April 9, 2014

Can electronic truck driver logs be cheated?

Over the years in my Atlanta based trucking litigation practice, I have had truck drivers tell me – reluctantly in deposition testimony, and sometimes voluntarily in confidential talks over coffee at roadside Waffle Houses – how paper logs of their hours of service are easily fabricated “comic books.”

Often I have gone behind those records to a variety of electronic records of a variety of related transactions to prove that the logs were wildly inaccurate. With tractor trailers now becoming rolling computer networks, I have anticipated that those who are motivated to cheat would find ways to cheat the computers too.

More than three million truck drivers in the United States are facing a regulatory upheaval which will cost the industry an estimates $2 billion and change the ways in which many truck drivers operate. Over the next few years it will become mandatory, by law, for all American truckers to carry an electronic onboard recorder (EOBR) in their vehicles. Although there are a number of EOBR on the market, in order to comply with the incoming federal mandate the device must all be able to track when a truck’s engine is running, record its duty status and ensure that drivers aren’t working for more than 14 consecutive hours, including a maximum of 11 actual driving hours within that window.

The idea is to make the mandatory “Hours of Service” logs that trucking companies are supposed to keep more accurate. The underlying objective is to reduce fatigue related crashes involving truck drivers who have been on the road over the legal amount of hours. But the new systems alone may not be a panacea for all driver fatigue risks.

Of course, a lot of truck drivers resist closer monitoring of their hours of service. I have heard truck drivers say it was nobody’s *#$%@ business” how many hours they work, apparently oblivious to the safety risks inherent in fatigued operation of an 80,000 pound vehicle.

Other trucks acknowledge that the new EOBR system is a step in the right direction and even helps them financially. One veteran trucker was recently quoted in a media report saying, “My gross revenues have been up year over year each year since using the electronic logs. Now is it due to the electronic logs? Not the machine itself, it’s the efficiency that’s been forced onto us by the machine.”

Resistance to change comes from the group of veterans that have been on the road for decades. One veteran trucker explained, “I worked better in a ‘nobody-hassling-me’ kind of environment. I modified my operation to make it work. As much as the libertarian in me says no to mandates, they’re coming. You might as well just wake up, face it, and deal with it.”

Concerns about the devices come from the people pushing for mandates as well as the truck drivers themselves. Truckers are fearful that this new device will be used more like a babysitter than a tool for change. Many are aware that a record which shows a trucker is slightly harder on fuel thanks to the way he revs, idles, and brakes could mean that he won’t get a job in an increasingly competitive market. Fears that trucking companies could misuse their expanded awareness have already been expressed in the courts. In 2011 the Owner Operator Independent Drivers Association (OOIDA) launched a lawsuit against the Federal Motor Carrier Safety Administration (FMCSA), the authority responsible for drafting the new mandate.

OOIDA complained that there was a risk of driver harassment in which carriers might persuade their drivers to get back on the road and complete a run even after they have passed the 11 hour limit that drivers are given to be on the road for a day. The worry was the fatigue, weather conditions, and traffic problems could all be problems that are ignored for the sake of the time sheet. There is also a growing concern about the reliability of the devices that the mandate specifies be in the vehicle.

According to Karen Levy, a PhD candidate in the Department of Sociology at Princeton, many drivers are already experimenting with hacks and methods of tampering. “Truckers are a particularly savvy and motivated bunch,” she says. “Some driver have figured out how to temporarily disconnect certain EOBR models from the truck, or to otherwise block their signals so they can’t record data. Another approach is to drive using multiple driver ID numbers which are sometimes called “ghost logs.”

New products, such as the Safety Pass Pro, enable truck drivers to override speed governors that their companies install to limit them to safe speeds. While the product is sold as a safety feature to facilitate passing or to slow down so that a “road rage” driver can pass the truck, it does not take a genius to understand how this can be used to enable truckers to drive at unsafe speeds.

Some examples of cheats and hacks I have heard about from truckers include: (1) when stuck in traffic, take the truck out of gear and snub out the truck, shifting the log from “driving time” to “off duty not driving”; (2) if an activity is under 5 minutes, the driver can fudge it back into the last duty status, so that a short hop from a truck stop to a terminal might not be recorded as driving time. These types of e-log hacks would not be detected in a surface scan but could raise questions in an in-depth log audit that compares logs to GPS locations.

Today, OOISA says it is not currently planning any further legal challenges against the FMCSA, whose rulemaking is nearly complete. Most observers believe the final rule will be enforceable on American highways by 2015.

Going forward in trucking accident litigation, we face new challenges in looking behind the electronic logs for cheats, hacks and truth.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of catastrophic personal injury and wrongful death.

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February 25, 2014

Will new program protect your family against impaired truck drivers?

In 2003, a 15-year-old girl who had been in Brownies with my daughter was killed when her family’s vehicle was rear-ended by a tractor trailer on an interstate highway. She was riding in the back seat en route to a summer camp. The truck driver was charged with DUI. That event is in the back of my mind whenever a question arises of whether a truck driver may have been impaired at the time of a crash.

To be clear, most interstate truck drivers are highly responsible, safety conscious and would never dream of driving when impaired from alcohol or drugs.

But there are those who use stimulants, sometimes including meth or cocaine, to stay up for long driving hours, or who get behind the wheel after drinking. Others use either prescription or over the counter drugs which can affect attentiveness.

Aware of that risk, the Federal Motor Carrier Safety Regulations require mandatory post-accident alcohol and drug tests whenever anyone is killed or removed from that crash scene by ambulance, and when any vehicle is towed from a wreck with an interstate commercial vehicle and when.

