Trucking regulations

Published on: March 28, 2013

What are the qualifications for a tractor trailer driver?

NOTE TO TRUCK DRIVERS:
Our law practice focuses on representation of people who are seriously injured, and families of those killed, in crashes with large commercial vehicles. While those are often truck drivers, we do not handle truckers’ employment law matters. For legal advice on issues with your employer, see Truckers Justice Center.

When we share the road with semi tractor trailer drivers who pilot 80,000 pound big rigs on highways across the country, we hope they are well-qualified and safety conscious. Most are but some are not.

Among the many things I examine as a trucking accident litigation trial attorney in Georgia are the qualifications, experience and background of the truck driver.

Commercial truck and bus drivers are required to have knowledge of and comply with all government trucking safety regulations and company policies. Motor carriers operating truck and bus lines are required to make sure drivers are adequately trained and monitor drivers’ performance.

Entry level truck drivers must obtain a Commercial Driver’s License, usually referred to as a CDL. That requires training in driver qualifications, hours of service, safe operations and whistle blower protection. The CDL manuals for all states in the US are materially identical. Drivers are required to know and understand pertinent provisions of the Federal Motor Carrier Safety Regulations, so the CDL manual explains the regs in simpler, graphic terms.

Drivers of specialized commercial vehicles need additional training specific to those types of vehicles. Trade organizations and safety materials publishing companies produce training videos and manuals for a wide variety of specialized commercial vehicles such as concrete mixer trucks, crane trucks, etc.

These CDL manuals and specialized training materials are extremely useful in cross examining truck drivers after they crash.

In applying for a truck driving job, a truck driver must provide his or her CDL, employment history, driving records, record of convictions and violations, medical history, drug and alcohol history, and physical exam.

Trucking companies are required to conduct a road test of the driver, testing knowledge, skills, experience and training, using the same type vehicle the driver is expected to operate. The test must be conducted by an employee who is qualified to do so.

When representing the victims of a catastrophic semi tractor trailer crash, all this fair game for thorough and sifting examination. Any lawyer who thinks a commercial truck crash is just a bigger car wreck will be clueless and unprepared, vastly reducing the prospects for success in representing his client. That is why our years of experience in trucking litigation matters.

Source: Federal Motor Carrier Safety Regulations; Truck Accident Litigation (3d edition)
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Published on: November 16, 2012

Attorney fee award under § 13-6-11 is question of fact, not merely question of law

By Ken Shigley

In trucking accident personal injury litigation in Georgia, plaintiffs often assert a claim for attorney fees and expenses of litigation including attorney fees under O.C.G.A. § 13-6-11, which was enacted as part of the Code of 1863. A decision this week by the Georgia Court of Appeals relied on existing case authority that an award of fees under this statute must be based on findings of fact, not determination simply as a matter of law.

O.C.G.A. § 13-6-11 provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

“Indicative of whether a party acts in good or bad faith in a given transaction is his abiding by or failing to comply with a public law made for the benefit of the opposite party, or enacted for the protection of the latter’s legal rights. Evidence that appellants failed to comply with mandatory safety regulations promulgated for the benefit of appellees is some evidence that appellants acted in bad faith in the transaction, within the meaning of O.C.G.A. § 13-6-11.” Meyer v. Trux Transp., Inc., 2006 WL 3246685 (N.D.Ga., decided Nov. 8, 2006)(FMCSA violations); Windermere, Ltd. v. Bettes, 211 Ga.App. 177 (1993)(landlord’s to violation of fire exit safety regulations).

“Even slight evidence of bad faith can be enough to create an issue for the jury.” Morrison Homes of Florida, Inc. v. Wade, 266 Ga.App. 598 (2004). “The question of bad faith . . .is for the trier of fact to determine.” Monterrey Mexican Restaurant of Wise, Inc. v. Leon, 282 Ga.App. 439 (2006).

As trucking cases involve a body of mandatory motor carrier safety regulations — federal regulations for interstate trucking and analogous state rules for intrastate trucking — violation of those rules may be used by a jury as the basis for an award of fees and expenses under the “bad faith” prong of O.C.G.A. § 13-6-11. I have had trial judges who were skeptical of this theory read overnight the authorities I presented and come back the next morning to announce that it would be reversible error not to allow that issue to go to the jury.

