Articles Posted in Truck Collisions

Automobile body shops filed several complaints against insurance companies, including State Farm, alleging violations of state tort law as well as violations of the Sherman Act’s antitrust laws, which prohibit certain anti-competitive conduct. The claims were based upon allegations that that the insurance companies engaged in a two-tiered scheme designed to depress the shops’ rates for automobile repair. First, according to the allegations, the insurance companies scheme was designed to set an artificial price, or “market rate.” The second part of the scheme was designed to force the body shops into accepting the artificially set rate by steering the insureds who sought automotive repairs away from the non-compliant shops that charged more than the artificial rate. The lower court initially dismissed the complaint for failure to state a claim upon which relief may be granted, based upon an assertion that the automobile body shops failed to plead facts that directly supported the existence of a violation of antitrust laws. The Court of Appeals reversal of the dismissal was due in part to the standard of review for dismissal for failure to state a claim, which requires the court to accept factual allegations as true and draw all reasonable inferences in favor of the claimant, and viewed in the light most favorable to the plaintiffs.

The first part of the scheme was essentially a horizontal price fixing agreement, where competitors unlawfully came together to form an agreement to set a price at which all agreed to sell a good or service. The Sherman Act makes unlawful “any unreasonable contract, combination, or conspiracy in the restraint of interstate trade or commerce. As stated above, the body shops plead facts supporting the circumstances from which the shops infer the existence of an agreement, rather than facts that directly supported the existence of the agreement. The circumstances pled by the body shops demonstrated parallel conduct, adoption of a uniform price, and uniform practices. When pleading antitrust violations based upon a horizontal price fixing agreement, plaintiffs usually must demonstrate that such a contract or conspiracy is unreasonable and anticompetitive, otherwise known as the “rule of reason” test. However, especially egregious violations are often classified as “per se” violations which are “conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” But, as was the case for the body shops, where no direct evidence of an agreement has been proffered, an antitrust claimant “must show parallel conduct” as well as “further factual enhancement.” Thus, because the body shops “readily and plausibly” established an inferred agreement, the Court of Appeals found that they pled facts sufficient to survive a motion to dismiss for failure to state a claim.

The second part of the scheme, which was essentially a boycott, also runs afoul of the Sherman Act. The Sherman Act’s prohibition against any unreasonable contract, combination or conspiracy in the restraint of trade extends to boycotting, which the court defined as “a method of pressuring a party with whom one has a dispute by withholding, or enlisting others to withhold, patronage or services from the target.” So, while boycotting is not a classical form indicative of a concerted effort amongst competitors, it is, by definition, an agreement to take action, or refrain from doing so. While the Court of Appeals only found that the first part of the scheme amounted to a facial violation, the Court found that the allegations regarding the boycotting scheme amounted claims sufficient to amount to a per se violation.


An announcement today by the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) confirms that new federal regulations go into effect today, July 1, 2013. U.S. Transportation Secretary, Ray LaHood, former congressman from Peoria, Ill., stated that “[t]hese rules make common sense, data-driven changes to reduce truck driver fatigue and improve safety for every traveler on our highways and roads” and that [s]afety is our highest priority.” In short, the new regulations were designed to prevent truckers from becoming tired and fatigued on their trucking routes across America.

Now, any driver who operates a commercial motor vehicle (CMV) is subject to these new regulations. A CMV is defined as any vehicle used in business that travels interstate (across state lines) and matches one of the following descriptions:
• weighs 10,001 pounds or more;
• has a gross vehicle weight or gross combination weight or 10,001 pounds or more;
• is designed or used to transport 16 or more passengers (including the driver) for financial compensation; or • is operating in interstate or intrastate (within a single state) commerce and is transporting hazardous materials in a quantity requiring signage.

The regulations that became effective today were published back in December 2011 in order to give trucking companies and their employees time to digest the hour of service and related rules, and work toward their implementation and enforcement. The effective date of the regulations was February of 2012 and today is the actual day of compliance. The argument for these rules is that unregulated trucker operation of CMVs without hours of service would lead to more truck crashes, driver fatigue and chronic health problems. The FCMSA has stated that these rules are the product of years of research and truck driver input and should “save 19 lives and prevent approximately 1,400 crashes and 560 injuries each year.”
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Most, if not all, heavy trucks traveling on the roads of Georgia have an electronic control module (an ECM), popularly known as a black box. For fans of CSI (Crime Scene Investigation), the black box in a truck is a forensic investigator’s dream and a truck driver/employer’s nightmare. This is because the ECM contains independent objective concrete evidence that can be downloaded by a computer program and analyzed to determine and pinpoint the exact actions or omissions of the truck driver, which proximately caused or led to serious injuries or death of innocent victims.

