Carr Allison Transportation News

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1 Volume 1, Issue 1 April 2004 Carr Allison Transportation News In This Issue USLAW Network 1 Alabama Law on Wantonness and Punitive Damages in Lane Change Cases The New FMCSA Cargo Securement Rules Handling Catastrophic Accident Investigations What Do You Want, Expect and Deserve From a Third Party Claims Administrator Defending a Trucking Company in Court or Refereeing the Super Bowl Which is Harder? Carr Allison 2004 Nuts & Bolts Transportation Seminar Alabama Trucking Verdicts in Recent Personal Injury and Wrongful Death Cases From 2003 Forward Mississippi Trucking Verdicts in Recent Personal Injury and Wrongful Death Cases from 1998 to Carr Allison Attorney Listing 13 The Alabama State Bar Association rules require the following disclosure: No Representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers. USLAW Network By Charles Carr USLAW Network. No, I am not talking about the network that carries Law & Order. The Plaintiff s bar has ATLA and their local trial lawyers associations. Defense law firms need a national network of litigation law firms in order to compete with the networks that the plaintiffs lawyers use. For Carr Allison, that network is USLAW. Headquartered in Chicago, Illinois and currently consisting of 38 independent law firms around the country, USLAW Network is one of the fastest growing networks of defense law firms in the country. In the south, for example, firms are located in Atlanta, Birmingham, Columbia (SC), Charleston (SC), Tallahassee, Jacksonville, Orlando, Miami, New Orleans, Memphis and Louisville, Kentucky. Here are just some examples of how the organization works. I recently was involved in the defense of a multi-million dollar claim in northern Kentucky. My client had already retained local counsel in northern Kentucky, but really wanted to try something different to seek an early resolution of this claim. The Louisville member of USLAW Network (the Greenebaum firm) has in its litigation department a former Plaintiff s attorney who now devotes most of his practice to mediation. I called on this lawyer and asked him to serve as a facilitator in my northern Kentucky case. Because of his former plaintiff s attorney background, he was able to get a quick audience with plaintiff s counsel and, within weeks, the case was settled for a reasonable amount. When the plaintiff s expert was identified and I discovered that he has testified most often in the Atlanta, Georgia area, I called on the Hall Charles Carr, USLAW Network Chairman and Carr Allison Shareholder Booth firm in Atlanta, within a few seconds, I receive transcripts of depositions of this expert attached to an . Within a few more minutes, I received copies of transcripts of this expert s college grades which have been scanned and attached to another . In August of this year in Boulder, Colorado, the Carr Allison truck accident defense team will meet (See USLAW on Page 9) Alabama Law on Wantonness and Punitive Damages in Lane Change Cases by Lea Richmond,IV One of the most common accident scenarios faced by motor carriers in civil litigation is the lane change case. A driver s momentary carelessness or inattention is usually the culpable conduct in a lane change case, which generally should support only a negligence legal theory. However, in Hornady Truck Line, Inc. v. Meadows, the Alabama Supreme Court allowed a lane change case to go to the jury on wantonness against a trucking company. 847 So. 2d 908 (Ala. 2002). The accident in Hornady involved two passenger cars and one tractortrailer. Lonnie Johnson ( Johnson ) drove a tractor-trailer truck for Hornady Truck Line, Inc., ( Hornady ) in the course and scope of his employment, on I-65 north in the right-hand lane. Stephen Martin ( Martin ) drove a Ford Crown Victoria in the course and scope of his employment with the Alabama Education Association ( AEA ), also on I-65 north, about four to five car lengths behind the Hornady truck. Lastly, the Plaintiffs passenger car drove in the southbound lanes of I-65, traveling in the opposite direction of the AEA and Hornady vehicles. A grass median separated the northbound and southbound lanes of I-65. Hornady, 847 So. 2d at 912. Just before the accident, a torrential downpour left standing water on the interstate, and rain continued to fall at the time of the accident. Martin, in the Crown Victoria, drove with his cruise control set just under 70 m.p.h. Johnson drove the Hornady tractortrailer at 65 m.p.h. Then, Martin decided to pass the Hornady truck by moving over into the left -hand lane. Once in the left -hand lane, Martin did (Continued on Page 2)

2 Page 2 Carr Allison Lane Change (continued from Page 1) not disengage his cruise control. During the pass, Martin entered the spray created by the Hornady truck s nine left tires, and immediately thereafter, his automobile collided with the left side of the Hornady truck, thereby causing Martin s car to cross the grass median, enter the opposing southbound lanes of I-65, and violently crash into the Plaintiffs vehicle. Of course, both Johnson and Martin testified at trial that they maintained their respective lanes of travel at the time of contact between their two vehicles. Hornady, 847 So. 2d at Over objections, motions and arguments by attorneys for Hornady and the AEA, the trial court permitted the wantonness counts against both defendants to go to the jury, along with negligence counts against both defendants and a negligent entrustment count against AEA. 1 The jury returned verdicts well in excess of one million dollars in favor of the Plaintiffs by finding that the negligence and wantonness of both defendants combined and concurred to cause the Plaintiffs injuries and damages. Hornady, 847 So. 2d at On appeal, the Alabama Supreme Court considered whether the conduct of Johnson and Martin surpassed negligence and rose to the egregious level of wantonness. First, the court stated that wantonness requires a showing of a conscious or an intentional act...[citations omitted] [h]owever, the actor s knowledge may be proven by showing circumstances from which the fact of knowledge is a reasonable inference; it need not be proved by direct evidence. Further, the court noted that, while speed alone does not amount to wantonness, speed, coupled with other circumstances, may amount to wantonness. Hornady, 847 So. 2d at 916. wantonness. Hornady, 847 So. 2d at 916. Regarding whether Martin acted wantonly, the court noted that Martin knew the road conditions (standing water and poor visibility) and he knew his speed was just under 70 m.p.h. as he attempted to pass the Hornady truck. This evidence, according to the Alabama Supreme Court, was sufficient to support the wantonness claim to go to the jury against Martin. Regarding whether Johnson acted wantonly, the court noted that Johnson drove at a high speed in poor weather conditions while knowing of hydroplaning dangers. Further, the court commented that Johnson had failed to conduct routine mirror checks every 5-10 seconds while driving on I-65, which violated Hornady policy. Finally, the court observed that Martin s testimony, which alleged that Johnson crossed over into the left-hand lane without warning, coupled with the other aforementioned factors, supported the wantonness count going to the jury against Hornady. Clearly, the Hornady court placed emphasis on the driver-defendants appreciation of the poor weather conditions at the time of the accident, their knowledge about the dangers of hydroplaning, and their imprudent speeds when assessing whether an improper lane change could give rise to wantonness. However, does the removal of these aggravating circumstances, such as poor weather and speed, preclude an improper lane change case from proceeding to the jury on wantonness? This author, and Thomas L. Oliver, II, a Shareholder of Carr Allison ( the defense ) recently litigated a trucking lane change case in which the Hornady case became the linchpin on whether wantonness and punitive damages would go to the jury. After removal to federal court, the defense filed a motion for partial summary judgment on entrustment, wantonness, and punitive damages. The facts before the federal district judge were as follows: On the evening of August 8, 2002, the Plaintiff left home for work. She drove her car up Neil Bonnet Road to Interstate 59 North. Once the Plaintiff merged onto the northbound lanes of Interstate 59, she traveled in the righthand outside lane of traffic. After driving north for a short period of time on Interstate 59, the Plaintiff noticed a tractor-trailer traveling two lanes over to her left. The middle lane between the Plaintiff and the tractor-trailer was vacant. Moments later, the tractor-trailer