Georgia Truck Accident Attorney Blog

As a trucking accident trial attorney based in Atlanta, Georgia, I try to keep up with trucking safety issues at the national level. The latest development was a statement last week by Federal Motor Carrier Safety Administration director Ann Ferro at a U.S. Senate subcommittee. Some of the high points include:

Core priorities of FMCSA are to:
1. Raise the safety bar to enter the industry;
2. Require operators to maintain high safety standards to remain
3. Remove high-risk operators from our roads and highways.

CSA 2010 is to be implemented by end of 2010.
This Comprehensive Safety Analysis program is intended to measure seven key behaviors that are linked to trucking crash risk:
1.Unsafe Driving
2. Fatigued Driving
3. Driver Fitness which includes licensing and medical compliance standards
4. Crash History
5. Vehicle Maintenance
6. Improper Loading and Cargo
7. Controlled Substances - Drugs and Alcohol

New Entrant Safety Assurance Program focuses on 16 safety regulations for which a violation by a new entrant carrier would result in an automatic failure of the safety audit. Any new entrant that fails the safety audit must submit a Corrective Action Plan (CAP) in order to continue to operate in interstate commerce. FMCSA also closely monitors the new entrant during the initial 18-month period of operation and, if certain violations are discovered during a roadside inspection, the new entrant will be subject to an expedited action to correct the identified safety deficiencies.

National Registry of Certified Medical Examiners rules later this year will establish minimum training and testing requirements for all healthcare professionals that issue medical certificates for interstate truck and bus drivers. (I've seen drivers who were cleared to return to service in a 10 minute checkup by a chiropractor after open heart surgery.)

Hours of Service. FMCSA is taking another look at the controversial hours of service rule.

Electronic On-Board Recorders will be required of an additional 5,700 motor carriers as a remedial measure. (The days of "comic book" driver logs may be numbered, but making the EOBR systems tamper-proof will be the next challenge.)

Distracted Driving. FMCSA has banned text messaging by drivers while operating a commercial motor vehicle. (It's a step in the right direction.)

Drug & Alcohol Database. FMCSA is working on a database to keep up with drivers who fail drug and alcohol tests.

There's more. I commend the entire statement to the interested reader.

Continue reading "Trucking safety issues addressed by FMCSA director" »

Today the Federal Motor Carrier Safety Administration banned text messaging by interstate truck drivers during operation of a commercial motor vehicle.

Virginia Tech's Transportation Institute released a study last July that found that when truckers text, they are 23 times more likely to be involved in a crash or near miss.

Both houses of Congress are considering bills to restrict texting. Nineteen states have banned the practice. The new federal regulation provides that drivers of commercial vehicles caught texting may be fined up to $2,750.

Texting and cellphone use have been banned in many major commercial fleets, including FedEx's 43,000 vehicles and the 100,000 used by United Parcel Service.

This will be more material for my presentation to the Interstate Trucking Litigation Group at Vancouver, British Columbia, in July.

Continue reading "Texting by truckers banned" »

On Georgia highways you often see trucks carrying intermodal freight containers that were delivered to southeastern ports from places around the world. Attorneys preparing to take to trial cases of catastrophic trucking accidents involving intermodal freight need to understand issues that differ not only from regular highway accidents but also that from other trucking accidents.

When freight containers are shipped by sea, rail and truck, that is called intermodal shipping. Throughout the country you see large intermodal freight facilities that transfer freight containers between ships, trains and trucks. In Georgia, vast amounts of container freight are handled through the port of Savannah.

This week the Federal Motor Carrier Safety Adminstration began enforcing its Intermodal Chassis rule that requires intermodal equipment providers (IEPs), motor carriers and drivers to share responsibility for the safety of intermodal equipment used on U.S. highways.

Intermodal equipment or chassis are the trailers used in the transfer of goods from a ship or rail car to trucks for final delivery. There has been a problem with old, poorly maintained trailer chassis being spray painted and put back into service hauling freight containers, with inadequate regard for safety. Now there are new rules requiring providers of intermodal chassis to implement systematic inspection, repair and maintenance programs, and repair or replace defective equipment. The chassis must now display uniform identifying numbers.

For cases where the insurance coverage of a small motor carrier is inadequate to compensate a catastrophic injury, we also consider the potential to access the insurance coverage of the ocean carrier that is responsible to the shipper for delivery of freight all the way to the inland destination.

Continue reading "Container freight equipment safety rules go into effect" »

I'm a trucking safety lawyer in Atlanta, not a futurist or a psychic. However, I'm going to go out on a limb and post my top five predictions for motor carrier safety in 2010.

1. Accident and fatality rates in interstate commercial trucking will continue to decline.

2. In addition to a ban on text messaging by truck drivers while in motion, FMCSA (Federal Motor Carrier Safety Administration) will require an interlock between truck cab communication systems and truck transmission, so that drivers must stop the truck before typing a response.

3. FMCSA will require Electronic On Board Recorders (EOBR) for all new commercial road tractors, and retrofitting of existing units within 3 to 5 years.

4. The FMCSA will require seat belts and safety glass in new motor coaches, and may require retrofitting of existing motor coaches with seat belts within 3 to 5 years.

5. FMCSA’s new Comprehensive Safety Analysis (CSA 2010) program will make truck drivers more conscious of the need to maintain their own health in order to maintain a Commercial Driver’s License, thereby gradually increasing demand for truck stop chains to begin offering healthy food and exercise facilities.

Continue reading "Top 5 predictions for motor carrier safety in 2010" »

A prominent highway safety organization, Advocates for Highway and Auto Safety, has petitioned the Federal Motor Carrier Safety Administration to evaluate risks posed by drivers of commercial vehicles using electronic devices and to then issue regulations to limit such distractions.

Electronic distractions that cause concern include cell phones, text messaging, CB radios, email, on-board computers and navigation devices.

Recent studies have shown that driving while talking on a cell phone -- even hands free -- increases accident risk equivalent to driving with 0.08 blood alcohol, the threshold for DUI, and that texting while driving increases accident risk 23 times.

Continue reading "Truck driver distraction is target of petition to Federal Motor Carrier Safety Administration" »

As a trucking accident trial attorney in Atlanta, I see all the time how regulatory decisions in Washington impact safety on the roads throughout the U.S. A Senate committee hearing today on the nomination of Ann Ferro as administrator of the Federal Motor Carrier Safety Administration brought that into focus.

Sen. Frank Lautenberg, chair of the surface transportation subcommittee, told President Obama's nominee for FMCSA director nominee Ann Ferro, at a Senate confirmation hearing, that the motor carrier administration is "an agency in dire need of reform," and that "given your ties, Ms. Ferro, to the trucking industry ... I am concerned about your ability to take the bold action we need to keep Americans safe."

In her opening statement, Ferro talked the talked about reform of trucking safety regulation in her opening statement:

"Uncompensated time, compensation by the mile or load, professional drivers classified as laborers – these are all aspects of a supply-chain model that rewards squeezing transportation costs out of the equation; factors that shift the cost onto the driving public and professional driver."

"Furthermore, the agency must get on with considering a universal electronic on board recorder rule, improving the Hours of Service rule, rolling out tougher standards for entry, implementing effective identification and sanctioning high risk carriers."

The committee did not vote on Ferro's nomination. Additional questions will be submitted to the nominee, who will have until Tuesday to respond.

Continue reading "Trucking safety agency nominee grilled in Senate hearing" »

One of the things I do as a trucking trial attorney in Atlanta, Georgia, is monitor what's happening with the Federal Motor Carrier Safety Administration in Washington, DC. Ultimately the political and bureaucratic decisions about truck safety regulations in Washington affect the safety of your family and mine on the highways of Georgia.

To say that it's unusual for the New York Times to take an editorial position on trucking safety is quite and understatement. But it happened today.

Here are excepts from the editorial:

President Obama made a peculiar choice in June when he nominated Anne Ferro, a major trucking industry lobbyist in Maryland, to lead the agency that oversees truck safety. On its face, Ms. Ferro’s selection violates the spirit of Mr. Obama’s decision to limit the ability of lobbyists to enter government as high officials and influence policy from within.

The order bars hiring anyone who lobbied an executive-branch agency within the past two years, which technically means federally registered lobbyists. But it is hard to see how naming a trucking industry insider like Ms. Ferro, the president of the Maryland affiliate of the American Trucking Associations, to lead the Federal Motor Carrier Safety Administration squares with Mr. Obama’s promise of “a clean break” from business as usual.

. . .

Ms. Ferro’s record on road safety includes some pluses. As the chief of Maryland’s motor vehicle agency, from 1997 to 2003, she implemented a graduated licensing system for new drivers and an ignition interlock program for drunken drivers.

But her more relevant experience these past six years was in supporting the trucking industry’s efforts to thwart and defeat policies and programs needed to protect the public and promote the health and safety of truck drivers. Just in January, Ms. Ferro co-authored a letter to The Baltimore Sun essentially defending the Bush administration’s loosening of regulations on drivers’ schedules and driver fatigue in defiance of considerable evidence of danger and two court decisions.

Ms. Ferro’s record, we believe, is disqualifying. With more than 5,000 fatal truck crashes a year, Americans cannot afford conflicts of interest in the running of their truck safety agency.

A friend who is heavily involved in advocacy for highway safety tells me that several truck safety advocates and organizations are actively opposing her nomination. Several of them will be at the Senate confirmation hearing this afternoon. He tells me she is a really nice lady and says all the right things. But safety advocates have heard all the right things for 20 years with no follow-up. When they met with her and Secretary LaHood, there was no specific discussion by the Secretary LaHood about how he will direct her to will bring change to the FMCSA.

More later.

Continue reading "Nominee for FMCSA chief blasted in New York Times" »

As an Atlanta trucking safety lawyer, I find trucking companies trying to disown their driver's safety violations.

The Federal Motor Carrier Safety Regulations, which are intended to protect safety of the public, require trucking companies to see to it that their employees to obey the driver regulations.

49 C.F.R. § 390.11 requires: “Whenever . . . a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.”

Continue reading "Trucking companies must require employees to follow the rules" »

Safety advocates, led by Stephen Owings, an Atlanta financial planner, are joined by the American Trucking Association in seeking rules requiring speed governors on interstate commercial trucks. They say the devices will save both lives and money.

