Atlanta Injury Law Blog

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.”

 

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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.

 

 

 

 

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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.

 

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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.

 

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Today I'm heading home from the American Association for Justice annual meeting in San Francisco. On Saturday, I was one of the speakers at the Interstate Trucking Litigation Group seminar.  I had a fairly dry topic, though one necessary in these difficult economic times, "Hard Times in Trucking Litigation: What to Do When the Trucking Defendant or Insurer Goes Under."

Some of the other topics covered in the interstate trucking seminar included:

• Overlooked Issues in Maximizing Damages in a Trucking Case
• Unique Discovery Issues in Trucking Cases
• When Low Speeds Can Cause Big Injuries: Understanding What Happens When a Big Truck Hits a Small Car
• Overdriving Headlights and Other Night Driving Issues in Interstate Trucking Cases
• Truck vs. Motorcycle
• Ethical Considerations in Interstate Trucking Cases
• The Small Commercial Vehicle Case
• Finding Insurance in Truck Crash Cases
• Brain Injuries in Trucking Cases

Though I have to leave for the airport before the business meeting, I will go on the board of the Interstate Trucking Litigation Group, and will be on the faculty of the "trucking litigation college" program this fall.

 

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Both citizen safety advocates, led by Stephen Owings, an Atlanta financial planner, and the American Trucking Association have joined in seeking rules requiring speed limiting devices on interstate commercial trucks. They say the devices will save both lives and money.

Owings founded Road Safe America after his son, Cullum, was killed on a Virginia interstate in 2002, returning with his brother from Atlanta to the Washington & Lee University. Stuck in traffic, there were hit from behind by a big rig traveling on cruise control set at 7 mph over the speed limit.   When I chaired the Southeastern Motor Carrier Liability Institute in 2005, Steve Owings was one of our speakers.

Opposing them is the Owner-Operator Independent Drivers Association.  It says mandatory speed governors are likely to lead to more collisions (when a driver needs extra horsepower for an emergency maneuver) and increase traffic congestion (when a speed-limited truck attempts to pass another.

Stay tuned to see how this plays out in the FMCSA rule-making process.

 

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To control truck driver fatigue, for many years federal regulations have required interstate truck drivers to log their driving, on duty and off duty time. But from the beginning, falsification of logs has been common. Many have regarded driver logs as "comic books." In our cases, we have unraveled webs of deception to show that driver logs were complete falsifications.

Legislation has been introduced in Congress that would require foolproof Electronic On-Board Recorders (EOBRs) in lieu of paper logs. The new highway reauthorization bill mandates EOBRs to track Hours of Service compliance for all commercial motor vehicles within four years of enactment.

The proposed legislation is substantially stronger than a proposed regulatory rule that would require only motor carriers with a demonstrated a history of serious noncompliance with the Hours of Service rules to install EOBRs.

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A driver was killed when he struck the rear of a parked tractor trailer on the side of a highway in California on the night of  January 29th.  The news report does not mention whether the unoccupied tractor trailer was properly parked with flashing hazard lights and refrecting triangles deployed to warn drivers of it presence.

The Federal Motor Carrier Safety Regulations, at 49 CFR 392.22, requires that when a commercial motor vehicle is stopped in a traffic lane or on the shoulder of a road, the truck driver must  immediately activate the vehicular hazard warning signal flashers, and within no more than ten minutes place three reflective warning triangles at specified locations.

Considering the pattern of other court cases in California construing the Federal Motor Carrier Safety Regulations, I expect a California court would find that failure to comply with this rule -- if that is in fact what happened --  would be negligence as a matter of law.

 

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As an Atlanta trial lawyer focused heavily on trucking accident cases involving serious personal injury or wrongful death, I've been watching for President-elect Obama's choices for Secretary of Transportation and for Administrator of the Federal Motor Carrier Safety Administration. 

The new DOT Secretary will be Congressman Ray Lahood, a Republican from rural downstate Illinois.  After reading about Lahood, my hunch is that he was chosen to drum up bipartisan Congressional support for  funding of major transportation infrastructure projects that Obama plans to help jumpstart the economy.

Some folks in the trucking industry like him; I just hope safety advocates like him as much.  Land Line quotes Rod Nofziger, Director of Government Affairs for the Owner Operator Independent Drivers Association, as saying, "Mr. LaHood would be an excellent pick by the Obama administration. It’s very encouraging and would be a great thing for small-business truckers.”  He got some campaign contributions from the American Trucking Association, and got a 100% rating for voting with the ATA.

LaHood is an Arab-American Republican Congressman who for 14 years has represented the area around Springfield and Peoria, Illinois. He has close bipartisan relationships with President-elect Obama and Chief of Staff Designate Rahm Emanual.

Mike Dorning at The Swamp blog quotes Emanuel's recent comments on the House floor about LaHood:

If you look back and I think if you ask all our colleagues, somebody when our framers thought of a member of Congress what they had in their mind's eye, that person would be Ray LaHood, whose decency, his sense of what it is that he was doing here on behalf of who he was doing it for never changed in his 30 years. He is an individual who, while firm in his principles, was very flexible about his opinions.

A story on ABC News lists some of the priorities facting the US DOT, and does not list anything at the Federal Motor Carrier Safety Administration. I hope that trucking safety advocates are able to get his ear too.

As a "redneck lawyer" from Georgia, I know that leaders can transcend their backgrounds when promoted to new positions.  Ray Lahood has been a congressman from a rural and small town district in downstate Illinois, where Caterpillar is the main industry. While big national issues such as urban transit, air travel safety and for that matter motor carrier safety have not been big vote getters in his district, he has shown interest in upgrading transportation. Obama and Emanuel know him well and apparently think he has capacity for growth and effectiveness.

Stay tuned.
 

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As a lawyer representing handling serious injury and wrongful death cases resulting from tractor trailer accidents, I work all the time with the  Federal Motor Carrier Safety Regulations and monitor what's happening with trucking safety regulation.

Looking ahead to the  transition at the Federal Motor Carrier Safety Administration, it is interesting to look back at what the U.S. Senate Appropriations Committee said in a report on the FMCSA last July. Here are a few excerpts:

The rules that FMCSA has proposed fail to achieve maximum safety benefits, and in some instances may undermine safety.

The FMCSA has shown a pattern of undermining its safety mission by proposing weak regulations and failing to provide adequate oversight and enforcement of existing regulations.

While marginal gains were made in 2007 compared to 2006, the charts show that over two-thirds of inspections continue to uncover violations, and one in five trucks or drivers inspected have violations so severe that they are immediately placed out of service. FMCSA has a great deal of work to do to compel industry compliance.

While I have limited confidence in any government agency, let's hope trucking safety improves, and is not totally undermined by  judges who are too busy to take the time to remedy their lack of understanding of motor carrier safety.

 

 

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As a trucking trial lawyer in Atlanta, Georgia, I too often find truck drivers who were not medically qualified to drive large commercial trucks.

We had one recent case in which the truck driver had chronic obstructive pulmonary disorder, which was a disqualifying condition. His own physician testified that he was supposed to use supplemental oxygen  24/7, and that it was unsafe for him to drive a large truck. The lack of oxygen going to his brain apparently affected his judgment, as he pulled out into freeway traffic directly in front of our client, even though he saw our client driving at the speed limit about 100 feet away and vehicles occupying the other lanes.

In another case,  a truck driver who caused a head-on collision crash was blind in one eye, which is a permanently disqualifying condition under the Commercial Drivers License rules.  With no depth perception and excessive speed, he did not perceive that a leading vehicle was slowing and stopping to  to turn, despite the flashing turn signal, and passed on a double yellow line at an intersection in order to avoid striking the leading vehicle. Our client was in the oncoming lane approaching the intersection.

We also see cases in which truck drivers were on prescription medications  with side effects that make affected their alertness and judgment in driving.

Now the<a href="http://www.insurancejournal.com/news/national/2008/12/04/96037.htm"> Federal Motor Carrier Safety Administration is taking at least a step in the right direction. It will require states to merge commercial truck and bus drivers licenses and drivers' medical examination certificates into a single electronic record</a>. Linking the two will enable states to check whether drivers have met medical requirements to operate commercial vehicles. The FMCSA also proposed creating a list of medical examiners qualified to award certificates to drivers. A study released earlier this year found hundreds of thousands of drivers operating trucks and buses even though they had qualified for Social Security medical disability payments.

While this is a step in the right direction, it does not go quite far enough. It apparently will not require the medical examiners to look at the drivers' medical records. Thus, there is little protection against  concealment  of disqualifying conditions that may not be immediately apparent in an exam.

There is also no requirement to screen for chronic obstructive sleep apnea, which is common among truck drivers and contributes to an untold number of fatigue-related crashes. However, we often see truckers who resist even going to a doctor for evaluation because they known diagnosis could endanger their driving jobs. I can certainly understand the fears of such drivers, but any disqualifying condition that is left untreated can pose a lethal risk to other motorists on the highway.


 

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A big rig driver unable to see his way through dense fog Monday morning in Fresno, California, was going too fast to see stopped traffic through the fog when he struck and killed a young woman .

Tractor trailer driver Martin Nelson, 22, of Fresno, failed to see stopped traffic in heavy fog when he struck a Ford Explorer, killing the woman inside, according to a news report by Jim Steinberg and Vanessa Colón of The Fresno Bee.

Two sections of the Federal Motor Carrier Safety Regulations appear to have been violated here.

First, 49 C.F.R.§ 392.14 sets a standard of "extreme caution" in hazardous conditions, as follows:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . . rain, dust, . . . adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.

The only appellate court decisions directly addressing the issue in the United States have held that a trial court must instruct a jury on this "extreme caution" standard of care rather than the "ordinary care" standard under state law. Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001); Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). See also, George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006).

Second, 49 C.F.R. § 392.1 requires motor carriers to take responsibility for hiring, training and supervising drivers who are instructed to comply with the rules, as follows:

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.

In this fatal crash, a 22-year-old truck driver who I figure, based on my experience, had little or no such training and supervision. In all likelihood, the trucking company confirmed that he had a Commercial Driver's License, and  no moving violations in the past three years,then handed him the keys. Probably his employer did nothing to emphasize the need to slow down or pull over when hazardous driving conditions made operation of the tractor trailer unsafe.

Unfortunately, too few judges know or care what the Federal Motor Carrier Safety Regulations require.  It always requires a concerted effort to educate a judge on this area of law. When  judge does not know that he does not know, and does not care that he does not know, there is a huge mountain to climb in order to get the court to simply apply the law.

 

 

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Fatal truck accidents in bad weather are an all too common -- and preventable -- tragedy that we see in our law practice. 

Despite the very clear federal standard requiring "extreme caution" in hazardous weather and pull over if necessary, and guidelines in the Commercial Drivers License Manual to slow down by at least one-third, truck drivers under pressure from employers and shippers too often forge ahead.

The latest to hit the news happened yesterday in Virginia's Shenandoah Valley on I-81, a road I've traveled numerous times.

The crash happened around 11:30 a.m. on I-81 near New Market. Snow squalls  made the road slick. In  a chain-reaction crash, a tractor-trailer driven by Jose Alberto Sarmiento, 36, of Edinburg, Texas, struck several vehicles before plowing into the back of a  Ford Escort. Three members of a Virginia family were killed.

According to a report by Pete DeLea in the Daily News Record of Harrisonburg, VA, Sarmiento has been charged with reckless driving and three counts of felony involuntary manslaughter.

The Federal Motor Carrier Safety Regulations, 49 C.F.R. §  392.14 requires:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured. 

Two California cases hold that it is reversible error for a trial court to fail to instruct a jury regarding this "extreme caution" standard.

In Crooks v. Sammons Trucking, Inc.,  2001 WL 1654986 (Cal.App. 3 Dist.,2001),  a tractor trailer driver forged on through heavy blowing snow until he was involved in a collision with another tractor trailer.  The trial court refused a request to charge the jury on the “extreme caution” standard under  49  C.F.R.§ 392.14, charging the jury instead on the state standard of ordinary negligence.  The appellate court held that for the trial court to disregard the regulatory standard and to instruct instead the jury with lower standard provided by state law was reversible error. 

Similarly, in Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005), the court held that it was reversible error for the trial court to refuse to instruct the jury on the “extreme caution” standard rather than the ordinary negligence standard under state law. Clearly, if the federal “extreme caution” standard preempts a state rule of “ordinary care,” the reasons are even stronger for it to preempt a state standard of “willful or wanton misconduct.”

In George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006), the Minnesota Supreme Court held that it was reversible error to give a “curative” instruction contradicting an attorney’s argument that a “reasonable care” standard did not apply, even though the full instructions included reference to standards of “utmost care” and “extreme caution.”

The Kentucky case of Jurek v. Hubbs, 2004 WL 1487116 (Ky.App.,2004), involved denial of the plaintiff’s motion for directed verdict based on 49  C.F.R.§ 392.14 rather than jury instructions.  However, the court recognized that the Federal Motor Carrier Safety

regulations govern the operation of commercial motor vehicles in the United States. To the extent that they establish a standard of care higher than the law, ordinances, or regulations of a particular state jurisdiction, a commercial driver must comply with the FMSCR.

In another case that applied the principle but did not involve jury instructions, the Virginia Supreme Court held, in Kimberlin v. PM Transport, Inc., 264 Va. 261, 563 S.E.2d 665 (Va.,2002), that it was reversible error to direct a verdict for the defendant where there was a question of fact whether truck driver violated the duty  created by 49  C.F.R.§ 392.14 to exercise extreme caution under hazardous conditions and whether violation of such duty was a proximate cause of the accident.  The court noted that while violation of the regulation does “not constitute negligence per se [It] simply creates an expanded duty of care for the operation of commercial motor vehicles under the conditions stated therein.”563 S.E.2d at 668-69.

 

 

 

 

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In truck crash litigation we sometimes find judges who fundamentally don't understand interstate motor carrier law and refuse to learn. Therefore, it is refreshing to read of judges who do "get it," and who are willing to act forcefully to protect the safety of the traveling public.

The U.S. District Court for South Dakota recently ordered Action Carrier Inc., of Sioux Falls, S.D., to halt operations due to its repeated refused to comply with federal motor carrier safety regulations.

Federal District Judge Lawrence L. Piersol granted  a temporary restraining order preventing Action Carrier from continuing to operate in interstate commerce.  The carrier's operating authority was revoked by Federal Motor Carrier Safety Administration because it did not have the necessary liability insurance required by federal law. Action Carrier has a history as a scofflaw.   Over the last year, FMCSA initiated three separate civil penalty proceedings for operating without insurance and operating after revocation of authority.

 

 

 

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As a trucking accident lawyer in Atlanta, I have been following developments in rule changes on truck driver hours of service for several years. There has been quite a history of the administration proposing longer driving hours, with trucking industry backing, only to have the rules struck down by courts as arbitrary, capricious, etc.  However, the regulators have persevered in repeatedly reissuing controversial temporary rules extending driving time from 10 driving time to 11 hours driving out of 14 hours on duty, after 10 continuous hours off duty.

Yesterday the  Federal Motor Carrier Safety Administration released its final rule on truck drivers' hours of service. It seeks to make permanent the extension of  hours truckers can drive from 10 hours to 11 hours.

According to a report in the Wall Street Journal, this is part of a broad-ranging last-minute push to enact regulations supported by business and in numerous instances opposed by consumer, safety and environmental groups. Also included are new rules that open the way for commercial development of oil shale on federal land and add restrictions on employee time off under the Family and Medical Leave Act.

 

The Federal Motor Carrier Safety Administration (FMCSA) first isued the hours-of-service rule in 2003, increasing the number of hours truckers can legally drive. The Court of Appeals for the D.C. Circuit struck down the rule in 2004, but Congress reinstated it as part of the Surface Transportation Extension Act of 2004.

FMCSA issued a new Notice of Proposed Rulemaking in January 2005, proposing a rule that was essentially the same as  the 2003 rule that had been struck down.  On July 24, the U.S. District Court of Appeals for the D.C. Circuit for the second time threw out the rule that increased driving time to 11 hours from 10 hours and allowed drivers to go back to work after being off duty for only 34 hours. In a 39-page opinion, Judge Merrick Garland called the rule "arbitrary and capricious."

The Teamsters Union called yesterday's action "a dangerous midnight move" and vowed to fight it. 

Joan Claybrook, president of Public Citizen was quoted saying, “This rule will continue to force truck drivers to continue enduring sweatshop-like working conditions. This puts the health and safety of drivers at risk, along with the public who must share the road with tired truckers.”

 

 

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As an attorney representing people catastrophically injured in trucking accidents in Atlanta, Georgia, I see speed as a safety problem as well as fatigue, illness, medication and equipment deficiencies.

The  Federal Motor Carrier Safety Administration is studying a proposal for a uniform nationwide speed limit for interstate motor carriers. If adopted, it may help hold down the top speeds, but will not alone deal with speeds that are too fast for traffic and weather conditions.