moved into the vacant middle-lane such that the truck traveled along side the Plaintiff s car. The Plaintiff drove for three of four seconds with the tractor-trailer next to her, and then she began pulling ahead of the truck s cab. The Plaintiff estimated that both she and the truck traveled within the posted speed limit at this time. Next, according to the Plaintiff, all of a sudden, she heard a rubbing sound and realized that the tractor-trailer s cab had come over into her lane without signaling and had contacted the rear portion of her vehicle. When the tractor-trailer and the Plaintiff s car came into contact with one another, the Plaintiff s car left the road and came to rest on a grass shoulder next to a ditch. Of note, the defendant-truck driver testified by deposition that he never saw the Plaintiff s car prior to the rubbing sound. Also of importance, the weather was clear on the night in question, but the parties were driving in a construction zone. The defense argued at oral argument that even if the defendant-truck driver was at fault for an improper lane change, such conduct amounted to mere inattention, carelessness, or inadvertence, which only support a negligence legal theory, not wantonness or punitive damages. In response, the Plaintiffs argued that the Hornady case stood for the proposition that a lane change by a truck driver without proper mirror checks or surveys created an issue of fact on wantonness. Further, according to the Plaintiff, if the defendant-truck driver failed to engage his blinker and check his mirrors prior to making the lane change, such action could be viewed as wanton under the authority of Hornady. The federal court granted the defendants partial summary judgment on wantonness and punitive damages. 2 To that end, the court distinguished the Hornady case in its memorandum opinion by stating that the facts in Hornady are inapposite. The defendants in Hornady were traveling at a high rate of speed in very wet conditions, and one defendant had a history of speeding. Apparently, in the opinion of the court, the Hornady facts only supported wantonness because of dangerous weather conditions, coupled with imprudent speed. Our case only involved an improper lane change, with both vehicles traveling at a reasonable speed under the circumstances. In the Court s opinion, there was not substantial evidence that the our truck driver acted recklessly or with a conscious disregard for [the Plaintiffs ] safety because the truck driver testified that he never saw the Plaintiff s car prior to contact. Because the court dismissed the wantonness count, the court s order also precluded the Plaintiff from seeking punitive damages at trial. As the law currently stands in Alabama, if a defendant-truck driver fails to check his mirrors or otherwise use on-board safety equipment prior to making a lane change on an interstate under normal or clear weather conditions, such conduct appears to be short of wantonness, at least in this author s experience. Accordingly, defendant-trucking companies should argue that an improper lane change, or any other routine interstate-driving maneuver for that matter, should only receive consideration under a wantonness theory when there are other exigent circumstances, such as poor weather conditions or heavy construction traffic, which would otherwise lower the reasonably prudent person standard of care for negligence. Thus, a moment of inadvertence or carelessness, such as failing to check rear or side mirrors, can only be considered wanton conduct when surrounding circumstances have placed a heightened duty on the driver, such that the driver should have known that his actions, under those perilous conditions, are likely to cause injury to others. Otherwise, a simple lane change, at least in Alabama, should only constitute mere negligence.

3 Volume 1, Issue 1 Page 3 The New FMCSA Cargo Securement Rules By Lane VanIngen The Department of Transportation s Federal Motor Carrier Safety Administration (FMCSA) has published new commercial motor vehicle cargo securement rules effective on January 1, These new rules were implemented with little fanfare in the shadow of the new FMCSA Hours of Service (HOS) requirements that were also implemented in January In spite of this, the securement rules deserve our attention based on their importance to the highway safety community and their direct, measurable impact on commercial motor vehicle accident rates. The FMCSA issued a news release dated September 27, 2002 announcing that they were requiring truckers to meet a new set of safety standards for inspecting and tying down cargo. The final rule outlining the new requirements was published in the Federal Register on that same day. The rules were published to help ensure that all CMV (commercial motor vehicle) loads are properly secured and to reduce the number of accidents caused by cargo shifting or falling from trucks. The final rule established standards based on a comprehensive research program that evaluated the effectiveness of current U.S. and Canadian regulations, current industry practices in these locations that were considered effective, and recommendations presented by industry experts and other interested parties. The rule outlines new performance standards that apply to cargo securement systems for all types of freight. The rule also establishes commodity-specific standards for certain items that were identified as difficult to secure based on comments made by industry experts. Examples of difficult to secure items subject to the commodity-specific requirements include certain types of lumber, metal coils, paper rolls, intermodal containers, vehicles, and large pieces of equipment or machinery. The new rules have been incorporated into the Federal Motor Carrier Safety Regulations and can be found in Title 49 of the Code of Federal Regulations Part They apply to all commercial motor vehicles, as defined in 49 CFR Part 390 of the federal regulations. The rule applies to any vehicle or combination in excess of 10,000 lbs GVWR (gross vehicle weight rating).not just for large trucks that require the driver to possess a commercial driver s license (CDL) to operate them. The rules stipulate that cargo is to be properly distributed and secured as specified in 49 CFR Part through , and developing driver training to adequately address the rules will undoubtedly be challenging. The rule also presents new concerns when offering legal defense in an accident situation where cargo securement issues are potentially involved. Providing quality driver training in this area is going to take a coordinated effort by trucking employers. In addition to training drivers to properly secure cargo as outlined in 49 CFR Part through , the author suggests the following for commercial vehicle drivers: 1. Requiring the driver to assure himself/herself that the cargo has been properly secured before the loaded commercial vehicle is driven. The driver will necessarily do this each time the commercial vehicle is loaded and each day at the beginning of the driver s shift while the freight is in transit. The inspection required to assure proper securement should be recorded by the driver on the driver s daily log as on duty time. 2. Requiring the driver to inspect the cargo and cargo securement devices within the first 50 miles after beginning the trip, and to make adjustments as required. This check, consistent with the inspection completed at loading time, requires that a driver spend duty time doing such. This time will need to be flagged on the driver s daily log to indicate his duty status change. 3.Requiring the driver to periodically reexamine the cargo and cargo securement devices during transportation, and to make adjustments as required, whenever the driver (a) changes his or her duty status, (b) drives for 3 consecutive hours, or (c) drives 150 miles whichever occurs first. These suggestions are based on driver responsibilities outlined in 49 CFR Part 392.9(b). The responsibilities do not apply to a driver who is operating a sealed trailer vehicle if he has been specifically ordered not to unseal the load. They also do not apply when a vehicle has been loaded in a manner making load inspection impractical. Implementation of sound load securement practices is sure to result in bountiful safety rewards, especially when complimented by an effective fleet speed control policy. If you have not given much thought to these newly implemented rules, don t let the lack of fanfare to its arrival let it sneak by undetected! Contributed by Lane VanIngen, President, Transportation Safety Services, 4245 Halls Mill Road, Mobile, Alabama lvaningen@bellsouth.net The rule outlines new performance standards that apply to cargo securement systems for all types of freight.

