Articles Posted in Truck driver fatigue

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While Georgia is a long way from the Mexican border, as a tractor trailer and big rig accident trial lawyer based in Atlanta, I have for several years followed the controversy over allowing Mexican trucking companies to operate in the United States. Concerns about safety rules and practices in Mexican trucking have simmered since 1995.

Today the U.S. and Mexico signed an agreement to allow Mexican tractor trailers and big rigs to operate in the U.S. and suspend retaliatory Mexican tariffs that added 5 to 25 percent to the cost of U.S. exports sold in Mexico.

This is the latest development in the long-running controversy to concerns about the safety standards of Mexican trucking, which long blocked North American Free Trade Agreement (NAFTA) rules permitting Mexican trucks to cross beyond a 25- mile border zone.

The USDOT justifies today’s action by saying that Mexican trucks must comply with all Federal Motor Vehicle Safety Standards, and will have electronic monitoring systems to track hours on the road, and that Mexican tractor trailer truck drivers must take drug tests that are analyzed in the U.S., hand over complete driving records and prove their English-language skills.

A previous cross-border pilot program for trucking certification program in 2009 included only 157 Mexican trucks.

Reactions from interest groups has varied widely:

• The US Chamber of Commerce supports the agreement as “a vital step toward a more efficient U.S.-Mexico border,” according to a statement from COC president Thomas Donohue. Truckers drop trailers at the border before crossing. Older rigs, often called transfers, pick them up to cross and leave them for a long-haul truck waiting on the other side.

Regarding safety concerns, the Conservative Daily News blog points out that while USDOT will pay for electronic on-board recorder (EOBR) to monitor hours of service of Mexican tractor trailers, an “EOBR cannot determine if the driver of the commercial vehicle is working other than driving, or if this driver is asleep or awake. It will not ‘automatically’ do anything as the driver still must manually enter whether a change of duty status has occurred or not.” It quotes a report issued from the Congressional Research Service in February of 2010 which stated:

“The rationale of eliminating the truck drayage segment at the border, and of NAFTA in general, is to reduce the cost of trade between the two countries, thus raising each nation’s economic welfare. However the cost to federal taxpayers of ensuring Mexican truck safety, estimated by the U.S. DOT to be over $500 million as of March 2008, appears to be disproportionate to the amount of dollars saved thus far by U.S. importers or exporters that have been able to utilize long-haul trucking authority. . . . Any accumulated savings in trucking costs enjoyed by shippers therefore should be weighed against the public cost of funding the safety inspection regime for Mexican long-haul carriers.”

• The American Association for Justice Interstate Trucking Litigation Group, of which I am a board member, urged USDOT to bring up to date liability insurance coverage requirements, which have been unchanged since 1980, prior to implementing the cross-border program. The $750,000 minimum liability coverage for interstate motor carriers adopted in 1980 would be nearly $2,000,000 today if simply adjusted for inflation. USDOT responded:

“Mexico-domiciled motor carriers must establish financial responsibility, as required by 49 CFR part 387, through an insurance carrier licensed in a State in the United States. Based on the terms provided in the required endorsement, FMCSA Form MCS-90, if there is a final judgment against the motor carrier for loss and damages associated with a crash in the United States, the insurer must pay the claim. The financial responsibility claims would involve legal proceedings in the United States and an insurer based here. There is no reason that a Mexico-domiciled motor carrier, insured by a U.S.-based company, should be required to have a greater level of insurance coverage than a U.S.-based motor carrier. Increasing the minimum levels of financial responsibility for all motor carriers is beyond the scope of this notice and would require a rulemaking. In accordance with section 350(a)(1)(B)(iv), FMCSA must verify participating motor carriers’ proof of insurance through a U.S., State-licensed insurer. As a result, participating motor carriers may not self-insure.”

The Owner-Operator Independent Drivers Association (OOIDA) is bitterly critical of the action, and is challenging it in court in Washington. OOIDA asserts that Mexico has failed to institute regulations and enforcement programs that are even remotely similar to those in the United States, and there would be no relevant corresponding reciprocity for U.S. truckers. According to OOIDA, “This program will jeopardize the livelihoods of tens of thousands of U.S.-based small business truckers and professional truck drivers and undermine the standard of living for the rest of the driver community.”