Until now, however, there has not been an easy way to check on whether a truck driver has a history of driving under the influence.

On February 20th, the Federal Motor Carrier Safety Administration published a proposed rule that would establish a database of drivers with a commercial driver’s license (CDL) who have failed or refused to take a drug or alcohol test. This clearinghouse may help improve roadway safety by making it easier to determine whether a truck or bus driver is prohibited from operating a commercial motor vehicle for failing to comply with federal drug and alcohol regulations, including mandatory testing.

Current federal regulations require employers to conduct mandatory pre-employment screening of CDL driver qualifications based upon their driving record. However, there are not been a single federal repository recording positive drug and alcohol tests by CDL holder that employers would be able to search to ensure the driver is able to perform at a job where safety is the number one concern.

“Safety is our highest priority, and we will continue to embrace new tools and opportunities that protect the travelers on our nation's roads," said U.S. Transportation Secretary Anthony Foxx. "Today's proposal will help ensure dangerous drivers stay off the road, while encouraging the employment of the many safe drivers who follow our drug and alcohol requirements."

The proposed rule would give employers access to invaluable information with ease. The new rule also require employers to conduct pre-employment searches through the repository for all new CDL drivers and annual searched on drivers they currently employ.

"We are leveraging technology to create a one-stop verification point to help companies hire drug and alcohol-free drivers," said FMCSA Administrator Anne S. Ferro. "This proposal moves us further down the road toward improving safety for truck and bus companies, commercial drivers and the motoring public everywhere."

Under the proposed regulation, FMCSA-regulated truck and bus companies, Medical Review Officers, Substance Abuse Professionals, and private third-party USDOT drug and alcohol testing laboratories would be required to record information about any driver who:

• Fails a drug and/or alcohol test
• Refuses to submit a drug and/or alcohol test; and
• Successfully completes a substance abuse program and is legally qualified to return to duty.

Private, third-party USDOT drug and alcohol testing laboratories would also be required to report summary information annually so that they can help identify companies that do not have a testing program. To ensure the privacy of the drivers involved, each CDL holder would need to provide their consent before an employer could access the clearinghouse.

Drivers who refuse to provide their testing information could still be employed by the truck or bus company; however, they could not occupy safety-sensitive positions such as operating a commercial motor vehicle.

It is a violation of federal regulations to drive a truck or bus under the influence of a controlled substance or under the influence of alcohol. Federal safety regulations require that truck and bus companies that employ CDL drivers conduct random drug and alcohol testing programs. Carriers must randomly test 10 percent of their CDL drivers for alcohol and 50 percent of their CDL drivers for drugs each year.

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October 23, 2013

Good truck drivers sound off about rogue trucking companies pushing them to break the law

As a trucking accident personal injury and wrongful death lawyer based in Atlanta, I get a chance to see the trucking safety issues from the point of view of both innocent folks who are run over by tractor trailers and truck drivers who are themselves put at risk by companies that care too little about safety.

A blogging truck driver at Go By Truck News wrote this week that "A rogue motor carrier is a truck driver's worst nightmare."

He wrote that last year, D.A. Landis Trucking, Inc. was charged with conspiracy for ordering drivers to falsify their daily logbooks, maintain two sets of logs, falsely certify accuracy of the lying logs, had dispatchers also knowingly dispatched drivers on trips that were truck accidentto exceed hours-of-service requirements.

That is old news to those of us who have been digging through truck drivers' logs and trip documents and both deposing and interviewing truck drivers.

He also gathered these tweets from tired truck drivers:

– “My dispatcher goes retarded when I tried to tell them I have only 1 hr left to drive.”

– “I have heard this from many dispatchers before. Come on we need you for one more.”

– “When it comes to driving we have 65mph trks n 100mph dispatchers with 26 hrs in a day!”

– “Dispatch was kind enough to plan my first load for 4am central time. My paperwork is invalid and dispatch won’t be in for another 3 hrs.”

Go By Truck News urges truck drivers to check the safety records of any company they consider working for, and to make sure they know the rules, including these:

FMCSR 392.6 Schedules to conform with speed limits. “No motor carrier shall require a run nor permit nor require the operation of any commercial motor vehicle between points in such period of time as would necessitate the commercial vehicle being operated at speed greater than those prescribed by the jurisdictions in or through which the commercial motor vehicle is being operated.”

FMCSR 390.13 Aiding or abetting violations. “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.”

FMCSR 392.3 Ill or fatigued operator. “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.” (This regulation was mentioned in my prior article and worth repeating again here).

He is spot on in stating that, "A good safety director will educate a driver about these regulations, rewarding and not penalizing a driver for declining to take a load if they are too fatigued. A good company with a pattern of safe behavior will give a trucker an opportunity to develop a disciplined sleep routine."

He urges that, "it’s often the employer / load planner / dispatcher pushing the trucker beyond their limits. However, all truckers should take a stand with the Trucker Mike’s 'Mantra' – 'I will NEVER let anyone ‘push’ me, instead I’ll be fired for being SAFE if need be!'”

This afternoon, my friend Steve Gursten in Michigan forwarded this plea he received from a truck driver who wants to drive safely but works for a rogue trucking company that won't allow him to follow the law:

The company that I drive for has me doing illegal runs. I feel if I don't do them my miles will be cut or they will find a way to get rid of me. I need to care for my family. I have been too many companies and they are all the same. The one I'm with now is the worst. I'm looking for other employment and coping the best I can. Is there anyone I can talk to like a whistle blower organization? Or maybe a letter too the sec of transportation? Companies, dispatchers, shippers and receivers need to be held accountable. Until we have better legislation in place to address this, us truckers will always be at the bottom of the hill. And of course we know which direction s##t rolls.