Owings started Road Safe America after his son, Cullum, was killed on a Virginia interstate in 2002. Stuck in traffic, they were hit from behind by a big rig traveling on cruise control set at 7 mph over the speed limit. When I chaired the Southeastern Motor Carrier Liability Institute in 2005, Steve Owings was one of our speakers.

Opposing them is the Owner-Operator Independent Drivers Association. It says mandatory speed governors are likely to lead to more collisions (when a driver needs extra horsepower for an emergency maneuver) and increase traffic congestion (when a speed-limited truck attempts to pass another.

Stay tuned to see how this plays out in the FMCSA rule-making process.

Continue reading "Safety advocates seek speed governors on trucks" »

As long as truck drivers for interstate motor carriers have been required to log their driving, on duty and off duty time, falsification of logs has been common. Some drivers -- though certainly not all -- have regarded their logs as "comic books." We have unraveled webs of deception to show that driver logs in some of our cases were complete falsifications.

Now legislation has been introduced in Congress that would require foolproof Electronic On-Board Recorders (EOBRs) in lieu of paper logs. The new highway reauthorization bill mandates EOBRs to track Hours of Service compliance for all commercial motor vehicles within four years of enactment.

The proposed legislation is substantially stronger than a proposed regulatory rule that would require only motor carriers with a demonstrated a history of serious noncompliance with the Hours of Service rules to install EOBRs.

Continue reading "Legislation would require Electronic On-Board Recorders in all interstate trucks in 4 years" »

If you stand on River Street in Savannah for more than a few minutes, you will see a huge ocean-going container ship gliding up the Savannah River, stacked high with hundreds of freight containers.

Then if you drive along our Interstate highways you will see those shipping containers bolted to trailer chassis (referred to as "intermodal equipment"), pulled by road tractors.

A problem is recent years was a gap in safety rules and enforcement regarding the trailers to which the freight containers were attached at the ports. Many of the trailer chassis are old, ragged-out trailer chassis with just a fresh coat of paint.

Now the Federal Motor Carrier Safety Administration is doing something about it. Under the new rules, which became effective June 17th and will be implemented over the next two years:

- Drivers must do a pre-trip inspection of intermodal equipment.

- At the end of the day, the driver will have to fill out an inspection report on all of the equipment operated during the day, noting anything wrong with the equipment to the intermodal equipment provider.

- Before that equipment – which will have to carry a U.S. DOT number – can be offered for use on the road again, any damage, defect, etc., noted on the end-of-the-day report is to be certified as repaired on the original report.

- Inspection reports must be retained three months.

- Intermodal equipment providers to develop “systems” for routinely inspecting the equipment; accepting, addressing and storing the driver reports; repairing equipment, etc. However, the rule does not mandate what those systems are.

- Intermodal equipment providers will also now face “roadability review” safety audits conducted by either an FMCSA employee or a state or local government employee funded by the federal government. The reviews will be an on-site examination of the intermodal equipment provider’s compliance with the regs.

Continue reading "What's under those "China Freight" containers on the roads? FMCSA has new safety rules for intermodal chassis." »

The Obama administration has announced that Anne Ferro will be nominated to head the Federal Motor Carrier Safety Administration.

She is currently president of the Maryland Motor Truck Association, a trucking industry organization. Previously she ran the Maryland Motor Vehicle Administration, administering drivers licenses.

Her nomination drew immediate praise from trucking industry officials.

But the Truck Safety Coalition, Parents Against Tired Truckers, Citizens for Reliable and Safe Highways (CRASH). and Teamsters Union have expressed concerns about her commitment to trucking safety.

The more things change, the more they stay the same.

Continue reading " Anne Ferro picked to head Federal Motor Carrier Safety Administration" »

The hard questions are not between good and bad, but between good and good, and between bad and bad.

That maxim is illustrated in a New York Times article by Josh Voorhees about Charles Hurley, the nominee to become administrator of the National Highway Traffic Safety Administration.

The conflict is between CAFE standards on fuel economy and improving safety standards. It's a tough call between improving fuel economy with smaller cars and improving safety with tougher cars.

Continue reading "NHTSA nominee faces hard choices between fuel economy and vehicle safety" »

A a trucking safety attorney in Atlanta, two of the federal agencies I watch most closely are the Federal Motor Carrier Safety Administration and National Highway Traffic Safety Administration.

The President's nominee to head the Federal Motor Carrier Safety Administration is Charles A. Hurley, CEO of Mothers Against Drunk Driving (MADD).

Mr. Hurley as previously a senior official of the National Safety Council and the Insurance Institute for Highway Safety. The White House said Hurley had worked extensively with law enforcement on air bag and seat belt issues, teen driving and child passenger safety.

A former naval intelligence officers, he also worked in a variety of staff positions for elected officials.

President Obama has yet to name a new head of the Federal Motor Carrier Safety Administration.

Continue reading "MADD CEO picked to head National Highway Traffic Safety Administration" »

Corporate shell games to avoid accountability for injuring or killing people are all too common. We see it an a variety of contexts. Today I got an email outlining how attorneys for nursing homes are directing their clients to lower their insurance coverage to $100,000 and set up an intricate network of corporate entities to protect the real estate and the owners' assets, while leaving anyone injured in their operations high and dry.

In the trucking context, there is a long history of motor carriers using creative subterfuges to avoid financial responsibility for people harmed by trucks hauling freight for them. Between 1935 and 1956, many interstate motor carriers attempted to immunize themselves from liability for the negligence of their drivers by leasing trucks and nominally classifying the drivers who operated the trucks as “independent contractors."

Because trip-leasing made it difficult for a member of the public injured by the operation of a leased vehicle to fix carrier responsibility, and in order to protect the public from the negligent conduct of the often judgment-proof truck-lessor operators, Congress passed a law in 1956 to require interstate motor carriers to assume full direction and control of the vehicles that they leased “as if they were the owners of such vehicles.”

The purpose of that legislation was to ensure that interstate motor carriers would be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants. Thus, since 1956, owner-operators who are independent contractors in relation to motor carriers have been considered “statutory employees” of the carriers in relation to any injured member of the public.

Congress has unambiguously expressed its clear intent to establish minimum national standards for safety and and financial responsibility of motor carriers. The Regulations authorized by Congress unambiguously support holding a motor carrier accountable for injury to an innocent member of the traveling public.

Under the Federal Motor Carrier Safety Regulations, the definition of “motor carrier” includes “a motor carrier’s agent,” “employee” includes “an independent contractor while in the course of operating a commercial motor vehicle,” and “lease” includes a “contract or arrangement in which the owner grants the use of equipment, with or without driver. . . .” The disjunctive reference to “contract or arrangement” must have some significance other than mere redundancy. In addition, the Regulations require that “[e]very motor carrier, its officers, agents . . . shall be instructed in and comply with the rules. . . .”

While the Regulations require a written lease, until last summer there had never been a reported court decision anywhere in the United States that let a motor carrier evade liability when it informally hired an owner-operator without bothering with the formality of a lease.

However, in one of our cases in which a jury had awarded over $2.3 million to our client for a serious permanent injury, a single judge of the Georgia Court of Appeals wrote a decision that disregards or misconstrues the Federal Motor Carrier Safety Regulations and conflicts with every relevant reported decision of both federal and state courts across the nation. See Clarendon Nat. Ins. Co. v. Johnson, 293 Ga.App. 103, 666 S.E.2d 567 (2008).

Standing the law on its head, that decision provides judicial blessing for motor carriers to circumvent all responsibility for owner-operator drivers by avoiding either execution of a written lease or use of the word “lease” in an oral arrangement. The only case cited as authority for the holding was an unpublished Texas decision that has nothing to do with our case, either on the facts or on the law.

This decision enables interstate motor carriers to hire without accountability unqualified owner-operator drivers who have no motor carrier authority and no commercial driver’s license, and who make no pretense of complying with any of the Federal Motor Carrier Safety Regulations.

This decision allows violation of one of the Federal Motor Carrier Safety Regulations to exempt motor carriers from compliance with the rest of the regulations, thus enabling them to immunize themselves through semantics. In this time of economic turmoil, motor carriers are freed to roll back the clock more than half a century to the type of abuse that the 1956 adoption of the “statutory employer” rule was designed to eliminate.

Within the past few days we have filed a petition for certiorari to the Supreme Court of the United States. That is a statistical long shot, as the Supreme Court agrees to hear only a tiny percentage of even highly meritorious cases.

If this decision stands, interstate trucking companies that are inclined to evade safety and financial responsibility rules will be able to revert to the pre-1956 practice of using non-compliant, unqualified and financially incapable “independent contractor” truckers for whom the carriers would bear no responsibility to the public. All of this was pointed out the the Georgia Court of Appeals and Supreme Court, but under the circumstances I find it hard to believe that anyone other than the one judge whose name is on the decision actually read and reflected upon the briefs and the implications of the decision.

Avoiding the expense of equipment maintenance, safety management and financial responsibility required by federal law, they could undercut the cost structure of law-abiding motor carriers and owner-operators, subjecting lawful trucking operations to unfair competition from those that exploit this loophole.

As bad drives out good, if this Georgia Court of Appeals decision approving the evasion of interstate motor carrier responsibility stands, the safety of the public on highways throughout the United States will be adversely impacted.

And innocent people across the country will die because one judge of the Georgia Court of Appeals gave his blessing to an evasion of responsibility contrary to all other interstate motor carrier law in the United States.

No, I'm not attempting to argue my appeal in a blog, as if that were even possible. I'm just warning other folks around the country that they may see the same sort of evasion as motor carriers learn that this shell game fooled a state Court of Appeals.

Continue reading "Intricate shell games evade accountability" »

President Obama has signed legislation killing the Transportation Department’s controversial test of longhaul cross-border trucking with Mexico. As a trucking safety trial attorney in Atlanta, Georgia, I haven't yet seen problems with Mexican truckers but I do see truckers who don't speak English although adequate English proficiency is required under the Federal Motor Carrier Safety Regulations.

A provision of a $410 billion spending bill prevents DOT from using any money in the 2009 fiscal year to “establish, implement, continue, promote or in any way permit” a cross-border trucking program with Mexico. However, the Department of Transportation quickly released a statement to the effect that officials would study the issue some more.

All this is well summarized in an article by Sean McNally in Transport Topics.

