We all mourned the tragic truck accident in Hart County that was among the nations deadliest in the last 20 years.  The investigation is showing the cause of this accident is due to distracted driving by the truck driver. Kentucky has enacted a law that prohibits texting while driving. This activity would now be a ticketed fine in Kentucky.  Is this really a sufficient deterrent? Should we go as far as Utah and make this an offense that would be considered a murder or manslaughter?  I believe this is something that should be considered.  What is the best way to prevent distracted driving and driver fatigue?

Kentucky drivers and trucks do not get along.  Almost nine percent of the fatal crashes that occurred in 2008 involved trucks.  These figures are consistent with nationwide statistics. This is of even greater concern when you consider that only about 4.6 percent of state’s registered vehicles are trucks.  This disparity in the number of fatal accidents caused by trucks as opposed to smaller vehicles is attributed to the difference in size and weight between large trucks and cars. This is according to the Insurance Institute for Highway Safety. 

Not everyone believes that trucks are more dangerous.  The American Trucking Association contends that trucks don’t cause a disportionate share of the fatal accidents when you take into account the hours and miles that a truck driver will spend on the road in any given day or week.  It is contended that the safety record for trucks is better now than it has ever been.         

I feel safe in saying that the March 26 accident in Hart County will lead to changes in Kentucky’s laws and how they affect trucks.  When a company is fined or has a history of violations, I believe Kentucky needs to be more stringent in its penalties in allowing these trucks on our roads.  We all know these vehicles are more dangerous.  We just have to figure out a better way to monitor them. 

In that vein, a new federal regulation was implemented last month. This regulation requires trucking companies that repeatedly violate driver time limits to install electronic recorders in their trucks. These recorders will keep track of how long a driver spends behind the wheel of a tractor-trailer.  This should be an important tool in preventing trucking companies from manipulating the system and forcing their drivers to log longer hours than they should. 

Interestingly, these monitors are not required for all trucking companies, but only those flagged during on site compliance reviews.  Those flagged are a very small percentage of the trucking companies in the United States.  Should these monitors prove to be effective maybe they will eventually be required on all trucks. 

In hindsight, Hester, the owner of the truck involved in the Hart County accident, had numerous violations. These violations were not found as part of an on site review. Consequently, the new regulation would not have required Hester to place these devices in their trucks. 

Another recent change requires some truck drivers to use electronic on board recorders to replace their paper log books, which were easily forged.  Under the new rule, a carrier must use the device if a compliance review finds that they have violated hours of service rules more than ten percent of the time.  What amazes me is that it is projected that 5,700 interstate carriers will have to use the device after the first year.  This tells me that forging time logs runs rampant and it is a major cause of driver fatigue and fatal automobile accidents that occur.

I hope these rules will make it harder for trucking companies to violate the time requirements for their drivers behind the wheel.  This in turn will keep driver fatigue to a minimum, prevent truck accidents and help keep our Kentucky roads safe.

            Governor Steve Beshear signed the Cell Phone Text Messaging Bill into law in Kentucky on April 25, 2010. It is about time. I hope this bill will have its intended impact and prevent serious automobile accidents caused by inattentive or distracted drivers. 

Under the new law, any driver under the age of 18 is prohibited from using a cell phone in any manner while driving.  This applies to an instruction permit, intermediate license or a full operator’s license.  There is one and only one exception to this.  That is to summon medical help, law enforcement or a public safety agency in the case of an emergency. 

            There are also provisions that relate to ALL drivers. Anyone who is operating a motor vehicle cannot write, send or read a text-based communication such as text message, instant message or electronic mail while operating a motor vehicle.  My understanding is that there will be warnings issued on violations until January 1, 2011. 

The fine for a first offense is a mere $25.00. Second offenders on up are fined $50.00 plus court costs. These fines appear to be a mere slap on the wrist. What if a bicycle accident victim is seriously injured or killed by someone who is texting while driving? Is a $25.00 fine going to send a message and act as a deterrent? I would propose much harsher penalties, maybe even prison time and a charge of manslaughter in extreme circumstances. Texting while driving is said to be more dangerous then drunk driving. The penalties should at least be the same!

            Two weeks after the Cell Phone Text Messaging Bill was signed into law I was traveling down I-64.  Ironically I was near the Frankfort, where the bill was signed and debated.  I was passed by a driver who had a laptop computer wedged between the passenger seat and the dashboard. The computer faced him and he was typing as he passed me going well over the speed limit!  I had a “Did I really just see that?” moment.