That is right in line with my impression over the years that most truck drivers are just ordinary good guys working hard to make a living, but are too often pushed by employers, motor carriers, shippers, brokers, etc., to make illegal runs on impossible schedules, so that they are often pushed beyond the limits of human endurance.

That is why I generally try to handle these cases by digging for a root cause analysis in the corporate safety management system -- or lack thereof.

I suggested referring this guy to Truckers Justice Center in Minnesota, operated by a lawyer who represents whistle blowing truck drivers nationwide

If your or a family member were run over by a tractor trailer, or if you are a truck driver badly injured in the line of duty, I would be glad to talk with you with no obligation.

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October 23, 2013

What Sleep Deprivation Does to the Brain


Sleep deprivation among overworked big rig truck drivers is a well-known safety hazard on the highways. For years there have been political, regulatory and court battles over which driver fatigue and hours-of-service regulations should be implemented.

It is intuitive common sense that sleep deprivation reduces alertness in any job, including one that involves operating an 80,000 pound vehicle across the county on our highways so that dozing off can be a major threat to safety of others. Truck drivers are not different from the rest of us. They just operate bigger machines on the roads.

Now we have a little more science to explain the need for sleep. Researchers at the University of Rochester have found that sleep serves a function of cleaning out toxic waste products produced by cells in the brain that accumulates while we are awake. Those byproducts include beta-amyloid protein, clumps of which form plaques found in the brains of Alzheimer’s patients. Other neurodegenerative disorders, such as Parkinson’s disease or chronic traumatic encephalopathy, are also associated with a backup of too much cell waste in the brain.

Thus, sleep has been called the “ultimate brain washer.”
As we sleep, neurons shrink, widening channels for cerebrospinal fluid to flush out metabolites, cellular waste products, twice as fast. This a network that drains waste from the brain, called the glymphatic system, works by circulating cerebrospinal fluid throughout the brain tissue and flushing waste into the bloodstream, which then carries it to the liver for detoxification and elimination. All of us need sleep to allow this to happen.

When we become chronically sleep derived, gunk builds up in our brains. As most of us have experienced, too little sleep causes slower reactions, worse decision making, mental fog and crankiness. If sleep deprivation persists, it can cause increased risks of migraines, seizures and even death. As the body craves sleep, it will take precedence over our work duties.

In my law practice, I have often discussed fatigue issues with truck drivers. One who stands out in my memory was a trucker from Ohio who reluctantly admitted in deposition that his entire log was falsified to make his trips look good. But the truth was that he had been driving 20 of the previous 24 hours when he hit a family and killed their son. His plan to was to make a quick turnaround in Atlanta and go straight back to Ohio. If he had made it that far, he would have been driving for something like 32 hours out of 40. His employer had no system in place to guard against that. A federal judge stated in an order that the company “turned a blind eye to safety.”

Other interstate truck drivers have told me informally, sometimes over many cups of coffee at a Waffle House or truck stop along the interstate, of being pressured by trucking companies, shipper and brokers to make delivery runs that could not possibly be made without violating hours-of-service rules. Sometimes there are long delays in getting loads, which they are then expected to get across the country by a delivery deadline that is not adjusted to the load time. The entire malfunction of the logistics system is dumped on the weary shoulders of a truck driver who is only human.

That is why in trucking cases we seek the root cause of a crash, which often is in the company’s management system that ignores the body’s need for rest, rather just a tired driver’s actions in the last ten seconds before a crash.

Most of us who have endured long periods of chronic sleep deprivation due to demands of work, parenting or other activities, can relate to the effects of chronic fatigue and sleep deprivation on professional truck drivers. While there is a temptation to take pride in ability to soldier on without adequate sleep, biology ultimately catches up with us all.

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October 18, 2013

Congress requires FMCSA to set rules on sleep apnea testing and treatment for truck drivers

Despite the political gridlock and recent shutdown of the federal government, Congress has managed to pass legislation to address the danger of sleep apnea in the trucking industry. At this writing, it awaits the President's signature.

House Resolution 3095 is a simple, two-page bill sponsored by two members of Congress sped through Congress. It requires the Federal Motor Carrier Safety Administration to commit to formal rule making on sleep apnea testing and treatment for truckers and other professional drivers.

The trucking industry, predictably enough, estimates that “the impact of screening, diagnosis, and treatment for obstructive sleep apnea could exceed $1 billion annually.” But that is a bargain compared to the carnage on the highways due to drivers of 80,000 pound tractor trailers falling asleep at the wheel.

The downside of this, warns my friend Michael Leizerman in Ohio, is that by requiring the FMCSA to go through full rulemaking and cost-benefit analysis when addressing screening, testing or treatment of sleep apnea, it may delay rather than speed up efforts to address the very real problem of sleep apnea. As Michael pointed out in a recent blog post, the FMCSA has already published the online Fatigue Management Training program and has many simple and inexpensive ideas to make fatigue awareness part of a motor carrier’s safety culture.

Untreated sleep apnea can lead to fatigued driving and is thus a medically disqualifying condition for truck drivers. FMCSR 391.41(b)(5). We have seen too many cases in which our clients were run over by truck drivers who were often good folks but were dangerous behind the wheel due to fatigue, drowsiness and untreated sleep apnea.

As Michael Leizerman has pointed out, this legislation requires the FMCSA to go through a full rule making process which will add years of delay to the implementation of much needed efforts to forcefully address the problem of sleep apnea among truck drivers.