Until President Clinton signed a moratorium on admission of Mexican trucks in 1994, Mexican trucks entered the US routinely, much as Canadian trucks do.

Under the North American Free Trade Agreement (NAFTA) trucking companies in all three counties claimed rights to move freely back and forth between the countries. However, it never happened with Mexican trucks.

The US DOT over the past couple of years made halting efforts to begin admitting a limited number of Mexican truckers to the US. However, there was a firestorm of controversy, largely expressed in terms of maintaining US safety standards on Mexican trucks entering the US when safety standards and enforcement in Mexico are questionable. There were also concerns expressed about the violent drug trade in Mexico, and the potential for Mexican trucks smuggling drugs, illegal immigrants and terrorists.

Now the Mexican government is talking about economic retribution and Mexican trucking companies are threatening lawsuits in US courts.

Continue reading "Mexican trucks barred from US again" »

Truck driver fatigue is one of the most obvious causes of truck crashes. Obstructive sleep apnea is among the most common contributing factors. Obesity is a big risk factor for obstructive sleep apnea.

Now there is another study reconfirming the obvious: that obesity-driven testing strategies identify commercial truck drivers with a high likelihood of obstructive sleep apnea (OSA), and that mandating obstructive sleep apnea screenings could reduce the risk of truck crashes.

The study by Cambridge Health Alliance published in the March 2009 edition of the Journal of Occupational and Environmental Medicine concludes that:

- Truck drivers with sleep apnea have up to a 7-fold increased risk of being involved in a motor vehicle crash.

- Drivers with sleep apnea frequently minimize or underreport symptoms such as snoring and daytime sleepiness.

- A majority of truck drivers did not follow through on physician recommendations for sleep studies and sleep apnea treatment.

- It is possible that many of the 14 million truck drivers on American road have undiagnosed or untreated sleep apnea.

- "It is very likely that most of the drivers who did not comply with sleep studies or sleep apnea treatment sought medical certification from examiners who do not screen for sleep apnea and are driving with untreated or inadequately treated sleep apnea."

- The Federal Motor Carrier Safety Administration is currently deliberating recommendations to require sleep apnea screening for all obese drivers based on body mass index or "BMI."

Continue reading "Sleep apnea in truck drivers linked to obesity" »

Handling truck accident injury and death cases in Georgia, I have often seen how inadequate the levels of insurance coverage can be for the havoc created by large truck crashes. Now there are efforts to catch up the levels of coverage for 29 years of inflation.

The current levels of insurance coverage required for interstate motor carriers were set in 1980.

The Motor Carrier Act of 1980 set minimum insurance standards for interstate trucks at $750,000 for trucks hauling general freight up to $5 million for trucks carrying hazardous materials.

Adjusted to inflation according to the Consumer Price Index:

• $750,000 in 1980 equals $1,921,811in 2009, and is worth only $292,693 today.

• $1 million in 1980 equals $2,562,415 in 2009, and is worth only $390,257 today.

• $5 million in 1980 equals $12,812,075 in 2009, and is worth only $2,491,933 today.

My friend Steve Gursten in Michigan has done a good job summarizing some horror stories of the inadequacy of the 1980 levels of coverage required for trucking companies on michiganautolaw.com.

Continue reading "Time to adjust motor carrier insurance requirements for 29 years of inflation" »

As a trucking safety trial attorney in Atlanta, I often see cases involving medically unfit drivers. I've seen cases where truckers were blind in one eye, were supposed to carry an oxygen tank 24/7 for COPD, or had untreated obstructive sleep apnea, all medically disqualifying conditions.

Fortunately, the Federal Motor Carrier Safety Administration has initiated efforts to tighten medical certification requirements.

As reported by the Kentucky Post, in 2008 a congressional investigation revealed roughly one-third of medical certificates examined in roadside stops could not be verified. The doctors either didn't exist or denied ever examining the truck driver.

Blank medical cards have been readily available on government websites. Until now, there has been nothing to stop drivers from just filling out the certificates themselves. A trucker could pick a doctor's name from the phonebook, sign the certificate in their own hand, and look up the doctor's medical license number on the internet. There is now no electronic database for truck drivers' medical cards. When a trooper stops a trucker, there is no way for the officer to verify the medical card is real or valid. It's just a piece of paper.

The congressional investigation also revealed more than 500,000 commercial drivers qualify for full medical disability, according to federal agencies like the Veterans Administration and the Social Security Administration.

Until the new rules on medical certification take effect, those of us who handle trucking cases for the people hurt by truck accidents must be diligent in checking behind the medical certifications, which are too often bogus.

Continue reading "At last, FMCSA is tightening up medical certification of truck drivers" »

The Federal Motor Carrier Safety Administration determined that a 99% pass rate in safety audits of new motor carrier entrants might be missing something, since new entrants were still involved in a higher percentage of trucking accidents.

The initial grant of authority to operate as an interstate motor carrier is provisional. For the first 18 months the new carrier is subject to stricter scrutiny than other carriers. Provisional authority to operate may be revoked immediately if any of the following "seven deadly sins" are found in a roadside inspection:

1. Using a driver who does not have a valid CDL (commercial drivers license). This includes drivers with falsified, revoked licenses, or one missing a required endorsement.
2. Operating a vehicle placed out of service for violations of safety regulations without taking necessary corrective action.
3. Involvement in a hazardous materials reportable incident involving radioactive material, certain explosives, and poison inhalation hazard materials.
4. Involvement in two or more hazardous materials reportable incidents.
5. Using a driver who tests positive for controlled substances or alcohol or who refuses to test for those substances.
6. Operating a commercial motor vehicle without the required levels of financial responsibility (insurance or approved self-insurance).
7. Having a driver or vehicle out of service rate of 50% or more based on at least three inspections within a 90 day period.

Any of these will trigger an immediate safety audit if there has not yet been an audit. If there has been an audit, there will be a notice requiring corrective action within 30 days. Failure to respond within 30 days will result in revocation of the new entrant's registration.

I will post more later about safety audits and penalties for failing safety audits.

Continue reading "Seven deadly sins for new motor carriers " »

It is not uncommon for a carrier with a bad safety record to shut down one corporate entity and open a new company involving the same individuals. By changing corporate entities and getting a new DOT number the company could effectively hide the bad safety record. When an existing motor carrier seeks to register as a new carrier to get a new DOT number, it is known as a "chameleon carrier."

Now, however, the adoption of 49 CFR 385.306 seeks an end to this shell game. If a company provides false or misleading information in the application process any new applicant registration is subject to revocation. The application requires disclosure of related companies and individuals, and these are to be scrutinized for outstanding orders to cease operations. The new entrant registration will be linked to the history of any related old motor carrier in the FMCSA database.

When we have cases against companies with new DOT numbers, we normally conduct discovery about the relationship of the owners to former companies with bad safety records.

And when we have had cases against unsafe motor carriers with minimum insurance coverage, thinking we can seize their assets to collect a judgment in excess of policy limits, we have been alert to the possibility that the owners would shut down their corporation and open up the next day under a new name and DOT number.

The new regulation is a step in the right direction to protect the safety of the traveling public.

Continue reading "New federal regulation cracks down on "chameleon carriers"" »

Trucking companies are required to obtain a medical examination by licensed medical examiner of each truck driver. Here are the physical conditions that disqualify a truck driver from obtaining a CDL (commercial drivers license) and operating a commercial motor vehicle.

1. Loss of use of extremity. Loss of use of a foot, leg or arm, subject to a Skill Performance Evaluation of ability to safety control and operate a commercial motor vehicle even with a prosthetic limb.

2. Diabetes. Medical history of clinical diagnosis of diabetes currently requiring insulin. Diabetics whose condition is controlled with oral medication and diet may qualify.

3. Cardiovascular. Current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure. Coronary artery bypasses are not disqualifying, but implanted pacemakers are disqualifying.

4. Respiratory. Established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with the ability to control and drive a commercial motor vehicle safely. Examples of disqualifying respiratory conditions are emphysema, chronic asthma, carcinoma, tuberculosis, chronic bronchitis and sleep apnea.

5. Hyptertension. Any detection of hypertension requires frequent rechecks. A blood pressure of 180 (systolic) and 110 (diastolic) or higher is considered Stage 3, at high risk for an acute event such as a stroke. The driver with Stage 3 hypertension may not be qualified, even temporarily, until reduced to equal to or less than 140/90 and treatment is well tolerated, and thereafter rechecked every six months.

6. Other physical limitations. Clinical diagnosis of rheumatic, arthritic, orthopedic or vascular disease which interferes with ability to control and operate a motor vehicle. This would include, for example, known to have acute episodes of transient muscle weakness, poor muscular coordination (ataxia), abnormal sensations (paresthesia), decreased muscle tone (hypotonia), visual disturbances and pain which may be suddenly incapacitating. Medical examiners must evaluate the severity and the likelihood of impairment affecting safe operation.

7. Epilepsy. Established medical history or clinical diagnosis of epilepsy or other condition known to cause loss of consciousness. Single episodes of non-epileptic seizure or loss of consciousness are evaluated regarding likelihood of recurrence, with a six month waiting period highly recommended. Drivers with a history of epilepsy/seizures off antiseizure medication and seizure-free for 10 years may be qualified to operate a CMV in interstate commerce. Interstate drivers with a history of a single unprovoked seizure may be qualified to drive a CMV in interstate commerce if seizure-free and off antiseizure medication for a 5-year period or more.

8. Psychiatric. Mental, nervous or functional disease or psychiatric disorder. This is often a subjective evaluation and easily overlooked by medical examiners.

9. Vision. Must have corrected vision of at least 20/40 in both eyes. One who is blind in one eye cannot qualify. My wife, who is functionally blind in one eye, would not qualify.

10. Hearing. Must be able to perceives a forced whispered voice in the better ear at not less than five feet with or without the use of a hearing aid. If tested by use of an audiometric device, must have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz and 2,000 Hz with or without a hearing aid. I wonder whether my daughter, who is deaf but has an Auditory Brainstem Implant that enables her to hear environmental sounds and understand some speech would qualify.

11. Uses a Schedule I drug or other narcotic, with a narrow exception for prescribed medications.

12. Current diagnosis of alcoholism.

While the Federal Motor Carrier Safety Administration has taken steps to tighten up on medical examinations and certifications, there is still likely to be a problem with drivers avoiding going to doctors and avoid reporting dangerous symptoms to medical examiners. I have taken depositions of truckers who fell asleep while driving, looked like medical textbook illustrations of likely candidates for obstructive sleep apnea, and who had great knowledge of sleep apnea, but who denied ever having consulted a physician regarding any sleep related ailment.

