Articles Posted in Observations

A recent report from the U.S. Government Accountability Office found that about 563,000 drivers in the DOT commercial drivers database also were rated as 100% disabled by other U.S. agencies. A House Transportation subcommittee had asked for a study of the scope of the problem of medically unfit commercial drivers on the road. The GAO’s report acknowledged it cannot give a precise answer, but their initial study raises concerns. A look at the data show that about 85% of these drivers appear to have active CDLs.

The report highlights a few egregious examples:
A Virginia truck driver, on disability since 1995 for multiple medical problems, including an amputated leg. The driver stated that the doctor tested his ability to use the prosthesis by pushing the doctor around the office in a rolling desk chair. The doctor has since had his medical license revoked. This driver had both Tanker and Hazmat endorsements since the disability. The driver’s truck rolled over in a 2006 incident when his load shifted. Virginia renewed his CDL with a Tanker endorsement in 2007.
A Maryland truck driver, on disability since 2001 due to severe lung problems, whose CDL was last renewed in 2007. The driver submitted a medical certificate from a doctor, but the medical examiner indicated it was forged.
A Virginia school bus driver on disability since 1998 for multiple schlerosis. This driver had never undergone a CDL medical examination. Virginia last renewed the driver’s CDL in 2006. This driver was cited as the cause of a three-vehicle collision that injured 16 people in 2006.
A Florida bus driver on disability since 1994 for lung problems. The driver admitted to investigators that he occasionally blacks out. The driver continues to serve as a substitute driver.
This study appears to only show the tip of the iceberg when it comes to medically unfit truckers. The study only identified the number of drivers that had applied for a U.S. government disability rating. The study could not identify drivers that had not applied for benefits, but were medically unfit, what I would call the “walking wounded.”
Given the inability to weed out the drivers that are in current databases as 100% disabled, I don’t have great confidence in the current system, which allows drivers to pick the doctor they want to examine them.

The anti-justice U.S. Chamber of Commerce’s prestigious-sounding “Institute for Legal Reform” released its annual survey ranking state legal systems’ fairness to corporations. South Carolina ranked 43rd. For once, a low ranking is good news for South Carolina’s citizens. You see, some years ago, the U.S. Chamber was taken over by the Big Business forces who want to make sure that those who harm others don’t have to pay for that harm in court.

The “study” is based solely on the subjective perceptions of Big Insurance’s defense lawyers. No other participant in the legal system, such as plaintiff’s lawyers, judges, or law professors, were asked for their opinions. Overall, even defense lawyers had to give South Carolina a “B” for its fairness to corporations.

John Haber, Chief Executive Officer of the American Association for Justice, responded to the so-called study. “At best, the U.S. Chamber [of Commerce]’s legal climate ranking is shoddy, ill-advised research. At worst, it’s propaganda aimed at destroying the civil justice system for corporations that refuse to be held accountable for their negligence and misconduct. . . . . even U.S. Chamber’s own pollster has previously admitted there is no way to measure a state’s legal system. The U.S. Chamber’s goal is to make sure people can’t get justice in the courtroom. This junk study is just one way they try to dupe the masses into believing there’s a problem that doesn’t exist.”

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One of the reasons that it is so important to fully compensate injured people is that the injured person may have a lot of financial responsibilities from the incident that you may not be aware of.

For example, after the injured person’s attorney reaches a settlement with an at-fault driver, most members of the public assume that the money, minus attorney fees and costs, goes straight to the injured victims. But very often, the wreck victim still must pay back the costs of their medical treatment to an insurance company or the government.

If a health insurer, Medicare, or Medicaid paid for the initial treatment, there is generally a requirement to repay these insurers for the costs of treatment. This is called “subrogation.” In the case of the health insurer, this is part of the contract between the person and the company. For Medicare and Medicaid, it is part of the law that created these programs. There are some exceptions to when an injured party must repay the cost of treatment, but these exceptions are limited.

What any insurer can do, however, is voluntarily waive or reduce the amount they will accept. Part of our job for our clients is to obtain these reductions whenever possible. It’s important. Some insurers and state Medicaid programs routinely do this in cases where it will be a severe hardship, while other insurance companies take a hard line. Which brings me to a case that recently came to my attention.

