I wanted to thank all the great speakers on the national trucking program I moderated last Saturday in New Orleans, as well as all the speakers at the private, ITLG members only, program on Friday. We had a great turnout and enjoyed hearing different approaches to problems from around the country. My particular thanks as well to the great staff at AAJ, in particular Molly Laurence and Scott Gehring, and fellow trucking attorney, and the head of the ITLG special project committee, Robert Collins. This is the largest annual national program for lawyers representing those injured in a tractor trailer collision.

Consider what you want for your case. You can certainly hire the faculty to represent you, you can hire someone who attended, or you can hire someone who did not even bother to attend the program. I would suggest, for your case, that you should at least make sure whoever you hire attended the program and is keeping up on the law in this complex and unique area.

The seminar agenda for the Association for Justice’s Litigating Trucking Collision Cases was as follows, I have included the lawyers website link for you as well if you want to ask the lawyer for a copy of their paper or reach them directly. Our speakers were: 

 

 Moderator – Morgan Adams

 Documents, Records, and Data—All Kinds of Discovery – Emily Hawk Raley

 Trucking 101: What You Need to Know Before Handling Your First Trucking Case – Michael R. Cowen

 The Records Custodian—The Most Critical Deposition in a Trucking Case – Kenneth L. Shigley

 Interstate Trucking Cases: Equipment, Reconstruction, Evidence Preservation/Spoliation, and Temporary Restraining Orders – Daniel J. Buba

The "Big Ten" COmmercial Transportation "Rules of the Road" – Steven M. Gursten

Comprehensive Safety Analysis 2010: A New Set of Rules for Trucking Companies and Drivers – Lawrence  Simon

 How to Lose a Trucking Case – Allan P. “Chip” Sloan, III  

FMCSR, CDL Manuals, and Negligence Per Se – Matthew A. Cartwright  

The Rogue Trucking Company – Michael J. Leizerman  

Bias and Right Jury Modeling – R. Eddie Davidson

 

The United States Supreme Court recently held that the principle place of business for a corporation, for purposes of determining whether a federal court has diversity jurisdiction under 42 U.S.C. Sec. 1332(c)(1), is that place where:

a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).

Determining the proper "principle place of business" for a trucking company is critical because it tells an experienced truck accident lawyer where the proper place to file a truck injury lawsuit.

Read the full opinion in Hertz v. Friend,  No. 08-1107  (USSC 2/23/10) here.

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.

 Morgan Adams is a trial attorney licensed in Tennessee and Georgia. He is listed as a "Mid-South SuperLawyer" (Limited to the top 5% of the lawyers in Tennessee, Mississippi, and Arkansas), is a member of the Million Dollar Advocates Forum (limited to lawyers who have recovered 1 million dollars or more for their clients), and is the Chair of the American Association of Justice’s Interstate Trucking Litigation Group. He has served as chair of the Tennessee Association of Justice’s Trucking Litigation seminars since 2004, and is a frequent speaker at national legal education programs, training lawyers to properly handle injury cases involving commercial vehicles. 

 

Recently I have seen many plaintiff lawyers trying to claim that the defendant truck driver or trucking company is liable, as a matter of law (Negligence Per Se), for technical violations of the Federal Motor Carrier Safety Regulations. I believe this is an incorrect approach and would strongly encourage lawyers to think through their position before giving judges a chance to make bad law.

In order for a violation to be a negligence per SE violation, requiring the court or the jury to find the defendant at fault as a matter of law, they must find: 

(1) "the defendant violated a statute or ordinance which ‘imposes a duty or prohibits an act for the benefit of a person or the public;"

(2) “the injured party was within the class of persons whom the legislative body intended to benefit and protect by the enactment of that particular statute or ordinance;" and
(3) “such negligence was the proximate cause of the injury.”
Technical violations of the FMCSR, while satisfying prongs 1 and 2, don’t satisfy prong 3. Save your ammunition for issues that will make a difference in your case.