4 Page 4 Carr Allison Handling Catastrophic Accident Investigations By Brett Ross The first 24 to 48 hours after an automobile accident involving catastrophic injuries or death can be hectic and stressful for the claims adjuster or safety director. However, this period may be a critical time when measures can be taken to help minimize loss exposure. The purpose of this article is to provide suggestions for handling such claims during the initial phase after notification. 1. Assembling an Investigation Team C After contact with the insured, you may need to begin by contacting counsel in the area of the accident. While hiring an attorney to assist in managing the initial investigation may be more expensive, the involvement of counsel helps to establish attorney-client privilege for investigation efforts. Furthermore, skilled defense counsel will assist in evaluating the claim and the key elements of the case from a more informed perspective than simply hiring a field investigator/independent adjuster. While independent adjusters typically do understand the issues pertaining to liability, they often lack an understanding of the evidentiary issues which may jeopardize establishing and maintaining privilege over their work product and that of others involved in the investigation. Nonetheless, field investigators are necessary as the eyes and ears of the adjuster on the accident scene. They are also typically easier to place at the accident scene quickly. Furthermore, it is generally better to have any witness interviews or other public contact performed by the independent adjuster rather than counsel, since witnesses tend to be more guarded in communication with attorneys, and claimants can be driven to secure their own counsel where they might not otherwise have done so. At any rate, having counsel involved from the outset helps centralize the coordination of efforts, potentially protects investigative material from discovery if a lawsuit is filed, and helps facilitate the preservation of evidence through privilege. Brett Ross is a shareholder with Carr Allison. 2. Reconstruction and Animation C Physical evidence can be removed from the accident scene by various means, including law enforcement officers, claimants, claimants counsel s investigators, witnesses, road crews, and more commonly, the weather. As a result, the accident scene may not look the same six months after the accident as it did on the date of occurence. Thus, hiring someone to perform an accident reconstruction and/or collect data for an accident animation can be critical, particularly in cases where timing, distance, and collision avoidance efforts are at issue. For this reason, it may be advisable to retain a reconstructionist or animation videographer immediately so that they can collect evidence at the accident scene while it is still fresh. As you can imagine, skid marks, debris fields, and witness memories all fade with time. Reconstructionists can best utilize that data if obtained quickly. Furthermore, promptness will help establish the credibility of your expert witness, whereas a reconstructionist who does not get an opportunity to inspect the scene while it is unaltered may have his or her opinions subject to greater scrutiny. The same concept holds true for an animation videographer who is best able to collect reliable data in the initial phases of investigation. Finally, the prevailing light, temperature, and weather conditions can affect the accuracy of reconstruction and animation efforts. Contact the local weather bureau as soon as possible to learn what these conditions were at the time of the wreck. 3. Controlling the Tort Feasor/Driver C No matter what measures a company has taken to avoid a catastrophic accident, they should be prepared for the worst. To that end, someone, whether it be a dispatcher or other representative of the insured, must be available 24 hours to take a driver=s call, ask the appropriate questions, and advise them on how to proceed. Most insured drivers involved in catastrophic injury cases are understandably emotionally overwrought and are often themselves injured in the accident. They are often upset about the condition of the claimants, damage to their person and/or property, and unfortunately, about issues pertaining to their contribution to the cause of the accident, hours of service issues, potential drug tests, and other factors which may compromise their better judgment. Perhaps the most critical thing that you and your investigation team can do immediately after the catastrophic accident is to gain control over the individuals involved on behalf of the insured. That driver needs to be instructed not to speak to anyone other than counsel, not to provide any written statements, not to destroy, alter or fabricate evidence, etc. In the event that the insured provides its drivers with an accident response kit, which may include contact numbers, witness information sheets and disposable cameras, a driver should do no more than the minimum level of evidence gathering until someone from the investigation team arrives. Unfortunately, an uncontrolled driver can do great damage to defense efforts during the initial investigative phase. He or she needs to be comforted and reassured that their interests are being protected and given advice regarding who and who not to speak to after the accident. Wherever possible, the driver should be moved to a hotel or other secure location where he or she is accessible to the investigation team and no one else. 4. Preservation of Evidence C There are several different types of evidence relating to a catastrophic accident that need to be preserved. First of all, any evidence at the accident scene needs to be examined by experts, the field investigator, and counsel. Numerous detailed, professional photographs of the scene should be taken so that if the case is litigated, the images utilized during the litigation process are as contemporaneous as possible. For the same reason, quickly obtain copies of any newspaper articles or television footage of the accident, which may contain photographs or witness interviews taken shortly after the accident. Also, the vehicles involved should be preserved to the extent possible. Typically, law enforcement officers will assist in arranging for the vehicles to be towed to a wrecker yard. However, once the vehicles are there, they are essentially available for anyone and everyone to look at and inspect. (continued to next page)

5 Volume 1, Issue 1 Page 5 If there is liability, and often even when there is not, Plaintiff=s counsel may be hired and even physically present at the scene within the few first hours after an accident. There is no reason to make the Plaintiff=s investigator or reconstructionist=s job any easier by allowing access to the insured vehicle. Unless a hold is placed on the vehicle by law enforcement officers, it is preferable to have the vehicle towed to a secure, neutral location. In any case, identify the towing company(ies) and their employee(s) who responded to the scene, and remind them that no one other than D.O.T. or police officials are to examine a motor carrier=s equipment without permission from the carrier. In addition to the vehicles and evidence at the accident scene, particular care should be taken to preserve any paper documentation which might be relevant. This generally only comes into play in D.O.T. reportable accidents involving tractor-trailer rigs. In such accidents, the log books, bills of lading, and any other paper documentation should be preserved. DOT regulations only require retention of that material for six months, and trucking companies often destroy log books with regard to whether they contain evidence pertinent to an accident. However, for reasons discussed in more detail below, it is preferable to ensure that this material is preserved. Thus, the investigator, attorney, or other person working on behalf of the carrier needs to photocopy the log book entries for the date of the accident, as well as all entries at least a week before and after the wreck for the log books, the bills of lading, and any other document (i.e. fuel receipts, dispatch records, etc.) which might detail the recent driving history of the person involved in the accident. The insured should also be instructed to retain the originals of those documents. This not only protects the evidence for later use in litigation, but also protects it from potential alteration by an unscrupulous driver. The final category of evidence which needs to be preserved is electronic data, which might be contained on various recording devices in the subject vehicle. Tractortrailer rigs are now commonly equipped with Aelectronic control modules@ (AECMs) located on the engine block which record data which may show speed and vehicle condition at the time of the accident. ECM data varies greatly depending on the engine model in the tractor. Some contain very rudimentary information related simply to average RPMs, minimum and maximum speeds run by the vehicle at any time during the engine life, and other relatively non-pertinent bits of information. However, some ECMs are much more detailed and sophisticated, and can include data recorded at the collision event. Some ECMs record sudden deceleration events, such as an impact in an accident, including the precise speed of the vehicle at the time of the deceleration event. Obviously, this information can be very critical to the defense of the catastrophic injury claim. However, ECMs do not retain that data forever. Some ECMs over-write the data immediately after the vehicle is restarted. Some delete it after a certain period of time. Still others retain the data only as long as electricity is provided to the engine. As a result, it may be necessary to immediately download the data from the ECM in order to insure that it is preserved. In other cases, ECMs have been removed and placed on a Adummy@ engine for preservation. If necessary, entire engine blocks can be removed for that purpose. Exactly what type of ECM exists in any particular case varies greatly depending on engine manufacturer and model. The preferred course is to contact a local dealer to discuss the download of the ECM data. This can usually be done for a modest charge, without moving the vehicle. Furthermore, the truck may also contain other electronic equipment which has recording capabilities, including Qualcom communication units, Vorad collision avoidance systems and other protective electronic devices. It is best to discuss this issue in some detail with the driver, the driver=s dispatcher, and vehicle owner, as well as a representative of the manufacturer of the engine or of the tractor itself, in order to ensure that all the bases have been covered to preserve electronic evidence. The import of all preservation of evidence is that there is a very strong doctrine of spoliation of evidence in Alabama and many other jurisdictions. Where evidence is destroyed by willful act or by omission, the opposing party is entitled to argue during trial and to present a charge to the jury indicating that only a guilty conscience would allow evidence to be destroyed. Specifically, the jury is typically instructed as follows: In this case, the Plaintiff claims that the Defendant is guilty of wrongfully destroying, hiding, concealing, altering, or otherwise wrongfully tampering with material evidence (including attempts to influence a witness= testimony). If you are reasonably satisfied from the evidence that the Defendant did or attempted to wrongfully destroy, hide, conceal, alter, or otherwise tamper with material evidence, then that fact may be considered as an inference of Defendant=s guilt, culpability, or awareness of the Defendant=s negligence. Alabama Pattern Jury Instruction, (2001). Obviously, this charge and the inferences that can be drawn from it may be devastating to the Defendant. Even worse, the Supreme Court of Alabama has recently ruled that spoliation of evidence may give rise to a separate cause of action. See, e.g., Smith v. Atkinson, 771 So.2d 429 (Ala. 2000)(holding that a third party may be held liable for a claim of spoliation of evidence under negligence theories). The net result of failing to preserve evidence can be that problems are created where none existed, and benign conduct can be construed as an effort to conceal damaging evidence. 5. Interviewing Witnesses C The memories of witnesses tend to fade over time. As a result, it is generally advisable to obtain written or taped statements from fact witnesses or police officers whenever possible. One of the few advantages that the trucking client has during the litigation process is the ability to get their personnel on the ground first. Allowing a claims adjuster or field investigator to take statements from fact witnesses helps to ensure that their testimony is not influenced by claimants or adverse counsel, preserves a record of their observations, and provides for more thorough evaluation of liability. However, it is not recommended that these interviews be conducted by counsel since, as mentioned earlier, candor tends to be minimized when people are talking to lawyers, and because unrepresented parties may feel compelled to obtain their own counsel. Interviewing the claimants may also be advisable, though they often resent the intrusion and will occasionally seek representation where they would not have otherwise done so, or at the least, earlier than they would have had they not been contacted by representatives of the prospective defendants. 6. Conclusion C Handling accident investigation and reconstruction is not an exact science. The primary goals are not only to evaluate the claim, but also to preserve evidence. For this reason, establishing control of the situation early may help to minimize exposure. For the insurer or trucking company keeping in mind the issues discussed above may prove helpful in handling the accident investigation in a more thorough, prudent, and effective manner.

