Truck Accident

Ken Shigley "specializes in wrongful death cases against trucking companies." Atlanta Journal - Constitution, May 7, 2018

There are crucial differences between commercial trucking cases and other motor vehicle collision cases. Ignorance of those differences can be compound tragedy for the victim and her family.

Atlanta Truck Wreck Lawyers

Since 1949, the trial lawyers at Johnson & Ward have gotten good results for truck crash victims throughout Georgia. Our current team includes a former State Bar president who was a founding board members of the national Academy of Truck Accident Attorneys, is nationally board-certified in Truck Accident Law, and has been a speaker at seminars of truck accident law and litigation from coast to coast.

We have the experience and resources to tackle tough, complex cases. We are your advocates when you are injured. When you work with us, your only “job” is to focus on healing; leave everything else to us.

Truck accident cases are among the most challenging personal injury cases. Atlanta’s segments of the interstate highway system – I-20, I-75, I-85 and I-285 – carry heavy truck traffic that can produce catastrophic truck crashes. Further south in Georgia, I-16 and I-95 also have heavy truck traffic producing crashes particularly involving container freight trucks from the ports of Savannah and Jacksonville. We have handled complex truck crash cases arising in all areas of Georgia.

Among the most common causes of trucking catastrophes are:

• Fatigued, sleepy or tired driver; driving too long and too many hours without rest. It is vitally important for an attorney to know what to do with that evidence once it is discovered.
• Inadequate training of the truck driver
• Overloaded truck.
• Oversized trucks
• Poorly maintained truck brakes
• Driving in conditions of poor visibility or traction due to bad weather or visibility conditions, including fog, snow, rain, or smoke
• Truck driver inexperience
• Truck driver distraction
• Speeding, either over the posted limit or driving at speeds beyond the road and weather conditions
• Running off the road
• Failure to yield the right of way
• Aggressive driving behavior
• Truck drivers driving under the influence of drugs and alcohol
• Dangerous or reckless truck driver with a long record of wrecks and fatal traffic accidents
• Unsafe safety systems, reflectors, lights, and other warning devices
• Failure of trucking company to install an under-ride protection under-guard.

Here are some key points for you to consider if you or a loved one have been the victim of a catastrophic large truck crash in Georgia:

1. p1. Act Promptly The trucking company and its insurance company may use any delay to “lose” or delete critical evidence. Don’t let them do that.

After a regular car wreck, you may have the luxury to wait several weeks or months before hiring a lawyer. Large truck crashes are different in many ways.

The trucking company and its insurance company usually have a rapid response team on the scene almost immediately to identify, capture and “massage” evidence. That evidence is time-sensitive. Depending on the sophistication of the law enforcement officers who respond to the crash, critical evidence may be lost while your family member is struggling for her life in the hospital. Within an hour after a crash occurs, the company has a claims investigator at the scene seeking evidence favorable to the defense. Too often, evidence "disappears."

The next step is to begin trying to lull the victim and her family into inaction by promising to "do the right thing," and perhaps making an offer of settlement that may tempt an unsophisticated victim who is still in shock, but at a bargain price in light of what the company knows. The objective is to deal directly with the victim, telling her that she doesn't need an attorney. Remember that the trucking company and insurance company at that point have a defense lawyer and several claims professionals working on their side, seeking to isolate the victim from professional assistance as long as possible.

Meanwhile, there is a tremendous amount of evidence that may be lost forever if the victim doesn't have a knowledgeable, forceful attorney who can quickly act to preserve it. The larger trucking companies generally use on-board computers and satellite communication systems that generate an enormous amount of data that may be invaluable to the victim's case. The companies that provide those services to truck fleets have record retention policies providing that data on truck operations is transmitted to the trucking companies, then purged from the provider's computer system within 14 to 30 days. The data transmitted to the trucking companies is subject to "modification" and it is extraordinarily difficult and expensive to prove that data was altered.

While trucking companies are legally required to preserve certain types of operational records for six months after a crash, we have seen cases when the companies preferred to have an adverse inference against them for “lost” evidence at trial than to reveal the truth. For example, we have seen cases in which driver logs were “lost” while police were managing traffic control as the insurer’s investigator was rooting around the truck cab. We have seen trucks removed without authorization from police impound and put back on the road, erasing critical electronic data on “hard stops,” while the insurance company’s lawyer pretended to cooperate in scheduling a joint inspection.

In cases where we were hired immediately, we have been able to get a court order to preserve the truck in impound until there could be a joint inspection. In one such case, we found that the entire crash was recorded on video in the truck. If we had not had a court order locking it down until we could get an inspection, undoubtedly that critical video would have been “lost” without a trace.