 

The MCS-90 endorsement should be read into every interstate trucking policy, even if not attached. However, in order for the MCS-90 policy to to be found to be read into an insurance policy, when it was not specifically made part of the policy, you need to hire an experienced truck accident attorney from the beginning. What makes me say that?  Take a look at a recent blog post on the Water’s Case. In his Florida Insurance Blog, Mark Nation noted that: 

The Progressive policy at issue did not contain an MCS-90 endorsement, however, Miller argued that one should be incorporated into the Progressive policy because Progressive knew or should have known that Waters was engaged in interstate travel.  The 11th Circuit held that Waters did not present sufficient evidence to support a conclusion that Progressive knew or should have known Miller was driving the tractor-trailer interstate. 

Importantly, the 11th Circuit specifically held that because Waters failed to provide sufficient evidence that Progressive knew or should have known that Miller was engaged in interstate trucking the Court found it  "unnecessary for us to reach the issue of whether the endorsement can be read into a policy that does not contain it, and we expressly decline to do so." 

The issues required to be addressed, to obtain coverage, in the Waters case were not fully developed at the trial court level in my opinion. Thus, once the case went up to the Court of Appeals, there was little that could be done by a really smart, knowledgeable, appellate counsel but go down swinging trying to save the case. Footnote 3 to the Water’s case lists a series of cases that did find coverage when the issue was addressed appropriately. My take on Water’s, and footnote 3, is as follows: 

Waters v. Miller, 564 F.3d 1355 (11th Cir. Ct. App. 2009) The court held that a Florida based truck, with a catastrophic accident in Georgia, was not covered by an MCS-90 even though involved the truck was clearly involved in  interstate transportation. The court held:

… In this case, however, the Policy did not include the endorsement. Waters urges this Court to incorporate the endorsement into the Policy as a matter of law, arguing the evidence presented to the district court showed Progressive knew or should have known Miller was engaged in interstate travel. Even if we assume arguendo such knowledge on the part of the insurer is justification for incorporating the endorsement into a policy that does not contain it,[FN3] Waters did not present sufficient evidence to support the conclusion that Progressive knew or *1358 should have known Miller was driving the tractor-trailer interstate. For this reason, it is unnecessary for us to reach the issue of whether the endorsement can be read into a policy that does not contain it, and we expressly decline to do so. The district court did not err in refusing to rewrite the Policy to include the MCS-90 endorsement, and we affirm its order granting summary judgment in favor of Progressive on the federal law issue.

FN3. Some courts have incorporated the endorsement into policies as a matter of law. See Prestige Cas. Co. v. Mich. Mut. Ins. Co., 99 F.3d 1340, 1348 n. 6 (6th Cir.1996); Travelers Ins. Co. v. Tranp. Ins. Co., 787 F.2d 1133, 1139 (7th Cir.1986); Hagans v. Glen Falls Ins. Co., 465 F.2d 1249, 1252 (10th Cir.1972). At least one other, while not incorporating the endorsement, indicated it may be read into a policy if the insurer knew it was insuring an interstate motor carrier. See Howard v. Quality Xpress, Inc., 128 N.M. 79, 989 P.2d 896, 900 (1999).Progressive was entitled to summary judgment under the facts of this case. Accordingly, we affirm the district court’s orders granting summary judgment to Progressive.

Truck and bus accident lawyers and attorneys will have another issue to worry about while representing accident victims. This is a Tennessee case so I know my clients will be at the forefront of this battle. Lawyers who fail to stay up on this ever changing area of the law, Truck Accident Litigation, will find they lose more cases than they win for their clients. The following is a brief case description: 

Armstrong v. U.S. Fire Ins. Co., 606 F.Supp.2d 794, (E.D. Tenn. 2009) is the first case to apply DOT’s interpretation of FMCSR 387.15 – In 2005, the FMCSA adopted regulatory guidance that limits an insurer’s exposure to pay under the MCS-90 endorsement to judgments obtained against the motor carrier—not the driver, lessor, or any other party. The Court held that the MCS-90 requires the insurer to pay only a judgment obtained against the named insured motor carrier and not the driver or any other person or entity that qualifies as an “insured” under the policy to which the MCS-90 is attached. This is the first case applying the FMCSA’s 2005 guidance. The court stated it disagreed with the prior case law that held:

