Articles Posted in Legal Resources

South Carolina’s quintessential lawyer-blogger, Myrtle Beach’s Dave Swanner, has been blogging on legal topics by way of his South Carolina Trial Law Blog for quite a while now. I always appreciate the high quality of the information that Dave offers.

One page on his blog in particular is a life-saver for South Carolina attorneys. Questions SC Lawyers Want Answered collects together Dave’s blog entries that offer some of the basic information that South Carolina injury attorneys frequently need to have at their fingertips – calculating witness fees, the damages cap on Tort Claims Act cases, maximum compensation rates in South Carolina workers’ compensation cases, the critical case decisions affecting how punitive damages are awarded in South Carolina, recovering depreciation for vehicles, the maximum that doctors and hospitals can charge for medical records, the rate for calculating post-judgment interest on damage awards, and which South Carolina court takes priority when there is a scheduling conflict.

So, if you are a South Carolina attorney who is in occasional need of answers to these kinds of questions, or just a curious member of the public, now you know where to turn.

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Time is of the essence in every trucking case involving serious injury or death. In the aftermath of a sudden accident involving a tractor trailer, it is absolutely crucial for the attorney representing the injured person (or that person’s family) to personally inspect both the truck and the trailer. Extensive photographs need to be taken. The entire truck should be thoroughly examined. Crucial evidence can often be uncovered under the seats, in the glove compartment, in the sleeper unit – anywhere in the truck. As we have talked about in the past, the trucking company and its insurance company will almost certainly have already closely inspected the truck and the trailer. Sometimes they miss things. Sometimes the things they see as important don’t include all the truly important information that can be discovered during an inspection. It is crucial to determine what might have been moved or removed during the trucking company’s “rapid response” inspection. You’ll want to find out everyone who has been in the truck since the collision, and find out what communications equipment was in the truck at the time of the collision.

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When a truck accident suddenly takes place, it is important for the injury attorney to immediately begin an investigation. There is no time to waste. Important information must be preserved, and valuable evidence must not be allowed to disappear – which can easily happen if you are not proactive. It is important to immediately secure the names, addresses, and telephone numbers of responding law enforcement officers, and any and all other witnesses. In addition, of course, it is necessary to obtain the accident report. It is also vitally important to locate and inspect the tractor trailer (we’ll explore that more in a later post), and to obtain all the numbers and information on the truck door and on the trailer. This can be critical information. It is often important to employ an experienced investigator to go out and interview the witnesses right away. Accident reconstructionists will usually be retained to immediately begin the process of reconstructing the collision. An abundance of information can be gathered about the trucking company, using the internet – particularly the United States Department of Transportation’s online resources. The trucking companies’ own websites can often be another treasure trove of information.

Listen carefully to any attorney you may consider hiring to represent you after a truck accident. These cases are special. They require immediate action and an experienced hand. Make sure your case is being handled the right way. There is much at stake.

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Truck accident cases are very different from standard auto accident cases in a number of ways. And, since truck cases are so different, they have to be handled differently by the injury lawyer. Today, I want to tell you about why it is so crucial to move quickly to protect your interests after a major wreck involving an 18 wheeler or other large commercial vehicle.

Understand this: Immediately after a catastrophic accident, there is almost always a battle going on – a battle over information. This information may ultimately decide whether or not you will be fairly compensated. Put simply, information is power. The side that has an advantage in gathering information often has the upper hand. Experienced truck injury lawyers know this, and the huge trucking companies know this. After a trucking accident causes injuries or fatalities, the trucking companies know that they are facing a serious situation in terms of compensating those they have injured. In recent years, the trucking companies and their lawyers (many of whom specialize in making sure comparatively little – or no compensation is paid to injured victims) have put into place so-called “rapid response” teams.

These days, almost every major trucking company (and every major truck insurance company) has a 24-hour rapid response team which goes into motion the moment they learn of a major wreck. Within 24 hours, the trucking company and its insurer will send investigators to interview police officers and eyewitnesses. They send engineers to inspect the tractor trailers and passenger vehicles. Plus, they send accident reconstructionists to measure and survey the scene. Why is all of this done, you may ask? It is done to gather and spin information in such a way so as to limit or destroy the injured person’s right to recover compensation.

