Truck accident litigation /
Saved in:
| Edition: | 2nd ed. |
|---|---|
| Imprint: | Chicago, IL : American Bar Association, Tort Trial and Insurance Practice Section, 2006. |
| Description: | xxxvi, 504 p. : ill. ; 26 cm. |
| Language: | English |
| Subject: | |
| Format: | Print Book |
| URL for this record: | http://pi.lib.uchicago.edu/1001/cat/bib/8369436 |
Table of Contents:
- About the Editors
- About the Contributors
- Preface
- Section I. Why the Commercial Motor Vehicle Case Is Different
- Chapter 1. An Overview of Trucking
- Truck Styles
- Straight Trucks
- Combination Vehicles
- Truck Dimensions
- Length, Width, and Height
- Weight
- Configurations
- Chapter 2. Commercial Driver's License (CDL) Requirements
- Drivers Required to Have a CDL
- Requirements for Drivers with a CDL
- Specialized Knowledge
- Specialized Skills
- Chapter 3. Records Retention
- Chapter 4.
- Part 1. Federal Motor Carrier Safety Regulations-Transition of ICC to FMCSA
- Part 2. Federal Motor Carrier Safety Regulations-DOT versus OSHA
- Highway Driving
- Loading and Unloading
- Part 3. Federal Motor Carrier Safety Regulations-Interstate versus Intrastate
- Section II. The Truck Accident Investigation
- Chapter 5. The Lawyer's Role
- Beginning the Investigation
- Vehicle
- Roadway
- Witnesses
- Post-Collision Investigation
- Conclusion
- Chapter 6. Data Collection: Site, Vehicle, and Electronic Evidence
- Introduction
- Fast-Paced Status Changes of Commercial Vehicles
- Assembling the Record
- Traffic Crash Reports
- Records-of-Duty Status (Driver's Logs)
- Fire and Rescue Reports
- Tow Company Records
- Miscellaneous Reports
- Documenting the Crash Site
- Methods of Documenting
- Environmental Conditions
- Crash Site Evidence
- Environmental Damage
- Tire Marks: Basics
- Tire Marks: Commercial Vehicles
- Roadway Evidence
- Longevity of Roadway Evidence
- Commercial Vehicle Braking
- Jackknife
- Swing-Out
- Air Brakes
- Antilock Braking Systems
- Crashes Between Passenger and Commercial Vehicles
- Commercial Tire Evidence on Passenger Vehicles
- Underride
- Event Data Recorders
- Commercial Vehicle Pre-Trip Inspection
- Scope of Pre-Trip Inspection
- Out-of-Service Criteria
- Documentation of the Pre-Trip Inspection
- Questions About Commercial Vehicle Inspections
- Inspection Environment and Constraints
- Inspection Protocol and Data Collection
- Conclusion
- Chapter 7. Spoliation of Evidence
- Overview
- Documents
- Electronic Data
- Document Retention Policies and Procedures
- Notice to Preserve/Motion to Preserve
- Experts and Spoliation
- Distinction Between First-Party and Third-Party Claims
- Negative Inference
- Spoliation in the Context of Pending Summary Judgment
- Plaintiff's Failure to Preserve Evidence
- Defendant's Failure to Preserve Evidence
- Practical Considerations, Recommendations, and Conclusions
- Appendix. Summary of State Holdings on Spoliation of Evidence
- Section III. The Truck Driver
- Chapter 8.
- Part 1. Special Driving Situations-Various Driving and Hazardous Conditions
- Night Driving
- Fog
- Winter Driving
- Hot-Weather Driving
- Mountain Driving
- Railroad Crossings
- Hazards
- Part 2. Special Driving Situations-Hazardous Materials
- Who Is Affected
- Quantity of Hazardous Materials
- References to Titles and Chapters
- Definition of Hazardous Materials
- Responsibilities of Hazardous Materials Shippers and Carriers
- Who Must Be Trained
- Training Requirements
- General Awareness/Familiarization
- Function-Specific Training
- Safety Training
- Security Awareness Training
- In-depth Security Training
- How the Commercial Driver's License Is Being Affected
- Part 3. Special Driving Situations-Highway Construction, Utility, and Maintenance Work Zones
- Work Zone Hazards
- Documentation for Work Zone Crash Litigation
- Responsibilities
- Summary
- Chapter 9. Human Factors: Driver Response
- Chapter 10. Truck Driver Fatigue-A Primer
- Background
- The Science of Sleep-The Basics
- What Is Sleep?