There is also a problem with drivers who do get treatment for their disqualifying conditions but neither comply with their doctors directions nor reported their conditions. In one case, I took the deposition of a truck driver's personal physician who testified that the driver had confirmed obstructive pulmonary obstructive disorder (COPD), required use of an oxyen tank 24/7, and was unfit to operate a large truck. However, the trucker had never told the medical examiner or his employer of this condition.

The next step in reforming the medical qualification process may be to adjust the incentives. Right now the incentive for truck drivers to to avoid seeking treatment for problems that could be disqualifying, and to conceal insofar as possible any medical problems they may have. How can the rules be modified to to encourage drivers who have problems to seek the medical care they need?

And how can truck stop chains be encouraged to provide better access to healthy food and exercise facilities in order to help truck drivers maintain healthier lifestyles?

Continue reading "What medical conditions disqualify a commercial truck driver?" »

The health of truck drivers operating 80,000 pound vehicles on the highways for long hours is a matter of great concern for safety of both the truckers and others on the road. The lifestyle of long-haul truckers is hardly conducive to maintaining good habits of diet and exercise. Obesity, sleep apnea, and related ailments are too common, and ultimately affect safety.

The Federal Motor Carrier Safety Administration has taken two new steps toward improving the supervision of medical certifications of drivers.

First, effective 1/30/09, regulations require states to maintain records linking medical certifications, medical examiner certifications, and CDL (commercial drivers license) records. A copy of these documents must be maintained in the motor carrier's driver qualification file. There will be a three-year phase-in of the new rule until 1/30/12.

Second, the FMCSA has published for comment a proposed rule to establish a national registry of medical examiners, who would be required to complete training about truck driver physical qualification regulations. Only those doctors who complete and maintain their certifications would be allowed to certify the fitness of truck drivers.

These are steps in the right direction. Now I would like to see truck stop chains do their part by installing exercise facilities and offering healthier food options.

Continue reading "Medical certification rules for interstate truck drivers tightening" »

Effective 12/19/08, the Federal Motor Carrier Safety Administration rescinded a 1997 policy in order to permit motor carriers to use electronic systems in lieu of paper logs. The change of policy recognizes the reality that most motor carriers now use some sort of technology to trace, route and manage their business. This is good in that it is difficult to falsify a GPS log and it is difficult for a motor carrier to claim it could not have known of violations of hours of service rules when it is using software designed to automatically check for such problems.

However, discovery of the electronic records may be difficult. Motor carriers are obligated to preserve electronically stored information just like paper records. But they and their lawyers are likely to claim that the information was inadvertent, that no backups exist, and that hard copies that do not include all the information are just as good. For example, software used by the motor carrier may allow for comments to be typed in a pop-up box,, but reports may be printed out without the comments that were entered.

The move toward electronic record keeping is a net positive, but it will require a more sophisticated approach to discovery in the litigation of serious trucking accident cases.

Those of us who handle serious trucking accident cases are gearing up for a much tougher approach to electronic discovery.

Continue reading "Electronic record keeping and discovery in interstate trucking" »

Federal Motor Carrier Safety Administration, at 49 CFR 391.11, requires that in order to get a Commercial Driver's License, an applicant must be able to "read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records."

A news story from West Virginia tells about a Russian truck driver who wrecked and spilled a truckload of cocoa. He could not speak English, but somehow had obtained a Maryland CDL.

There have been occasional stories about people essentially buying CDL licenses in various states although they did not qualify. I won't guess what may have happened with this guy.

However, we have seen cases in which immigrant truck drivers who did not speak or read English obtained CDL licenses contrary to the federal rule. In one case a year or so ago, I took the deposition in Kansas City -- through an interpreter -- of a Croatian truck driver who was taught to drive a tractor trailer by "some Russian guy in North Carolina. He said his study of the CDL manual and rules was accomplished by having his 10-year-old daughter translate it for him.

By the time I took his deposition he had learned enough English to have a little conversation, though we had to work through an interpreter. Can you imagine how hard it is to get a Croatian interpreter at all. Forget about getting one who knows the nuances of court interpreting.

You just can't make this stuff up.

Continue reading "Truck drivers required to speak and read English, so how do some of these guys get CDL licenses??" »

Ray LaHood, the new US Secretary of Transportation, is apparently focused on infrastructure and air traffic control, but not so much on trucking safety.

According to an Associated Press article by Michael Tarm, LaHood is preparing to meet with the state DOT chiefs from all 50 states about plans for road and mass transit projects with funds from the economic stimulus legislation. That seems certain to consume most of his energy and attention.

A strong second priority is replacement of the radar-based national air traffic control system with a satellite-based system called NextGen.

I have not yet seen any announcement of who may be the new head of the Federal Motor Carrier Safety Administration. Stay tuned.

Continue reading "Trucking safety not at top of priority list for new DOT Secretary" »

On inauguration day, President Obama's office issued a directive to agency heads directing a 60 day hold on newly issued regulations that had not yet become final.

Regarding the trucking industry, three new regulations were published in the Federal Register during the last days of the Bush administration but had not yet become final. Those include final rules on responsibility for intermodal chassis, driver medical certification verification and the new entrant safety assurance process.

The new hours of service regulation became final on the day before the inauguration, and was not included in the list of regulations put on hold. It is anyone's guess what decision might be made on that.

Continue reading "Obama puts on hold 3 new Federal Motor Carrier Safety regulations" »

One of the first official acts of the new Obama administration was to put a hold on newly proposed or recently adopted federal regulations until the new team can review them. However, the Federal Motor Carrier Safety Administration's controversial hours of service regulations, which became final the day before the inauguration, was not on the list.

Continue reading "Truckers' hours of service rule not among those stayed by Obama administration" »

A tractor trailer accident on an icy interstate highway in Indiana underscores the importance of the rule requiring drivers of commercial vehicles to exercise "extreme caution" in hazardous weather conditions.

On I-74 in Indiana, a firefighter was suffered a crushed pelvis, broken leg, and multiple internal injuries when he was struck and pinned under the rear drive axle of a tractor trailer as it came to a rest in the soggy ditch of the icy interstate. Police said the accident happened while I-74 was covered with ice after freezing rain fell. Sheriff Ken Campbell added: "Emergency responders are put at an unnecessary risk by motorists who insist on driving too fast in these road conditions."

49 CFR 392.14 requires:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

As a truck driver client recently told me, it's better to pull over in bad weather than to unnecesarily risk injury or death to himself or others.

Continue reading "Firefighter crushed under tractor trailer speeding in freezing rain in Indiana" »

Truck driver fatigue as a cause of major tractor trailer accidents is an old story. As a trucking trial lawyer in Atlanta, Georgia, I have seen it too many times.

In today's Baltimore Sun, there is an editorial, "Yawning Danger," urging the incoming Obama administration to overturn the hours of service rule that is set to become permanent on the last day of the Bush administration. The old rule limited truck drivers to 10 hours of driving in one day. The current temporary rule, which will become "permanent" on January 19th, allows driving 11 hours during 14 hours on duty.

The editorial points out:

Has the 11th hour made the roads more dangerous? Are 11th-hour drivers more likely to be involved in crashes? Some research suggests no, and that's the evidence sited by the Federal Motor Carrier Safety Administration when it granted the rule change in November. But advocates say the government's analysis relies heavily on one study from the Virginia Tech Transportation Institute that is deeply flawed (depending, for instance, on truckers being videotaped; the presence of a camera onboard likely affected their performance).

The bulk of 35 years of research, the petitioners point out, shows that the performance of long-haul truck drivers diminishes even before the 10-hour limit is reached. And while the number of highway fatalities was down the last two years, it went up the first year the new rules were in place. Recent safety improvements to roads and vehicles as well as lower average highway speeds may be masking the effect of the longer hours.

It seems like common sense that fatigue is progressive, and that one is more fatigued and more accident prone in the 11th hour of driving than in the 10th hour.

Continue reading "Yawning Danger - call to take truckers back to 10 hours driving per day" »

Trucking safety lawyers as well as everyone else concerned about transportation issues needs to pay attention to personnel choices in the US Department of Transportation. You remember the old cliche that "personnel is policy." Even an humble personal injury trial attorney handling trucking accident cases in Atlanta should be attentive.

President-elect Obama has picked Ray LaHood, a retiring Republican congressman from rural Illinois as his Secretary of Transportation. Here's what some of the commentators around the country are saying:

* John Hughes and Julianna Goldman at Bloomberg.com write:

Even with firm Democratic majorities in the House and Senate, Obama will need help across the aisle. Legislation to upgrade the nation’s air-traffic control system has been stuck in Congress for more than a year and the Bush administration has been fighting airlines over flight rights in New York. Meanwhile, Obama is planning to give states an infusion of funds to create jobs by improving the nation’s infrastructure. . . .
In an attempt to cut through partisan rancor in the late 1990’s, LaHood organized a series of annual retreats -- at resorts a short train or car ride outside of Washington -- to bring together lawmakers and their families.

* In The New Republic, John B. Judis writes "LaHood and Solis: Second Round Picks":

Bush’s administration. But they should be important in Obama’s administration. Transportation has a stake in America’s two biggest manufacturing industries, planes and auto. Much of the $900 billion and rising in infrastructure funding is going to go through the Transportation Department. The secretary is not just going to be responsible for shepherding this spending through Congress, but also for shaping what kind of spending occurs. What gets funded--highways, airports, rail, mass transit--and in what proportion will determine what the country looks like well into the next decades. LaHood is being touted as being pro-rail because he didn’t vote against AMTRAK, but I have heard little to convince me that he will bring any kind of vision to the job or that he will able to sell controversial provisions in the Senate.

* John O'Dell at Green Car Advisor on Edmunds.com writes:

LaHood has little transportation record beyond his support for Amtrak, the national passenger train program, and his apparently friendly relationship with the Teamsters Union and other transportation unions, which endorsed and financially supported him during his congressional career. The national Teamseters Union also has endorsed his nomination as Transportation Secretary.