State legislation introduced in the New Jersey Assembly would set a statewide 68 MPH speed limit for all trucks operating in that state. As written, the bill would require the retrofitting of any truck, regardless of its age, with devices to insure compliance with the state speed limit.  In Canada, proposed legislation in Ontario would require speed limiters on all trucks operating in that province.

The U.S.-based Truck Renting and Leasing Association (TRALA) has taken a position opposing both the New Jersey and Ontario proposals, urging instead that state and provincial governments await adoption of a uniform requirements for truckers operating throughout the US and Canada.


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In my trucking litigation law practice based in Atlanta, I see plenty of instances where drug use -- including prescription medications -- appears to be a contributing factor in trucking accidents. Now the Government Accountability Office (GAO) has issued a report on truckers' drug tests that helps explain how and why.

Oregon Congressman Peter DeFazio is quoted in today's Atlanta Journal Constitution, warning people driving on the Memorial Day holiday weekend "check your rearview mirror early and often because the driver of that aproaching 18-wheeler may have failed one or more drug tests."

The GAO report describing a flawed oversight system that allows truckers to fail a drug test and yet move on to driving for another company. Fewer than half of the estimated 85,000 truck drivers who test positive in random drug tests each year are believed to complete the required treatment and follow-up testing to return to their jobs, according to a news report by Gregg Jones of the Dallas Morning News.

The GAO report found that some trucking companies don't bother to conduct the required pre-employment and random drug tests and have limited incentives to do so. According to the report, only about 2 percent of all trucking companies undergo checks each year by state agencies and the Federal Motor Carrier Safety Administration, which regulates interstate traffic.

In addition, truckers who choose to do so can beat the testing system by using false IDs and chemicals to alter their urine for drug tests. If caught, they easily move on to other trucking companies, which the GAO described as "job-hopping."  

If they fail both at beating the test and job-hopping, they can  "state-hop," since the states don't talk to each other. Among the report's recommendations is the creation of a national database of truckers who fail drug tests.

The report concluded that drug use could be significantly higher among truck drivers than what the random test data indicates because not all companies actually test, urinalysis can be unreliable and results can be altered. For example, GAO investigators who posed as truckers appearing for drug tests weren't required to empty their pant pockets at 10 of 24 sites. The requirement is designed to prevent a driver from using drug-concealing agents or substituting clean urine samples.

In 2006, 4,995 people were killed nationwide and 106,000 injured in crashes involving large trucks, the report noted. Statewide, about 500 people are killed each year in crashes involving large trucks. Although mechanical problems, speeding and driver fatigue are the most frequent factors in fatal accidents involving big rigs, studies have also found that drugs or alcohol substantially increase the risk of accidents. The trucking industry blames passenger cars for causing the majority of accidents.

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As a trial lawyer representing injury victims in trucking accident cases in Georgia, I'm always on the lookout for medications affecting driver alertness.  Another suspect medication has been added to the list.

The Federal Motor Carrier Safety Administration issued a warning Thursday on the anti-smoking drug Chantix, advising medical examiners "to not qualify anyone currently using this medication for commercial motor vehicle licenses." Chantix, made by Pfizer, Inc., was attacked in a study by a non-profit group on Wednesday for possible links to seizures, dizziness, heart irregularity, diabetes and more than 100 accidents. The U.S. Department of Transportation warned all of its agencies almost immediately after seeing the report which reported that Chantix was linked to 988 serious events in the last quarter of 2007.

For more information, see this article by Alicia Mundy and Avery Johnson of the Wall Street Journal.


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As a Georgia lawyer handling trucking accident cases, I continually encounter the correlation between mass, speed and stopping distances. Heavier trucks require more stopping distance.  Therefore, I am concerned about a proposal to permit larger trucks on the highways in several states, including Georgia.  Understandably, the proposal, is stirring controversy about safety, environmental and infrastructure issues.

The trucking industry is advocating a pilot plan that would permit freight trucks to transport an additional 17,000 pounds along roads in Maine, Minnesota, Georgia, South Carolina, Texas and Wisconsin.  Federal law currently limits trucks driving on interstate highways to 80,000 pounds.  The proposal would allow truck weights up to 97,000 pounds.

Proponents of the plan say it saves fuel, cuts pollution and can be done safely.

Opponents of the weight increase say larger, heavier trucks are more difficult to control, more dangerous, and will cause more damage to roads and bridges.
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As a Georgia attorney focused on representing folks hurt in trucking accidents, I hear a lot of stories about driver fatigue issues, and how the practices of dispatchers and shippers affect fatigue, from truckers from across the U.S. and Canada. That's why I try to keep up with trucking industry news from all over North America.

The North American Fatigue Management Program, which was launched in Alberta, Canada, is designed to determine when truckers should be driving or whether they need to pull over, based on personal differences.  Recognizing some people have sleep disorders that are treatable, the program seeks to put an emphasis on individuals by analyzing the trucker's own circadian rhythm, his scheduling, and lifestyle differences.  For example, some drivers are morning people, while others are not.  Some have sleep disorders; others do not.

The program was conceived in Alberta as a partnership between Alberta Infrastructure and Transportation and the province's trucking association. It was inspired by a joint study on driver fatigue by Transport Canada and the Federal Motor Carrier Safety Administration (FMCSA) in 1999.

The study could provide new insights about nighttime driving, napping and sleep debt, and serve as a framework for modifying hours of service rules in the U.S. and Canada.

"We had a concept and there are all kinds of research out there regarding napping, circadian rhythm and sleep apnea. We put all the known aspects of fatigue together and built a comprehensive fatigue management program.  It includes dispatch guidelines, screening for sleep disorders, medical intervention [so a driver won't lose their job due to treatment], and training," according to Roger Clarke, executive director of Vehicle Safety and Carrier Services with Alberta Infrastructure and Transportation.

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As an attorney handling trucking accident cases in Georgia, I've seen a wide variety of violations of trucking safety rules. It's a nationwide problem.  In 60,000 random inspections of tractor trailers in Arizona, 31% yielded safety violations serious enough to take the truck out of service. Fully 86% turned up at least one safety violation. That's according to a report by Joe Ducey at KNVX-TV in Phoenix. The breakdown of violations in the Arizona report is as follows:

Types of Out-Of-Service Violations in Arizona in 2006:
False Report of Driver Record of Duty Status - 2,818
Inspection/Repair & Maintenance - 2,674
Driver Fail to Retain Previous 7 Days Logs - 1,500
No Driver's Record of Duty Status - 1,396
15 Hour Rule Violation - 1,357
Brake Out of Adjustment - 1,194
Inoperative/Defective Brakes - 980
10 Hour Rule Violation - 921
No or Improper Load Securement - 717
Flat Tire or Fabric Exposed - 708
Stop Lamp Violations - 706
No/Improper Breakaway/Emergency Braking - 684
Tire Flat/Audible Air Leak - 590
Brakes-General - 582
Failing to Secure Vehicle Equipment - 546

Companies with Most Out-Of-Service Violations in 2006:
Swift Transportation Company Inc - 148 (out of 611 total violations)
Knight Transportation Inc - 51 (of out 137 total violations)
San Luis International Freight Services LLC - 50 (out of 259 total violations)

 

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As a Georgia lawyer representing people who are hurt in trucking accidents – and the families of those who are killed – I see too many cases where it appeared that a truck driver was deeply fatigued, was over the legal hours of service, and had a paper log that was not accurate.

A study by the Federal Motor Carrier Safety Administration showed 13% of large truck drivers were fatigued at the time of an accident. Of the 141,000 estimated crashes, that's 18,000 fatigued truck drivers causing crashes. According to a report by Brian Shapleigh at KJCT television in Grand Junction, Colorado, the Colorado Motor Carriers Association supports installation of on-board computers to track driving hours. Many in the trucking industry, however, oppose any such requirement. 

The spokesman for the CMCA was quoted as saying truckers "need to go above and beyond actually what most drivers are" because of the size of the vehicle their driving. Continue Reading Questions & comments 0

As an Atlanta lawyer handling trucking accident cases, I have seen many illustrations of why truck driver logs on paper are often referred to as "comic books."  That's why I was encouraged to see that the Federal Motor Carrier Safety Administration  may expand its proposed requirement for electronic onboard recorders (EOBRs) to include all carriers.

The FMCSA's proposal calls for an EOBRs mandate only for "repeat violators" of hours-of-service rules.  Earlier the National Transportation Safety Board, expressed concern that the rule currently on the table lacks the "resources or processes necessary to identify and discipline all carriers and drivers who are pattern violators." "The only way in which EOBRs can effectively help stem hours-of-service violations, and thereby reduce accidents involving a commercial driver’s reduced alertness or fatigue, is for the FMCSA to mandate EOBR installation and use by all operators," the NTSB said.

 

 

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A three day joint operation by police officers, motor carrier inspectors and drug recognition evaluators  targeting impaired semi drivers and unsafe commercial vehicles placed 99 vehicles (19 percent), out of service for assorted safety violations including excessive hours, log book deficiencies and driver qualification issues. As an Atlanta attorney handling tractor trailer wreck cases statewide in Georgia, that percentage of trucks and drivers in violation is consistent with what I have seen and wah truck drivers have told me off the record.

According to a report in the East Oregonian, the Oregon enforcement operation had four goals: find equipment violations; determine if drivers are working under the influence of drugs or alcohol; determine if fatigue is impairing drivers; and find any driver engaging in criminal activity in conjunction with operating a commercial vehicle.

 

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The Medical Review Board of the Federal Motor Carrier Safety Administration has recommended that CDL holders with a body mass index of 30 or higher be referred for sleep apnea testing. There is no timetable for action on this recommendation.

Sleep apnea is a serious disorder that interrupts a person’s breathing during sleep.  It can cause sleeplessness, fatigue, excessive snoring, acid reflux and other health problems, and can aggravate any existing heart or lung trouble. Certain physical features, such as excessive weight, are common to people with sleep apnea, although people who aren’t obese can suffer it as well. A BMI of 30 or greater – 220 pounds for a 6-foot-tall person – puts people at risk for developing obesity-related medical conditions such as sleep apnea.

My anecdotal observation, as a trial lawyer in Atlanta handling catastrophic tractor trailer accident cases and interviewing a great many truck drivers, is that sleep apnea is a substantial hazard in the trucking industry, that a significant number of drivers are very much at risk, and that many of them may be motivated to avoid the sort of medical consultation that would lead to diagnosis and treatment because of the perceived risk of loss of income.

To require sleep apnea testing for the group of drivers most at risk could be a positive measure for both the safety of the traveling public and the health of the truck drivers.

 

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Part of my routine includes going to truck stops to meet with interstate truck drivers. Some are witnesses in cases, and some are clients injured when another truck hits their truck.  It often occurs to me that truck drivers and trial lawyers have a lot in common. About 95% are pretty good folks who work hard to do a good job under adverse circumstances, while 5% give the rest a bad reputation.

This morning I visited with a truck driver  while he was stopped at a truck stop near Atlanta for his rest break. A graduate of a nationally prestigious university, he illustrates the fact that many truck drivers are intelligent, well-educated people.  He had several insights that confirm what I have heard from others:

• The worst part of the current hours of service rule is that it penalizes napping in the middle of a day's run. Many drivers can operate more safely if they can take a rest stop in the middle of the day, with perhaps take a 30 minute nap. Thus refreshed, they are ready to drive several more hours. However, if that nap counts against the time they can legally drive, thus penalizing them for doing what is safest for them, that is a big problem.
• Shippers insist on delivery schedules without regard for whether the run can be completed safely and legally under that schedule. However, if a crash occurs, it is the driver and carrier who are stuck with responsibility, not the shipper that is calling the shots.
• Shippers weigh loads and know if the truck is overloaded, but if there is a fine or other sanction for being overweight, it is the truck driver and carrier who bear that burden, not the shipper that determined the weight of the load.
• Drivers who refuse loads that cannot be completed without violation of hours of service rules are penalized, even if there is not a formal "forced dispatch" system.
• It is extremely difficult to stay healthy while driving over the road. Truck stops do not have exercise facilities, and the food available at truck stops is almost universally high in calories, fat, cholesterol, salt, etc.  He observed that many truck drivers drive down the road eating high fat chips, etc.  The effects on driver health are predictable, as drivers gain weight and many ultimately develop sleep apnea, which may go undiagnosed because diagnosis would affect their driving status and income. This driver, who was once a professional athlete, says he jogs, walks or does calesthenics when the truck is being loaded and at rest stops, almost never eats truck stop food, and carries healthy groceries in the cab.  I noted that the truck stop cafe menu was heavily laden with unhealthy items; I got oatmeal while my truck friend ordered toast.
• Despite the hardships of truck driving, the lure of the open road still has its allure to people from widely varied educational and career backgrounds. It would be tough on someone raising a family, but I can understand the appeal for a single guy who has grown bored with office jobs.

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The news of the entry of Mexican trucking companies and drivers into the US in recent months, despite concerted opposition in Congress, gets more amazing all the time.  Now the Federal Motor Carrier Safety Administration is allowing Mexican drivers in the demonstration project to prove their proficiency in English by responding to the examiner's questions in Spanish.

 You just can't make this stuff up.


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As an attorney handling trucking accident cases in Atlanta, Georgia, I frequently deal with issues of truck driver fatigue, and the controversy over the change in hours-of-service rules that wears out drivers while enabling shippers and trucking companies to squeeze more work hours out of them. 

Advocates for Highway and Auto Safety, an appropriately named advocacy group,  told the DC Circuit Court of Appeals last week that the Federal Motor Carrier Safety Administration broke the law again when it reinstated an hours-of-service rule for truck drivers that is making highways more dangerous. The FMCSA claims that the rule, which allows driving 11 hours per day and working up to 84 hours per week,  does not lead to dangerous fatigue. 

According to a report by Commerce Clearing House (CCH), a reply brief filed last Thursday refutes FMCSA's argument that the rule has improved highway safety. The National Highway Traffic Safety Administration recently reported that deaths in truck accidents increased in 2004 and 2005, while the percentage of fatal crashes that result from driver fatigue rose 20 percent during the same period.  "Because 2004 was the first year in which the new, longer hours of driving and work were put into effect, the negative impact is obvious," the brief states. In addition, FMCSA has acknowledged in the past that the risk of a crash doubles from the 8th hour to the 9th hour of driving, and doubles again from the 10th to the 11th hour.

The hours-of-service rule has twice been thrown out by a court. FMCSA first promulgated the regulation in 2003, increasing the number of hours truckers can drive. The Court of Appeals for the DC Circuit struck down the rule in 2004, but Congress reinstated it as part of the Surface Transportation Extension Act of 2004.

One may marvel at the stubborn resistance to common sense about fatigue hazards at the FMCSA. However, when I see how many former FMCSA officials retire to become shills for the trucking industry that they had been regulating, testifying in court and depositions that hardly anything a trucking company does is unsafe, it fits together.

 

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As a lawyer handling interstate trucking accident cases, I see the results of a variety of safety problems. Now, a Houston TV investigative reporter has revealed one more hazard for us to worry about.  Even when the federal drug testing regulations are followed by the testing labs, it is extremely easy for  a truck driver who is motivated to do so to cheat on the test by using mail order drug-free urine. See this video report from Robert Arnold at KPRC TV in Houston, Texas.

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The Federal Motor Carrier Safety Administration has proposed changing Commercial Drivers Licence (CDL) requirements to require actual driver training.  Sure it seems like a radical idea to require drivers of 80,000 pound tractor trailers to have some training behind the wheel before they get on the highway, but the feds are here to help us, right?

For a "Class A" CDL (tractor-trailers), the proposed rule would require at least 76 hours of classroom training and 44 hours of behind-the-wheel training for a total of 120 hours. For "Class B" (large "box" or van trucks) and "Class C" CDLs (hazardous materials or certain passenger-carrying vehicles), the  rule would mandate a minimum of 58 hours of classroom training and 32 hours behind-the-wheel for a total of 90 hours. 

In 2004, FMCSA implemented a training rule that focused on areas unrelated to the hands-on operation of a CMV, relying instead on the CDL knowledge and skills tests to encourage training. These current training regulations cover four areas: Driver qualifications; hours of service limitations; wellness; and whistleblower protection. But in 2005 the DC Circuit held that the Agency was "arbitrary and capricious" in issuing the 2004 rule because it ignored an important conclusion of its own 1995 Adequacy Report, that behind-the-wheel training is essential.

 

 

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The current FMCSA hours of service rule for truck drivers has been subject to much criticism on multiple grounds.  Now a Minnesota-based motor carrier has applied for an exemption in order to try another method of fatigue management.  Considering the merits of night-time sleep and power naps when fatigued during the day, with electronic monitoring, the company's proposal may have a lot of merit.

Dart Transit Co., based in Eagan, MN, has applied for a two-year exemption from two provisions of the hours-of-service regulations so that 200 of its owner-operators can operate in order to try a fatigue risk management system that would encourage quality nighttime sleep and use electronic onboard recorders to monitor drivers’ rest schedules.