Allowing yourself to be lulled into inaction by representatives of a company that is busy gathering evidence favorable to the defense and avoiding preservation of unfavorable evidence, is a tragic outcome for trusting injury victims.

2. Hire a well-qualified trucking lawyer. Don’t just hire a firm with a tv ad or billboard. Photos of big trucks on a billboard do not necessarily signify special expertise. We rarely if ever see lawyers from such firms at national truck accident law symposiums.

While a highly competent and ethical lawyer who practices in another specialty may have the resources to quickly identify a trucking lawyer, most lawyers really don't know the ins and outs of trucking cases well enough to take timely and appropriate action. Most of our cases come by referral from lawyers in other specialties with whom we share responsibility and fees.

Much as you want a board-certified surgeon, look for a board-certified truck accident civil trial lawyer. The National Board of Trial Advocacy is authorized by the American Bar Association to run certification programs that include vetting of experience and ethical practice and require tough written examinations. Ken Shigley was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy: Civil Trial Practice(1995), Civil Pretrial Practice (2012), and Truck Accident Law (2019). He is a former President of the State Bar of Georgia, lead author of eleven annual editions of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-21), and received the Traditions of Excellence Award for lifetime achievement (2019). Partners John Adkins and Ed Stone are younger, energetic proteges.

3. 3 3. Authorize your truck accident lawyer to act quickly . While each case is different, some of the first steps an experienced trucking lawyer may take in a catastrophic truck crash case may include:

a. Immediately send the trucking company and truck driver a demand for preservation of evidence. Include a list of telematics data, driving hours data, the driver’s cell phone for forensic download (including all apps as well as phone connection time), truck maintenance records, the driver qualification file, and electronic data and video uploaded to other companies. There is often a fight over producing the driver's cell phone, but it is essential to demand preservation of it at the beginning.

b. Include in that letter a formal request for pre-suit disclosure of all insurance coverage as required under Georgia law.

Interstate motor carriers (operating across state lines) are required to have at least $750,000 liability insurance coverage, and that may be all that is disclosed on the Federal Motor Carrier Safety Administration website. Trucks hauling certain hazardous materials are requested to have higher minimum amounts of insurance. In practice, we have often found such trucking companies carried much higher amount of liability insurance.

Intrastate motor carriers (operating only in Georgia) are only required to carry $100,000 liability insurance. However, many have $1,000,000 or more in liability insurance.

You don’t know until you know. Unlike many other states, Georgia law requires disclosure before suit is filed, but the request must be accompanied by a proper affidavit. However, the Insurance Commissioner has little apparent interest in enforcing that statute, and we have found that out-of-state insurance companies often disregard that Georgia law and hide coverage until discovery in a lawsuit. If it smells like a defendant or insurer in a catastrophic truck accident case is playing “hide the ball” with insurance coverage, we may file suit in order to affirmatively establish what the insurance coverage really is.

c. File a petition for temporary restraining order (TRO) in the county where the truck is located while the truck is still in a tow lot or police impound. We don’t do this in every case it is an arrow in our quiver.

It is not safe to rely upon the word of a claims adjuster or defense lawyer to schedule a joint inspection. Once we arrived for a joint inspection only to find that the trucking company had sent the truck across the country, erasing critical electronic data of the accident.

But in another case, we promptly obtained a TRO just before the courthouse closed for a holiday weekend. This led to a joint inspection with the reconstruction experts for both sides, with law enforcement officers present. It revealed a video recording of the dramatic crash and vital electronic data. It is likely that this evidence would have been lost without the TRO. The result was a settlement for $8 million.

d. Hire an experienced accident reconstruction expert. This crucially important expert will download and analyze electronic data from the truck, take a great many forensic photos of the vehicles and scene, get a 3D scan of the accident scene (both ground level and aerial) and vehicles, determine the physics of how the crash occurred, and generate graphic illustrations of the crash. This expert may also work with illustrators to create video and still illustration of the dynamics of the crash.

e. Obtain police reports, photos, and video as soon as they are available. We send a separate Open Records Act requests to all relevant agencies for photos, video, audio recordings, witness statements, and 911 call records. Multiple law enforcement

g. Interview both police and motor carrier enforcement personnel. These are vitally important witnesses, and they have detailed observations of details that are not included in written reports. Remember multiple law enforcement and other governmental agencies may respond to a major crash and may possess additional evidence including photos and video. In one case, the State Patrol and Department of Agriculture responded to the crash of a tractor trailer hauling a load of frozen meat. They said the biggest problem was crowd control as deputies and bystanders tried to gather spilled meat for a barbeque.

h. Contact and interview any witnesses listed on police reports. People who remain at the scene long enough to be listed as witnesses often have valuable observations. Sometimes they also have photos and video recorded on their cell phones.

i. Visit the accident scene and locate any video cameras that may have recorded the incident. Even before video cameras became ubiquitous, it was important for the lawyer to visit the accident scene, drive into it from all directions, and walk the roadsides.

