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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One of the most common injuries for survivors of a truck accident is a Traumatic Brain Injury (TBI). These are actually traumatic brain damage cases because people don't get well from these injuries. As a result of handling large numbers of these cases for clients I have developed a sub-specialty in the area of TBI. Recently my hard work paid off and I was elected to the Board of the American Association for Justice's Traumatic Brain Injury Litigation Group (TBILG). This is the largest group of lawyers in the country representing those injured through the negligence of others. I look forward to helping other lawyers across the country handle these cases.

Some facts have become apparent in these cases : 

1. ER doctors don't focus on TBI injuries because they wont kill you immediately, and that is all the ER doc is concerned about.
2. In Mild Traumatic Brain Injury (MTBI) cases family members are in the best spot to determine the extent of the injury and the changes to the victim.
3. A loss of consciousness is not needed in order for a TBI to occur

I highly recommend that anyone that believes they, or a loved one, has a MTBI or a TBI, review the government's Center for Disease Control website and publications on TBI's. The government website can be found HERE.

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Every so often I need to revise and update my standard spoliation letter (a letter telling the trucking company to save evidence). In part because of changes in the industry, in part because it can always be made better.

In this latest version I fix some typo's, add in some FMCSR cites, and I added a section about the truck and trailer inspection. For those of you counting, here is version 4!

Do you have a good tractor trailer lawyer? If your lawyer has not sent a spoliation letter within a month I suggest you strongly consider hiring another lawyer unless he can articulate why they didn't send a spoliation letter.

If we know the trucking company and driver involved we typically send our spoliation letter out the same day we are hired, or the next day if the mail has run. In some cases our clients are hospitalized or worse and we have to wait till the police report is available to identify the trucking company and driver so we know to whom we need to send the letter.

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Knight Transportation was sanctioned by the Federal District Court in Texas for the destruction of evidence, called spoliation in legal circles. This happens frequently in trucking cases after accidents, and is major reason why you should hire a lawyer as soon after a wreck as you can find an experienced tractor trailer lawyer (See my prior blogs on how to hire a good trucking lawyer here).

The case, whose opinion was issued Feb 22, 2011, may be found here (2011 WL 734282 (N.D.Tex.)). The court stated: 

[T]he evidence is clear and convincing that [Knight Transportation], purposefully, over a sustained period of time, engaged in a concerted effort to hide and destroy evidence.

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I frequently see cases that make it clear the lawyers do not understand the term "intrastate" and "interstate" as used in the trucking industry. Probably because the terms are used in everyday conversation, the lawyers fail to check on the whether the load in question is actually inter or intrastate. Also many lawyers handling trucking cases are actually car wreck lawyers, and not truck wreck lawyers, a critical difference with huge implications for anyone hiring a trucking lawyer (You can test your lawyer by asking him the difference!)

So do you think you know the difference between intra and interstate as used in the trucking industry? The difference is actually very important and impacts, amongst other things, insurance coverage. So how are these terms used in the trucking industry? 

The following material from some recent decisions make it clear that: 