“The purpose of this is to reduce driver fatigue by implementing a scientifically validated, risk-informed, performance-based fatigue risk management system,” says Gary Volkman, Dart’s vice president of safety and compliance. Dart believes the program will increase safety; improve the health, lifestyle and retention of drivers; and improve customer service. “What we want is a rested driver behind the wheel," Volkman says. "But we want a little more flexibility around when he gets that rest.”

Echoing criticisms of the HOS rule that have shown up in litigation and elsewhere, Dart argues that the 14-hour rule often penalizes drivers who stop to take a nap or sleep for less than eight hours – even when this opportunity occurs at night and is sensible for reducing fatigue. The requirement that split rest be taken in blocks of at least eight hours and two hours encourages drivers who have been on duty at night to try to obtain all or most of their sleep during the daytime hours when they are least likely to obtain sleep that is of good quality or long duration, Dart says.

Under Dart’s plan, the 200 owner-operators would be exempt only from the 14-hour clock and the split-rest limits. All other hours-of-service rules – 10 hours minimum daily rest, maximum 14 hours on duty per 24 hours, 11 hours driving per day and 70 hours per 8 days – would still apply.

A big focus of Dart’s plan is nighttime, or nocturnal, sleep, which studies have shown to be preferable. The company would use EOBRs and wireless communications to ensure that each driver’s truck is not moving for a minimum of six consecutive hours sometime during the period of 9 p.m. to 9 a.m. each night. In addition, Dart would use software from Circadian Technologies to analyze driver fatigue risk on a daily basis. Exempt drivers and their fleet managers would get these scores, along with instructions on how to improve them, such as temporary reductions in workload.

If FMCSA authorizes the exemption, Dart would take applications from owner-operators and conduct health screenings on applicants to exclude those at risk of untreated sleep disorders. The company also would provide education and training on fatigue and sleep to the participants and their fleet managers.

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U.S. Sen. Diane Feinstein, D-Calif., has asked the Federal Motor Carrier Safety Administration to reconsider electronic on-board recorders, citing recent high-profile truck accidents in her state.  Feinstein cited the Insurance Institute for Highway Safety, which claims that a third of drivers omit hours from log books and that the percentage of truckers asleep at the wheel at least once in the past month increased from 13 percent in 2003 to 21 percent in 2005. European trucks already have non-electronic tachographs, and two years ago, the European Union began requiring new trucks to have electronic recorders, Feinstein said.  In January 2007, the FMCSA proposed a rule to establish performance standards for recorders and incentives to encourage their voluntary installation. The proposed rule would mandate the recorders, however, only for carriers that have serious and continued violations of the hours rule twice within a two-year period.
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This week in several states, the Commercial Vehicle Safety Alliance (CVSA) and the Federal Motor Carrier Safety Administration (FMCSA) are sponsoring “Operation Safe Driver.” This involves increased enforcement roadside enforcement on commercial motor vehicle rules, including fatigued drivers, seatbelts, etc., and educate non-commercial drivers about sharing the road with trucks.

Unfortunately, there can never be enough enforcement officers to effectively deter safety violations by trucking companies and drivers who have powerful economic incentives to break the rules.  A requirement of electronic monitoring devices on trucks would help, but the industry strongly resists that.  Lawyers like me provide after-the-tragedy enforcement, but it would be far better if the trucking industry and the FMCSA would embrace the technology that is now available to deter safety rule violations.

 

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Trucking safety experts estimate that about 30 percent of tractor-trailers and dump trucks are overweight.  Studies show that overweight trucks are more likely to be in accidents. They also roll over more easily and need more time and distance to stop. A truck weighing 120,000 pounds needs 50 percent more space and time to stop than a truck weighing the legal 80,000 pounds.
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The Georgia DOT is holding public hearings on the proposal to build truck-only  lanes on interstate highways in congested areas throughout the state.  I can see merit in the concept of separating truck traffic from passenger car traffic.  The devil, of course, is in the details. Continue Reading Questions & comments 0

We are seeing more concerns raised about safety of Mexican trucks coming into the US. Among the points raised recently are:

•  Full access has not been granted to the Mexican license record database.  Border facilities have this access, but more than 15% of the time the records are missing entirely.

•  The Department of Transportation (DOT) just assumes all trucks used by Mexico-based companies built after 1996 are up to U.S. standards, even though data reveal that 1/5 of such vehicles do not meet minimum safety standards

•  The DOT says it will just rely on statements from Mexico-based carriers that their vehicles comply with U.S. safety standards, even though federal law clearly states that such certification can be made only by the vehicle manufacturer.

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The US Court of Appeals for the District of Columbia has stayed until the end of the year enforcement of its July order striking down the current FMCSR  hours of service rule.  This has been a point of controversy for years.

 In 2003, the FMSCA first released a set of rules that would allow truck drivers to work 11 hours during a single shift and then rest for 10 hours. The previous rules set work shifts for truck drivers at 10 hours with eight-hour rest breaks. The DC Circuit Court of Appeals struck down the 2003 regulations, and the FMCSA responded by reissuing a similar set of rules in 2005. A coalition of safety and truck driver organizations sued to challenge the new rules, asserting that they jeopardized the health and safety of truck drivers.Even though the newer rules required longer rest breaks of 10 hours, the regulations did allow truckers to work more hours during the week. According to the original set of rules, truck drivers could only work 70 hours over an eight-day period.The newer rules issued in 2005 allowed drivers to work 70 hours during a week and to restart their workweek after resting for 34 hours straight. The Truck Safety Coalition  claimed that the 34-hour restart rule meant that truckers were required to work more hours every week and therefore would be much more susceptible to fatigue.

My bet is that the FMCSA will get with the American Trucking Association and reissue virtually the same rules with a doctored-up administrative record, the Truck Safety Coalition will file suit again for round 3 or whatever it is.

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We've seen a lot of controversy lately about the on again - off again commencement of the FMCSA program to allow Mexican trucking companies to operate nationwide in the U.S. under the terms of the NAFTA treaty.  Now,  according to a recent Federal Motor Carrier Safety Administration enforcement memo, the FMCSA may actually start to enforce the rule that requires truck drivers to be able to function in English.

FMCSR Section 391.11(b)(2) says that all drivers must "read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records." In the past, each employer and law enforcement personnel interpreted the rule subjectively and, therefore, differently. Even though the rule has been in effect since 1970, no one had been placed out-of-service because it.

In 2004, Commercial Vehicle Safety Alliance revised its Out of Service Criteria to reflect a need to communicate sufficiently in the language of the country in which the driver is operating so he or she can understand and respond to officials. This could affect drivers in French-speaking Quebec who speak English, and English-speaking drivers entering Spanish-speaking Mexico. Similarly, drivers entering the United States would have to speak English fluently enough to perform their tasks as drivers and communicate with inspectors and other law enforcement officials. Even though the OOS Criteria included the new language proficiency requirement, citations were mostly the extent of the violations until this enforcement memo.

Now, the memo instructs inspectors to converse in English with drivers, at minimum, about their origin and destination; record of duty status, on-duty time, and driving time; driver's license; and vehicle components and systems regulated by FMCSA. Mexico-domiciled carriers that operate exclusively in border commercial zones are exempt from the OOS order. The driver would be cited only, and not put out of service. Inspectors are told that they must conduct a portion of the road inspection in English, specifically the driver interview. Drivers must respond appropriately in English to demonstrate proficiency. Failure to respond appropriately to basic questions will result in an OOS violation. Inspectors are instructed to speak slowly, but naturally. They are not to rush through questions and may paraphrase in English the sample driver interview questions included in the enforcement memo.

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An article in Saturday's Milwaukee Journal Sentinel newspaper highlights some of the systemic problems with hours of service and driver fatigue in over the road trucking.  A few of the key points:

• According to Gerald A. Donaldson, senior research director of Advocates for Highway and Auto Safety, more ingenious drivers routinely flout the regulations and know how to get away with it."I do not believe that most logbook violations are detectable."

• Trucking safety advocates want the government to move away from paper logbooks and require big trucks to be fitted with electronic devices that automatically record driving hours. Some companies already use such recorders, and similar equipment is required on new trucks in Europe.

• Those efforts face structural obstacles in the way business gets done in the crucial "truckload" sector, the growing long-haul wing of the industry. Truckload drivers are almost universally paid by the mile or the load rather than by the hour. That system, say experts - including safety administration chief John H. Hill - contains built-in financial incentives to break the rules.

• "Non-union drivers, who make up the great majority of the truckload sector, don't have to be paid overtime. The result: Trucking companies - which operate in an intensely competitive, low-margin business and often serve customers who have come to rely on prompt delivery - pay no wage premium should they want drivers to pile on the miles."

• "Five years ago, a pair of consulting firms analyzing proposed regulatory changes for the federal safety administration framed the situation in the dry but precise language of economics: 'The marginal cost to the firm of an additional hour of driver labor diminishes constantly as the hours of work increase,'  the firms' report said. In other words, the longer a driver stays on the road, the less those additional hours cost his employer."

• "Off-duty time spent at truck stops and rest areas offers few recreational alternatives to the additional pay generated by keeping the wheels rolling. As the safety administration consultants put it: 'They are willing to work an extra hour for a lower marginal wage (and cost to the firm), to maximize their earnings potential, in part because the value of leisure time out on the road is low.'"

• Shippers' requirements create great incentives for truckers and trucking companies to break the rules.  "There is pressure in the auto industry.  . . . It's one of the cheapest freights people can haul, and it's on-time delivery. (If) they say you've got to be there by 0600, you'd better be there by 0600."

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The American Trucking Associations is asking Congress to authorize and fund a centralized clearinghouse for positive drug and alcohol testing results of commercial motor vehicle drivers to ensure that motor carrier employers are aware of previous positive test results during the hiring process. The ATA notes that with between 2 percent and 2.5 percent of the truck driver population testing positive, that’s perhaps 68,000 drivers with some type of substance abuse problem, Continue Reading Questions & comments 0

Usually reader comments appear in a blog just as an attachment to the blogger's post, and sort of get lost in the shuffle.  However, this morning I received a comment from a seasoned truck driver named Andrew about the recent court ruling on hours of services rules that should stand on its own. 

As a truck driver, I know from personal experience that the old 10/15 rule was much better for the health and safety of drivers and motoring public. A great deal is known about sleep now and, by far, the greatest danger stems from the fact that drivers are yanked all over the clock dial by shippers/recvrs who want to get drivers in doors for loading/unloading at all hours of the night and day. Driving at night is unnatural, unhealthy and risky, especially between about 02:00 and daybreak (red-zone). If we as a society want to make really substantial gains in highway safety, red-zone driving will need to be outlawed. Recent piddly-wink adjustments will yield only slight benefits.

That is right in line with what other truck drivers have been telling me for years, and with what I have seen of some of the worst trucking accidents.

Amen, Andrew! Continue Reading Questions & comments 0

Thanks to alert reader David Warren for calling this to my attention.

A federal appeals court in Washington, DC, on Tuesday threw out a the 2005 rule allow long-haul truckers to drive for up to 11 hours straight. For 60 years, truckers could drive for 10 hours at a time. Since the 2000 election, the Federal Motor Carrier Safety Administration has been trying to change the rule to allow trucking companies to require truckers to put in another hour of driving time each day and dramatically increase total weekly work time.  However, once again demonstrating the importance of an independent judiciary, the U.S. Court of Appeals for the District of Columbia Circuit has now agreed that the FMCSA did not adequately explain its reasoning for adding the extra hour.

Here are some excerpts from the court's order which frequently refers back to its earlier ruling against an earlier iteration of the same rule:

First, we expressed “very real concerns” about the increase in the daily driving limit from 10 to 11 hours. . . .  We noted that the “agency freely concedes that ‘studies show that performance begins to degrade after the 8th hour on duty and [the degradation] increases geometrically during the 10th and 11th hours.’” . . . . But “[d]espite this finding, the agency cited absolutely no studies in support of its notion that the decrease in [the] daily driving-eligible tour of duty from fifteen to fourteen hours will compensate for [the] conceded and documented ill effects from the increase” in driving time.

Second, we also found suspect the agency’s claim that the increase in the daily driving limit to 11 hours could be justified by “the cost-benefit analysis it conducted.”  . . . The model employed in that analysis, we noted, “assume[d], dubiously, that time spent driving is equally fatiguing as time spent resting -- that is, that a driver who drives for ten hours has the same risk of crashing as a driver who has been resting for ten hours [and] then begins to drive.” Id. “In other words, the model disregarded the effects of ‘time on task,’” and thus understated the risks of driving 11 hours.

Third, “[o]ur doubts extend[ed] as well to the agency’s justification for retaining the sleeper-berth exception,” which permitted “solo and team drivers to obtain the necessary ten hours of off-duty time by splitting their rest in two periods of time spent in sleeper berths.” . . . . Public Citizen “argue[d] persuasively,” we said, “that the agency’s justification for retaining this exception was not rational in view of the conceded central premise of the HOS regulations . . . that ‘[e]ach driver should have an opportunity for eight consecutive hours of uninterrupted sleep every day.’”

Finally, we regarded as “problematic” the fact that FMCSA’s justification for the 34-hour restart provision “[did] not even acknowledge, much less justify, that the rule . . . dramatically increases the maximum permissible hours drivers may work each week.” . . .  That increase, we said, “is likely an important aspect of the problem[,] [a]nd the agency’s failure to address it . . . makes this aspect of the [2003] rule’s rationality questionable.”

. . .
After our July 16, 2004 decision in Public Citizen vacated the 2003 Rule, FMCSA sought and received temporary relief from the vacatur in Congress. The Surface Transportation Extension Act of 2004, signed by the President on September 30, 2004, provided that the 2003 Rule “shall be in effect until
the earlier of -- (1) the effective date of a new final rule addressing the issues raised by [Public Citizen]; or (2) September 30, 2005.” . . . FMCSA issued a new NPRM in January 2005. . . .  The 2005 NPRM used the 2003 Rule as its proposal and sought “comment on what changes to that rule, if any, [were] necessary to respond to the concerns raised by the court” in Public Citizen.

In August 2005, FMCSA promulgated the rule now under review. . . . . With a single exception, the 2005 Rule is identical to the 2003 Rule. The 2005 Rule
preserves the 11-hour daily driving limit, the 14-hour daily onduty limit, the 10-hour daily off-duty requirement, the 60-hour weekly on-duty limit, and the 34-hour restart provision. . . . . The only difference between the two rules is the sleeper-berth exception.

Although the 2005 Rule was largely unchanged from the 2003 Rule, FMCSA said that it had considered and addressed the concerns identified by this court in Public Citizen. As to driver health, the agency explained that it had conducted an extensive literature review to determine the effect of the rule on
a variety of health issues, and concluded that the 2005 Rule would either have no effect or yield a net improvement over the pre-2003 regulations. . . .

FMCSA also determined that the 2005 Rule would improve highway safety by reducing fatigue-related accidents. First, it explained that the 2005 Rule’s change to the sleeper-berth exception would reduce driver fatigue. It cited evidence that “sleep accumulated in short time blocks is less refreshing than
sleep accumulated in one long time period,” and studies indicating that drivers using the split-sleeper-berth provision of the pre-2003 regulations were more likely to be involved in fatal accidents.. . .

Finally, FMCSA relied on a new cost-benefit analysis that it described in a Regulatory Impact Analysis (RIA) released along with the 2005 Rule. See FMCSA, Regulatory Impact Analysis and Small Business Impact Analysis for Hours of Service Options (2005) (J.A. 1627) (“2005 RIA”). Based on this
analysis, FMCSA concluded that the economic costs to industry of rescinding the two provisions of the rule that this court had criticized in Public Citizen -- the increase (over the pre-2003 regulations) in the daily driving limit from 10 hours to 11 hours, and the addition of the 34-hour restart provision -- outweighed the safety benefits that rescission would bring. See 2005 Rule,
70 Fed. Reg. at 49,981. As explained below, a key component of the cost-benefit analysis was an operator-fatigue model that the agency used to analyze crash risks under different HOS regimes.

. . .

Public Citizen challenges the 2005 Rule, and specifically its 11-hour daily driving limit and 34-hour restart provision, on four grounds. The petitioner contends that: (1) FMCSA violated the APA’s requirements for notice-and-comment rulemaking by failing to disclose in time for comment the methodology of a model that was central to the agency’s justification for the rule; (2) when the methodology finally was disclosed, FMCSA failed
to provide a reasoned explanation for some of its critical elements, thus rendering it (and the rule) arbitrary and capricious; (3) FMCSA’s treatment of a number of other safety considerations was also arbitrary and capricious; and (4) the rule is contrary to law and arbitrary and capricious because it fails to
protect driver health. . . .