6 Page 6 Carr Allison What Do You Want, Expect and Deserve From a Third Party Claims Administrator? By Keith Dunlap Editors Note: Keith Dunlap is president of Omaha, NB based NTA, Inc., a third party claims administration firm specializing in the resolution of loss activity for the motor carrier industry. Since 1990, offices under Mr. Dunlap's control have responded to approximately 135,000 trucking accidents. Over the course of the last 20 years, in addition to responding on behalf of self-insured motor carriers, Mr. Dunlap has contracted with a significant number of A+ insurers and reinsurers representing many of the nation's largest fleet carriers. In the previous soft insurance market, many commercial entities historically passed off risk to the insurance sector, taking little or no loss participation. They necessarily relied on the claim expertise (or lack thereof) of the insurer they chose and had virtually no input on how their claims were resolved. In the present, much more difficult insurance market, most of these same commercial clients were required to take part in the loss process by totally self-insuring some risks while taking significant retentions for the larger, more volatile liability exposures. Many commercial risks had no first-hand experience in actually handling their own loss activity, and as a result, a large number of them turned to third party claim administrators. This discussion concerns the very necessary ability to properly gauge and evaluate prospective third party claim administrators. As a risk manager, safety director or claim handler for your company, ask yourself the following questions: Does your current insurer or TPA: Share the same mentality about spending your claim dollars that you do? Work with you in a team effort to control exposure and cost? Take a sincere interest in educating themselves on the specific nuances of your business? Continuously update you on legal/claim issues pertaining to your industry? Provide you with tangible, written updated reports on your claim activity as it develops until final resolution? Bring you into the process prior to making substantive dollar impact decisions? Make periodic visits to your facility to discuss pending claim issues? Provide claim management seminars on site? Partner with you on vendor selections? Identify and consult with you on the specific reasons for your loss cost variance trending? Provide you with a dedicated and experienced team that understands your needs? Truly care about doing all they can to lower your loss costs? In today s market it s your money at risk. If you answered no to any of these questions, perhaps the TPA relationship needs a bit of nurturing, or a change may even be necessary. In today s market, it s your money that is at risk. For the traditional commercial insured, it was very comforting to know that even on the most insignificant claim, the insurer would absorb the loss. Those days are gone, at least for now. Today, commercial risks need to develop a hands-on approach not only as to how their claim dollars are spent, but also in how to be influential in determining the strategy of how their claims are attacked. Today s risks need to set the tone for the TPA. Undoubtedly, they need to plug-in and take advantage of whatever expertise and basic services are offered within the culture of the TPA. They cannot afford to simply allow a TPA to make significant decisions on their behalf without being part of the process. No more sitting on the sidelines. With the prevalence of high SIR s and liability deductible levels, today s commercial risks need to partner with a TPA on major or substantive claim issues and develop an overall game plan that is congruent with the goals of the client. My advice is to not get stuck or become satisfied with the TPA s traditional way of doing things. Carve your own path by creating your own set of requirements; set the reserving philosophy; participate in vendor selection; decide how the TPA is to report to you and how often; decide on the choice of people that actually handle your claims; and take part in developing strategy as claims unfold. In essence, design the performance criteria for the TPA. These are all things that you could not do when your insurer s claim department handled your losses from dollar one. Remember, your money is at stake now, and being passive is not an option. Reporting -- The insurance and claims industry have always understood and appreciated the nexus between timely reporting of claim activity and adverse loss development. As relative newcomers to the claim handling process, many of today s commercial clients have not been privy to the wealth of data that supports the fact that the longer a claim goes unreported, the more expensive it becomes. This is not conjecture; it simply a fact. Therefore, it is incumbent on anyone who is considering the use of a TPA that the TPA has the ability to respond 24/7 to losses as they occur. The TPA must have the 24-hour ability to preserve facts and critical physical evidence, identify witnesses, and secure statements prior to compromise by outside influences. Bottom line - the quicker you can respond to your losses, the less your final loss costs will be. Remember that control over the severity of your losses typically translates to lower annual premiums. Vendors -- Preferably, your chosen TPA will have a proven industry niche. Determine if the TPA can provide an industry specific network of experts, including independent adjusters, attorneys, reconstructionists, etc., to promptly respond to and control your loss activity. Some things to remember in this area include: Ensuring that the TPA is not affiliated with any of the field vendors they utilize. When directing and controlling the activities of the field adjuster, the TPA has to be absolutely autonomous, objective, and willing to challenge the expenses that are being charged against the claim. If the TPA is affiliated with the field adjuster, their objectivity may become compromised and your expense ratios will suffer. Ensuring that the TPA does not saddle you with a team that has a high workload in a variety of areas. Often times, the team assigned to your account will have an inordinate amount of claim files from a variety of industry types, not necessarily yours. This multiline approach will only serve to deteriorate your loss results. Bottom line - if your TPA is to handle your liability losses, make sure that your assigned handlers are not also responding to property losses, workers compensation claims, med-mal or legal-mal claims, or any of the other types of claims that are dissimilar to the exposures that you face everyday. Claim handlers can t be effective if they are spread too thin among various types of loss activity. (Continued to next page)

7 Volume 1, Issue 1 Page 7 Under poor in -house conditions, TPA claims get paid just to move them along. Who pays? You do. Ensuring that the field adjuster s work is limited to task specific or menu assignments if possible. Unless the TPA is dealing with a significant loss, the field adjuster s work should be very limited and precise in scope. If the TPA can take the recorded statement instead of the field adjuster, for instance, your expenses are reduced, and you are getting a better bang for your buck with your TPA. Too many times, the contracted TPA will outsource insignificant tasks to the field adjuster simply because this frees up the TPA employee, and the extra field cost is easily (and subliminally) passed through to the client. What this does, of course, is inevitably increase the loss adjustment expenses associated with the claim. Ensuring that the TPA s vendor network understands the tort nuances that confront your industry group. Too often vendors are chosen based on some previous relationship they ve had with the inside TPA employee, as opposed to any significant degree of competence they need to do the work. For instance, for motor carrier clients, the TPA needs to exclusively enlist industry re cognized defense counsel who understand the technical issues that confront and plague trucking companies today. Information flow TPAs inherently believe they provide a valuable service. However, no TPA can truly call itself a service provider if the client is not aware of how their loss activity is progressing. If the TPA can t provide consistent and accurate data, as well as provide a formal systemic reporting format to the client, the TPA won t survive client scrutiny. As a client with skin in the game, you need to demand that your TPA provide you with timely substantive external reports from vendors that are informative, non-duplicative, and progressive. These re ports serve as a proactive roadmap to resolution. Without them, you are flying blind and cannot make intelligent strategy decisions. The TPA has to adopt an openfile mentality, at least as to you, the client. In addition, once the TPA shares this investigative material with you, the client, they need to solicit your input/feedback. They need to partner with you as to strategy and sincerely welcome your input. Lastly, when you provide your input, the TPA needs to listen and, if possib le, implement your ideas and suggestions. You and the TPA need to develop a shared vision of where the claim is going and devise a plan for getting there in the most efficient and economical manner possible. You can t achieve this goal unless the TPA routinely provides you with a formal reporting scheme and accurate monthly data. Cost Control Ask your current or