Law Blog

As winter approaches were are reminded of the approach of more hazardous driving conditions on the roadways. Here in Middle Tennessee it seems they are more severe since they tend to develop suddenly and do not appear to be sever or hazardous. I grew up in Upstate New York and learned to drive in the ice and snow. I remember taking my driving test in early December with snow piled on the side of the highway. It was obvious to slow down and take extra precautions. Tennessee is different. Black ice is rampant. Fog and 32 degrees creates such a condition. Snow often is light and does not seem to stick, yet it can cause bridges and overpasses to freeze before the roadway. I have handled tractor trailer crashes in these conditions and thus am familiar with the rules applicable to professional drivers.

The Federal Motor Carrier Safety Administration oversees the operation of tractor trailers and buses on Interstate highways. Its motto is:

“The Federal Motor Carrier Safety Administration (FMCSA) is focused on reducing crashes, injuries, and fatalities involving large trucks and buses.”

To achieve this goal it has adopted numerous regulations all enacted to safe guard the public. When a lawyer takes a case involving a wreck involving a tractor trailer or bus he first looks to those regulations to determine the duty or standards that both the driver and owner are to keep. Yet they also are an excellent guideline for the driving public at large. What do the regulations say?

Hazardous conditions has its own set of rules. Section 392.14 states

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

Professional tractor trailer drivers are to exercise EXTREME CAUTION in those conditions. A tractor trailer wreck is not just a big car wreck. These special rules apply for the protection of the public. The public can also benefit by following the same rules.

Here are some factors and good points to look for and question your attorney about. Note that not every attorney will meet all of these criteria, but the significant absence of the following should be a big question mark.

• Experience – obviously, the longer you have been practicing a particular area of the law, the more you will know. Experience is a big factor in most cases.

• Experience actually trying or mediating cases – ask the attorney how many cases he has actually tried or mediated. When was the last time he was in court for any matter? Has he or she achieved any significant verdicts or settlements? Does he have a list of verdicts and settlements available that you can look at? Don’t accept the “All my cases are confidential” line! Has he ever appeared before the Court of Appeals or the Tennessee Supreme Court? The greater your number of cases actually tried or mediated and substantial verdicts and settlements achieved, the more likely the insurance companies will respect you. If he has appeared before the Court of Appeals or Supreme Court that is an indication that he will “really” fight for you. Past results are not a guarantee of the future but past results do demonstrate some level of experience and success.

• Respect in the legal community-does the attorney teach other lawyers in Continuing Legal Education courses?

• Continuing Legal Education-The Tennessee Supreme Court requires every lawyer in Tennessee to take a minimum of 15 hours of CLE each year. Ask how many hours the lawyer took last year. What subject matters were covered? Even the most experienced lawyers need CLE to keep current. I have found that the best and highly respected lawyers nationwide attend more CLE than they are required just to learn, get better, and network with other lawyers specializing in the same areas of the law.

• Membership in Trial Lawyer Associations. In our area, you can certainly find a lawyer who is a member of the Tennessee Association for Justice (TAJ), or American Association for Justice (AAJ). These organizations provide extensive education and networking for trial lawyers representing injured individuals.

• Publications-has your attorney written anything that has been accepted for publication in legal journals? This is another sign of respect that the legal community has for his or her skills and experience.

Ask the attorney if he or she is licensed in the state where your case will be filed. We believe that an attorney who is not licensed in the state where the case will be filed is at a disadvantage when it comes to negotiating with the insurance company. The insurance companies know who is not licensed and thus cannot actually try the case. We also recently ran across a horror story involving an out-of-state attorney who evaluated a Tennessee tractor trailer case. This attorney kept the file for over one year and gave it back to the client after the the statute of limitations expired in Tennessee. The problem was that the attorney told the client that he had one more year to file his case, but this was based on the statute of limitations in his own state. The client was then unable to file his case in Tennessee.

Lastly, will the attorney you are meeting with personally handle your case?

