Sorry about that last post...

Somehow after the page break all the information was deleted. I will try and update it soon.

Have a great weekend.

Video Attempting to Show Visibility Inadmissible

This post involves an accident that occurred on a dark night in February at the intersection of North Market Street and Havens Road in Shreveport, Louisiana.

The defendant, driving a flatbed trailer,  was hit by passenger vehicle that was travelling north on the dark highway. The truck driver was pulling onto the main highway and would have been looking south as the plaintiff approached.

The defendant driver had nearly completed his maneuver on to the highway when his trailer was hit on the left rear tandem. There was speculation that the plaintiff driver was under the influence of alcohol and that he was moving from the inside lane to the outside lane, but the initial investigation by the police was inadequate.  

Plaintiff’s accident reconstruction  expert purported  to represent the conditions of North Market Street at the time of the accident by a video that was  not an accurate representation of the road conditions at the time of the accident and would  likely confuse the jury.

Plaintiff’s accident reconstruction expert recorded a video of the accident scene on a Sony Digital 8 after dark allegedly from the vantage point of each of the vehicles that were involved in the accident. His stated purpose for taking the video was:

(1) "to show the visibility of one vehicle from the vantage point of the other for each vehicle" and (2) "to show the movement of traffic through the intersection." 

The expert's deposition testimony revealed that he took no real precautions to ensure that the video accurately depicted  the conditions of the night of the accident. Relevant portions of the deposition secured the exclusion of the video:

New Motor Carrier Coverage form - Affect of an Indemnification Agreement

Could an indemnification provision in a lease agreement affect coverage?

Answer: Perhaps.

Section II(B) covers exclusions of coverage. Specifically, the New Form states that the policy does not apply to certain designated situations. Included in those situations is number 4:

Employee Indemnification and Employer’s Liability. The policy does not apply to bodily injury arising out of and in the course of employment by the insured or while performing duties related to the conduct of the insured’s business. The policy also does not apply to any spouse, child, parent, or sibling of that employee that is injured while on the job.

This exclusion to coverage applies whether the insured may be liable as an employer or in any other capacity AND to any obligation to share damages or repay someone else who may damaged because of the injury.

The exclusion  to coverage has two exceptions (don't you love exceptions to exclusions? It's like a double negative):

The first is that coverage does apply to bodily injury to domestic employees who are not entitled to worker’s compensation.

The second is that coverage applies to liability assumed by the insured under an insured contract.

I know all of this is frustrating, but I will soon past the differences between the old and new forms.

Take care.

  

 

The New "Motor Carrier Coverage Form" - Who is an insured?

The ISO’s new Motor Carrier Coverage Form (New Form) has required several changes in insurance policies as new policies are being written. Some common questions about the new form are answered below in as simple language as I can make it.

1. How does the New Form change the definition of "insured"?

Answer: The New Form modifies several exceptions to the definition of an "insured." One change is that "trucker" has been replaced with "motor carrier."

Who is an insured?

A. the named insured is an insured for any covered auto

B. Anyone else using a covered auto the named insured owns, hires or borrows with the named insured’s permission - with some exceptions.

The following persons are NOT insureds:

1. When the named insured borrows a covered auto, the party the auto was hired or borrowed from, is not an insured,

2. The named insured’s employees or agents are not insureds if the employees, agents or members of their households own the auto,

3. A repair person is not an insured when the auto is being repaired if that repairperson is in the business of selling, servicing, repairing, parking, or storing autos. The repair person IS insured if the named insured owns the business.

4. Anyone moving property to or from a covered auto (is not an insured) EXCEPT employees, partners of a partnership, members of a LLC, a lessee or borrower of the covered auto, or their employees.

5. The named insured’s partners or members are not insureds for private passenger autos when those autos are owned by the partner, member, or someone in their household.

C. Owners or others the named insured hires or borrows trailers from are insureds while they are attached to the covered power unit OR if not connected, they are insureds when the trailers are used exclusively in the named insured’s business.

The Illusion of a Phantom Truck

Plaintiffs argued that my clients  owned the truck that impacted them and forced them off of the road. The truck that hit the Plaintiffs did not remain at the scene, and the accident report indicated that the Plaintiffs were not able to describe the tractor-trailer at the time of the accident. Consequently, there were serious questions regarding whether the Plaintiffs could meet their burden of proving that my client's  tractor-trailer was involved in the accident.

The Plaintiffs’ basic story was that after they left the accident scene, they went to the BP truck stop at  the next exit from Ithe location of the accident. There they found the truck that caused the accident, but there were many inconsistencies in the details of their story.

After the accident, the plaintiffs spoke to an eyewitness but there were unable to  describe the tractor-trailer, the driver of the tractor-trailer, a partial tag number on the trailer, or any writing or emblem on the tractor-trailer. The eyewitness gave a difference description of the "phantom vehicle."

Later when the plaintiff's went to the truck stop, they wrote down part of a tag number allegedly from my client's truck.

What we learned for sure is that the tag number described by the Plaintiffs did not match the trailer which was in the area at the time, but description of the tractor-trailer given by the Plaintiffs did, for the most part, match my client's  tractor-trailer which was in the area at the time.

The plaintiff stated that the person she saw getting into the truck at the truck stop was a white male. She assumed he was the driver; however, she stated that when she saw him in his rearview mirror on the road she thought that he looked darker. At the truck stop,however, she saw him getting into a truck and thought that his skin looked white.

The Plaintiffs must have gotten this information from somewhere. Since the accident report did not indicate that client's tractor was involved and the tractor described by the witness did  not match my client's tractor, it was probable that the Plaintiffs first saw the  tractor-trailer after the accident.

The driver logs indicated that the tractor-trailer was at the BP truck stop from 6:00 p.m. until 7:00 p.m. The accident occurred at about 6:15 p.m. According to the police records and the testimony of the witnesses, the plaintiffs probably left the accident scene between 7:00 p.m. and 7:20 p.m.

Based on the above information, the possible theories were: