Category Archives: Uncategorized

FMCSA Backs Off From Increasing Minimum Liability Insurance Limits

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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 Unfortunately, under the Trump administration, FMCSA has just withdrawn its November 28, 2014 advance notice of proposed rulemaking (ANPRM) concerning financial responsibility for motor carriers, freight forwarders, and brokers.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.

Georgia Nursing Home Arbitration Clauses Held Binding on Family Members in Wrong Death Cases

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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.

 

Georgia Chiropractor Alleged to Have Falsified Thousands of DOT Physical Exams for Truckers

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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

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or by calling 1-202-366-4001.

Patrick Cruise and Hu Hamilton Again Recognized as Mid-South Super Lawyers

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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.

Georgia Court of Appeals Adopts “Trip Specific” Approach to Determining Coverage Under MCS-90 Endorsement in Trucking Cases

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A motor carrier engaged in interstate commerce and subject to Federal Motor Carrier Safety Regulations (FMCSR) must have minimum liability coverage of $750,000. The insurer must provide a MCS-90 endorsement to the liability policy, and that endorsement is supposed to be filed with FMCSA.

In Grange Indemnity Insurance Company v. Burns, 2016 Ga. App. LEXIS 365, decided June 23rd, the Georgia Court of Appeals held that an MCS-90 endorsement attached to a commercial auto policy did not provide additional insurance coverage to the trucking company even though it was registered as an interstate motor carrier.

The trucking company, J. B. Trucking, was insured under a Grange Indemnity commercial auto insurance policy with limits of only $350,000.00. But the policy also contained an MCS-90 endorsement (with minimum coverage of $750,000.00 for nonhazardous materials). The plaintiff was injured as result of their driver’s negligence, resulting in a jury verdict of $3.3 million, but the Court of Appeals limited the plaintiff’s recovery from the insurance proceeds to $350,000, holding that the crash occurred during an intrastate delivery (involving nonhazardous materials), as opposed to during an interstate trip, and therefore the MCS-90 endorsement did not provide coverage.

The Court found that it was undisputed that the truck driver, Franks “was engaged in a trip involving purely intrastate commerce and that he was transporting nonhazardous commodities. Franks picked up a box truck in Monroe, Georgia, and drove the truck to Norcross, Georgia, where he picked up a load of “sales papers” and delivered them to a paper company in Newnan, Georgia. The sales papers were manufactured in Georgia and were destined for end users located in Georgia. While he was on his way from Newnan to Monroe to return the empty box truck, Franks struck the vehicle Burns was driving.”

The plaintiff argued unsuccessfully that once an MCS-90 endorsement is issued to a registered interstate carrier, the endorsement should apply regardless of whether a “specific trip” is intrastate or interstate. Burns argued that a Georgia citizen injured by an interstate motor carrier conducting intrastate commerce of nonhazardous materials at the time of an accident should be given the same amount of protection as a citizen injured by the same truck, owned by the same carrier, and covered by the same insurance policy, but whose cargo may be destined for another state. Burns argued that the MCS-90 endorsement should apply to all J. B. Trucking trips because J. B. Trucking was registered as an “interstate” carrier and J. B. Trucking had on many other occasions been involved in interstate trips.

There is a split of authority on this issue nationwide, as there are other courts which have held that the MCS-90 endorsement will apply to interstate and intrastate accidents (involving nonhazardous materials). Those courts rejected the “trip specific” approach, which focuses on the character of the shipment itself as interstate or intrastate, and instead based their decision on the fact that the FMCSA had jurisdiction over all of the interstate carrier’s trips, regardless of destination. Some courts have also held that based on public policy considerations, the MSC-90 should apply because the endorsement was designed to protect members of the general public injured by interstate carriers, regardless of the carrier’s destination on a particular trip. The public policy underlying the MCS-90 is to provide a safety net to members of the public injured as a result of negligent operation of tractor trailers used in interstate commerce. Its primary purpose is to assure injured members of the public are able to obtain judgments from negligent authorized interstate carriers. See Reliance National Insurance Co. v. Royal Indemnity Co., 2001 U.S. Dist. LEXIS 12901 (S.D.N.Y.) and Heron v. Transportation Casualty Insurance Co., 274 Va. 534 (Va. 2007).

