Articles Posted in Truck Accidents

People injured in accidents in Illinois frequently hire an attorney recommended by a friend or who advertises on TV. The lawyer retained will sometimes have little or no jury trial experience-this question should always be asked before retaining the attorney. Oftentimes the client becomes unhappy with the lawyer-lack of communication, attorney lacks the required experience, lawyer referring case out to another lawyer, and many more. Whatever the reason you are entitled to consult with another attorney for a second opinion. I have successfully represented injured victims and their families in personal injury and wrongful death lawsuits in Illinois state courts and federal courts throughout the United States for over 30 years.

On the occasions that I have been contacted for a second opinion the most common questions posed are: Is it possible to change lawyers?-the answer is YES, What will it cost to change lawyers?-the answer is often NOTHING, and Will it hurt my ability to collect full compensation?-the answer normally is NO. Remember that if you suffered injuries as a result of the fault of another you will only get one opportunity to obtain full and fair compensation and unless you have a mutual relationship of trust and respect with your lawyer it is unlikely that your goals will be achieved. It is a fundamental right of every client to discharge his/her attorney and hire another attorney and this decision must be respected by the discharged attorney.

All cases present unique factual and legal issues and we offer free consultation to discuss your case. I take pride in guaranteeing that I will be present with you at all times during the lawsuit from initial consultation, depositions, pretrial conferences, the jury trial, and any appeals that may follow. You will not be referred to another lawyer or firm nor will a young associate handle your case. I remain with my clients all the way through the litigation process. This is important because I have numerous significant verdicts for my clients in personal injury and wrongful death actions including many multi million dollar verdicts. The insurance companies and their lawyers know this-and this significantly increases your opportunity to receive full compensation. Should you so choose feel free to contact Edmund Scanlan toll free at 877-494-1309 for a free telephone or office consultation.

Truck accident attorneys in Illinois and around the nation should be aware that the federal government formally barred truckers and bus drivers from sending text messages while operating a commercial motor vehicle, effective January 27, 2010. The Federal Motor Carrier Safety Administration (FMCSA) did not create a new regulation or a new law, but rather provided regulatory guidance. The FMCSA recently completed its “Driver Distraction in Commercial Vehicle Operations” study and released the final report on October 1, 2009. In this study the FMCSA found that: The most risky behavior identified by the research was “text message on cell phone,” with an odds ratio of 23.2. This means that the odds of being involved in a safety-critical event is 23.2 times greater for drivers who are texting while driving than for those who do not.

FMCSA has now provided regulatory guidance regarding 49 CFR 390.17 in an answer to the following question: Do the Federal Motor Carrier Regulations prohibit “texting” while driving a commercial motor vehicle in interstate commerce? FMCSA answered the question as follows: Yes……Research has shown that during 6-second intervals immediately preceding safety-critical events (e.g., crashes, near crashes, lane departure), texting drivers took their eyes off the forward roadway an average of 4.6 seconds. Therefore the use of electronic devices for texting by CMV operators while driving on public roads in interstate commerce decreases safety and is prohibited by 49 CFR 390.17.

Truck accident lawyers should now issue discovery and subpoenas in lawsuits to secure the operators cell phone records to determine if the driver was texting at or near the time of a collision. If appropriate the complaint should be amended to include a violation of 49 CFR 390.17. Illinois and about 19 other states also ban texting while driving. On January 1, 2010, Illinois’ law became effective and provides: A person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send, or read an electronic message, 625 ILCS 5/12-610.2. These state laws and 49 CFR 390.17 should be used in pursuing truck drivers and trucking companies for injuries in truck related crashes where driver attentiveness is the issue.

Illinois truck accident attorneys should be aware of the recent decision by the Illinois Supreme Court regarding whether the Illinois Vehicle Code’s “omnibus coverage” applies to commercial truckers. In Zurich American Ins. Co. v. Key Cartage, 2009 WL 3470846 (2009), the Court held that “omnibus coverage” mandated by Section 5/7-317(b)(2) of the Illinois Vehicle Code does not apply to commercial truckers regulated under the Illinois Commercial Transportation Law, 625 ILCS 5/18c-1101 et seq. “Omnibus coverage” is defined as a motor vehicle liability policy that “shall insure the person named therein and any other person using or responsible for the use of such motor vehicle or vehicles with the express or implied permission of the insured” 625 ILCS 5/7-317(b)(2).

