Regulatory Compliance and Recordkeeping
The FMCSRs have been discussed in detail in preceding blog posts. This blog post will address various aspects of the regulations necessary to give the practitioner an understanding of the recordkeeping requirements imposed upon motor carriers, including how and when those regulations apply. While these sections are unlikely to furnish a basis for a claim against a motor carrier, it is important for the practitioner to know how the regulations apply and what documents should are required to be kept.
The regulations related to record retention and the maintenance of an “accident register” are very helpful when crafting a discovery plan and following up on a defendant’s initial responses. For example, the information contained within an accident register may reveal a pattern of accidents that the motor carrier has failed to address. Such information serves as a “pressure point” that warrants a more detailed inquiry by way of additional discovery.
Finally, the general applicability of the regulations to motor carriers is an essential element of any truck wreck investigation. Obviously, it is not preferable for counsel to expend time and effort working up a case against a motor carrier, only to the learn that the regulations do not apply or that some exemption or exception is at play.
Compliance and Applicability: Overview
The applicability of the regulations found in Part 390, and elsewhere in the FMCSRs, are addressed primarily in sections 390.3, 390.11, and 390.13. Generally, the regulations apply to motor carriers transporting property or passengers in interstate commerce. However, certain regulations differ in their effect depending upon the weight of the vehicle involved in the transportation. Other regulations are intended to apply solely to vehicles involved in intrastate commerce.
Compliance and Applicability
1. The FMCSR are applicable to all employers, employees and CMV weighing 10,001 pounds or more, transporting property or passengers in interstate commerce except as described.
2. The rules applicable to issuance and maintenance of a CDL, as set forth in Part 383, are applicable to every person who operates a CMV with a GVWR of at least 10,001 in interstate or intrastate commerce and to the employers of such persons;
3. The requirements for minimum levels of financial responsibility set forth in Part 387 apply to for-hire motor carriers operating vehicles with a GVWR of at least 10,001 pounds in interstate or foreign commerce, as well as motor carriers of certain types of hazardous materials, substances or wastes in interstate, foreign, or intrastate commerce. For certain hazardous cargo, the weight of the vehicle is irrelevant.
4. The exceptions to the FMCSRs set forth do not apply to drivers of CMVs with a GVWR of 26,001 pounds or more.
5. A motor carrier must require the observance of any duty or prohibition imposed by the FMCSRs on a CMV driver.
6. No person shall aid, abet, encourage or require a motor carrier or its employees to violate the FMCSR.
Construing the applicability of the regulations can be confusing initially. The first question to ask is whether the shipment crossed state lines, even if the leg of the trip in question was intrastate. The next question is whether the vehicle weighed 10,001 pounds or more. Finally, it must be determined if the carrier was for-hire. If the answer to these questions is yes, it is likely that the FMCSR apply, including its rules pertaining to CDLs and minimum levels of financial responsibility. To reach a final conclusion with regard to the minimum levels of financial responsibility, the two most important inquiries are whether the motor carrier was for-hire and if general freight was being transported by the CMV. If one of the exceptions appears to apply, counsel shall determine whether the vehicle had a GVWR of 26,001 pounds or more, for purposes of the applicability of the CDL regulations found in Part 383.
Note the rule that motor carriers have a duty to require the observance of any prescribed duty or prohibition imposed on a driver under the FMCSRs. If a driver breaches a regulation because of an instruction or policy of a motor carrier, the argument exists the motor carrier has likewise breached the regulation. This may furnish an argument of an independent act of negligence on the part of a motor carrier separate and apart from any theory of vicarious liability.
Also, note the prohibition against any person aiding, abetting, encouraging or requiring a motor carrier to breach a regulation. Consider how this rule may apply where a shipper who is a significant customer of a motor carrier requires it to complete a delivery after overloading a vehicle. As the case law below indicates, the right case might produce a deep pocket not immediately apparent.
Pertinent Case Law
A number of courts have considered the language of regulation in determining whether to allow the jury to consider punitive damages. In both Williams v. Schram and Trotter v. B&W Cartage, the court found that there was sufficient evidence from which a jury could infer that the motor carrier knew or should have known that its driver had falsified driving logs and consistently violated hours of service rules in the weeks leading up to accident. This was held to provide sufficient basis for a jury to find the motor carrier turned a “blind-eye” and failed to comply such as to justify punitive damages.
Further, the requirements imposed on a motor carrier implicate a motor carrier in a claim for negligent entrustment. Stallings v. Werner Enterprises, Inc. However, the regulation has also been interpreted as not requiring a shipper that was also a motor carrier to demand that an independent contractor comply with the FMCSRs where, at the time of the underlying incident, the shipper/motor carrier was acting solely as a shipper. A driver was also held barred from making a claim against a broker for aiding or abetting in the violation of the FMCSRs. In Camp v. TNT Logistics, a driver was injured by an unsecured load she was carrying. Earlier, she had expressed her concerns about the unsecured load to TNT, a broker that also held a motor carrier license. TNT brushed aside her concerns, agreed to accept the risks of any property damage to the cargo, and directed her to drive the load as-is. The Seventh Circuit affirmed the trial court’s grant of summary judgment to TNT, finding that TNT was acting as a broker rather than a motor carrier, and further holding that because the driver had herself violated the FMCSRs, she could not recover against TNT for aiding and abetting her own tortuous conduct, i.e., the loading of freight in violation of the FMCSR.
Further, in Schramm v. Foster, the trial court granted summary judgment in favor of a broker who arguably arranged transportation of the load that caused a driver to violate the HOS regulations. The court found regulation imposed a subjective, “knowing” standard, and the evidence did not show that the broker knew that the arrangement would cause a regulatory breach. However, a federal district court in Texas recently held that one who procures a liability policy for a trucker that does not include the MCS-90 endorsement, such that one injured by the trucker’s operations is left without recourse upon obtaining a judgment, may be liable for aiding and abetting a motor carrier’s violation of the rules.
One possible implication of regulation is endorsing drivers to run over hours. In Schlegel v. Li Chen Song, the district court found evidence that the owner of the motor carrier had a “practice and pattern of violating federal laws intended to protect the safety of other drivers who share the road with motor carriers” and denied defendant’s motion for summary judgment. The plaintiffs presented evidence the owner would routinely close a trucking business when the FMCSA attempted to take action to penalize it for what can only be described as gross violations of the FMCSR. For example, plaintiff showed that the owner, a Mr. Lee, would routinely hire Asian immigrants who could not speak English to drive CMVs, including the driver of the CMV involved in the wreck. The evidence showed Lee’s company did not prepare any DQ file or background check of the driver, who was recently emigrated from China and apparently did not possess a CDL. Lee’s prior trucking companies included one which operated from December 1993 to 1996 and had 1,490 documented violations of the FMCSRs. Another, operating from 1998 until 2002, had 3,808 violations, including 2,105 logging violations and 50 violations for improper DQ files. The fines imposed by the FMCSA exceeded $60,000. The trucking company owned by Lee at issue in the present case, which existed from 2001 to 2006, did somewhat better. Records showed that it had “only” 412 violations, including 245 log violations and 15 for improper DQ files. The company was ranked in the top .03% of the most unsafe trucking companies in the U.S by the FMCSA. The court allowed this evidence to go to the jury on Mr. Lee’s personal liability and also ruled that evidence of Mr. Lee’s prior trucking businesses was admissible.