- The Stages of Sleep
- Circadian Rhythm
- Sleep Debt
- Microsleeps
- Sleep Disorders
- Fatigue Countermeasures
- Industry Pressures and Fatigue Awareness
- Conclusion
- Chapter 11.
- Part 1. Hours of Service Regulations-The Clock Is Ticking
- Overview of Current Hours of Service Regulations
- Applicability of Hours of Service Rules
- Work Limitations under Current Hours of Service Regulations
- Hours of Service Restrictions for Property-Carrying Drivers
- Hours of Service Limitations for Drivers of Passenger-Carrying Vehicles
- Driver Log Book Requirements
- Limited Exceptions from Hours of Service Regulations
- 100-Air-Mile Radius Drivers
- Driver-Salesperson Exception
- Oil Field Operations
- Retail Store Deliveries
- Agricultural Operations
- Construction Materials and Equipment
- Adverse Driving Condition Exception
- Civil and Criminal Penalties for Hours of Service Violations
- Civil Penalties
- Criminal Penalties
- Part 2. Hours of Service Regulations-Hours of Service Violations and Highway Accident Litigation
- Torres v. North America Van Lines, Inc.
- J.B. Hunt Transport, Inc. v. Bentley
- Dullworth Trucking Company v. Bulen
- Burke V. Maassen
- Boomsma v. Star Transport, Inc.
- Part 3. Hours of Service Regulations-Progressive Changes in Hours of Service Regulations
- Overview
- Chapter 12. Cargo Securement
- Chapter 13. Driver Responsibilities
- Requirements of Drivers
- Driver Responsibility and Protection under OSHA and STAA
- Section IV. The Commercial Motor Vehicle
- Chapter 14. Visibility and Conspicuity
- Chapter 15.
- Part 1. On-Board Electronics-Safety Systems and Devices
- Introduction
- On-Board Diagnostics
- Tire Pressure Monitoring
- Engine Control Modules
- Brake System Technology
- Speed Control
- Eaton Vorad SmartCruise
- Transponders
- Backup Systems
- Backup Systems: Alarms, Sensors, and Rear-Vision Cameras
- Collision Warning Systems
- Eaton Vorad Collision Warning System
- Lane Guidance
- Freightliner Corporation's Rollover Advisor & Control
- Driver Monitoring
- Conclusion
- Part 2. On-Board Electronics-Mobile Communications and Global Positioning Systems (GPS)
- The Global Positioning System (GPS)
- Use of GPS with Mobile Communications and Tracking Systems on Commercial Motor Vehicles
- Use in Dispatch and Driver Operations
- Satellite-Based v. Cellular-Based Mobile Communications and Tracking Systems
- GPS and Driver Performance Monitoring
- GPS and Trailer Tracking
- Use of Mobile Communications and Tracking Data in Truck Accident Litigation
- Use of GPS in Trip Recorders or Electronic On-Board Recorders (EOBRs)
- Use of Mobile Communications as a "Paperless Log"
- Use of Trip Recorders and EOBRs in Truck Accident Litigation
- GPS and Crash Event Data Recorders (EDRs)
- Use of Event Data Recorders (EDRs) in Truck Accident Litigation
- Electronic Data Retention Policies and Electronic Discovery
- Part 3. On-Board Electronics-Engine Control Modules
- Engine Control Module Collision Data Recording
- Accessing Collision Data in Engine Control Modules
- Engine Control Module Data Interpretation
- Chapter 16. Tires and Wheels
- Tire Basics
- Manufacturing Process
- Installation
- Repair
- Maintenance
- Underinflated Tires
- Belt Separation
- Valve Failure
- Wheels
- Special Situations
- Heavy Truck Tires and Wheels
- Tires
- Zipper Tears
- Dual Position Tires
- Steer or Front Axle Position Tires
- Retreaded Tires
- Wheels
- Date Coding and Tire Aging
- Conclusion
- Chapter 17.
