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Truck Accident Litigation

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Truck Accident Litigation

Truck accidents are different than car accidents. There are added regulations, additional evidentiary issues, and the regular need for experts. Because of this, it is difficult to tackle a truck accident case without significant experience. This course will provide an overview of the basic steps in how to litigate a truck accident case. We will start at the time the call is first received, the initial investigation, pleading, discovery, and commonly litigated issues. We will cover this from both the Plaintiff (injured party) and Defendant (truck driver) perspective. There is, obviously, much more to litigating a truck accident than we can cover in 1 hour. If you have any questions on your truck case, please feel free to email me ([email protected]) or call me 404-793-0026.

Transcript

- Alright, thank you for joining me for this CLE for Quimbee. We are going to be discussing, today, truck accident litigation. And truck accident litigation is a part of my practice that I've had for 12 years now. I've represented well over 100 folks in truck accident claims. And as you probably know, a truck case is much different than a car case. You have federal regulations that are the primary governing force, you have a lot of investigations that go on from the federal level to the state level. You have more advanced police officers, damages, vehicles, things like that. So I'm glad to be able to share with you a little bit about my knowledge from so many years and cases and truck cases. So a little bit about me, so you know who I am. I'm a first-generation lawyer, I am a truck accident lawyer with 12 years experience, and I practice on both sides of the aisle. I've defended some of the largest trucking companies in the country, and I've also represented folks who are injured in truck accidents. I was the lead council in a wrongful death case that had a $27 million verdict here in Atlanta. And I'm a lead council for some Fortune 100 companies. So that's a little bit about me as a lawyer. I do a lot of truck work, it's well over 70% of my practice. I also am a husband and father. These are my two girls, Sybil and Elise, and we do a lot of work together. They come to the office with me and things like that, so they know already a little bit about truck cases too. What is this course gonna be about? Well we're going to try to discuss truck accidents from stem to stern, or maybe I should say, from trailer hitch all the way up to the tip of the tractor. And our goal is to try to give you a step by step guide from the very first call and initial investigation, all the way up to discovery and pleadings, dealing with experts, and then some common issues. In all the truck cases that I've had, there are some issues that recur frequently, but each one has unique issues. The federal regulations are hundreds of pages long. I myself, I am working on a book that's about 150 pages right now on truck accident cases. And so, as you can imagine, it's hard to go through everything in just a one hour presentation. So because of that, we have a very small disclaimer and every good lawyer needs one. So the world of truck accidents is complex. As I mentioned, I'm working on a book on it that should be released next year. And that could give you some more information. You can send me an email and I'd be glad to send you a copy. But the important thing is that you need to tread lightly when entering this area. Don't think that you can just watch this one video and then, all of a sudden, be an expert truck lawyer. You need to read the regulations in detail and probably consult with somebody, like myself, who has a lot of truck accident experience. So let's imagine that you get that first call, and you have the initial investigation. So what do you do? And if you were here with me in person, I would have you actually pause, and when I teach these CLEs live, I have the people pause. So I want you to think for a moment, you get a call, it's a very serious truck case. Someone is horribly injured, what are you going to do? Well what I hope that you thought of, the actions that I hope that were triggered, were the following. You want to be sure to send a preservation letter, all personal injury attorneys worth their salt are going to send a preservation letter, of course. But a truck case is different, there are particular types of evidence that will go away if time lingers, even 60 days, 90 days. In the case of the data on the truck itself, like an engine control module, the brake information, things like that, whether the truck was actually fit for service, that can expire in just a number of days. So a preservation letter that is properly worded is key in a truck accident case, even more so than in a standard car accident case. You're also going to wanna send open record requests. And I'm sure for the average car lawyer, you know to send it to 911 and police. But here you also probably wanna send one to the FMSCA, the Federal Motor Carrier Service Administration. You may also wanna send one to your state and local DOTs to figure out exactly what is going on with this truck driver and truck company. Then there's actually some marshaling of evidence that you do. So you're going to, after you tell everybody, "Hey I'm here, give me the information, or preserve the information," you then are going to do some preservation of your own. Often there will be investigations into the truck itself. The investigating authorities, a lot of times, the police have particular units that are specialized in these types of cases. You will work with them, perhaps even get your own expert. And then you do the standard monitor of treatment. But it's a little bit more of a hit the ground running case than your standard car case, because we want to preserve that evidence, we want to get it and understand it takes time and experts. In order to know what type of evidence that you need to put in the preservation letter, you need to understand a little bit about what evidence is important in a truck accident case. So the Federal Motor Carrier