We really need to use some common sense when we are driving a car.  I believe the Text Messaging Bill is a good start; however, I don’t believe the penalties are harsh enough to have a real impact. It didn’t faze my friend with the computer wedged in his front seat.  Inattentive driving can cause can cause severe consequences, such as brain injury, paralysis or even death. 

There are efforts nationally, such as Oprah Winfrey’s “No Phone Zone.” This is a push to get teenage drivers to enter into a contract abstaining from texting while driving or even using a cell phone in the car.  What a great idea! My 16-year-old daughter helped to get signatures and pledges at her high school.  Her class was able to get over 100 students to sign a contract or pledge not to use a cell phone while driving. 

This is a good start but as I said, Kentucky needs to go further with penalties and enforcement.  For now, we’ll take what we have and hope that all Kentuckians use common sense to prevent serious motor vehicle accidents and fatal accidents on our roads.

The March 26th accident in Hart County, Kentucky is the second worst traffic accident in Kentucky history.  The worse occurred on May 14, 1988, when 27 people were killed in a bus crash caused by a drunk driver outside Carrollton, Kentucky. I was a young prosecutor at the time and was horrified by the accident. I still get a chill every time I drive pass the memorial sign on I-71.

       I would describe The Munfordville truck accident in the same one word: “horrific.” A semi truck traveling south in the early morning hours crossed the median, went through the cable barriers into the oncoming traffic and hit a van head on killing 10 of its passengers  The driver of the truck was also killed.  Several families and communities suffered great losses that morning. My heart goes out to them.

       The 10 people in the van were traveling from Marrowbone, Kentucky to Iowa for a wedding.  They were members of the Mennonite faith. As the grieving process continues with family, loved ones and communities touched by this tragedy are looking for an explanation as to why and how this happened.

       There have been some answers from this ongoing investigation of The National Transportation and Safety Board, who are investigating the crash.  The cable barriers were found to be properly installed and up to safety standards. Unfortunately there is little that can stop a truck loaded with auto parts. We know that there were no skid marks on the roadway. We can only guess as to why the driver of the tractor trailer did not brake.

       Information from The Federal Motor Carrier Safety Administration has identified the trucking company from Alabama involved in the accident as Hester. Hester has had a poor safety rating from federal regulators and repeatedly failed roadside inspections.  The FMCSA gave Hester a rating of 88.4 based on a review of inspection in February.  The scoring range goes from 1-100, 100 being the worst score. Any score of 75 or more is considered deficient.

       The truck involved in this tragedy had been cited with problems ranging from lights, brakes, and emergency equipment.  These problems were identified in six roadside inspections since 2008.  There have not been any citations issued in 2009 or so far in 2010.

       A spokesman for the American Trucking Association said that based on the safety score the trucking company should not have been in operation. I will look with interest as the NTSB goes through their investigation. What will the driver’s log show? Was the vehicle in proper working order? Was there brake failure?  These are questions that any truck accident attorney would be interested in pursuing a wrongful death claim, as well as family and friends who are looking for answers. Although there is nothing that can be done to reverse this tragedy I hope the parties who are responsible will be held accountable. Based on the track record of Hester there is a good chance this accident could have been avoided.

As a Kentucky accident attorney clients frequently ask me “how do you get paid?” How much money do I need to have to hire a personal injury attorney? Do I have to give you money up front to take my case?  The answer is NO. 

Almost all auto accident attorneys or personal injury attorneys take cases on what is called a contingency fee basis.  A contingency fee means is you do not pay anything up front and you do not pay your attorney on an hourly basis. A personal injury attorney is paid a percentage of what they recover or settle your accident case for at the end of the case.  In most cases the contingency fee is 33and1/3% or 1/3 of the recovery. Sometimes the fee may be 40%. Generally, if there is no recovery, you do not owe the attorney a fee.  This is good for you, the accident victim.

You do not have to pay anything up front at the time you hire an attorney. While you are treating with doctors and while you are off work you don’t have the extra money to hire an attorney.  The attorney will get paid at the end of the case.  A personal injury attorney will charge you nothing unless he wins your Kentucky accident case. The bottom line is you don’t have to worry about coming up with any money to hire an attorney in an auto accident case.  A contingency fee is almost always offered. That is the way the accident attorney will be paid and you will be able to get good representation.

If you have been involved and injured in a Kentucky truck accident time can be of the essence.  To the trucking industry accidents involving tractor trailers are part of day?to?day business.  When there is a truck accident the driver of the tractor trailer will notify their parent company as soon as they are able to do so.  The trucking company will send in an accident investigation team out to the crash site, immediately.  The accident reconstruction expert and accident investigation team hired by the trucking company often arrive while the police are still on the scene. 