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October 1, 2013

Motor Carrier Safety Rules Apply Even To Many Smaller Commercial Vehicles

Most attorneys who are familiar with the Federal Motor Carrier Safety Regulations (FMCSRs) and state trucking safety regulations think they apply only to tractor trailers, tour buses and other very large vehicles for which the driver must have a Commercial Driver’s License (CDL).

What most lawyers do not know is that the regulations may also apply to many commercial vehicles, including many work vehicles such as large pickups towing utility trailers.

A CDL isn’t required to drive smaller utility vehicles and trailers, but they may still be governed by federal or state trucking safety regulations. There are two definitions with which a lawyer handling these cases should be familiar in order to understand how to apply trucking safety regulations to non-CDL drivers

First is Gross Vehicle Weight Rating (GVWR) and it is what a vehicle manufacturer defines as the vehicles loaded weight. This weight is usually printed on a plate that can be found on the inside of the driver’s door. Most passenger cars have a GVWR of 5000 or less and full-sized pick up trucks will have a GVWR of 6000 to 8000 pounds.

Second is Gross Combination Weight Rating (GCWR). This is the GVWR of the power unit (the towing vehicle) plus the weight of the unit being towed with any load that it is carrying.

The FMCSR contain two definitions of what constitutes a property-carrying commercial motor vehicle. The first definition, found at 49 CFR § 390.5, defines it as “any self-propelled or towed motor vehicle used on a highway or interstate commerce… (that) has a Gross Vehicle Weight Rating or Gross Combination Weight Rating of 10,001 pounds or more.”

The second definition, found at 49 C.F.R. § § 383.5, defines a commercial motor vehicle as a vehicle used in interstate or intrastate commerce that has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle rating of more than 10,000 pounds.

When both the definitions and regulations are put together, a business vehicle that weighs over 10,001 pounds (alone or in combination with a trailer) can be considered a commercial motor vehicle.

This means that a 7000 pound pickup truck pulling 3001 pound trailer can meet the definition of a commercial motor vehicle, even though a commercial drivers license isn’t required for CMVs that are under 26,001 pounds.

Whenever we evaluate a case that involves any size truck or van towing a trailer, we must determine the GCWR because it could be a commercial vehicle required to comply with either federal or state trucking regulations.

If the vehicle qualifies as a commercial motor vehicle, the next step is to determine what safety regulations apply. That will depend initially on whether the commercial vehicle operates in interstate commerce

With some minor variations, most of the FMCSRs apply to the operation of non-CDL commercial motor vehicles. The only extra regulations that govern over 26,001 pound CMVs are those that specifically address CDL licensing ( 49 CFR §383) and drug and alcohol testing (49 CFR §382.)

Here are some of the most important regulations and how they apply.

• Most of the FMCSR and the state equivalent thereof are applicable to all commercial motor vehicles regardless of whether a commercial driver’s license is required to operate the vehicle or not.
• Businesses that operate commercial motor vehicles must register and obtain authority from state and federal trucking authorities. This means everyone from landscape companies to plumbing companies that own and operate vehicles alone or together with a towed trailer weigh over 10,001 pounds must register and follow the regulations that are not just for “trucking companies.”
• Employers of non-CDL CMV drivers are required to “qualify” each driver in the same way as employers of CDL drivers and must maintain an up-to-date Driver Qualification File on each driver (49 CFR §391.) This includes ensuring that drivers meet minimum requirements of being over the age of 21, having the ability to read and speak English, and have both the physical and medical qualifications as CDL drivers. This also requires the employer to obtain a detailed application for employment, perform a detailed background check, obtain annual review of driving records, and perform annual re-qualification of the driver. The only significant difference for CDL drivers is that they are required to give 10 years of employment history instead of the 3 years for non-CDL drivers.
• Most regulations pertaining to the safe operation of commercial motor vehicles apply to the operation of both CDL and non-CDL motor vehicles. This includes prohibitions against drugs, alcohol, radar detectors, unauthorized passengers, texting, handheld devices while operating the vehicle, and operating while ill or fatigued. It also includes requirements for seat belts, emergency equipment, inspections, stopping at railroad crossing, use of extreme caution when operating in poor conditions including rain and fog. See 49 CFR §392 for detailed information on these items.
• For the most part, the same hours of service rules apply to both CDL and non-CDL drivers. The biggest exception has to do with driver daily logs. Except when operating only in a 150 air-mile short haul radius zone drivers that operate CMVs that require a CDL are typically required to keep a detailed 24 hour driver log that shows all changes in duty status although there are some exceptions to this. Most drivers of CMVs that don’t require a CDL are under the qualification of short-haul drivers. As long as they operate within a 150 air-mile radius and return to their base at the end of each trip, they typically aren’t required to keep such a log. However, the employer is required to keep accurate time records showing the time the driver reported for work, when they were released, and total work time for the day as well as the previous seven days. The employer is also required to keep these records for six months.
• Many employers fail to maintain accurate time records for non-CDL drivers. Failure to keep these records raises a presumption of violation. You should also be on the lookout for drivers who hold more than one job. Hours of service regulations apply to all work performed regardless of how many jobs a driver has during the reporting period.

But mere applicability of the regulations to smaller commercial vehicles does not make either the physics of a collision or the dynamics in the courtroom or jury room the same as when an 80,000 pound runs over a family vehicle. The advocate for individuals and families hurt in these collisions must evaluate the whole situation, taking into account the facts, the law and the psychological factors in play.