Today, often there are security cameras at businesses and doorbell video cameras At residences. Then contact the businesses or property owners to arrange for download and acquisition of recordings. Canvass the area for any witnesses not listed on police reports. Drive all approaches to the crash scene to observe and photograph any signs, distractions, or visual obstructions.

j. Search social media for bystander photos and video. In one recent case, cell phone video of the aftermath of a fatal crash appeared in social media. It provided a better overview of the scene prior to extraction of the victim than anything from law enforcement. The person who made and posted the video was reluctant to be a witness but we ultimately got sufficient cooperation to authenticate the video.

k. Consider timing of when to file suit. In many though not all truck crash cases, filing suit early may have several advantages.

i. Formal discovery of records and documents with the authority of the court to compel production from recalcitrant defendants. Require production of all the trucking company and driver records that were included in initial request for preservation of records. There may be a fight over some of those, especially the truck driver's cell phone. But that's what we do.

ii. Preserve testimony of key witnesses in video depositions. If a witness later dies or becomes unavailable, the deposition may be used at trial.

iii. Start the clock running on a formal offer of settlement. Under Georgia law, if the defense fails to settle within 30 days of an Offer of Settlement and the eventual verdict is over 125% of the amount if the offer, the plaintiff can additionally recover attorney fees after trial. That can be a big number.

iv. Key depositions. After production of all the records, take video depositions of the state motor carrier enforcement officer, the truck driver, any co-driver or anyone else who was in the truck, company safety director, designated corporate representative of trucking company.

FAQ. Frequently Asked Questions About Atlanta Truck Accidents

1. What are the time limits for making a claim for personal injury or wrongful death arising from a large truck accident in Georgia?

The time limit for filing suit for personal injury or wrongful death is two years. There are some narrow exceptions to extend that time but it is not safe to assume those apply.

However, you must act more quickly in truck accident cases. Federal regulations allow certain critical operational records to be discarded after six months. Much of the strategically important electronic data may be deleted or “lost” within days after a crash. Video recordings of the crash may never be found if there is not an inspection of the truck before the company can delate it. To get all the evidence in a catastrophic commercial motor vehicle crash, the practical time limit is “immediately.”

2. What electronic records may be recovered from a large truck after a crash?

Large commercial trucks today include a multitude of computers and sensors provided by any of several telematics companies. These may record GPS tracking, the driver’s hours on duty and driving, vehicle speed, RPM’s, braking, hard stops, sudden accelerations, messaging between driver and dispatcher, and often video recording both facing forward and facing toward the driver. Diligent preparation of a catastrophic large truck crash case involves relentless pursuit of these records which defense lawyers may resist and then expert analysis of what is obtained.

3. What is the importance of video evidence in a large commercial truck crash?

Prompt and diligent investigation of a catastrophic truck crash case may produce a wide variety of video evidence that makes a case crysal clear. The truck may have forward-facing and in-cab video cameras. If the video is helpful to the trucking company’s defense, it will be readily produced. If it proves the trucker’s negligence, It is difficult to obtain. If hired immediately in a catastrophic case, we can ask the court in the county where the crash occurred for a temporary restraining order to keep the truck impounded pending a joint inspection. In one such case, inspection revealed existence of video that showed the truck accelerated when approaching a line of cars stopped at a red light, killing the occupant of the last car in line. Other sources of video evidence can be security cameras at nearby businesses doorbell cameras a neighboring residences, dashcams on other vehicles, and bystanders’ cell phone videos.

4. What is different about specialized typed of big trucks operating in Georgia?

a. Container freight trucks. Freight containers arriving from other countries at seaports are attached to trailer chassis pulled by trucks, often those use minimally qualified and poorly paid truck drivers. These may be accident-prone. In one such case, a container truck driver who killed five people when he fell asleep on I-16 was probably not medically qualified to drive the truck and was taking his wife’s Ambien.
Container freight trucks operating in Georgia are usually based at the port of Savannah, but we have handled cases with trucks based in Jacksonville and Charleston.