The issue in Zurich was whether Zurich American Ins. Co. which insured a lessor trucking company, Rose Cartage, or West Bend Ins. Co. which insured the lessee, Key Cartage and driver of the truck, were responsible for providing coverage when one of Key Cartage drivers was involved in an Illinois accident which resulted in a death. Zurich’s insurance policy had a reciprocal coverage provision that stated that they would only cover Rose Cartage employees and that they would not provide coverage to anyone using the truck, even with permission, unless that person (Key Cartage) also insured Rose Cartage. West Bend Ins. Co. maintained that the reciprocal coverage provision violated 625 ILCS 5/7-317(b)(2). The Appellate Court in Zurich held that the reciprocal coverage provision violated Section 5/7-317(b)(2) and was void as against public policy.

The Illinois Supreme Court reversed and held that: “…we conclude that the definition of motor vehicle liability insurance policies set forth in section 7-317, including the omnibus requirement in section 7-317(b)(2), does not apply to commercial truckers regulated under the Commercial Transportation Law.” The Court pointed out that section 18c-4902 of the Commercial Transportation Law provides that the Illinois Commerce Commission “shall prescribe the amounts of Insurance” necessary for insurance policies issued to motor carriers of property in the state of Illinois.

Illinois car and truck accident attorneys in investigating the causes of vehicular crashes should always consider the possibility that one of the drivers was texting, emailing or on a cell phone at the time of the colllision. In 2008, the National Highway Traffic Administration (NHTSA) published a study indicating that driving daylight hours 11% -or 1.8 million drivers-were on the cell phone.

The National Safety Council has called for a total ban on cellphone use while driving because their research showed more than 100 million people are engaged in this activity everyday and that cellphone use has caused 636,000 crashes, 330,000 injuries, 12,000 serious injuries, and 2,600 deaths each year.

Texting while driving has been found by a recent study by Virginia Tech Transportation Institute to result in a 23 times greater risk of a crash. An Illinois law passed earlier this month will ban: texting, emailing, or websurfing while driving. This law will become effective January 1, 2010. This is a step in the right direction! Cell phone use while driving should similarly be banned.

Illinois product liability attorneys should be aware that yesterday the Yamaha Motor Corp. recalled about 120,000 utility terrain vehicles (UTVs), namely the Rhino models 450, 660 and 700 models. The four wheel side by side Rhino manufactured by Yamaha has become one of the most popular UTVs sold in the U.S. The design flaws that prompted the recall include a top heavy design resulting in a high center of gravity and a track width that is too narrow.

The United States Consumer Product Safety Commission (CPSC), has announced a free repair program to address these issues. Of the more than 50 incidents investigated by the CPSC more than two thirds involved rollovers, many of which involve turns at relatively low speeds on level terrain.

Utility Terrain Vehicles have fallen within a regulatory crevice. These vehicles were introduced to the market and have been sold to consumers without having to meet government safety and performance standards. It is critical that federal and/or state state safety agencies act to protect consumers from the growing number of fatalities and severe injuries

An Illinois truck accident involving violations of Federal Motor Carrier Safety Regulations where I represented the estates of a 77 year old man and his 73 year old wife settled last week for $950,000. On March 7, 2007, at 3:45 AM the 77 year old driver hit the side of the semi tractor trailer that was backing onto a rural highway In Will County. Both the driver and his wife were killed instantly!

The central issue in the case was why the 77 year old driver failed to detect, identify, and respond prior to slamming into the side of the trailer as it was backing across the rural highway. Attorneys for the trucking company and its driver retained the services of an ophthalmologist, human factors expert, and an certified accident reconstruction specialist. The 77 year old driver had corrective eye surgery a few months before this fatal accident.

Essentially defendants’ experts opined that the 77 year old driver: 1) should not have been driving at night as his nighttime vision was limited; 2) since trailer was equipped with retroreflective tape and side marker lights a reasonably alert driver should have been able to detect, identify, and respond to the trailer by slowing to avoid a collision.

Illinois attorneys handling Underinsured Motorist Claims should be aware that there are setoffs that the insurance companies are claiming that need to be challenged. In a typical situation, plaintiff sustains serious injuries caused by the negligence of another driver. Plaintiff settles her claim for the policy limits of $100,000 from the negligent driver’s insurance company. Plaintiff makes a claim against her won insurance company for additional benefits under the underinsured motorist coverage of her own policy. Her insurance policy has limits of $300,000 for underinsurance motorist coverage. The plaintiff’s insurance company will routinely seek a credit for the full $100,000 paid by the neglligent driver’s insurance company, therby leaving only an additional $200,000 available to compensate the seriosly injured plaintiff.