Teamsters Union president Jim Hoffa also questioned legality of the program because it grants permanent operating authority to Mexican trucks after 18 months in the “pilot program” without Congressional authorization, and because DOT would use money from the Highway Trust Fund to pay for electronic on-board recorders for Mexican trucks. He said, “opening the border to dangerous trucks at a time of high unemployment and rampant drug violence is a shameful abandonment of the DOT’s duty to protect American citizens from harm and to spend American tax dollars responsibly.”

Industry groups that export to Mexico, and are impacted by retaliatory Mexican tariffs, support the decision. They include the National Cattlemen’s Beef Association (NCBA) , California grape growers , and Washington State apple growers.

This Georgia truck wreck lawyer may run down to the mall to buy a Rosetta Stone home study course on Spanish.
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The infant child of a young couple from Douglasville, my hometown, has died of injuries sustained when a tractor trailer ran over their car from the rear on I-75 near Windy Hill Road last Saturday night.

The truck driver, Henry Lipps, 59, from Indiana, has been charged with following too closely and second degree homicide by vehicle.

Police investigators said Lipps did not brake when he approached stalled traffic on a southbound lane of I-75 north of the Windy Hill Road exit. His 18-wheeler crashed into the back of a car in which the child and two adults, Donald Morgan, 25, and Candice Morgan, 24, were riding.

The child was taken to Scottish Rite with critical injuries while the parents were taken to Atlanta Medical Center. Two other adults riding in another car, Ramon Mcelrathbey, 24, and Cornelius Mcelrathbey, 21, were taken to Grady Memorial Hospital.

The tragedy of what happened is obvious. The unanswered question is “why?”

In my trucking accident trial practice in Georgia, I have seen this scenario too often.

In one case, a truck driver from Ohio ran over a family on I-75 a night, and showed Georgia state troopers a driver log that made it appear he was well within his legal hours of operation. But when, in the wrongful death lawsuit, we got all the documents and took his deposition in Ohio, his story slowly unraveled.

In the end, he admitted that his driver log was a complete fabrication. He actually had been driving 20 of the 24 hours immediately before running over a family and killing their child.

When we dug into the company’s records, the evidence was such that a federal judge wrote that the company “turned a blind eye” to habitual safety violations.

When such evidence is uncovered, the potential damages can be increased well beyond a “normal car wreck” tragedy.
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The Federal Motor Carrier Safety Administration (FMCSA) has scheduled a public listening session on its proposal to revise hours-of-service (HOS) rules for commercial truck drivers on February 17, 2011 in Arlington, Virginia.

The agency will also webcast the session live with a forum on its website for comments and questions in order to maximize public participation.

The proposed rule change, which I discussed in this blog about six weeks ago, defines a fault line between the trucking industry, which generally claims asserts the proposed changes would excessively restrict the trucking business in already economically difficult time, and safety advocates who say the changes don’t go far enough in reducing driver fatigue.

According to Transportation Department records, driver fatigue accounts for up to 40 percent of all commercial vehicle crashes.

The hearing will be held at the Crowne Plaza Washington National Airport hotel at 1480 Crystal Drive, Arlington, Virginia 22202. The live webcast may be viewed by going to www.fmcsa.dot.gov. The session will last from 12 noon until 12 midnight EST.

If you or a loved one have been injured by negligence in operation of a large commercial truck in or from Georgia, contact us today to determine whether you have a claim.
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As a trucking safety trial attorney in Georgia, I find that one of the most valuable sources of information about accident prevention in the trucking industry is the Truck Safety Coalition. It is a partnership between The Citizens for Reliable and Safe Highways (CRASH) Foundation, and Parents Against Tired Truckers (P.A.T.T).

The Truck Safety Coalition is dedicated to reducing the number of deaths and injuries caused by truck-related crashes, providing compassionate support to truck crash survivors and families of truck crash victims, and educating the public, policy-makers and media about truck safety issues.