What does this mean to you if you are the victim of a truck accident in Kentucky and suffer a serious or life threatening injury?  It means that in your truck accident case the trucking industry has a head start on investigating the cause of the accident and developing a strategy for its defense to any claim that arises.  There’s evidence that can disappear either intentionally or by accident. The trucking company has the benefit of an expert that was actually at the accident scene. This may not be possible for the victim of a truck accident since injuries are usually severe in nature.  You’re concentrating on your medical treatment. You may be in the hospital for a significant period of time. 

There is still hope.  It is first important to realize that the bulk of trucking accidents are caused by driver error which is usually from an inattention or driver fatigue.  There are many devices available on trucks now that actually warn of impending crashes to help prevent these accidents.  When an accident is not prevented, however, the black box or the event data recorder must be examined.  These devices record data that may be significant in your accident at the time and up to the time the accident occurs.  Things as deceleration, speed at impact, etc. can be obtained.  Needless to say it is important to act quickly so that an expert can examine these devices on your behalf.

Time is of the essence in truck accident cases. Although most cases can be reconstructed at a later time it is important to have someone looking out for your best interests as soon as possible.

I had to travel to Lexington last week.  As I was driving east on I-64 I saw a sign that read “52 deaths on Kentucky roads this year”.  We have all seen these electronic signs that dot the interstates in Kentucky. My immediate thought was it’s not even the end of January and there have been 52 deaths on Kentucky roads due to auto accidents! This is 52 fatal accidents. I wonder what the causes of these deaths were.  I was on my way to Lexington to file a lawsuit in a case where my client had been t-boned by a young teenage girl who was texting on her cell phone. She did not see the red light, ran it and slammed into the side of my clients’ car.  Unfortunately, the consequences were severe. My client suffered a traumatic brain injury with a permanent memory problem as a result of this accident. 

            I can’t believe that nothing has been accomplished in Kentucky to prohibit texting while driving. It is running rampant on Kentucky roadways, whether you are in Louisville or Lexington.  There are so many people, not only teenagers but adults, on cell phones and being distracted by other means.  This is making the highways more and more dangerous. 

Last week the Transportation Department announced a new rule that prohibits interstate commercial truckers and bus drivers from sending text messages while they are operating their vehicles.  Those drivers who break this rule will face civil or criminal fines that could go up to $2,750.00.  This rule became effective immediately. 

Texting while driving is just one of the problems that should be addressed.  Many truckers use computers while driving that are required by the companies.  These are dash mounted. As everybody knows multitasking makes driving more dangerous.   

I applaud the transportation department for making this rule.  I hope that the states that have not instigated bans on texting while driving will do so in the near future.  It will definitely save lives.  Hopefully this will help cut down on the 52 deaths that have occurred this year on Kentucky highways.  This is too many deaths from traffic accidents. Whether they are car accidents or truck accidents we need to take whatever steps we can to prevent them from occurring  in the future. The National Transportation Department has taken a big step. Will Kentucky be next?

            Without evidence you will not be successful in pursuing your Kentucky accident claim. Whether it is a car accident, a truck accident, a bicycle accident or a wrongful death case you must be able to prove what happened. I know this is a harsh statement to start this article off with but it is the truth.  Without witnesses, pictures, medical proof and other documented evidence you are not going to be successful in prosecuting your Kentucky accident claim.  I use the word prosecuting because as an accident victim you are in a position of being required to prove your claim to the insurance company. Yes, much as a prosecutor does in a criminal case when he is arguing for a conviction. 

In the past few weeks I have had numerous clients come into my office who have been injured in auto accidents.  The facts have been somewhat strange and bizarre. They include:

·        Hitting parked cars

·        Cars illegally parked

·        Cars in front going into reverse and backing up for seemingly no reason. 

·        Buses swerving over the center line

You might think that this is a no?brainer. How could anyone not believe these people?  Isn’t it easy to show whose fault these accidents are? This is not always the case.  You never know what the other side is going to say, what reasoning they’re going to give or what they’re going to say about you. Believe it or not they may not tell the truth.  I have had to decline representing people in the last few weeks because:

• There were no photos to prove the position of the vehicles at the time of the accident.
• There were no independent witnesses to verify my potential client’s story.
• The police investigation was inadequate.  There were no diagrams or measurements made as to the positioning of the vehicles. 
• There was not immediate medical treatment.