Service Administration, they govern the regulation of commercial motor vehicles, trucks, buses, things like that. And they have regulations for the truck drivers, the bus drivers, and the truck companies, and the commercial companies. The regulations are voluminous. If you would like to have a good night's sleep, you can read those before bedtime. And they're accessible on their website, and it's a searchable type of format that you can go in and read all about the different types of regulations. I've also got a book that I'd be glad to send you on the regulations as well. So there are hundreds of regulations, but what are the most important ones? Well depending on your particular case, any one of the 100 regulations could be important, but the ones that we've seen consistently over 100 some truck cases are these. The licensing requirements, the hiring and training requirements, the hours of service requirements, drug and alcohol issues, and maintenance issues. So these are just five of the commonly litigated regulations. There are many more that we've had to cite in various cases, but these are the ones that most of the time are going to be considered the most common. So let's look at the licensing requirements, this is 49 CFR 383. Well obviously, everyone knows that a commercial motor vehicle license is required to operate a CMV or a commercial motor vehicle. And in order to do that, they're going to have to pass a similar type of test that you and I passed for our standard license. And then each state will have different criteria as well. Most of the time states actually have books that the person studies, just like a teenager does when going to sit for their exams. Those books can be helpful to determine, was this truck driver following what he studied to follow by the state? The age requirement is a little bit different. So you have to be 18 years of age to drive a commercial motor vehicle. And even then, you can only drive intrastate. So you're going to be staying within your actual state. In order to go interstate, then you need to be 21. So the written exam, like I mentioned, each state has their own individual commercial drivers manual. And so Georgia's, which is the state where Weatherby Law Firm, my law firm, is headquartered, it has its own commercial driver's manual. We tell folks that they need to read that on the plaintiff side or the defense side in each of their cases. The reason why I say each is probably just like in other areas of law, once you've read something one time, it goes out of your head after about two weeks on something else. So for example, since we're talking about licenses, here's an excerpt from that commercial book. And so what it says is, "If the state determines, at any time after the CDL is issued, that the applicant has falsified information, then that person is disqualified pending some further examination." So that can be a particularly powerful type of licensing requirement if you determine, for example, that the commercial driver in question falsified some type of information. And perhaps did not even hold a valid license under the federal code of regulations. There is also a road skills test, similar to one that a standard driver takes. And what a commercial driver does is they complete a road skills test using the commercial vehicle. If you think about the road skills test later, you'll see that it actually serves or can serve as a supplement for a driver being tested by their employer. The logic goes, well you already passed one road skills test administered by the state government, and so therefore you're qualified without having one by the employer. We'll discuss that a little bit later. So once you passed the skills test, you've completed a full testing and made sure that the application is correct, you also have a medical exam. So unlike a standard driver, a commercial driver has to have a yearly medical fitness exam. That is going to look to make sure that the driver does not have any health issues that could potentially interfere with their ability to drive. So these could be helpful, in some cases, if you suspect that the driver may have a physical disability. Or perhaps the driver at issue, the one who's hurt, is actually a truck driver. And so here's a example medical fitness exam. And you can see there's a detailed health history, there's a physical exam that's performed. And we had a case one time involving a person, call him Mr. S, and in his exam, he stated that he had no neck or back problems. But actually, he was filing a lawsuit over serious neck and back problems. And so this had a big effect because it's sworn under oath that he had contradicted himself. So the medical fitness exams can be important to make sure that the driver is being truthful about their health history. So what did the licensing requirements mean for that initial call? We've gotten that call, we're determining how we're going to send the preservation letter, things like that. Well, we want to include those types of materials. You wanna include the medical examiner certificate and the CDL license, making sure that you have that application, any road test that we performed, that we have them. We want to review the materials in the code of federal regulations to see how they apply, review the licensing handbook to see how that can particularly apply. There's going to be a few times in this presentation where we do real world examples, and I take about a 30 second break to allow you to think about. So the first example that we're going to give, the real world example, is a driver, Mr. young driver is driving a truck from Alabama to Georgia. The truck is hauling CO2. After he crosses state lines, his insulin level drops, he passes out, and he crashes into another vehicle. So where does your lawyer brain go with this? We'll pause just for a second so you can think about it, and then we'll discuss. So as you probably were thinking, or hopefully were thinking, the licensing regulations come into play fairly quickly here. We want to know, one, how old is this young driver? Is he able to cross state lines? I also wanna know since the truck is hauling CO2, does he have the extra licenses that permit