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The 11 deadly sins for trucking companies

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.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). He served as chair of the Southeastern Motor Carrier Litigation Institute, is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is a frequent national seminar speaker for the Interstate Trucking Litigation Group of the American Association for Justice. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he was a faculty member for ten years at the Emory University Law School Trial Techniques Program.