- Part 1. Brakes Inspection-Overview
- Part 2. Brakes Inspection-Driver/Motor Carrier Perspective
- Chapter 18.
- Part 1. Inspection, Repair, and Maintenance-Fleet Perspective
- Inspection
- Part 2. Inspection, Repair, and Maintenance-Driver/Motor Carrier Perspective
- Intermodal Container Chassis
- Part 3. Inspection, Repair, and Maintenance-Roadside Vehicle Inspections
- Part 4. Inspection, Repair, and Maintenance-Post-Accident Commercial Vehicle Inspections
- Section V. Motor Carrier Responsibilities
- Chapter 19. Drug and Alcohol Testing for Commercial Motor Vehicle Drivers
- The Regulations That Define the Drug and Alcohol Testing Programs for DOT Operating Agencies
- Federal Regulations
- Regulation Interpretations
- The Common Regulations
- Unique Regulations
- The Mandatory FMCSA Drug and Alcohol Testing Program
- Drug and Alcohol "Prohibited Conduct Events"
- Adulterants
- Policy
- Individuals Who Must Be in an FMCSA Drug and Alcohol Testing Program
- Individuals Who Are Often Excluded from an FMCSA Testing Program
- Individuals Who Do Not Belong in the FMCSA Testing Program
- Mandatory Background Checks
- Other Prohibitions
- Employer Responsibilities
- Compliance
- DOT V. Non-DOT Testing
- Alcohol Test Review
- Drivers Must Be Knowledgeable about the Regulations
- An Independent Review Is Recommended
- Where to Get Help
- Representations
- Representing an Employer
- Representing Those Who Are Harmed in Accidents
- Representing a Driver
- Data and Information to Obtain and Review
- Sources of Information
- Release of Information
- At the Request of the Employee
- Court Orders and Other Legal Proceedings
- Relevant Regulations
- Confidentiality/Release of Information (Part 40.321, Part 40.323, Part 40.321)
- Releasing Information without the Employee's Permission (Part 40.323)
- Medical Review Officer Reporting Requirements (Part 40.327)
- An Employee's Right to Information from MROs, SAPs, Laboratories, and TPAs (Part 40.329)
- Other Parties Requiring Information from Employers and/or Third Party Administrators (Part 40.331)
- Chapter 20. Record Retention
- Chapter 21. Safety Rating Process
- Overview of Safety Rating Process
- Consequences of Adverse Safety Rating
- Mandatory Out-of-Service Order for Unsatisfactory Rating
- Loss of Business
- Increased Insurance Premium or Inability to Obtain Coverage
- Punitive Damage Liability Issues
- Appeals Procedures Under 49 C.F.R. Part 385
- Change of Rating Based on Corrective Action
- Chapter 22. Monitoring, Controlling, Supervising, Auditing, and Dispatching
- Chapter 23.
- Part 1. Driver Training-Formal Training Perspective: The Confusing World of Entry-Level Commercial Driver Training
- Part 2. Driver Training-Motor Carrier Perspective
- Chapter 24. Driver Qualification/Disqualification
- Qualifying Drivers
- General Qualifications of Drivers
- Driver Qualification File
- Disqualification of Drivers
- CDL Disqualification
- Section VI. Litigation Aspects
- Chapter 25. The Effect of Deregulation and NAFTA
- A Brief History of Regulation and Deregulation
- The Effect of Federal Deregulation in 1980
- The Impact of NAFTA
- Chapter 26. Understanding the Federal Motor Carrier Safety Regulations and Their Practical Application in Interstate Trucking Litigation
- Brief History and Purpose
- Who and What Is Regulated by the FMCSR
- Motor Carrier
- Employee
- Driver
- Person
- Commercial Motor Vehicle
- Federal Preemption
- Judicial Notice
- The Federal Motor Carrier Safety Regulations
- Part 40 Procedures for Transportation Workplace Drug and Alcohol Testing Programs
- Part 382 Controlled Substances and Alcohol Use and Testing
- Part 383 Commercial Driver's License Standards
- Part 387 Minimum Levels of Financial Responsibility for Motor Carriers
- Part 390 General
- Part 391 Qualifications of Drivers
- Part 392 Driving of Commercial Motor Vehicles
- Part 395 Hours of Service of Drivers
- Part 396 Inspection, Repair, and Maintenance
- Part 397 Transportation of Hazardous Materials; Driving and Parking Rules
- Part 399 Employee Safety and Health Standards
- Practical Tips for the Practitioner
- Negligence Per Se (Part I)
- Pleading Violations of the Federal Motor Carrier Safety Regulations as Negligence Per Se
- Chapter 27. Making Sure All Potential Defendants Are Sued
- Introduction
- Liability Insurance Company
- Tractor
- Trailer
- Multiple Tractor-Trailer Rigs
- Repairer
- Manufacturer
- Conclusion
- Chapter 28. Discovery Documents Generated During the Course of a CMV Trip
- Chapter 29.