Immediately following an accident the adrenaline is flowing.  Your brain is foggy.  You’re almost on auto pilot.  You are not concentrating on what is necessary to prove your case. You have no idea that any of this will be an issue. This is the furthest thing from your mind. Over the next several months you may find that without these items it is impossible to prove your case. The insurance adjuster may not be as friendly when you are finally asking to be compensated for what you have been through.  

You need to make sure you protect yourself by:

·        Obtain the names of witnesses to the accident.

·        Take pictures of the damage to BOTH vehicles. 

·        Document the position of the vehicles with photos.  You can do this with your cell phone or a camera in your pocket. You can use a sketch pad. But get the information!

This is just at the accident scene.

            I was speaking to an insurance adjuster today about a client’s claim. We will call her Sarah.  A witness that was in a yard next to where the accident happened had given a statement to the police. This witness claims that Sarah struck the car in front of her before she was rear ended.  The impact from behind was definitely more severe and we will be able to collect on the claim.  However, the adjuster wants to deduct for Sarah’s contributory negligence. He is arguing that Sarah is partly to blame for her injuries, based on the witness statement.  This may in fact occur. It is a jury issue. But Sarah has a fighting chance. She was on the ball enough to get the names of two independent witnesses who were not listed on the police accident report. They were on the front porch of the house next to where the accident happened. They observed the accident and can verify that Sarah did not run into the car in front of her until she was propelled into that car by the rear impact.

Sometimes this is just luck but having the awareness to document the evidence can save your Kentucky accident claim.  We have a fighting chance to prove that Sarah is right.

The insurance company is looking for any reason they can to:

·        Deny your claim

·        Defeat you claim

·        Lower the amount of money they are going to have to pay out on your claim. 

This is their job.  This is why they make the money they do. That is why insurance companies are profitable. That is why they have the lobbyists in Frankfort arguing their position. 

Protect your Kentucky accident case by documenting and documenting and documenting from the time you’re in an accident to the time you have finished treating and finally settle your claim. You must document.  By doing this your Kentucky bicycle accident case will be successful! Your Kentucky motorcycle case will be successful! Your Kentucky truck accident case will be successful!  Do not get caught into the trap and think that somebody else will do it for you.  Take matters into your own hands so that you can successfully prosecute your claim.

            I often focus on driving safety and on how you can be a safer driver. I write about keeping our Kentucky roadways safer. How you can avoid serious automobile accidents is another topic I blog on.  A tragic and unfortunate accident last weekend reminds me that there are also auto accidents that occur after your car breaks down. Traffic accidents occur while a vehicle is disabled on the road.  Visibility is a key factor in your safety after a car breaks down. 

David Meredith and Omar Lopez were killed after they were hit by a pickup truck on Washburn Avenue in rural Jefferson County, Kentucky.  This accident occurred after Meredith and Lopez’s vehicle had been in a minor rear-end collision on Washburn Avenue.  Apparently the men were standing behind their truck after the accident and blocking the taillights. This made it difficult for the vehicle coming from behind to see the car in the road.  Additionally there was fog in the area. This made visibility even more of an issue.

 Any time you’re on the road visibility is something you should be aware of.  This is the case whether you are a pedestrian, a bicyclist, or a disabled motorist.  You need to make yourself visible.  Bicyclists have reflectors and bright-colored jerseys that some would say make us look ridiculous.  Runners wear vests to make them more visible if they are jogging on the road in the early or late hours of the day.  The occupants of a disabled vehicle need to take precautions to make that car visible on the roadway.  Reflective triangles should be placed behind the car. You can purchase them at almost any automotive store. They should always be used.  Emergency flashers should be turned on.  Do anything you can do to make yourself more visible.  If you do not take these precautions drivers coming up on the accident scene or on you may not have a chance to avoid a tragic accident.

            A few years ago I represented a truck driver in what I would call a freak accident.  A semi tractor-trailer was traveling down I-65 south near Shepherdsville.  The trailer came loose from the tractor and came to a stop in the middle southbound lane of I-65 in Bullitt County, Kentucky.  When the trailer came off there was no power going to the lights on the back of the trailer.  Additionally no reflective tape was on the trailer.  The driver had no triangles or flares to put behind him.  He attempted to get the trailer re-connected to the tractor. 