proposed TPA to explain how they plan to reduce your loss costs. Isn t this truly the core reason that you hire a TPA in the first place? For instance, ask them these types of questions: Do you have national rental car agreements with reduced per day costs? Have you negotiated reduced national appraisal and adjustment fee agreements? Do you provide menu type assignments to field vendors? Do you have the necessary internal resources to keep abreast of jurisdiction issues, legislative enactments, and new case law that affect my industry? Do you have an aggressive and separate subrogation unit aside from your on-line handlers? Do you have a preferred repair facility network? Tell me about your salvage disposal network. Do your adjusters handle most of the investigation themselves, or do they allow field adjusters to perform most of the investigation? Do you have an in -house Special Investigative Unit? How is suspected fraud handled? Do you employ nurses to screen demand packages for medical necessity and reasonableness? Do you utilize structured settlements? At what level of claim severity? Do your handlers aggressively control the litigation management process? How are your current internal processes going to successfully lower my loss costs? Litigation Management As most experienced claimsmen will attest, the largest expense items you will incur annually will be for litigation management. If not watched and managed carefully, you will experience significant expense leakage in this area. Your chosen TPA needs to have extensive litigation management protocols for both defense attorneys assigned as well as inside claim staff. If a prospective TPA cannot readily show you that they ve developed these protocols, and that they implement them among their staff, you should walk away from them as fast as you can. Your TPA should be able to show you their approved defense attorney listing. This shouldn t be a top-secret document. You will then need to determine if their defense panel is in any way focused on your industry group, or if they simply are a panel of attorneys approved by the TPA to respond to their general clientele. Again, the vendors, if chosen carefully, will bring home the bacon for you. If chosen improperly, based on inappropriate hiring criteria, your bacon will be handed to you. For success in this area, the TPA needs to demonstrate to you that they partner with defense counsel to develop litigation strategy, including a realistic anticipated cost of defense, and that they (TPA) do not allow counsel to simply run with the file until final settlement or other resolution. The defense vendor and the TPA need to provide you with: Periodic case assessments during the evolution of litigation (settlement opportunities when apparent). Utilization of industry sensitive mediators for alternative dispute resolution. Innovative and efficient options for file resolution at the earliest opportunity, before incurring significant defense costs. Performance If the TPA you are considering is really worth their salt, they will consider entering into a performance guarantee contract, a contract which puts their money where their mouth is. If they perform to previously agreed upon expectations, they will be rewarded with a financial incentive over and above their normal everyday claim fees. Be wary of a TPA that is hesitant to enter into this kind of agreement. Try to avoid the kind of contract verbiage that permits only standard expected service. Hold the TPA to a higher standard. (See TPA on page 8)

8 Page 8 Carr Allison Defending A Trucking Company in Court or Refereeing the Super Bowl - - Which is Harder? by Ed Hochuli Editor s Note: Ed Hochuli is a Transportation lawyer with Carr Allison s sister USLAW Firm, Jones, Skelton & Hochuli, in Phoenix, AZ. We asked Ed to write a short note for our Carr Allison newsletter, giving us a little inside information as to whether it is easier to be defend a trucking company in the courtroom or referee the NFL Super Bowl. The article below is his response. It is February 1, 2004, and I am standing midfield at Reliant Stadium in Houston, Texas. In just 15 seconds, the television station will return from a commercial and go live to me, as I am to ask the legendary Y.A. Title to please toss the coin for Super Bowl XXXVIII. What an honor for me to be here, the Referee of this Super Bowl, with the added bonus of actually meeting and talking with the one and only Y.A. Title... things can't get any better than this! There are now 10 seconds until television returns to me, and 170 million people in this country, over a half billion worldwide, will watch as I ask Mr. Title to toss that coin. But wait - - Y.A. is asking me something - "Ed, I get the coin, don't I?" "I'm sorry, Mr. Title, but I can't give you the coin." And then come those words I shall never forget. Words that may actually have been worse to hear midfield at the Super Bowl than from the witness chair in the court room. "But I promised my grandson, Ed. He is so excited. I promised him he could have the coin." What was I to do? How do I say no to Y.A. Title and his excited grandson? Then I looked over at the sideline near the 50- yard line where the three big security guards stood, all decked out in full uniforms, side arms in their holsters, at least for the time being. Those three security guards whose sole job was to get that coin from me right after the toss and guard it with their lives until it was placed on display at the Hall of Fame in Canton, Ohio. Security guards or Y.A. Title's Grandson. 5 seconds to go. What to do! Was I reliving a nightmare from my last trial? There I am, standing before the jury in a large exposure wrongful death case. I look back at my defense table and see my truck driver client who had been rejected from the "Average Joe" TV series because he was not attractive enough to make the cut, and who was the first contestant on Who Wants to Be a Millionairre to use all three lifelines and miss the first $500 question. Actually, I think my driver has dozed off to sleep, which is just as well because he can't see the jury glaring at him with hate in their eyes, or tears running down the cheeks of the widow sitting at the plaintiff's table. I think he's starting to drool, though, and it's dripping on plaintiff's exhibit #1 - his driving logs. Logs with a credibility rating falling somewhere between World League Wrestling and the glint in the eye of a used car salesman. Okay, I say to myself, where would I rather be? What's tougher -- my lawyer job or me referee job? Well, I guess it's like anything. It comes down to which decision is the best to make at that particular moment. That's always the toughest. At that moment, I have to decide who to face - Y.A.'s grandson, or those three Hall of Fame security guards. So what did I do? True story: the TV station cues me. We're on the air. Several hundred million people watch me reach into my pocket and pull out the coin. I say a few words: Welcome to Super Bowl XXXVIII, etc. I reach into my pocket and pull out my spare coin - - the silver dollar that I flip every week of the regular season. Y.A. flips it, it lands on heads, the teams make their choices and leave the field. And in that instant, I hand the silver dollar to Y.A. Title for him to take to his grandson - - the coin that Y.A. flipped in the Super Bowl. I then take the special commerative coin out of my other pocket, jog over to those three nice gentlemen with their guns, and hand them their own coin to take to the Hall of Fame. Now, how can I work out a substitute defendant driver to fill in for the real one in my next trucking trial? TPA (Continued from page 7) Conclusion Work with a claims facility that does not have any built-in conflicts of interest with street investigators or other vendors. Work with a TPA that understands your business, your unique exposures, and one that can and will adapt internally to meet your expectations. Insist that you have access to accurate data and periodic formal reporting until final resolution. Require an open and candid dialogue between the claim facility and you as the client. You should expect complete candor from the claims facility, and you should feel free to offer your input or suggestions to the TPA at anytime. Establish a partnership culture. Find a TPA that truly cares about how your loss dollars are spent and one that will genuinely work to reduce your annual loss costs. This is how we truly earn our points. Lastly, find a TPA that is willing to enter into a performance guarantee contract - a firm that is willing to put their ultimate compensation at risk if they fail to meet your expressed expectations. One final thought on TPAs: If you invite them to provide a presentation about their capabilities, one sure way to determine if they are sincere is see if they bring along an actual operations person - a real life claims professional who is in the front-line trenches everyday. Too many times, clients are seduced with the over-promises made by fancy marketing brochures, websites, and TPA sales staff. As someone from the Sopranos once said, fahgetaboutit. Make sure that someone is there who represents the actual on-line claim staff which will be performing the work for you. You will get the most candor and realistic answers from that individual, not from the marketing staff whose job it is to perfume the pig. Remember: it s your money at risk. If the TPA does all of the aforementioned, trust will naturally follow, and hopefully, a long-term TPA relationship will be formed.