- Part 1. Technology: What Exists, How to Use It, and Admissibility in Court-Heavy Vehicles and Simulation
- Introduction
- Limitations of Analytical Methods
- What Is a Computer Simulation?
- Simulation versus Animation
- Simulation versus Real Testing
- A Brief History of Computer Simulations
- Heavy Truck Simulations
- Automobile Simulations
- Simulation Applications
- Collision Modeling Programs
- Truck Dynamics Programs
- Car Dynamics
- Considerations When Using Computer Simulations
- Model Complexity
- Parameter Selection
- User Knowledge
- Admissibility
- Generally Accepted as Reliable (Frye)
- Peer-Reviewed
- Testing
- Known Potential Error Rate
- Conclusion
- Computer Simulation Programs Used Today
- Part 2. Technology: What Exists, How to Use It, and Admissibility in Court-Somebody's Watching: State Legislation and Recorded Data in Motor Vehicles
- Introduction
- What Are Recording Components and What Do They Do?
- The California Approach
- Following Close Behind-Enacted Legislation in Other States
- Other Approaches to Legislating on Recording Components
- Legislating on Recorded Data in Vehicles-The 2005 Virginia Session and Essential Issues
- The 2005 Virginia Session
- Issues a Comprehensive Statute Should Address
- Conclusion
- Appendix. Model Statute
- Chapter 30.
- Part 1. The Plaintiff's Perspective-Assessing the Case: Elements to Consider When Signing a CMV Case
- Part 2. The Plaintiff's Perspective-Essential Actions-Preserving the Evidence
- Client Interview
- Site Visit
- Vehicle Inspections
- Document Requests
- Conclusion
- Part 3. The Plaintiff's Perspective-Handling a Plaintiff's Truck Crash Case-What You Don't Know Can Hurt You...and Your Client
- Record Keeping
- Immediately Stop Default Spoliation
- Preserve Data from the ECM
- Obtain Public Record Documents About the Defendant
- Prepare for Trial
- Hire an Expert Reconstructionist
- Don't Rely Solely on the Police Report for Witnesses or for a Reconstruction
- Preserve the Car
- Fatigue
- Consider Fatigue as a Factor in Every Crash (Until It Is Ruled Out)
- Independent Contractor Defense
- Don't Be Afraid of the Independent Contractor Defense
- Training
- Obtain All Training Materials
- Shipper and Receiver Involvement
- Chapter 31.
- Part 1. The Defense Perspective-Can You Protect the Investigation?