Debbie Shanks, who lives in Missouri, was a married mother of three who was severely injured in a crash with a tractor trailer. Mrs. Shanks was severely brain damaged and requires constant care. Mrs. Shanks was awarded nearly $1 million following a lawsuit against the trucking company. Of this, $417,000 was put into a trust for her health care. But instead of having this money to care for her in the future, Wal-Mart’s health insurance plan insisted it should have the money – all of it. Every penny of it. Wal-Mart was her employer at the time of the wreck. Mrs. Shanks was insured through the retail giant’s plan. Wal-Mart had paid $470,000 for her care and wanted to be repaid.

The Wal-Mart plan’s contract language stated that the company was first in line to be paid in the event she sued someone else and won. Wal-Mart’s plan gives no credit to the employee or her attorney for the expense and effort of bringing a lawsuit to recover money for Wal-Mart. Her attorney explained the extreme circumstances to Wal-Mart, but they insisted that they would not make an exception. Their reason: it wouldn’t be fair to the other employees, who pay health care premiums. Wal-Mart sued to recover the money paid and won, although the court limited its recovery to funds actually in the health care trust. The Shanks appealed the decision as far as they could, but on March 17, 2008, the U.S. Supreme Court declined to hear their appeal.

As I wrote this blog post, I found that Wal-Mart gave the Shanks a too-late surprise. After fighting the Shanks all the way to the Supreme Court, after the Shanks divorced to increase her Medicaid eligibility, after wasting years and years in litigation, Wal-Mart on April 1 announced that it had decided to do what it had the option to do from the very beginning: not take the money from this innocent woman. It even offered this apology: “We are sorry for any additional stress this has put on the Shank family.”
Thanks, Wal-Mart.

Thanks to cnn.com and the Wall Street Journal for reporting.

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It is a horrifying experience when you have been seriously injured in an auto accident, or when a loved one has been lost in a traffic accident fatality. It can be especially traumatic when you don’t completely understand where you go from here. There are important steps to take and questions that need to be asked. It is also important to know what not to say and do. These things have a major role in determining the outcome of the legal and insurance claims involved. The reason this is so important is that that outcome can affect you and your family for the rest of your life. Remember, insurance adjusters have special training, and their job ultimately is to protect their employer – the insurance company. Each day, my staff and I help unsuspecting people to avoid being victimized by underhanded insurance tactics – tactics designed to prevent full compensation being paid to people with legitimate claims. Not knowing how to deal with those tactics can destroy your claim for payment of medical bills, for lost income, for physical pain, and for your other losses and harms. To make sure that you are treated fairly, you should get legal advice from an experienced injury attorney right away. In the short term, make sure that you do not give any recorded statements, or sign any insurance company documents before your legal rights have been fully explained to you by an attorney who successfully handles a lot of injury cases.

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A wreck in South Carolina involving a tractor trailer can have awful consequences. Big rigs can weigh over 80,000 pounds. The typical four-wheeled car weighs just 3,000 pounds. Because of the massive size of eighteen wheelers, a wreck with one of these monsters can easily cause serious injuries and even fatal results.

When you or a family member is in a wreck with a tractor trailer, your losses and injuries can be devastating. Depending on the circumstances, you may be able to recover compensation for your losses by bringing a legal claim against the responsible parties. However, in the case of a tractor trailer wreck, there are unique problems with preserving the evidence. Those problems mean that prompt action is critically important.

Also, there are special laws which regulate the trucking industry. Those special laws are designed to protect the public from the devastating injuries that can result when tractor trailers are not operated extremely carefully. Make sure the South Carolina lawyer you choose is well-versed in the particulars of tractor trailer litigation.

The bottom line is that if truck drivers or trucking companies are careless, awful things result. Eighteen wheelers cause a highly disproportionate amount of highway fatalities. It is extremely important that those who operate trucks are held responsible when they create harm. When they are held responsible, it makes it less likely that the same carelessness will be repeated. That means safer roads for all of us.

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I awoke this morning with devout thanksgiving for my friends, the old and the new.

Ralph Waldo Emerson

Here’s wishing each of you a happy and safe Thanksgiving holiday. I am thankful everyday for the opportunities I have to do the work that I do. It is a rare privilege to be able to earn a living while at the same time helping people, and that is something I always remember. Best wishes!

Thousands and thousands of trucks are on the roads – every minute of every day. By some estimates, nearly one out of four of those trucks have safety violations. These safety violations put all of us at risk.

Wrecks involving tractor trailers are not just like any other motor vehicle accident. They are very different, and failing to recognize this can create huge problems for the injured person’s legal claims. Truck accident cases are unique, insofar as there are special laws and regulations which come into play only when these large vehicles are involved. Those laws and regulations are designed to protect the traveling public. The problem is that the trucking companies ignore these safety rules all the time. Understanding exactly how these safety rules work, and how to shine light on exactly what led to a collision, is critical. In the aftermath of a tractor trailer accident, it is important to know exactly how to proceed – and to be fully prepared to act immediately.