* American Traffic Safety Services Association (ATSSA) is the industry organization of companies providing pavement markings, road signs, work zone traffic control devices, guardrail, and other roadside safety features. It issued a statement that it was "is enthused by the selection and recommends prompt confirmation from the Senate."

* Oliver Patton at TruckingInfo.com wrote that LaHood will "have to hit the ground running: Obama has called for massive public works investments, in the short term for economic stimulus and in the longer term for rebuilding and modernizing transportation infrastructure."

Continue reading "Quick clips: what they're saying about prospective DOT Secretary Ray LaHood" »

A truck wreck in New Hampshire sounds similar to the the first interstate trucking personal injury case I handled as a "puppy lawyer" about 25 years ago, before I learned the basics of anything as fundamental as the Federal Motor Carrier Safety Regulations.

In the New Hampshire accident this morning, a state snow plow truck on I-89 was struck in the rear by a tractor trailer. The tractor trailer driver was hospitalized for a head injury.

My case a quarter century ago arose out of a rare Georgia snow storm after Christmas. A Georgia DOT snow removal truck was outfitted with a blade in the front and salt spreader in back. With two workers in the cab, it was moving slowly clearing snow next to the median barrier. A flatbed tractor trailer running empty on the way home Texas was traveling way too fast, skidded on an icy spot, and skidded into the DOT truck. The Texas trucker clearly was not exercising the "extreme caution" required of commercial trucks in hazardous weather conditions.

The fellow "riding shotgun" in the DOT vehicle wasn't hurt significantly in the initial impact, but was trapped, wedged between the median barrier and the 18 wheeler, when the snow removal truck caught fire. By the time someone broke out the windshield and pulled him to safety, he had second and third degree burns over much of his body. The case was a learning experience for me in that it was my first case involving a serious burn injury.

Continue reading "Big rig and snow removal truck crash in NH reminds me of my first trucking case in GA" »

As a trucking safety trial lawyer, I've been bemused at the reluctance to fully utilize widely available GPS technology for trucking regulatory enforcement. Under a policy issued in 1997, the Federal Motor Carrier Safety Administration limited the use of technology data and electronically produced records, such as GPS, during reviews and for regulatory enforcement purposes.

Now, effective 12/19/08,according to a report by Barb Kampbell at TheTrucker.com the FMCSA will use GPS and other advanced technology for regulatory enforcement and safety reviews.

Continue reading "GPS data to be used to monitor trucking companies' compliance with federal regulations" »

As a trucking trial attorney, I see case after case of fatigued truck drivers, either near the end of their legal hours of service, or pushing beyond those hours, causing crashes due to impaired perception, reaction and judgment. For the past several years there has been a battle over extension of legal driving hours from 10 hours to 11 hours during a 14 hour shift.

A group of trucking safety and truck driver organizations have challenged the current administration's effort to make the current hours of service rule permanent on President Bush's last day in office.

The final rule, which is scheduled to take effect on Jan. 19, allows truckers to drive up to 11 hours out of 14 hours on duty in a single shift, while driving 88 hours or working 98 hours over eight consecutive days.

The organizations joining in filing a petition for reconsideration of the rule include Advocates for Highway and Auto Safety, Public Citizen, Truck Safety Coalition, and International Brotherhood of Teamsters. They previously won two court rulings against the rule, only to see the FMCSA reissue essentially the same rule.

The petition for reconsideration asks FMCSA to reconsider the regulation based on errors and misrepresentations of research findings showing that much longer working and driving hours will produce severely fatigued drivers who also can suffer serious health problems from excessively long working hours.

Jacqueline Gillan, vice president of Advocates for Highway and Auto Safety, said “FMCSA simply disregarded scores of studies conducted over more than 30 years showing that this incredibly demanding working and driving schedule will lead to exhausted truck drivers who literally can fall asleep at the wheels of their rigs.”

John Lannen, executive director of the Truck Safety Coalition, stated “FMCSA has issued a regulation that just doesn’t care about the health and safety of truck drivers, much less anyone else sharing the road with them. The agency attempted to justify this bankrupt regulation by manipulating the enormous body of facts and science that clearly shows that truck drivers, like other workers, cannot perform safely day after day, week after week, under these incredible working schedules. This rule threatens the personal safety of everyone on America’s roads.”

Continue reading "Hours of service rule for truckers challenged as threat to safety" »

In my trucking litigation practice, I have found that one of the weak links in truck transportation is the quality of equipment used in transporting freight containers from ports to ultimate destinations. Too many of the truck chassis used are apparently old trailers spray painted to look sharp but with inadequate mechanical and safety features, and too many of the key players in the system were not subject to safety regulations.

Now the Federal Motor Carrier Safety Administration has issued proposed rules to augment safety requirements for intermodal container chassis—the trailers that transport cargo containers when they are transferred from ship or rail to truck for final delivery. The new regulations for the first time make intermodal equipment providers subject to the Federal Motor Carrier Safety Regulations (FMCSRs), and define shared safety responsibility among intermodal equipment providers, motor carriers, and drivers.

A spokesman for the American Trucking Association noted that this will mark the first time that intermodal equipment providers have been required to maintain their equipment and be responsible for it, as motor carriers are required to maintain their equipment.

The Intermodal Association of America expressed reservations. The organization said it is disappointed that the rules failed:

* to recognize existing industry standards and processes that could have been utilized to facilitate the objectives of the regulations;

* to clarify what party would be considered the “IEP” for purposes of regulatory compliance and in fact might have “muddied the water”;

* to accept the existing alpha/numeric equipment identification number; and

* to definitively accept the industry solution of a Web-based intermodal equipment registry as an alternative to physically marking/labeling equipment with a new DOT number.

IANA said it will consider filing a petition for reconsideration upon completion of a thorough review of all provisions of the rules and the projected impact on intermodal industry participants.

Continue reading "New safety rules issued for intermodal trucking equipment" »

As a trucking accident trial lawyer in Atlanta, I am no longer surprised at the failure of some trucking companies to do pretty basic stuff related to safety. Of course, I am looking at those companies whose drivers get into serious crashes.

Now the Federal Motor Carrier Safety Administration has published a new proposed rule on safety audits for new entrants in the motor carrier business. The FMCSA identified 11 regulatory violations which "reflect a clear lack of basic safety management controls" and which under the proposed rule would result in an automatic failure of the safety audit.

It is interesting to compare this list with the issues in recent cases, includingClarendon v. Johnson in which one judge of the Georgia Court of Appeals wrote an opinion concluding, in effect, that interstate motor carriers can exempt themselves from all safety and financial responsibility requirements of the Federal Motor Carrier Safety Regulations through their own violation (by way of the carrier's designated agent) of the regulation requiring execution of truck leases when they hire owner-operators to haul freight under the carrier's authority.

It was the first case in the United States in more than 50 years that gives motor carriers such free rein to disregard the rules and hide behind an "independent contractor" arrangement with an informally hired driver. An untold number of innocent people on the highways will be killed or maimed due to the Georgia Court of Appeals ruling, and will have no remedy.

The 11 deadly sins for trucking companies under the FMCSA proposal are:

1. Sec. 382.115(a)/Sec. 382.115(b)--Failing to implement an alcohol and/or controlled substances testing program (domestic and foreign motor carriers, respectively).

[Just a couple of days ago I took the deposition of a trucking company owner who never, ever required any drug testing of any driver -- preemployment, random or post-accident.]

2. Sec. 382.211--Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382.

3. Sec. 382.215--Using a driver known to have tested positive for a controlled substance.

[Last week I took the deposition of a bus company that avoided getting a post-accident drug test of its driver, even though a professional psychologist who was an eyewitness immediately reported to police that the bus driver -- who had felony drug convictions and had just completed a residential drug treatment program as a condition of sentencing in another state -- was driving erratically, had a wild look in the eyes, and appeared to be on drugs.]

4. Sec. 383.37(a)--Knowingly allowing, requiring, permitting, or authorizing an employee with a commercial driver's license which is suspended, revoked, or canceled by a State or who is disqualified to operate a commercial motor vehicle.

[In Johnson v. Clarendon, an interstate motor carrier, through its designated agent, hired a driver who never even had a CDL because he was permanently disqualified, but the Georgia Court of Appeals thought that was just fine, so long as the motor carrier also violates the regulation that requires that it execute a truck lease when it hires a non-owned truck. In Georgia, violation of the lease requirement now gives a scofflaw carrier a free pass to ignore all the rest of the Federal Motor Carrier Safety Regulations with regard to informally hired trucks and drivers.]

5. Sec. 383.51(a)--Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a commercial motor vehicle.

[See 8, below.]

6. Sec. 387.7(a)--Operating a motor vehicle without having in effect the required minimum levels of financial responsibility coverage.

[See 4 & 5, above. No problem according to one judge on the Georgia Court of Appeals.]

7. Sec. 391.15(a)--Using a disqualified driver.

[See 8, below.]

8. Sec. 391.11(b)(4)--Using a physically unqualified driver.

[See 4 above. A three-judge panel on the Georgia Court of Appeals had no problem with an interstate motor carrier, through an agent who was deemed under the FMCSR to be part of the motor carrier, casually hiring a driver to haul freight for the carrier who was permanently disqualified from driving a commercial motor vehicle due to being blind in one eye. That is just fine, under this ruling, so long as the motor carrier also avoids executing the required written lease and avoids using the word "lease" in its informal arrangement to hire the truck and driver.]

9. Sec. 395.8(a)--Failing to require a driver to make a record of duty status.

[Earlier this week I took the deposition of a trucking company owner who had never looked at the logs of the driver of a leased truck, dispatched by the company owner and operating with the carrier's logo and DOT number on the truck. The company owner was either too careless or too clueless to require or audit driver logs.]

10. Sec. 396.9(c)(2)--Requiring or permitting the operation of a commercial motor vehicle declared "out-of-service" before repairs are made.

11. Sec. 396.17(a)--Using a commercial motor vehicle not periodically inspected.

[We often find in depositions that motor carriers fail to require drivers to inspect trucks and fail to ever check to determine whether they performed inspections. Under the Johnson v. Clarendon ruling, the Georgia Court of Appeals would say that the motor carrier has no duty to assure compliance with truck inspection rules so long as it also omits a lease and use of the word "lease" in its informal arrangement.]

Don't get me wrong. I also represent some very fine, professional truck drivers who are conscientious about following the rules, and who work for companies that follow the rules. Truckers are generally no better or worse than lawyers or judges. A few bad ones made the rest look bad.