My client was driving a tractor-trailer and also headed south on I-65.  He stated to me that he was driving along and he knew something was different but it just looked like there was nothing there.  He compared it to a black hole.  By the time he realized that there was a trailer stopped in the middle lane of the expressway he had no chance and slammed into the back of the disabled trailer.  A passerby pulled him out of his flaming truck.  Tragically the other driver was killed as he was between his tractor and trailer at the time.  My client had hit his trailer. This tragic truck accident could have been avoided had emergency flashers, flares or reflective triangles been used. Unfortunately, none of this equipment was even in the truck.

            I bring this up because you never know what is going to happen on the highway.  You need to be cautious and careful at all times.  I represented a client that had just been in a rear end collision. As he was walking back to the driver’s side of his car another car came flying by. Luckily his front door was open and he jumped into the front seat to avoid being hit. Any disabled motorist, whether it be from a traffic automobile accident, a motorcycle accident, a truck accident, or simply a blown rod in your engine, must make themselves visible on the road.  Take precautionary measures to make yourself visible to traffic.

·        Make sure your car lights are on

·        Place reflective triangles out behind the disabled vehicle

·        Place flares behind the vehicle

·        Get yourself off the roadway

·        Wait for emergency assistance to come to your assistance. 

If you take preventive measures you can keep from becoming a statistic. You can avoid a tragic motor vehicle accident. In this way you will be able to avoid the tragedy that happened last weekend on Washburn Avenue.

Last month I wrote a blog warning Kentucky auto accident victims that information placed on an accident victim’s social networking site can have an adverse affect on the settlement of their case.  You may have thought that this was Chicken Little yelling that the sky was falling, that I was a little paranoid. Unfortunately a friend of mine, Seattle attorney Chris Davis, has a client that has learned this the hard way. In a blog posted by Davis he tells the horror story of a client that down loaded pictures and videos to his facebook and myspace pages that literally cost him $20,000.00!

            Davis starts his blog with a statement that this is a true story. During the course of litigation Davis’s client posted pictures and videos of himself snowboarding. This was two years after the accident, but before the case was going to trial.  He was going to trial to get compensation for neck and back injuries suffered in a car accident.

Can you imagine the reaction of a jury? They are hearing evidence in a case where the accident victim will be asking for an award of money damages for their pain and suffering. During the trial the attorney hired by the insurance company shows a video of the accident victim speeding down a mountain on a snowboard and then going over jumps, flying several feet in the air and landing with a thump. The case is over at this point.

            I am sorry that Chris had this unfortunate experience. It is horrible to put your blood, sweat, tears and money into a case and work for a client you truly believe in and then have your hard work fall apart before your very eyes. I do want to thank Chris for posting this information so that we can all learn from it.

            You need to be extremely careful in what you post on your facebook, myspace, twitter, etc. You don’t know who will be able to gain access to the information. It may be a potential employer. It could be an insurance adjuster playing cybersleuth. Whether you are a Kentucky accident victim or a Washington accident victim you need to protect yourself by being careful. Learn from this $20,000.00 mistake.

I was having diner at Famous Dave’s Saturday night with my bother-in-law, Tom. Tom is an over the road truck driver so I asked him the question: What irritates you the most about car drivers? He didn’t hesitate in his answer at all. Tom says that the cars all the time cut in front of him and do not give him enough room to stop. This is dangerous and down right stupid.

Trucks because of their size and weight take longer to stop and are much more difficult to maneuver. When you add urgency by a driver who is in his own world you are setting the stage for a car accident. If a truck is involved in an accident the damage and injuries are usually much more severe. Driver’s of commercial vehicles are aware of the different way that trucks handle and must be driven. There is special training for this and you are required to have a commercial driver’s license to operate a commercial vehicle. A car driver also needs to be aware of the difficult nature of driving a truck.

Here is my top 10 list of “What Not To Do While Driving A Car Around A Truck”;

1. Merging onto the highway in front of a truck and not accelerating fast enough.
2. Changing lanes without notice or a turn signal in front of a truck.
3. Making a left turn in front of a truck at an intersection without knowing how fast the truck is going.
4. Disregarding a truck’s right turn signal and driving your car in the lane to the right of the truck.
5. Not allowing a truck to merge into your lane of travel when a proper signal is given.
6. Driving in between large trucks, you may not be visible.
7. Driving too close to the truck in an area where a truck driver can not see you in his mirrors.
8. Passing a truck and cutting back in front of the truck.
9. Passing a truck when it is obvious that a cross wind is moving the truck around.
10. Stopping abruptly in front of a truck.

The bottom line is to be aware of the tucks that are on the road and to respect them. By doing this you can avoid being in a truck accident. Make Kentucky roads safe and pay attention.