Trucking regulations

Published on: June 20, 2008

Truck driver fatigue and hours of service

Trucking accident trials often revolve around Federal Motor Carrier Safety Regulations and evidence of how they were violated. Some of the 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.

FMCSR, 49 C.F.R. § 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.” A company owner who makes irresponsible dispatching decisions may become an individual defendant.

FMCSR, 49 CFR 390.5 defines “person” as follows:

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

FMCSR, 49 CFR § 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.

FMCSR, 49 CFR § 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]….
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(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.

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Published on: June 20, 2008

Truck driver logs may be electronic … “in the year 2525, if man is still alive”

By Ken Shigley

As Georgia attorney working on trucking accident cases, I often seen why truck drivers’ paper logs are often called “comic books.” In one recent case, for example, a truck driver from Croatia who was trained by some unidentified Russian guy in North Carolina, worked for a trucking company owned by a Bulgarian in Florida, and said he studied the Federal Motor Carrier Safety Regulations by having his 10-year-old daughter translate them from English to Croatian, admitted that he generally filled out his logs the next day. No wonder his logs looked perfect.

In light of such experiences, you can see why I was encouraged to see that National Transportation Safety Board (NTSB) has recommended that all motor carriers to use electronic onboard recorders (EOBRs). The Federal Motor Carrier Safety Administration’s (FMCSA) current proposal calls for an EOBRs mandate only for “repeat violators” of hours-of-service rules. Earlier the NTSB expressed concern that the FMCSA proposal lacks the “resources or processes necessary to identify and discipline all carriers and drivers who are pattern violators.” According to the NTSB,”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.”
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Published on: June 19, 2008

Truckers in bad weather must exercise “extreme caution”

By Ken Shigley

As a Georgia attorney handling trucking accident cases, I often see cases where crashes occurred in bad weather. While most state laws define the standard of negligence liability as “ordinary care,” 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. “Every 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 [federal] regulation … imposes a higher standard of care than that [state] law, … the … regulation must be complied with.” (49 C.F.R. § 392.2.)

There is case authority it is reversible error for a trial court to fail to instruct the jury on the “extreme caution” standard in a case where an interstate commercial motor vehicle was operated in inclement weather. This is a higher duty of care than “reasonable or prudent” standard under a state’s basic speed law, and thus operators of commercial motor vehicles are required to comply with regulation. Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005).
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Published on: June 18, 2008

Trucking companies responsible for negligence of “independent contractor” truck drivers as “statutory employees”

By Ken Shigley

As a lawyer representing folks injured in trucking accidents, I often see trucking companies still trying to claims they are not responsible for an owner-operator truck driver they classify as an “independent contractor.”

However, that is generally just a ruse to fool the uninitiated. A section of the Federal Motor Carrier Safety Regulations, at 49 C.F.R. § 390.5, defines the term”employee” as,

any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.

The Regulatory Guidance to 49 C.F.R. § 390.5, at Question 17, explains:

The term “employee,” as defined in § 390.5, specifically includes an independent contractor employed by a motor carrier. The existence of operating authority has no bearing upon the issue. The motor carrier is, therefore, responsible for compliance with the FMCSRs by its driver employees, including those who are owner-operators.

62 Fed. Reg. 16,407 (April 4, 1997). 49 C.F.R. Chapter III: Regulatory Guidance for the Federal Motor Carrier Safety Regulations, Interpretation to § 390.5, question 17 (1997)(emphasis added). See also 49 C.F.R. § 390.5.

The regulations “create an irrebuttable presumption of an employment relationship” – statutory employment – “between a driver of a leased vehicle furnished by a contractor-lessor and a carrier-lessee. . . . Any negligence on the part of the driver of the leased vehicle is imputed to the carrier-lessee as a matter of law. The common law doctrines of master-servant, respondeat superior and independent contractor are preempted by these regulations.” Johnson v. S.O.S. Transport, 926 F.2d 516, n.17 (6th Cir. 1991).
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