Continue reading "The 11 deadly sins for trucking companies" »

Setting the direction of trucking safety will be a small part of the job of the new Secretary of Transportation, Ray LaHood, named yesterday by President-elect Obama. He was not on the short list of candidates about whom there had been a lot of speculation. John McCain has praised the choice.

After reading about Lahood, I don't agree with those who speculate that this indicates low priority for transportation in the new administration. My hunch is that he was chosen to drum up bipartisan Congressional support for funding of major transportation infrastructure projects that Obama plans to help jumpstart the economy.

There are a few clues to how people associated with trucking view him. Land Line quotes Rod Nofziger, Director of Government Affairs for the Owner Operator Independent Drivers Association, as saying, "Mr. LaHood would be an excellent pick by the Obama administration. It’s very encouraging and would be a great thing for small-business truckers.” He got some campaign contributions from the American Trucking Association, and got a 100% rating for voting with the ATA.

LaHood is an Arab-American Republican Congressman who for 14 years has represented the area around Springfield and Peoria, Illinois. He did not run for another term in 2008. According to Jeff Zeleny at the New York Times, LaHood has experience on the House Appropriations Committee relevant to oversight of the sort of large-scale public spending on infrastructure projects. He also has close bipartisan relationships with President-elect Obama and Chief of Staff Designate Rahm Emanual..

Mike Dorning at The Swamp blog quotes Emanue's recent comments on the House floor about LaHood:

If you look back and I think if you ask all our colleagues, somebody when our framers thought of a member of Congress what they had in their mind's eye, that person would be Ray LaHood, whose decency, his sense of what it is that he was doing here on behalf of who he was doing it for never changed in his 30 years. He is an individual who, while firm in his principles, was very flexible about his opinions.

LaHood also has long been a favorite of reporters covering the Capitol for his willingness to say on-the-record what other members of Congress will only whisper anonymously.

A story on ABC News lists some of the priorities facting the US DOT, and does not list anything at the Federal Motor Carrier Safety Administration. It includes:

- Upgrading the nation's transportation infrastructure - roads, bridges, etc. -- even though the Highway Trust Fund is running on fumes. The gas tax has become a less viable way of funding highways, so increased use of tolls with an EZ-Pass system may be considered.

- Upgrading Amtrak rail system.

- Upgrade the Federal Aviation Administrations' air traffic control system, relief of air traffic congestion, and aircraft inspection.

- Promotion of more fuel efficient vehicles, in conjunction with the proposed bailout of the auto industry.

Evan Sparks at Aviation Blog predicts that the appointment of LaHood may mean that Obama does not plan to devote a great deal of attention to transportation issues — much like our current president, whose cabinet’s token Democrat was also at DOT.

Andy Birkey at the Minnesota Independent gives some hometown insight on LaHood due to having grown up in Peoria. He reports that LaHood is of Lebanese Christian family background. He refused to sign Newt Gingrich's "Contract with America" in '94, supported the impeachment of President Clinton, is a close friend of Rahm Emanuel (Obama's chief of staff), supported subsidies for Amtrak, and voted for recent legislation to promote public transit.

Some bloggers have been critical of the appointment. Robert Cruikshank at California High Speed Rail Blog observed that "LaHood doesn't appear to have much of a record as a transportation expert."

Marcus Sanford at Austin Bike Blog noted that LaHood is a member of the Congressional Bike Caucus and has voted in favor of higher fuel standards, Amtrak funding, and renewable energy.

As for LaHood's campaign contributions from special interests of the years, you can figure that out for yourself.

As a "redneck lawyer" from Georgia, I know that leaders can transcend their backgrounds when promoted to new positions. Ray Lahood has been a congressman from a rural and small town district in downstate Illinois, where Caterpillar is the main industry. While big national issues such as urban transit, air travel safety and for that matter motor carrier safety have not been big vote getters in his district, he has shown interest in upgrading transportation. Obama and Emanuel know him well and apparently think he has capacity for growth and effectiveness.

We just need to make sure he is educated about trucking safety issues.

Continue reading "Congressman Ray LaHood Named New US DOT Secretary" »

We have seen years of criticism of the lack of seat belts and inadequate passenger protection on school buses and other buses. In the next few days, the National Highway Traffic Safety Administration’s (NHTSA) is expected to issue a final rule that will require seatbelts for small school buses but only recommends seatbelts for larger school buses. Larger buses will be required to increase the seat back height four inches, at somewhat less cost than adding seat belts.

The rule also includes preemption language that seeks to give blanket immunity to the industry that manufactures buses and their parts. The language would make it much more difficult to recover damages children seriously injured or killed in school bus accidents.

This is just one of numerous regulations that the outgoing administration is seeking to finalize before inauguration day on January 20th, while departing officials seek to feather their nests for new jobs in the industries they have been regulating. Finalizing a regulation before the change of administrations would make it much more difficult for the new administration to change the regulation.

Continue reading "Proposed school bus safety rules give manufacturers immunity" »

As a trucking accident attorney representing people seriously injured by large trucks, and the families of people who are killed, I work almost every day with the Federal Motor Carrier Safety Regulations, and try to keep up with trucking safety regulation.

Looking forward to transition at the Federal Motor Carrier Safety Administration, it is interesting to look back at what the U.S. Senate Appropriations Committee said in a report on the FMCSA last July. Here are a few excerpts:

The FMCSA has shown a pattern of undermining its safety mission by proposing weak regulations and failing to provide adequate oversight and enforcement of existing regulations.

The rules that FMCSA has proposed fail to achieve maximum safety benefits, and in some instances may undermine safety.

While marginal gains were made in 2007 compared to 2006, the charts show that over two-thirds of inspections continue to uncover violations, and one in five trucks or drivers inspected have violations so severe that they are immediately placed out of service. FMCSA has a great deal of work to do to compel industry compliance.

Continue reading "Senate Committee critical of Federal Motor Carrier Safety Administration" »

In my truck and bus accident law practice in Atlanta, Georgia, I often find truck drivers who were not medically qualified to drive large commercial trucks.

We had one recent case where the driver who caused a crash was blind in one eye, a condition which disqualifies him from even obtaining a Commercial Driver's License in any state. His lack of depth perception combined with excessive speed led to a head-on collision when he swerved around a vehicle that slowed to turn.

In another case the truck driver had COPD (chronic obstructive pulmonary disorder), which also is a disqualifying condition. I took the deposition of his personal physician who testified that he had told the truck driver to use supplemental oxygen at all times, 24/7, and that it was unsafe for him to drive a truck.

We also see truckers whose medical conditions require them to take medications with side effects that make it dangerous for them to drive.

Now the Federal Motor Carrier Safety Administration is taking a step in the right direction. It will require states to merge commerical truck and bus drivers licenses and drivers' medical examination certificates into a single electronic record. Linking the two will enable states to check whether drivers have met medical requirements to operate commercial vehicles. The FMCSA also proposed creating a list of medical examiners qualified to award certificates to drivers.

A study released earlier this year found hundreds of thousands of drivers operating trucks and buses even though they had qualified for Social Security medical disability payments.

As I said earlier, this is a step in the right direction. However, it apparently will not require the examiners to look at the drivers' personal medical records. Thus, there is little protection against drivers concealing a history of disqualifying conditions that may not be immediately apparent in an exam.

There is also no requirement to screen for chronic obstructive sleep apnea, which is common among truck drivers and contributes to an untold number of fatigue-related crashes. However, we often see truckers who resist even going to a doctor for evaluation because they known diagnosis could endanger their driving jobs. I can certainly understand the fears of such drivers, but any disqualifying condition that is left untreated can pose a lethal risk to other motorists on the highway.

Continue reading "Truck driver medical screening and licenses to be linked" »

This morning I monitored a telephone conference meeting of the Federal Motor Carrier Safety Administration's Motor Carrier Safety Advisory Committee (MCSAC).

They will have a two day meeting in Washington on December 9th and 10th to work on a letter report to the Administrator outlining

- innovative safety initiatives and programs that have the potential to reduce the number of truck and bus fatalities,
- research and development activiites to assess the potential for new safety technologies, and
- enhanced driver qualification standards and driver safey fitness ratings.

Much of the discussion was about semantics -- use of the term "public-private partnerships." They finally agreed to tweak the language to make it clear that they were not talking only about public-private partnerships.

There are two openings on the committee for law enforcement representatives. Nominations are due by this Thursday, December 4th.

Continue reading "Report on the Motor Carrier Safety Advisory Committee (MCSAC) " »

Driver fatigue is a major cause of catastrophic truck crashes. Michigan attorney Terry Coleman suggests that the correlation of fatigue, slow reaction time and aging should lead to imposing a mandatory retirement for truck drivers at age 65, the same age at which airline pilots are required to retire. While I share the concern for trucking safety, I respectfully disagree with the conclusion.

Having known individuals who retained their full strength and faculties to age 80 and beyond, and others who were debilitated at 45, I am increasingly skeptical of mandatory retirement ages in any field. Rather, I would favor annual testing of key functions - vision, hearing, reaction time, etc. - beginning at perhaps age 60 or 65.

If an individual has the physical and mental ability to working productively and safely, he or she should not be restrained by an arbitrary age limit. And if a younger person is not capable, he or she should not be piloting an 80,000 pound vehicle through highway traffic.

Continue reading "Should there be a mandatory retirement age for truck drivers?" »

The Federal Motor Carrier Safety Administration's Motor Carrier Safety Advisory Committee announced a telephone conference meeting for Monday, December 1, 2008
12:00 pm – 1:00 pm EST. Here is the rather opaque agenda that has been announced.

1. Call to Order
Larry W. Minor, Designated Federal Official, MCSAC

2. Opening Remarks
David R. Parker, Chair, MCSAC

3. New Business
Warren Dunham, Facilitator, MCSAC
a) Approval of Task Statement 09-01 (National Agenda for Motor Carrier Safety)
b) Review of 2009-2010 Proposed Meeting Dates

4. Adjournment
Larry W. Minor, Designated Federal Official, MCSAC

Members of the public may access the meeting by telephone conference.
Bridge Line: 1-877-940-3750, Passcode: 1435220
Web Link: http://fhwa.na3.acrobat.com/mcsac

Continue reading " Motor Carrier Safety Advisory Committee agenda" »

While my perspective is that of a trial lawyer handling truck and bus accident injury cases in Atlanta, Georgia, it is necessary to keep up with developments nationally. Therefore, I am following how trucking safety issues are on the agenda for the new administration in Washington.

