Articles Posted in Truck Accidents

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 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 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.