For over two years, the Federal Motor Carrier Safety Administration has been considering requiring trucking companies to carry more liability insurance to protect the public. Unfortunately, under the Trump administration, FMCSA has just withdrawn its November 28, 2014 advance notice of proposed rulemaking (ANPRM) concerning financial responsibility for motor carriers, freight forwarders, and brokers. FMCSA is authorized to establish minimum levels of financial responsibility for motor carriers at or above the minimum levels set by Congress. In the ANPRM, FMCSA sought public comment on whether to exercise its discretion to increase the minimum levels of financial responsibility, and, if so, to what levels. Currently motor carriers, i.e. trucking companies, only have to carry $750,000 of liability insurance. The agency was considering increasing the minimum limits to as much as $5,000,000. FMCSA now claims that after reviewing all public comments to the ANPRM, it has determined that it has insufficient data or information to support moving forward with a rulemaking proposal, at this time. That means they have bowed to political and lobbying pressure from the trucking industry and backed down, leaving the motoring public at risk from financially irresponsible operators who cause catastrophic wrecks.
All posts by Injury & Disability Lawyers
On May 8, 2017, an Alabama Circuit Court judge declared the state’s entire workers’ comp system unconstitutional.
Judge Pat Ballard of the 10th Judicial Circuit in Jefferson County took issue with two statutory provisions that cap attorney fees and permanent partial disability benefits – but because the Alabama Workers’ Compensation Act contains a non-severability clause, he tossed the whole thing.
He stayed enforcement of his order for 120 days to give lawmakers a chance to cure the deficiencies he identified in Alabama Code Sections 25-5-68 and 25-5-90.But the legislative session ends in less than two weeks, so lawmakers will have to act fast.
In Clower v. CVS Caremark Corp., Ballard found that Section 25-5-68 impermissibly subjects workers to differential treatment depending on whether they had permanent disabilities that were partially or totally disabling. Section 25-5-68 provides that the maximum compensation payable for PPD “shall be no more than the lesser of $220 per week or 100% of the average weekly wage.” Unlike the benefits available for totally disabling injuries, this is a hard cap that is not adjusted for inflation and increases in the cost of living.
Temporary total and permanent total disability benefits in Alabama are tied to the statewide average weekly wage, which is revised every year, but “PPD rates have stagnated in place at $220 per week for three decades,” Ballard noted. Providing temporarily disabled workers “with an indexed system of benefits and denying it to those permanently disabled (to an extent less than totally) makes no rational sense at all,” he opined. Ballard also said he also thought there was “little credibility” for a benefit structure that pays the same $220 weekly benefit to a worker who had been making $350 per week and a worker who had been making $3,000 per week.
“There cannot conceivably be any more arbitrary, capricious, irrational, or attenuated idea than telling both workers that ‘equal protection of the laws’ means that they each get the identical amount,” Ballard contended. What’s more, Ballard said an income of $220 per week would have kept a family of four above the poverty line when the Section 25-5-68 cap was imposed 30 years ago – but now that amount is 46.4% of the poverty level for the same family. “What once qualified as an adequate ‘remedy’ for those partially disabled no longer does,” Ballard said. As the cost of living continues to rise, Ballard reasoned that the value of a $220 weekly benefit has “rotted away” to the point that it is “too infirm to qualify as a ‘remedy’ sufficient to meet the requirement that the Workers’ Compensation Act involve adequate ‘quid pro quo’ to pass constitutional muster.”
Ballard then went on to find the attorney fee cap in Section 25-5-90(a) unconstitutional as well. The statute limits a claimants’ attorney to a fee of no more than 15% of the compensation awarded to an injured worker – without any exception.