In order to assess the costs and benefits of alternative changes to the HOS rules, FMCSA created a carrier-operations model for estimating the costs to industry of each option, as well as an operator-fatigue model for calculating the crash risks under each option. (The benefits of avoiding crashes were then
monetized and incorporated into the cost-benefit analysis.) The agency explained the models in the RIA that it released along with the 2005 Rule. . . .

. . .

The agency’s 2003 operator-fatigue model had estimated a driver’s crash risk solely by reference to his or her sleep patterns, and thus assumed that time spent driving was no more fatiguing than time spent resting. Id. We found the
decision to ignore time-on-task effects puzzling, because “the agency admits that studies show that crash risk increases, in [FMCSA’s] words, ‘geometrically,’ after the eighth hour on duty, and the agency does not deny that this geometric risk increase results at least in substantial part from time-on-task effects.”

In its 2005 analysis, FMCSA modified its 2003 operatorfatigue model to account for time-on-task effects. To do so, the agency commissioned a study of crash data from a national database known as “Trucks Involved in Fatal Accidents” (TIFA).  The TIFA Study generated what FMCSA referred to as the “fatigue-related crash risk” for each successive hour of driving. Id. at 59 (J.A. 1679). For each driving hour, the study calculated the percentage of all fatal truck crashes in which it was determined that the driver was fatigued at the time of the crash. This calculation yielded the risk that a crash will be  fatigue-related for each of the first twelve hours of driving time, plus an aggregated figure for all driving in Hour 13 and beyond. The figures ranged from less than 1% for Hour 1, to 4.4% for Hour 10, to 9.6% for Hour 11, to 25% for Hour 13 and beyond. Id. at 45 (J.A. 1665). As FMCSA observed, the “risk of . . . a fatigue-related crash in the 11th hour of driving or later is notably higher than in the 10th hour of driving.” . . .

But in the RIA that it released with the 2005 Rule, FMCSA did not use the crash risk figures contained in the TIFA Study. Instead, the agency plotted the aggregate figure for Hour 13 and beyond at Hour 17, and then “fit[] a cubic curve” (derived a regression equation) for that and the other hour-by-hour figures from the TIFA Study. Like the TIFA Study, the curve estimated the actual percentage of crashes related to fatigue for each hour of driving. The curve’s figures, however, were different from those in the TIFA Study. See id. In
particular, the percentage difference between the figures for the 10th and 11th hours was substantially smaller than in the TIFA Study. Finally, FMCSA divided each of the hourly figures from the curve by the average risk for Hours 1 through 11, creating a risk increase “relative to average driving hours.” Id. at 61 (J.A. 1681). The resulting “TOT [time-on-task] crash risk multipliers” were then used in the operator-fatigue model to determine the safety impact of different HOS rules.

Public Citizen objects to FMCSA’s reliance on the operator-fatigue model because FMCSA did not disclose (inter alia) the methodology by which it would derive time-on-task multipliers until it published the 2005 Rule -- too late for interested parties to comment. Because the time-on-task multipliers were an integral part of the operator-fatigue model, and because the output of that model was central to FMCSA’s decision to adopt the 2005 Rule (and particularly the 11-hour daily driving limit and 34-hour restart provision), the model and its methodology were unquestionably among “the most critical
factual material that [was] used to support the agency’s position.” . . .

[detailed discussion of methodology and what was disclosed when by FMCSA]

We have no difficulty in concluding that the agency’s failure to disclose the methodology of the operator-fatigue model in time for comment was prejudicial. The arguments that the petitioner has raised before this court amply demonstrate that it would have mounted a “credible challenge” had it been afforded an opportunity to do so.

Indeed, as we explain below, Public Citizen’s critique of the model persuades us not only that it was prejudiced by FMCSA’s failure to provide an opportunity for comment, but also that FMCSA failed to provide an adequate explanation for its decision to adopt the 11-hour daily driving limit and the 34-hour
restart provision.

Public Citizen notes that the TIFA data, upon which FMCSA’s time-on-task multipliers were ultimately based, indicates that “the risk of fatal-crash involvement more than doubled from the 10th hour to the 11th.” . . . . The actual time-on-task multiplier for the eleventh hour used in FMCSA’s model, however, was “only 30% higher than the . . . multiplier for the 10th hour.” . . .  Public Citizen contends that the two steps FMCSA used to transform the TIFA data into the time-on-task multipliers were unexplained, and that they had the effect of improperly minimizing the crash risk associated with the 11th hour of driving. . . .


Moreover, as Public Citizen pointsout, if the agency had plotted the figure for 13+ hours at Hour 13 rather than Hour 17, the resulting curve would have produced a significantly higher estimate of the risk of a fatigue-related crash
at Hour 11 -- a figure close to that which the TIFA Study had calculated directly. . . .  FMCSA’s decision to plot the data point for Hour 13 and beyond at Hour 17 -- instead of at Hour 13 (or some other point) -- was entirely unexplained in the RIA and final rule. This complete lack of explanation for an important step in the agency’s analysis was arbitrary and capricious. “When an agency uses a computer model, it must ‘explain the assumptions and methodology used in preparing the model.’”

Second, after deriving an estimate of crash risk for each hour of driving using a cubic curve, FMCSA divided those figures by the average risk for Hours 1 through 11, creating an estimate of risk “relative to average driving hours.” . . . . Public Citizen objects that FMCSA gave no explanation for its decision to
divide each hourly risk figure by the average for the first 11 hours, and points out that the effect of this step was “to diminish the increase[d] [risk of driving in Hour 11] by dividing the heightened risk at the 11th hour by an average that includes that heightened 11th-hour risk.” . . .

Public Citizen further contends that the RIA’s operatorfatigue model “also ignored cumulative fatigue from increased weekly driving and working hours allowed by the 34-hour restart.”  . . . In Public Citizen, we said -- with respect to the identical restart provision of the 2003 Rule -- that this increase in weekly hours was likely “‘an important aspect of the problem,’” and that the “agency’s failure to address” it made “the rule’s rationality questionable.” . . .

Yet, as FMCSA acknowledges, the 34-hour restart provision of the 2005 Rule could “allow another 17 hours of driving time . . . in a 7-day work week, compared to the limit of 60 hours of driving time without the [restart] provision.” . . . . In light of these statements by the agency, Public Citizen argues that the operator-fatigue model should have taken into account the increased crash risk caused by “cumulative fatigue” associated with the increased driving and working hours that it would permit.

. . . .

Because the model is the basis for the cost-benefit analysis that led FMCSA to adopt the two provisions of the 2005 Rule that Public Citizen challenges -- the increase in the daily driving limit from 10 to 11 hours, and the 34-hour restart provision -- we must vacate those provisions.

The court goes on to find that other rules regarding loading and unloading time and sleeper berth time were not made in a manner that was "arbitrary and capricious" and therefore were not invalidated under the Administrative Procedure Act.

In reading the court's criticism of the FMCSA's use of formulas and graphs to disguise the increased safety hazard between the 10th and 11th hour of driving, I am reminded of the old adage that "figures don't lie but liars figure."

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Police in Kings Mountain, NC, say a driver’s lack of understanding of the English language appears to have led to a violent wreck between a train and a tractor-trailer.  Truck driver Ricardo Ercia was crossing several train lines in town at South Battleground Avenue and Oak Street when he didn’t obey a traffic sign calling for drivers to go through a second rail line crossing. Fortunatley, there were no serious injuries. The Federal Motor Carrier Safety Regulations require that truck drivers be able to read and understand the English language.

Use of foreign truck drivers and allowing Mexican trucking companies to operate nationwide in the US has been an increasingly controversial topic in the trucking industry.  For the last few years it has become increasingly evident that if the trucking industry could outsource driving jobs to third world countries to save money, it would do so.

 

 

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Two decades ago Alabama adopted the Federal Motor Carrier Safety Regulations for intrastate trucking operations. Last week, the Alabama legislature voted to exempt most farm trucks from the regulations. My friend and co-counsel who is a member of the Alabama legislature voted for it.  It's hardly a shock.  Georgia already did that.  However, if you are driving through Alabama and see a big farm truck coming, take care.
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As I have discussed several times in this blog, the US Federal Motor Carrier Safety Administration significantly increased truck drivers' hours of service last year.  Under the current hours of service rule, truckers may drive 77 hours in 7 days or 88 hours in 8 days – a more than 25 percent increase from the previous rule. On-duty hours during which truckers may drive also have increased, allowing a truck driver working 14-hour shifts to work as many as 84 hours in 7 days or 98 hours in 8 days – a 40 percent increase over the old limits. The adverse effect on trucking safety is just sort of common sense.

Now the European Union has gone the opposite direction, requiring shorter driving hours and longer rests periods for truck drivers.  The EU has reduced the maximum work week for truck drivers from 74 hours to 60 hours, including loading and unloading. After 4.5 hours of driving, they will have to stop for at least 45 minutes to have a rest. The 45-minute period can be divided into two shorter breaks, but the first one may not be shorter than 30 minutes and the second no shorter than 15 minutes. The required daily rest time will also be extended. Under the old regulations, truck drivers are required to take an 8-hour daily rest. Under the new regulations, the daily rest period is defined as a break in driving of at least 11 hours. Daily rest can also be divided into two parts. In this case, the total time has to be extended to 12 hours because the first break may not be shorter than three hours and the second has to last at least nine hours. Additionally, drivers who drive alone and have no one to alternate with them at the wheel will have the right to an additional 9 to 11 hours of rest, but only three times a week. If the truck crew is made up of two people, each driver will have to take a break of at least nine hours (up from eight hours under the existing regulations) within 30 hours of the end of the previous daily or weekly period of rest.  European truck drivers are not allowed to drive longer than 56 hours in a single week. In a two-week period, the limit for driving time remains unchanged at 90 hours.

European truck drivers are apparently better organized than their counterparts in the US.  Back in 1998, truck drivers across Europe circled trucks into blockades at border crossings to dramatize their demand for better working conditions and fewer hours.

Whether the rules are set for reasons of drivers' working conditions or safety of other people on the roads, anyone who has ever driver across the country instinctively knows the difference between driving nine hours, broken up by a 45 minute break, and driving eleven hours straight.  The effect on fatigue and alertness of driving 77 hours per week versus 56 hours per week is just common sense.


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A coalition of trucking, environmental and safety organizations has filed suit seeking an injunction against implementation of the Bush Administration's decision to allow up to 100 Mexican motor carriers – with an unlimited number of trucks – to perform long-haul operations within the U.S. 

The Owner-Operator Independent Drivers Association, Sierra Club; Public Citizen; the Environmental Law Foundation; and the Teamsters Union filed suit in federal court in San Francisco on Monday.  They claim that the Bush Administration's program authorizing Mexican trucking companies to operate on US highways is in violation of public notice and comment requirements federal law imposes on pilot programs.

OOIDA Executive Vice President Todd Spencer stated: 

“The DOT has still not answered questions about verification of drivers’ records, drug and alcohol testing, hours of service, cabotage, inspections and insurance. They make general statements about audits of Mexican motor carriers, but have shown nothing that should make the American public feel confident that they have fulfilled all the obligations necessary before moving forward.”

The Federal Motor Carrier Safety Regulations require that a truck driver must be able to function competently in the English language.  Already I have been seeing accidents in which the truck drivers require interpreters.  Imagine how it will be when Mexican trucking companies are allowed to operate throughout the US.

Observing how some trucking and logistics companies operate, I have often joked that they would outsource truck driving to third world countries if they could find a way.  Well, now the Bush team is enabling them to do just that.  I will watch this case with great interest.

See the following articles and comments on this topic:
Mexican truckers' free travel put on hold (San Diego Union Tribune, 4/27/07)
Teamsters sue the Feds (Sky Puppy blog)
Bush: Mexican Truckers Are Okay (Bloviating Zeppelin blog)



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Fri., 3/9/07, Calhoun, GA. 

In a scene reminiscent of the 1982 Paul Newman movie, "The Verdict," the jury after three hours of deliberation Thursday afternoon sent a note to the judge asking if they were limited by the amount the plaintiff asked for.   In closing argument I had asked for a verdict of approximately $1.2 million for our client's permanently disabling leg injury.  When we got that question from the jury, my first thought was that I don't drink anywhere near enough to fit the Paul Newman role in the movie.

Today we won a $2,345,940.17 jury verdict against a Pennsylvania trucking company in the Superior Court of Gordon County, Calhoun, Georgia.  The verdict was broken down as follows: compensatory damages:  $1,742,845.70, attorney fees due to bad faith in the transaction, $580,948.57, expenses  of litigation $ 22,145.90.  Medical expenses were $112,228.  The highest offer from defendant's insurance company before trial was $125,000, going up to $400,000 on third day of trial. This was nearly three times the highest previous verdict in the history of Gordon County.

The specificity of the figures, down to the penny, helps to refute any allegation that it was a random verdict by a "runaway jury."  These jurors were all deeply conservative northwest Georgia folks who were determined to follow the law and the facts wherever they led, and to do the right thing.

It was a very good week.

Johnson v. Clarendon National Insurance Company, American Trans-Freight, LLC, ATF Trucking, LLC, ATF Logistics, LLC, and Robert W. Carnley, CIVIL ACTION FILE NO. 04-CV-43532

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    The Federal Motor Carrier Safety Regulations often referred to in cases where tired truckers wreck include the following:

    49 C.F.R. § 392.3, Driver Impairment.

No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.

    § 390.11 Motor carrier to require observance of driver regulations.

 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.

FMCSR, 49 C.F.R. § 390.13, provides that

"No person shall aid, abet, encourage, or require a motor carrier or  its employees to violate the rules of this chapter."  It does not say "no motor carrier." 

49 CFR 390.5 defines "person" as follows:

Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals.

    § 395.3 Maximum driving time for property-carrying vehicles.

    Subject to the exceptions and exemptions in § 395.1:

(a) No motor carrier shall permit or require any driver used by it to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle:

    (1) More than 11 cumulative hours following 10 consecutive hours off duty; or
    (2) For any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty, except when a property-carrying driver complies with the provisions of § 395.1(o) or § 395.1(e)(2).
(b) No motor carrier shall permit or require a driver of a property-carrying commercial motor vehicle to drive, nor shall any driver drive a property-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver's services, for any period after-
     (1) Having been on duty 60 hours in any period of 7 consecutive days if the employing motor carrier does not operate commercial motor vehicles every day of the week; or
    (2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates commercial motor vehicles every day of the week.

    § 395.8 Driver's record of duty status.

(a) Except for a private motor carrier of passengers (nonbusiness), every motor carrier shall require every driver used by the motor carrier to record his/her duty status for each 24 hour period using the methods prescribed [herein]....
    * * * *
(e) Failure to complete the record of duty activities of this section or § 395.15, failure to preserve a record of such duty activities, or making of false reports in connection with such duty activities shall make the driver and/or the carrier liable to prosecution.

    A court may also consider the applicable administrative interpretations included in the Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed.Reg. 16370 (1997).  The agency "consolidated previously issued interpretations and regulatory guidance materials and developed concise interpretive guidance in question and answer form for each part of the FMCSRs." Id. at 16370.  "[A]n agency's interpretation of its own regulations is entitled to a relatively high level of deference.... A court must accept the interpretation unless it is ... plainly erroneous or inconsistent with the regulation."  United States v. Thorson, No. 03-C-0074- C, 2004 WL 737522, at *8 (W.D.Wis. Apr. 6, 2004); "Deference is particularly appropriate when an agency interprets its own regulation." Hickey v. Great W. Mortgage Corp., No. 94 C 3638, 1995 WL 317095, at *5 (N.D.Ill. May 23, 1995). 
 
   The Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 FR 16370-01 (1997) includes the following official administrative interpretations of the regulations:

Question 7: What is the liability of a motor carrier for hours of service violations?
Guidance: The carrier is liable for violations of the hours of service regulations if it had or should have had the means by which to detect the violations. Liability under the FMCSRs does not depend upon actual knowledge of the violations.
Question 8: Are carriers liable for the actions of their employees even though the carrier contends that it did not require or permit the violations to occur?
Guidance: Yes. Carriers are liable for the actions of their employees. Neither intent to commit, nor actual knowledge of, a violation is a necessary element of that liability. Carriers "permit" violations of the hours of service regulations by their employees if they fail to have in place management systems that effectively prevent such violations.

    In interpretation of 49 C.F.R. § 395.8, the regulatory guidance states:

 Question 21: What is the carrier's liability when its drivers falsify records of duty status?
 Guidance: A carrier is liable both for the actions of its drivers in submitting false documents and for its own actions in accepting false documents.  62 Fed.Reg. at 16426. In short, “Motor carriers have a duty to require drivers to observe the FMCSRs.”

