Truck Accident Litigation in the SML Footprint:

Transcription

1 Truck Accident Litigation in the SML Footprint: What You Need to Know if Your Trucks Are Operating in the Southeast Presented by Bennett Crites, Shawn Kalfus, Marc Tucker Moderated by Matt Stone Atlanta Charleston Charlotte Greensboro Greenville Raleigh Wilmington Smith Moore Leatherwood LLP Attorneys at Law

2 Truck Accident Litigation in the SML Footprint Punitive Damages Economic And Non-economic Damages Venue Issues Key Factors To Consider In Trying The Truck Accident Case

3 Punitive Damages

4 Georgia Punitive Damages $250,000 Cap Unless: Products Liability Specific Intent to Harm Under influence of drugs/alcohol Standard willful misconduct Recklessness Malice Conscious indifference to consequences 2016 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.

5 Georgia Punitive Damages Against Driver Never for mere violation of rule of the road Even if cited or deemed at fault Against Motor Carrier only if carrier had actual knowledge of numerous and serious violations on its driver's record or carrier flouted a legal duty to check driving record a record 2016 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.

6 Georgia Avoiding Punitive Damages Keep Everything! Do Your Hiring Homework Keep written Confirmation of: MVR - Pre-employment and annual Pre-Employment Road and Written Tests Contact with Driver s Previous Employers All Drug Tests: Pre-Employment; Post-Accident; Random Meeting Attendance 2016 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.

7 North Carolina Punitive Damages Aggravating circumstance No vicarious liability Officer, director, or manager must participate or condone

8 South Carolina Punitive Damages Held to be insurable Establish by Clear and Convincing Evidence Evidence of willful, wanton, or reckless conduct Willfulness is the conscious failure to exercise due care Violation of a statute is negligence per se that constitutes some evidence of recklessness and willfulness so as to submit the issue of punitive damages to the jury

9 South Carolina Punitive Damages Available in injury and death claims Payable to the plaintiff directly Neither a spouse nor parent are entitled to punitive damages under a derivative claim against the tortfeasor Not reduced by a finding of comparative negligence

10 South Carolina Punitive Damages Capped at greater of $500,000 or 3 times compensatory damages If jury awards greater than this cap, the cap rises to greater of $2,000,000 or 4 times compensatory damages if the trial court determines: Wrongful conduct motivated by unreasonable financial gain and the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was known or approved by the managing agent, director, officer, or the person responsible for making policy decisions on behalf of the defendant; or (2) the defendant s actions could subject the defendant to conviction of a felony and that act or course of conduct is a proximate cause of the plaintiff s damages.

11 South Carolina Punitive Damages No Cap on punitive damages if: At the time of injury the defendant had an intent to harm and Court determines that the defendant s conduct did in fact harm the claimant; or Defendant has pled guilty to or been convicted of a felony arising out of the same act or course of conduct complained of by the plaintiff and that act or course of conduct is a proximate cause of the plaintiff s damages; or Defendant acted or failed to act while under the influence of alcohol, drugs, other than lawfully prescribed drugs administered in accordance with a prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to the degree that the defendant s judgment is substantially impaired.

12 Economic And Non-economic Damages

13 Georgia Damages Special Damages Past Medical Expenses Billed, Not Paid Future Medical Expenses Past Lost Wages Future Lost Wages General Damages Past and future physical and emotional pain, suffering, and loss of enjoyment of life Determined by the "enlightened conscience of the jury."

14 North Carolina Damages Compensatory damages Punitive damages Medical bills

15 South Carolina Damages Plaintiff allowed to board charges billed versus what actually paid or the lien amount South Carolina follows the collateral source rule Damages will not be reduced by the amount Plaintiff has received as compensation for injuries from a wholly independent source such as health insurance, Medicare, Medicaid, or worker s comp Evidence of such payments inadmissible at trial Non-economic damages cap only in medical malpractice cases

16 Venue Issues

17 Georgia Courts

18 Georgia Venue Issues Generally: Urban: Bad Rural: Good Changing Metro Atlanta Change in Jury Summons From Voter Registration to Driver s License Result: Conservative Not So Conservative Cobb (recent $40MM and $20MM verdicts) Gwinnett (unpredictable) Liberal not so Liberal Fulton more balanced

19 North Carolina Courts

20 North Carolina Venue Issues 100 different counties Know the local rules Who will hear your case?

21 South Carolina Courts

22 South Carolina Venue Issues 46 Counties Rotating Judges throughout the state Beware of Rural counties Local firms Local judges 2016 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.

23 Key Factors To Consider In Trying The Truck Accident Case

24 Georgia Key Factor Modified Comparative Negligence Damages Reduced by % of Comparative Fault Plaintiff Barred from Recovery if 50% at fault Example: $100,000 Damages Plaintiff is 40% at Fault = Recovers $60,000 Plaintiff is 50% at Fault = Recovers $0

25 North Carolina Key Factors Contributory negligence Principal - agent relationship Plaintiff s counsel

26 South Carolina Key Factors Modified Comparative Negligence >50% Plaintiff completely barred <50% Plaintiff s recovery reduced in proportion thereto No Joint and Several Liability unless Defendant found to be >50% at fault Tyger River South Carolina s Bad Faith Doctrine

27 Questions?

28 J. Bennett Crites III T bennett.crites@smithmoorelaw.com Matthew P. Stone T matt.stone@smithmoorelaw.com Shawn N. Kalfus T shawn.kalfus@smithmoorelaw.com Marc C. Tucker T marc.tucker@smithmoorelaw.com Smith Moore Leatherwood LLP Attorneys at Law