Last year, the similarly unyielding nature of Florida’s attorney fee statute led that state’s Supreme Court to strike the statute down as unconstitutional. Ballard said he found the Florida Supreme Court’s reasoning in Castellanos v. Next Door Co. to be persuasive. He also said he agreed with the reasoning of the Utah Supreme Court, which declared the Utah fee state unconstitutional in Injured Workers’ Association of Utah v. State. The Utah court’s decision had been based on the fact that the state constitution placed the regulation of attorney fees falls within the judicial branch’s authority. In Alabama, Ballard said, the task of regulating attorney fees has historically been a function of the judiciary as well. He said he viewed Section 25-5-90(a) as a “legislative trespass into a function reserved to the judicial branch of government.”
The low rate of PPD meant an attorney’s prospective fee from taking on a client with a PPD claim wouldn’t be very much, and so the joint operation of Sections 25-5-68 and 25-5-90 discourages lawyers from taking the cases, leaving the injured workers at the mercy of the employer and insurer.
In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) the Supreme Court held that a private litigant in a civil jury trial may not use racially‐motivated peremptory strikes any more than a government prosecutor may during a criminal trial, “Racial discrimination has no place in the courtroom, whether the proceeding is civil or criminal.” The Supreme Court explained that, for the limited purpose of jury selection, private litigants act as “government actors” and thus cannot violate the jurors’ constitutionally guaranteed equal protection rights. Although mostly used in criminal cases, such Batson challenges to a racially motivated peremptory strike are occasionally utilized in civil cases during the selection process.
Recently, in Pena-Rodriguez v. Colorado, 197 L. Ed. 2d 107 (3/6/17), the Supreme Court has held that inquiry can be made into the validity of a jury verdict to permit the trial court to consider evidence of a juror’s statement suggesting that racial bias influenced his decision to find a defendant guilty of harassment and unlawful sexual contact. One juror told the other jurors that he believed defendant was guilty because, in his experience as a former law enforcement officer, “Mexican men had a bravado that caused them to believe they could do whatever they wanted with women”
Although Pena-Rodriguez v. Colorado involved a criminal conviction, it is likely that it will be applicable in civil cases as well, as the Supreme Court cited Edmonson after stating: “To guard against discrimination in jury selection, the Court has ruled that no litigant may exclude a prospective juror on the basis of race.”
In civil cases, racial bias can play a role, either for or against a particular litigant. Generally the sanctity of jury verdicts is upheld by the courts and inquiry into why or how a jury reached a particular verdict has not been permitted. However, the U.S. Supreme Court has apparently opened the door to such inquiry if there is evidence of racial bias affecting the outcome.
The Georgia Supreme Court has held that an arbitration clause signed by the decedent (or by a person having power-of-attorney for the decedent) in a nursing home case is enforceable and requires the decedent’s wrongful-death beneficiaries to arbitrate their claims, United Health Services v. Norton, S16G1143 (3/6/17). The Court of Appeals had held otherwise, 336 Ga. App. 51, 55 (Ga. App. 2016) and got reversed. The Supreme Court reasoned that a wrongful death action is a derivative claim and is subject to any defenses that would have been good against the decedent.
Arbitration clauses, governed by the Federal Arbitration Act, are common in the admissions paperwork at nursing homes, often signed without question by the patient or the person holding a power of attorney for the patient.
In the Norton case a person with a power of attorney signed the admitting papers for the patient, including an arbitration clause with the following language:
“This Agreement shall inure to the benefit of and bind the Patient/Resident and the Healthcare Center, their successors, assigns, and intended and incidental beneficiaries…. The term “Patient/Resident” shall include the Patient/Resident, his or her guardian, attorney-in-fact, agent, sponsor, representative, or any person whose claim is derived through or on behalf of the Patient/Resident, including, in addition to those already listed in this Paragraph, any parent, spouse, child, executor, administrator, heir, or survivor entitled to bring a wrongful death claim.”
Patients and family are typically not thinking of bringing wrongful death lawsuits against the nursing they are trusting to provide care, but the nursing homes are, and the Supreme Court has now held that the clause was binding on the deceased’s family members. Arbitration is an expensive and burdensome process that can now supersede the constitutional right to trial by jury.