However, it is clear that it is a fact question, not one that the court can determine as a matter of law. Meek v. Mallory & Evans, Inc., Case No. A12A1290, decided Nov. 8, 2012 in an opinion written by Judge Gary Andrews, was a landlord-tenant case, the merits of which are not relevant to this discussion. However, the trial court had awarded fees under OCGA § 13-6-11 as a matter of law. The court held:

the language of OCGA § 13-6-11 prevents a trial court from ever determining that a claimant is entitled to attorney fees as a matter of law. “Although the trial court may grant attorney fees or litigation expenses under OCGA § 13-6-11 where it sits as the trier of fact, it is not a trier of fact on a motion for summary judgment.” Covington Square Assoc. v. Ingles Markets, 287 Ga. 445, 448 (696 SE2d 649) (2010)

Does this make any difference in how lawyers handling trucking accident personal injury cases handle attorney fee claims under OCGA § 13-6-11? Not really. However, it does stand as a reminder that this is an issue to be determined by the jury, or occasionally by a judge serving at the trier of fact without a jury. It does require presentation of at least evidence even if it is perfunctory.
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Published on: August 30, 2012

Truck wrecks – what is a commercial motor vehicle subject to truck and bus safety rules?

By Ken Shigley

Large truck operations are governed by the Federal Motor Carrier Safety Regulations and largely identical state trucking safety rules. Sometimes people are surprised that these safety rules no not apply to tractor trailers only. Under 49 CFR 390.5, a commercial motor vehicle is defined to include any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle –

a. Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight 10,001 pounds or more, whichever is greater; or
b. Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
c. Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
d. Is used in transporting material found by the Secretary of Transportation to be hazardous.
Every state has adopted most portions of the Federal Motor Carrier Safety Regulations for intrastate transportation.
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Published on: July 2, 2012

Uncertain progress toward electronic trucking logs

By Ken Shigley

Truck driver fatigue is one of the most common cause of catastrophic trucking crashes that I see in my law practice.

Many times we have combed through the paper logs maintained by truck drivers, sometimes referred to as “comic books,” and meticulously compared them to other records generated in the course of a cross-country trip. Time and again we have found that the trucker, pushed by employers and shippers to make impossible delivery schedules, had hardly slept for days before crashing into our clients. One truck driver who had run over a family vehicle, confronted by dissection of the evidence, admitted that he had been driving 20 of the previous 24 hours then broke down and cried over the child he had killed.

A solution that has been promoted for years is to require Electronic On-Board Recorders (EOBR) that are at least more difficult to falsify than handwritten paper logs. Major trucking companies and the American Trucking Associations support the EOBR requirement, which they say will help them enforce anti-fatigue rules. But independent truckers, represented by the Owner-Operator Independent Drivers Association, say the mandate would impose unfair costs on drivers who own their own rigs.

Last week in Congress, the House sent conflicting messages to the trucking industry. On Friday, the House adopted both a highway bill conference report that mandates electronic data recorders in trucks and an amendment to a spending bill that would bar the Transportation Department from spending money to implement the requirement.

The conference report on the surface transportation reauthorization (HR 4348), adopted in both chambers on Friday, included Senate language requiring the devices. The agreement was adopted in the House by a vote of 373-52.

After opponents in the House failed to get the provision stripped from the agreement, Rep. Jeff Landry, R-La., offered an amendment to the fiscal 2013 Transportation-HUD spending bill (HR 5972) that would disallow any Transportation Department expenditures supporting the recorder mandate. The amendment – which would block any expenditures on rules to require global position tracking, event-data recorders or electronic on-board recording devices on passenger vehicles or commercial trucks – was adopted by voice vote. The appropriations bill passed, 261-163.

American Trucking Associations President Bill Graves complained that “opponents of honest, fair and efficient enforcement of important safety rules have used this back door to thwart the will of Congress.” Graves said he expected that the conference report language “will be the final word on the use of electronic logs and that [the Transportation Department] will quickly move to require this important safety technology on all trucks.”

Having watched the ongoing struggle about trucking hours of service rules and their enforcement over the years, I make no bold predictions about any definitive action.

Meanwhile, efforts to update the trucking insurance requirements, which have not been adjusted for inflation in over 30 years, remain stalled.
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Published on: June 16, 2012

Truck crash in heavy rain may show failure to exercise “extreme caution” as required by trucking safety rules

By Ken Shigley

“Sunday storms blamed for I-85 semi collision,” shouted a headline in the Atlanta Journal-Constitution last Monday.

The accompanying article stated that heavy rain

…could be to blame for a tractor-trailer crash near Spaghetti Junction. Driving rain may have caused two tractor-trailers heading north on Interstate 85 to crash and overturn in DeKalb County late Sunday night. Police shut down northbound lanes of I-85 for several hours, backing up traffic for miles. Two people were injured in the crash.

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Published on: December 30, 2011

FMCSA bar use of hand held cell phones by commercial truck drivers

By Ken Shigley

For years we have explored cell phone distraction as a factor in the cause of motor vehicle accidents, including commercial trucking accidents. Discovery of cell phone records has become routine in litigation. We have read all the studies, deposed the experts and argued about the legal ramifications. I won’t rehash all that here.