you, or the extra training that permits you, to haul a flammable material? We're talking about insulin levels, the dropping and passing out. I wanna know, what does the medical exam say? Did he disclose that he had this diabetic issue, that he was required to have insulin? So there's all sorts of things that can come into play just from this one simple fact pattern with licensing requirements. So that is the licensing and training requirement, which is the first regulation that we're going to discuss today. The second one is the hiring and training, this is 49 CFR 391. So unlike when you hire a paralegal or something like that, you can hire them in any way that you want, but the regulations require that a commercial vehicle driver complete certain steps. The first one is a detailed application. This application must be in writing, and it must provide certain types of information, prior addresses for three years, current and former CDLs, three years of prior accidents, three years of prior employers if they're regulated by the CDL, and then 10 years of prior employers if you're gonna be driving a truck. And the application is certified. This application could provide a lot of information for further discovery issues. And it's not the end there, the application actually triggers an investigation on behalf of the trucking company. So the trucking company is required to complete an investigation into the driver. This includes an MVR, or a motor vehicle record check, for three prior years of citations. It also includes a request to DOT covered employers for the three prior years, focusing on accidents and alcohol and drug tests. So the company traditionally will either mark in their driver qualification file, we called this person, they said no. Or we sent a letter to this person, they didn't respond or they did respond, something like that. So those documents generally need to be preserved in a case, particularly if you are concerned with prior incidents and accidents involving that driver. Once the driver is hired, the obligations of inquiry do not end there. There is an annual inquiry that is also performed by the trucking company. And so essentially what the trucking company does, or the commercial motor vehicle company, is they inquire with the state into the motor vehicle record of their driver once a year. And then the driver themselves also fills out a certification saying, here are the citations that I received. These documents can also be important, and should be preserved in most cases. Remember when we were talking a moment ago about the road test? Well because there's a road test that takes place in the licensing period, generally speaking, there is not a requirement that an employer give a road test. And so this is straight from the code of federal regulations, 391 33. But some employers may still perform a road test and they could be important to preserve. For example, in a prior case that we handled, the issue concerned the driver had hit a vehicle while backing. While in the road test that the employer had performed, that same driver had an issue with backing on multiple prior occasions. So you can start to build a case that this was not an isolated incident. A lot of these documents are kept in what is called a driver qualification file. This is a particular personnel file, if you will, that contains key information. It contains the application, the motor vehicle records that we've discussed, a road test, your copy of a license, the yearly inquiries from the state, and the annual reviews, and the identification of prior citations by the driver, and the medical examiner certificate. So a lot of times our preservation letters are going to say, the driver qualification file, we need that information because we want to know all of this particular information on the driver. Obviously in your standard car accident case, this type of information does not exist. Training, well training is generally and surprisingly not required. The Federal Motor Carrier Safety Regulations do not require trucking companies to train their drivers. For instance, when a driver has a valid CDL, the motor carrier may accept the CDL in lieu of subjecting the driver to a road test, this from the Ortiz case, middle district of Georgia. There is a limited requirement for entry level drivers, drivers with less than two years of experience, in the following areas, driver qualification, hours of service, wellness, and whistleblower type of information. While there are not particular legal requirements to training, some good trucking companies will provide training. These types of materials could cover things from how to make a proper left turn, or how to unload a pallet into a particular store. It's kind of endless what the training could potentially uncover. And so in your particular case, it may make sense to ask for preservation of those types of training materials. And then if you get into litigation, try to figure out, what do the training materials say? Let's go through another one of our real world examples, and we will do another quick pause for you to be able to figure out exactly what you think. So Driver McDriverson is operating a bus. He's a recent hire for MARTA, that's the Atlanta bus authority. He had previously drove for Greyhound, Atlanta Charter Bus, and the DeKalb County School Systems. While driving the bus, he rear-ends a passenger vehicle. So what issues do we spot here? So where I kind of hope your lawyer brain is going here is on those requirements that we just talked about previously. Because he's a new hire, I wanna know, did the application process and the hiring process go as the federal regulations require? Was there a written application filled out? Was the driver truthful on that application? Were the inquiries made to all of these different prior employers? It's interesting to me how many prior employers there are, perhaps there needs to be discovery requests onto these folks to figure out exactly why this driver is changing so many particular companies. Perhaps they're just trying to find a better pay, but perhaps there's something else going on. Those are the types of issues that I start to see when I look at just