Is Evidence of Payments by Medical Insurer Admissible in Tennessee on the issue of Reasonableness – Court of Appeals Muddies the Waters

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In Dedmon v. Steelman, 2016 Tenn. App. LEXIS 386 (6/2/16), the Court of Appeals rejected any assertion that the Tennessee Supreme Court meant for its holding in West v. Shelby County Healthcare Corporation, standing alone, to control all determinations of reasonableness with regard to medical expenses under Tennessee law, while allowing the defendant to offer proof contradicting the reasonableness of the medical expenses submitted by the plaintiff. The defendant had moved to exclude the plaintiff’s evidence that her incurred medical expenses, totaling $52,482.87, were reasonable and necessary.  This was done in the usual fashion with expert testimony from a treating physician. The trial court granted the motion.

The Court of Appeals reversed, holding that a plaintiff may present the testimony of a physician who testifies that the amount of medical expenses billed or charged to a plaintiff was reasonable, and as the expert’s testimony was admissible, its exclusion by the trial court under West was improper. However, the defendants will be permitted to offer proof contradicting the reasonableness of the medical expenses submitted by the plaintiff.  Exactly how to do that without violating the collateral source rule, however, was not made clear by the Court:

“ . . . existing law in this state also makes clear that Defendants are permitted to offer proof contradicting the reasonableness of the medical expenses. See Borner, 284 S.W.3d at 218. However, in doing so, they must not run afoul of the collateral source rule. See, e.g., Martinez v. Milburn Enters., Inc., 290 Kan. 572, 233 P.3d 205, 222-223 (Kan. 2010) (“… the collateral source rule bars admission of evidence stating that the expenses were paid by a collateral source. However, the rule does not address, much less bar, the admission of evidence indicating that something less than the charged amount has satisfied, or will satisfy, the amount billed.”); see also Stanley v. Walker, 906 N.E.2d 852, 858 (Ind. 2009). If the Tennessee Supreme Court is inclined to extend the reasoning of West to personal injury litigation as Defendants suggest, it is, of course, certainly free to do so, but this Court must apply the law as it currently stands.”

With its final comment, the Western Section practically begs the Supreme Court to review its decision:

“We sincerely hope that the Tennessee Supreme Court will review this case and consider the excellent arguments presented by both the parties, the amici curiae on appeal, and the concurring opinion.”

Hu Hamilton named to serve on APITLA National Advisory Board

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The Association of Plaintiff Interstate Trucking Lawyers of America has designated Hubert Hamilton to serve on its National Advisory Board.  Advisory Board members provide guidance and counsel in the methods of learning, litigation and legislation to help achieve APITLA’s mission of “Putting the Brakes on Unsafe Trucking Companies,” by working to eliminate unsafe and illegal conduct by truck drivers and trucking companies.  Hamilton is one of only three attorneys from Tennessee serving on the National Advisory Board.

Hubert E. Hamilton

Increasing Carnage On Our Highways from Truck Wrecks

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The Huffington Post reports, in an article released April 16, 2016, on:

The inside story of how the trucking industry and politicians have conspired to make our highways less safe.

What follows is an excerpt from that extensive article about truck-related deaths, which hit an all-time low during the economic doldrums of 2009, when 2,983 truck accidents killed 3,380 people, that they have increased as the economy has recovered, and the carnage has been on the rise:

“In 2013, the most recent year for which finalized statistics are available, 3,541 wrecks killed 3,964 people — an increase of 17.3 percent in just four years. In 2014, the number of deaths resulting from truck accidents was down slightly, but the total number of crashes and injuries increased.

At the same time, Congress has been caving, very quietly, to lobbying from trucking interests that want to roll back, block or modify at least a half-dozen important safety regulations. Significant parts of the hauling industry have long opposed many of the federal rules governing working hours, rest periods, size and weight limits, and safety standards. When the Great Recession began in 2008, profit margins for shippers shrank and bankruptcies rose, prompting a desperate industry to step up its lobbying effort.

Perhaps, the trucking companies’ lobbyists suggested to Congress, trucks could haul loads heavier than the federal 80,000-pound limit, which would allow them to deliver more goods with each truck. Maybe they could have longer double trailers, increasing the limit from 28 feet for each unit to 33 feet — turning each rig into an 80-foot-long behemoth, as long as an eight-story building is tall. Or they could let truck drivers be more flexible with their rest breaks, which would allow them to work up to 82 hours a week instead of the already-exhausting limit of 70. Maybe trucking firms could reduce labor costs by hiring lower-paid drivers, younger than 21 — as young as 18. Maybe they could stop federal regulators from raising insurance requirements that were set during the Reagan administration. Maybe the federal motor carrier safety ratings for unsafe trucking companies could be kept secret.

