All motor carriers are subject to explicit requirements for the inspection, maintenance, and repair (“IMR”) of CMVs. Detailed record-keeping, including records of the qualifications of mechanics that perform the inspections of vehicles and brake IMR, is required. The inspections required include those applicable to the fleet as a whole as well as the specific individual vehicles within the fleet. In addition, a motor vehicle is subject to inspection by FMCSA personnel, daily inspections by drivers, and “periodic,” or “annual,” inspections under the Regulations.
All of these IMR requirements are accompanied by record-keeping requirements, which may be used to form a detailed and date-specific picture of a CMV’s IMR history. That is, if the records are created and kept as required. The Regulations provide different periods of time for which a motor carrier is required to maintain different types of documents.
In any case where vehicle failure appears to be involved, it is essential to quickly send a spoliation letter to the motor carrier, its insurer, and its attorney, if known. The records may reveal improper repairs, and the failure to keep required records provides an inference that the motor carrier did not complete the required IMR. It is also a good idea to obtain a copy of the vehicle manufacturer’s manual to determine what maintenance was recommended and at what intervals. Any vehicle inspection reports of the subject vehicle created by the FMCSA are also worth acquiring. While the motor carrier is also required to keep a copy of such documents, they may not be kept in a vehicle maintenance or other similarly named file. A discovery request should therefore ask for the inspection report specifically.
An accurate picture of the motor carrier’s IMR records will help an expert assess the possibility of a vehicle malfunction as a proximate cause of a collision, determine whether the malfunction was foreseeable, and spotlight any failure of the motor carrier to detect and prevent the malfunction. It is not beyond chance that the expert may need a second look at the vehicle after analyzing the IMR records. An explicit request that the vehicle be preserved, even after an initial inspection, should be considered in the appropriate case. Likewise, counsel should discover whether the motor carrier conducted any testing of vehicle components following a crash. A valid argument exists that testing should not be considered work product. This is particularly the case where the motor carrier performed destructive testing.
The depth of effort required is a dependent on the facts of a given case. If the CMV that caused a four-fatality accident had a wheel fall off, an effort to determine whether the motor carrier’s maintenance and inspection program was deficient is obviously worthwhile. However, in a simple failure to yield case, emphasis is perhaps better placed elsewhere. The following discussion of the procedures established by the Regulations is written with an eye to a “full court press” situation. It is not intended to suggest that some step-down may be appropriate in certain cases. It is important enough just to know what a motor carrier is supposed to do, and in turn, confirm that it did as required. Sloppy compliance in one area, and inspection, maintenance and repair is a very important area, is likely to be a clue of neglect in other areas.
General Requirements: Overview
Every motor carrier employee involved in the inspection, maintenance, and/or repair of a CMV must be familiar with and follow Part 396 of Title 49. A motor carrier is essentially required to systematically inspect, maintain, and repair its CMV, at “intervals [that] are to be determined by the motor carrier.” This typically may be interpreted to mean that a motor carrier is required to follow the manufacturer’s guidelines for the upkeep and repair of equipment. If a motor carrier has its own self-defined “periodic” inspection program, yet its equipment is in terrible shape, it is possible that the motor carrier is in violation of Part 396.
General Requirements for CMV: Inspection, Repair, and Maintenance
The FMCSRs provide the following general rules for the inspection, repair, and maintenance of commercial motor vehicles:
1. Motor carriers must “systematically inspect, repair, and maintain” all motor vehicles subject to their control.
2. All parts and accessories are to be kept in safe and proper operating condition at all times, including all the parts described in Part 393 and any other parts and accessories which may affect safe operation.
3. Motor carriers, except private motor carriers of passengers, must maintain records for each motor vehicle they control for thirty consecutive days. The records must include:
a. information identifying the vehicle, including company number, make, serial number, year, and tire size;
a.i. If the vehicle is not owned by the motor carrier, the record shall identify the person who furnished the vehicle.
b. a “means to indicate the nature and due date of the various inspection and maintenance operations to be performed”
c. a record of IRM indicating their date and nature, and;
d. a record of tests on push-out windows, emergency doors and lights.
4. The records are to be retained for one year at the place where the vehicle is either housed or maintained by the motor carrier, and for six months after the vehicle “leaves the motor carrier’s control.”
5. The motor carrier is permitted to outsource the IMR function and the record-keeping function (specifying that the motor carrier may “cause” its vehicles to be systematically inspected, repaired, and maintained and likewise “cause” the required records to be maintained).
The search for records should focus on the offices of the motor carrier and at any dealerships or outside garages that perform maintenance for it. The Regulations only provide a minimum time that the records must be kept, i.e. one year. The motor carrier or garage may very well keep them for a longer period. Accordingly, a discovery request to produce should not be limited to “records required to be maintained pursuant to regulations”, as this may not cover everything the motor carrier has in its possession. A motor carrier is required to produce vehicle maintenance records upon request to the FHWA within a “reasonable period of time,” which is defined as two working days. Keep this in mind when the motor carrier has not yet produced the requested documents under the excuse that gathering the records together is “taking some time.”