Why do the trucking companies and the insurance companies spend all the money and resources to do this? Because it works, that’s why.

Am I saying all is lost if you haven’t hired a qualified attorney the moment a truck accident takes place? Of course not. But, to overcome the advantages that the responsible trucking company will set in motion for itself, you need to hire an experienced truck accident attorney to get to work for you sooner rather than later. If you can hire the right lawyer immediately, then you should do so.

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As I have mentioned many times before, South Carolina truck accident cases are a different beast. They are not like automobile accident cases in many respects. Here, you will find a number of sample interrogatories that can be considered for sending to a truck company which helped cause an accident.

1. Identify all persons known to the Defendants or Defendants’ counsel to be witnesses concerning the facts of the case and indicate whether or not written or recorded statements have been taken from the witnesses, and indicate who has possession of such statements.

2. For each person known to the Defendants or Defendants’ counsel to be a witness concerning the facts of the case, set forth a summary sufficient to inform Plaintiff of the important facts known to or observed by such witness and provide a copy of any written or recorded statements taken from such witness.
3. Please set forth a list of photographs, sketches, charts, graphs, notes or letters of any communications, and any other written or computer generated files, plats, videotapes, audiotapes, pictures, drawings, animations, artist’s renditions, diagrams, notes, memoranda, measurements, statements, correspondence, texts, records, reports, electronic data files, e mail communications, .jpg files, bitmap files, .tiff files, .gif files, or any other electronic images, data, web pages, brochures, information packets, manuals, or other writings or recordings, materials or physical evidence or other prepared documents or physical evidence in possession of the Defendants or Defendants’ counsel that relate to the claim or defense in this case.

4. Set forth the names and addresses of all insurance companies which have liability insurance coverage for the truck and/or tractor and/or trailer and/or tanker involved in the accident, setting forth the number or numbers of the policies involved, the amount or amounts of liability coverage provided in each policy, and stating whether such insurance policies contain the MCS-90 endorsements or equivalent endorsements required by law.

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If there is one overall message that I want to convey through this blog, it is that tractor trailer accidents are NOT just like a garden-variety automobile accident case. They are very different.

As a result, trucking cases need to be handled differently by the injured person’s lawyer. One area of a trucking case that is vastly different is the area of discovery. Lawyers who read this post know exactly what discovery is, but not everyone who may be reading this is a personal injury lawyer. “Discovery” is the pre-trial phase in a lawsuit, during which an injured person can request and obtain documents and other evidence. Written questions (so-called “interrogatories”) which a party may be required to answer, are one of the forms of discovery.

Below, you will find several sample interrogatories that can be considered for sending to a truck driver who caused an accident. This list is by no means exhaustive.

1. Please state your name, address, date and place of birth, driver’s license number, and social security number.

2. How many commercial driving licenses do you possess?

3. What endorsements, if any, do you have to your commercial driver’s license(s)? (For example, double/triple trailers endorsements; passenger endorsement; tank vehicle endorsement; hazardous materials endorsement).

4. List all other addresses at which you have resided during the past ten years and the dates at each location.

5. Please list all of your occupations or jobs and your employers’ names and addresses, the dates of employment, the general nature of your duties with each employment, your wage or salary at the time each job ended, and reasons for termination during the last ten years, starting with your present employer.

6. Have you ever received an out of service order?

7. Identify the owner of the vehicle you were operating during the collision, and if the collision was job related, please state whether you were engaged in your business, occupation or performing your job duties at the time of the incident referred to in the complaint.

8. Describe the commercial motor vehicle you were driving at the time of the collision.

9. Please state whether you or anyone on your behalf prepared a written report of such incident referred to in the complaint for your employer and, if so, state the date of such report and the names, addresses and representative capacities of all persons presently having possession of the original and copies of such report.

