Georgia Injury Lawyer Blog

A Georgia judge struck a trucking company's defense in a lawsuit after it was discovered that the trucking company had destroyed evidence. In the case captioned Alegria v. Howard and AAA Cooper Transportation, Inc., pending in the Superior Court of DeKalb County, Georgia, Judge Courtney L. Johnson ruled that AAA Cooper Transportation had denied the existence of evidence from a so-called black box recording device on one of its tractor trailers that was involved in a wreck, and that the company destroyed the recording device. Among other things, black box recording devices can show whether a truck driver was speeding when a crash occurred and whether the truck had problems with braking.

The legal term for the destruction of evidence is "spoliation." It constitutes an obstruction of justice. The issue of spoliation comes up often in cases involving collisions with tractor trailers or trains. Typically, experienced trucking accident attorneys will send what is known as a spoliation letter to the company that owns or has control over the tractor trailer or train involved in a collision, instructing them to preserve evidence that is crucial to the case. Such evidence includes data or printouts from on-board recording devices and the recording devices themselves. In the lawsuit in question, Mr. Alegria's attorneys had sent a spoliation letter to the trucking company's risk manager thirteen days after the wreck. Judge Johnson ruled that the trucking company destroyed the black box recording device despite having received the spoliation letter.

The lawsuit arose when one of AAA Cooper Transportation's tractor trailers collided with a pick-up truck that had spun out on a rain soaked road and was sitting in the middle of the highway. The driver of the pick-up alleged that he saw the tractor trailer coming, but could not get his door open in time to exit the pick-up truck. He rolled down his window and waived his arms frantically at the driver of the tractor trailer before the tractor trailer crashed into the driver side of his pick-up truck. As a result of the collision, the driver of the pickup truck, Mr. Alegria, suffered an amputation of his leg and a separated shoulder. Mr. Alegria then sued the trucking company, alleging that its driver was negligent in driving too fast for the existing conditions and in failing to avoid the collision.

After investigation, it was determined that AAA Cooper Transportation began repairs to its tractor within days of the collision when it anticipated or should have anticipated that litigation would require that the truck's condition be preserved. The trucking company claimed that its truck did not have a black box. Mr. Alegria's lawyers disputed the claim by presenting the testimony of an expert witness, who had done accident reconstruction work for AAA Cooper Transportation previously. That expert witness testified that the type of truck involved in the collision had monitoring equipment, such as a black box recording device, and that it was the trucking company's practice to routinely download information from that device.

There was also an issue in the case regarding the existence of the tractor trailer driver's logs, which are records showing how many hours the driver has been on duty and driven during a particular time period. Initially, the trucking company took the position that its driver's logs had been destroyed. The company then changed its response, stating that the logs had been "inadvertently destroyed." Subsequently, the trucking company produced the driver's logs, stating that they had been "misplaced" but subsequently discovered. In view of the trucking company's multiple, contradictory responses, the judge determined that the trucking company and its responses lacked credibility.

When disputes arise over evidentiary issues in a lawsuit, such as the alleged destruction of evidence, the trial court has the discretion to punish the offending party or wrongdoer. The sanctions or punishment can range from ordering the wrongdoer to pay the other side's attorney's fees and court costs related to bringing the matter before the court to the most severe penalty, striking the wrongdoer's answer in the lawsuit. In support of her decision to issue the most severe penalty against the trucking company, Judge Johnson wrote, "The court does not believe that a company of such substantial size and means, in tandem with its learned counsel, could inadvertently make so many mistakes." Judge Johnson concluded that the trucking company destroyed evidence "to gain advantage over the plaintiff and prevent the plaintiff from procuring potentially damaging evidence regarding the issue of negligence." With its answer stricken, the trucking company is deemed at fault, and the only issue at trial will be the amount of damages to be awarded to Mr. Alegria. The trucking company stated that it intends to appeal the judge's decision.

As reported by the Idaho Press Tribune, eighteen year old Taylor Sauer was killed on January 14, 2012 when she rear ended a slow moving semi-trailer. Just minutes before the collision, she posted on her Facebook page "I can't discuss this matter now. Driving and facebooking is not safe!" Idaho State Police recovered Taylor's phone and are trying to determine whether Taylor was distracted by the phone at the time of her accident.

