go around in the primary policy, clearly not enough for a loss of this magnitude. The key is to hire an experienced trucking lawyer early in the process to see if other companies contributed to the wreck. This could involve, at a minimum, the shipper, the broker, or even a prior employer of the driver. These lawyers would, at a minimum, send spoliation letters such as the one found here.

I am sure the insurance agents are already promising to "take care of things" for these families. This is part of the formal "Apology" system designed to keep money out of the hands of the victims and their survivors. See my blogs here and here for more on this.

Trucking cases are complicated and intense, even if just properly prepared for mediation. I work with a number of great lawyers in North Carolina and would be happy to make referrals for any family member or answer any questions.

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Over 10% of all commercial motor vehicles (Tractor trailers, buses, etc...) have brakes that are so bad that government inspectors place them out of service and wont allow them to continue to drive on our roads. The CVSA (the Commercial Vehicle Safety Alliance, an industry group)  recently released statistics, on October 15, 2010, that stated that of all the vehicles inspected recently that:

• 4,117 vehicles were placed OOS for brakes (13.5% in 2010, 15.1% in 2009).

ONE OUT OF TEN! Note that is out of service which means 20% OR MORE of the braking power is impacted. This statistic DOES NOT include CMV's that have bad brakes that have less than 20% of braking power impacted. You would think, giving the incredibly low standard that drivers and companies have to meet to keep brakes satisfactory, that training would keep this, one of the most critical accident prevention tools available, from ever being violated. 

The Trucking Industry should be ashamed of this. 

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In my experience lawyers are  needed to handle injury claims for accident victims that involve $5,000 or more in medical bills. Part of the problem is computer systems that use "One Size Fits All" solutions for individual cases. Generally these systems work to lower the recovery paid to the victims of wrecks, which, of course, is why they are used by insurance companies. Allstate uses, and uses improperly in many instances as shown below, such a system called Colossus.

Here is what the news release from the State of New York's Insurance Superintendent said: 

Allstate has agreed to pay New York $1.2 million as part of a $10 million regulatory settlement over Allstate's claim handling software, New York State Insurance Superintendent James J. Wrynn announced today. The agreement follows an 18-month targeted National Association of Insurance Commissioners(NAIC) multi-state market conduct examination of Allstate's claims handling practices.

"Allstate has agreed to implement procedures to ensure transparency and fairness for consumers who have bodily injury claims," Wrynn said. "The new processes ensure that claims will be handled consistently in different regions of the country, and consumers will have the right to get the information they need in order to understand how Allstate evaluates their claims and make sure they are fairly treated."

The NAIC examination, for which New York was one of the lead states, focused primarily on Allstate's use of claims handling software, particularly the software program, Colossus.

Colossus is a software program Allstate used to guide its settlement offers for bodily injury claims after automobile accidents. The examination found inconsistencies in Allstate's management and oversight of the Colossus software program. In particular, the examination found that Allstate had failed to modify or "tune" the software in a uniform and consistent manner across its claims handling regions.

Under the settlement agreement, Allstate agreed to make a number of changes to its claims handling process, including:

Providing notice to claimants that the Colossus software program may be used in the adjustment of their bodily injury claims; Enhancing its management oversight of Colossus to ensure that it adheres to established criteria and a uniform methodology in selecting claims to be used to "tune" or modify the software to reflect recently settled claims; Strengthening its internal auditing of Colossus and bodily injury claims handling to ensure adherence to written guidelines and procedures; Consolidating its bodily injury claims handling practices into a single claims handling manual; and Not establishing a policy or rule requiring claims adjusters to settle bodily injury claims solely on the value recommended by Colossus and not providing incentives for claims adjusters to settle claims at or near the value recommended by Colossus.

"It is important to note that we found no systemic underpayment of bodily injury claims,"

Wrynn said. "While the issues addressed were serious, Allstate cooperated fully with our examination and is working to correct these deficiencies. Here in New York, we will continue to review the use of claims handling software by property/casualty companies.

"This settlement shows how state insurance regulators work together to protect consumers,"Wrynn said. "The four lead states - Florida, Illinois, Iowa and New York - worked

cooperatively to conduct this examination and will keep working with the other 41 states that have signed on to this agreement to ensure it is fully implemented and consumers are properly protected."

Allstate's payment will be used to establish a regulatory fund. The fund will be used by the 45 signatory states, to the extent consistent with applicable state laws, to develop and train examiners to review and monitor the property/casualty industry's use of software technology in adjusting claims.

New York State Insurance Department

NEWS RELEASE

Contact:

Public Affairs

(212) 480-5262

www.ins.state.ny.us

James J. Wrynn Superintendent of Insurance 25 Beaver Street New York, N.Y. 10004

ISSUED 10/18/2010 FOR IMMEDIATE RELEASE

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Supporting documents have long been required to ensure drivers remained within hours of service and were not driving in a fatigued state. These documents, when compared to the drivers log books, would prove whether the driver was where he said he was, when he said he was, doing what he said he was. For example, if the driver said he was sleeping in TN, a supporting document showing he was getting fuel in GA would prove his logs were fake. As the years progressed, more technology and different documents that were created (think Comdata, Qualcom, etc...) in the industry resulted in a hodge podge of different orders from the FMCSA. It was not the FMCSA's fault, they simply issued new directives when technology changed.