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A recent confidential survey of commercial truck drivers reports that 77 percent admitted to deliberately violating the hours of service regulations in the past, and that 55 percent said they were still breaking the rules.  Drivers report that the most common violation is logging time as off-duty when actually on-duty (78 percent). Other common violations included using more than one logbook (21 percent), logging violations correctly in hopes that they will not be noticed (17 percent), and indicating that a team driver is operating the vehicle when they really are not (11 percent). Respondents report an average of six days per month of intentional violations and five days per month of unintentional violations.Nearly 17 percent of the respondents felt it necessary to violate the HOS rules in order to earn a reasonable income, while 38 percent strongly disagreed with that assumption. Thirty-eight percent said that their company expects them to violate the regulations as part of their job. Some 68 percent thought that law enforcement officers do not know how to relate to commercial motor vehicle drivers. Among the reporting drivers, 11.2 hours was the average estimate given for the reduction in driving hours over seven days if logbooks couldn't be "adjusted."

The survey does not report, however, the extent to which these violations are due to pressure from trucking companies and shippers who insist that drivers fulfill legally impossible delivery schedules.  I have talked with many hard working truck drivers who have told me stories of trucking companies letting them know that if they didn't make deliveries on an impossible schedule, the company would find a driver who would. They have told of shippers releasing loads many hours late, but insisting that the drivers get to destinations at times that could not be done without grossly violating the hours of service and fatigue regulations. I think most truck drivers are just working guys struggling to make a living in a tough business while under tremendous pressure to do the legally and physically impossible.

Of course, when the inevitable happens, the trucking company claims it had no idea a "rogue driver" was driving twice the number of hours legally permitted, even though the company could clearly see the trips for which the driver was dispatched and the time required to complete those trips.  Often trucking companies are willfully and deliberately blind to the effect of the orders they give the drivers until a tragedy occurs, and then they blame the driver who was following orders. And, if a truck driver, tries to blow the whistle on such practices, he may be blackballed in the trucking industry.

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Fortunately no one was injured when the driver of an 18-wheeler mail truck fell asleep on I-75 near Macon at 3:30 AM, over-corrected when he woke with a start, and went over an embankment.  However, two of three northbound lanes were closed several hours and the GA DOT will have to replace a guard rail.  All too often we see such incidents result in serious injuries including fatalities. 

 49 C.F.R § 392.3 provides:

No driver shall operate a motor vehicle, and a commercial motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.

49 C.F.R. § 390.13 requires that " No person shall aid, abet, encourage, or require a motor carrier or  its employees to violate the rules of this chapter."

49 C.F.R. § 395.3 spells out the hours of services rules, which I won't repeat here.

However, we also see retired FMCSA officials, who have gone through the "revolving door" to serve as shills for the businesses they used to regulate,  coming in to testify as expert witnesses for the defense, claiming that the fatigue and hours of service regulations don't mean what they say and that the official Regulatory Guidance published by the FMCSA has no significance.  I spent an afternoon recently deposing one of those guys in another state.  It's amazing what former regulators will say in order to profit from their former government positions.  But even a greased pig can be caught in time.


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Recent articles in the New York Times and Chicago Tribune critique the causes of safety problems in the current trucking industry.  Much of the focus of the Chicago Tribune article is on the Bush Administration's decision to increase the permissible driving hours and working hours for truck drivers.  The New York Times article digs a little deeper, going back to the deregulation of the trucking industry in the 1980's.  Most truckers are now paid by the mile or the trip so that the time they spend waiting to be loaded or unloaded or doing maintenance unpaid. Counting all their time on the job, some earn as little as $8 an hour., often with no medical insurance or pension plan. 

According to John Siebert, an official with the Owner-Operator Independent Drivers Association, his review of members' obituaries revealed their average age at death was 55 and a high rate of suicide.  Surveys of truck drivers reveal 90% are overweight and nearly two-thirds expect to rely solely upon Social Security when they retire. Under extreme scheduling pressure from shippers and trucking companies as well as financial stress, they sacrifice physical needs including sleep in order to work 100 to 120 hours per week. 

According to Mike Belzer, a one-time Chicago trucker and now a Wayne State University professor and trucking industry expert, ever since deregulation it has been a "race to the bottom" in the trucking industry.  Truckers' income, adjusted for inflation, has dropped steadily as the market has been flooded with new companies, new drivers, and pressures from shippers and manufacturers to keep freight costs down.  The number of interstate trucking companies went from 20,000 to 564,000, with nearly 90% operating six trucks or less, a highly fragmented industry with thin profit margins.  

For more, see the Confined Space blog.

All this is consistent with my own observations, both in investigations and depositions of truck drivers whose fatigue contributed to tragic incidents, and in interviews with truck driver clients and witnesses. I've heard truck  drivers describe  incidents of  being required to complete trips by a deadline even though the shippers loaded the trailers several hours late, under circumstances where they could not possibly get the legally required rest and still deliver by their deadlines. I've seen too many instances of truckers napping an hour in a cab between nation-crossing trips that result in them driving 20 out of 24 hours.  The risks to their health and to public safety are all too obvious.

                                                                                        - Ken Shigley


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In a petition filed in court on Dec.5, five groups – The Truck Safety Coalition, comprised of the Teamsters; Citizens for Reliable and Safe Highways; Parents Against Tired Truckers; Advocates for Highway and Auto Safety; and Public Citizen – asked the court to review the revised hours-of-service (HOS) rule that was issued by FMCSA on August 25, 2005.  They complain that the revised rule increases both the number of hours that truckers may drive without a break and the number of hours truckers may drive per week.

Under the current hours of service rule, truckers may drive 77 hours in 7 days or 88 hours in 8 days – a more than 25 percent increase from the previous rule. On-duty hours during which truckers may drive also have increased, allowing a truck driver working 14-hour shifts to work as many as 84 hours in 7 days or 98 hours in 8 days – a 40 percent increase over the old limits.

Safety advocates also oppose the provision for a 34-hour restart period, which resets the driver's clock after a 34-hour rest period. According to the Teamsters, this puts drivers behind the wheel 14 hours longer with considerably less rest than the old rules.They express concern that the rules force drivers to work more hours with less rest over the course of a given week., putting the at risk the safety of both truck drivers and members of the public  with whom they share the roads.

FMCSA had issued a similar HOS rule in April 2003. However, Public Citizen and two other advocacy groups filed a lawsuit challenging the 2003 rule, and the U.S. Court of Appeals for the District of Columbia Circuit struck down the HOS rule in a July 16, 2004, opinion. The appeals court ruled that FMCSA's 2003 HOS rule "is arbitrary and capricious because the agency neglected to consider a statutorily mandated factor the impact of the rule on the health of drivers." The appeals court then ordered FMCSA to rewrite the rule.

Even so, many of the provisions in the revised HOS rule are the same as the 2003 rule. The 2003 rule increased truckers' maximum daily driving time from 10 to 11 hours, decreased the maximum daily shift from 15 to 14 hours and established a mandatory rest period of 10 hours per shift (up from 8 hours in the old rule.) All of those provisions carry over to the revised HOS rule.

Until 2003, truckers were permitted to drive no more than 10 consecutive hours before taking a break and drivers were barred from driving after they had worked 60 hours in the previous 7 days or 70 hours in the previous 8, depending on the company schedule.

According to an article on the Occupational Hazards web site, "more than 5,000 people are killed each year in large truck-related crashes and more than 110,000 are injured," Public Citizen President (and former head of the National Highway Transportation Safety Adminsitration) Joan Claybrook said. "That FMCSA chose in both rules to expand driving hours is astounding given its statutory mandate to make safety its highest priority and Congress's specific directive to the agency to reduce fatigue-related incidents."

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I have nothing against anyone with an impairment of vision or hearing.  I couldn't live in my house if I did.  But sometimes safety trumps equal opportunity. One of those circumstances is in the operation of 80,000 pound tractor trailers at 70 mph on public highways.  Recently we encountered a situation in which a truck driver who was blind in one eye failed to perceive in time  that a vehicle ahead of him was slowing to turn.  Binocular vision with depth perception might have helped.

The Federal Motor Carrier Safety Regulations, at 49  C.F.R.§ 391.41 (b)(10),  provides:

 “A person is physically qualified to drive a commercial motor vehicle if that person: Has a distant visual acuity of at least 20/40 (Snellen) in each eye with or without corrective lenses, or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses; and distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses; and field of vision of at least 70 degrees in the horizontal meridian in each eye . . . .”

The importance of binocular (two eyes) vision for depth perception was recognized long ago.  Here is an illustration by Leonardo da Vinci.


My bride for the past 23 years has monocular vision due to nerve damage from a brain tumor years ago. She is a wonderful person and a careful driver, but without normal depth perception it would not be safe for her to drive a tractor trailer on the highway.

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The MCS-90 is an endorsement on a trucking company's liability insurance policy, required by the Federal Motor Carrier Safety Regulations, which serves the function of a surety for safety of the public. Even if the the trucking company is not entitled to liability coverage due to some exception or exclusion in the insurance policy, an injured member of the public may recover under the MCS-90 endorsement and the insurance company may then seek reimbursement from the trucking company.



The purpose of the Federal Motor Carrier Act("FMCA"), and the regulations issued under the Act, especially the MCS-90, was to stem the unregulated use of vehicles in interstate commerce, which threatened public safety. Integral Insurance Company v. Lawrence Fulbright Trucking, 930 F.2d 258 (2d Cir.1991).  One of the "significant aims" of federal rules regulating motor carriers is to eliminate "attendant difficulties" of fixing financial responsibility for damage and injuries to members of the public. Transamerican Freight Lines v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 37, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975).  Accordingly, the MCS-90 should be construed and applied to protect members of the public injured by interstate motor carriers from uncompensated losses by mandating coverage where there would otherwise be no coverage).  American Alternative Ins. Co. v. Sentry Select Ins. Co., 176 F.Supp.2d 550 (E.D.Va., 2001).

"A motor carrier of property has a duty under federal law to guaranty its financial responsibility for injuries to the public.  Purchasing coverage under an MCS-90 endorsement is one way for a carrier to fulfill this duty." Harco National Insurance Company v. Bobac Trucking et al, 1995 WL 482330 at * 4 (N.D.Ca. 1995); Barbarula ex rel. Estate of He v. Canal Ins. Co., 353 F.Supp.2d 246 (D.Conn., 2004). The MCS-90 is not insurance coverage per se, but operates as a suretyship for the benefit of the public resting on top of the motor carrier’s liability policy.  See, e.g., Canal Ins. Co. v. Carolina Cas. Ins. Co., 59 F.3d 281, 283 (1st Cir. 1995); John Deere Ins. Co. v. Truckin’ U.S.A., 122 F.3d 270, 274 (5th Cir. 1997).  It does not create in the insurer a duty to defend, but only a duty to member of the public pay any judgment against the motor carrier resulting from negligence in operation, maintenance or use of motor vehicles even if not specifically listed on the policy.  See, e.g., Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 614 (5th Cir. 1989); Industrial indem. Co. v. Truax Trucklines, Inc., 45 F.3d 986, 991 (5th Cir. 1995); National Am. Ins. Co. v. Century State Carriers, Inc., 785 F.Supp. 793, 795 (N.D. Ind. 1992).

The MCS-90 is applicable to interstate motor carriers.  For intrastate carriers within Georgia a different law applies.  I will cover that in a separate posting.
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During the first half of the twentieth-century, interstate motor carriers attempted to immunize themselves from liability for negligent drivers by hiring inadequately insured, risky trucks and their drivers – like C&C and the Carnleys in this case.  The companies would classify the drivers who operated the trucks as "independent contractors," and disclaim any association when those uninsured trucks and drivers caused injury to the general public.  See, e.g., White v. Excalibur Insurance Company, 599 F.2d 50, 52 (5th Cir.1979); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 37 (Tex.App.-Fort Worth 2002).



To address this problem, Congress amended the Motor Common Carrier Act in 1956 to require that a motor carrier assume "full direction and control" of leased vehicles in order to prevent trucking companies from eluding liability by engaging in such evasive "independent contractor" relationships.  The federal and state filing requirements were designed to provide a minimal form of coverage for the general public when insolvent and uninsured actors injured them.  See White, 599 F.2d at 53 ("Congress wished to impose on lessee-carriers responsibility for the operation of leased vehicles 'as if they were the owners of such vehicles." ') (citing 49 U.S.C. § 304(e)(2), now codified at 49 U.S.C. § 11107(a)(4)).  "Because the carrier now has both a legal right and duty to control vehicles operated for its benefit, the employees of the vehicle-lessor are deemed statutory employees of the lessee-carrier to the extent necessary to insure the carrier's responsibility for the public safety just as if the lessee-carrier were the owner of the vehicles." Id. (citing Simmons v. King, 478 F.2d 857, 867 (5th Cir.1973)).

As a result of the regulatory authority granted in the Act, Federal Motor Carrier Safety Regulations require a certificated interstate carrier who leases equipment to enter into a written lease with the equipment owner providing that the carrier-lessee shall have exclusive possession, control, and use of the equipment, and shall assume complete responsibility for the operation of the equipment, for the duration of the lease. 49 C.F.R. §§ 376.11-.12.  This FMCSR was enacted to protect the public by providing it with financially responsible carriers, Indiana Refrigerator Lines, Inc. v. Dalton, 516 F.2d 795, 796 (6th Cir.1975), and by preventing a carrier from "evad[ing] its responsibility to the public by obtaining its trucks through leasing arrangements rather than ownership and employment of drivers."  Toomer v. United Resin Adhesives, Inc., 652 F.Supp. 219, 229 (N.D.Ill.,1986).

The FMCSR  requires a carrier lessee to execute a written lease, to clearly identify the vehicle as in the employ of the carrier, and to observe other formalities evidencing its control over the vehicle and its responsibility for its actions, including displaying the carrier's placard. 49 C.F.R. § 1057.11(a)-(d).  The majority of authorities concerning such cases involving the liability of carrier-lessees holds that when a carrier-lessee permits a lessor-driver to use its authority without compliance with  Federal Motor Carrier Safety regulations, it is responsible for injuries caused by the lessor-driver, even if the lessor-driver was embarked on an undertaking of his own while using the carrier-lessee's authority. Rodriguez v. Ager, 705 F.2d 1229 (10th Cir., 1983); Carolina Cas. Ins. Co. v. Insurance Co. of North America, 595 F.2d 128 (3rd Cir., 1979); Wellman v. Liberty Mut. Ins. Co., 496 F.2d 131 (8th Cir., 1974);  Rediehs Express, Inc. v. Maple, 491 N.E.2d 1006 (Ind.App.,1986); Kreider Truck Service, Inc. v. Augustine,  76 Ill.2d 535, 311 Ill.Dec. 802, 394 N.E.2d 1179 (1979); Cox v. Bond Transp., Inc., 53 N.J. 186, 249 A.2d 579 (1969).

Therefore, when a member of the public is injured by the negligence of the driver of leased commercial motor vehicle, under federal law the  motor carrier bears responsibility to the injured person for the negligence of the commercial motor vehicle driver. Dove v. National Freight, Inc., 138 Ga.App. 114, 225 S.E.2d 477 (Ga.App. 1976); Judy v. Tri-State Motor Transit Co., 844 F.2d 1496, 1051 (11th Cir. 1988); Radman v. Jones Motor Co., Inc., 914 F.Supp. 1193, 1198 (W.D.Pa. 1996).  The Motor Carrier Act creates “an irrebuttable statutory employment relationship between [a] driver and the carrier-lessee.” Holliday v. Epperson, No. 1:02-CV-1030-T, 2003 WL 2340746, at *3 (W.D.Tenn. Aug.26, 2003); Gilstorff v. Top Line Express, Inc., No. 96-3081, 1997 WL 14378, at *2 n. 6 (6th Cir. Jan.14, 1997) (suggesting that the Sixth Circuit adopts this interpretation of ICC regulations); Wyckoff Trucking, Inc. v. Marsh Brothers Trucking Service, 58 Ohio St.3d 261, 569 N.E.2d 1049, 1053 (Ohio 1991) (adopting the “doctrine of statutory employment” and holding that “if the driver is negligent, the carrier-lessee is liable as a matter of law for accidents that occur while a lease is still in effect???”).  See also Baker v. Roberts Express, Inc., 800 F.Supp. 1571, 1574 (S.D.Ohio 1992) (adopting the Ohio Supreme Court's interpretation of ICC regulations in Wyckoff Trucking ). 

