Articles Posted in Trucking industry

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The owner of a trucking firm has pleaded guilty to criminal charges arising from the maintenance of a defective and almost brakeless tractor-trailer rig that caused a fatal six car crash in Pennsylvania last January. He is the third man to face criminal sentences due to that wreck. They are:

* Owner of tractor portion of rig – Victor M. Kalinitchii, 41, Philadelphia, homicide by motor vehicle, faces 3 1/2 to 7 years in prison.

* Driver – Valerijs N. Belovs, 56, from Northeast Philadelphia, homicide by vehicle, faces 8 1/2 to 17 years in prison.

* Maintenance – Joseph W. Jadczak Jr., 61, owner of Pratts Auto Service in Philadelphia, homicide by motor vehicle, faces 3 1/2 to seven years in prison.

If civil remedies aren’t enough to get the attention of trucking company owners who put drivers on the road in unsafe vehicles, or require drivers to work when too fatigued to be safe, then perhaps criminal prosecutions can get their attention.

However, Georgia law on homicide by vehicle is written in terms that would be unlikely to reach beyond the driver of the vehicle. See OCGA § 40-6-393 and cross references. Do any of my fellow lawyers out there see an interpretation of those code section that would support criminal prosecution in Georgia of a truck owner or repair facility that put a defective truck on the road?
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Several times I have written about the difficult lifestyle of truck drivers, and how that adversely affects their health and the safety of others on the roads. It is virtually impossible to find healthy food or a place to exercise at truck stops across America. So truckers are somewhat more prone than other middle aged guys, become obese and develop cardiovascular illnesses, diabetes, sleep apnea, etc. (Not that I’m such a paragon of fitness either, but at least it’s easy for me to eat healthy, jog around the neighborhood and get to the gym in my office building if I make the time.)

But driving with my son from Los Angeles to Atlanta a few days ago, I noted something even worse affecting truckers’ lifestyle. Through Arizona and New Mexico we saw several truck stops with adjoining casinos. I didn’t stop to see if they have healthy food or exercise facilities, but they surely have places for truckers to drink and gamble away their earnings.

There are no casinos in Georgia, and certainly no truck stop casinos. For a number of reasons, primarily my view of morality, I would be happy to keep it that way.
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Every time I make my way from Atlanta to Savannah, I enjoy watching the container ships cruising up the river past downtown. They are always stacked high with hundreds of huge freight containers.

Thousands of those containers are unloaded from the ships onto truck trailers and trains at every major port to be transported across the country. Georgia highways are full of intermodal containers imported through the ports of Savannah, Jacksonville and Charleston.

Often the trailers used in these intermodal operations are old chassis repainted to look good but poorly maintained. Too often the trailers that were loaded in Shanghai or Rotterdam contained unbalanced loads that ride fine on a ship but are dangerous in highway curves.

Over the past several years there has been increasing concern about safety of intermodal freight operations.

Now the Federal Motor Carrier Safety Administration has announced plans to add a fifth equipment marking option to its rules, allowing chassis to be identified through a system that uses technology to match equipment to the company responsible for its maintenance.

They hope this will clear the way for industry efforts to launch a global registry for intermodal equipment.

Of more immediate interest to families of people catastrophically injured in crashes of trucks hauling these freight containers is the difficulty of reaching the insurance coverage of the intermodal companies. Often the inland truck hauling is brokered to a small trucking company or owner-operator with only $750,000 to $1,000,000 liability coverage. That sounds like a lot, but when you’re looking at a $20,000,000 life care plan for a catastrophic injury, it’s a drop in the bucket.

Courts in Georgia have had a hard time coming to terms with the totality of intermodal shipping, tending to look at just the tip end of the spear and not at who is throwing the spear.

Last Friday, I spent a day in St. Louis at a seminar by David Nissenberg from San Diego, author of the book, Law of Commercial Trucking. He is a scholar of this area of law, and has painstakingly put together the legal theory to connect all the dots and reach the insurance policies of the ocean shipping companies that bring the containers into the US and load them on the trucks. In a tour de force, he combines international treaties, U. S. maritime laws and regulations, standard maritime bills of lading and other shipping documents, interlocking provisions of the Motor Carrier Act and Federal Motor Carrier Safety Regulations, Restatement of Torts, Restatement of Agency, etc.

