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.
62 Fed. Reg. 16,407 (April 4, 1997). 49 C.F.R. Chapter III: Regulatory Guidance for the Federal Motor Carrier Safety Regulations, Interpretation to § 390.5, question 17 (1997)(emphasis added). See also 49 C.F.R. § 390.5.
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).
Ken Shigley is a trucking safety trial attorney in Atlanta, Georgia. He is a 2019 recipient of the “Tradition of Excellence”Award from the State Bar of Georgia General Practice & Trial Section.
Mr. Shigley has earned three national board certifications from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group.
He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries.
In 2011-12, Mr. Shigley was president of the State Bar of Georgia, which includes all the lawyers and judges in Georgia. He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13), State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994).
A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower, father of two adult children, and an elder in his church.