If you or a loved one have been injured by negligence in operation of a large commercial truck in or from Georgia, contact us today to determine whether you have a claim.
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Because driver fatigue is one of the most pervasive safety issues in interstate trucking, trucking safety regulations for many years have included rules on how many hours a driver may drive and be on duty. In almost every serious trucking accident, the accuracy of paper driver logs becomes an issue. As a trucking safety trial attorney in Georgia, I have exerted a great deal of effort over the years investigating other records to determine the truth which does not always match those logs.

Now, after years of controversy, the Federal Motor Carrier Safety Administration is proposing a new rule requiring Electronic On-Board Recorders (EOBR).

A proposed rule published published Feb. 1 that would require motor carriers that are required to maintain Records of Duty Status for Hours of Service (HOS) recordkeeping would have to use EOBRs to monitor their drivers’ compliance.

FMCSA’s proposal includes supporting documents these carriers would still be required to obtain and keep, as required by section 113(a) of the Hazardous Materials Transportation Authorization Act, but it would remove requirements to retain supporting documents to verify driving time. It would require all carriers to systematically monitor their drivers’ compliance with HOS requirements, with three years from the effective date of the final rule to comply.

The agency is accepting comments until April 4, 2011. FMCSA had issued a rule on April 5, 2010, that mandated EOBR use by June 4, 2012, by motor carriers found during a compliance review to have a 10 percent violation rate for any HOS regulation. This new rule expands that requirement, with three possible options:

Option 1 would require EOBRs for all drivers required to use paper logs.

Option 2 expands Option 1 to include all passenger-carrying commercial motor vehicles subject to the s and Federal Motor Carrier Safety Regulations shipments of bulk hazardous material, regardless whether the drivers use paper logs or are exempted from doing so.

Option 3 would include all commercial motor vehicle operations subject to the hours of service requirements.

While this is generally a step in the right direction, I’m cynical enough to note that even electronic systems are potentially subject to manipulation and cheating, though the human overrides required to cheat will require more sophistication than merely lying on a paper log, often referred to as a “comic book.” If maintenance of supporting documentation is no longer required, it will become vastly more difficult to check the accuracy of electronic records that may be subject to sophisticated cheating.

Those of us who inquire into the truth underlying hours of service reports will also have to become more sophisticated about discovery of electronically stored information in the trucking industry. That will likely require more experts and more expense.
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As a trucking accident trial attorney in Georgia, half of my work seems to be ferreting out the facts that the other side wants to conceal. For years much of the challenge has been in attempting to prove driver fatigue by piercing the fog of deception in paper driver logs that are referred to in the industry as “comic books.” Often we are able to find enough time stamped receipts, loading dock tickets, etc., to prove the truth despite the obfuscation.

In recent years we have seen halting progress toward use of Electronic On-Board Recorders in the trucking industry. While still subject to manipulation, EOBR records are at least harder to fake.

Now, however, two Senators backed by giant trucking companies have proposed legislation that would allow use of EOBR information only if it’s good for the trucking company defendant, and keep it hidden if it helps the folks who are injured or killed by the trucking company.

Senators Mark Pryor (D-Ar) and Lamar Alexander (R-Tn) recently introduced the Commercial Driver Compliance Improvement Act (S. 3884), which is an attempt by the trucking industry to hide evidence of fatigue in any truck driver involved in a wreck.

Of course, campaign contributions — and now the unregulated flow of anonymous corporate cash — count for more in Washington that the interests of members of the public who don’t yet know that they will be maimed or killed on the roads.

The bill, if passed, would allow the information contained in Electric On Board Recorders (EOBRS) to be used only by the owner. If the information helped the trucking company, they could use it. If it showed that the truck driver was fatigued, the company would be allowed to conceal its existence. Thus, people injured due to the trucking company’s practice of allowing fatigued drivers on the road would be denied access to the information needed to prove that aspect of the case.

Five giants of the trucking industry — JB Hunt Transportation, Knight Transportation, Maverick Transportation, US Express, and Schneider National — have formed a coalition they’re calling “The Alliance for Driver Safety & Security” to back the bill. They benefit financially from EOBR as a management tool, will benefit financially by revealig the data if it helps them in a case, and will benefit financially by burying the truth if it shows that their fatigued drivers injured or killed another person on the road.

