Frivolous Defenses and Frivolous Lawsuits

Legislators have been attacking frivolous lawsuits for clogging the courthouse and unfairly costing our society billions of dollars. As a result almost every state, including the federal government, has passed sever penalties for the filing of frivolous lawsuits. The number of lawsuits has decreased, but the amount of litigation has increased! How can this be? Simple, we now have a proliferation of frivolous defenses. 

Defense lawyers, in order to make up for the loss of the volume of cases, are now litigating everything in sight. It adds huge amounts of time to a case (waste a jury's time) and increases the costs and expenses of an injured party needlessly.

A simple fix would be to require frivolous defenses to be sanctioned in the same way frivolous cases are currently being sanctioned.

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I post frequently on the danger of impaired drivers, and specifically the dangers from impaired truck drivers. Not much surprises me anymore, this one did: 

State police report finding meth labs in truck

The Courier-Journal

A Mississippi truck driver was arrested Thursday morning after Kentucky State Police found two active methamphetamine labs in the sleeper portion of his truck during a traffic stop on Interstate 71 in Carroll County.

Bobby K. Mitchell, of Myrtle, Miss., was charged with speeding, driving under the influence, manufacturing methamphetamine, unlawful possession of methamphetamine precursors, possession of a controlled substance and drug paraphernalia, according to a release from Kentucky State Police in Campbellsburg.

Police received erratic driving reports about the northbound truck around 10:30 a.m.

After a trooper pulled the vehicle over at the 43-mile marker, Mitchell was determined to be under the influence and a search of the truck followed. Police said Mitchell was cooking methamphetamine while he was driving.

The truck was hauling furniture, police said.

A state police hazardous materials technician responded to the scene and seized the labs.

Mitchell is being held in the Carroll County Detention Center, police said.

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The Commercial Motor Vehicle Safety Alliance (CMVSA) held  its Roadcheck 2011 event in June this year. This event asks for all states to inspect trucks on the road. Less than 1% of trucks are inspected. By announcing the inspections 4 months in advance, the CMVSA gives drivers and trucking companies four months to prepare, or if the problems are serious enough, to simply stay off the road for a few days.

Despite the huge publicity of the inspections in the trucking industry, the 3 day inspection in 2011 found almost 20% of the inspected vehicles and drivers failed a Level 1 inspection. The fact that truck drivers are on the road in an unsafe condition, knowing that this special inspection will be run, shows how drivers believe the chances of being inspected are so rare that they believe they won't be caught, or that they are so ill trained that they think they are safe.

Nationwide data show that in 2010, log book violations (logs are designed to keep tired drivers off the road) were the most common reasons for drivers being placed out-of-service at 29.5 percent of driver out-of-service violations. The most frequent out-of-service item for trucks was unsafe brakes comprising 25.5 percent of all vehicle out-of-service violations.

Thus the real danger: tired truckers, driving trucks with bad brakes, who don’t realize they are falling asleep until it is too late and who cant stop when they realize what is going on.

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Knight Transportation has been found guilty of destroying evidence. Destruction of evidence is typical in the trucking industry and a prime reason you need to hire a lawyer ASAP.

In the case at hand the federal judge in Texas stated:

[The Driver's] flight from the accident scene and Knight's hasty replacement of the truck's tires are the epitome of bad faith conduct. [The driver's] flight from the accident scene and Knight's hasty replacement of the truck's tires are the epitome of bad faith conduct. Surely the driver, a professional truck driver, knew that fleeing the accident scene not only violated the law but would necessarily thwart evidence recovery efforts on the truck. Likewise, Knight's replacement of the truck's tires within two days of the fatality accident, after its driver fled the scene and the state, cannot seriously be labeled anything less than intentional conduct.  

Lastly, Knight's failure to preserve key Qualcomm messages, in the face of a request to produce and preserve by a law enforcement agency, also strongly evinces bad faith.

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While trucking companies acknowledge that hair tests show a much higher number of drivers with drug problems than conventional drug testing, most still don't use this modern and efficient test.

C.R. England, a large national trucking company, found when it switched to hair tests for drugs that the positive rate for drivers shot up to from 2.8% to 11%. Both JB Hunt and Schneider are also using hair tests to determine drug use. Schneider found on a simultaneous urinalysis/hair test that 82 truck drivers tested positive on the urinalysis and 964 on the hair test. The difference is 882 drug users that are on our roads, slipping through the crack with a company that does not hair test for drugs.

See: Transportation Topics, July 11, 2011, P3

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I have been asked by families (and defendants) where the money in a wrongful death case goes in Tennessee. In Tennessee the wrongful death proceeds are distributed under the laws of intestate succession. Kline v. Eyrich, 69 S.W.3d 197, 202 n.3 (Tenn. 2002).

The proceeds of a wrongful death case, unlike an injury case, pass free of creditors' claims. Tenn. Code Ann. sec. 20-5-108(b) and 20-5-106. Foster v. Jeffers, 813 S.W.2d 449 (Tenn. App. 1991).

Tennessee Code Section 31-2-104 sets out the rules for intestate (dies without a will) succession:


(a) The intestate share of the surviving spouse is:


(1) If there is no surviving issue of the decedent, the entire intestate estate; or


(2) If there are surviving issue of the decedent, either one-third ( 1/3 ) or a child's share of the entire intestate estate, whichever is greater.


(b) The part of the intestate estate not passing to the surviving spouse under subsection (a) or the entire intestate estate if there is no surviving spouse, passes as follows:


(1) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;


(2) If there is no surviving issue, to the decedent's parent or parents equally;


(3) If there is no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother and sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take by representation; or


(4) If there is no surviving issue, parent, or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there is no surviving grandparent or issue of grandparent on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.

 

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