Dump Trunks & Cracked Windshields

We are sometimes asked by friends and clients whether dump truck drivers who post those ridiculous signs on the back of their trucks that they “are not responsible for broken windshields” are indeed not liable for such damages.

According to an AJC article that cites two University of Georgia Law Professors who specialize in torts, there is no basis for such a bald disclaimer of liability on behalf of the dump truck driver. As stated by Professor Eaton, “The unilateral declaration of dump truck owner that he is not liable, does not make it so.”

Essentially, the question of whether the dump truck driver is liable comes down to basic negligence, that is, whether the dump truck driver exercised reasonable care. According to Professor Wells, “Whether [the dump truck driver] is liable or not, and the amount of his liability, depends on the circumstances, and whether he acted reasonably in those circumstances, and whether the driver of the car behind acted reasonably.”

An AJC investigation was not able to locate any Georgia statute that shielded dump truck drivers from liability for flying rocks. To read the full article, click here.

I suppose there could be an argument that by driving too closely to the truck and being on notice of the trucks’ contents and potential for spraying out debris, that you can “assume the risk” of the damage and be barred by your actions from recovery. Again, it is not the unilateral statement by the dump truck driver/company but ordinary negligence issues that prevail.

Practically speaking, it will no doubt be an uphill battle with the dump truck company if you suffer a broken windshield due to their driver’s carelessness. You may want to consider protecting yourself by purchasing comprehensive coverage on your car. Some auto insurance companies will even pay for minor cracks without requiring you to pay a deductable, provided you have such comprehensive coverage. This example once again shows how “full coverage” (i.e., the state minimum in liability coverage) may not fully protect you and your automobile.

“First-Party” Bad Faith Claims in Alabama

The attorneys at the Law Offices of Gary O. Bruce often hear from clients in east Alabama, Phenix city, ft. Mitchell, Ft. Benning, Smith Station, and all over the state who have been given the “run-around” by the insurance company after an insurance claim involving their homeowners, life, or health insurance policies.

Many potential clients report that they have paid premiums for years on their homeowners policies only to experience many months of delay in getting “their own” insurance company to pay under the policy when a claim arises. Sometimes the insurance company seems to be trying to pay less than what is actually owed under the policy. Other times, the claim is simply denied outright.

Alabama law provide policy holders with legal rights to protect their families from unscrupulous insurance practices. The protection comes from what is known as a “bad faith” claim. In a nutshell, “bad faith” is anytime the insurance company fails to do what it is legally required to do under the insurance policy. Bad faith is the opposite of good faith, which means doing what you are supposed to in the spirit of the contract.

The Alabama courts created the bad faith cause of action because people seeking insurance benefits are generally in need of help. The law punishes insurance companies who exploit claimants while they are down. The bad faith claim puts a legal duty on the company to treat you fairly when you make a claim.

A quick example: imagine surviving a tornado. Your house and everything in it is completely devastated. Your car is under a tree. You are completely vulnerable. You contact your homeowner’s insurance only to receive the run around. You are told that “these things take time,” and it is a month before an agent for the insurance company even comes to look at your property. Finally, an adjuster comes “to help” but then nothing from the company for months. Despite your repeated calls, you can never talk to a live person and you are constantly transferred to so-and-so’s voicemail who never calls you back. When a call finally does come, the answer is “we can’t pay because you had failed to tell us you had a go-cart in your home and we would not have insured you if we had known about that dangerous vehicle”.

This story is not that far from the truth. Fortunately, the bad faith law suit allows a POLICY HOLDER to hold the insurance companies accountable where the claimant can prove that there was no lawful basis to deny the claim OR there is a failure to properly investigate a claim.

Unfortuantely , it is not that easy. Alabama protects the insurance company on typical bad faith claims by imposing a heightened burden of proof on the policy holder. That is, he must go beyond the usual “more likely than not standard”. The successful policy holder bringing a claim must survive a directed verdict and prove that no reasonable minds could disagree as to the conclusion that the insurance company acted in bad faith. Many bad faith claims fail to make it past summary judgment.

The good news is that Alabama has not let insurers off the hook completely, though. There does still exist a very high duty to investigate claims.

Our practical advice for tornado claimants and others who might be dealing with their own carrier trying to recover insurance proceeds includes

1. carefully document all communications with the insurance company,

2. Require any denial to be in writing with the exact reason for the denial with reference to policy language,

3. Document any delay in claim evaluation by certified letter to the insurance company,

4. In your letter ( send certified mail , return receipt requested) state the exact time of delay in evaluating the claim. (e.g., after 30 days you still have not sent an adjuster to evaluate my tornado damaged home),

5. Submit everything possible that can support your claim to the insurer (photos, receipts, etc.) and , finally, keep a copy of everything.

You must put it in writing. Make a paper trail. Do not rely on the conversation you had with anyone being remembered. Follow up every conversation with a letter outlining what was discussed. This will set them up for ignoring your file with indifference.

Of course, if you need assistance, we are happy to discuss your potential case at any time.

BEWARE THE SCORPION

Many times, just after a wreck, an insurance adjuster will call the victim of the wreck. The property damage will be their “first priority” – as it should be – and they will act as nice as they can. They will act like they care about the injuries the person suffered and share stories of their own woes. They will make every effort to connect , promising that they can help. They will then ask for a recorded statement, a release and then start talking about how to resolve the injury case – now.

Over the years I have seen this scenario played out many times here in Columbus and elsewhere. Recently, a lady came to see me after trying to work with those “nice people “ at the insurance company adjustment office. She gave statements, provided releases for medical records, provided letters from her doctors explaining the life changing situation she was faced with as a result of the wreck and – after almost 2 years ( on the eve of her statue of limitations running out) - she was told “ you were already sick – you already had problems – your case has no value”.
We will file suit immediately to preserve the case and tell the story to someone other than the adjuster.

The whole episode reminded me of a parable which goes something like this:

A turtle is swimming in a lake minding his own business.
He then heard a whistle from the beach.
A scorpion was trying to get his attention and waved to him to come closer.
The turtle swam toward the beach and looked at the scorpion knowing he was a very dangerous creature.
The scorpion yelled to him, “Hey turtle – would you mind helping me get to the other side of the lake. I just need a little help.”
The turtle replied, “And how would I do that?”
The scorpion then said, “I will jump on your back and you can swim to the other side.”
The turtle said, “Are you crazy? You will sting me and I will die!”
The scorpion says, “Why would I do that? We would both die. And if you do this favor for me – I will shout your name from the treetops of what a good person you are.”
So the turtle says to himself, “That this makes sense and I could use a little positive publicity.”
So the turtle swims towards the beach and has the scorpion jump on his back, and starts to swim across the lake.
Halfway across the lake he feels a sting in his neck.
He turns to the scorpion and says, “You stung me! We’re both going to die!! Why would you do it??”
The scorpion’s simple reply, “I’m a scorpion. I sting. Thats what I do!”


Moral – when you connect with a scorpion that says, “I will help you, I wont hurt you. As a matter of fact, I will promote you,” BEWARE!!!