Articles Tagged with Cmv Case Law

Pertinent Case Law

Carolina Casualty Ins. Co. v. Yeates

There are dozens, if not hundreds, of cases that construe the MCS-90. Its evolution and interpretation has been torturous. In a significant late 2009 decision, the Tenth Circuit in Carolina Casualty Ins. Co. v. Yeates held that the MCS-90 did not “stack” on top of other coverage that a motor carrier had in place which met the minimum required level of financial responsibility set forth in § 387.9. 584 F.3d 868 (10th Cir. 2009). There, a motorist suffered a significant and permanently-disabling injury in a collision with a truck owned by Bingham Livestock. The truck was specifically covered by a State Farm policy with the minimum $750,000 limits allowed under the regulations. State Farm quickly settled for its policy limits. Bingham Livestock then sought coverage under a general liability policy it held from Carolina Casualty. That policy insured a number of vehicles owned by Bingham, but significantly, it did not extend to the truck involved in the collision.

Retention of Documents: Overview

Document retention requirements are found throughout the various subchapters and subsections of the FMCSRs. While the overview of the qualification process laid out thus far in these blog posts has addressed document retention at various points, it makes sense to compile the requirements for quick reference.

Document Retention

CMV Disqualification Regulations: Observations

Like the annual review process, the disqualification regulations are a form of post-hiring check that must be known, understood, and performed by the motor carrier. However, the chance that a motor carrier does not know, understand, or perform its duties under the regulation, is actually quite high. Attorneys who have represented motor carriers admit that the rule is frequently overlooked, or even worse, routinely ignored. This is particularly the case for smaller motor carriers with no dedicated safety department to monitor such things.

The USDOT interpretations state that motor carriers have no authority of their own to “disqualify” a driver, but upon notice of a disqualification by the authorities, may not use or permit the driver to operate a CMV. This is a distinction without a difference, and does not provide a safe harbor to a motor carrier who has used or permitted a driver to operate its CMV while on notice of a conviction for a disqualifying offense or out-of-service violations.

Observations

In reviewing the contents of DQ files, often what does not exist may be more telling than what is found. The required annual review documentation should be in the file for “at least” each 12 month period the driver has operated a CMV for the motor carrier, subject to document retention requirements. The “annual review” is thus not tied to a calendar year; rather, it is typically keyed to the date of hire. Compliance every twelve months is not a safe harbor, and certainly it could be argued that the “at least once every 12 months” language means that a motor carrier with evidence of problems with a driver should be conducting reviews more frequently. Nonetheless, this author has yet to find a motor carrier who checks more than once a year.

Also, note that the fact the review shows the driver is not disqualified and does not mean that the driver passes the annual review required. The motor carrier is also required to determine whether the driver “meets minimum requirements for safe driving.” What are those requirements? Certainly the motor carrier’s own driver handbook should discuss what circumstances will require that a driver be taken off the road. It should not be too much to ask that the motor carrier follow its own policies when conducting an annual review. The motor carrier must pay attention to the type of citations (and, by inference, the type of accidents) a driver has experienced. In this vein, and unlike the regulations in other places, the annual review is not limited to convictions for moving violations. Instead, a motor carrier must consider “any evidence” that a driver has violated laws governing any operation of vehicles. The fact the driver is cited for reckless driving but has the charge reduced to a lesser offense does not mean the motor carrier may ignore the more serious charge.

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