August 2009

As a trucking safety attorney in Georgia, I sometimes find trucking companies trying to disown their driver’s safety violations.

The Federal Motor Carrier Safety Regulations, which are designed to protect safety of members of the public, clearly require trucking companies to require their employees to obey the driver regulations.

49 C.F.R. § 390.11 requires: “Whenever . . . a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.”

You may have heard that "ignorance of the law is no excuse." 

That is clearly true in the interstate commercial trucking context.

The Federal Motor Carrier Safety Regulations say that in three different ways.

49 C.F.R. § 390.3(e) requires that "Every employer shall be knowledgeable of and comply with all
regulations contained in this subchapter which are applicable to that motor carrier’s operations."  It also states that "Every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations contained in this subchapter."

49 C.F.R. § 390.5(e) requires that trucking companies must be familiar with trucking regulations and instruct their drivers, dispatchers and other employees.

49 C.F.R. § 392.1 provides: “Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.”

So there is no doubt that trucking companies and their employees are absolutely responsible for being familiar with the rules and following them.

In order to use Federal Motor Carrier Safety Regulation violations to support liability or punitive damages, it is essential to establish that the violation was a proximate cause of the crash.

Some judges don’t easily grasp the obvious connection between extreme driver fatigue and driver error. For example, in one Georgia case the court failed to recognize driver fatigue and extreme
hours of service violations as proximate causes of a crash, limiting proximate cause to a stop
sign violation only.

Therefore, one must consider the most effective methods to explain the connection between violation of safety rules and the predictable results.

With adequate support to educate the judge and build the record for appeal, Georgia law on causation is favorable.

A legal or proximate cause of injury, damage, loss or harm is any act or omission that is a contributing factor in bringing about the injury, damage, loss or harm.

What amounts to proximate cause is undeniably a jury question and is always to be determined on the facts of each case upon mixed considerations of logic, common sense,justice, policy, and precedent.

It is axiomatic that questions regarding proximate cause are `undeniably a jury question’ and may only be determined by the courts `in plain and undisputed cases.

A basic understanding of the history of federal motor carrier regulation is helpful for
comprehension of the current regulatory structure.

Motor Carrier Act of 1935. Arising from the combination of increasing motor transport of freight and the trauma of the Great Depression, the Motor Carrier Act of 1935 focused primarily on financial stability of motor carriers, but Section 204(a) authorized the Interstate Commerce Commission regulate hours of service of employees and safety of operation and equipment. Carriers were required to make an initial showing of ability to operate safely, and the ICC was authorized to revoke or suspend a carrier’s license for repeated or flagrant safety violation.

Department of Transportation Act of 1966. When the US DOT was established, the ICC powers to regulate motor carriers were shifted to the Federal Highway Administration. This included regulation of qualifications and maximum hours of service of employees and safety of operation and equipment of both motor carriers and private carriers.

Surface Transportation Assistance Act of 1982. This legislation expanded the definition of employer” to be coextensive with the Commerce Clause of the Constitution, expanded the  definition of “commercial vehicle” to all trucks weighing 10,000 pounds or more, expanded the definition of “employee” to include mechanics and freight handlers, and specifically included owner-operators in the definition of “employer” in order to subject them to penalties for unsafe vehicle maintenance and operation. It included provisions encouraging states to develop rules compatible with the federal commercial vehicle standards, and protections for “whistleblowers.”


National Driver Register Act of 1982. This statute requires states to report to a national register any person whose license was canceled, revoked for suspended for cause, and any conviction for DUI, a violation connected to a fatal accident, reckless driving, racing, failure to render aid or provide identification in an accident involving injury or death, or perjury or false affidavit connected with motor vehicle operation. Current and prospective employers could require a written authorization to obtain the record.


Tandem Truck Act and Motor Carrier Safety Act of 1984. States were authorized to apply for exemptions in order to ban oversized trailers from designated routes. The Secretary of Transportation was authorized to issue safety regulations related to truck equipment, loading, maintenance, operation, physical condition of drivers, and work conditions to prevent impairment of ability of drivers to operate vehicles safely and to prevent adverse effects on physical condition of drivers. Federal financial assistance to states was used as a club to make state laws and enforcement more uniform.