Any lawyers who prepare powers of attorney and/or advance directives should consider including the following language (or something similar) to sidestep this unfortunate ruling:
Notwithstanding any other provision of this Power of Attorney, my Agent does not have the authority to waive my right to a jury trial or my right to assert in any forum any claim I may have or a claim that may relate to me, such as a claim for personal injury or wrongful death. My Agent has no authority to enter into any agreement under which I am required to enter arbitration or any other proceeding, binding or otherwise.
Truckers came by the thousands from all across the country, pulling into into the Petro Stopping Center, a 24-hour truck stop off Interstate 285 in Atlanta, where they could find coffee and CB radios, tires and a tattoo shop, and a chiropractor, known as “Dr. Tony.” Dr. Anthony Lefteris got federally certified in 2014 to conduct the DOT medical exams that truckers must pass to get their commercial driver’s license (CDL). Lefteris is alleged to have completed nearly as many exams in an hour as a typical federally certified examiner did in a month. In less than three years, he issued more than 6,500 certificates of good health to truckers from 43 states! But they appear to have been falsified.
An anonymous tip from a trucker led to Lefteris’s arrest in December and he now faces criminal charges of falsifying documents filed with a federal agency. All his bogus DOT cards have been revoked by FMCSA, and this could have repercussions throughout the industry, as those drivers may have been operating commercial vehicles illegally.
The Federal Motor Carrier Safety Administration (FMCSA) Issued the Following Public Notice December 28, 2016:
On December 1, 2016, a Criminal Complaint in the U.S. District Court, Northern District of Georgia, was issued against Anthony Lefteris, Doctor of Chiropractic (D.C.), National Registry of Certified Medical Examiners (“National Registry”) No. 8343724872, of Atlanta, Georgia. Dr. Lefteris was charged with Making False Statements, in violation of Title 18, U.S.C. § 1001; and Making a False Entry in U.S. Department of Transportation’s Records with the Intent to Impede and Influence the Proper Administration of the U.S. Department of Transportation, in violation of Title 18, U.S.C. § 1519.
The investigation initiated by the U.S. Department of Transportation determined that while listed as a Certified Medical Examiner on the National Registry, Dr. Lefteris conducted a number of medical certification examinations that far exceeded a reasonable number of examinations. An undercover investigation conducted by the Georgia Department of Public Safety revealed that the purported medical examinations conducted by Dr. Lefteris at a truck stop in Atlanta, Georgia, exhibited a pattern whereby the examination was incomplete, required tests were not performed and information on the medical examination form was falsified.
The Federal Motor Carrier Safety Administration (FMCSA) removed Dr. Lefteris from the National Registry on December 2, 2016.
USDOT/FMCSA intends to revoke all certificates issued by Dr. Lefteris to commercial motor vehicle operators within the past two years.
FMCSA offices nationwide are presently working with State Driver’s Licensing Agencies to obtain the contact information for all affected drivers. FMCSA is contacting these drivers and informing them that they have THIRTY DAYS to obtain a Medical Examiner’s Certificate from a Medical Examiner with valid certification on the National Registry.
Drivers and carriers with further questions should contact USDOT/FMCSA via email at FMCSAMedical@dot.gov
or by calling 1-202-366-4001.
On Saturday, November 26th, the Chattanooga Times Free Press, in a front page article, reported on the limitations placed on damages by the Tennessee legislature and Governor Bill Haslam in 2011, and how that law could severely limit recoveries by injured children and the parents of those who were killed. Here are excerpts from the article by Zack Peterson, Courts Reporter:
“Families of the children killed in Monday’s bus crash can receive no more than $750,000 in personal damages under Tennessee law.
