Articles Tagged with Cmv Litigation

Lease and Interchange

The lease of CMVs, primarily the tractors or “power units,” constitute a significant aspect of many if not most trucking-related personal injury claims. Abuses in the trucking industry in the 1950’s, such as motor carriers that leased or hired “gypsy” independent contractor drivers, who owned their own tractors but lacked operating authority, insurance, assets, or safe operation practices, led Congress to regulate the trucking industry. Part of the regulations sought to address the problems created by uninsured owner-operators, or “O/Os.” These problems typically arose when a motor carrier used an O/O that caused an accident and thereafter disclaimed responsibility under the argument that the O/O was an independent contractor.

In an effort to clean up the mess generated by this abused system, leases of equipment were regulated and responsibility was shifted to the entity whose operating authority moved the freight, regardless of whom was dispatched to carry out the task. Thus came into being the “statutory employee,” which would be treated as an independent contractor in practically any other business. In a peculiar example of poetic justice, and as a result of the lease regulations, motor carriers have been held liable in some instances for the acts of statutory employees in situations where they would not face liability for their own employee’s actions because the conduct at issue was so clearly outside the scope of employment.

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.

Pre-Trip and Emergency Equipment Inspection: Overview

The regulations require inspection of certain components of intermodal equipment prior to driving the CMV. These requirements are generally referred to as the “pre-trip” inspection, and while the regulations do not limit their requirements to an inspection at the beginning of a “trip”, this term is generally accepted. Given the often-abysmal state of intermodal trailers, this requirement may be significant.

The regulations also require the driver make certain that emergency equipment as required is available, and this requirement may have particular impact when a vehicle is involved in an accident. The regulation was revised substantially at the end of 2009, so that language describing inspection requirements for CMV other than intermodal was deleted.

Drug and Alcohol Use and Possession: Overview

The regulations’ directions concerning use or transportation of drugs or alcohol are fairly straightforward, but have been subject to at least one rather questionable interpretation by the DOT. Further, the regulations are not limited to “drugs” in their prohibition, and it is important to consider whether a driver may be affected in his abilities by some other substance in violation of the law. The issue where a driver is in violation of the regulations on use or transport of drugs or alcohol will likely be the same as before: causation.

Drug and Alcohol Possession and Use

CMV Operations: Pertinent Case Law

As was just mentioned, most of the cases involving operation regulations deal with claims for wrongful discharge brought by drivers against their employers/motor carriers as a result of their being terminated for refusing to drive while tired or sick.

Gaibis v. Werner Continental, Inc.

CMV Driver’s Logs: Observations

If there is any question about whether time or fatigue is a factor in a wreck, an audit of the logs produced in discovery should be performed quickly after they are received. If counsel finds significant errors, this may provide a basis to seek more logs in order to determine whether the motor carrier was not properly monitoring its drivers, and whether this was a problem driver who fell through the cracks of a careless motor carrier’s substandard system. Auditing even a few weeks worth of logs can be time-consuming, but it is important to carve out enough time to do it right.

It may be helpful to devise some type of system to graphically illustrate the flaws found in the logs, either when before the court on a motion to compel, in mediation, or before the jury at trial. No one type is likely to work in every case. The trick is to find the flaw and figure out a visual way to illustrate it without having to go back and do everything a second time.

Observations And Hours Of CMV Service

Starting with the premise that all drivers are subject to the HOS regulations, there are some significant exceptions, particularly as to local drivers and drivers who encounter unforeseen adverse conditions. There are other exemptions, many of a technical nature, that come into play on a fairly rare basis, but nevertheless may be encountered. When involved in a claim with a local driver, be mindful that this exception pertains to recordkeeping only. The driver is still prohibited from driving over eleven hours following ten hours off duty. The driver must have at least ten hours off duty after being on duty for fourteen hours. Similar rules apply to drivers of passenger vehicles, with slightly different time periods in line with HOS rules pertaining to those drivers. Note that an unexpected delay in loading or unloading does not qualify a driver for an “adverse condition” or “emergency” extension of driving time, and instead is considered “on-duty, not driving” for purposes of calculating the time he may drive.

Pertinent Case Law

Pertinent Case Law

In a case involving a challenge to the FMCSA regulations governing assignment of safety fitness ratings of motor carriers, the Court of Appeals for the District of Columbia held that violation of regulations pertaining to alcohol use, and by implication controlled substance use, were properly designated as “acute” by the Highway Administration. Am. Trucking Assoc. v. U.S. DOT, 166 F.3d 374, 334 U.S. App. D.C. 246 (1999). The court recognized the agency’s distinction between such “acute” violations, which involve “noncompliance which is so severe as to require immediate corrective actions by a motor carrier regardless of the overall safety posture of the motor carrier” and “critical” violations, which are those which “noncompliance relates to management and/or operational controls.” ATA at 381. The court noted, “An example [of an acute violation] is 49 C.F.R. 382.201 which prohibits knowing use of a driver with a blood alcohol concentration of .04% or greater.” Id. This distinction highlights the significance of a motor carrier’s breach of these regulations, and may be helpful in persuading a court to charge the jury, even where causation may be difficult to show by direct evidence. Certainly the distinction is helpful in supporting a claim for punitive damages.

A low level positive finding of marijuana metabolites was insufficient to survive defendant’s summary judgment motion on plaintiff’s claims for breach of 382.213 by the motor carrier driver. Chubb v. Ryder Integrated Logistics, Inc., 2009 WL 2968434 (D. Kan Sept. 10, 2009). A number of factors were referenced by the court in excluding the evidence and granting summary judgment on the claim. First, defendant’s expert (plaintiff had no expert) opined that that the levels were insufficient to cause intoxication. The driver, testified he last smoked a number of days before the accident- and certainly not while driving. The levels detected were below certain cut-off points established in the regulations pertaining to workplace drug and alcohol testing programs. See 49 C.F.R. 40.87. The police at the scene saw no signs of impairment, and the court noted that the regulations “do not prohibit its [marijuana’s] off-duty use.”

Pertinent Case Law

The majority of cases deal with employer-employee disputes over the Americans with Disabilities Act, civil rights, and related issues. However, a number of courts have addressed the medical exam and related physical qualification issues in the context of a personal injury action. CMV litigation It comes as no surprise that a motor carrier’s failure to properly qualify a driver, who then suffers some physical problem and causes an accident, may be liable for that breach.

Lewis v. City of Shreveport

The Road Test “Equivalent”

If a driver is already in possession of a valid CDL issued by a State which requires a road test in the type of vehicle the motor carrier intends to assign, this may be accepted as the equivalent of a road test. The Road Test “Equivalent”The motor carrier may also accept a copy of a valid certificate of a driver’s road test issued within the past three years.

Observations