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Why all the emphasis on tractor trailer and truck accidents? The reason is simple. Relatively few passengers and drivers in four-wheeled cars and trucks survive when they are hit by 70,000 pound tractor trailers. Regular automobiles just aren’t designed to hold up after a collision involving a huge tractor trailer. Besides their sheer weight, big trucks become even more dangerous when one or more of the following is brought into the mix:

Tailgating
Failing to Properly Inspect Trucks
Jackknifing
Aggressive and Poorly-Trained Drivers
Speeding
Alcohol and Drug Abuse by Drivers
Illegal Driving Schedules Which Create Exhausted Drivers

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Today, I received an email from Katie, who comes from a family with three generations of owner-operators. Katie, quite naturally, sees things from the drivers’ perspective. With Katie’s permission, here are some of her comments:

Being around trucks for a good part of my life, I have plenty of FIRST HAND experience to tell you about how it REALLY is out on the road. Truckers work HARD, and they work so hard that get tired after countless hours of driving. So they want to pull over on a safe birm to get some sleep. But no, they can’t, there are no parking signs on the side of the road, and they will get a fine. So they are forced to try to find the nearest truck stop … possibly causing them to get into an accident or go off the road. Another point that I would like to make is that truckers have to pay road tax, as well as tax on their fuel. They have more of a right to be out on the road than any pedestrian in a four-wheeler. If truckers stopped for one day, the world would go crazy. There would be no gas, or fuel, no groceries, medicine, oxygen, hospital supplies, books, anything needed or not a necessity. You should thank them for risking THEIR lives everyday. People in cars act totally oblivious to trucks on the road. They simply don’t see a 80,000 lbs tractor and trailer next to them when they side swipe them. They choose to go around them while making wide right hand turns, or they slam on their brakes at a just-turned yellow light, while the truck has a 80,000 lbs. jag to stop in seconds. It can’t happen, they can’t stop. Most truckers are the most respectful, down home, do anything for you kind of people. Truckers are only out there to make a living like everyone else, work hard, and keep America going. Remember “Without Truckers, America Stops”

Is it easy being a professional driver? No, it’s not. It’s incredibly tough. Even so, it is critically important that those in the business always remember to safely operate their 80,000 pound tractor-trailers for the very reason that Katie brings up. Big trucks just can’t stop in a few seconds. I have a feeling that the drivers in Katie’s family might just be some of the good guys. Let’s hope and pray that they stay safe out there.

The Federal Motor Carrier Safety Administration (FMCSA) is pushing ahead with a program to install satellite tracking devices in tractor trailers that are participating in a test program. FMCSA’s tracking system is a way to allow free access to U.S. highways by Mexican truckers.

In September, the Senate voted to prohibit spending on the test program, but the measure has not yet been passed by the full Congress. Despite the Senate’s action, FMCSA is pushing forward. FMCSA is spending $367,000 to provide the devices to the trucking companies before any measure passes Congress.

Following the passage of NAFTA, trucks from the U.S. and Mexico were allowed to pass a short distance (about 20 miles in most areas) into each country to make deliveries more efficient. Trade groups have pushed for free travel, but safety advocates have expressed concerns over lax enforcement of safety regulations in Mexico.

FMCSA appears to be using the program to pacify the concerns over truck safety that prompted the Senate to take a stand against allowing Mexican truckers into the U.S. interior. The test program will pay for 100 devices to be given, apparently free of charge, to companies wishing to participate. What’s in it for the big trucking companies? Quite simply, it means that Mexican drivers will gain access to the U.S. interior.

The problem is that FMCSA appears to be positioning to use the record of the test program volunteers to prove the safety of the industry as a whole. Of course, no one expects the companies with abysmal safety records to volunteer now. Instead, they can wait until the FMCSA declares the test program a success and access to our roads is granted to all Mexican truckers. FMCSA should stop wasting our tax dollars on a rigged test!

What I am opposed to are unsafe truckers. Unfortunately, the Mexican government has done far too little to enact and enforce safe trucking regulation. As a result, there is no incentive for most Mexican trucking companies to bring their drivers and trucks up to U.S. standards. Until FMCSA can honestly assure the American public that Mexican trucks are as safe as U.S. trucks, they have no business on our roads.

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