this simple fact pattern. And again, in any truck accident pattern, you can probably find a few questions like that from reading the regulations, a book such as mine, or other types of information out there. So the hours of service, that is going to be the third regulation that we talk about today. Hours of service is kind of like math for trucking accident attorneys. It's not very fun, but it is an essential part of what we do in cases, particularly where there are sleepiness issues over work type issues that you're concerned about. So there are rules that govern hours of service, hours of service is a fancy word for many hours a particular driver can work and can drive. So the specific rules, they coordinate how long you can operate a truck, when you need to take a break, how long you can work in that particular day. But we're gonna discuss some of the big ones, but there are many of them. And like I mentioned, they become almost like a math problem where you have to add things and subtract things to figure out what in the world is going on. So the first big one that you have is what is called a property carrying 14-hour driving window. So there are particular regulations for passenger carrying commercial vehicles, and property carrying vehicles. We're going to focus on the property carrying ones because to do both of them would make both of our heads start to spin about how many different numbers there are. So with a property carrying vehicle, there's a 14-hour driving window limit. What that means is that the driver can come onto the clock and then 14 hours later, they must stop driving and come off that clock. For example, let's say that you come to work at midnight to make it easy, then 12 hours plus two more, 2:00 p.m. that next afternoon you need to stop driving. Once that period expires, the 14-hour window expires, then you have to take 10 consecutive hours off before driving again. In other words, we can't drive for 14 hours and come back on six hours later. We have to do the 14 hours and then take a drop. That also does not mean that you can drive the entire time, so let's discuss that. Again, with property carrying vehicles versus passenger carrying, you have 11 hours of driving and there is a break also required. So during that 14 hour window that we have, a driver's permitted to operate his truck for 11 hours. And during that time period, the driver has to take a 30 minute rest break after eight hours of driving. So if I was looking at an accident with that driver that came on at midnight and then left at two in the afternoon, I'd also wanna see, was the driver operating the vehicle for more than 11 hours during that timeframe? And then did the driver take their necessary 30 minute break? A lot of times you could look at, too, what type of break was taken. In other words, the break does not mean that you have to actually take a nap or something like that. It can be a meal, things like that, it just needs to be a time when the driver is not driving at that particular moment. So we've talked about daily limits thus far, how much I can work in a day as a truck driver, but there's also weekly limits. So a person cannot work 14 hours a day on end and comply with the regulations. There are what are called 60 and 70 hour limits for property carrying drivers. And that refers to on duty time, as opposed to driving time. So just like the 14 hour is an on duty window, the 60 and 70 hour limit is an on duty limit window. The 60 to 70 hour limit applies based on whether you've got seven or eight days respectively. So a seven day limit applies if a company only operates trucks six days a week, and let's say they take off every Sunday like Chick-fil-A does. Well in that particular case, you would have the 60 hour limit that would apply. If they work seven days a week, then you have the 70 hour limit that applies for an eight day period. So sometimes we refer to this as a weekly limit. That can be some vernacular that is used by folks in the industry, but it does not mean that it's actually a one week period. It instead refers to a seven or eight day period. The only way to really figure this out is to create a chart, and so here is an example chart. Let's say that you go to work Sunday through Sunday, and we are a 60 or 70 hour limit company. Well we've totaled up here the amount of hours that they work, we include the Sunday as zero because it's in the eight day period. So you can see if this was a seven day hour a week company, the driver still has three more hours that they can do on that next Monday. Once the Sunday rolls off, they'll have three more hours that they can work. If it was a 60 hour a week company, then once this Sunday rolls off here, the Sunday with number one, they would have zero hours because they're already over. So they should not have even worked this Sunday that has the number eight, and they should also not have worked the two hours on that Saturday. So they are over the limit on those particular times. That's how you sort of look at the weekly limit, the seven or eight day limit. To make matters a little bit more confusing for truck accident lawyers, there are a lot of exceptions to these rules. So we're only going to go over some of the larger exceptions now. There is the 100 air mile exception, for example. And the 100 air mile exception basically says, if you start in point A and then you drive in a circle not more than 100 miles from that point, and then you return to that same location, then you do not have to log your hours. So the way that we know if a truck driver, or the government knows, is a truck driver complying with their hours requirements, is they have little logbooks that are either kept by hand where you go up and down the number of hours. Or they are kept electronically where the truck does it, or a handheld device does it for you. You do not have to keep those logs if you are within the 100 air miles. So if I set a pin here, I do a 100 mile circle and then I come back, then I can be subject to the 100 air mile exception. I don't have that little book. And so I have to leave and return within 12 hours of working. We are still subject to a 10-hour off duty requirement though. So