How does the COVID-19 pandemic emergency declaration affect truck crash cases?
History is replete with episodes of epidemics that devastated cities, nations, and civilizations. Bubonic plague, cholera, smallpox and influenza have killed untold hundreds of millions in waves of devastation over the millennia. Now we see the approach of a Category 5 hurricane of a pandemic called COVID-19, praying that it will not be as bad as predicted.
The worst effect will the many deaths and serious but not fatal illnesses. Prediction vary wildly of how many Americans will be infected, how many of those will become ill, and how many will die. But it is becoming clear that for at least a couple of months, and perhaps much longer, our lives will be radically altered through “social distancing,” school closings, working from home, devastating losses to retail stores, restaurants and other business, etc.
To keep hospitals supplied, grocery stores stocked, fuel tanks filled, mail and online purchases delivered, trucks must keep running. As any trucker will tell you, if a truck doesn’t deliver it, you don’t get it. We should appreciate the work good truckers do.
The frequency of truck crashes may decrease during the period of pandemic emergency simply because overall traffic is reduced. If many people are working at home and travel is almost eliminated, there will be fewer cars that could be hit by tired truckers.
But there will trucking accidents anyway. Understanding of how trucking rules are changed due to the state of emergency is important when we are called upon to represent victims in those crashes.
Under President Trump’s Emergency Declaration, rules governing motor carriers and drivers are temporarily changed in several significant ways if they are providing direct assistance in support of relief efforts. Direct assistance includes deliveries needed for immediate restoration of essential services, such as medical care, or essential supplies such as food, related to COVID-19 outbreaks during the emergency.
This Emergency Declaration provides regulatory relief for commercial motor vehicle operations that are providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for:
(1) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;
(2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants;
(3) food for emergency restocking of stores;
(4) equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;
(5) persons designated by Federal, State or local authorities for medical, isolation, or quarantine purposes; and
(6) persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.
Direct assistance does not include routine commercial deliveries, or transportation of mixed loads that include essential supplies, equipment and persons, along with supplies, equipment and persons that are not being transported in support of emergency relief efforts related to the COVID-19 outbreaks.
Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services that are not in support of emergency relief efforts related to the COVID-19 outbreaks or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. 49 CFR 390.23(b).
Upon termination of direct assistance to emergency relief efforts related to the COVID-19 outbreaks, the motor carrier and driver are subject to the regular safety rules limiting work hours to mitigate fatigue, except that a driver may return empty to the motor carrier’s terminal or the driver’s normal work reporting location.
However, if the driver informs the motor carrier that he or she needs immediate rest, the driver must be permitted at least 10 consecutive hours off duty before the driver is required to return to the motor carrier’s terminal or the driver’s normal reporting location.
Once the driver has returned to the terminal or other location, the driver must be relieved of all duty and responsibilities and must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers.
Nothing contained in the Emergency Declaration can be construed as an exemption from the controlled substances and alcohol use and testing requirements, the commercial driver’s license requirements, the financial responsibility (insurance) requirements, the hazardous material regulations, size and weight requirements, or any other portion of the regulations not specifically exempted under to 49 CFR § 390.23.
Motor carriers or drivers already subject to an out-of-service order are not eligible for the relief granted by this declaration until they have met the applicable conditions for its rescission and the order has been rescinded by FMCSA.
When catastrophic truck crashes do happen during the pandemic emergency, many of the rule violations that we use to establish accountability will not be applicable. However, we will know where to focus. A few preliminary thoughts about how to proceed when we are hired by the victims (and their survivors) of catastrophic truck crashes in the time of pandemic:
- While maintaining social distancing to prevent spread of the virus, interview clients and witnesses through videoconferencing technology, e.g., Facetime, Skype, Zoom, Facebook Messenger video chat.
- Download police crash reports through BuyCrash.
- Send records retention letters, by email when possible, tweaked to recognize the changed circumstances. The usual “spoliation” letters will be altered to focus on what freight was being transported to determine whether the emergency exemptions to normal rules may apply. Anticipate that insurance companies may seek to portray every delivery as an emergency delivery, even if it is not, so be prepared to pierce through any misrepresentations.
- If a temporary restraining order (TRO) is needed to preserve evidence, e-file it and contact the presiding judge of superior court in the subject county by phone and email. Draft the TRO to allow more time than usual and protocols to preserve social distancing. I would argue that the Declaration of Judicial Emergency by Georgia’s Chief Justice Melton implicitly supports extending the usual time limits in TRO’s. At the same time, anticipate the argument that in time of emergency the trucking company may need to get its equipment back into service to make emergency relief deliveries.
- Stretch out timelines for litigation, e-filing lawsuits in a manner to allow ample time for extending deadlines.
- When filing suit, e-file early and allow plenty of time to complete service of process. Consider use of requests for waiver of service delivered by email using delivery and read receipts, and perhaps with longer than the usual minimum 30 days time allowed for response and stating an extended time filing an answer in court.
- Until the pandemic ends, prepare to use video conferencing for any conferences, depositions and hearings.
Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.
Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group.
He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries.
In 2011-12, Mr. Shigley was president of the State Bar of Georgia, which includes all the lawyers and judges in Georgia. He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13), State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994).
A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower, father of two adult children, and an elder in his church.
Effective January 2, 2020, he moved his existing law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862.