David hasn’t published a paper on this. There are no cases on point yet anywhere in the U.S. To persuade a judge who is busy, understaffed, and knows little about this area of the law, will require some masterful explanation.

But when a catastrophic container freight trucking case comes along, we’re ready.

This is a great lesson for those naive lawyers who think an commercial trucking accident is just a bigger car wreck.
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As a trucking accident trial attorney in Atlanta, it may appear that I’m always focusing on the negative about truckers, even though I’m often representing innocent truckers against other truckers who injure them.

This Sunday, I want to call attention to a more positive story about truckers. CNN ran a profile of Rev. Joe Hunter, chaplain to truckers, who reaches his mobile congregation reaches out to truckers at fuel stops, in parking lots, on the CB and through a radio show called “Heaven’s Road.” He holds worship services at Wednesday night service at the Truckers Chapel at a truck stop on I-75 south of Atlanta.

Just as it is tough for truck drivers to find nutritious food at places where an 18 wheeler can easily park, Rev. Hunter points out that most churches can’t park an 18 wheelers.
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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.
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Today’s Los Angeles Times carries an article by Scott Glover reporting that the FBI suspects that serial killers working as long-haul truck drivers may be responsible for murders of hundreds of prostitutes, hitchhikers and stranded motorists whose bodies have been dumped near interstate highways over the past 30 years.

The FBI has compiled a database correlating information on more than 500 female victims, most of whom were killed and their bodies discarded at truck stops, motels and other locations along heavily traveled trucking routes across the U.S., and information on scores of truckers who’ve been charged with killings or rapes committed near highways or who are suspects in such crimes.

Investigators have speculated that the mobility, lack of supervision and access to potential victims that come with the job make it a good cover for someone inclined to kill.

Of course, it is no more fair to hold that against the reasonably decent 99.999% of truckers who may fudge on their logs but don’t intentionally kill anyone than it is to stigmatize priests and teachers as pedophiles because of the bad acts of a perverted 0.001%.

People with evil intent may be attracted to an occupation that provides easy access to potential victims, but that should not be held against the vast majority who are reasonably decent folks. Some of the victims discussed in the article were truck stop prostitutes whose choices made them especially vulnerable to predators using a truck driving job as a cover to act as serial killers. Of course, it’s never open season on women, even if they are truck stop prostitutes, and the killers should be brought to justice.

I suppose the take-home points of the story are that law enforcement officers now have a useful new tool to help catch serial killers using trucking as a cover, women traveling alone should take all necessary precautions for their safety, and we should guard against unfairly stigmatizing truck drivers as a group.
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While my law practice primarily involves representing individuals and families in injury and death claims caused by negligent trucking companies, I get a lot of calls from truck drivers. Some of them are bright, sophisticated people.

Last week I had a call from a truck driver who has a master’s degree from a nationally prominent university. Truck driving wasn’t the original career plan, but the market’s a little weak for liberal arts and social sciences degrees.

Our conversation wandered through several aspects of the trucking lifestyle. One thing we discussed was the difficulty of maintaining a sensible regimen of diet and exercise, a topic on which I recently wrote.

This trucker talked at length about the near impossibility of finding healthy food at truck stops, and the lack of safe places to get exercise at or near truck stops. The trucker commented on gaining 30 pounds in the first four months on the road.

In 2007, the Transportation Research Board published a lengthy report on Health and Wellness Programs for Commercial Drivers.

A common sense observation in the report is:

It is estimated that more than 50% of commercial drivers are regular smokers. Many are obese, lack proper physical exercise, tend to develop chronic diseases such as diabetes at relatively early ages, and may have slightly elevated suicide rates.

A few key points from the report are:

• What is needed is long-term is a cultural change, a paradigm shift in the transportation industry toward embracing integrated models of health, safety, and productivity management as being the joint and shared responsibility of individual drivers, their managers, and senior leadership of their organizations.

• Transportation companies interested in developing their own employee health and wellness programs are still very much in need of guidance and resources on “how to do it.” Better tools and off-the-shelf practices for translating knowledge into action are needed.