As we discussed in our blog on December 28, 2011, "distracted driving" is a leading cause of automobile accidents, particularly in younger drivers. According to the Idaho Press, Ms. Sauer's automobile did not leave any skid marks. This would likely indicate she never saw the truck. While it has not been officially determined that Ms. Sauer was distracted by her phone, all indications are this was an accident that could have been avoided.

According to her uncle, Brad Warr, this was not the first time she had been involved with distracted driving. A news story on www.ksl.com quotes Mr. Warr as saying "Taylor had done that in the past and we know, as a family, that probably or may have contributed to the accident."

Uninsured Motorist coverage is probably the most misunderstood coverage available when it comes to automobile insurance policies. However, it is one of the more important types of coverage that you should carry. Uninsured Motorist (UM) or Underinsured Motorist (UIM) coverage protects you from financial losses caused by another person who either does not have automobile liability insurance or does not have enough insurance to cover your injuries and losses. UM or UIM coverage can pay for injuries to you and passengers in your automobile caused by an at-fault driver who is considered uninsured or underinsured. A hit-and-run driver is also considered uninsured when that driver causes personal injury to you.

You might assume that because most states require that drivers carry minimum limits of liability insurance coverage, most drivers have it. Think again. In a recent study by the Insurance Research Council (IRC) entitled "Uninsured Motorist, 2011 Edition," the IRC estimated that roughly 1 out of 7 drivers are uninsured despite laws requiring drivers to maintain liability insurance. The magnitude of uninsured drivers varies from state to state. In 2009, the State of Mississippi had the highest percentage of uninsured drivers, with an estimated 28% of its motorists carrying no liability insurance. The States of Maine and Massachusetts had the lowest percentage of uninsured motorists at 4%. The State of Georgia had an estimated 16% of uninsured motorists in 2009, and the State of South Carolina had an estimated 11%. As experienced Georgia auto accident attorneys, we have personally observed the consequences of motor vehicle accidents involving uninsured or underinsured drivers.

Consider the consequences of being injured in an automobile accident in which the at-fault driver has no insurance. As a result of your injuries, you incur substantial medical bills and you are unable to work for a long period. The at-fault driver has no liability insurance coverage against which you can make a claim. You would still have the option to sue the negligent driver for damages. However, if the at-fault driver does not have insurance, what are the chances of that driver having any money or assets from which you could recover in a lawsuit? It is an unfortunate fact of life that during tough economic times, many drivers do not have insurance or do not have enough insurance. However, if you carry UM and UIM coverage, you can recover money for your injuries and damages even if the at-fault driver cannot pay.

The purpose of UM or UIM coverage is to place the injured insured (you) in the same position as if the uninsured driver had liability insurance coverage. Stated differently, your insurance company "stands in the shoes" of the at-fault, uninsured driver up to the amount of UM or UIM coverage that you carry on your automobile insurance policy. Your UM or UIM coverage could pay your medical bills, lost wages, and compensate you for your pain and suffering. Even if you have health insurance coverage that would pay your medical bills, your health insurance coverage will not pay you for your lost wages or your pain and suffering. Additionally, UM and UIM coverage apply to you and any passengers in your car, and to you and other family members listed on your insurance policy when riding in cars owned by others.

"Underinsured Motorist" or UIM coverage applies when the at-fault driver does have liability insurance coverage but the amount of coverage is inadequate to make you whole. Consider the following example: You are injured in an automobile accident in which the other driver is legally responsible. You sustain multiple injuries for which you are hospitalized and you receive prolonged medical treatment. Because of your injuries, you are held out of work for 4 weeks. Your hospital and doctors' bills total $50,000 and you lost $10,000 in wages while you were unable to work. Thus, you have $60,000 in out-of-pocket losses, plus pain and suffering and/or permanent impairment. Unfortunately, the at-fault driver had only $25,000 in liability insurance coverage. If you do not have Underinsured Motorist coverage, you are out of luck, as your recovery will most likely be limited to the $25,000 of insurance coverage maintained by the at-fault driver. As noted above, the individual who maintains only minimum liability coverage is not likely to have money or assets from which you could recover.