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September 23, 2013

National Truck Driver Appreciation Week

As a trucking trial attorney in Atlanta, I represent both people in other vehicles who are injured in wrecks with trucks and truck drivers who are injured in collisions. Truck driving is among the most dangerous occupations. I recognize that most truck drivers are safety conscious and hard working folks who work incredibly long hours to support their families. When those who are not safety conscious or are pushed by their employers to break rules in order to work injure other people, the focus is usually on the corporate employer whose management practices are the root cause of the tragedy. And when hard working truck drivers are hurt or killed due to the negligence of others, I am proud to represent them.

American Trucking Associations asked drivers to reflect and appreciate the 3.1 million professional truck drivers last week for the 25th annual National Truck Driver Appreciation Week. The week was dedicated to showing appreciation to the millions of truck drivers that deliver America’s freight safely and securely every day.

“For 52 weeks a year, America’s professional truck drivers make sure that our most essential items – food, fuel, medicine, clothing,” said ATA President and CEO Bill Graves, “are delivered and lately they are doing so more safely and efficiently than ever before despite increasingly congested highways and ever more demanding logistics schedules. Their commitment is second-to-none and that’s why we’re asking that Americans take a few minutes to appreciate the effort these professionals put in every day.”

During the 25th anniversary of National Truck Driver Appreciation Week, state affiliates and America’s Road Team Captains made sure the event would be special by holding events across the nation. Celebrations last week were hosted by motor carriers, shippers, and other trucking related industries.

Some of the ways in which trucking industries showed their appreciation included million-mile and safety awards, cash bonuses or gifts, an extra paid day off, a cup of coffee or windshield cleaning at truck stops, goodie bags with fresh fruit and water, free health checks, and celebration meals. There were many events that lasted all week so that every driver could experience some sort of gratitude as they cycled through shifts.

The trucking industry continues to be a large part of America’s economy. Below are a few statistics that shows just how important the money brought in by the trucking industry really helps the economy. For instance, did you know the trucking sector dominates the commercial transportation industry by 83.7%?

• The trucking industry is expected to grow by 21% over the next 10 years

• The trucking industry collects $650 billion in annual revenue, which is 5% of America’s GDP

• The top 5 tractor-trailer registrations are in Florida, Texas, California, Alabama and Georgia

• There are 761,850 registered tractor-trailer drivers and 49,920 registered light truck and delivery drivers

• The annual expenditure in driver earnings equals to $30,660,552,900

• The value of shipped goods equals $139,463,000,000 per year, $382,090,411 per day, and $4,422 per second

• 3,000,000 class 8 trucks (18 wheelers) are registered in the US

• There are 54,000,000 individual truck tires on the road, equaling 5,400,000,000 pounds of rubber

• Truckers cover 93,512,000,000 highway miles each year, 256,197,260 per day, and 2,965 per second, equaling 3,755,351 times around earth

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August 14, 2013

Georgia opens door to better uninsured motorist coverage amounts for truck drivers

Truck driving is one of the most dangerous jobs around. Over the years I have represented individuals and families who were hurt when hit by a big truck. I have also successfully represented a number of truck drivers injured due to the carelessness of the driver of a smaller vehicle or other truckers.

One of the big concerns in suing the driver of an ordinary passenger car for serious injury to a truck driver is that the car may have inadequate insurance coverage to adequately compensate the seriously injured truck driver.

A recent decision by the Georgia Court of Appeals may change that.
In McGraw v. IDS Property & Cas. Ins. Co., --- S.E.2d ----, 2013 WL 3215464 (Ga.App., decided June 27, 2013)( Reconsideration Denied July 5, 2013), the Court applied in the commercial vehicle context a statute passed in 2008 to require that automobile insurance policies must include Uninsured Motorist (UM) coverage equal to the amount of liability coverage unless the policyholder affirmatively elects UM coverage in a lesser amount.

OCGA § 33–7–11(a)(1) “requires insurance policies issued in Georgia to contain provisions for UM coverage which at the option of the insured shall be (i) not less than $25,000 per person, or (ii) equal to the policy's bodily injury liability insurance coverage, if higher than $25,000 per person.” Infinity Gen. Ins. Co. v. Litton, 308 Ga.App. 497, 499(2), 707 S.E.2d 885 (2011). This Code section further provides that “[i]n any event, the insured may affirmatively choose [UM] limits in an amount less than the limits of liability [for bodily injury].” OCGA § 33–7–11(a)(1)(B). “This Code section was intended to make a policy's liability limits the default provision for UM coverage, unless an insured affirmatively elects UM coverage in a lesser amount.” Infinity Gen. Ins. Co., 308 Ga.App. at 499(2), 707 S.E.2d 885 (citation omitted).

Therefore, when a vehicle insurance policy limits UM coverage to an amount less than the policy's bodily liability limits without the insured having affirmatively chosen that lesser amount, the policy is not in compliance with OCGA § 33–7–11(a)(1). When that happens, the requirements of the statute take control over the terms of the policy. See OCGA § 33–24–12(a) provides that an otherwise valid insurance policy that contains a condition or provision not in compliance with the requirements of Title 33 “shall be construed and applied in accordance with such conditions and provisions as would have applied had the policy ... been in full compliance with this title.”

In Dees v. Logan, 282 Ga. 815, 816, 653 S.E.2d 735 (2007), the court held, “When an uninsured motorist policy provision is in conflict with the clear intent of OCGA § 33–7–11, the policy provision is unenforceable and the statute controls.” When an insurer issues a policy with provisions not in compliance with the law the contract will not be rendered void but the provisions of the statute will be grafted into the policy”. Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 714(3), 300 S.E.2d 673 (1983).