The ECM in a commercial truck contains four types of data: fault data; historical data; calibration data; and event data. This data can be extremely important to establish fault against the truck driver and his/her employer. Once this data is analyzed and interpreted by an accident reconstructionist expert, it can become admissible into evidence at trial. While the truck driver may fib or outright lie at trial to save his job, reputation or assets, the driver can’t escape the truth hidden within the electronic control module. The ECM is not biased and does not have a financial interest in the outcome of litigation; rather, the ECM is one of the strongest tools a plaintiff’s attorney can utilize to extract the truth, which will help you to settle a case or win at trial.

Different trucks have different engines, and different engines have different ECMs that are configured in different ways. These differences mean that my heavy truck accident reconstruction expert must utilize the correct software for the specific manufacture of engine. Needless to say, ECM extraction is not cheap; however, experienced truck accident attorneys can locate and employ the most efficient, reputable experts to do the job right.

Depending on the make, model, year and engine, different ECMs will contain different data. Generally, the data on the black box may include hard brake data (the last stop prior to the collision), truck speed, engine RPM, brake usage, axle ratios, throttle and cruise on/off. After the data is downloaded by computer, it can printed in graph form and analyzed. Most data may center on a single event or the duration of the data may last over 60 seconds of truck operation.
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On February 1, 2012, a U.S. Congressional Committee rejected a proposal to increase the weight limit of trucks operating on the nation’s highways. The proposed plan in the house committee had sought to raise the weight ceiling for truck-weight limits from 80,000 pounds to 97,000 pounds. Advocates of the plan including trade associations which argued that increasing the weight limit would increase the amount of goods transported and lessen the number of trucks on the highways. Opponents, including railroads and travel and safety groups, argued that increasing the weight load would create further risks for car motorists and increase the wear and tear and need for repair on the nation’s highways and bridges. The decision of the committee was critical to the bottom line of companies that rely on big trucks to transport their goods.
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A truck motorist carrying metal fence equipment in Jonesboro, Clayton County, Georgia has been charged with the death of an innocent bystander on Tara Boulevard. Cynthia Cameron, a 57 year old woman, was walking on the side of Tara Boulevard in Clayton County this past Monday when a metal pole extended out from the cab of a moving truck and struck her with great force causing severe injuries to her spine that resulted in her death. An eyewitness reported that “[t]he force was so forceful it knocked her shoes off.”

The driver of the truck, Leonard Kleckley, was driving to a job when the incident occurred. The load on the truck contained fence equipment including metal poles, one of which extended 25 inches (over 2 feet) on the right side of the truck cab. The driver worked for D.J’s Services of Forest Park, Georgia.

Mr. Kleckley was arraigned in the Magistrate Court of Clayton County and was denied bond as he was on probation at the time of the incident. Kleckley has been criminally charged with second degree vehicular homicide, a misdemeanor charge in Georgia under O.C.G.A. 40-6-393(c). The crime is considered a misdemeanor inasmuch as Kleckley did not intend to kill Ms. Cameron and is punishable by $1,000.00 fine and/or confinement for up to a year. However, Mr. Kleckley (and his employer) may also be subject to civil penalties. By way of note, the employer may be liable for the act or omission of his employee under Georgia law.

Under Georgia law, a motor vehicle with a load is prohibited from operating on the road unless the load is adequately secured to prevent shifting or dropping of the load under O.C.G.A. 40-6-254. Additionally, under O.C.G.A. 40-6-248.1, no vehicle shall be driven on the road unless the vehicle is loaded, covered or constructed so as to prevent any portion of its load (i.e. fence post) from dropping, escaping or shifting so as to be a hazard to others.

The news article does not indicate what type of truck that Mr. Kleckley was operating at the time of the incident. For our purposes, we will assume it was not a tractor trailer. In the instant incident, an independent eyewitness actually saw the extended metal pole hit the victim. The pole extended a little over two feet. The facts are sparse as to whether or not the victim was walking quite close to the roadway or whether the truck driver was operating quite close to the edge or off the roadway. If the witness testifies that the victim was not walking on the road at the time of the tragedy, then I believe the estate of the victim will meet the burden of proof that the truck driver actually caused the death of Ms. Cameron. Conversely, if the witness testifies that the victim was actually walking on the roadway, then the result may be markedly different.

I would assume that the victim’s family will file a suit for damages in a civil court for the death of Ms. Cameron. If Ms. Cameron had a will at the time of the death, then the will should specify the executor of her estate who would be authorized to file suit. If Ms. Cameron died without a will, then the immediate family and/or next of kin could ask the probate court judge to appoint an individual to act as the administrator of the estate to file such suit.
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