10. Have you ever been convicted, plead guilty or no contest to, or forfeited bond as to any of the following offenses:
(a) a felony involving the use of a commercial motor vehicle;
(b) leaving the scene of an accident involving a commercial vehicle;
(c) driving a commercial vehicle while under the influence of alcohol where your blood alcohol concentration was 0.04 percent or more, or driving with an unlawful alcohol concentration, or driving under the influence of alcohol as prescribed by state law;
(d) refusing to undergo such testing as is required by any state or jurisdiction; or
(e) driving a commercial vehicle while under the influence of a controlled substance?

11. Did you consume any alcoholic beverage of any type or any sedative, tranquilizer, or other drug, medicine or pill during the forty-eight (48) hours immediately preceding the incident referred to in the Complaint? If so, please state:
(a) The nature, amount and type of item consumed.
(b) The amount of time over which consumed.
(c) The names and accurate addresses of any and all persons who have any knowledge as to your consumption of these items.

12. List all the crimes of any nature, including minor traffic offenses, of which you have pled guilty, no contest, been convicted, or forfeited bond, give dates and offenses, including the sentence imposed, the court (including city, county and state).

13. Has the company for which you drive provided you with a copy of the Federal Motor Carrier Safety Regulations?

14. Have you entered or been committed to any institution, either public or private, for the treatment or observation of mental conditions, alcoholism, narcotic addiction, or disorder of any kind? If so, state:
(a) The name and address of such institution.
(b) The length of your stay and the dates thereof.
(c) The purpose or reason for your entry into such institution.
(d) The name and address of the doctor who treated you for such condition.

15. Have you ever had a license to operate a motor vehicle suspended or revoked? If so, state:
(a) When and where it was suspended or revoked.
(b) The period of such suspension or revocation.
(c) The reasons for such suspension or revocation.
(d) Whether such suspension or revocation was lifted.

16. Were you suffering from any partial or complete physical or mental disability, impairment, limitation, or restriction at the time of the incident referred to in the complaint? If so, with respect to each of such disabilities, etc., state:
(a) The nature of such disability, impairment, etc.
(b) The names, addresses and expertise of the physician or other medical practitioner who advised you that you were suffering from such disability, impairment, etc.

17. Were you the sole owner of the motor vehicle which you were operating at the time of the incident referred to in the complaint? If not, state:
(a) The names, addresses, and relationship to you of all persons or entities having an ownership interest in such vehicle at the time of the incident referred to in the complaint.
(b) Whether you were operating the motor vehicle at the time and place of the incident referred to in the complaint with the knowledge of any of those persons or entities listed by you in answer to the preceding Interrogatory Number 15(a) and if so, state the names of each of such persons or entities.
(c) Whether you were operating the motor vehicle at the time and place of the incident referred to in the complaint with the permission of any of those persons or entities listed by you in answer to Interrogatory Number 15(a) herein and, if so, state the names of each of such persons or entities and the date or dates on which such permission was granted.
(d) If there is any claim made that there was any limitation of permission upon your use or operation of the motor vehicle involved in the incident referred to in the complaint, state the facts upon which such claim is founded together with the names and addresses of all persons having any information with respect to such claim.

18. State the purpose of the motor vehicle trip you were on at the time of the incident referred to in the complaint.

19. State your time and point of departure as well as your exact destination, including names and address.

20. State the time and place of all stops and departures between the commencement of the trip and the time of the incident referred to in the complaint.

21. Describe with particularity exactly what occurred in the five minutes prior to the accident/incident which is the subject of the above action, what occurred during the accident/incident, and what occurred during the ten minutes after the accident/incident, including anything said by or to you, or by or to any party, witness, police officer, EMS, etc.

22. Were there any obstructions to your view immediately before or at the time of the incident referred to in the complaint? If so, describe the nature and location of each of such obstructions.

23. For each passenger in the vehicle at the time of the accident/incident, please state name, address, relationship to you, length of relationship and injuries sustained by each.

24. Indicate whether defendant contends the vehicle was operated or maintained in a reasonably safe manner and state the legal and factual basis for that contention.