Indeed, the trucking industry is trying to do all of those things. If they are successful, these changes would amount to the most significant overhaul of highway safety rules in decades. But most people don’t know such sweeping revisions are even being considered.”

Safety regulations and requirements should be strengthened, not watered down, but that is exactly what trucking industry and their lobbists are trying to do.  We don’t need larger and heavier trucks on our roads.  And, truck drivers are falling asleep at the wheel now; they need to take more breaks and time off.  With the potential for death and destruction these behemoths present, one would think that the federal government would require them to carry at least $5,000,000 in liability coverage.  But no, when FMCSA begin consideration for increasing the current minimum of $750,000, another measure the industry pushed last year short-circuited federal regulators’ efforts to even evaluate raising insurance requirements for trucking companies. The current $750,000 minimum has been unchanged since the 1980’s.  But it is obvious to all that $750,000 doesn’t even begin to cover the costs of a serious semi wreck.  All the large trucking companies carry multiple layers of coverage, often far in excess of $5,000,000.  It is the small operators that present the clear and present danger, carrying only the minimum limits required by FMCSA.  And those small operators are often running poorly maintained equipment with marginally qualified drivers.

How can the public protect itself?  Speak up and get Congress to pay attention.  The relationship between the industry and Congress, including members of both parties, is far to cozy.  More on this topic to come, including truck drivers who fall asleep at the wheel.

Only Misconduct of a Quasi Criminal Nature will Bar Georgia Employees from Recovering Workers Compensation Benefits

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Burdette was a cell tower technician.  It was his first day back at work, and he was assigned to work on the top of a cell tower with the lead tower hand. Prior to the shift, the supervisor had instructed the crew to climb down the towers and not to use controlled descent, which is similar to rappelling, and sometimes used in the industry. The employer required its employees to be trained such descents.  Burdette and the lead man worked together on the same cell tower all day, and when they were done, the lead man instructed Burdette to climb down the tower, but Burdette responded that he wanted to use controlled descent instead:

“I told him no, man, just climb down. Might as well just climb down … . [W]e don’t have a safety rope up here for you to grab. He told me he had done this so many times. I was like, dude, they’re going to be mad if you do it. [Our supervisor] will be mad if you do it and, … you might not have a job or you might, you know, have to deal with the consequences if you don’t listen.”

However, Burdette prepared his equipment and began a controlled descent, but fell, causing severe injuries to his ankle, leg, and hip.  Should he be barred from receiving workers compensation benefits?

The Georgia Court of Appeals determined he would not be barred, even though he had violated instructions from his lead man and the supervisor.  In Burdette v. Chandler Telecom, LLC, 2015 Ga. App. LEXIS 619 (10/30/15), the Court found that the administrative law judge and the State Board of Workers’ Compensation had erred in finding that the claim was barred because the injury resulted from his own willful misconduct, and they reversed the Board’s decision.

“Our Supreme Court has . . . explained that willful misconduct “involves conduct of a quasi criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” Indeed, the general rule is that “mere violations of instructions, orders, rules, ordinances, and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute [willful] misconduct.””

This is an important decision, given the trend in some states, including Tennessee, to find that mere violation of work safety instructions constitutes willful misconduct sufficient to relieve the employer of responsibility for the resulting medical bills and disability benefits. In Burdette the Court of Appeals followed Georgia precedent and reached the correct decision.  Burdette was not drunk or high on drugs, and he did not deliberately try to injure himself.  Allowing an employer to escape responsibility for workers compensation benefits in such a circumstance has repercussions far beyond the immediate parties involved. For instance, if the workers compensation insurer was not required to pay in such circumstances, the hospital would not get paid for the treatment it provided and the burden would ultimately fall on the public.

Tennessee Supreme Court Modifies Summary Judgment Standard

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Yesterday, in Michelle Rye v. Women’s Care Center of Memphis, the Tennessee Supreme Court overruled Hannan v. Alltel Publishing Co., issued in 2008, and returned Tennessee to a summary judgment standard consistent with the Federal Rules of Civil Procedure.  The Court reasoned that the Hannan decision “has functioned in practice to frustrate the purposes for which summary judgment was intended.”  As a practical matter, it remains to be seen what the impact will be of yesterday’s ruling.  The Legislature had already promulgated legislation in 2011 “with the stated purpose ‘to overrule . . . Hannan.'”   The Rye decision could very well be a simple judicial affirmation of the legislation passed in 2011, and if so, the decision does not necessarily change the law.  That being said, the Rye decision is a clear signal to the trial courts that Hannan is no longer the law.

To read a complete copy of the decision, please click here.

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