even though we don't have to keep the log book anymore, we are still subject to that 10-hour off duty requirement and the 11 hour driving requirements. So oftentimes, when you think of folks that are just delivering bread or something like that locally, they can fall within this 100 air mile exception. It eliminates some of the paperwork for those folks. There is also something that's called a 16-hour short haul exception. So this exception allows you to extend that driving window, that 14-hour on duty window, from 14 to 16 hours, once every seven consecutive days. So I'm taking advantage of the 16-hour short haul exception. If I come on at midnight, I can go all the way till 4:00 p.m. the next day, rather than the standard 2:00 p.m. There are some requirements in order to do this, not every truck driver gets to do this, they have to meet these five requirements. One, they need to leave and return to the same reporting location each day. And two, for the five prior days. Three, they need to be off duty 10 consecutive hours each day. Four, released for work within 16 hours of duty. And five, they cannot use this exception more than once. So again, the math gets a little bit tricky there as well, to see was that person over hours for that particular day or not. There are other exceptions too, one of the more commonly used exception is the adverse driving condition exception. So that means if there are adverse driving conditions that are unexpected, you didn't expect them when you start the route, then you can also add two hours to the 14 hour period. So we can again go from that 14 to the 16, we can start at midnight and instead I'm getting off at two, we can get off at four. What elements does that require? The adverse driving condition has to be unexpected, and it needs to occur during the original 14-hour period. Types of adverse driving conditions could be unexpected traffic events, let's say that there's an accident. The snowstorm that we had in Atlanta a few years ago where the entire city shut down, things like that could trigger the adverse driving condition exception. There are many more types of exceptions, for example, there was even a coronavirus exception because truck drivers were deemed essential workers during the coronavirus outbreak. And so the important thing is when you're looking at hours of service and you're doing that truck driver math, you have to also figure out what exceptions potentially apply to know, was the person over hours or not? Should they have been driving or not? Generally speaking as well, the hours of service come into play when there is a cause of accident that is likely fatigue or someone's fallen asleep, something like that. That's the most common type of situation where you're going to see hours of service really come into play. We mentioned that there are also regulations for the passenger carrying vehicles. I don't wanna go into all of those today because there's so many numbers, it starts to be unhelpful. But the general rules are no more than 10 hours of driving, following eight hours off duty. 15 hours on duty, so can they get one more off, I mean on, following eight hours of duty. And then they have the 60 or 70 weekly hour limits that we discussed previously, that aren't actual weeks, they're seven or eight day periods. So we talked about the log book a moment ago. So this is what a log book looks like. And historically, the driver would actually draw a line when they're off duty, when they're in the sleeper, when they're on duty, and then they'd make little remarks like adverse driving condition or something like that down below. Now a lot of those things are done electronically for more advanced trucking companies. There will be an engine module or a handheld device that can keep up with the hours of service logs, so that a driver no longer has to physically drive it out and perform that truck lawyer math. So let's pause for a moment again, and do a real world example here. So Mrs. daily trip driver is in an accident while delivering bread to a Kroger grocery store. She works for Dave's Organic Brim. She left at 7:00 a.m. that morning. However, because of the accident, she did not return the plant until 8:00 p.m. that night, is a log required? So we're gonna pause for a few moments and let you think about that. All right, so probably where you're going with this is it triggers a few of the different exceptions. So one, this driver probably generally qualifies for the 100 air mile exception. They're delivering bread to different locations, probably to different grocery stores around, and they probably leave from the same facility and come back. If that's the case, generally speaking, they do not have to do a log because you return from the same place and return back within 12 hours. Here though, we went from seven to eight. So we no longer fit within the 100 air mile exception because we no longer fit on that 12th. But we're not actually over hours probably because we leave and we return within a 14-hour window. So we would have to get to the meat to figure out exactly how many hours this driver had been working in the prior 60 or 70 hour limit to figure out, hey, are they over or under hours in particular? The next regulation that we are going to discuss is drug and alcohol testing. So unlike lawyers, for example, where you do not have to be drug and alcohol tested, there are all types of regulations because we're dealing with operating machinery that are huge tractors, that require drug and alcohol testing. And there's a few different times that it happens. The first one is an initial employment drug screen, not an alcohol screen, a drug screen. And there are some exceptions to that, like an employee, believe it or not, who had recently exited rehab to try to help them get back in the force. You do not have to give a drug screen to that person. So there is an initial drug screen that's performed, not an alcohol screen. There is an alcohol and a drug screen that is performed after some accidents. Importantly, it is not always required just because a collision took place. Even if the truck driver was at fault, it may not be required. There are a bunch of regulations that cover