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Federal Agencies
GAO Says Half of Workers Have Not Applied for TWIC
Cross-Border Trucking Demonstration Project Extended for 2 Years; U.S. and Mexican Trucks to Continue Participation
Congress
S 2910: A bill to require brokers to disclose and pay independent truckers for any fuel surcharges received from shippers that relate to fuel costs paid for by the truckers.
HR 3820 — Provides tax incentives and credits to carriers purchasing stability control, collision avoidance, lane departure warning and brake stroke monitoring systems for their commercial vehicles
HR 5977: To amend title 49, United States Code, to require a motor carrier, broker, or freight forwarder that collects a fuel surcharge to disclose and pay the fuel surcharge to the person responsible for bearing the cost of the fuel, and for other purposes.
HR 6532 — Highway Trust Fund Restoration Act signed into law, providing more than $8 billion in federal funding; $4.3 billion deficit anticipated by White House.
State Legislation
California SB 1583 – independent contractors
Kentucky SB 209 — Creates new overweight and overdimension permits for vehicle/trailer combination; Permit cabinet to require insured to give bond to indemnify state or county against highway or bridge
State Agencies
U.S. Secretary of Transportation Announces $679 Million for States to Repair Damaged Roads and Bridges
Decisions & Opinions
Hoag v. Amex Ins. Co., No. 461, 2007 – Dismissal of plaintiff's uninsured-motorist claim as a sanction for his failure to provide discovery as ordered by the trial court was neither too extreme nor an abuse of discretion where the failures were willful and repeated
Mahaffey v. Gen. Sec. Ins. Co., No. 07-31132
Dispute between two insurers over coverage for a commercial truck accident, summary judgment for defendant-trucking insurer reversed - driver of the truck was acting in the business of the truck's lessee at time of accident - defendant-nontrucking insurer therefore not primary insurer
Jury Verdicts
$23,903,434 VERDICT — Vehicle Negligence – Vicarious Liability – Elderly man rendered quadriplegic following accident with speeding ambulance
$12,050,000 VERDICT - Defendant trucker fails to properly secure turnbuckle
$1,488,000 VERDICT - Rear end collision - Mild traumatic brain injury with cognitive deficits - Damages and causation only
Other News
NBC "TODAY" Show Highlights Trucking
Knighthood for penguin
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COAST TO COAST QUARTERLY
Transportation and Insurance Newsletter |
Volume 3, Issue 2 |
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McElfish Law Firm |
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The Wilshire Decision: Revisiting California Insurance Code Section 11580.9
By Tyrone Toczauer, Esq. |
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In November of 2004, the California Appellate Courts, 4th District, covering the Southern portion of the State of California, decided the case of Wilshire Insurance Company, Inc. v. Sentry Select Insurance Company (2004) 124 Cal.App.4th 27, 21 Cal.Rptr. 3d 60. In that decision, the Justices dealt with the Application of California Insurance Code Section 11580.9. California Insurance Code Section 11580.9 was found to identify four different circumstances under which two or more policies of automobile or motor vehicle insurance may afford coverage to the same loss. The Court dealt specifically with subsection (d) of the statute which states as follows:
“(d) Except as provided in subdivisions (a), (b), and (c), where two or more policies afford valid and collectible liability insurance applied to the same motor vehicle or vehicles in an occurrence out of which a liability loss shall arise, it shall be conclusively presumed that the insurance afforded by the policy in which the motor vehicle is described or rated as an owned
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automobile shall be primary and the insurance afforded by any other policy or policies shall be excess.”
We first reviewed this decision in 2005. Its applicability to the trucking industry is significant and the Wilshire Court went to great lengths to confirm that pursuant to findings in Mission Insurance Company v. Hartford Insurance Company (1984) 155 Cal.App.3d 1199, 202 Cal.Rptr. 635, and Transport Indemnity Company v. Royal Insurance Company (1987) 189 Cal.App.3d 250, 234 Cal.Rptr. 516, the tractor-trailer unit shall be viewed as the “same motor vehicle” for purposes of the insurance coverage. In other words, the tractor-trailers are considered one vehicle for purposes of applying this Insurance Code.