25. State how many hours you have been on duty in the last 24 hours, and in the last 7 days.

26. State the number of hours you had been driving in the 24 hours, 48 hours, and 7 days immediately leading up to the collision.

27. Set forth your exact route, stop to stop, for the entire 7 day period leading up to the accident, including dates, times and locations.

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To be an effective advocate in a South Carolina truck accident case, it is imperative that the attorney for the injured plaintiff acquire and evaluate all the relevant data, so that an accurate picture can be formed for the cause of the wreck. There are numerous kinds of data and documents which ought to be obtained in order to do this. One well-known authority, David Nisenberg, gives us a list of documents which may be generated during the course of a trip by a commercial motor vehicle. You may want to consider this list when compiling discovery requests and non-spoliation letters.
Driver Logs
Accident & Incident Reports
Bills of Lading
Border Crossing Reports
Waybills
Cash Advance Receipts
Credit and Debit Card Receipts
Customs Declarations
Delivery Receipts
Dispatch & Assignment Records
Driver Reports
Expense Vouchers
Freight Bills
Fuel Billing Statements
Fuel Receipts
Gate Receipts
Data provided by global positioning & cellular systems
Inspection Reports
Invoices
Interchange Reports
International Registration & Program Receipts
International Fuel Tax Agreement Receipts
Lessor Settlement Sheets
Lodging Receipts
Lumper Receipts
On-board Computer Reports
Over/short & Damage Reports
Overweight/oversize Reports & Citations
Ports of Entry Receipts
Telephone Billing Statements
Toll Receipts
Traffic Citations
Transporter Receipts
Trip Permits
Trip Reports
Weight/scale Tickets

Andrew Chasan, a well-known Boise, Idaho personal injury lawyer, is the current chairman of the Interstate Trucking Litigation Section of the American Association for Justice. Andy recently published a checklist of key statutory requirements that attorneys can use in analyzing a trucking accident case. Here is an abbreviated version of Andy’s excellent checklist:

NEGLIGENT OPERATION The Code of Federal Regulations (CFR) rules for operating a truck under the following circumstances:
* When the driver is fatigued or ill. 49 CFR 392.3.
* When the driver is under the influence of drugs and/or alcohol. 49 CFR 392.4 and 392.5.
* During use and equipment inspection. 49 CFR 392.7.
* During the loading of trailers. 49 CFR 392.9.
* During conditions deemed hazardous (“extreme caution” requirement) 49 CFR 392.14.
* Methods of securing loads properly. 49CFR 392.9, 393.100-.136.

NEGLIGENT MAINTENANCE
The CFR requires:
* Well-maintained, clean and unobstructed lights, lamps and reflectors in specific places. 49 CFR 392.33, 393.11, .17-.26
* Installation and proper calibration of specified brake systems. 49 CFR 393.40.
* Minimum standards of brake performance. 49 CFR 393.52.
* Specific equipment inspection. 49 CFR 392.7, .8.

NEGLIGENT HIRING & RETENTION A truck driver may not be hired, nor may he operate a tractor trailer, unless certain criteria are met.
* All generated or collected records about the driver must be maintained at the trucking company’s principal place of business for as long as the driver is employed, plus three years after the truck driver no longer is employed. Records regarding the investigation into the safety performance history of the truck driver are part of what is required to be maintained. 49 CFR 391.51, .53.
* A road test must be passed by the truck driver. 49 CFR 391.31, .35.
* The driver’s driving record must be checked for the past three (3) years in every state in which the driver has held a license. 49 CFR 391.23(a)(1). (In South Carolina, the fee and procedure for obtaining a 10-year record is exactly the same for obtaining a 3-year record. A responsible South Carolina trucking company, concerned about safety would go ahead and request the 10-year record – MJ).
* Prior employers before the past three years must be contacted, and the trucking company must ask about the truck driver’s employment status and quality of work. Written notes must be retained regarding each contact. 49 CFR 391.23(d).
* Every 12 months, there must be a personal review with each truck driver about all driving violations in the preceding year. 49 CFR 391.25.
* A driver must be physically able and qualified to drive. 49 CFR 391.41.
* A driver must receive a certificate of medical examination. 49 CFR 391.43.
* Drug testing must take place pre-employment, post-accident, and randomly. 49 CFR 382.301, .303, .305.
* There are strict limits on the number of hours a trucker may drive or stay on duty. 49 CFR 395.3, .5.
* Truck drivers must maintain accurate and up-to-date logs of their time on duty and on the road. 49 CFR 395.8.
* Truckers generally may not drive after the end of the 14th hour, after coming on duty following 10 consecutive hours off duty. Truckers may not drive at all once a driver has been on duty 70 hours in any 8 consecutive days. 49 CFR 395.3.
* The driver must file the logs with the trucking company. 49 CFR 395.8(i).