Now the Federal Motor Carrier Safety Administration has issued a rule barring use of hand held cell phones by commercial truck drivers in interstate commerce. The agency stated the rationale for the rule in part as follows:

Using a hand-held mobile telephone may reduce a driver’s situational awareness, decision making, or performance; and it may result in a crash, near-crash, unintended lane departure by the driver, or other unsafe driving action. Indeed, research indicates that reaching for and dialing hand-held mobile telephones are sources of driver distraction that pose a specific safety risk.

The agency summarizes much of the research on cell phone distraction in explaining its conclusion that “it is the action of taking one’s eyes off the forward roadway to reach for and dial a hand-held mobile telephone … that has the greatest risk.”
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Published on: December 30, 2011

Truck driving hours trimmed just a little

By Ken Shigley

Truck driver fatigue is a chronic issue in the causation of commercial truck accidents. Now the Federal Motor Carrier Safety Administration has tweaked the rule yet again, but only at the outer margins of the hours of service rules.

Effective February 27, 2012, the FMCSA revises the hours of service (HOS) regulations so as to cut maximum work week from 82 to 70 hours on average. To combat the effects of chronic fatigue, the provision allows drivers to work intensely for one week, but will require them to compensate by taking more time off in the following week. This is being done

. . . to limit the use of the 34-hour restart provision to once every 168 hours and to require that anyone using the 34-hour restart provision have as part of the restart two periods that include 1 a.m. to 5 a.m. It also includes a provision that allows truckers to drive if they have had a break of at least 30 minutes, at a time of their choosing, sometime within the previous 8 hours. This rule does not include a change to the daily driving limit because the Agency is unable to definitively demonstrate that a 10-hour limit-which it favored in the notice of proposed rulemaking (NPRM)-would have higher net benefits than an 11-hour limit. The current 11-hour limit is therefore unchanged at this time. The 60- and 70-hour limits are also unchanged. The purpose of the rule is to limit the ability of drivers to work the maximum number of hours currently allowed, or close to the maximum, on a continuing basis to reduce the possibility of driver fatigue. Long daily and weekly hours are associated with an increased risk of crashes and with the chronic health conditions associated with lack of sleep. These changes will affect only the small minority of drivers who regularly work the longer hours.

The FMCSA explains that:

The goal of this rulemaking is to reduce excessively long work hours that increase both the risk of fatigue-related crashes and long-term health problems for drivers. A rule cannot ensure that drivers will be rested, but it can ensure that they have enough time off to obtain adequate rest on a daily and weekly basis. The objective of the rule, therefore, is to reduce both acute and chronic fatigue by limiting the maximum number of hours per day and week that the drivers can work.

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Published on: December 20, 2011

8.7% increase in trucking fatalities

By Ken Shigley

Fatalities in large truck accidents increased 8.7% in 2010, according to a report released last week by the National Highway Transportation Safety Administration.

NHTSA said in its annual report that 3,675 people died in trucking related accidents in 2010, an increase of 295 over the 3,380 fatalities in 2009. The number injured in trucking accidents increased 12% from 17,000 to 19,000. (Those number are surely rounded off.)

NHTSA did not clearly identify a cause, but increased truck traffic due to gradual economic recovery is likely a major factor.
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Published on: September 29, 2011

Illinois law upgrades GPS information on safe truck routes

By Ken Shigley

New ideas for trucking safety don’t pop up very often. Thanks to fellow trucking safety trial lawyer Michael Leizerman in Ohio for bringing this one to my attention.

Earlier this month, Illinois enacted a law to improve the GPS data available to truck drivers. The goal is to provide better routing details specific to trucking in the state, thus helping to reduce accidents and traffic.

Effective January 1, 2012, Illinois state and local governments will be required to inform the Illinois Department of Transportation about details of preferred trucking routes, weight restrictions on roads, and height limitations for bridges and overpasses. The Illinois DOT will then post this information on its website.

The new state law also requires streamlining the way cities and towns report designated truck networks and preferred routes, and merger of databases that contain important data such as overpass heights. The new law will also help educate truckers about the benefits of using GPS devices created specially for them.

This is an idea I hope our Georgia legislators will consider.
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Published on: August 2, 2011

Truck-only lanes cut from metro Atlanta transportation plans

By Ken Shigley

Plans for truck-only lanes on metro Atlanta expressways are among the aspirations cut from the Atlanta Regional Commission’s transportation long-range plans released this week.

The ailing economy and strapped government budgets led the ARC to ax or defer beyond my likely lifetime:

– optional toll lanes alongside I-75 and I-575 in Cobb and Cherokee counties
– a component that would carry only tractor trailer trucks
– widening South Cobb Drive from Cobb Parkway to Atlanta Road, and from Atlanta Road to Bolton Road
– widening University Ave. from Metropolitan Parkway to the Downtown Connector
– new interchange at I-675 and and Cedar Grove Road
– mass transit line across northern I-285 from Cumberland to Perimeter Center Continue reading →