Kudos to my friend, Morgan Adams in Chattanooga, for calling this to my attention.
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As a Georgia trucking accident trial attorney based in Atlanta, one of the things I always look at after a catastrophic crash is whether a truck driver was dangerously fatigued due, in part, to violation of hours of service rules. It looks like the rules may change yet again.

Prior to 2003, interstate truckers could drive 10 hours out of a 15 hour work day.

Since 2003, truckers have been allowed to drive 11 consecutive hours a day and work up to 14 hours, followed by a 10-hour off-duty period.

Now the safety advocacy group Public Citizen is pushing for a rule limiting truckers to driving 8 hours in a 12 hour work day.

This week, Federal Motor Carrier Safety Administration submitted its proposed truck driver hours of service rule to the Office of Management and Budget. Details were not released, but most expect some shortening of driving and work hours.

While fatigue from long hours on the road contributes to serious accidents, trucking industry representatives say that shortening the work day will drive up shipping costs and that increasing the number of trucks on the road will increase safety risks.

Two things we can count on are that the controversy will continue in some form far into the future and that those who want to cheat will find ways to cheat.
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Time and time again, as a trucking accident trial attorney in Georgia, I have seen the dangers of overly tired truck drivers who violated Federal Motor Carrier Safety Regulations hours of service rules. The paper drivers’ logs are called “comic books” for a reason. Now we see that 2010 Roadcheck revealed that violations for false logs were up over 18% from 2009. Electronic on-board recorders (EOBR’s) are not perfect, they will be better than easily faked paper logs. There are other posts on this blog about driver fatigue, sleep apnea, and the dangers of tired truckers that lead to deaths and injuries of many people each year.
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As a trucking safety trial attorney in Atlanta, Georgia, I often see how truck driver fatigue contributes to 18 wheeler, semi truck accidents.

I’ve seen tragic cases where truckers tried to make it from Milwaukee to Tampa without required rest breaks, cases where truck drivers crashed when they fell asleep in their 18th or 20th hour behind the wheel. Paper logbooks are nearly useless in detecting such violations but we have been able to ferret them out with a variety of forensic methods.

But I don’t see truckers as bad guys. I’ve represented a lot of them, and have spent many pleasant hours drinking coffee and swapping stories with them in truck stops. They have hard, dangerous jobs. Most are hard-working, honest people who don’t fit any negative stereotypes. But there are still many who don’t fully appreciate how a macho desire to push themselves beyond the legal work hours endangers the lives of other people. The hazard of driver fatigue is complex and multidimensional.

Since 2004, the number of large truck crash injuries per 100 million miles has dropped 25 percent and the truck-involved fatality rate has dropped 22 percent. The fatality rate has dropped 66 percent since the DOT began keeping those records in 1975. The most recent figures from the U.S. Department of Transportation (DOT) indicate that the truck-involved fatality rate declined 12.3 percent in 2008 to 1.86 per 100 million miles, from 2.12 per 100 million miles in 2007. Persons injured in large truck crashes went from 44.4 per 100 million miles to 39.6, an 11 percent reduction.

There is room for debate, however, as to what factors had most to do with the change. Some attribute it to a change in hours of service rules. Others may point out the decline in truck traffic due to the recession, improved safety features in vehicles, variations in data reporting, etc.

While there is some improvement in accident data, the American Trucking Association has made five suggestions to the Federal Motor Carrier Safety Administration to further combat hazards associated with driver fatigue. They are:

(1) Sleep disorder awareness, training and screening. (Raising consciousness of the problem among truck drivers is an extremely important step.)

(2) Promoting the use of fatigue risk management programs. (It has to be in the culture of the trucking companies. I’ve seen too many tragic cases where the trucking company management absolutely turned a blind eye to hours of service violations and driver fatigue.)

(3) Evaluating the use of fatigue detection devices. (When the driver’s eye are drooping and head is nodding, it’s time to pull over!)

(4) Increasing the availability of truck parking on important freight corridors. (It’s one thing to say a trucker can drive only so many hours, but that driver faces a Catch-22 dilemma when there are no legal places to park when he runs out of hours.)

(5) Partnering with the trucking and shipping communities to develop an educational process that identifies for drivers the location of available truck parking. (Of course!)

These all incorporate common sense. If fleshed out with quantifiable, measurable details, they could help a lot.
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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.
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