The Tennessee Financial Responsibility Law was enacted in 1977 and covers the minimum auto insurance required in Tennessee. Basically it requires minimum liability limits of $25,000 per person, $50,000 for 2 or more persons and $15,000 for property damage. This is found in Section 55-12-102 . In my opinion those limits are horribly outdated and low. However, before I start a rant, let me explain the basic elements of an auto insurance policy and how it works.

“Liability” insurance is required by law to operate a motor vehicle on the public roads in Tennessee. However, the basic policy also often contains coverages for property damage, uninsured/under insured motorist, comprehensive, collision, and medical payments. What does insurance mean and what do these terms mean?

“Insurance” is where a company “the Insurance Company” agrees for a fee “the premium” to reimburse you “the insured” for a covered loss or peril. The maximum amount the insurance company agrees to pay is called a “limit.” The “insurance policy” is a contract between you the insured and it, the Insurance company. The insurance company agrees to reimburse you for the loss up to the policy limits.

The liability portion of your policy is purchased so that if a car wreck is your fault that the injured party will be paid by the insurance company for their injuries up to the limits of the policy. Without insurance you personally are responsible for these damages. The injured party can take your home, garnish your wages, and attach all your property. Not a pretty picture. Thus, you purchase the liability policy to protect yourself, your family, and your assets.

The $25,000 minimum limit for personal injury is just for those injuries you can recover if you are hurt. (I will make a separate bog post on that subject later.) The “property”damage limits is for damage to property such as the car, fence, guard rail. Guard rails are expensive and the cities or state will come after you. Several years ago my teenage son lost control and hit a guard rail in Brentwood. It only damaged about 10 feet of the rail. The bill? $3,500. I was glad I had property damage insurance on that car. Property damage insurance is required in Tennessee.

Now for the non required coverages. In my opinion the most important coverage of all is uninsured or under insured motorist coverage. That coverage makes your insurance company pay for the damages and personal injuries you receive when the negligent or responsible party has no insurance. The definition of uninsured vehicle by section 56-7-1202 of the Tennessee Code is

(a)(1) For the purpose of uninsured motor vehicle coverage, “uninsured motor vehicle” means a motor vehicle whose ownership, maintenance, or use has resulted in the bodily injury, death, or damage to property of an insured, and for which the sum of the limits of liability available to the insured under all valid and collectible insurance policies, bonds, and securities applicable to the bodily injury, death, or damage to property is less than the applicable limits of uninsured motorist coverage provided to the insured under the policy against which the claim is made; and

In Tennessee you can only buy limits equal to your liability limits. Thus, if you only buy $25,000 in liability insurance you can only purchase $25,000 in uninsured coverage. Why short your self to save a few bucks? Every year I have clients who do not receive the damages they are due under the law because they failed to purchase enough uninsured or under insured coverage. Under insured motorist coverage applies when the damages of the injured person exceed the liability insurance for the negligent party. For example. The responsible party has $25,000 in coverage. You have read this blog and have $100,000 in under insured coverage. A wreck occurs through no fault of yours and you are entitle to recover $75,000. The responsible party pays $25,000 and YOUR insurance company pays the next $50,000 so you get the full $75,000.

Comprehensive coverage is for items like broken glass, flood damage, or vandalism. Its pays basically to make repairs to your car.

Collision coverage is for property damage to your car if the accident was your fault or the responsible party had no property damage coverage. If your vehicle is financed the bank will require you to have this coverage. It will only cover the lesser of the cost of repair or the actual cash value of the car.

Medical payments is for the medical bills of the persons who are hurt in your car regardless of fault. It is dirt cheap but can help big time. (I pay about $50 year for $1 million in coverage!!!) Trust me the insurance company for the negligent party is not going to pay your medical bills until the end. They do not want you to seek medical treatment. Then they argue to the jury you could not have been hurt because you did not go to the doctor. You don’t get to explain “I didn’t have the money to go to the doctor, my emergency room bill was $3,000, I was out of work 2 weeks due to the wreck. I didn’t have health insurance.” More in detail on med pay insurance in another blog.

I hope the above helps. It probably raises more questions than it answers. Thats OK, feel free to e-mail me or call and I will try to help.