The motor carrier is supposed to IMR “systematically.” Discovery should seek to answer questions like: what is the system? Is it written down? Is there a formal procedure or process? Are the records kept by computer? If so, it is not unusual for the motor carrier to produce a bundle of hard-to-decipher computer print-outs. This problem may be resolved by retaining someone familiar with the computer record-keeping systems used by motor carriers, deposing the mechanic(s) that actually performed the work, or both.
Does the motor carrier use the manufacturer’s manual to establish maintenance intervals? Are there “shop manuals?” In more than one case, defense counsel has produced “the manual” with a straight face and clear conscience, only to meet the mechanic who is set to be deposed and learn that “we keep the other manuals here in the shop,” or that there are other IMR sources that even the main office is not aware exist. The motor carrier may use an outside vendor to fulfill its duties under the regulations, but the motor carrier remains “solely responsible for ensuring that the vehicles under its control are in safe operating condition and that defects have been corrected.”
Pertinent Case Law
Salvatore v. Pingel
Depending upon the circumstances, the destruction of maintenance records may subject a motor carrier to an adverse inference, or worse, sanctions for outright spoliation. However, in Salvatore v. Pingel, a federal district court for Colorado declined to sanction a motor carrier for just that. The court looked at the evidence and noted that the motor carrier was subject to a letter requesting that maintenance documents be preserved, but then observed that most of the communications about the case were with the insurer. The court found that “under the totality of the circumstances,” the date on which the defendants knew or should have known of the likelihood of litigation was over two years after the date the plaintiffs urged the court to adopt. Although the court found the motor carrier was guilty of at least “simple negligence” in destroying the records, it held that the “negligent violation of a federal regulation does not impose strict liability where a party has failed to maintain perfect record keeping.”
Omega Contracting, Inc. v. Torres
Further, regulation may not be appropriate for a jury charge, even if the evidence shows that the motor carrier wholly failed to inspect, maintain, or repair the CMV. In Omega Contracting, Inc. v. Torres, 191 S.W.3d 828 (Tex. App. Ft. Worth 2006), the Texas Court of Appeals held that it was error for the trial court to give a negligence per se charge on the regulation because it determined that it did not establish a standard beyond that of an “ordinarily prudent person,” which had already charged to the jury.
Craft v. Graebel-Oklahoma Movers, Inc.
While the motor carrier remains ultimately responsible for IMR of its vehicles, an outside third-party vendor may be liable if it breaches a duty, as well. In Craft v. Graebel-Oklahoma Movers, Inc., 178 P.3d 170 (Okla. 2007) the outside vendor falsified an inspection report, which allowed an unsafe vehicle on the road, where it caused an accident. The Supreme Court of Oklahoma held that the vendor had an independent statutory duty as an outside inspector under the FMCSRs not to falsify records, as well as a common law duty to warn of hidden dangerous conditions. Notably, Craft also implicitly supports the proposition that a motor carrier may be vicariously liable for the negligent, and possibly even intentional, conduct of a third party vendor that it employs. The plaintiff presented evidence that the motor carrier knew the vendor’s inspection reports did not reflect the actual condition of the vehicle in question. While the court barred the plaintiff from pursuing her negligence claim against the motor carrier because she was its employee, and thus confined to state workers’ compensation remedies, it did remand her intentional tort theory to the trial court for additional consideration. Under the court’s reasoning, it is likely that both of the plaintiff’s claims against the motor carrier would have survived had she not been its employee.
Bailey v. Lewis Farm, Inc.
The responsibility of the owner of a CMV may not end when it sells the CMV to another motor carrier. In Bailey v. Lewis Farm, Inc., 343 Or. 276, 171 P.3d 336 (2007), a motor carrier was allegedly to have negligently inspected and maintained a CMV, which it then sold to another motor carrier, which then sold it to yet another motor carrier. Approximately one year after the sale, the rear axle fell off and injured another motorist. The motorist brought suit against the original owner, alleging violations of regulation. Evidence obtained in discovery revealed the former owner did little or no inspection or maintenance of the vehicle, which the plaintiff contended created a dangerous condition that resulted in the catastrophic failure of the axle. The trial court granted the former owner’s motion to dismiss, which was initially affirmed on appeal. The Supreme Court of Oregon granted a petition for review and subsequently reversed. It found that regulation created a duty to inspect and maintain, the breach of which was not cured or obviated by the sale of the CMV to another motor carrier. It should be noted that, because Bailey involved a latent defect, the question remains whether the outcome would have been the same for a patent defect.