As president of the State Bar of Georgia, I have occasion to work on a number of issues and controversies beyond the scope of my own personal injury, wrongful death and commercial trucking accident trial practice.  The following is excerpted from an article by Kathleen Joyner in the Fulton County Daily Report on September 23, 2011.

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Bar committee OKs rule change
Public defenders in same circuit would be allowed to represent co-defendants under proposed amendment

The State Bar of Georgia’s Disciplinary Rules and Procedures Committee on Wednesday unanimously approved a rule change that would allow public defenders in the

We often see the tragic outcomes of catastrophic trucking accidents in my Atlanta-based law practice. Therefore, when I travel on the highways I am notice the minority of truckers who ignore safety rules. Usually they get by with it, without a bad outcome, but slackness about safety will almost inevitably lead to catastrophe sooner or later.

Some people , of course, think that statistics are irrelevant to them simply because they are unique and bad things only happen to others. Many of them eventually become statistics themselves

I often wind up representing truckers who are injured by other truckers, as

In truck crash litigation in Georgia, we see how smaller trucking companies often have the least focus on safety rules enforcement. For example, I am  now preparing for trial in a case where a small trucking company was repeatedly fined for scores of  violations of the same safety rules over a three year period before their driver crashed into a lady driving to work on an Atlanta expressway. They had violated some of the same rules with regard to that driver.

Last yearr, the Federal Motor Carrier Safety Administration began a new safety system called Compliance, Safety, Accountability 2010 (CSA 2010). To reduce truck crash fatalities, the program is intended to identify dangerous truck drivers, companies with records of negligence and tractor-trailers and other trucks that have unsafe records.

The National Association of Small Trucking Companies sued to block public release of truck safety data online in CSA 2010, claiming that the data is not an accurate reflection of their safety performance and would put them at a competitive disadvantage. The small trucking companies also claimed that federal regulators had failed to follow proper procedures and never put a proper notice in the Federal Register, denying the companies a chance to comment. They also alleged that the agency failed to issue a proper final rule.

Last week, however, the U.S. Court of Appeals for the District of Columbia rejected those objections, so that all the detailed trucking safety data may be released online to the public.

In 2006, there were more than 385,000 tractor trailer accidents throughout the United States. They accounted for about 4% of all vehicles involved in a traffic injury and were linked to 8% of all fatal accidents, resulting in at least 4,732 deaths. Federal safety regulators say those numbers, while declining are out of proportion with the number of trucks on the road.

Like most Atlantans, I was stuck at home for three days this week, catching up on home repair projects and watching weather reports and scenes of truck wrecks on TV.  Fortunately, there was no power failure. I recall once in my childhood at Mentone, Alabama, we had an ice storm that closed schools for two weeks and knocked out our electricity for a month.

This being 2011, I was able to access the office computer remotely, though the connection is so clunky I’m ready to investigate cloud computing.

Wednesday I tried six routes to get to the office, but all were blocked by vehicles whose drivers could not negotiate icy hills.  Even in an all wheel drive vehicle in low gear, I couldn’t get by them.

I don’t criticize the state and city governments for not having fleets of snow removal units. This isn’t New York.  We get a winter storm like this about once per decade. It makes no sense for cash-strapped governments to invest many millions in specialized snow removal equipment that may be used 10 days out of 10 years.

But there are some points worth noting:

  • Fortunately, collisions with serious injuries were not reported, probably because most people stayed off the roads.
  • Most of the worst problems on the roads related to tractor trailers trying to get through despite the weather. While I imagine a lot of those drivers were pushed by dispatchers hundreds of miles away to press on despite the weather, the companies and the drivers share responsibility to pull off and wait for conditions to clear.

    The Federal Motor Carrier Safety Regulations §392.14 provides:

    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. . . .

  • I hope that debriefing from this event includes identification of trouble spots and revision of contingency plans for future winter storms.  A lot of changes in local roads and traffic patterns have occurred since the last winter storm of this magnitude. Local governments that prepositioned snow removal units, and started clearing main roads while the snow was still falling, seemed to fare best. That might include:

 – Close metro expressways to through truck traffic when the Governor declares a winter weather state of emergency. Distant dispatchers would not be able to harrass drivers to press on despite unsafe conditions. To facilitate this, designate adequate parking areas outside the perimeter where truckers could wait out the storm. There are shopping center parking lots off exits outside the perimeter that are little used during winter storms that could be utilized in such an emergency.

 – Pre-position snow removal units at critical areas, such as tricky slopes and intersections, when a winter storm is forecast.

 – Begin scraping, salt and sand on main roads while snow and ice are still falling.

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

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

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

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

That is clearly true in the interstate commercial trucking context.

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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.