The ATA filed suit in federal court and the judge required the FMCSA to issue a complete list of all documents it required truckers to keep for supporting hours of service regulations by December 30th. I think this is a good decision as all parties should be clear on what should be retained to support a drivers logs and his hours of service.

While I don't think there is an issue (you simply keep anything that will verify that your driver was following the law), I can see where others would like to have that set out in one place, and with the advent of EOBR's and satellite GPS monitoring, technology is changing in the trucking industry. I will look forward to reviewing the proposed rule when it is published.

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It has been 37 years since the current tire regulations for commercial motor vehicles (CMV) were enacted. At that time the maximum weight of a CMV was 73,280 pounds and the maximum speed was 55 mph. Now most CMV's carry 80,000 pounds and regularly exceed 65 mph. Tires have not kept up with the increasing speeds and weights, resulting in the tragedies we read about in the newspaper and see on the news. Having to deal with the aftermath of these tragedies every day, I am thankful the regulations are finally getting updated.

The current regulation is set forth in Federal Motor Vehicle Safety Standard 119 which can be found at FMCSR 571.119.   The purpose of this standard is to provide safe operational performance levels for tires and enough information on tires to permit their proper selection and use. The notice of proposed rulemaking was published in the September 29, 2010 Federal Register.

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First a bit of background:

Electric on Board Recorders (EOBR's) will soon be universally required in the trucking industry. This is a good thing as I have blogged about before here. Rules just passed by the FMCSA in April (See here) currently require only the bottom 10% of all trucking companies to use them. EOBR's keep track of a drivers hours so that commercial truck drivers drive within the limits allowed by law, decreasing the number of accidents caused by fatigue. Access to a driver's logs, whether paper or electronic, help prove whether the driver was fatigued and whether the trucking company allowed (or required) the driver to drive in a fatigued state contributing to a wreck. Currently up to 30% of accidents involving tractor trailers involve fatigue and it is a top ten cause of wrecks involving trucks.

EOBR's are a bit harder to fake than paper logs (See here for June 2010 statistics on log book violations) and thus make it more likely that fatigued drivers will stay off the road, reducing the number of wrecks.  Given this what is wrong with a Bill requiring EOBR's to be used throughout the trucking industry? As always, the devil is in the details.

The "Hide the Evidence of Fatigue Rather Than Address the Problem of Tired Truckers" bill introduced by  Senator Mark Pryor (D-Ar) and Lamar Alexander (R-Tn) (also known as The Commercial Driver Compliance Improvement Act (S. 3884)) was filed late last month. The bill is an attempt by the trucking industry to hide evidence of fatigue in any truck driver involved in a wreck. Specifically the bill only allows the information contained in Electric On Board Recorders (EOBRS) to be used by the owner. In other words if the information helps the trucking company in a case they can use it. If it shows that their driver was fatigued they can refuse to even reveal its existence. This means the very folks that were injured due to the trucking companies practice of allowing fatigued drivers on the road are hurt again when they can't get the evidence they need to prove it in court.

Five of the largest transportation companies in the industry, JB Hunt Transportation, Knight Transportation, Maverick Transportation, US Express, and Schneider National have formed a coalition they’re calling “The Alliance for Driver Safety & Security” to back the bill. Of these companies it is worth noting that most are already using EOBR's (since they reduce wrecks and make companies more efficient to boot) and will benefit financially by having this evidence hidden from the innocent victim's of their fatigued drivers.

The bill is in stark contrast to NTSB's call for greater information needed about fatigue in the trucking industry. The call by the NTSB last month for universal EOBR's, and a greater focus on fatigue, came late last month after an investigation of a multiple fatality case in Oklahoma where the fatigued driver never even applied his brakes. (See here for the NTSB press release, the full NTSB report is not currently available but should be in a few weeks). The NTSB stated that the Federal Motor Carrier Safety Administration's fatigue educational materials, based on the North American Fatigue Management Program, need to be improved and regularly updated. EOBR's are, and have been, on the NTSB's 2010 most wanted list.

I am in full agreement that EOBR''s should be universal in the trucking industry, but by preventing the discovery and use of this evidence by victims of fatigued drivers Senators Pryor and Alexander (who listed as supporters of this bill large trucking companies in their home states) don't help the problem, they hide it from view. This is a bad bill and the Senators should be ashamed that they introduced it in the current form.  

"For the past 30 years, the NTSB has advocated the use of onboard data recorders to increase Hours of Service compliance…the NTSB recommended that they be required on all commercial vehicles,” Deborah Hersman, Chairman of the (NTSB). 

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