The Obama administration has announced that Anne Ferro will be nominated to head the Federal Motor Carrier Safety Administration.
She is currently president of the Maryland Motor Truck Association, a trucking industry organization. Previously she ran the Maryland Motor Vehicle Administration, administering drivers licenses.
Her nomination drew immediate praise from trucking industry officials.
The more things change, the more they stay the same.
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The hard questions are not between good and bad, but between good and good, and between bad and bad.
That maxim is illustrated in a New York Times article by Josh Voorhees about Charles Hurley, the nominee to become administrator of the National Highway Traffic Safety Administration.
The conflict is between CAFE standards on fuel economy and improving safety standards. It’s a tough call between improving fuel economy with smaller cars and improving safety with tougher cars.
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A a trucking safety attorney in Atlanta, two of the federal agencies I watch most closely are the Federal Motor Carrier Safety Administration and National Highway Traffic Safety Administration.
The President’s nominee to head the Federal Motor Carrier Safety Administration is Charles A. Hurley, CEO of Mothers Against Drunk Driving (MADD).
Mr. Hurley as previously a senior official of the National Safety Council and the Insurance Institute for Highway Safety. The White House said Hurley had worked extensively with law enforcement on air bag and seat belt issues, teen driving and child passenger safety.
A former naval intelligence officers, he also worked in a variety of staff positions for elected officials.
President Obama has yet to name a new head of the Federal Motor Carrier Safety Administration.
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Corporate shell games to avoid accountability for injuring or killing people are all too common. We see it an a variety of contexts. Today I got an email outlining how attorneys for nursing homes are directing their clients to lower their insurance coverage to $100,000 and set up an intricate network of corporate entities to protect the real estate and the owners’ assets, while leaving anyone injured in their operations high and dry.
In the trucking context, there is a long history of motor carriers using creative subterfuges to avoid financial responsibility for people harmed by trucks hauling freight for them. Between 1935 and 1956, many interstate motor carriers attempted to immunize themselves from liability for the negligence of their drivers by leasing trucks and nominally classifying the drivers who operated the trucks as “independent contractors.”
Because trip-leasing made it difficult for a member of the public injured by the operation of a leased vehicle to fix carrier responsibility, and in order to protect the public from the negligent conduct of the often judgment-proof truck-lessor operators, Congress passed a law in 1956 to require interstate motor carriers to assume full direction and control of the vehicles that they leased “as if they were the owners of such vehicles.”
The purpose of that legislation was to ensure that interstate motor carriers would be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants. Thus, since 1956, owner-operators who are independent contractors in relation to motor carriers have been considered “statutory employees” of the carriers in relation to any injured member of the public.
Congress has unambiguously expressed its clear intent to establish minimum national standards for safety and and financial responsibility of motor carriers. The Regulations authorized by Congress unambiguously support holding a motor carrier accountable for injury to an innocent member of the traveling public.
Under the Federal Motor Carrier Safety Regulations, the definition of “motor carrier” includes “a motor carrier’s agent,” “employee” includes “an independent contractor while in the course of operating a commercial motor vehicle,” and “lease” includes a “contract or arrangement in which the owner grants the use of equipment, with or without driver. . . .” The disjunctive reference to “contract or arrangement” must have some significance other than mere redundancy. In addition, the Regulations require that “[e]very motor carrier, its officers, agents . . . shall be instructed in and comply with the rules. . . .”
While the Regulations require a written lease, until last summer there had never been a reported court decision anywhere in the United States that let a motor carrier evade liability when it informally hired an owner-operator without bothering with the formality of a lease.
However, in one of our cases in which a jury had awarded over $2.3 million to our client for a serious permanent injury, a single judge of the Georgia Court of Appeals wrote a decision that disregards or misconstrues the Federal Motor Carrier Safety Regulations and conflicts with every relevant reported decision of both federal and state courts across the nation. See Clarendon Nat. Ins. Co. v. Johnson, 293 Ga.App. 103, 666 S.E.2d 567 (2008).
Standing the law on its head, that decision provides judicial blessing for motor carriers to circumvent all responsibility for owner-operator drivers by avoiding either execution of a written lease or use of the word “lease” in an oral arrangement. The only case cited as authority for the holding was an unpublished Texas decision that has nothing to do with our case, either on the facts or on the law.