Industry organizations require container freight trucks to have a minimum of $1,000,000 insurance. But when we have dealt with crashes in which a container freight driver killed three or five innocent people on an Georgia highway, that is grossly inadequate. Several times we have threaded the needle to reach the much greater coverage of the ocean carrier. In one case, there were 40 people at mediation including insurance company representatives from Europe. It’s a tough battle but we know how to do it.

b. Log trucks. Georgia has millions of acres of pine forest supporting a tremendous paper and fiberboard industry. Log trucks hauling pulpwood from forests to mills are often rough, poorly maintained, and operated by minimally qualified truck drivers. Unless a company to which they haul logs require more coverage, they are only required to have $100,000 in liability coverage if operating only within Georgia. The Georgia Forest Product Trucking Rules are vague on important points such as the length of loads extending beyond the rear of the trailer. Poorly qualified truck drivers operate with logs nearly dragging on the road twenty feet behind the trailer. On turns, these long loads swing out and create huge hazards. When crossing a roadway in the dark, these loads create a black fence across traffic lanes in the dark. We have fought these battles for years and have access to retired, articulate log truck operators who can give expert testimony that the standard of experienced log truck drivers is to cut off the logs at fourteen feet from the rear of the trailer.

c. Cement mixer trucks. With high and constantly shifting centers of gravity, cement mixer trucks have unique handling characteristics, they may easily flip over in turns. While this is well known, most cement companies do not use industry training materials to educate their drivers on this. In one recent case, the cement company just hired a driver with no experience who had just obtained his Commercial Drivers License and provided to additional training except how to operate the mixer controls. When he made a right turn in an intersection, the truck rolled over onto a family vehicle and caused a serious head injury to a baby in an infant seat. When we showed him the training materials about extra precautions required in turning a cement mixer truck, he was angry at the company for failing to show him that.

d. Crane trucks. Trucks on which large cranes are mounted are subject to unique hazards. We have seen several incidents in Georgia in cranes came loose while traveling up a highway, stuck a bridge, and causes millions of dollars of damage. Sometimes that has required replacement of highway bridges. Other people on the highway may be injured in such incidents.

e. Garbage trucks. Two types of garbage trucks operate in metro Atlanta.

Most familiar are the garbage collection trucks picking up refuse in neighborhoods. With their unique handling characteristics, they are more challenging to operate. If operated by a private company, they are likely to have adequate insurance coverage. If operated by a municipality, insurance may be very limited. The second type of garbage truck are 18-wheelers that transport solid waste from collection stations to distant landfills. Due to the nasty smell of these trucks, companies operating them may have trouble hiring and retaining competent drivers.

f. Delivery trucks. Large online retailers such as Amazon have branded fleets of delivery trucks operated by “independent contractors.” While the large company seeks insulation from liability by claiming the truck operators are independent, there have been cases in metro Atlanta in which Amazon was held responsible for crashes due to their degree of control of the delivery trucks.

g. What kind of damages can I recover for personal injury in an Atlanta truck accident?

Georgia law allows recovery of monetary damages for personal injury that include:

Medical expenses, past and future

Income loss, past and future

Physical pain and suffering, past and future

Mental pain and suffering, past and future. This includes all aspects of loss of enjoyment of life.

Loss of ability to labor and earn money, separate from provable income loss, as a part of mental pain and suffering
In some limited circumstances, attorney fees and litigation expenses.

h. What damages can I recover for wrongful death of a family member in an Atlanta truck accident wrongful death case?

There are two categories of claims that may be made for wrongful death.

First is a wrongful death claim for the full value of life which belongs to survivors designated by statute: spouse, children, parent, or heirs at law depending on the circumstances. It defines the "full value of the life" of the person who died to include both economic and intangible aspects. Georgia law does not mandate any rigid formula or arbitrary on the damages awarded in a wrongful death case, but rather the "full value of the life" is determined by the enlightened conscience of an impartial jury. Unlike some states, however, the subjective grief of the survivors is not part of the calculation of damages.

The economic aspects of “full value of the life” include the projected lifetime income and benefits and the value of their uncompensated services to family and community, reduced to present value.

In determining the intangible aspect of “full value of the life” fair and impartial jurors are guided by their “enlightened conscience” in assessing the quality of life, relationships, activities, passions and pursuits, and determine what the experience of living was worth to that person who died. The intangible value of life is not reduced to present value.

Second is what courts call a "survival action" because the rights of the decedent survive the death and belong to the estate of the deceased. That claim may be pursued by the executor or administer seeking compensation for the pain and suffering before death plus the medical and funeral expense. Separate from the wrongful death claim on behalf of designated beneficiaries, the administrator or executor of the decedent's estate has a claim for the decedent's medical and funeral expenses, and for conscious pain and suffering before death.

Where the decedent died almost immediately after impact but could see what was about to happen, a claim for the mental pain of recognizing impending death may have great value. In appropriate cases, an accident reconstruction can help establish how much time the person had to recognize impending doom before being killed.

The decedent’s family members may choose to pursue both claims or only one of them depending on what makes the most sense under the circumstances. It is entirely appropriate in Georgia for the family, with experienced legal counsel, to pursue both claims, or to choose to file one claim and abandon the other.

Call us today at our Atlanta office 404-253-7862 or submit your inquiry online, and find out if we can help.