Schedules and Speed Limits: Overview
This regulation is quite simple, straightforward and often overlooked. It may provide a powerful argument against a motor carrier, particularly when coupled with the DOT interpretation which accompanies it. The regulation essentially codifies the requirement that a motor carrier who imposes some time limitation upon the driver movement from one point to another must analyze how long the trip may take, given prevailing speed limits. The opportunity for critical analysis of a motor carrier’s operations is dramatic when this is not done.
Schedules & Speeds
This regulation is directed at the motor carrier, and prohibits it from scheduling, permitting, or requiring a run that would “necessitate the commercial motor vehicle being operated at speeds greater than those prescribed by the jurisdictions in or through which [it] is being operated.”
Many motor carriers provide their drivers with a set period of time within which the driver is expected to complete a run. Just as many drivers come to resent these requirements, and this is a friction point you may be able to exacerbate between the two. A motor carrier may penalize a driver who does not make his runs within the time permitted, and this may go into the driver’s record. Most, if not all, of the motor carriers who establish these time limitations fail to take into account the particulars at play on the given day of the run. This is certainly the case when there is a construction delay, or when the driver is running at a time that takes him through a heavy traffic zone during rush hour. The distance may be the same, and the speed limit may not have changed, but the time to negotiate the run may take longer than allowed unless the driver speeds to make up.
The motor carrier may build in some “fudge” time to allow for a delay, but it may not, and it may not allow enough to let the driver feel comfortable not speeding, after he is delayed. The failure to take into account transient conditions in imposing time limits on a driver’s run may provide an theory of liability on the motor carrier, to accompany the excessive speed theory applicable to the driver. These may make good “bookends” for your case.
If a case involves speed, counsel needs to determine whether the driver was subject to a time limitation set by the motor carrier. If the motor carrier has set a limitation, you need to test this against the speed limits for the route (which may also be prescribed) without consideration of prevailing conditions. The easy case is the motor carrier who imposes a limit which, in the best of times, requires the driver to speed. There a prima facie violation of the regulation exists.
Counsel may also need expert assistance to determine the various speed limits in the jurisdictions the run traversed, the extent of speed limit for a particular distance, etc., but this may be well worth the effort. If the limitation passes muster with the speed limits encountered along the way, you need to analyze the conditions of the run in question, to discern whether the driver was subjected to some transient delay. While the motor carrier may argue it was within the letter of the regulation if it gave enough time to complete the run with the existing speed limits, do not end your analysis there. Look for other flaws which set the driver up to speed.
The discovery whether the motor carrier sets time limits may be the subject of written discovery or deposition. They may be set out in some type of handbook or memo distributed to drivers, possibly a posting on the bulletin board in the driver’s ready room. It may be an “unwritten” rule, which you only discover by deposing the driver or his dispatcher—and do not overlook the possibility, and the ramifications of, the driver saying he was subject to a (strict, unfair, poorly thought out… ) time limitation, and the motor carrier denying any such rule existed.
Strategically, it may be valuable to know before you depose the driver whether he was subject to a time/distance limitation before you depose him. You may be able to arm yourself with information about the specifics of his trip before questioning him, such as whether there were construction delays, whether there were accidents or weather issues which delayed him, whether he was placed in the position of negotiating a heavy traffic area during rush hour, etc., before his deposition. Again, expert help in figuring out what the driver faced, and the evidence to show what he faced, may be needed. And do not forget to find out when the motor carrier set the limit, and how often it was updated to address changing conditions.
This information may help you to feed the driver questions which he may view as exculpatory of his conduct (speeding, following too close, failure to yield), and provide him with an excuse for such. He may readily agree that he knew he was subject to a limitation, that it was unreasonable because of traffic, weather, slow unloading by dock workers– whatever. He may testify he knew this was going to push him over the limit, but that his dispatcher told him to “deal with it.” Counsel wants to hear that kind of talk. While it is arguable that the regulation is per se violated by the motor carrier in such an instance, this is an argument you want to make if possible. It points the finger at the motor carrier for setting up drivers with penalties if they don’t speed or take other risks to make time, and makes the motor carrier the bad guy. If there is a sympathetic driver on the other side, this argument may create animosity against the motor carrier for putting the driver in a spot where he hurt someone, that someone being your client.
In this regard, counsel should review his Qualcomm communications to determine whether he informed the motor carrier of any delays en route, to avoid being penalized for moving too slow. If the data shows that there were delays en route, and no Qualcomm communication notifying the motor carrier was sent by the driver, you may have a good argument the driver planned to make up the delay by speeding, with your client the foreseeable victim. Obviously, there could also be cell phone communications, but you will have to address that question in deposition since those are probably not recorded.
The USDOT is aware of this issue, as seen by the adoption of the regulation and the accompanying interpretation. That interpretation provides important guidance, stating that a driver who is operating on a highway where the speed limit is 65mph who travels 550-600 miles in 10 hours is “questionable,” such that the “motor carrier may be asked to document that such trips can be made.” Thus, in pursuing this line of inquiry, counsel needs to know what analysis the motor carrier has made, and what documents created as part of that analysis, to determine the trip in question can be safely made in the time permitted. The USDOT is entitled to it upon audit; therefore a plaintiff may likewise argue their own entitlement to it during discovery. The interpretation goes on to state that a trip exceeding 600 miles in a 10 hour day on 65mph highways are “assumed to be incapable of being completed with out violations of the speed limit.” Keep this in mind as you look into this issue.
Pertinent Case Law
A number of cases reference the regulation, but little case law actually discusses it. One novel (but unsuccessful) theory claimed that violation of regulation was an “unfair or deceptive trade practice.” The court in Swenson v. Yellow Freight, Inc., 317 F. Supp. 2d 51 (D. Mass. 2004), in granting summary judgment to the defense, found that the violation did not constitute such a practice. Hopefully, the plaintiff in that case found a more direct way to allege the motor carrier’s liability for breach of the regulation. It may be worthwhile to read the cases that cite this regulation, since some discussion of the type of, and flaws inherent in, speed schedules may be discussed.