…that an insurance company may be obligated to compensate an injured party under an MCS-90 endorsement even if the motor carrier who purchased the underlying policy was not the negligent party responsible for causing the injuries ( er words, the motor carrier who purchased the insurance-the so-called “named insured”-need not have been negligent; all that is required is that the accident resulted from negligence and that a judgment was entered implicating the coverage provisions of the policy and endorsement…

Given the DOT guidance, expect that this issue will be tested in every case going forward. Armstrong was followed in Sentry Select Ins. Co. v. Thompson, —- F.Supp.2d—-, 2009 WL 3366938 (E.D. Va.) where the Pf’s received in excess of 750K.

 

I was speaking to my friend Leigh May in Atlanta, a great products liability lawyer who has handled a number of defective tire cases with major results, and she was kind enough to review my blog on old and defective tires. She made an excellent point that the spare tire is often overlooked when people change their tires. I have always looked at tire issues from the standpoint of a truck accident attorney and how the tire defect contributed to truck rollovers and loss of control by drivers. However, from my own experience, I can tell you I used to change out all my tires – except the spare – as routine practice! The fact is that by the time the spare is actually used, it is often way beyond its safe shelf life.

The lesson to be learned is that, for safety, when you change out your tires make sure you include the spare! The few extra dollars it costs you to replace a spare tire are worth it to prevent some of the horrible tragedies that Leigh and I have seen over the years.

If you or a family member were involved in a wreck with a tractor trailer chances are the professional truck driver was distracted in some manner. Proving that the driver was distracted, and how he was distracted, will likely require a lawyer. The trucking insurance companies hope you sit on your hands as the more time that passes the harder it will be for your lawyer to prove how the driver was distracted, and the more likely the defense lawyer will be able to claim that some portion of the wreck was your family member’s fault.. 

There is no question that distracted driving is a major contributor to serious truck accidents. Congress is aware of this as is the FMCSA. Recently the FMCSA banned texting by drivers, a danger we had blogged about since early 2008. Proving texting may be difficult as truckers may use a co-drivers phones.The driver may also have a throwaway phone so they are not calling on their "official" phone. Early aggressive work by an experienced trucking lawyer will give you the best chance of proving your case.

I predict within the next three years that Congress will mandate Electric On Board Recorders (EOBR) because EOBR’s make the trucking industry safer. While the FMCSA has a final rule to require EOBR’s on about 1,000 motor carriers, I would expect that this rule will be significantly expanded. While EOBR’s can still be faked, and I have blogged on the subject before, they are much more difficult to fake making it easier to show violations of the FMCSR.

One of the most common errors in the depositions of truck drivers is failing to determine how they stopped their tractor trailer. Unlike a car, there is more than one way to brake a tractor trailer. Inexperienced lawyers fail to realize this and allow a tractor trailer driver to say "I braked the truck" prior to impact. Consider that a tractor trailer driver can brake his rig by:

  1. Jake Brake (engine retarder)
  2. Parking Brakes
  3. Trailer Brakes
  4. Tractor Brakes
  5. Tractor and Trailer brakes
  6. Emergency Brakes (disconnect)
  7. Hitting a car

Depending on what brake, or brakes, that was used by the driver you will get different stopping distances, a critical factor in determining cause in any truck accident case.

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 800-580-4878 or by email to learn more at a free, confidential consultation.

 Morgan Adams is a trial attorney licensed in Tennessee and Georgia. He is listed as a "Mid-South SuperLawyer" (Limited to the top 5% of the lawyers in Tennessee, Mississippi, and Arkansas), is a member of the Million Dollar Advocates Forum (limited to lawyers who have recovered 1 million dollars or more for their clients), and is the Chair of the American Association of Justice’s Interstate Trucking Litigation Group. He has served as chair of the Tennessee Association of Justice’s Trucking Litigation seminars since 2004, and is a frequent speaker at national legal education programs, training lawyers to properly handle injury cases involving commercial vehicles.