In the McGraw case, the policy application included no signed election of UM coverage than the liability coverage. While the declarations page specifies UM coverage limits at the lesser amount, this cannot support an inference that the policyholder made an affirmative choice among the various UM coverage options available under OCGA § 33–7–11(a)(1), because it raised merely a conjecture or possibility of that fact.

Because an earlier policy, by default, provided this higher amount of UM coverage, the insurance company could not “renew” that policy with a lesser amount of coverage because, under OCGA § 33–24–45(b)(2), a policy renewal must provide “no less than the coverage contained in the superseded policy”). The superseding policies, therefore, would also provide the higher default amount of UM coverage unless the policyholder affirmatively chose the lesser amount.

So if a company vehicle has $100,000 liability coverage, there is no affirmative written rejection of equal UM coverage in the files, and an employee is injured in a collision caused by a motorist with $25,000 coverage or even no coverage, then the uninsured motorist coverage on the company vehicle automatically increases to $100,000.

Now consider the potential importance of this to a seriously injured truck driver. The minimum liability coverage for interstate motor carriers is $750,000, but most we see carry $1,000,000 and many strong trucking companies carry several million dollars of coverage in several layers. Even intrastate trucking companies, who are only required to carry $100,000 liability coverage, often carry $1 million or more in coverage.

If a truck driver has a catastrophic injury or is killed in a crash caused by a minimally insured driver, and the trucking company’s insurance policy was “issued or delivered” in Georgia without an affirmative election of UM coverage less than the liability coverage, this may provide a means to collect on a judgment against the uninsured or underinsured motorist who caused the crash.

This will not help the trucker for a company whose insurer did not “issue or deliver” the policy in Georgia. When I saw this decision I immediately went through my cases where I am representing truck drivers, and all of their policies were issued and delivered is other states.

I do not expect insurers for trucking companies to voluntarily open the records or the checkbook on such claims. We can in Georgia request coverage information from insurers before suit under O.C.G.A § 33-3-28, which provides in part:

“Every insurer providing liability or casualty insurance coverage in this state and which is or may be liable to pay all or a part of any claim shall provide, within 60 days of receiving a written request from the claimant, a statement, under oath, of a corporate officer or the insurer's claims manager stating with regard to each known policy of insurance issued by it, including excess or umbrella insurance, the name of the insurer, the name of each insured, and the limits of coverage. Such insurer may provide a copy of the declaration page of each such policy in lieu of providing such information. The claimant's request shall set forth under oath the specific nature of the claim asserted and shall be mailed to the insurer by certified mail or statutory overnight delivery.”

I expect insurers to take the position that this only requires disclosure of the coverage shown on a declarations page and that it does not require disclosure before suit of the underwriting file with policy application and renewal documents.

More likely, the way to pursue unknown excess UM coverage for a truck driver is to file suit against the inadequately insured motorist who caused the crash, serve the trucking company’s insurer with the suit as a UM carrier, and then conduct discovery of the underwriting files. At minimum, there must be requests for production of documents to the trucking company’s insurer seeking the policy application and renewal papers. A lawyer handling these cases for truck drivers must be prepared to compel records custodian of the insurance company, and possibly subpoena records and records custodians of insurance agents and brokers. Occasionally, this may result in increasing the available coverage for a truck driver or his family from $25,000 to $1,000,000 or more.

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August 12, 2013

Rest breaks for truckers upheld in latest round of long battle on truck driver fatigue rules

The battle to combat driver fatigue among tractor trailer drivers has been a long one. How many hours a trucker can drive, how long he needs to rest and when, and how the hours of service are documented has been a constant point of contention between the industry and safety advocates for a long time while I have been handling truck wreck cases as a trucking safety, personal injury and wrongful death lawyer in Georgia.

The latest round in that fight was won by the Federal Motor Carriers Safety Administration, though neither the trucking industry nor safety advocates are satisfied. On August 2, 2013, the U. S. Circuit Court of Appeals in Washington, DC, upheld most provisions of new hours of service regulations that went into effect on July 1. The new rule revisions now require: ( 1) 34 hour restart must include two 1am to 5am periods and can only be used once in 7 days, (2) 30 minute break period after 8 hours, and (3) retention of the rule that a trucker can drive only 11 hours within a 14 hour period before going off duty.

As always happened, the new regulations were challenged both by the American Trucking Association and various truck safety groups. The court denied petitions from all the groups with one small exception—the 30 minute break requirement does not apply to short-haul drivers who operate within 100 miles of their reporting location. The court rejected most of the arguments made by the American Trucking Association, Inc. as “highly technical points best left to the agency.”

As I have learned over the years, there are no final victories and no final defeats for either side in these endless lobbying battles.

The new rule is a revision to 49 CFR § 395.3 in the Federal Motor Carrier Safety Regulations administered by the Federal Motor Carrier Safety Administration (FMCSA), the regulator for trucking and bus companies.

“With one small exception, our decision today brings an end to much of the permanent warfare surrounding the fatigue rule,” U.S. Circuit Judge Janice Rogers Brown said about the decision.

We shall see whether this is really an end to fighting over fatigue rules, but for now there may be at least a pause in the fighting between the industry and regulators over drive-time restrictions that led to two previous challenges before the appellate court. Regulators said they weighed industry costs against billions of dollars in health-care savings and reduced crashes in a profession that has more on-the-job deaths than any other in the U.S.