Now, consider the above example with one, noteworthy change. In addition to the liability coverage that you carry on your automobiles, you also carry $100,000 in Underinsured Motorist coverage. You could recover the sum of $25,000 in coverage from the at-fault driver's insurance company and you could potentially recover up to $100,000 by making a claim against your own insurance company under your UIM coverage. A word of caution, however. Even if you have UM or UIM coverage, you should consult with an experienced car accident lawyer before you settle with the at-fault driver's insurance company. If you try to settle with the at-fault driver's insurance company by yourself and in doing so, sign a general release of all claims, you will not be able to file a UIM claim with your insurance company. In Georgia, there is a very specific form, known as a "limited release," which should be used when settling with an underinsured motorist in order to preserve your right to file a UIM claim against your own insurance company. A properly drafted limited release would enable you to release the insured tort-feasor (the at-fault driver) from all personal liability arising from the accident except to the extent other insurance coverage, such as your UIM coverage, is available.

The statistics are shocking. A recent study from the Virginia Tech Transportation Institute found that a person texting while driving was 23.2 times more likely to be involved in a crash or near crash event. According to the National Highway Traffic Safety Administration (NHTSA), 448,000 people were injured in motor vehicle crashes involving distracted driving. An additional 5,474 people were killed due to distracted driving. One recent study found that driving "impairments associated with using a cell phone while driving can be as profound as those associated with driving with a blood alcohol level of 0.08%", which just happens to be the legal limit in Georgia.

The continued rise in accidents related to drivers using handheld electronic devices recently prompted the National Transportation Safety Board (NTSB) to recommend a nationwide ban on the use of all portable electronic devices (PEDs) while driving. While the NTSB does not have the power to enforce regulations, their recommendation is certainly influential. Currently, nine states ban all handheld mobile phone use. Even in states that ban the handheld use of mobile phones, drivers are allowed to use hands-free technology to make calls. This includes wired headsets, bluetooth headsets and bluetooth speakers.

In Georgia, drivers under 18 cannot use a cell phone for any purpose while operating a vehicle. Moreover, Georgia has banned all drivers from texting while they are behind the wheel. This ban also includes using a portable electronic device to access the internet. All of the laws relating to cells phones in Georgia are primary, which means you can be stopped and ticketed for the violation, even without committing any other violation. Adults can still use both handheld and hands-free mobile phones to make voice calls. Despite the recent legislation by Georgia and many other states, accidents caused by portable electronic devices are on the rise.

So what's the answer? Will a nationwide ban on texting while driving make our roads more safe?

Like the NTSB, we don't have the power to make anyone do anything, but we've seen too many collisions caused by driver distraction to not at least try. We recommend leaving your cell phone off when you're driving. If what you have to say is really that important, at least use a hands-free alternative (unless you're under 18). One very good option is the FMV (For My Vehicle) On Star Mirror. The mirror allows you to pair your mobile phone to the bluetooth speaker in the mirror. You can make and receive calls using voice commands, which means your hands are on the wheel and your eyes are on the road. The mirror also provides turn by turn directions, alerts authorities in case you're in an accident and can't call 911 and allows police to track your vehicle in case it's stolen.

Like everything else "there's an app for that". Atlanta based "Mobile Tattletale Applications" offers an app that aims to prevent texting while driving and speeding. It's called "Mobile Tattletale" and is available for most major mobile operating systems. It uses the phone's built in GPS to disable the texting and e-mail apps while the phone is moving above a predefined speed. The app can also be programmed to notify the parent if the car exceeds a certain speed or if the user tries to disable the functionality of the app. While it is designed for teenagers, it can certainly be used by anyone.

As attorneys who represent victims involved in catastrophic automobile collisions, we've seen far too many people seriously injured as a result of cell phone use. Anytime someone suffers a significant injury in an automobile collision, it's a tragedy. Yet it's particularly sad when the injury is caused so needlessly. While the above recommendations might help prevent texting related collisions, the only way stop them completely is to put down the phone!