Federal Motor Carrier Safety Regulations preempt conflicting state laws, including “independent contractor” laws.  “Th[e] Constitution, and the Laws of the United States which shall be made in Pursuance thereof ..., shall be the supreme Law of the Land....” U.S. Const. art. VI, cl. 2.  “Federal regulations have no less pre-emptive effect than federal statutes.” Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982).  See also Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985)("state laws can be preempted by federal regulations as well as by federal statutes").  A state law that sets a lower standard for protection of public safety than one expressed or implied by the FMCSR is preempted. Cf.,  Yellow Freight System, Inc. v. Amestoy, 736 F.Supp. 44 (D.Vt., 1990), federal regulations requiring the trucking company to bear financial responsibility for operation of trucks under their authority preempt contradictory state laws of agency.  See, e.g., Empire Fire and Marine Insurance Co. v. Truck Insurance Exchange, 462 So. 2d 76 (Fla. App. 1985); A.C. v. Roadrunner Trucking, Inc, 1993 U.S. Dist. LEXIS 7251 (C.D.Utah 1993); Conlee v. George Transfer, Inc., 1995 Me. Super. LEXIS 206 (1995); Price v. Westmoreland, 727 F.2d 494 (5th Cir., 1984); Proctor v. Colonial Refrigerated Transportation, Inc., 494 F.2d 89 (1974); Simmons v. King, 478 F.2d 857, 867 (5th Cir. 1973); see also, Wellman v. Liberty Mut. Ins. Co., 496 F.2d 131, 136 (8th Cir. 1974); Mellon Nat'l Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473, 477 (3rd Cir. 1961). Therefore state laws and court decisions on independent contractor status, decided without reference to the federal Motor Carrier Act or Federal Motor Carrier Safety Regulations are inapplicable.  See., e.g., Montgomery Trucking Co., Inc. v. Black, 231 Ga. 211, 200 S.E.2d 882 (Ga. Oct 05, 1973); Dove v. National Freight, Inc., 138 Ga.App. 114, 225 S.E.2d 477 (Ga.App. Mar 01, 1976); Flowers v. U. S. S. Agri-Chemicals, 139 Ga.App. 430, 228 S.E.2d 392 (1976).

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I have written several times this year about proposals for toll lanes for trucks on metro Atlanta interstate highways.  An article this week shows another reason why this may become a necessity.

The Georgia Department of Transportation expects to spend $160 billion on road construction projects between 2005 and 2035. But revenues from the motor fuel tax that funds road improvement are projected to bring in only $86 billion during the same period. That leaves a $74 billion funding gap.  In addition, federal funding for highway construction has declined sharply in real terms because the federal motor fuel tax is set at 18.4 cents per gallon and is not indexed to inflation, Studstill told the more than 300-hundred attendees at the event. “This shortfall could result in a complete drawdown of the Federal Highway Trust Fund in 2009,” Studstill said. If this occurred, federal highway funds would be exhausted in three years. That leaves a $74 billion funding gap for Georgia roads.

At the same time, increasing road construction costs, population growth and more truck traffic through the state and from the booming port of Savannah increasing pressure on Georgia’s roads.

Three fiscal solutions have been proposed.  One is project-specific Special Purpose Local Option Sales Tax, or SPLOST, on a statewide or regional basis. Another is a statewide 1% sales tax  to replace the fuel tax.  The official estimate is that this would generate $1.5 billion per year, compared with $850 million from the fuel tax.

The third approach would involve public-private partnerships such as toll roads. Georgia law allows GDOT to partner with private or corporate businesses to help finance, design, construct, operate and/or maintain transportation projects. Four are under now consideration in Georgia.

There is also the possibility of rail or other transit relieving commuter pressure on metro Atlanta expressways, while we add another 2 million or more people in the next 25 years. Transit makes good sense in densely populated areas, and the area inside I-285 is rapidly becoming a much more densely packed urban environment.

As with moth things, there are no easy answers.  The tough choices are seldom if ever between good and bad, but between good and good, and between bad and bad.  My hunch is that the federal, state and local government officials will incrementally cobble together some imperfect combination of all these approaches, but we will stay perpetually behind the growth curve until something -- either good (e.g., fantastic new energy technology, etc. spurring stronger economic growth)  or bad (environmental, demographic and/or economic collapse)  -- causes a dramatic discontinuity in our current patterns.

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In 1953, the United States Supreme Court described motor carriers' use of independent owner-operators who lacked adequate insurance in order to avoid financial responsibility to injured members of the public as "evils that had grown up" in the industry. American Trucking Ass'ns v. United States, 344 U.S. 298, 301 (1953). 

More recently, one court described the position taken by a motor carrier  by incredulously stating the "suggestion that it could lawfully engage in the transportation . . . without regulation by the Surface Transportation Board is just plain wrong."   Serna v. Pettey Leach Trucking, Inc., 2 Cal. Rptr. 3d 835, 845 (Cal. Ct. App. 2003). 

Another court declared that "[s]uch an application would not advance the public policy goals of the Motor Carrier Act in protecting the general public, and it would also defy common sense." Royal Indem. Co. v. Jacobsen, 863 F.Supp. 1537 (D. Utah 1994).

(Continued below)
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An article in today's Dallas Morning News explains the obvious: "Trucking companies sometimes go to extraordinary lengths to avoid admitting fault in fatal accidents. They purge onboard computers, falsify records and destroy documents that federal law requires them to keep."

We've seen it too often. 


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Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the "Super Lawyers" listings violate professional responsibility rules against ads that compare lawyers’ services or create an "unjustified expectation about results."  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the "Super Lawyers" issue of Atlanta Magazine, "Legal Elite" issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer’s services with other lawyers’ services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."

The "Super Lawyers," "Legal Elite," and "Preeminent Lawyers" lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.
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On July 31, President Bush announced his intention to nominate Susan Dudley as Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget. Through an obscure executive order which has never been authorized by Congress, all federal regulations deemed economically or otherwise significant, as determined by OIRA, require the approval of the agency’s administrator. Ms. Dudley has for several years directed the Regulatory Studies Program of the Mercatus Center at George Mason University, where she has been a leading critic of most government regulations.  As political theory, that position is fairly winsome to those of us who are temperamentally conservative.  Where the rubber meets the road, however, public safety may be adversely affected.  In the context of trucking safety, Ms. Dudley wrote in a report to Congress criticizing the revision of hours of service rules as follows: "The focus of this rule on reducing driver fatigue is not based on reliable evidence that fatigue is a significant contributor to fatal accidents."  She went on to make some other, more reasonable observations about the fallibility of the proposed rule.  However, the thrust of her opinion appeared to be that fatigue doesn't cause fatal wrecks, so truck drivers' hours of service should not be regulated.

For those of us who deal with the carnage caused by truckers who illegally try to drive 20 hours per day, that seems patently absurd.  As a practical matter you have to have some rules to protect public safety, protect all truckers from unreasonable demands of employers to drive unsafe hours, and to protect responsible truckers from unfair competition from those who would push on hours beyond the point of impairment due to fatigue.
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The Large Truck Crash Causation Study announced by U.S. Federal Motor Carrier Safety Administration this past spring is now available to the public. LTCCS is the first-ever national study to attempt to determine the critical events and associated factors that contribute to serious large truck crashes allowing the DOT and others to implement effective countermeasures to reduce the occurrence and severity of these crashes.  A few key points are:

• Severity.  23.1% of large truck collisions involved a fatality, and 28.7% caused an incapacitating injury.
• Tractor-trailers predominant.  62.2% of large truck collsions involved tractor-trailer combinations.
• Types of contact:  23.1% of large truck crashes involved rear end collisions, 17.8% invovled trucks off the road or out of lane, and 10.3% involved sideswipe collisions.
• Types of critical errors attributed to truckers: Of crashes where the trucker was determined at fault, 32.1% were off the road or out of lane, 28.6% lost control (too fast for conditions, etc.), 21.7% involved contact with another motor vehicle in the travel lane, and 10.3% involved turning or crossing an intersection.

It's a long report. I encourage you to read it.
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In my native state of Alabama, two areas of trucking safety are making news.

First, recurring problems with heavy steel coils coming loose and dropping onto highways pose threats to both public safety and damage to roads. The Birmingham News reports that "Steel coils weighing tens of thousands of pounds falling off trucks with enough force to punch holes in interstate bridges have become an all too common occurrence in the Birmingham area."   Over the past three years, eight trucks have spilled heavy steel coils on Birmingham interstates. While no  one has been killed, and there's been only one serious injury, the threat is a disaster waiting to happen.  Moreover,  falling coils have knocked holes in interstate bridges, causing road repair costs of $200,000 to $300,000 each time.  Industry officials and Alabama legislators have called for action to step up penalties for truckers and companies that lose these loads.  Let's hope they get it done before a steel coil lands on a family car and wipes out a family, perhaps something will be done.

Second, Alabama has only one permanent weigh station and inadequate mobile truck inspection teams.  According to the Decatur Daily newspaper, "large trucks often travel undetected with faulty or improper equipment because Alabama has few facilities and staff to catch the violators.  The state has one permanent inspection station on Interstate 20 near Heflin and 15 mobile stations that travel as needed. DOT maintains weight equipment designed to stop overweight trucks that damage roads while state troopers with the Alabama Department of Public Safety conduct the inspections.   The Alabama DOT director said that weigh stations cost about $10 million to get up and running. "Which program do I not do in the meanwhile to make that happen?"  Alabamians compare their state to Mississippi on many fronts. Mississippi had 22 permanent inspection stations last year; while  Alabama had one. Alabama made about 1 million truck inspections; while Mississippi did more than 8 million.  In addition, Alabama's enforcers say a shortage of state troopers makes enforcement difficult. Trucking experts say the visible presence of a trooper causes motorists to drive safer.

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No statistics are available, but I'm beginning to suspect that the new hours of service rules adopted by the Federal Motor Carrier Safety Administration may be helping to reduce the incidence of fatigue related truck crashes.  This is just an impressionistic hunch and extremely preliminary, but there may be a trend.

For nearly a year and a half, I have had news feeds on Google and Yahoo to provide material about tractor trailer crashes for the "Truck Wreck of the Day" feature on this blog.  A year ago there were frequent news stories about dramatic and devastating truck wrecks that appeared to a fit a pattern consistent with driver fatigue.  I still see some, a lot of which involve injury to the truck driver only.  However, the overall impression in seeing the news stories stream through is that there appear to be fewer wrecks fitting that pattern.

And, as I drive the interstates, I see rows of trucks lined up for the drivers to take their mandatory rests breaks.

Could it be that the  new hours of service rules, which have been subjected to much criticism from drivers and safety advocates, are actually doing some good?  The jury is still out. Continue Reading Questions & comments 0

Washington State Patrol troopers say that a recent rash of intoxicated truck drivers hauling heavy loads down Washington highways has them stepping up efforts to get impaired truckers off the road. One truck driver was hauling a 140,000 pound load (limit is 80,000 pounds) and hisbreath test registered over .08 , which is more than double the legal limit for truckers. Another trucker had a small operational meth lab in the back of his cab.

49 CFR 392.3 provides that: "No driver shall operate a motor vehicle, and a commercial motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. However, in a case of grave emergency where the hazard to occupants of the commercial motor vehicle or other users of the highway would be increased by compliance with this section, the driver may continue to operate the commercial motor vehicle to the nearest place at which that hazard is removed. "

49 CFR 392.5 requires: "(a) No driver shall--(a)(1) Use alcohol, as defined in 382.107 of this subchapter, or be under the influence of alcohol, within 4 hours before going on duty or operating, or having physical control of, a commercial motor vehicle...."

49 CFR 391.15 provides that, "A truck driver is automatically disqualified if caught driving under the influence of alcohol or drugs, with a blood alcohol score of 0.04 gr/%, and cannot consume any alcohol within four hours before driving."

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The U. S.  House Appropriations Committee has directed the Federal Motor Carrier Safety Administration to report by March 1, 2007, on how it will revise the compliance review process to improve detection of motor carriers with poor safety practices and shut them down. The request was included in the committee report (House Report 109-495) accompanying the transportation funding bill (H.R. 5576) for the coming fiscal year.

The committee report expressed concern that the "FMCSA’s entire safety fitness regime operates too leniently with criteria that do not result frequently enough in dangerous, unsafe motor carriers being shut down or drivers having their licenses revoked, and that FMCSA’s compliance review standards actually allow unsafe motor carriers to continue to operate.”

The committee also urged FMCSA to expedite its revisions to the entry-level truck driver training rule that a federal appeals court ruled to be inadequate earlier this year. The agency should “carefully consider the obvious benefits of a comprehensive training requirement that includes on-street, behind-the-wheel skills training for entry-level truck drivers,” the committee said.

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The Georgia DOT is consideirng a proposal for a private consortium to add toll lanes for trucks to portions of I-285 and I-20 in metro Atlanta.   The proposal would have the investment banking firm Goldman Sachs, the engineering firm PBS&J and the law firm McGuire Woods to help develop and finance a possible expansion of I-285 and I-20.   These private truck lanes would be completed by 2014, around the same time as the I-75 project that just went under contract and has truck lanes.  The propsoal would affect I-285's western quadrant and  I-20 to Thornton Road.

It is a creative, intriguing possibility for separating truck and passenger traffic on the state's most congested roadways where we have seen numerous catastrophic crashes.


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According to the Federal Motor Carrier Safety Admininistration, in 2004, 248 people died in accidents involving large trucks in Georgia. Driver fatigue is a major cause of those wrecks, but there are insufficient safe spaces along the highways for tractor trailer drivers to pull over to sleep. The Georgia D.O.T. allows truckers to park in rest areas and off ramps to catch up on much needed rest, however, truckers say that's not always a possiblitity.

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A recent decision in the U.S. District Court for the Southern District of Illinois uses the Regulatory Guidance to the Federal Motor Carrier Safety Regulations for a construction of the Regs supporting punitive damages. See Trotter v. B & W Cartage Co., Inc., 2006 WL 1004882 (S.D.Ill.,2006).

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I occasionally receive emails from truck drivers who point out that my posts are too hard on members of their profession. To be fair, I recognize that truck drivers work hard under difficult conditions, and most truck drivers are conscientious about safety. I represent some truck drivers too, and recognize that reckless conduct is far from universal. As in my profession, it is the renegades who give the good ones a bad name.

This weekend I ran across an insightful article analyziing the causes for the shortage of qualified truck drivers. Currently there are 1.3 million long-haul drivers, 20,000 short of current demand. Over half of drivers on the road are between 35 and 54 years old. Some trucking firms are reporting driver turnover rates of 100% or more.

One big reason for the driver shortage is poor pay and the lifestyle. Long-haul trucking leaves little time for a quality family life because drivers are away for long periods of time and have non-routine schedules. For many the pay is not enough to support a desired standard of living.

Approaches to meeting the demand for more drivers include improving quality of life by scheduling drivers for more time at home, recruiting women, minorities, older and younger drivers, and improving the process of loading and unloading.

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We reported recently on a suit filed by Citizens for Reliable and Safe Highways, Parents Against Tired Truckers and Advocates for Highway and Auto Safety, and later the International Brotherhood of Teamsters, challenging the current FMCSA hours of service regulation. The rule allows truckers to drive 11 consecutive hours before taking a mandatory 10-hour off-duty break. Before 2004, drivers were allowed to drive 10 hours, but the agency upped the total number of driving hours while increasing the required rest period. Also disputed by the safety groups: the lack of a mandate for electronic onboard recorders and an alleged lack of consideration for drivers' health.

Now the American Truckers Association has filed a motion to intervene on behalf of the Federal Motor Carrier Safety Administration. The ATA claims that the rule advances public safety while meeting the operational needs of the trucking industry.

The Owner-Operator Independent Drivers Association also is challenging the 14-hour on-duty provision, which limits work to 14 hours once on duty, unless the trucker takes a long enough break.

The Truckload Carriers Association, the Ohio Trucking Association and the California Trucking Association have filed documents supporting the challenge.

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Kyoto, Japan, 3/6/06.
The Japanese have found an effective deterrent to trucking companies pushing drivers to drive even when severely fatigued. Police arrested the head of a trucking company and one of his deputies Monday on suspicion of ordering an overworked tanker truck driver to continue driving prior to a fatal road accident on Feb. 13 for which the driver was alleged to be responsible.

That won't add to compensation for the victim's family, but I bet some trucking company CEO's will sit up and take notice. If that were done in the US, we might see a reduction in the fatality and injury rates involving truck wrecks.

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U.S. DOT Secretary Mineta has appointed five doctors to serve on the new Federal Motor Carrier Safety Administration's (FMCSA's) Medical Review Board. FMCSA is planning updates to physical qualification regulations of commercial motor vehicle (CMV) drivers. The board is supposed to provide science-based guidance to establish realistic and responsible medical standards. Criteria for appointment includes medical expertise in a medical specialty, an understanding of research methods, knowledge of transportation medical issues, experience on panels that develop medical standards, a record of scientific collaboration, professional service, and experience developing teaching programs. Areas of expertise included are neurology, orthopedics, toxicology, occupational health, and preventive medicine.