The common fund doctrine allows a party that creates a fund from which others benefit to seek reimbursement from those other parties. Scholtens v. Schneider, 173 Ill. 2d 375, 671 N.E. 2d 657 (1996). The common fund doctrine most often appears in situations where an insurer obtains a recovery for medical expenses they paid through the plaintiff’s attorney’s efforts in securing the fund. However, the common fund doctrine is not limited to insurance subrogation cases. Chapman v. Kitzman, 193 Ill. 2d 560. 739 N.E. 2d 1263 (2000). The general requirements for applying the common fund doctrine are: (1) the fund for which fees are sought was created as a result of legal services performed by the plaintiff’s attorney, (2) the claimant of the fund did not participate in its creation, and (3) the claimant will benefit from the fund. Taylor v. State Universities Retiremement System, 203 Ill. App. 3d 513, 560 N.E. 2d 893 (1990).

In a very interesting partial concurrence and disssent Justice Chapman addresses the intersection of the common fund doctrine and underinsured motorist benefits and concludes that: “the common-fund doctrine is applicable.” James v. Western States Ins. Co., 335 Ill. App. 3d 1109, 1127, 738 N.E. 2d 37, 51(2001). Using the example above with the $100,000 settlement with negligent driver’s insurance company, the underinsured motorist policy of $300,000 would receive a credit of $66,666 ($100,000 minus $33,333 in fees or $66,666), instead of the full $100,000 credit. Using this approach achieves a $33,000 additional benefit to the client.

Tires older than 6 years old should not be used on motor vehicles since it can lead to tread separation and catastrophic failure. Since 2001 the British Rubber Manufactures Association (BRMA) have recommended: “BRMA members strongly recommend that unused tyres should not be put into service if they are over 6 years old and that all tyres should be replaced 10 years from the date of their manufacture.” This is incredible since BRMA includes all the tire manufacturers who also sell in the United States. No such warnings have been given by tire manufacturers and retailers to consumers in the United States. Retailing giants in the U.S. like Walmart and Sears routinely sell tires as new in their stores that are routinely older than 6 years and sometimes as old as 17 years. This is unconscionable!

Like any other rubber product, tires have a limited service life regardless of tread depth and use. Tire age can be determined through decoding of the required DOT number printed on the side of a tire, but it is of no help to consumers because you must know the code to interpret when the tire was manufactured. Experts that I have worked with say that tire age is a silent killer because a consumer can purchase a brand new tire from a reputable retailer or outlet and have no idea that at the time of purchase the tire is already defective.

Ford Motor Company added a 6 year tire replacement recommendation, regardless of tread wear, to all 2006 owner’s manuals. Finally, on June 2, 2008, the National Highway Transportation Safety Administration (NHTSA) issued a Consumer Advisory warning that aged tires, regardless of tread use, are subject to greater stress increasing the likelihood of catastrophic failure. Recent investigative reports point to corporate neglect and government inaction as the root cause of American consumers buying new tires that are defecive at the time of purchase.

Illinois Wrongful Death Act now allows jurors to award damages for “grief, sorrow, and mental suffering.” The law in Illinois since 1867 has been that in wrongful death actions, there is “no recovery for bereavement” and “nothing can be given as solatium.” Chicago & A.R. Co. v. Shannon, 43 Ill. 338, 1867 WL 5039 (1867).

Jury instructions in wrongful death actions arising before the effective date of this amendment, May 31, 2007, have and will include Illinois Pattern Jury Instruction (Civil) IPI 31.07. This instructions states: In determining “pecuniary loss” you may not consider the following:
(1) The pain and suffering of the decedent;
(2) The grief or sorrow of the widow and next of kin, or (3) The poverty or wealth of the widow and next of kin.

Needless to say this was and is a powerful argument that defendants, their insurers and attorneys make to jurors at the trial of a wrongful death action to limit the amount of damages awarded. Sometimes the only significant loss widows and next of kin sustain is the “grief, sorrow, and mental suffering” associated with the wrongfyl death of a family member.
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An Illinois wrongful death verdict arising out of a construction accident where a scaffold collapsed was reversed by the appellate court in Chicago. The Court did rule that the defendants had waived any right to challenge the award of $14,230,000. The issue as framed by the Appellate Court:

Is a defendant who settles with the plaintiff prior to trial still a “defendant sued by the plaintiff” within the meaning of section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117)? If we answer this question in the affirmative, then all defendants sued by the plaintiff, including those who settled prior to trial, may be included on the jury verdict form so that the fact finder can assign each defendant their degree of fault, if any. If we answer this question in the negative, then only those defendants who remain when the case is submitted to the fact finder may be included on the verdict form.

Ready v. United, 367 Ill. App. 3d 272, 854 N.E. 758, 2006 WL 2434935 (2006).
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