A truck driver's viewpoint
Sometimes I get comments from truck drivers who say the items I post are too one-sided. Sorry about that. I certainly recognize that a majority of truck drivers are hard-working, reasonably safety conscious folks, and not all truck wrecks are the fault of the truckers. That doesn't meen I accept at face value the trucking industry propoganda that blames 80% of truck wrecks on other motorists, however.
Recently I met a truck driver at a roadside diner away from Atlanta to find out what he could tell me related to one of my cases. We had a good visit.
Regarding problems caused by other motorists on the highway, he talked about seeing drivers who have a newspaper propped on the steering wheel, while eating and talking on their cell phones and whipping around in front of his truck. Certainly we all should use common sense, pay attention, avoid such distractions, and drive defensively.
As for the new hours of service rules, he lamented the inflexibility of a system that penalizes the driver who recognizes the need to pull over for a "power nap" in the middle of his authorized hours. He has a point.
He told of times when he was forced to violate hours of service rules, and perhaps to falsify logs, due to the demands of employers and shippers. He told the story of a shipper who did not release a load to him until about seven hours past the scheduled pickup time, but insisted that it had to be at the destination by a deadline with which it was impossible to comply without grossly violating several Federal Motor Carrier Safety Regulations. That made me start thinking about the potential responsibility of shippers and brokers under 49 CFR 390.13, which provides that "No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter." It doesn't say "no motor carrier," but "no person."
Finally, on the way out of the cafe, I noted that this good guy who drives trucks for a living has a rebuilt Volvo as his personal vehicle. He knows, as I know, that it's really hard to get killed in a Volvo.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).
According to the Federal Motor Carrier Safety Administration's enforcement reports, there were only 10 cited violations of 49 C.F.R. § 390.13 in 2002. Previous years were slightly lower than that.
The annual reports are available at this link:
http://www.fmcsa.dot.gov/facts-research/enforcement-reports/enforcement-reports.htm
An interesting case on the topic of the potential liability of shippers & brokers under 49 C.F.R. § 390.13 is Schramm v. Foster, 341 F.Supp.2d 356 (D.Md. 2004). That case arose out of a catastrophic accident between a passenger vehicle & a tractor-trailer in Maryland.
A broker hired a trucking company to transport a load of soy milk for one of it's customers. The driver of the rig failed to stop at a stop sign at the end of a highway exit ramp & the plaintiff's vehicle collided with the trailer. The roof of their vehicle was severed as it traveled underneath the trailer, leaving the driver in a semi-vegetative state and his passenger with severe & permanent bodily injuries. The driver of the tractor-trailer had been driving in excess of the maximum driving hours allowed by law & was employed by a company with a suspicious history.
Although the court dismissed the claims brought under the Motor Carrier Act regulations (no private right of action under MCA for personal injuries sustained as a result of breach of duties under MCA), it did preserve a claim of negligent hiring against the broker. Specifically, it found that the broker should have exercised greater caution when contracting with a trucking company that had a borderline safety record & no DOT safety rating.
The court also offered some insightful ruminations on the issue of brokers who offer insurance coverage in excess of that which the carrier has & the public policy implications of their potential liability in catastrophic accident cases:
"Finally, it cannot be ignored that Robinson [the broker] increased the risk of harm to innocent third parties by its own actions. When seeking business, Robinson advertises to shipper customers that "in the rare event that the damage caused in an accident goes beyond the carrier's insurance limits, CHRW maintains a liability insurance policy that pays the rest." Robinson contends that because shippers cannot be held liable for personal injuries caused by a carrier's driver and thus would not care about the existence of excess insurance coverage for such injuries, this promotional statement and ones like it are of no practical effect. I am not willing to take such a cynical view.
"Responsible shippers are entitled to receive from firms with which they contract honest and accurate information about the insurance available to compensate victims of catastrophic accidents, such as the one involved in this case. It should not be assumed, as implicit in Robinson's argument, that American businessmen and businesswomen are concerned only about saving every nickel and dime and protecting themselves from liability. It is not only government regulators and others in the public sector who have a sense of public responsibility. Moreover, even if business executives engaged only in a cost/benefit analysis, they may very well conclude that the loss to their goodwill resulting from a source of adequate compensation for third parties suffering dreadful injuries in accidents caused by carriers shipping their products far outweighs the marginal increase in cost they must pay for excess insurance coverage to third party logistics companies through whom they arrange their shipments.
"In the last analysis, this is a case in which the law may simply have to catch up with an obligation that Robinson has voluntarily assumed, presumably in response to the demands of the market. Although strenuously contesting its liability in these proceedings, in conducting its everyday affairs Robinson apparently recognized the ambivalence of its position and purchased excess liability coverage, both to protect itself and to gain new customers. It has actively interjected itself into the relationship between shipper and carrier, and it has chosen to do business in a context heavily tinged with the public interest. I find the common law imposes upon it a duty commensurate with its undertakings.
"It appears that regulators could assist market forces in furthering sound public policy by requiring that all carriers, at least those carrying loads of a certain weight and/or over a certain distance, have excess insurance for catastrophic accidents. As the facts of this case demonstrate, $750,000 (the present limit of minimally required coverage) is insufficient when such accidents occur. Although independent owner/operators might find the cost of excess insurance too steep, presumably if an excess insurance coverage requirement were in place, the firms with which independent owner/operators associate themselves, be they larger carriers, third party logistics companies, or major shippers who contract directly with small carriers, would provide the excess coverage."