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A coalition of organizations has filed suit challenging the Hours of Services rules adopted by the Federal Motor Carrier Safety Administration in 2005. Like the nearly identical rule issued by FMCSA in April 2003, which the court struck down in 2004, the 2005 rule dramatically increases both the number of hours that truckers may drive without a break and the number of hours truckers may drive per week. Before 2003, truckers were permitted to drive no more than 10 consecutive hours before taking a break. Now, truckers can drive for 11 hours straight. Before 2003, drivers were barred from driving after they had worked 60 hours in the previous seven days or 70 hours in the previous eight, depending on the company schedule. Under the new rule, truckers can now drive 77 hours in seven days or 88 hours in eight days - a more than 25 percent increase. On-duty hours during which truckers may drive have also climbed, so that a driver working 14-hour shifts under the new rules can now work as many as 84 hours in seven days or 98 hours in eight days - a 40 percent increase over the old limits. Further, the 2005 rule, like the 2003 rule, fails to require electronic onboard recorders, which would provide reliable data on how many hours truckers drive and permit effective enforcement of the rule. Cheating on paper logbooks is common. In 2004, after the new rules were first adopted, the number of large trucks involved in fatal truck crashes climbed by 4 percent, from 4,669 to 4,862, with deaths mounting from 5,036 to 5,190, according to statistics compiled by the National Highway Traffic Safety Administration (NHTSA). In 2004, 761 truck occupants were killed, again up from 2003, according to NHTSA data. Trucking remains one of the nation's most dangerous professions, according to the Bureau of Labor Statistics. The suit was filed by Public Citizen, Citizens for Reliable and Safe Highways (CRASH), Parents Against Tired Truckers (PATT), Advocates for Highway and Auto Safety, and the International Brotherhood of Teamsters.

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A study of truck crashes conducted by the U.S. National Transportation Safety Board found that 31% of fatal-to-the-driver commercial truck crashes were caused by driver fatigue. That problem is worldwide.

New studies in Canada, Australia and South Africa report a significant percentage of long-haul truck drivers average 4 hours sleep our of 24. (13% in Canada, 1/3 in South Africa). It is widely accepted that both fatigue and sleep deprivation are major contributors to truck accidents. A study published in the South African Journal of Science reports that falling asleep at the wheel contributed to a quarter or more road accidents involving heavy vehicles. Truckers reported working well in excess of the lawful hours which were poorly enforced. These restrictions cannot be enforced and drivers are under pressure to supplement their income and to meet company expectations.

For those drivers who do manage to get some sleep in their truck, the South African study reported that their sleep was interrupted mostly by noise as well as light, outside activity and extremes of heat or cold. Nearly 80% of drivers surveyed complained of interrupted sleep; in this case poor sleep is associated with up to 62% of incidents where drivers nodded off at the wheel, increasing the risk of causing a road accident. Sleep apnea and other sleep disorders were associated with two-fold increase in sleep-related road accidents compared with drivers without sleep disorders. Drivers who snore or show signs indicative of sleep apnoea are also more likely to be overweight. Obese drivers who snore or experience excessive daytime sleepiness fall asleep at the wheel more often and are twice as likely to have an accident compared to those who do not snore. Almost all the drivers interviewed stated that they started driving between 1 am and 8 am, a period when melatonin levels are high and the stimulus for sleep is also high.

A Canadian study of truckers' sleep patterns reported that drivers slept an average of only 4.78 hours--2 or more hours less than their reported ideal amount of sleep. Schedules had a "significant effect" on how long drivers slept in a given period. On average, daytime drivers slept for longer periods than night drivers (5.38 hours vs. 3.83 hours). The average 4.78 hours of sleep from the study was "much shorter than most standards." Sleep research shows the chances of falling asleep during normal waking hours increase if a person sleeps less than six hours and has "successive days" of too little sleep. Not enough sleep leads to more errors and inattentiveness and diminished psychomotor skills. Research also shows that "night driving after relatively little sleep is a better predictor of fatigue-related accidents than is night driving alone."

The South African and Canadian studies is consistent with what we see here too often. A couple of weeks I took a deposition of a truck driver in Ohio who wound up admitting that he had gotten only 4 hours sleep in the last 24, that he had grossly violated the hours of service regulations, that his logs were completely falsified, etc. He stopped just short of admitting that he was asleep on cruise control when he ran over a family in Georgia and killed their kid. More often the truck drivers deny everything, even if their logs cannot be found and they "can't remember" if they had stopped for rest.

And it's not just innocent travelers on the road who are hurt. Frequently I see news reports of truck drivers who were killed when they inexplicably ran off the highway and crashed in the early morning hours.

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A U.S. District Court judge in Colorado has ruled that violation of the FMCSR driver log rule is negligence of a matter of law, but that the plaintiff must present evidence of a causal relationship between the violation and the wreck. In Hill v. Western Door, 2005 WL 2991589 (D.Colo.,2005), the court ruled:

[T]he requirement that drivers keep an accurate log of their duty status is related to the safety of other travelers on the road. Drivers are required to record their duty status so compliance with the limitations on hours of service contained in Part 395 can be monitored and enforced. FMCSR 395.3 and 305.5 provide specific limitations on the number or hours a commercial vehicle operator can be driving during certain periods of time. Although the regulations do not explicitly declare their purpose, the tie between safety and fatigue is clear. Safety undoubtedly is one of the key purposes of the limitations on hours of service in Part 395, and of the record keeping requirement of FMCSR 395.8. I find that this regulation was intended to promote the safe operation of commercial vehicles, including the safety of people, like the plaintiffs, who share the road with commercial vehicles. Although FMCSR 395.8 also might have been designed to aid the management and organization of commercial vehicles, as the defendants argue, the connection between safety and limitations on driving times is so clear that I cannot disregard that purpose. A tired driver has the same potential to jeopardize the safety of others on the road as does a truck stopped on the highway.

Then, unfortunately, the court found that in the absence of evidence in the record to show a causal connection between the log violation and the wreck, summary judgment was granted on the log book violation portion of the claim.

Hill v. Western Door should be read in conjunction with Came v. Micou, 2005 WL 1500978 (M.D.Pa.,2005), in which the plaintiff presented evidence of causation through two expert reports -- one an expert on trucking safety and the other an expert on driver fatigue issues -- to the effect that the violations were the precipitating factors leading to the collision.

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Washington, 12/2/05.

The Federal Motor Carrier Safety Administration's regulations governing minimum standards for entry-level truck driver training are inadequate based on the record developed during the rulemaking process, a federal appeals court ruled today.

The minimum requirements adopted last May by the Federal Motor Carrier Safety Administration involve only classroom education and in only four areas: medical qualification and drug and alcohol testing; hours-of-service regulations; wellness; and whistleblower protection.

The court said: "The (FMCSR staff's) Adequacy Report determined that effective training for CMV drivers required practical, on-the-road instruction on how to operate a heavy vehicle. But FMCSA ignored this evidence and opted for a program that focuses on areas unrelated to the practical demands of operating a commercial motor vehicle."

The appeals court agreed with Advocates that the sharp contrast between FMCSA's earlier conclusions and the terms of the final rule shows the agency's actions to be "arbitrary and capricious" and in violation of the Administrative Procedure Act. "The agency, without coherent explanation, has promulgated a rule that is so at odds with the record assembled by DOT that the action cannot stand. Accordingly, we grant the petitions for review and remand the final rule to the agency for further rulemaking consistent with this opinion."

It does seem incredible that the FMCSA would adopt truck driver minimum training standards that do not include having to actually drive a truck on the highway. But, hey, new lawyers have been admitted to practice law for generations without ever actually trying a case or counseling a client.

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The Administrator of the Federal Motor Carrier Safety Administration (FMCSA), outlined a new effort on the part of the agency to concentrate more on truck driver-related issues.

As part of this shift of emphasis, FMCSA plans to start work on the following in 2006:

Development of a Commercial Driver's License (CDL) learner's permit with a single federal standard.

Inclusion of the driver medical certificate with the CDL.

Tougher medical examiner standards in order to screen out drivers involved in accidents who should never have been put behind the wheel.

Increase research on driver fatigue factors and especially focus on the physical problems associated with sleep apnea and problems exacerbated by a poor diet and lack of exercise.

Wireless roadside inspection technology that would allow federal safety inspectors to "plug into" trucks so they can get a quick read on vehicle issues.

Expansion of FMCSA's TACT [Targeting Aggressive Cars and Trucks] program that puts state troopers in commercial trucks to write citations for aggressive behavior they see on the part of both cars and truckers.

See Fleetowner article.

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The US Federal Motor Carrier Safety Administration last month reaffirmed a change made in January 2004, allowing drivers to work 11 hours a day, up from the 10-hour limit that had applied for 60 years.

Researchers at Pennsylvania State University analysed data from three national trucking companies for 12 months after the change and found drivers were three times more likely to crash in the 11th hour than in the first. For the first six hours of driving, the risk of crashing remained relatively low, rising steadily over the next two hours and peaking in the 9th, 10th and 11th hours.

The pattern of increased crash risk associated with the number of hours driven that the Penn State team observed is contrary to the results of field studies conducted by others in the 1990s. However, the pattern is consistent with more recent Penn State observational studies. For example, using data on an estimated 16 million vehicle miles of actual long haul truck travel by professional drivers collected during 1984 and 1985, the Penn State researchers found recently that the 10th hour of driving had a crash risk 2.1 times the first hour of driving. Those results were reported at the Transportation Research Board annual meeting in Washington, D. C. last year and are scheduled to be published in a forthcoming issue of the Journal of the Transportation Research Board.

The findings, using data from 2004 and from the 1980s, establish a consistent pattern of increased crash risk with hours driving, particularly in the 9th, 10th and 11th hours.

See report.

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Trucking is essential to the national economy. Virtually every product sold is transported by truck. But with its economic importance comes accountability, as trucking is also a major highway safety hazard.

Truck drivers, overworked and underpaid, are the heroes of country music ballads. Popular culture holds them up as rough-hewn "knights of the road," and many are. However, many are the overworked serfs of the road, and as with any occupation - including lawyers - a small percentage are rogues of the road. With the trucking industry facing both a shortage of qualified drivers and mounting fuel prices, the problems of trucking safety may increase over the next few years.

As a hub of transportation in the Southeast, Georgia ranks among the top five states in the nation in the number of fatalities due to crashes of large trucks, ranking just behind California, Texas and Florida. In 2004, the most recent year for which data are available, there were 233 fatalities in large truck crashes in Georgia, accounting for 14.25 percent of the 1,634 traffic fatalities in our state. The Georgia experience is fairly typical. In the same year, one out of nine traffic fatalities in the United States involved large trucks, as 457,000 large trucks were involved in traffic crashes in the United States and 4,669 were involved in fatal crashes. A total of 4,986 people died (12 percent of all the traffic fatalities) and an additional 122,000 were injured. Certainly many of these were not the fault of truckers or trucking companies, but many were.

Any lawyer who assumes that a large truck wreck is just a bigger car wreck is dangerously naive. Investigation, discovery, technology and law involved in the crashes of large commercial trucks are substantially different from other motor vehicle accident cases. Counsel must be familiar with a national body of trucking law based primarily on the Federal Motor Carrier Safety Regulations, technology in the trucking industry, trucking insurance coverage issues, multistate discovery practice, and other aspects of investigation and discovery peculiar to trucking litigation. Lawyers who are not prepared to invest the time required to master the intricacies involved should consider the ethical duty to associate other counsel.

The danger of large trucks on the highways was recognized in the enactment of the Motor Carrier Act in 1935, creating the Interstate Commerce Commission which in turn developed the Federal Motor Carrier Safety Regulations (FMCSR), which are designed to protect public safety. The purpose of the FMCSR is to "help reduce or prevent truck and bus accidents, fatalities, and injuries by requiring drivers to have a single commercial motor vehicle driver's license and by disqualifying drivers who operate commercial motor vehicles in an unsafe manner."

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The Federal Motor Carrier Safety Regulations apply to commercial motor vehicles, which are defined as any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle: (1) has a gross vehicle weight of 10,001 pounds or more, whichever is greater; or (2) is designed or used to transport more than 8 passengers, including the driver, for compensation; or (3) is designed or used to transport more than 15 passengers, including the driver, whether or not it is used to transport passengers for compensation; or (4) is used in transporting material classified as hazardous. "Interstate commerce" is defined as trade, traffic or transportation across a State line, including international boundaries, or wholly within one State as part of a through movement that originates or terminates in another State or country. "Intrastate commerce" is any trade, traffic or transportation in any State that is not described in the term "interstate commerce." 49 C.F.R. § 390.3.

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The Federal Motor Carrier Safety Regulations include a provision for waiver of rules in emergency situations. Some are concerned, however, that the waiver of safety rules may be too broad and may be used as a pretext for long-term weaking of rules designed to protect the public safety.

In the weeks after Hurricane Katrina ravaged the Gulf Coast, two declarations of emergency and one other White House emergency-related proclamation have weakened rules for truckers and motor carriers, effectively waiving most FMCSA safety regulations in order to respond to the "emergency" situations, however loosely defined. The result in all three cases is the waiver of qualifications for drivers, safety requirements for carrier parts and accessories, hours of service requirements for drivers, inspection, repair and maintenance standards for vehicles, requirements for the transportation of hazardous materials, as well as employee safety and health standards.

The regional declaration of emergency issued by FMCSA, which went into effect Aug. 31, waives safety regulations for the "emergency transportation of gasoline, diesel, jet fuel, natural gas/CNG, propane and ethanol." The original declaration of regional emergency expired on Sept. 15; however, FMCSA has extended the waiver of safety regulations through Oct. 5 for transportation to, from, and within the states in the eastern (CT, DC, DE, MD, MA, NH, ME, NJ, NY, RI, VT, PA, VA, WV) and southern (AL, AR, FL, GA, KY, LA, MS, NM, NC, OK, SC, TN, TX) regions of the country.

The White House's authorization of emergency relief in support of evacuees in Arizona, Colorado, Georgia, North Carolina, Oregon, Tennessee, Utah, Virginia, and West Virginia automatically triggered the waiver of safety regulations for the "emergency movement to, from, or within those States of items needed to house, feed, or clothe evacuees."

The White House's declaration of emergency for the states of Alabama, Arkansas, Florida, Louisiana, Mississippi, and Texas resulted in a waiver of safety regulations for truckers delivering "direct emergency relief to, from, or within" those states, "regardless of commodity carried." This waiver went into effect Aug. 29.

The waivers are quite broad, despite not affecting the requirements for commercial drivers licenses or state regulations of vehicle weight. For example, FMCSA will allow drivers to assist the Gulf Coast efforts who are not otherwise qualified to drive, and trucks delivering fuel in most parts of the country will not have to meet standard levels of maintenance and service. Further, the declaration waives the hours of service regulations, which limit the number of consecutive hours a truck driver can work without taking a break. Under FMCSA regulations that operate during declarations of emergency, a driver must receive ten hours of off-duty rest if he or she requests it, but companies do not otherwise have to comply with hours-of-service regulations. Though a temporary waiver may have been necessary to help evacuate the area or to provide immediate assistance, now that the areas hit by the storm have been fully evacuated, waiving these important regulations puts truck drivers as well as others on the road needlessly at risk.

See OMB Watch.

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It's one thing for a plaintiff's lawyer to say the new hours of service rule for commercial truck drivers is a threat to highway safety. But now the American Insurance Association (AIA) is saying the same thing.

The AIA has expressed extreme disappointment that the Federal Motor Carrier Safety Administration has approved rules that would allow commercial truckers to drive more with less rest, thus increasing the risks to others who use the nation's roads.

"A major contributing factor to truck crashes is fatigue," said David Snyder, AIA vice president and assistant general counsel. "While the new Federal Motor Carrier Safety Administration (FMCSA) hours of service rule only would specifically apply to commercial drivers, it potentially affects everyone else on the road."

The new FMCSA rule - set to take effect Oct. 1 - would increase maximum time behind the wheel from the current limit of 10 hours to 11 hours, "wholly disregarding scientific research that clearly shows an increased crash risk associated with longer driving hours," Snyder noted. "Sadly, this replicates part of a flawed approach to regulation that was struck down by a federal court when FMCSA originally proposed it in 2003."

According to the Insurance Institute for Highway Safety:

* 5,000 people die each year in crashes involving large trucks, of which approximately 85 percent are not truck occupants;
* In fatal two-vehicle crashes involving passenger vehicles and large trucks, 98 percent of the deaths are people in the passenger vehicles; and
* Large trucks accounted for 3 percent of registered vehicles and 7 percent of vehicle miles traveled in 2003, but were involved in 11 percent of all motor vehicle crash deaths.

"Clearly, when truck drivers are drowsy, they are more crash-prone; and just as clearly, it is usually not the trucker who is injured or killed when two vehicles are involved. This new rule runs counter to the FMCSA's mission to put safety first," stated Melissa Shelk, AIA vice president, federal affairs. "The court was right to toss it out and Congress was right when they specifically rejected its inclusion in the recently enacted federal highway reauthorization bill."

Snyder added that these same rules would apply to Mexican and Canadian drivers, which "raises additional enforcement and safety concerns, because a firm knowledge of how many hours were driven before entering theU.S.is virtually impossible to obtain."

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Courts often have been reluctant to allow claims for punitive damages for what some judges have perceived as mere technical violations of hours of service, log book requirements, and other Federal Motor Carrier Safety Regulations. See, e.g., Pittman v. Clay, 2001 WL 1352914 (E.D.Pa.,2001).