• Prominent in the practical experiences of carriers is the difficulty of making employee health and wellness program elements available to the drivers themselves-that is, how does one effectively reach and obtain driver involvement, especially when drivers are so mobile because of their day-to-day working environment and their quick turnover rates in employment?

• Commercial driver advocate groups (e.g., FMCSA, ATA, NPTC, ATRI, the ABA, UMA, and others) each have important roles to play in helping bring about the needed culture change toward employee (driver) health and wellness programs.

• Screening for deficits in specific visual, mental, and physical abilities that significantly predict at-fault crashes can be practically carried out in an office environment. With the aging of the work force, such practices will have increasing value for industry and highway safety.

The Federal Motor Carrier Safety Administration is attempting to address this problem with reforms of regulations on medical certification of drivers. But truck drivers’ lifestyle, diet and exercise, remain huge challenges.

It’s a long report with a lot of detail. I commend it to professional truck drivers and safety managers.
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Not surprisingly, the “safety culture” of a trucking company is a huge factor in determining whether its drivers are involved in catastrophic truck crashes.

The Transportation Research Board published a couple of years ago “The Role of Safety Culture in Preventing Commercial Motor Vehicle Crashes.

Some key points from that study are:

• Culture and safety have a clear connection.
• Safety culture is best defined and indexed by an organization’s norms, attitudes, values, and beliefs regarding safety.
• Effective top to bottom safety communication and interactions enhance safety culture.
• Terms such as “accident” and “mishap” are often replaced with the terms “crash,” “wreck,”
and other more appropriate, straightforward terms in many safe cultures.
• In many instances, organizations, organizational subgroups, and professions may each have identifiable safety culture.
• Recognition and certain rewards systems for safe behavior are an effective component of safety culture.
• Driver experience enhances a safety culture, especially if that experience is with one carrier.
Driver retention problems, however, have the potential for degrading a safety culture.
• Many levels of communicating safety culture are necessary in “remote workforce” industries such as truck and bus operations.
• Policies, procedures, employee safety responsibilities, and safety messages must be clear and simple.
Hiring practices, safety training and education, company orientation, and safety management are all key components of a safety culture.
• Measuring safety performance of drivers and the organization as a whole are key components of a safety culture.

Actions that companies may take to improve their safety culture include the following:

• Develop or redevelop internal definitions of culture and safety.
• Conduct “Swiss cheese” analyses, to determine what omissions in the management system contributed to accidents.
• Identify and dispel myths, such as the tendency to always blame weather or outside factors.
• Conduct institutional safety knowledge development.
• Define or redefine employee safety roles from top to bottom • Assess the effectiveness of safety communication and reengineer systems of safety communication.
• Create or enhance a system of safety record data collection and analysis.
• Develop or redevelop motivational tools, such as tying driver compensation and advancement to safety.
• Improve driver retention.

It’s a long report. I commend it to any truckers and safety managers who are interested in improving safety.

And I will certainly refer to it in “looking under the hood” of the management system of companies whose trucks crash into my clients, causing serious injury or death.
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As a trucking safety trial attorney in Atlanta, Georgia, and engaged with attorneys handling these cases from coast to coast, I try to keep up with the continuing shell game as the folks responsible for putting truckers on the road and pushing them often beyond both the rules and their capacity, seek to avoid accountability to people they hurt.

A recent article by Robert Franklin in Federation of Defense and Corporate Counsel Quarterly, titled “But I didn’t do it!”: Expanding Theories of Vicarious Liability,” is a pretty good outline of liability theories against brokers and shippers, and defenses against each of those theories of liabilty.

It includes discussion of claims for:

* negligent hiring
* negligent entrustment * failure to provide “safe and adequate service, equipment, and facilities”
* status of a broker as a motor carrier under the regulations * aiding and abetting a motor carrier’s violation of the regulations * negligent selection of an independent contractor * truck driver for Company A as permissive user of trailer owned and insured by Company B
We have dealt with most of these theories and defense in our cases, but there are always new wrinkles to consider.

Thanks to Ronald Miller at Maryland Injury Lawyer Blog for pointing this out.
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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.
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