DRIVER FATIGUE In addition to the hours on-duty and hours on-the-road restrictions:
* Truck drivers may not drive while the driver’s ability to drive is so impaired (or so likely to be impaired) through fatigue, illness, or any other cause, that it is unsafe for him to drive. 49 CFR 392.3.
* Drivers’ logs must be kept for at least 6 months. 49 CFR 395.8(k). (Trip receipts, bills of lading, dispatch and delivery orders, fuel, food and toll receipts may independently verify the truthfulness of the logs).
* On-board recorders may be used in lieu of (or in addition to) the driver’s record of duty status. 49 CFR 395.15. GPS systems used to track location and cargo may also assist in independent verification, but these records are often deleted by the GPS company within one or two weeks.
* Trucking companies must require all its truck drivers to comply with all the safety regulation requirements. 49 CFR 390.11. Most responsible trucking companies will audit its drivers’ logs periodically. A trucking company which fails to discover fraudulent logs – thereby failing to prevent violations of the Federal Motor Carrier Safety Regulations – can result in the imposition of punitive damages, if injuries result.

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Driver fatigue is a huge problem, which has reared its ugly head in tractor trailer accident cases for many years. The fact is, thousands of truck drivers just don’t get enough sleep. This puts all of us on the roadways at risk. Truck drivers have been known to fall asleep at the wheel, and even so-called “drowsy driving” can really impact the truck driver’s ability to drive safely. Many observers point to the pressure from trucking companies that drivers are sometimes subjected to, which may lead drivers to be on the roads and interstates for so many hours that there is not sufficient time for sleep.

This problem has been addressed by the Federal Motor Carrier Safety Regulations, which govern how drivers and trucking companies do business – to help ensure the safety of the public and the drivers themselves. For example, under the rules, a truck driver may not drive more than 10 hours, after having 8 straight hours off-duty, OR for any period of time at all, after the driver has been on duty for 15 straight hours, after having 8 straight hours off-duty. Also, a motor carrier (trucking company) may not require (or even allow) a truck driver to drive at all after 60 hours in any single week. In a similar vein, a truck driver also may not drive a truck, if he has been driving 70 hours in any 8-day period. You can find these regulations at 49 C.F.R. Section 395.3.

Truck accident lawyers have discovered numerous violations of these kinds of safety rules over the years after major tractor trailer crashes. It is critically important that when these safety rules are broken, that those responsible are held accountable, so that future wrongful death fatalities and life-shattering injuries don’t occur.

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Just like in every other tort case, the choice of where to file suit is important in making sure that an injured person can recover for all of the damages caused by the persons (or companies) who caused a tractor trailer accident. In fact, the choice of the forum can make the difference between a meaningful recovery for the injured person, and no recovery at all. For the most part, you always have the right to file suit in two places: (1) where the collision occurred, and (2) the defendant’s principal place of business. The law in different states may vary tremendously. For example, there may be caps on noneconomic damages. There may be a cap on punitive damages, or punitive damages may be disallowed altogether. Comparative negligence laws can also vary significantly. The statute of limitations may be different. Some states will not allow for joint and several liability, and some states may have a collateral source rule.

All of these factors play a huge role, and the skillful truck accident lawyer will know and compare each of these factors, before choosing a forum.

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