However, a recent case illustrates how to lay the foundation for using FMCSR violations to support a claim for punitive damages. In Came v. Micou, 2005 WL 1500978 (M.D.Pa.,2005), the plaintiff overcame summary judgment on a claim for punitive damages based on the following parts of the Regulations: (1) operating the Decker rig in violation of the hours of service regulations pursuant to 49 C.F.R. 395.3; (2) operating the Decker rig when he was too tired to do so safely in violation of 49 C.F.R. 392.3; and(3) failing to properly record his duty status in violation of 49 C.F.R. 395.8.

Significantly, the truck driver testified that he was aware that the hours of service regulations were in place to prevent drivers from falling asleep behind the wheel and causing death or serious injuries.

The plaintiff introduced two expert reports to the effect that the violatoins werethe precipitating factors leading to the collision at issue. First was a report from a trucking regulation expert detailing how (1) that the truck driver had been on duty for at least 75.5 hours in the eight days prior to and including the day of the collision in violation of 49 C.F.R. 395.3(b)(2) and that the company should have been aware that the driver's hours of service had exceeded legal limits; (2) that the truck driver was driving in a state of low mental arousal or fatigue at the time of the collision in violation of 49 C.F.R. 392.3; (3) that the truck driver falsified his time logs in violations of 49 C.F.R. 395.8; (4) that the trucking company failed to have an effective procedure in place to verify drivers' hours of service and that the company's flawed log auditing system allowed drivers to exceed hours of service limitations; (5) that the driver's conduct while employed at the company was outrageous as he knew the hours of service regulations were in place to prevent fatigued drivers from operating large and heavy commercial motor vehicles; and (6) that the company's policy, procedures and actions were outrageous in that their management and employees knew the hours of service regulations were in place to protect the safety of the monitoring public and knew hours of service was a problem in their operations.

Second, there was a report from a fatigue expert who concluded that the driver momentarily fell asleep with a microsleep (sleep lapse) just prior to the collision. It was his opinion that the truck driver irresponsibly placed himself in a situation where he experienced drowsiness, loss of alertness, inattention, and a microsleep which caused him to fall asleep for a short time just prior to the crash; and that the crash could have been avoided if he had properly complied with the Hours of Service regulations, managed his sleep, work-rest scheduling, and took rest-breaks from driving.

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In the wake of several horrific truck crashes on metro Atlanta expressways in recent weeks, the State Road and Tollway Authority has released a study proposing three options for trucks-only lanes on the expressways. One option would include two trucks-only toll lanes 24/7 on I-285, I-75 and I-85. The second option would put trucks in the HOV lanes designed for cars during certain hours. The third option would convert the HOV lanes to truck toll lanes 24/7. See AJC article link and below.

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The Federal Motor Carrier Safety Administration has launched a Spanish language web site. With a shortage of truck drivers, young Hispanics a rapidly growing portion of the work force, and Mexican truckers coming into the US under NAFTA rules, it makes sense. See article and web site. By law, truck drivers must be able to speak English in order to earn a commercial driver's license. However, many Hispanics who speak English indicate they are more comfortable reading in Spanish.

Globalization affects everything in the economy. See Thomas Friedman's book, The World Is Flat: A Brief History of the Twenty-first Century, which I read over the weekend. If industry could figure out how to outsource truck driving to India or China, it would. I guess I need to get back to the long-deferred project of learning Spanish.

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Corporate Counsel has an article about hte use of "black box" electronic data recorders tracking truckers' driving hours, speed, etc., and the resistance of truckers to having an "electronic spy" in the truck cab. Thanks to John Day for pointing it out.

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Not much is required of log truck operators in Georgia. But the one that spilled a load of logs onto a Jeep in Athens Thursday morning managed to violate even those minimum requirements. The log truck, operating without the required identification on the door, overturned and spilled its load as it exited the Athens Perimeter onto Commerce Road. Two occupants of the Jeep were injured. See article.

Large trucks operating in interstate commerce are governed by the Federal Motor Carrier Safety Regulations. Motor carriers operating large trucks in intrastate commerce within Georgia are governed by state Transportation Rules that incorporate safety requirements of the Federal Motor Carrier Safety Regulations.

Motor common carriers and motor contract carriers in Georgia are subject to insurance requirements and their insurers may be joined as named defendants in a suit pursuant to the Direct Action Statute. Private carriers basically haul stuff for their own businesses rather than for others. They are subject to safety rules but not the Direct Action Statute. Interstate motor carriers must have at least $750,000 liability coverage. Intrastate motor carriers are required to have liability insurance of at least $100,000 per person / $300,000 per accident for bodily injury, and $50,000 for property damage (100/300/50).

However, OCGA Section 46-1-1 specifically exempts vehicles used in agricultural, forestry and granite mining operations from all common carrier, contract carrier and private carrier requirements. Being exempt from carrier status, agricultural, forest products and granite mining trucks are exempt from that requirement. They are only required to have the minimum insurance required of passenger cars -- $25,000 per person & $50,000 per accident for bodily injury and $10,000 for property damage.

As for safety requirements, log trucks in Georgia are only subject to the Georgia Forest Products Trucking Rules, copied below.

The good news is that the rules are better than they used to be. The truck owner or operator must be identified on the vehicle now, so it is a violation to operate with no name on the door. Drivers now have to have a CDL (commercial driver's license), so my 16 year old son couldn't get a summer job driving a log truck with no training. There are rules on how loads must be secured. Lights and reflectors are required to make the trucks visible, though how effective those may be varies.

But still not much is required in the way of driver qualfications, and the financial responsibiity requirements for huge vehicles with potentially hazardous loads are laughable.

So when you see a log truck coming down the road, stay away.

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An article by the Clarke County Tax Commissioner, published in the Athens Banner-Herald on May 15th lambasts the breakup of the Georgia Department of Motor Vehicle Safety. Gov. Sonny Perdue signed House Bill 501 last week to dismantle DMVS. The stated purpose of the bill was to end long lines at driver's license sites.

However, the far-reaching bill abolishes the 4-year-old Georgia Department of Motor Vehicle Services, which was responsible for driver's license administration, vehicle tags and titles, commercial vehicle enforcement, High-Occupancy Vehicle lanes and a number of other motor vehicle safety issues. All functions except driver's license administration are to be transferred to other departments. Driver's license administration will become a new separate state department.

DMVS was becoming, for most purposes, a national model of efficiency. The writer maintains that the problem with long waits in driver's license lines could have be addressed with less expense and disruption within the existing DMVS structure. An Oct. 1, 2004 memorandum to the governor, from the Governor's Office of Planning and Budget, noted "the Department of Motor Vehicle Safety is not broken or dysfunctional."

Tom Marlow, division administrator for the Federal Motor Vehicle Carrier Safety Administration, testified that this bill threatens Georgia's federal funding in several ways. He also stated the DMVS structure was well-designed to maximize federal funding, and the planned bureaucratic reorganization will make it difficult for Georgia to maximize that funding.

The price of dismantling DMVS could be more lives lost on our highways. A summary report from the Federal Motor Carrier Safety Administration and the Federal Highway Administration states, "Every time a state has significantly reorganized this type function (commercial vehicle enforcement), accidents and fatalities have increased in the year following the change. This happened in the year the functions were transferred to DMVS."

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The current Federal Motor Carrier Safety Regulation on entry level truck driver training (FMCSA 380.503, requires a mere 10 hours of training that includes instruction in hours of service, wellness and whistleblower protection as well as driving. No mandatory training exists to teach someone how to actually drive a truck on an actual highway as a condition for obtaining a CDL. The extremely low training requirement was adopted despite the fact that before issuing the most recent hours-of-service rule, the FMCSA told Congress that entry-level driver training should include a minimum of 320 instructional hours, including more than 92 hours of protected off-street driving, as in a driving range, and 116 hours of street driving. A coalition of trucking industry organizations have filed suit to challenge this shockingly inadequate rule. See eTrucker.

-- Ken Shigley, Shigley Law Firm, Atlanta, GA http://shigleylaw.com, http://atlantainjurylawyer.com

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4/12/05 - U.S. Senate members heard testimony that if electronic on-board recording devices are not eventually required, stronger deterrents are necessary to deter "egregious" hour-of-service violations.

Kenneth Mead, U.S. Transportation Department inspector general, testified April 5 before the Senate Commerce Committee on transportation safety programs. "We have conducted criminal investigations of egregious cases in which trucking company officials have been prosecuted for systematically forcing their drivers to drive well in excess of the limits," Mead testified.

Log book and hours rules need strengthening because unscrupulous carriers and drivers view violations as "the cost of doing business," he said.

See eTrucker article.

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The Federal Motor Carrier Safety Administration (FMCSA) has announced it has terminated the collection and dissemination of motor carrier financial and operating statistics. See article in Fleet Owner.

The program was designed to collect annual and quarterly data from motor carriers including balance sheet and income statement data along with information on tonnage, mileage, employees, transportation equipment, etc. However, penalties for noncompliance had not been enforced.

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Nearly 23,000 pounds of bell peppers en route from El Salvador to Canada spilled Wednesday when a tractor-trailer flipped, forcing authorities to close northbound lanes of Interstate 65 in northern Alabama for 15 hours. Alabama state troopers confiscated beer cans from the scene. See Decatur Daily article and WAFF News story.

49 CFR § 382.201 sets a higher standard regarding alcohol use by truack drivers that preempts state laws as follows: "No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. No employer having actual knowledge that a driver has an alcohol concentration of 0.04 or greater shall permit the driver to perform or continue to perform safety-sensitive functions.

49 CFR § 382.205 prohibits all on-duty use of alochol by commercial truck drivers. 49 CFR § 382.207 prohibits use of alcohol within four hours prior to performing any safety-sensitive function.

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In San Luis Obispo, at 1:49 AM on 3/22/05, a local radio personality was killed when his vehicle struck the side of a tractor-trailer rig that got stuck over an hour earlier in the middle of a U-turn, blocking all lanes. Police were setting out flares, but had not yet set flares on the side from from the driver was approaching. He clearly did not see the trailer, left no skid marks, and died on impact when his SUV wedged under the trailer. The local news story reflects many common misunderstandings about tractor trailer wrecks, as well as the fact that dead men aren't there to tell their story and some folks are psychologically inclined to blame the victim.

Some of the issues raised in this crash are:

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The General Assembly could pass legislation this week to dismantle the state Department of Motor Vehicle Safety, though it's not clear why. See article.

"Representatives of the Federal Motor Carrier Safety Administration and the Federal Highway Administration indicated that, historically, there is a transition period after this type of change of 1 to 4 years where accident rates and fatalities will increase," says a memo from the state Office of Planning and Budget dated February 2004.

Critics of the proposal to dismantle DMVS contend the state will lose millions of dollars in efficiency-promoting federal funding that came with the consolidation of functions under DMVS. About $1.8 million that the state receives annually will lapse at least temporarily, said Tom Marlowe, Georgia division director of the Federal Motor Carrier Safety Administration. Fatalities involving commercial vehicles dropped from 214 in 1994 to 164 in 2004, even though there were more trucks on the highway laragely due to to the fact that there are more inspections and there is more emphasis on truck safety. The Federal Motor Carrier Safety Administration are said to consider the DMVS "excellently managed" and on the way to being "a national leader" because of its success in cutting the rate of truck accidents.

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Truckers tell of enormous pressure to make deliveries on time. Falsifying their handwritten logbooks of hours is still common, and very hard for police or inspectors to catch. See Asheville (NC) Citizen-Times article.

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The hours of service rule -- either the new rule or the old rule -- is not enough to assure truck driver alertness, even if the rule is followed.

Mark Rosekind, Ph.D., who formerly led the Fatigue Countermeasures Program at NASA Ames Research Center, and now runs Alertness Solutions, a scientific consulting firm that addresses the safety and performance needs of 24-7 operations, says the new HOS rule is better aligned with circadian rhythms than the old rule. However, he states the obvious fact that "You can mandate the time off, but you can't control what people do during their time off." He suggests strategies in four areas:

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According a survey conducted by the Insurance Institute for Highway Safety, truck drivers are driving longer hours and dozing off behind the wheel more often since new U.S. hours-of-service rules went into effect in January 2004. The new rule lengthens the mandatory rest period by two hours but lets drivers stay on the road an extra hour every day. See Today's Trucking article.

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A article in eTrucker.com reports conflict on the effectiveness of the new Hours of Service rules that went into effect last year. An Insurance Institute for Highway Safety study says truck drivers' sleep time had increased under the new rule, but they reported slightly more instances than when the old rule was in effect of driving drowsy or falling asleep at the wheel. When drivers were asked about dozing at the wheel at least once in the past month, the reported percentage increased from 13 percent in 2003 to 15 percent in 2004. "The new rule was supposed to improve safety, but our survey shows the opposite," says Anne McCartt, IIHS vice president for research.A quarter of drivers who were surveyed by IIHS said they drive more than the new daily limit of 11 hours. Eight of 10 drivers said they're taking advantage of the restart provision that allows them to drive 25 percent more in a week.

On the other hand, an American Truckers Association study study, based on government accident records and data from 70 carriers reported there were decreases between 2003 and 2004 in total injuries and injuries related to DOT recordable accidents, and that By increasing the daily off-duty requirement to 10 continuous hours, the new rules greatly reduced the possibility of chronic sleep deprivation and the development of a sleep debt during a driver's workweek.

See article, and full text below.

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Not even Wal-Mart could sell the idea of a 16-hour work day for truck drivers. The sponsor, a congressman whose district includes the home offices of Wal-Mart and J. L. Hunt Transport, withdrew this proposed amendment to the transportation reauthorization bill on 3/10/05. The current HOS rules -- which are being reworked by Federal Motor Carrier Safety Administration under a U.S. court order -- allow truck drivers 14-hour workdays with driving time limited to 11 hours. See article in Today's Trucking.

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Each year truck crashes kill over 5,000 people and injure almost 150,000 more on our nation's roads and highways. Nearly one in four passenger vehicle deaths in multiple-vehicle collisions involve a large truck. In 1998, 98% of the fatalities in two-vehicle crashes involving passenger vehicles and large trucks were occupants of the passenger vehicles. When commercial drivers become fatigued from excessive daily and weekly work hours, they substantially increase the risk of crashes that result in death or serious injuries. According to the Federal Motor Carrier Safety Administration (FMCSA), more than 750 people die and 20,000 more are injured each year due directly to fatigued commercial vehicle drivers.

The new hours adopted in 2004 (and now invalidated by a court order which is stayed pending further action) are supposed to address that problem by adopting a 24-hour sleep-rest cycle. The old rule required that commercial drivers operate a truck or bus no more than 10 consecutive hours before resting for minimum of 8 hours. This permitted fatigued drivers to spend 16 hours driving in any 24 hours period. The rationale for the new rule is to set a rotating schedule of work/rest based on a 24 hour period instead of an 18 hour period which requires longer rest periods for the drivers. Whether it is adequate to address the problem of driver fatigue is another question. See article.

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Federal Motor Carrier Safety Regulations requiring the trucking company to bear financial responsibility to members of the traveling public for operation of trucks under their authority preempt contradictory state laws of agency. A number of these cases involve injuries to "unauthorized" passengers, including truck stop waitresses.

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Rep. John Boozman (R-Ark.), whose district includes the headquarters of both Wal-Mart and J. B. Hunt Transport, is sponsoring an amendment that would extend the allowable workday of truck drivers from 14 to 16 hours - twice the number of hours that most Americans work - without any additional pay. Boozman said, "There are several trucking companies in the state of Arkansas. I'm just trying to represent them to the best of my ability."

Driver fatigue and sleep deprivation are already major safety problems in the trucking industry. Requiring truckers to work 16 hours straight will further endanger motorists. The last thing we need is for tired truckers to become even more fatigued and threaten the safety of those around them on the roads. See Public Citizen release. Critics of the Boozman amendment note that under the proposal, drivers could be encouraged to falsely enter two hours of work time as break time.

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Generally, companies are not responsible for the negligence of independent contractors. However, in the trucking industry anyone driving under the authority of a motor carrier is deemed to be an employee for whose negligence the trucking company is vicariously liable.

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State tort laws generally define the duty of drivers as ordinary care under an ordinary negligence standard. Occasionally, state laws set a different standard such as requiring proof of "willful or wanton" conduct in order to hold a defendant liable. However, when a motor carrier driver is driving in adverse weather, an "extreme caution" standard under 49 C.F.R. § 392.14 should preempt any lower standard under state law. Of course a trial court judge may or may not be willing to hold a state statute is preempted by a federal regulation.

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Many truck wrecks involve violation of multiple Federal Motor Carrier Safety Regulations. An attorney handling a truck wreck case must be familiar with these regulations, which are designed to protect public safety.

A few of the significant Federal Motor Carrier Safety Regulations are:

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An article in the Denver Post on 3/7/05 describes the inadequacy of truck driver training, pressure to falsify log books and drive far in excess of the legal hours of service, numbing fatigue, monotony, loneliness and fatigue that are all too common in the trucking industry.

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