Information from reliable sources indicates that Durham School Services is insured with Old Republic Insurance Company. One policy has limits of $5,000,000.00, and another provides excess coverage of $8,500,000.00. This is probably on top of a self-retainage limit. Durham School Services, their parent company, National Express LLC (NELLC), operate more than 21,500 school buses and serve more than 500 school districts in 34 states and four provinces in Canada. NELLC is made up of Durham School Services, Petermann, National Express Transit, Trans Express, The Provider Enterprises, Septran, Smith Bus Service, Safeway Training and Transportation Services, White Plains Bus Co., Suburban Paratransit Service and Ecolane in the United States and Stock Transportation in Canada. Durham and NELLC may have additional layers of coverage, and of course, should have the financial ability to pay the dozens and dozens of claims arising from the tragic Chattanooga school bus wreck on November 21, 2016 regardless of the available liability policies.
Mid-South Super Lawyers, a publication of Thomson Reuters, has once again recognized Patrick Cruise and Hu Hamilton as Super Lawyers in the plaintiff’s personal injury practice in Tennessee. Only eight attorneys in the Chattanooga area have earned such recognition, and The Hamilton Firm LLC is proud to have two of them serving our clients, as our firm strives to reach the highest levels of advocacy and professionalism in the pursuit of justice for our clients. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. Hu Hamilton is also named as a Georgia Super Lawyer for plaintiff’s personal injury.
Tucker was a passenger in a pickup truck driven by Brown, who struck a tractor-trailer rig parked by the road. The passenger, Tucker, sued Brown for her resulting injuries, and the jury returned a verdict of $2 million in damages, but apportioned 40 percent fault to the nonparty tractor-trailer driver and 60 percent to Brown, Brown v. Tucker, 337 Ga. App. 704 (7/5/16).
On appeal, Brown argued that the trial court erred in granting the plaintiff’s motion in limine to exclude a state trooper’s opinion testimony that the cause of the collision was the tractor-trailer’s protrusion into the roadway, rather than Brown’s inability to see where she was going.
This is the question the defendant wanted to ask the trooper:
Q: Based on your experience and training, what opinion, if any, do you have as to what the cause of this accident was?
A: Okay. The parked tractor-trailer being partially in the roadway.
The trial court excluded that question, but The Court of Appeals noted that the trooper was allowed to “testify that in his opinion, based on his investigation, the trailer that Brown struck was protruding some distance into the road, and the sun was in Brown’s eyes.”
The Court of Appeals pointed out that his conclusion about those factors was a proper matter for the trooper’s testimony, but “the jury in this case did not require an expert’s opinion regarding whether the tractor-trailer’s location was “the” ultimate cause of the collision,” and found no error in exclusion of his testimony about the cause, holding that:
“Although an experienced police officer can be qualified as an expert to give opinion testimony about the cause of a traffic accident, it remains settled law in Georgia that expert opinion testimony is unnecessary and improper if a jury would be able to ascertain the cause of the accident on its own and without any such testimony.”
337 Ga. App. at 707.
Brown also argued that the trial court erred in excluding evidence that Tucker had hired an expert but chose not to call him, “asserting that the jury could have reasonably inferred from Tucker’s failure to call the expert that the expert’s report must have been unfavorable to Tucker.”
The Court of Appeals tiptoed around this question, as Georgia case law is conflicting, but found no reversible error:
“This court has a long line of condemnation cases addressing whether a party may place the opinions of an opposing party’s former expert before the jury. We have held that such an expert is subject to subpoena regardless of who initially hired him, but that all questions relating to the expert’s previous employment by the opposing party were irrelevant and inadmissible.”
337 Ga. App. at 709.
However, the Supreme Court has said in criminal cases that the State “may argue in closing that the jury may draw a negative inference from a criminal defendant’s failure to call as a witness an expert whom the defendant previously hired,” 337 Ga. App. at 710.