9 Volume 1, Issue 1 Page 9 Carr Allison Hosts 2004 Nuts & Bolts Transportation Seminar, January 8, 2004 by Caroline Pryor Sometimes personal experience is better than a textbook example. That is why a group of attorneys from across the country gathered at the 2004 Carr Allison Trucking Law Seminar, around a tractor/trailer rig for a full walk-through DOT inspection. Estes Transportation of Loxley, Alabama generously donated the use of its facility, a truck, and a driver so that seminar participants could watch as a former Alabama State Trooper conducted a full physical inspection, pointed out what he was looking for and why, questioned the driver, and looked at the driver s logs. Participants were also given an explanation of the braking system and shown the component parts. After the inspection, participants were literally put into the driver s seat for a first-hand view of the world from the cab of an 18-wheeler. No seminar would be complete, however, without in-depth classroom instruction. Unlike the traditional classroom setting, this nuts and bolts seminar provided a full day of roundtable discussions with experts in the industry. Not only were participants given access to field personnel, but to legal experts as well. Retired DOT inspector Lane VanIngen, who now owns and operates Transportation Safety Services, addressed many topics, including the new hours of service regulations, DOT inspections, driver out of service criteria and Safer.com, to name a few. Retired Alabama State Trooper, Ray Green, spoke about the role of law enforcement in the trucking industry and perceptions of the trucking industry by law enforcement personnel. To preserve or not to preserve? What is evidence and what must be saved to avoid a spoliation claim? Philip Stanfield of Jones, Skelton & Hochuli spoke about the latest trends in spoliation law from a national perspective. Trucking companies are often faced with the unenviable problem of preserving evidence - downloading and maintaining GPS/ECM data and logs. As technology changes, so does the law. When in doubt, seek advice on this subject! As a compliment to the spoliation discussion, Brett Ross spoke about the usefulness of GPS/ECM data in the defense of a trucking accident, considerations in downloading and interpreting the need to look for, retaining an expert to interpret the data and the need to account for clock drip. Brett brought in an actual ECM download report in graph form and discussed the interpretation of that data as it related to the accident event which generated the data. No broad spectrum trucking seminar would be complete without mention of logo liability. Thomas L. Oliver, II of Carr Allison rounded out the day with a report on placard liability laws across the country. Carr Allison is pleased to offer this seminar on an annual basis to foster the growth of trucking defense practice across the nation and looks forward to hosting next year s event to an even larger number lawyers. Caroline Pryor is a Shareholder with Carr Allison USLAW (Continued from page 1) with similar teams from USLAW firms all over the country. Trucking clients of our respective firms will attend a two-day intensive seminar designed to help our lawyers and clients stay abreast of the most modern techniques for defending serious truck accident cases. As Chairman of USLAW, it has been a pleasure to participate in a rigorous application review process for new applicants to the network. Applicant firms fill out a detailed questionnaire, and members of USLAW s Board of Directors call clients of the applicant firm and make a detailed inquiry as to the competence of the applicant firm s attorneys. The application process narrows down the search to two firms, and the Board picks the best firm for USLAW. Want to know more about USLAW? Turn to the web site:

10 Page 10 Carr Allison ALABAMA TRUCKING VERDICTS IN RECENT PERSONAL INJURY AND WRONGFUL DEATH CASES FROM 2003 FORWARD by Chad Godwin Chad Godwin is an Associate with Carr Allison This article addresses recent Alabama trial court verdicts in trucking cases from 2003 to the present. A relatively large number of trucking cases were tried in Alabama during this time period. When compared to the Mississippi verdicts addressed in this issue, no readily identifiable verdict pattern emerges. Some of the soft tissue injury claims resulted in significant verdicts, while others saw no award at all. Further, the only wrongful death case heard during this time period resulted in a relatively small plaintiff s verdict. Notably, none of the cases involved aggravating circumstances on the part of the defendant truck driver. In other words, there were no cases of truck driver intoxication, no cases of poor DOT compliance and no cases involving entrustment to a truck driver with a particularly poor driving record. McCutcheon v. Marten Transport, in the Circuit Court of Jefferson County, January 16, In this case, a tractor-trailer rear-ended another truck driver on I-65. The record notes that accident involved a moderate impact, but does not make any mention as to why the collision occurred. Further, although the plaintiff suffered soft tissue neck and back injuries as well as an injury to his shoulder involving nerve damage, there is no record as to the amount of the plaintiff s incurred medical bills. Notably, the driver that rear-ended the plaintiff conceded fault. At the close of trial, the jury awarded $88,000 in a plaintiff s verdict. Davis v. D&L Enterprises, in the Circuit Court of Lowndes County, February 28, This case is somewhat unusual given the trial location, as Lowndes County is normally considered a plaintiff-friendly venue. However, there were some unusual circumstances that contributed to a defense verdict. In Davis, the truck driver stopped to render assistance in an unrelated accident involving a fatality, pulling his truck to the left shoulder of I-85. The plaintiff was a passenger in her friend s vehicle. Her friend did not notice the stopped traffic associated with the accident and collided with the parked truck. The plaintiff died as a result of her injuries, her estate claiming that the defendant truck driver failed to pull his vehicle to the right side of the road and failed to use adequate illumination/warning devices after parking. Notably, the Plaintiff hailed from Atlanta, but her estate elected to pursue the matter in the truck driver s home county, which undoubtedly played a pivotal role in this normally hostile defense environment. Sumlin v. Quesenberry, in the Circuit Court of Mobile County, March 3, This case involves a rather unusual parking lot crash. Defendant truck driver was driving a dump truck when he arrived at the same traffic light as the forty-one year old plaintiff, who was driving a sedan. The traffic light controlled traffic exiting a grocery store parking lot. Both vehicles were angled at the red light and both vehicles began to exit when the light turned green. The vehicles collided in the process, causing moderate damage to the plaintiff s sedan. The plaintiff s medical bills totaled approximately $5,000. The plaintiff claimed that the defendant truck driver negligently failed to keep a proper look out. The truck driver and trucking company defended on fault and attempted to minimize damages. The jury returned a defense verdict. Williams v. Buffalo Rock Pepsi-Cola, in the Circuit Court of Mobile County, April 8, In this case, a the plaintiff was killed when the defendant truck driver crossed the centerline and caused a head-on collision. The plaintiff s estate blamed the truck driver for losing control as he traveled too fast through a curve. The defense countered, claiming that it was the plaintiff who crossed the centerline, forcing the truck onto the median and causing the driver to ultimately lose control. The record makes little mention of the plaintiff s estate, noting only that the plaintiff was forty-nine years old and employed by a carpet wholesaler. The jury found for the plaintiff, awarding $700,000 in damages. Eugene v. Richer Freight, in the Circuit Court of Baldwin County, April 10, This case involves a rearend collision on an interstate. The truck driver rear-ended the plaintiff on I-10. At trial, the plaintiff claimed that the truck driver fell asleep and rear ended her as she was traveling with the flow of traffic. The truck driver presented a different version of events, claiming that the plaintiff suddenly reentered traffic from the emergency lane, swerving in the immediate path of the truck. The truck driver stated that there was nothing he could have done to have prevented the collision. An independent witness verified the truck driver s version of events. As a result of his injuries, the plaintiff incurred approximately $16,000 in medical bills. In addition, the plaintiff, a longshoreman, sought $200,000 in an alleged vocational loss. The jury sided with the defendant truck driver, awarding the plaintiff nothing. Vickery v. ARTS Transportation, in the Circuit Court of Jefferson County, April 21, This case involved the defendant truck driver s attempt to pass. the plaintiff who was slowing to pull off of a two lane highway because her grandchildren were causing a commotion in the rear seat. Notably, the plaintiff intended to pull to the left side of the road. As the plaintiff engaged her turn signal and began to turn, defendant truck driver broadsided her. The truck driver explained that he was attempting to pass the plaintiff s slowing vehicle. However, he crossed a double yellow line in the process. Although the record does not speak to the extent of the plaintiff s injuries, the jury awarded the plaintiff $40,000. The court s judgment reduced that award to $27,500 to account (Continued to next page)