It is well settled in the trucking industry that the movement of goods and the intent of the shipper determines whether the goods are shipped in interstate commerce. See In the Matter of American Truck and Trailer Repair, Docket RI-92-001, 58 Fed. Reg. 16916 at 16921, March 31 1993 (Order, August 6,1992). In United States v. Yellow Cab Co., 332 U.S. 218, 228-229 (1974) the United States Supreme Court held "when persons or goods move from a point of origin in one state to a point of destination in another, the fact that part of the journey consists of transportation by an independent agency solely within the boundaries of one state does not make that portion of the trip any less interstate in character. That portion must be viewed in its relation to the entire journey rather than in isolation. So viewed, it is an integral step in the interstate movement". The term "interstate commerce" within the meaning of the FMCSRs and underlying statutes is not synonymous with transport across state lines, and can include operations conducted wholly within a single state. Whether transportation between two points in one state is considered to be part of an interstate movement is determined by the essential character of the commerce, manifested by the shipper's fixed and persisting intent at the time of the shipment, and is ascertained from all the facts and circumstances surrounding the transportation. See In the Matter of Solomon Trucker, Jr., Docket No. FHWA-1997-2417 (Final Order, June 2,1998) citing to Baltimore & o.s. WR. Co. V. Settle, 260 U.S. 166 (1922) and Texas v. u.s., 866 F.2d 1546 (5 th Cir.), reh'g denied, 874 F.2d 812 (1989). When the intent of the transportation being performed is interstate in nature, even when the route is within the boundaries of a single State, the driver and commercial motor vehicle are subject to the FMCSRs. See In the Matter of Gunther's Leasing Transport, Inc., Docket No. FHWA-1997-2400 (Decision of Chief Administrative Law Judge Mathias, January 17, 1996). So long as the cargo transported originates and terminates in different states, an interstate portion of the transportation must still be viewed as interstate. See Id. citing to In the Matter of National Transportation Service, Inc., Docket No. 92-FL-028-FR (Final Order, October 21,1994).

See also: Texas & No.R.R. v. Sabine Tram Co., 227 U.S. 111, 123 (1923); and Central Freight v. l.e.e., 899 F.2d 413, 419 (5th Cir. 1990)(the crucial factor in determining whether a shipment is interstate in nature is the shipper's fixed and persistent intent at the time of shipment). See also In the Matter of Gunther's Leasing Transport, Inc., Docket No. FHWA-1997-2400 (Decision of Administrative Law Judge, January 17, 1996, at 45)

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Andrew Wolfson wrote an excellent article for the Louisville, Kentucky Currier-Journal on the dangerous trucking company that was responsible for putting truck on the road that killed eleven people in Kentucky. The company, identified as Hester, Inc. DOT number 1222388,  had horrible safety scores, putting it in the bottom percentages of all trucking companies its size in America. In short, from a safety standpoint, the company put the lives of its drivers and members of the public at risk on a daily basis.

Previously I blogged on possible causes for this collision, now the NTSB is investigating and we will see which of my possible explanations is right. Mr Wolfson made a good choice in speaking to qualified experts and a fine trucking attorney, who I am happy to call a friend, Tim Lange.

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Landra Reid, 69, underwent surgery Friday at a Virginia hospital to stabilize injuries from a broken neck she suffered in the traffic accident. Virginia State Police say Landra and her 49-year-old daughter were traveling northbound on I-95 near Washington Thursday when their minivan was rear-ended by a tractor-trailer loaded with rolls of plastic. The Reid's minivan was pushed into the cars in front of them, resulting in a multiple car pile up and multiple injuries.

The truck driver has since been charged with reckless driving.

What happened? Typically rear end collisions like this occur for the following, preventable, reasons:

1. Driver Fatigue - The fatigue can be caused by violating the hours of service regulations or by obstructive sleep apnea. Both of these issues I have blogged on extensively before. They are chronic issues in the trucking industry. Currently the industry is trying to keep the regulations allowing them to drive longer hours and thus earn more money.
2. Driver Distraction - cell phones, texting, unauthorized passengers in the cab are all frequent causes of driver distraction. Texting while driving has been determined in studies to be as bad as drunk driving, which is why almost 20 States have banned it and FMCSA recently passed a regulation forbidding truck drivers from texting.
3. Poor Training - Drivers frequently receive poor training and are not given additional testing by the company that would identify weak drivers. Often the only test required of a driver is to determine his ability to wave a CDL license at an employer.
4. Maintenance - It is always possible that bald tires and bad brakes contributed to the wreck. The driver may not have been able to stop in time. Admittedly tires and brakes on a tractor trailer are a moderate expense, but I have seen drivers and companies push pass the safe limits in order to save a dollar. Since the driver is required to inspect the truck and trailer before driving, and every so often after that, his failure to properly inspect (either poor training or a deliberate choice) the tires and brakes could have been a factor.
5. Oversized Load - A tractor trailer that is oversized has a much harder time stopping as the brakes are designed for lighter loads. Drivers, who are inexperienced at driving an oversized load, don't allow sufficient space to stop the tractor trailer.
6. Cargo Securement - There are specific regulations requiring loads to be secured so they don't shift during transportation. If the company failed to supply the driver with appropriate gear to secure the load, or the driver chose not to use it to save time, then the load might have shifted causing the drivers foot to slip off the brake. Liability for a load shift can move from the trucking company to the shipping company depending on several factors.