See Blige v. State, 264 Ga. 166, 168 (2) (441 SE2d 752) (1994) (Blige 4) and Blige v. State, 263 Ga. 244, 245 (2) (430 SE2d 761) (1993) (Blige 2)
Brown’s lawyer was allowed to argue in closing that Tucker had failed to rebut the opinions presented by Brown’s accident reconstructionist, and the jury allocated 40% of the fault to the tractor-trailer driver, so no harm was done by not allowing Brown to argue a negative inference from the plaintiff’s failure to call her expert, 337 Ga. App. at 711.
Tucker was a passenger in a pickup truck driven by Brown, who struck a tractor-trailer rig parked by the road. The passenger, Tucker, sued Brown for her resulting injuries, but did not sue the trucking company or the truck driver. Before trial Brown identified the tractor-trailer driver as a nonparty against whom the jury should apportion fault pursuant to the provisions of O.C.G.A. § 51-12-33. The jury returned a verdict of $2 million in damages, but apportioned 40 percent fault to the nonparty tractor-trailer driver and 60 percent to Brown, Brown v. Tucker, 2016 Ga. App. LEXIS 399 (7/5/16).
Why Tucker did not sue the owner or driver of the tractor-trailer is not apparent from the opinion.
Of course, Brown tried to lay all the blame for wreck on the tractor-trailer, which was on the side of the road a few inches to a foot and half inside the fog line. She claimed the sun was in her eyes and she could not see the truck. The Court of Appeals rejected an argument by the defendant Brown that she only had to “show a rational basis for apportioning fault” to the nonparty, rather than bearing the burden of proof to demonstrate negligence by the nonparty, and held:
“A defendant’s claim that a nonparty is liable for all or some of the plaintiff’s damages is an assertion of fact, the existence of which is essential to the defense. As an affirmative defense, the defendant bears the burden of proving her assertion of fact.”
“The affirmative defense that the jury should apportion fault against someone other than the defendant is no different analytically from the defense of contributory negligence. Once the plaintiff establishes her prima facie case, the defendant seeking to establish that someone else bears responsibility for the damages has the burden of proving that defense.”
“In sum, Brown’s apportionment claim was an affirmative defense. She therefore had the burden of showing by a preponderance of the evidence that the nonparty tractor-trailer driver was negligent and that his negligence proximately caused all or some portion of damages to the plaintiff.”
Thus, in spite of the procedural unfairness of Georgia’s apportionment statute, which allows a defendant to identify a nonparty alleged to be at fault up to 120 days before trial and often long after the statute of limitations has expired, at least the defendant has to prove negligence on the party of that nonparty by a preponderance of the evidence, and bears the burden of proof on that issue. So, it is not the plaintiff’s responsibility to prove the nonparty was not at fault. Of course, without the nonparty there, the defendant has an easy shot at an empty chair.
Another important issue regarding O.C.G.A. § 51-12-33 is making sure the jury understands that they are to determine the total damages sustained by the plaintiff without regard to who was at fault, and that the court will make any reductions in the ultimate award based on the percentage of fault attributed to the defendant. The trial court gave this charge in response to a question from the jury, and the Court of Appeals found no error:
“Now, ladies and gentlemen, your job is, first of all, to set the total amount of damages that you feel like are appropriate for the damages incurred by . . . Tucker. You are then, after that decision is made, you are then to go and determine how much fault, if any, was due to the defendant Brown and how much fault, if any, is due to the nonparty Patterson, Mr. Patterson. You are not to be concerned with anything else other than the latter questions. Do not reduce your total damages by any percentage of fault apportionment. The Court will take it from there.”
Finally, the Court of Appeals also found no error by the trial court in reading that portion of the apportionment statute to the jury that “assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties”, O.C.G.A. § 51-12-33(f)(1). This provides good ammunition for the plaintiff’s lawyer to be able to explain this to the jury, and to request a charge accordingly, so the jury understands how the percentages of fault will be used in determining how much money the plaintiff will receive.
Brown v. Tucker also addressed expert testimony, which will be discussed in Part II.