Last Monday, the transportation transition team met with representatives of major trucking industry interest groups including the American Trucking Association (ATA), the Truckload Carriers Association, Commercial Vehicle Safety Alliance, National Private Truck Council, the Owner-Operator Independent Drivers Association (OOIDA), and the truck manufacturers.

According to a report by Jami Jones of Land Line Magazine, some of the issues on which conflicting opinions were presented included:

- Truck size. The American Truicking Association favors using longer and heavier trucks for "productivity improvements." The OOIDA and others counter that this would take a toll on the nation's highway and bridge infrastructure.

- Loading and unloading time. The OOIDA representative pointed out that many drivers spend 30 to 40 or more hours per week waiting at loading docks to get loaded or unloaded. Addressing the waiting time problems at loading docks would improve productivity, as well as enhancing safety by helping encourage compliance with hours of service and reducing driver fatigue.

- Speed limiters. The ATA argues for speed limiters on trucks for reasons of safety and energy conservation. The OOIDA contends that speed limiters would hurt the incomes of truck drivers who are paid by the mile, and would have negative safety effects by ability to change lanes and move with the flow of traffic.

- Pressure from brokers, shippers, receivers and motor carriers. The OOIDA representative pointed out the the FMCSA concentrates too much of its enforcement efforts on drivers, while ignore the relationship between highway safety and the coercive demands of freight brokers, shippers, receivers and motor carriers upon drivers. The OOIDA representative pointed out that pointed out that truckers are under immense pressure from motor carriers, shippers and receivers. And that pressure is far more pervasive than the threat of any inspection scheme by FMCSA. “Unless those economic issues are addressed, drivers who become disqualified from driving … for safety violations will simply be replaced by new drivers facing the same economic pressures,” he told the transition team.

That is consistent with horror stories about economic pressures to violate safety rules I have heard from numerous truck drivers over the years.

- Truck parking and idling. Hours of service regulations require truck drivers to take mandatory rest periods. However, there are often inadequate spaces available for trucks to park and local governments restrict truck parking. Representatives urged a national approach to availability of truck parking for rest.

- Other topics discussed included electronic on-board recorders, parking shortages, idling regulations, highway financing and driver training.

Continue reading "Obama transition team hears truck safety debate points" »

The Federal Motor Carrier Safety Administration's Motor Carrier Safety Advisory Committee (MCSAC) announced on November 26th, the day before the Thanksgiving holiday, that it will hold committee meetings on Dec. 1, the day after the holiday weekend, and Dec. 10. The announcement did not include any indication of what will be on the agenda.

The December 1 meeting, from 12 to 1, will be accessible by conference call, though the announcement did not include direct information on how to access it.

I sent an email on Wednesday, shortly after the announcement came out, asking for the agenda, and did not receive any response. I will try again.

I try not to be too cynical, but the closing days of any administration, when the outgoing officials may be tempted to feather their nests for future jobs in the industry they regulate, is a time to be especially watchful. That's true no matter which party is going out or coming in.

The December 10th meeting is apparently accessible only to those able to attend in person in Washington, DC.

The announcement stated that for more information, one should contact Jeffrey Miller, Chief, Strategic Planning and Program Evaluation Division, Office of Policy Plans and Regulation, Federal Motor Carrier Safety Administration, Department of Transportation, 1200 New Jersey Avenue SE, Washington, D.C., 20590, (202) 366-1258, or via e-mail to mcsac@dot.gov.

Continue reading "FMCSA Motor Carrier Safety Advisory Committee meetings on Dec. 1 and 10" »

A few days ago, the Federal Motor Carrier Safety Administration published a final rule adopting the provisions of its 2007 interim final rule, increasing the maximum driving time from 10 to 11 hours per day, out of 14 hours on duty.

According to a report by Jill Dunn on e-Trucker.com, the FMCSA and American Trucking Association -- whom some cynics may charge are joined at the hip -- claim that large truck crash, injury and fatality rates have reached the lowest point since the USDOT began recording statistics.

The Teamsters Union, by contrast, claims that the percentage of fatal crashes resulting from driver fatigue rose 20 percent in 2005 from 2004.

Public Citizen President Joan Claybrook says that DOT statistics show that deaths among large trucks occupants increased from 726 to 805 from 2003 to 2006. She also points out that the newest HOS rule does not require electronic on-board recorders which are required in Europe.

A determined advocate can prove anything with statistics. But based on the common sense of humanity, it seems like common sense that any driver is more fatigued and more accident prone in the eleventh hour of driving.

Continue reading "Trucking hours of service debate continues" »

Today's issue of the Atlanta Journal-Constitution includes an article by Steve Owings, who founded Road Safe America after his son was killed by a speeding tractor trailer on cruise control six years ago.

Having met Steve and learned of his motivation to make the roads safer for everyone, I'm just going to copy his article here in order to give his words wider distribution.

Big rig killed our son; drive safely on busiest traffic day

By Stephen C. Owings

For the Journal-Constitution

Wednesday, November 26, 2008

My rearview mirror has turned into a time machine. Every now and then, when I glance into it, I see my son Cullum backing out of our driveway, waving one last time as he pulls away. Then, the truth comes crashing home again: I’m still here, and he’s not.

The Sunday after Thanksgiving will be a hard day for us again this year. It marks the sixth anniversary of Cullum’s tragic, violent passing. He was a young man of 22 with great promise whose life was ended in its prime, without warning, on the Sunday after Thanksgiving in 2002, the busiest highway traffic day of the year. Stopped in an interstate traffic jam while headed back to school in Virginia with his younger brother, Pierce, Cullum saw the lights of the speeding tractor trailer rig in his rearview mirrors. As he was trying to get the car over to the left median to get out of the way, the big rig speeding on cruise control crashed into the boys’ car with full force, crushing it like a toy. That night, we got the phone call every parent dreads and will remember with horror for the rest of our lives: Pierce, who miraculously had survived, told us through his tears from the ambulance that Cullum had been killed.

My wife, Susan, Pierce and I will never stop asking the question why Cullum? However, we believe we have found answers to the many questions about why and how that wreck and thousands more heavy truck-car crashes happen each year. In an effort to learn all we could and then to educate motorists and big rig drivers about the inherent dangers for everyone when heavy commercial trucks travel at high speeds, we founded the nonprofit Road Safe America in 2003.

This Sunday will be the fourth annual national observance of Drive Safer Sunday in America, a day for which we have had state, congressional and media support for a national campaign urging everyone to drive more safely on the busiest highway traffic day of the year.

Since founding Road Safe America, we have been joined by the American Trucking Associations, all national safety advocacy organizations, numerous trucking firms, business executives, insurance companies and thousands of citizens in seeking a national regulation requiring activation of electronic speed limiting governors on all trucks 13 tons and up built after 1992. All trucks built since 1992 already come with the speed governors installed, so it would be a simple thing to activate them. Oddly, the Bush administration has opposed this common sense, inexpensive regulation that would save many of the lives of approximately 4,000 motorists and 1,000 truckers killed each year in crashes involving big trucks. We have asked President-elect Barack Obama to be more compassionate, and we hope his administration will appoint a secretary of transportation who takes action.

If saving lives is not motivation enough to support this cause, in this era of dependency on foreign sources of oil, consider the fact that activation of speed governing technology is already done by many trucking firms as a way to cut fuel use as well as improve safety. With a reduction of only 5 mph, millions of gallons of fuel can be saved annually in the nation’s trucking fleet.

The European Union, Australia, Japan and the Canadian provinces of Ontario and Quebec have regulations requiring speed-limiting devices set at 65 mph or slower on all large trucks. Sadly, instead of showing international leadership, the U.S. is behind the rest of the world in this area.

According to Australian government statistics, Australia experienced a reduction of 26.5 percent in heavy truck fatalities between 2002 and 2004 through speed governor requirements, aggressive fatigue management programs, random drug testing and seatbelt promotion within the trucking industry.

When an airliner goes down and 200 people perish, it is national news for weeks. But when twice that many are killed every month in crashes involving big trucks, where is the outcry?

No one at Road Safe America is anti-trucking or anti-trucker. In fact, the opposite is the case. In terms of annual deaths and injuries, trucking is the most dangerous profession in America, and we want to change that. We are trying to educate drivers of passenger autos and other vehicles about the need to operate more safely around large trucks because of the dangers present. Trucking is an absolutely vital industry to the economic health and prosperity of our nation. However, by limiting heavy commercial trucks’ speeds, we know that many more drivers will make it home to their families, and more motorists will live to see their loved ones again as well —- this Sunday and for many Sundays to come.

Stephen Owings is an Atlanta resident and the co-founder of Road Safe America.

A tractor trailer driver going too fast to see his way through dense fog Monday morning in Fresno, California killed a young woman on her way to work.

According to a report by Jim Steinberg and Vanessa Colón of The Fresno Bee, a big-rig drive Martin Nelson, 22, of Fresno, failed to see stopped traffic in heavy fog. He struck a Ford Explorer, killing the woman inside.

At least two critically important provisions of the Federal Motor Carrier Safety Regulations appear to have been violated here.

First, 49 C.F.R.§ 392.14 requires:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . . rain, dust, . . . adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.

Two California court cases have held that a trial court must instruct a jury on the federal "extreme caution" standard of care rather than the regular negligence standard under state law. Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001); Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). See also, George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006).

Second, 49 C.F.R. § 392.1 requires:

Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.

This case involves a 22-year-old truck driver. My hunch, based on experience in trucking cases, is that his employer checked to see that he had a CDL (Commercial Driver's License, checked to see if he had any moving violatons in the past three years, and tossed him the keys. I seriously doubt that the employer made any efforts at all to assure that he understood and appreciated the need to slow down or pull over when hazardous driving conditions made operation of the tractor trailer unsafe.

As a result, an innocent motorist is dead and her family grieves.

The challenge facing an attorney handling such a case is often to educate judges who don't even know that they are ignorant of motor carrier safety law. That is a continuing challenge as it requires getting a busy judge to focus on a body of federal law with which he or she may have great familiarity. Too many lawyers and judges think a tractor trailer crash is "just a big car wreck" and fail to recognize the legal and technical issues that must be considered.