This is not just about road safety. It is also about truck drivers’ health. The average life expectancy of a truck driver is 61, or 16 years less than the U.S. average, according to Centers for Disease Control data. Trucking is the eighth-most dangerous job in terms of deaths per worker, according to the Bureau of Labor Statistics.

Longer rest breaks and updated freight networks could reduce productivity by 3 percent according to Federal Travel Regulations Associates. Experts say that could mean about $18 billion in additional costs for the trucking companies and that could mean consumers are going to feel the cost of the new regulations as well.

This is just the most recent of court decisions in the battle between the trucking industry and the FMCSA since 1999. A 2003 rule allowing longer driving shifts – 11 hours rather than the previous limit of 10 hours -- was challenged by consumer groups, which persuaded the court to send it back to the Federal Motor Carrier Safety Administration (FMCSA) to be reworked. A 2005 rule was also challenged in court and sent back. The agency began another rulemaking in 2008, only to hold back and negotiate with safety groups when they threatened litigation. That led to three years of deliberation before the latest regulation was published in December 2011, continuing the rule that truckers may drive 11 hours out of 14 hours on duty.

Safety advocates continue to lobby for less fatiguing truck driving shifts. Retaining the longer work shifts will make the American public less safe, said Henry Jasny, vice president and general counsel of Advocates for Highway and Auto Safety. The FMCSA has put profits of the trucking industry ahead of the public’s safety, Jasny said.

“Upholding this rule will continue to make our trucks rolling sweatshops,” said Joan Claybrook, chairman of the board of Citizens for Reliable and Safe Highways. “Truck drivers will continue to be pushed beyond their limits and will imperil not just their own lives but the safety of all of us sharing the roads.”

As a lawyer representing individuals and families hut by fatigued truck drivers, I will work with whatever the rules are at any given time.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

August 2, 2013

30 Minute Rest Break Requirement During 11-hour Truck Driving Shift Creates Controversy

As usual when there are efforts to combat fatigue-related hazards in the trucking industry, there has been a lot of controversy about a change in the hours of service for trucks issued by the Federal Motor Carrier Safety Administration. As a trucking personal injury attorney in Atlanta, over the years I have watched several rounds of the tug of war between safety and profitability on hours of service rules.

The newest regulation states large trucks will have to stick to a schedule that requires taking a 30 minute break in the first eight hours of driving and cut the maximum work week to 70 hours from 82. There also is a rule that those 70 hours must be “restarted” after a 34-hour break once a week.

Personally, I think a 30 minute break during a driving shift makes sense. Whenever I drive long distances, I have to take pit stops, sometimes take a “power nap” before driving on. I have heard truck drivers complain that they are penalized under the current rule and under their companies’ policies if they take a rest break in order to be able to combat fatigue and drive safely costs them both money and criticism. The new rule requires that the trucking companies, brokers, and shippers make more allowance for human physiology.

Predictably, some in the industry object. Lyndon Finney, editor of The Trucker, a publication of the Owner-Operator Independent Drivers Association (OOIDA) says that productivity slowdown will directly impact businesses of all sizes especially with the mandatory 30-minute breaks.

“By the time a driver pulls off an interstate, finds a parking space, gets parked, waits the 30 minutes, and gets back on the road again, 45 minutes to an hour has likely passed. That means losing around 45-50 miles a day, multiply that by five or six, that’s 300 miles and for drivers paid by the mile, the financial implications are huge,” said Finney.

These new regulations are part of a program by the Federal Motor Carrier Safety Administration to make U.S. highways safer by reducing the number of truck accidents and fatalities. The program also includes Comprehensive Safety Analysis (CSA) rating system that shippers can review when they choose a new carrier, with the goal of prodding the trucking industry to further improve the safety of its drivers and equipment.

But some in the trucking industry say the adjustment to hours of service rules , regulations will hurt consumers more than help their safety. Dave Osiecki, vice president for safety policy at American Trucking Association says that transitional costs to implement these rules are about $320 million. And while some say that this will help overall safety on the highways in the long run, Osiecki sees the costs on consumers as being steep. “This is just another cost that companies have to absorb, and those costs will be passed along to consumers. Small trucking companies might have a hard time absorbing these costs,” said Osiecki.

The Industry advocates also claim that it’s already doing a good job of reducing collisions, and that government data supports that position. The number of people killed each year in large truck crashes has fallen by almost 30 percent, to nearly 4,000 in 2011 from 5,282 in 2000, according to the Federal Motor Carrier Safety Administration. But selected statistics can be found to support any position, and any set of data can reflect multiple factors, not necessarily proving causation. I have not done a full statistical analysis, but decrease in the amount of truck traffic due to decreased demand during the recession would account for fewer crashes in years of decrased traffic. I have heard unconfirmed predictions that data for 2012, when published, will show an uptick in truck crashes with the beginnings of economic recovery, and that data for 2013 will be higher still as truck traffic continues to increase.

Most truck drivers are careful and conscientious, even though their work environment has been called a “sweatshop on wheels.” Trucking is a complex business with a low profit margin, and I have had friendly conversations with safety managers of large trucking fleets about their struggles to juggle the many factors involved.

But it is a betrayal of the trust we place in the industry when safety is sacrificed for profit. The rest break rule helps to protect the conscientious, safety conscious truck drivers and companies from unfair competition by those who would always choose to sacrifice safety for profits.