this, but there's a helpful chart here. If there was a human fatality, then there should be a test performed, even if the driver was not cited. If there is bodily injury with immediate treatment away from the scene, the driver is drug and alcohol tested if they were issued a citation. But if they were not, they do not have to be. If there's disabling damage to a motor vehicle requiring it be towed, then their test is performed if they were issued a citation. If they were not issued a citation, you do not have to. So essentially what you're looking at is human fatality, yes, we must test no matter what. And then bodily injury with medical treatment away from the scene immediately or disabling damage, yes, you must. So that's the key that you're gonna be looking for there. Random drug and alcohol tests also have to be performed. So these are generally subject to a certain period. It's a random system that generates that the person says, "Okay, driver number one must go this week." "Oh now, next month driver number seven goes." And the amount, the percentage that has to be tested changes each year. Originally it was 10% of drivers for alcohol in a year, and 25% of drug tests within a year. So a lot of times the drug and alcohol testing does not really matter because there's no drug and alcohol involved. But when it matters, it can matter really big. So it's important to know this regulation as well as others. The final regulation that we're going to talk about is inspection and maintenance of the tractor trailer, this is 49 CFR 396. So a trucking company or a commercial vehicle company, they have a requirement to inspect and maintain their vehicles. The truck and trailer and any equipment related thereto must be in good working order. And they're required to maintain those records for 18 months. There are particular types of inspections that need to take place. A full detailed inspection needs to occur yearly, this is commonly called the DOT inspection. The driver also, historically, was required to perform pre-trip and post-trip inspections. So for many years after every single trip, or before every single trip, the driver would have to go through and check off all of these different types of boxes and they had to be maintained for three months. But there was a recent change in the law, which is why you always need to read your regulations. Now a driver does not have to do a pre-trip inspection report, instead they just, quote, "Must be satisfied that the motor vehicle is in safe operating condition." "And the driver only has to review the last driver vehicle inspection report if it's required." So only has to review the last post-trip report, if one was required. And post-trips are only required if a defect or deficiency is discovered by the driver, or reported to the driver. So basically you're looking at a post-trip is gonna be required if there was a defect that was discovered by the driver during that trip. And a pre-trip is going to be performed if the prior driver had completed a post-trip, or if the driver is not satisfied with the operating condition of the vehicle. So that's kind of a large change that happened. An out of service order sometimes can take place, and basically what this says is there are different types of maintenance issues that can cause a vehicle to be under the federal regulation's unfit to be driven at that time. It should not even be on the road. Different types of things can happen to make that occur. For example, the brakes could be out of service, the tires could be out of service. Expert advice is generally required to figure out because there is a lot of math that has to take place to determine, was this particular truck fit to be on the roadway or not? So here is another real world example, Mr. driver man is backing out of the facility when he accidentally strikes another vehicle. In the police report, he says that his mirrors didn't show the car there. So what are we wanting to look for here? Well what I wanna look for is, was that post-trip inspection report, did it say that the prior driver found an issue? Did this driver man say that he noticed the issue on this particular trip? Are there any maintenance issues related to these mirrors? Was the DOT inspection performed? So we wanna figure out, was this vehicle fit to be on site or not? So now that we know some of the evidence that can be important, what do we do to preserve that particular evidence? Well for a plaintiff's attorney, you are going to send a preservation demand. So we send a formal letter that notifies the defendant, hey, we represent this person. There was an accident and there's a potential claim here. We send it via a method that can be tracked, like certified mail or something else. And then once it's received, it triggers certain duties on the company. Here's an example preservation demand that we send. We cite the law in Georgia because our home base is in Georgia, but it can be tailored to your particular area of the world. And so I want you to think for a moment, what type of evidence do you need to look for in your case? What would you include in spoliation, based on all the regulations that we have seen? So think for a moment about that, and then we'll turn to the next slide and I'll discuss the potential items that we often ask in our case. So the things that I look for, the videos, photographs, the vehicle itself, I want to determine was it in service or out of service, training materials and manuals, recordings, that driver qualification file, any drug and alcohol tests. Is there any GPS, hour service issues, maintenance issues, waiting tickets? I'm trying to figure out all of that information that doesn't exist in a standard car accident case, but does in a truck accident case, how can I get this evidence? So on the defense side, what do they do? Well they are working to coordinate, if they hear about the preservation letter, with local personnel, having a phone call with them and securing the same type of evidence, communicating with the client upon completion. The law in spoliation is going to vary state by state. The law in spoliation is going to vary state by state. But in Georgia, there is particularly