- Introduction
- Attorney-Client Privilege
- Work-Product Doctrine
- The Privilege of Self-Critical Analysis
- Conclusion
- Part 2. The Defense Perspective-Spotting the Issues and Navigating the Conflicts in a Catastrophic Trucking Loss
- Introduction
- Illustration
- The Insurance Defense Lawyer's Questions
- Civil Defense with Criminal Charges against the Driver-The Need for Independent Criminal Defense Counsel
- Violation of Company Policy
- How the Prospect of Punitive Damages Affects the Defense Lawyer's Course of Action
- Claims in Excess of the Policy Limits
- Conclusion
- Part 3. The Defense Perspective-Defending the Dangerous Trucking Case: Trial Strategies to Short-Circuit the Plaintiff
- Introduction
- Operations
- Document Retention
- Be Prepared
- Trial Themes and Motions in Limine
- Trial Themes
- Motions in Limine
- Preventable Accident Determinations
- A Preventable Accident Ruling Is Protected by Privilege
- A Preventable Accident Ruling Is Protected from Discovery by the Work-Product Doctrine
- A Preventable Accident Ruling Is Inadmissible under Federal Rule of Evidence 401
- A Preventable Accident Ruling Is Inadmissible under Federal Rule of Evidence 403
- A Preventable Accident Ruling Is Inadmissible under Federal Rule of Evidence 407
- A Preventable Accident Ruling Is Inadmissible under Federal Rule of Evidence 701
- Negligent Hiring/Retention
- Substantial Similarity of Other Incidents
- Conclusion
- Part 4. The Defense Perspective-Loss Allocation in Light of the MCS-90 Endorsement
- Introduction
- History of the MCS-90 Endorsement
- The MCS-90 Endorsement
- Significant Aspects of the MCS-90 Endorsement
- Loss Allocation
- Indemnification Provisions
- Loss-Allocating/Coverage-Limiting Provisions in Insurance Policies
- Majority View
- Survey of Federal Circuit Courts Applying the Majority View
- Alternative (Minority) View
- Survey of State Court Decisions Applying the Minority View
- Conclusion
- Appendix
- Part 5. The Defense Perspective-Potential Vicarious and Independent Liability for Acts of Drivers: Theories and Defenses
- Respondeat Superior/Vicarious Liability
- Independent Claims of Negligence Against the Employer
- Negligent Entrustment
- Negligent Hiring and/or Retention of an Unfit Employee
- Conclusion
- Chapter 32.
- Part 1. The Trial-Developing and Utilizing the Theme
- Jury Selection in a Trucking Case
- Witness Examination
- Be Simple and Succinct
- Plan and Prepare
- Do Not Quarrel with the Witness
- Exhibits and Presentation
- Jury Instructions and Closing Argument
- Part 2. The Trial-Perspectives on Cross-Examination
- Pros and Cons of Using Technology in Cross-Examination
- Pros
- Cons
- Technological Advances in the Collection of Data for Accident Reconstruction
- Technological Advances Specific to Trucking
- Part 3. The Trial-Admissibility of Computer-Generated Evidence
- Overview
- Why Trial Lawyers Should Consider Using Computer-Generated Evidence
- Computer-Generated Evidence
- Definitions and Examples
- Presenting CGE at Trial
- Why Computer-Generated Evidence Is Effective at Trial
- When to Consider Using Computer-Generated Evidence at Trial
- Choosing a Firm to Create Computer-Generated Evidence
- Discovery Considerations for the Use of Computer-Generated Evidence at Trial
- Admissibility of Computer-Generated Evidence
- Real Evidence versus Demonstrative Evidence
- General Admissibility Standards for CGE
- Cautionary Instructions
- Analysis of Selected Computer-Generated Evidence Case Law
- Conclusion
- Part 4. The Trial-The Psychology of Jury Verdicts in Catastrophic Motor Vehicle Accidents
- Overview
- Jury Psychology
- Jury Selection
- The Nature of the Jury Pool
- The Voir Dire Process and Venue
- Written Juror Questionnaires
- Questioning of Jurors
- Exercising Challenges
- Opening Statements
- The Importance of Themes
- Developing Trial Themes
- Common Mistakes in Preparing Themes
- Demonstrative Aids and Graphic Evidence
- Effective Use of Graphic Evidence
- Witnesses
- Damages
- Conclusion
- Suggested Readings
- Section VII. Insurance Coverage Issues
- Chapter 33. The Plaintiff's Perspective
- Chapter 34. The Defense Perspective
- Federal Insurance Requirements
- Coverages Available to "Truckers" and to "Motor Carriers"
- The MCS-90 Form
- Indemnification and Insurance Issues
- The Defense Perspective
- Index