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Tyrone I. Toczauer, Esq.
McElfish Law Firm
1112 N. Sherbourne Drive
West Hollywood, California 90069
Telephone: (310) 659-4900
Facsimile: (310) 659-4926
ttoczauer@mcelfishlaw.com
www.mcelfishlaw.com |
Arguing Damages for Injuries
By Paul N. Luvera, Esq.
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What is the purpose of civil tort law anyway?
Is the sole objective of a civil tort action really just the money? Is it the primary role of the advocate for the injured to be an instrument to collect as much as he or she can from a defendant being sued? Do we measure and compare success of civil trial lawyers by the amount of the verdict they are able to achieve? If so, our professional role is comparable to a door-to-door siding salesperson. The exclusive role of the advocate in a civil tort case is to achieve justice for his or her client. Under our system, justice in such a case is measured by a verdict of money, for those who are legally entitled to it, which represents a sum equal to harm done. If the harm is slight, the verdict in dollars should be slight. If the harm is great, the verdict in dollars should be great.
However, the purpose of civil tort law includes more than simply determining the sum of money that is equal to the harm.
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The law of torts serves two basic functions: it seeks to prevent future harm through the deterring effect of potential liability and it provides a remedy for damages suffered. ( Medina v Pub. Util. Dist. No. 1 of Benton County (2002) 147 Wash.2d 303 324 [53 P.3d 995]; See also: Babcock v State by and through Dept. of Health & Soc. Svcs. (1989) 112 Wash.2d 113 [768 P.2d 481].)
Justice, under civil tort law, is intended to discourage future conduct through a finding of fault and to reasonably and fairly compensate the injured person for the damages sustained. Every tort rule, to some extent, is intended to both deter other wrongdoers as well as to compensate the injured person. (Restatement 2 nd Conflicts of Law sec 1456 p. 416) This is true irrespective of whether the law allows punitive damages or not. It is an inherent part of our tort law.
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Paul N. Luvera, Esq.
The Luvera Law Firm
Columbia Center
701 5th Ave Suite 6700
Seattle, Washington 98104
Telephone: (206) 467-6090
Facsimile: (206) 467-6961
www.luveralawfirm.com
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Mediation Roadmap: The Mediation Brief - Plain English Trumps Legalese
By Joan B. Kessler, Esq. |
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Over 20 years ago, I wrote an article for the Loyola Law Review which I coauthored with Robert Benson, one of my favorite law professors.It was entitled, Legalese v. Plain English: An Empirical Study of Persuasion and Credibility in Appellate Brief Writing, 20 Loyola of Los Angeles Law Review 301 (January, 1987) (Plain English) Eventually this article, which got much publicity, was also published in Japanese.
The conclusions that Professor Benson and I came up with in that early article still seem true today as I sit and read mediation briefs before each mediation session. I share the insights I gained from that research study as helpful hints in your own brief preparation for your mediations. That project had to do with appellate-brief writing. The concept of a brief being a roadmap to the case and an introduction of the attorney to the reader, holds true in the mediation context also.
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Original study
In setting up the study of the effectiveness of appellate-brief writing, we wanted to find out what jurists thought was persuasive. Data for the study were collected while I worked as an extern at the California Court of Appeal (Second District) in Los Angeles for my now colleague at ADR Services, Inc., Hon. Robert Feinerman (Ret.). Research attorneys and justices participated as subjects. (Research attorneys were employed by justices to assist in research and analysis of cases. They read briefs and prepared written analyses for the justices.) The subjects were randomly given “legalese” segments or rewritten “plain English” segments of briefs. I left the subjects alone to read segments and fill in the answers to questionnaires. After the project, some of the justices told me stories about receiving poorly written appellate briefs previously.
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Joan B. Kessler Esq.
ADR Services, Inc.
1900 Ave. of the Stars, Suite 250
Los Angeles, California 90067
Telephone: (310) 201-0010
Facsimile: (310) 201-0016
jkessler@adrservices.org
www.joanbkessler.com
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