strong sanctions that can be imputed if the defendant spoliates evidence. that can be imputed if the defendant spoliates evidence. Most of the time, the key evidence is going to be if the person acted in good or bad faith, and if the item is relevant. So if a requested item has no bearing on the particular facts, it's not gonna result in spoliation. But if, for example, it does, then it could. So that's kind of what you're looking at with spoliation. All right, so we have our initial investigation that is pretty voluminous in a truck accident case. So then what do we do after that? Well we're going to start building our evidence, like in other cases, investigating witnesses, looking at medical treatment, determining liability causation issues. We're going to figure out what insurance carrier that we have and any pre-suit negotiations that are made. All of that is based on the first chunk that we did. If we do not do that initial investigation correctly, it's going to end up harming the rest of the case, which is why having a truck attorney is important. So let's say that we are to the pleading stage, and we are asserting claims and defenses. What do we look for in that case? Well the standard types of situations that you're gonna look at negligence, negligence per se, negligent hiring, training, or retention is commonly asserted, we'll discuss that. Some states allow a direct action where you can actually sue the truck insurance company. And then punitive damages and attorney's fees. So let's begin with the most straightforward one, negligence and negligence per se. This is the basis of most good torte claims. In most cases, we tell our folks, you don't want to gum it up, the works, with other unnecessary claims unless it's necessary. You want to pick a particular rock solid cause of action and keep firing torpedoes until it goes belly up. So you're looking at negligence, was there any CFR regulations that were violated? Were there any state law regulations? How about those particular regulations in the drive remaining, things like that? So once you've gathered all that information, you've used your initial investigation to determine the facts and you've laid it out, then you're going to place it in a complaint. And try to keep it as simple as you can, this is an example complaint that we filed. And we also wanna look at negligent hiring issues. So in Georgia, where our home base is, for many years, there was no negligent hiring claims if you conceded that the respondeat superior. In other words, if you conceded that the employee was acting within the course and scope of their employment with the employer. That was overruled actually in late 2020, and we're sort of seeing the effects of that now. So what the Supreme Court ruled in that case is that the apportionment statute aggregated, did away, with the respondeat superior rule. So a jury must now consider the employer's separate negligence in hiring. So you can bring a claim for negligent hiring, even if it does not support a punitive damages claim. So in Georgia, we have this question, is a negligent hiring claim now better for the plaintiffs or the defendants? Should it be asserted? And in other jurisdictions, I'm sure that those types of claims can be asserted already. So then the question is, is it worth going up the wheels on a straight negligence case by including negligent hiring and things like that? So let's think about that for a moment. Well when I have thought about it, what I see is on the plaintiff's side, we have more probing into the truck company's practices, you can have additional depositions and documentations, another line on the verdict form for negligence. But on the defense side, the discovery could be better for them. Perhaps they are wanting to drag things out, as sometimes defendants want to do. There could be a better liability position for the company. For example, if you have a straightforward rear-end collision, but then the truck driver was a stellar employee, they did all this investigation and preparation, and trained him, then all of a sudden the truck company looks a lot better on paper than they did with just a random person rear-ending someone. So it depends on the facts of your case as to whether or not it makes sense to bring it up. So the direct action statute also needs to be addressed. So in Georgia, we have the ability to file a suit directly against the truck company's insurer as a direct party to the lawsuit. This is the minority rule in the US. In other states, you can do it. In a lot of states, you can't. So it'd be important to determine, in your state, can you bring a direct action against the insurance company? Most of the time, it probably makes sense to, because otherwise it's very challenging to get an insurance company as a party to a case. So punitive damages are also commonly inserted. In general, punitive damages are not going to be able to be maintained in a typical truck accident case because they're not available just because we have a simple violation of the rules of the road in Georgia. There's a very famous case where a guy who had 0.03 blood alcohol content had yelled at a pregnant victim, that was still not enough to justify punitive damages. So what I tell folks is, don't create an appellate issue if you don't need one. If it goes directly to the facts of the case and you really need it, then assert it. If it doesn't go to the facts of the case, and you're just going to create a necessary paperwork and time and expense in the case, it probably doesn't make sense. So attorneys' fees, they're governed by the same rules as other types of cases, in truck accident cases. Most of the time, you're not gonna get them. But sometimes if they violate a particular statute, then you could. So the answer is, in large part, dictated by the complaint. You certainly want to think about affirmative defenses, contributory negligence, statute of limitations, mitigation and causation issues, things like that. We wanna look at, what does the particular type of fact pattern, how does it fit to this particular truck accident? We always put this little part at the beginning, saying that we don't know all the facts because we don't when you are on the defense side. So what discovery is reasonable and necessary in a truck case? Well you're going to be using the same type of discovery points that you do in other cases. We've got the same tools at our disposable, interrogatories, requests for production, requests for admissions, depositions, and third parties. So let's look at each of them. So generally, the interrogatories you're going to want to follow the key rules that we discussed earlier and other rules that fit your case. Get a book like the one we are publishing and see, hey, how does it fit with the fact pattern that I have? And then add those types of interrogatories in there. Some regulations may not fit in your case. For example, if there's no fatigue, you may not want to spend multiple interrogatories on hours of service issues. You want to focus them, be specific and direct. These are the particular issues in my case, here's the particular interrogatory that fits that issue. Defense interrogatories are going to fit much like any other personal injury case. The request for production, again, you're going to focus on those particular records, the daily inspection reports, maintenance records, hours of service, GPS, driver qualification. The list goes on and on, depending on the regulations and that investigation. It all starts from the beginning, making sure that you've got the key information for your truck case. All of those regulations that fit a trucking company, how do they apply to my particular case, so I know what to request? Here's an example request for production, and we'd be glad to help you with forms and things like that if you need them. Requests for admissions, some attorneys, they focus on real detailed requests for admissions on facts that are obviously in dispute. Admit that your driver was completely at fault, where there's a dispute about fault. We don't particularly do that because we don't find them useful in that way. Instead we use the more for authentication of evidence and limiting the real issues in the case. Depositions can vary from case to case, but there are typically more depositions in a truck case than others. You wanna do the plaintiff, the driver, the witnesses, police officer, company representatives, expert accident reconstructionists, medical experts, things like that. The case gets a lot bigger than your standard car accident case, where you maybe just have the plaintiff, the driver, and a medical expert. Third party requests for production, in our opinion, are one of the keys to a successful truck accident case. Wise plaintiffs and defense lawyers make wise use of these. They don't scatter them out to everyone, but they look in particular at the folks that they need to send requests to, to figure out, what other information can I get from these third parties that are less likely to object? In a truck case, a lot of times there are experts. And the potential experts are endless, from accident reconstructionists to human factors experts, to economists to medical experts, the list goes on and on. So we're not gonna discuss all the potential experts, but know that this is a case that often needs expert testimony. Accident reconstructionists are folks that specialize in truck accident reconstruction. And they look at all the available information on the vehicles, the evidence related to the accident, and the scene and things like that. And generally, they are former expert police officers who study this area or engineers. These folks are extremely helpful and extremely pricey, depending on the case, but they are invaluable. In that initial investigation stage, it's important to know, do I need someone? Because once that evidence is gone, you might not be able to recreate it. A medical expert follows a standard PI case. And so you wanna look at, can you demonstrate to the jury the facts of your case without an expert? Again, there are many other types of experts that could potentially be used in a truck accident case. We've used many experts in the past, it just depends on which one fits your particular background. So there are common legal issues that arise. We've discussed a lot of these, the most commonly litigated issues deal with the negligent hiring, training, and retention, and the damages and discovery disputes. One of our biggest types of advice that we give folks is, only defense lawyers eat briefs for dinner. So you want to be targeted and specific with what you're going at. There's no reason to cast a wide net unnecessarily. Truck accident litigation is voluminous and time consuming, but it needs to be targeted and specific as well. In our experience, you get more flies with honey than vinegar. We try to be very kind and considerate to the other side, so that we can help them resolve the case as fast as we can. So there are websites with a lot of info that you can look at, and you can read about truck accident cases for as long as you would like to. Our website has a lot of materials. And as I mentioned, we're going to be publishing a book shortly on truck accident cases. And we'd be glad to send you a copy of that, it will be a legal analysis of a lot more of the issues than we can fit into an hour-long presentation. I'm also here to provide any type of advice that you may need on truck accident cases. They are time consuming cases that have a lot of specific regulations, and it's important you know what you're doing when you get involved with them. So this is a short overview of truck cases. There are many issues that we did not touch and nuances to the issues that we did address. We just addressed five of the 100 plus regulations that you have in truck accident cases. Before tackling a truck case, you wanna make sure that you've studied those regulations, treatises, and things like that, to ensure that you know what you are doing. If you ever have any doubt, you can associate a truck action attorney, like our firm, to assist you in any way possible. We wish you the best in your truck accent litigation case. And we enjoyed spending time with you today, thank you.

Presenter(s)

AWJ
Alex Weatherby, JD
Managing Attorney
Weatherby Law Firm, PC

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