One thing seems clear, there is likely not enough insurance to deal with all the people hurt in the wreck if the trucking company purchased the minimum insurance limits of $750,000. Given the serious, life threatening, injuries of Landra Reid, and the massive life changes she will endure recovering from and dealing with the consequences of this collision, the $750,000 minimum limits are not enough to cover her claims, much less that of her her daughters. Then we have the other injured victims in the cars that were hit subsequently as Mrs. Reid's minivan was slammed into the cars in front of her by the force of the impact by the tractor trailer. In cases with smaller truck companies (More About Pam Transportation Below), all of these victims would have to divide the single policy, frequently limiting them to recovering less than their medical bills.

The trucking company involved in this case appears (The company was identified by a local news report and photograph) to bePAM TRANSPORT INC (DOT number 179752 and MC number MC-150496) with 1769 trucks, 2,168 drivers who travel over 200 million miles a year on the roads and highways of America. Pam Transportation is a middle of the road company in regards to safety, with approximately 52% of the trucking companies in America having better driver safety histories on average. The FMCSA has not performed a safety audit (Compliance Review) since 2007 of Pam Transportation so really there is no way of telling about the company's actual safety record. Less than 2% of trucking companies a year have compliance audits. The new CSA 2010 regulations will help identify safety problems with a trucking company, but clearly to late for these victims.

Our firm handles cases like this every year. We have posted many blogs on the above topics. It is a tragedy every time this happens, no matter when it happens or who is involved. One can only hope that the silver lining will be the enactment of some of the reasonable safety reforms I, and groups like Parents Against Tired Truckers, Crash, and the Truck Safety Coalition,  have been advocating for to make the roads safer.

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A recent case will have significant impact on truck accident attorneys and lawyers litigating insurance coverage in trucking cases. In Carolina Casualty v. Yeates, 584 F.3d 868 (10th Cir. 2009) (en banc), the court held that the MCS-90 Endorsement applies as surety coverage when the underlying insurance policy to which it is attached provides no coverage for the loss and the motor carrier’s insurance coverage is not sufficient, IN AGGREGATE, to satisfy the federally prescribed minimum levels of financial responsibility.

As a result of Yeates, Defendant trucking companies and insurers will argue that an insurer’s MCS-90 coverage does not come into play when a plaintiff has already received a payment, from all sources, equal to the minimum statutory insurance coverage amount. See Also: Casper v. American Intl S. Ins. Co., 2009 WL 4984797 (Wis. App.)

 The Truck Accident Lawyers at the Law Offices of Morgan Adams concentrate in protecting the rights of those who were seriously injured or lost a loved one in an accident with a commercial truck or bus. Our lawyers are based in Tennessee, but serve clients throughout the nation. If you or someone you love has been seriously hurt by a careless driver, don’t sign anything the trucking company gives you -- contact us as soon as possible at 866-580-4878 or by email to learn more at a free, confidential consultation.

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I have a client that was hit by a Swift Transportation Truck in mid-May 2009. Some weeks later, after my client left the hospital, I was hired. I sent a spoliation letter to Swift on June 5, 2009 by fax, mail, and certified mail alerting them to the fact my client was injured and they needed to keep documents that might help figure out who was responsible for the wreck. A spoliation letter is a letter that asks a company to preserve evidence that would show why the wreck happened. Often the major cause of a wreck is not the driver, but the trucking company. The trucking company is typically found at fault for failing to train its drivers, refusing to fire dangerous drivers or hiring them in the first place, failing to properly maintain trucks and not giving drivers the tools they need to drive safely, and for not supervising the drivers while they are on the road. Click her to see a sample spoliation letter.

