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.
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).
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.”
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.
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.
The Court of Appeals has reversed a defense verdict in a Georgia medical malpractice case, Elliott v. Resurgens, P.C., 2016 3/4/16)LEXIS 119, A15A2275 (3/4/16), where the trial court excluded the testimony of a material witness, a nurse, who had not been specifically identified by name during discovery and not listed in the pre-trial order (PTO). Elliott sued over allegedly negligent treatment that he received after undergoing spinal surgery (during which he became paralyzed from the waist down).
A critical issue in the case was when the doctor learned of Elliott’s decreased ability to move his legs. Although the medical records indicated the doctor was at the patient’s bedside at 9:00 a.m., he denied that when called to testify for the purposes of cross-examination at the trial. Plaintiff’s counsel asked the doctor only one question: Whether he was at Elliott’s bedside at 9:00 a.m. on December 21, 2009? When he responded that he was not, they attempted to call Nurse Sullivan as the next witness. Counsel stated that she was a nurse at the hospital, and that she would testify that she was indeed with the doctor at the patient’s bedside at 9:00 a.m. But, the trial court excluded her testimony, because her name was never disclosed during the lengthy discovery period.
The Court found that the judge had erred holding that exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission. In fact, that is true even when there is no excuse for a party’s failure to faithfully engage in discovery in compliance with an extended discovery deadline. Instead, if a trial court believes that a party has failed to properly comply with discovery, the only appropriate remedy is postponement of trial or a mistrial. When objection is made to the testimony of certain previously undisclosed witnesses, the proper procedure when they were called to testify was not to object to their testifying or to the admission of their testimony, but to move for a postponement of the trial for a sufficient length of time to enable the defendant to interview them, check the facts to which they would testify, and, if indicated, arrange to secure rebuttal evidence or to impeach them.
This case illustrates strong bias against exclusion of material evidence at trial, no matter what the circumstances.
The California Air Resources Board has recently rejected Volkswagen’s plan to fix the cars involved in the emissions scandal stating that the proposal contains “gaps,” lacks “sufficient detail,” and does “not adequately address overall impacts on vehicle performance, emissions and safety.” Volkswagen, whose North American assembly plant is located here in Chattanooga, has 45 days to propose a different solution. Fortune reports that California’s rejection of Volkswagen’s proposal to fix the defective vehicles “increases the likelihood that VW will have to buy back hundreds of thousands of vehicles that breach U.S. limits on emissions, substantially raising the cost of rescuing its reputation in the U.S.”
The California Air Resources Board is scheduled on Feb. 2nd to decide on additional plans for repairing another 85,000 VW, Audi and Porsche cars.