July 18, 2013

Marine Afghanistan Veteran Killed by Tractor-Trailer in Albany

Sgt. Ronald Nabors was a decorated Marine who survived his honorable service in Afghanistan but his life was taken by a tractor trailer in Georgia. In Albany, Georgia, on Sunday, June 30the, his motorcycle crashed into the passenger side door a tractor-trailer truck that turned left in front of him into a Pilot truck stop. Sgt. Nabors, 26, a Texas native, who was stationed at the Marine Corps Logistics Base in Albany, was traveling north on his Harley Davidson motorcycle along Cordele Road when the collision happened.

Possible charges are pending against the driver of the tractor-trailer operated by Millis Transfer, Inc. According to the Federal Motor Carrier Safety Administration records, that company is based in Black River Falls, Wisconsin, but the company website lists a terminal in Carterville, Georgia. News reports to not mention whether the alcohol and drug tests required under federal law were done.

It is speculative to guess why this tragedy happened, but some of the likely suspects in similar truck crashes are:

Illegal left turn. Georgia law requires that the driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite
direction that is within the intersection or so close to it as to constitute an immediate hazard.
Possible hours of service violation. Federal Motor Carrier Safety Regulations require that drivers of commercial vehicles in interstate commerce drive no more than 11 hours out of 14 hours on duty, then take a 10 hour rest break, and to get longer weekly breaks. We often see hours of service violations in truck drivers from the Midwest traveling to Georgia. I don’t know whether that is the case here.
Truck driver impairment due to fatigue, medication, illness, etc. This often goes hand in hand with hours of service violations, but we also often see drivers impaired by medication.
Possible use of a hand held cell phone or other driver distraction. A relatively new Federal Motor Carrier Safety Administration rule restricts the use of all hand-held mobile devices by drivers of commercial vehicles. My guess is that the Georgia State Patrol Specialized Collision Reconstruction Team (SCRT) is checking any cell phone SIM card and billing records.

Georgia wrongful death law gives designated survivors the right to bring a wrongful death action against the responsible parties. In Georgia, there can be two separate claims that may be asserted against a person or corporation who negligently causes a death:

– A “wrongful death” claim for the “full value of the life” which belongs to survivors designated by statute. If there is neither a spouse nor child surviving, then the decedent's parents have the right to sue under Georgia law. If the parents of a deceased child are divorced or living apart, the trial court has full discretion to allocate the wrongful death recovery between them, considering any pertinent factors.
– A “survival action” which belongs to the estate and is brought by the executor or administrator of the deceased for pain and suffering before death, medical expense and funeral expense. This claim may be filed by the administrator or executor of the decedent’s estate.

Ken Shigley is past president of the State Bar of Georgia (2011-12), past chair of the Institute for Continuing Legal Education in Georgia board of trustees (2012-13), board certified civil trial and pretrial advocate (National Board of Legal Specialty Certification) lead author of Georgia Law of Torts: Trial Preparation & Practice (2010-13). His Atlanta-based practice focuses on cases of wrongful death and catastrophic personal injury, including brain injury and spinal cord injury.

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July 11, 2013

Hit and Run by Tractor Trailer Kills Woman in Gwinnett

A deadly hit and run crash involving a tractor trailer highlights the reason many people have a fear of driving next to big rigs. The crash occurred Monday just after 1:00pm on I-85 in Gwinnett County,Georgia. According to Gwinnett County Police, the hit and run killed one woman and injured a man and two children. The incident serves as a tragic reminder of the importance of enforcing trucking safety rules.

Reports have surfaced that the deceased was driving a Nissan Pathfinder on I-85 in Gwinnett County when a tractor trailer switched lanes and forced the vehicle into another lane which was occupied by a box truck. After the vehicle hit the box truck, it left the road at high speeds crashing into a steep hill between I-85 and the interstate ramp at Steve Reynolds Boulevard.

Gwinnett police spokesman Cpl. Jake Smith said the vehicle flipped several times which caused the woman to be ejected from the front passenger seat. The children and the man in the vehicle were taken to Children’s at Egleston Hospital where Cpl. Smith said they are likely to survive. Smith reports that the box truck stopped at the scene and was cooperative with investigators. However, the tractor trailer failed to stop and was later found in Cobb County, according to investigators.

“The truck driver was questioned,” Gwinnett County police spokesman Cpl. Edwin Ritter said. “Investigators are following up on all leads.”

When fatal crashes such as this one occur, the Georgia State Patrol Specialized Collision Reconstruction Team (SCRT) is called to the scene. The mission of this specialized team is to provide a means by which fatal crashes can be investigated by specially trained investigators. The SCRT works to collect and document all evidence so their can be a successful court hearing. The SCRT is also responsible to gathering information that could help avoid future collisions. There are five teams of investigators throughout the state to assist officers with deadly crashes. These officers are on call 24 hours a day, seven days a week and help with cases ranging from fatal crashes to officer involved shootings.

It is still speculative to guess the cause of the crash, but a few of the many Federal Motor Carrier Regulations that could be implicated in this case include:
- Improper lane change in violation of Georgia traffic law: This would become a violation if investigators find the truck failed to use a signal, failed to be within a reasonably safe passing distance, or failed to signal a stop or sudden decrease in speed.
- Possible hours of service: This would become a violation if the investigation reveals the truck driver was a long haul driver in interstate commerce and had not complied with the rule requiring a 10 hour rest break after operating no more than 11 hours in a 14 hour work day.
- Possible use of a hand held cell phone or other driver distraction: A new FMCSA rule restricts the use of all hand-held mobile devices by drivers of commercial vehicles. Unless the call can be made with a single button, hands-free phone in close proximity. It would be considered a violation if the driver is also reaching for a mobile device in a way that requires the driver to move out of the driving position.

- Truck driver impairment due to fatigue, medication, illness, etc.

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