Continue reading "Big rig crash in morning fog kills woman" »

In my trucking litigation law practice, I all too often see fatal truck accidents that happen in bad weather Despite a federal safety regulation requiring "extreme caution" in hazardous weather, and instructions in the Commercial Drivers License Manual to slow down by at least one-third, truckers under economic pressure from employers, shippers, and sometimes their own creditors, too often speed ahead through rain and snow.

The most recent such crash in the news was yesterday on I-81in Virginia's Shenandoah Valley, a road I know well.

It happened about 11:30 a.m. near New Market, Virginia. The road was slickened by snow. A big rig operated by Jose Alberto Sarmiento of Texas, hit several vehicles before rear-ending of a Ford Escort, killing three members of a Virginia family.

According to a report by Pete DeLea in the Daily News Record of Harrisonburg, VA, Sarmiento has been charged with reckless driving and three counts of felony involuntary manslaughter.

The Federal Motor Carrier Safety Regulations, 49 C.F.R. § 392.14 requires:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

Every reported case that addresses the issue agrees that it is reversible error for a trial court not to instruct a jury on this "extreme caution" standard.

In Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001), a tractor trailer sped through blowing snow until striking another tractor trailer. The trial court denied a request to charge on the “extreme caution” standard under 49 C.F.R.§ 392.14, instructing the jury instead on the state standard of ordinary negligence. The appellate court reversed, holding that the trial court should have charged on the higher federal regulatory standard rather than the lower standard provided by state law. The same decision was reached in Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). Clearly, if the federal “extreme caution” standard preempts a state rule of “ordinary care,” the reasons are even stronger for it to preempt a state standard of “willful or wanton misconduct.”

The Minnesota Supreme Court in George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006), held that it was reversible error to give a “curative” instruction contradicting an attorney’s argument that a “reasonable care” standard did not apply, even though the full instructions included reference to standards of “utmost care” and “extreme caution.”

In Kentucky, Jurek v. Hubbs, 2004 WL 1487116 (Ky.App.,2004), involved denial of the plaintiff’s motion for directed verdict based on 49 C.F.R.§ 392.14 rather than jury instructions. However, the court recognized that the Federal Motor Carrier Safety "regulations govern the operation of commercial motor vehicles in the United States. To the extent that they establish a standard of care higher than the law, ordinances, or regulations of a particular state jurisdiction, a commercial driver must comply with the FMSCR."

The Virginia Supreme Court held, in Kimberlin v. PM Transport, Inc., 264 Va. 261, 563 S.E.2d 665 (Va.,2002), that it was reversible error to direct a verdict for the defendant where there was a question of fact whether truck driver violated the duty created by 49 C.F.R.§ 392.14 to exercise extreme caution under hazardous conditions and whether violation of such duty was a proximate cause of the accident. The court noted that while violation of the regulation does “not constitute negligence per se [It] simply creates an expanded duty of care for the operation of commercial motor vehicles under the conditions stated therein.”563 S.E.2d at 668-69.

Continue reading "Truck wreck kills three in hazardous weather" »

As an Atlanta trial lawyer handling trucking accident cases throughout Georgia, and occasionally in neighboring states, I watch doings at the Federal Motor Carrier Safety Administration (FMCSA) with considerable interest. The news about FMCSA coming out of Washington this week was pretty scathing.

The Senate Appropriations Committee’s Transportation, Housing and Urban Development report on the FMCSA blasted the agency for its failure to put the top priority on safety, expressing "immense frustration." See reports by Barb Kampbell on TheTrucker.com and by Justin Carretta of Fleetowner.com.

A few key points are:

* “FMCSA has shown a pattern of undermining its safety mission by proposing weak regulations and failing to provide adequate oversight and enforcement of existing regulations.”

* Regarding the Hours of Service rule, “the rules that FMCSA has proposed fail to achieve maximum safety benefits, and in some instances may undermine safety … clear and consistent regulations are critical to the industry, so that they can manage operations in a compliant way; FMCSA has not provided that consistency.”

* In the area of drug testing, investigators from the Government Accountability Office found that 22 of 24 drug testing centers failed to follow sample collection protocols. In some instances, drivers fail drug tests at one location and are simply transferred to another area to continue driving.

* A 2001 National Transportation Safety Board recommendation to FMCSA that it take action to prevent medically unqualified drivers from operating commercial vehicles has not been satisfied.

Continue reading "Senate committee blasts Federal Motor Carrier Safety Administration for failure to protect public on driving hours and drug testing" »

As a trucking accident trial lawyer, I occasionally see trucking companies try to evade responsibility for their driver. Generally, that is covered adequately by 49 C.F.R. § 390.5 which in the interstate trucking context defines "employee" to include "an independent contractor while in the course of operating a commercial motor vehicle."

But when a really devious trucking company comes up with a scheme to try to evade that responsibility, we can fall back on what courts used before enactment of that “statutory employee” rule.

Before 1956, courts could rely upon the Restatement rule that, “An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.” Restatement (Second) of Torts § 428.

Continue reading "Trucking companies responsible for their drivers even if they evade regulations " »

Trucking accident trials often revolve around Federal Motor Carrier Safety Regulations and evidence of how they were violated. Some of the regulations often referred to in cases where tired truckers wreck include the following:

49 C.F.R. § 392.3, Driver Impairment.

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, or 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.

FMCSR, 49 C.F.R. § 390.11 Motor carrier to require observance of driver regulations.

Whenever ... a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.

FMCSR, 49 C.F.R. § 390.13, provides that

"No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter."

It does not say "no motor carrier." A company owner who makes irresponsible dispatching decisions may become an individual defendant.

FMCSR, 49 CFR 390.5 defines "person" as follows:

Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals.

FMCSR, 49 CFR § 395.3 Maximum driving time for property-carrying vehicles.

Subject to the exceptions and exemptions in § 395.1:

(a) No motor carrier shall permit or require any driver used by it to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle:

(1) More than 11 cumulative hours following 10 consecutive hours off duty; or
(2) For any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty, except when a property-carrying driver complies with the provisions of § 395.1(o) or § 395.1(e)(2).
(b) No motor carrier shall permit or require a driver of a property-carrying commercial motor vehicle to drive, nor shall any driver drive a property-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver's services, for any period after-
(1) Having been on duty 60 hours in any period of 7 consecutive days if the employing motor carrier does not operate commercial motor vehicles every day of the week; or
(2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates commercial motor vehicles every day of the week.

FMCSR, 49 CFR § 395.8 Driver's record of duty status.

(a) Except for a private motor carrier of passengers (nonbusiness), every motor carrier shall require every driver used by the motor carrier to record his/her duty status for each 24 hour period using the methods prescribed [herein]....
* * * *
(e) Failure to complete the record of duty activities of this section or § 395.15, failure to preserve a record of such duty activities, or making of false reports in connection with such duty activities shall make the driver and/or the carrier liable to prosecution.

Continue reading "Truck driver fatigue and hours of service" »

As Georgia attorney working on trucking accident cases, I often seen why truck drivers’ paper logs are often called "comic books." In one recent case, for example, a truck driver from Croatia who was trained by some unidentified Russian guy in North Carolina, worked for a trucking company owned by a Bulgarian in Florida, and said he studied the Federal Motor Carrier Safety Regulations by having his 10-year-old daughter translate them from English to Croatian, admitted that he generally filled out his logs the next day. No wonder his logs looked perfect.

In light of such experiences, you can see why I was encouraged to see that National Transportation Safety Board (NTSB) has recommended that all motor carriers to use electronic onboard recorders (EOBRs). The Federal Motor Carrier Safety Administration’s (FMCSA) current proposal calls for an EOBRs mandate only for "repeat violators" of hours-of-service rules. Earlier the NTSB expressed concern that the FMCSA proposal lacks the "resources or processes necessary to identify and discipline all carriers and drivers who are pattern violators." According to the NTSB,"the only way in which EOBRs can effectively help stem hours-of-service violations, and thereby reduce accidents involving a commercial driver’s reduced alertness or fatigue, is for the FMCSA to mandate EOBR installation and use by all operators."

Continue reading "Truck driver logs may be electronic ... "in the year 2525, if man is still alive"" »

As a Georgia attorney handling trucking accident cases, I often see cases where crashes occurred in bad weather. While most state laws define the standard of negligence liability as "ordinary care," when a motor carrier driver is driving in adverse weather, an "extreme caution" standard under 49 C.F.R. § 392.14 should preempt any lower standard under state law. “Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a [federal] regulation ... imposes a higher standard of care than that [state] law, ... the ... regulation must be complied with.” (49 C.F.R. § 392.2.)

There is case authority it is reversible error for a trial court to fail to instruct the jury on the “extreme caution” standard in a case where an interstate commercial motor vehicle was operated in inclement weather. This is a higher duty of care than “reasonable or prudent” standard under a state’s basic speed law, and thus operators of commercial motor vehicles are required to comply with regulation. Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005).

Continue reading "Truckers in bad weather must exercise "extreme caution"" »

As a lawyer representing folks injured in trucking accidents, I often see trucking companies still trying to claims they are not responsible for an owner-operator truck driver they classify as an "independent contractor."

However, that is generally just a ruse to fool the uninitiated. A section of the Federal Motor Carrier Safety Regulations, at 49 C.F.R. § 390.5, defines the term“employee” as,

any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.

The Regulatory Guidance to 49 C.F.R. § 390.5, at Question 17, explains:

The term “employee,” as defined in § 390.5, specifically includes an independent contractor employed by a motor carrier. The existence of operating authority has no bearing upon the issue. The motor carrier is, therefore, responsible for compliance with the FMCSRs by its driver employees, including those who are owner-operators.

The regulations “create an irrebuttable presumption of an employment relationship” – statutory employment – “between a driver of a leased vehicle furnished by a contractor-lessor and a carrier-lessee. . . . Any negligence on the part of the driver of the leased vehicle is imputed to the carrier-lessee as a matter of law. The common law doctrines of master-servant, respondeat superior and independent contractor are preempted by these regulations.” Johnson v. S.O.S. Transport, 926 F.2d 516, n.17 (6th Cir. 1991).

Continue reading "Trucking companies responsible for negligence of "independent contractor" truck drivers as "statutory employees"" »