Swift responded to this letter by stating they refused to save all the documents requested but only to "preserve information [Swift] believe is relevant..." If that isn't putting the fox in charge of the hen house I don't know what is! They went on to say "we will not preserve each and every item enumerated on your list. ...If you believe this response to your request is inadequate, you may wish to file a lawsuit..." They say they will only preserve documents "as required by the Federal Motor Carrier Safety Administration..." which allows documents, relevant to determining fault in a wreck, to be destroyed in 30 days. (Specifically, post trip inspection documents are only required to be saved for 30 days according to  FMCSR 396.11(c)(2). ) Electronic material is frequently only kept for days and can be critical in a case. Many of the most important liability documents are destroyed in 6 months while a minority of documents are required to be kept for 3 years.

The ironic thing is that Swift will have insurance adjusters actively discouraging surviving family members from hiring a lawyer, even though the company itself is destroying documents which are critical to proving Swift was responsible for the wreck. Families typically are told to "wait and see what we offer before hiring a lawyer," even though the proof a lawyer needs to prove your case is actively disappearing." This is the worst sort of corporate abuse.

PLEASE DON'T THINK SWIFT, OR ITS INSURANCE AGENTS, IS ON YOUR SIDE. For more on problems caused by insurance adjusters see my prior post  "Insurance Companies Trick Victims in Trucking Cases"

The Law Offices of Morgan Adams concentrates in protecting the rights of those who were seriously injured or lost a loved one in a serious accident with a commercial truck. Our lawyers are based in Tennessee but serve clients throughout the nation. If you or someone you love has been seriously hurt by a careless truck driver, don’t sign anything the trucking company gives you -- contact us as soon as possible at 800-580-4878 or by email to learn more at a free, confidential consultation.

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Evidence in a trucking case vanishes quickly. There are several computers on-board a tractor trailer these days and all have critical information which helps determine the extent of liability and what happened in a truck wreck.  One of the computers is called an event data recorder (EDR). This computer records the speed, time of braking, time of impact from time of braking, and much more information can be wiped clean by a trucking company in a few hours. (Some companies don't even have them turned on, fearing an impartial scientific witness to key facts in a collision). On-board computer records of the trucks location, and emails to and from the company, are often held for only 14 days. Many of the paper records a trucking company is required to keep by federal regulations, to show how long a driver was on the road and if he was speeding, is held only for six months. This despite the fact that most states allow a lawsuit to be filed one to three years after the date of the collision. What do you do?

You must send a spoliation letter. Spoliation is the destruction of evidence. A spoliation letter informs the trucking company of the documents and things it must keep and preserve prior to litigation being filed. It is CRITICAL that this letter be sent as soon as possible whenever a tractor trailer is involved in a collision. Once the letter is sent, failure to save the evidence can result in an inference that the trucking company had something to hide, sanctions, or even in some states a direct cause of action against the trucking company for the destruction of evidence.

It is our practice to send our spoliation letters by fax, regular mail, certified mail, and FedEx  to the president of the company, the safety director, and/or the risk manager.

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The federal government has listed the reasons that truck drivers are involved in collisions. According to the FMCSA 2007 report on the 2005 crash results, the top 10 causes of truck accidents, where the truck driver is a fault, are:

1. Failure to keep in proper lane
2. Driving too fast for Conditions
3. Fatigue
4. Failure to yield right of way
5. Overcorrecting
6. Erratic or reckless driving
7. Illegal Drug use (By experience this would also include prescription and over the counter drug use)
8. Illegal maneuver, improper turn
9. Failure to obey Traffic signs
10. Cell phones

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The American Trucking Association estimated in 2005 that by 2014 there would be a shortage of 111,000 drivers. This shortage of drivers frequently causes trucking companies to hire drivers that are unqualified rather than having to turn down lucrative trucking contracts.

It is critical in a trucking case to have the Driver's Qualification File reviewed by an experienced lawyer to see if the trucking company knowingly hired an unqualified driver.

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