11 Volume 1, Issue 1 Page 11 Alabama Trucking Continued for $12,500 prepayment made by State Farm on the Plaintiff s uninsured motorist claim. Although the case can be procedurally classified as an uninsured motorist case, it went to the jury as a simple negligence claim. Jackson v. A&M Express, in the Circuit Court of Montgomery County, April 25, Here, the plaintiff was a passenger in his friend s vehicle. His friend was intoxicated and crashed into the rear of defendant truck driver s trailer. The plaintiff sustained a severe brain injury and incurred medical bills totaling over $250,000. The plaintiff claimed negligent and wanton operation under a theory alleging the truck driver used his Jake Brake to stop at a light, thereby bypassing the use of his brakes and the operation of his brake lights. According to the plaintiff, he and his friend could not tell that the truck was stopping until it was too late. The truck driver denied the use of his Jake Brake and blamed the crash solely on the drivers.05 blood alcohol content. The jury awarded the plaintiff nothing, rejecting the Jake Brake theory. Dunn v. Saiia Construction, in the Circuit Court of Jefferson County, June 26, A ballast brick on the back of a construction truck flew off and went through the windshield of the plaintiff s vehicle. The plaintiff was following the defendant truck driver in an escort vehicle when the brick penetrated the windshield, shattering the right side of his face and causing a severe cervical vertebral fracture. The plaintiff s vehicle rolled over in the median immediately after being struck by the brick. The plaintiff s incurred medical bills totaled approximately $200,000. The plaintiff claimed negligent placement of the ballast brick. The defense claimed that the truck never lost a brick and that the plaintiff s injuries were the result of an unexplained roll over accident. The defense offered $300,000 to settle the case before trial. Plaintiff asked for $7,000,000 at trial and the jury awarded $1,300,000. Camp v. Lippert Components Mfg., in the Circuit Court of Marshall County, July 11, This case involves an accident at a controlled intersection. The truck driver and plaintiff were approaching each other from opposite directions on Hwy 75 when the truck driver began to make a u- turn at the controlled intersection. The truck driver testified that before turning, it appeared to be clear to do so. From the plaintiff s perspective, the truck driver suddenly turned into her path. She could not avoid colliding with the truck driver and suffered a disc injury as well as a broken leg near the ankle. The plaintiff alleged negligent and wanton operation as well as negligent entrustment. After a four day trial, the jury awarded $300,000 to the plaintiff. At the direction of the verdict form, the jury s award did not note upon which theory the plaintiff prevailed. Bryant v. Shelby Concrete, in the Circuit Court of Montgomery County, August 6, Here, the defendant truck driver ran a red light, colliding with the plaintiff s vehicle. The truck driver countered, claiming it was the eighty-three year old plaintiff that ran the red light. However, the truck driver also stated that as he approached the intersection, the light appeared to change abnormally quickly to red. The plaintiff alleged that the light appeared to change quickly because the truck driver was speeding. The plaintiff claimed negligent and wanton operation in addition to negligent entrustment. The plaintiff suffered only soft tissue injuries and her medicals totaled approximately $10,000. Nonetheless, the jury awarded the plaintiff $112,500, despite the fact that they rejected the plaintiff s claim for negligent entrustment and punitive damages. Shelby Concrete satisfied the judgment. Starnes v. Truck Way Hauling, in the Circuit Court of Etowah County, September 23, In this case, the defendant truck driver pulled from an inferior roadway into the path of the plaintiff. The plaintiff swerved to avoid a collision, ran off the road and struck a sign. There was no contact between the two vehicles. The forty-three year old plaintiff was treated at the emergency room for soft tissue injuries, her medical bills totaling $4,889. The plaintiff sought to recover on a theory of negligent and wanton operation. The truck driver and trucking company defended by attempting to minimize the plaintiff s claimed damages. The jury awarded $11,142 to the plaintiff. Anderson v. Kilgo Trucking, in the Circuit Court of Winston County, October 7, This case involves a centerline collision on a narrow bridge. As the plaintiff and defendant truck driver approached each other from opposite directions, the plaintiff claims that the truck driver crossed the centerline. Further, the plaintiff claims that he attempted to move as far to the right as possible, finally striking the guardrail of the narrow bridge. The truck driver claimed that it was the plaintiff that fell asleep and crossed the centerline. In a somewhat unusual verdict, the jury awarded the plaintiff nothing, despite the fact that the investigating officer testified that it was the defendant truck driver that crossed the centerline. Lee & Jackson v. McClendon Trucking, in the Circuit Court of Morgan County, December 2, In this case, the defendant truck driver rear-ended the plaintiff s stopped vehicle. The fifty-five year old plaintiff had come to a stop after noticing a funeral procession approaching from the opposite direction. The plaintiff claims that she would have pulled off of the road, but there was no shoulder. The defendant truck driver claimed that he could not stop in time to avoid the accident, which involved a moderate collision. The plaintiff was treated for soft tissue injuries and carpal tunnel that was allegedly associated with gripping the steering wheel at impact. In addition, the plaintiff had two passengers, each of whom were also treated for soft tissue injuries. The plaintiffs medical bills totaled $9,774. The defendant truck driver and trucking company defended on fault and damages, claiming the truck driver had no time to avoid the collision. The jury agreed and awarded the plaintiffs nothing.

12 Page 12 Carr Allison MISSISSIPPI TRUCKING VERDICTS IN RECENT PERSONAL INJURY AND WRONGFUL DEATH CASES FROM 1998 TO 2004 by Thomas Carpenter The following article discusses recent Mississippi verdicts involving truck-automobile accidents. Although these cases feature a wide range of verdict ratios between out -of-pocket losses and verdicts, a rule of thumb does emerge indicating that in injury cases, between 2 and 6 times the out -ofpocket losses is the proper range of verdicts in these matters, although that range is not absolute. These cases also indicate that in wrongful death cases, verdicts are likely to exceed one million dollars, and the Mississippi Supreme Court is likely to affirm them. Entergy Mississippi, Inc. v. Bolden, 854 So. 2d 1051 (Miss. Sept. 2003), appealed from Sunflower Circuit Court. In this case, Brenda Bolden was involved in a meeting intersection accident with an Entergy power truck, hurting her left side. Bolden ultimately required surgery to her left ankle, and received a resulting 15% impairment to her left knee and an additional 10% impairment to her left ankle. Her medical bills totaled $31,600, and her lost wages were another $9,600. The jury awarded $532,000, and the circuit court judge refused to order a remittitur. The Mississippi Supreme Court disagreed, reversing the circuit court, and further holding that under the circumstances, adding another $500,00 in general damages to the out-of-pocket losses by Ms. Bolden shocked the conscience of the court. The Mississippi Supreme Court ordered a remittitur to $232,000, approximately 5.8 times the special damages suffered by Bolden. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911 (Miss. May 2002), appealed from Kemper County Circuit Court. In this wrongful death truck-car collision, the jury awarded 1.21 million in lost wage earning capacity alone, holding that despite the fact that Hailey, the decedent, did not have a college education, the jury could award a verdict based upon expert testimony indicating what Hailey would make as a college graduate, and statements from Hailey while he was living indicating his intent to complete college. The supreme court also permitted an award of hedonic damages for the first time. However, the Mississippi Legislature specifically abrogated future awards through amending the wrongful death statute to exclude hedonic damages, effective January 1, Miss. Code Ann (Supp. 2003) Scott Prather Trucking v. Ocean Clay, 821 So. 2d 819 (Miss. May 2002), appealed from Hinds County Circuit Court. Ocean Clay, a minor, sustained $24,000 in medical damages after a truck attempted to pass her on the road improperly causing a collision. Clay s foot was broken in the accident and the treating physician awarded her a 12% permanent partial impairment to her lower left foot. Clay was permanently disfigured with the loss of her front teeth although she had been fitted with a dental prosthesis to fix the problem. Clay had also suffered a partially deflated lung and bruised heart treated through 6 days of hospitalization. The jury awarded $35,800; the trial court judge awarded an additional to $150,000, which the Supreme Court affirmed, holding in this case that the jury award was too low in light of the circumstances. The total general damages award in this case was approximately 6.2 times the special damages suffered by Clay. Reese v. Summers d/b/a John Summers Trucking, 792 So. 2d 992 (Miss. Aug. 2001), appealed from Jackson County Circuit Court. In this case, two plaintiffs brought suit in a truck-car collision. Thompson had $3,833 in medical bills, and $13,272 in documented lost wages. The jury awarded $29,800 in verdict to Thompson, which was a multiple of only 1.7 times special damages. The other plaintiff, Reese, had $7,139 in medical bills, and undetermined lost wages. The jury awarded Reese $47,200, approximately 6.61 times special damages. The Mississippi Supreme Court affirmed both awards without significant comment, except to state that the jury verdicts in both cases were not outrageous. Cade & Wal-Mart Stores v. Walker, 771 So. 2d 403 (Miss. Ct. App. Nov. 2000), appealed from the Circuit Court of Monroe County, Mississippi. In this case, Walker was involved with a collision with a Wal-Mart truck, but incurred no disability and medical expenses of only $ However, a circuit court jury awarded $29,099. The Mississippi Court of Appeals affirmed this verdict, noting that the verdict awarded constituted almost 51 times the special damages suffered by Walker. The Mississippi Court of Appeals noted that 51 times damages was approximately itself three times more than the next highest multiple compensatory damages case, which featured a verdict 17.7 times the special damages. However, notwithstanding the extremely high ratio, the Mississippi Court of Appeals affirmed this award without remittitur. Greyhound Lines, Inc. v. Sutton, 765 So.2d 1269 (Miss. Aug. 2000), appealed from the Chancery Court of Simpson County. For out-of-state adjusters, this case is unusual, in that it was tried by a chancery court judge without a jury, primarily because children were involved. This case was a bus-car collision in which 3 children were killed in the collision. The chancery judge trying the case awarded 1.1 million dollars each for the deceased children and the passengers who survived received $680,000, $285,000 and $50,000. The Mississippi Supreme Court noted that in this case, there was no work history to determine for the children to gauge lost wage earning capacity, and established a rebuttable presumption that the children would earn the average income set forth on a national level by the United States Department of Labor. Thus, the court reinstated the original trial court verdict which had been previously reversed by the Mississippi Court of Appeals. McNeil v. Bourn, 721 So. 2d 663 (Miss. Ct. App. Aug. 1998), appealed from the Circuit Court of Forrest County, Mississippi. In this case, a pulpwood truck collided with the side of Bourn s vehicle. This accident aggravated Bourn s preexisting back condition. Bourn had $22,137 in medical expenses arising from the accident, and the jury awarded $121,000, a special damage to jury verdict ratio of 5.4. The Mississippi Court of Appeals held that such an award was appropriate, and refused to order a remittitur. Jack Cray Transport v. Taylor, 725 So.2d 898 (Miss. June 1998), appealed from the Circuit Court of Monroe County, Mississippi. In this case, Ms. Taylor was struck in the rear by a truck owned by Jack Cray Transport. Although the medical necessity of some of Ms. Taylor s treatment was disputed, her medical expenses were nevertheless $42,165. Her medical treatment included a discogram and a cervical laminectomy. Ms. Taylor could demonstrate a loss of wages of $82,106. Furthermore, through expert testimony, she had a projected income loss of $297,000. Nevertheless, the jury returned a verdict in favor of Taylor of only $67,000, to which the trial court added $140,000. The Mississippi Supreme Court affirmed this award. It stated that the jury verdict of $67,000 was too meager in light of the circumstances. However, the court did not raise the $140,000 additur any higher. Thus, in this case, with special damages of $104, 271 (discounting the projected income loss), the total verdict after additur ratio to special damages was slightly under 2.4 to 1. Thus, with the notable exception of Cade, in which the special damages were extremely low to begin with, the Mississippi appellate courts typically affirm verdict awards of between 2 and 6 times special damages as appropriate, in cases of personal injury. However, there is an obvious and distinct difference between personal injury awards and wrongful death awards. In wrongful death cases, all of the verdicts reviewed exceeded one million dollars, and notably, the courts affirmed all of them.

13 Volume 1, Issue 1 Page 13 Birmingham Office 100 Vestavia Parkway, Ste 200 Birmingham, Alabama CARR ALLISON Dothan Office 256 Honeysuckle Road, Ste 6 Dothan, Alabama Florence Office 212 South Cedar Street Florence, Alabama Gulfport Office th Street, Ste 411 Gulfport, Mississippi Jasper Office P.O. Box 3426 Jasper, Alabama Mobile Office 7101 Highway 90, Ste 402 Daphne, Alabama Name Russell Q. Allison Telephone (205) rqa@carrallison.com Resident Office Douglas Bagwell (228) dnb@carrallison.com Gulfport, MS Holly Bazemore (205) hhb@carrallison.com Alan K. Bellenger W. Drake Blackmon (205) (205) akb@carrallison.com wdb@carrallison.com Ryan G. Brake (256) rgb@carrallison.com Florence, AL Gregory A Brockwell Thomas L. Carpenter (205) (228) gab@carrallison.com tlc@carrallison.com Gulfport, MS Charles F. Carr (251) cfc@carrallison.com Mobile, AL Thomas S. Creel Kathy R. Davis (205) (205) tsc@carrallison.com krd@carrallison.com Christopher Dorough (205) ced@carrallison.com Joseph H. Driver D. Greg Dunagan (205) (251) jhd@carrallison.com dgd@carrallison.com Mobile, AL Daniel A. Feig (205) daf@carrallison.com Stephen N. Fitts, III Chad S. Godwin (205) (205) snf@carrallison.com csg@carrallison.com Craig W. Goolsby (251) cwg@carrallison.com Mobile, AL David T. Gordon Jason G. Hale (205) (205) dtg@carrallison.com jgh@carrallison.com Allen M. Hammer (205) amh@carrallison.com Katherine A. Harbison (205) kah@carralison.com Debra K. Hornbuckle David K. Howard (205) (256) dkh@carrallison.com dkh@carrallison.com Florence, AL Glenn E. Ireland (205) gei@carrallison.com Elizabeth Jackson Devona L. Johnson (205) (205) enj@carrallison.com dlj@carrallison.com Allan S. Jones (205) asj@carrallison.com Donald B. Kirkpatrick D. Curt Lee (205) (205) dbk@carrallison.com dcl@carrallison.com Jasper, AL Thomas C. Logan (205) tcl@carrallison.com John M. Maddox Emily K. Neizer (334) (205) jmm@carrallison.com ekn@carrallison.com Dothan, AL Vincent A. Noletto (251) van@carrallison.com Mobile, AL Thomas L.Oliver Paige F. Osborn (205) (205) tlo@carrallison.com pfo@carrallison.com Adam W. Overstreet (251) awo@carrallison.com Mobile, AL Tina M. Parker Sean C. Pierce (256) (205) tmp@carrallison.com scp@carrallison.com Florence, AL Caroline T. Pryor (251) ctp@carrallison.com Mobile, AL Bennett L. Pugh Lea Richmond, IV (205) (205) blp@carrallison.com lnr@carrallison.com Cody D. Robinson (205) cdr@carrallison.com Tom S. Roper (205) tsr@carrallison.com Brett A. Ross Thomas J. Segrest (205) (205) bar@carrallison.com tjs@carrallison.com Mary Benton Shaw (228) mbs@carrallison.com Gulfport, MS William H. Sisson Jay A. Stewart (251) (205) whs@carrallison.com jas@carrallison.com Mobile, AL J. Vincent Swiney II (205) jvs@carrallison.com Jeremy P. Taylor Thomas S. Thornton (251) (205) jpt@carrallison.com tst@carrallison.com Mobile, AL Richard E. Trewhella (205) ret@carrallison.com Jeremy N. Trousdale Eric M. Wade (205) (334) jnt@carrallison.com emw@carrallison.com Dothan, AL Tara S. Waller (251) tsw@carrallison.com Mobile, AL Melisa Zwilling (205) mcz@carrallison.com

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