Commercial Motor Vehicle Safety Act of 1986. This Act required the DOT to establish uniform national standards for commercial drivers licenses (CDL). It required that commercial drivers have no more than one drivers’ license at a time, notify the state that issued their license and their employer within 30 days after any traffic violation. Driver applicants were required to provide a ten year employment history. Corresponding duties were imposed on employers. It required strict standards regarding alcohol use, and required disqualification of drivers for DUI, leaving the scene of an accident, or commission of a felony using an commercial vehicle.

Truck and Bus Safety and Regulatory Reform Act of 1986. The DOT was directed to conduct a study and initiate rule-making regarding hours of service and driver fatigue including onboard monitoring devices.

Motor Carrier Safety Act of 1990. This Act sought to strengthen enforcement procedures, and directed the DOT to improve conspicuity of trailers at night, leading to rules requiring reflective striping to outline trailers beginning in 1994.

Motor Carrier Safety Improvement Act of 1999. This Act created the Federal Motor Carrier Safety Administration within the DOT, tightened commercial driver standards by toughening driver disqualification rules and procedures, and tightened standards for new entrants into the trucking industry.

While most of our routine work in trucking cases focuses on the Federal Motor Carrier Safety Regulations, familiarity with the legislative history is helpful.

The framers of the U. S. Constitution recognized in 1787 that no individual state could adequate deal with regulation of interstate commerce, so that was made one of the core functions of the federal government along with national defense and a few others.

The Supremacy Clause of the Constitution provides that any state law that conflicts with a federal law is "without effect."

Federal law displaces state law where (1) Congress expressly preempts state law; (2) congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme; or (3) state law conflicts with federal law or interferes with the achievement of federal objectives.

The Supremacy Clause invalidates state laws that "interfere with or are contrary to" federal law. “Federal regulations have no less pre-emptive effect than federal statutes.”

In passing the Motor Carrier Act, Congress expressed its clear intent to establish a floor rather than a ceiling – minimum safety standards, 49 U.S.C. § 31136, and minimum financial responsibility requirements, 49 U.S.C. § 31139. The express purpose of the Federal Regulations is to protect the traveling public by imposing financial responsibility on motor carriers.

The Federal Motor Carrier Safety Regulations implement the act, providing in 59 C.F.R. § 392.2 that: "[e]very commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a regulation of the Federal Highway Administration imposes a higher standard of care than that law, ordinance or regulation, theFederal Highway Administration regulation must be complied with.

In addition, 49 C.F.R. 392.14 provides, “if a regulation of a Federal Highway Administration imposes a higher standard of care than that law, ordinance, or regulation, the Federal Highway Administration must be complied with.” Thus, the Regulations are intended to preempt state law in tort actions in which a member of the public is injured by the negligence of a motor carrier’s employee while operating an interstate carrier vehicle.

As a trucking and auto safety attorney in Atlanta, and as a former prosecutor, I have developed a strong appreciation for the competence and professionalism of the Georgia State Patrol.

Now the state’s budget crisis is impacting the GSP’s capacity to cover the rural areas of our state.

According to a report by Rhonda Cook in the Atlanta Journal-Constitution, each patrolman will be furloughed two days per month for the rest of the year.  That will mean roughly a ten percent pay cut for troopers who are already underpaid. 

Some patrol posts have as few as eight troopers to provide 24 hour coverage for 15 to 24 counties. Twenty of the state’s 48 patrol posts close between 11 p.m. and 2 a.m. and don’t reopen until 7 a.m., leaving only an operator to take emergency calls and to rouse an on-call trooper from bed to respond.

This is bad news for public safety in Georgia’s rural areas and interstate highways.

Safersys.org is a web site maintained by the Federal Motor Carrier Safety Administration. Through this site, one may obtain extensive basic information about motor carriers within moments after learning of the potential case. A “Carrier Snapshot” search includes the company’s legal name, address, phone number, USDOT number, numbers of power units and drivers, inspection and crash data, “Safestat” safety rating, and a link to a report on the first layer of insurance coverage and a blanket agent for service of process.

One may also request through this site, for a $20 fee, a more detailed Company Safety Profile. One may also send a Freedom of Information Act (FOIA) request to the Federal Motor Carrier Safety Administration for all documentation regarding the trucking company.