This decision enables interstate motor carriers to hire without accountability unqualified owner-operator drivers who have no motor carrier authority and no commercial driver’s license, and who make no pretense of complying with any of the Federal Motor Carrier Safety Regulations.
This decision allows violation of one of the Federal Motor Carrier Safety Regulations to exempt motor carriers from compliance with the rest of the regulations, thus enabling them to immunize themselves through semantics. In this time of economic turmoil, motor carriers are freed to roll back the clock more than half a century to the type of abuse that the 1956 adoption of the “statutory employer” rule was designed to eliminate.
Within the past few days we have filed a petition for certiorari to the Supreme Court of the United States. That is a statistical long shot, as the Supreme Court agrees to hear only a tiny percentage of even highly meritorious cases.
If this decision stands, interstate trucking companies that are inclined to evade safety and financial responsibility rules will be able to revert to the pre-1956 practice of using non-compliant, unqualified and financially incapable “independent contractor” truckers for whom the carriers would bear no responsibility to the public. All of this was pointed out the the Georgia Court of Appeals and Supreme Court, but under the circumstances I find it hard to believe that anyone other than the one judge whose name is on the decision actually read and reflected upon the briefs and the implications of the decision.
Avoiding the expense of equipment maintenance, safety management and financial responsibility required by federal law, they could undercut the cost structure of law-abiding motor carriers and owner-operators, subjecting lawful trucking operations to unfair competition from those that exploit this loophole.
As bad drives out good, if this Georgia Court of Appeals decision approving the evasion of interstate motor carrier responsibility stands, the safety of the public on highways throughout the United States will be adversely impacted.
And innocent people across the country will die because one judge of the Georgia Court of Appeals gave his blessing to an evasion of responsibility contrary to all other interstate motor carrier law in the United States.
No, I’m not attempting to argue my appeal in a blog, as if that were even possible. I’m just warning other folks around the country that they may see the same sort of evasion as motor carriers learn that this shell game fooled a state Court of Appeals.
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President Obama has signed legislation killing the Transportation Department’s controversial test of longhaul cross-border trucking with Mexico. As a trucking safety trial attorney in Atlanta, Georgia, I haven’t yet seen problems with Mexican truckers but I do see truckers who don’t speak English although adequate English proficiency is required under the Federal Motor Carrier Safety Regulations.
A provision of a $410 billion spending bill prevents DOT from using any money in the 2009 fiscal year to “establish, implement, continue, promote or in any way permit” a cross-border trucking program with Mexico. However, the Department of Transportation quickly released a statement to the effect that officials would study the issue some more.
All this is well summarized in an article by Sean McNally in Transport Topics.
Until President Clinton signed a moratorium on admission of Mexican trucks in 1994, Mexican trucks entered the US routinely, much as Canadian trucks do.
Under the North American Free Trade Agreement (NAFTA) trucking companies in all three counties claimed rights to move freely back and forth between the countries. However, it never happened with Mexican trucks.
The US DOT over the past couple of years made halting efforts to begin admitting a limited number of Mexican truckers to the US. However, there was a firestorm of controversy, largely expressed in terms of maintaining US safety standards on Mexican trucks entering the US when safety standards and enforcement in Mexico are questionable. There were also concerns expressed about the violent drug trade in Mexico, and the potential for Mexican trucks smuggling drugs, illegal immigrants and terrorists.
Now the Mexican government is talking about economic retribution and Mexican trucking companies are threatening lawsuits in US courts.
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Truck driver fatigue is one of the most obvious causes of truck crashes. Obstructive sleep apnea is among the most common contributing factors. Obesity is a big risk factor for obstructive sleep apnea.
Now there is another study reconfirming the obvious: that obesity-driven testing strategies identify commercial truck drivers with a high likelihood of obstructive sleep apnea (OSA), and that mandating obstructive sleep apnea screenings could reduce the risk of truck crashes.
The study by Cambridge Health Alliance published in the March 2009 edition of the Journal of Occupational and Environmental Medicine concludes that:
– Truck drivers with sleep apnea have up to a 7-fold increased risk of being involved in a motor vehicle crash.
– Drivers with sleep apnea frequently minimize or underreport symptoms such as snoring and daytime sleepiness.
– A majority of truck drivers did not follow through on physician recommendations for sleep studies and sleep apnea treatment.
– It is possible that many of the 14 million truck drivers on American road have undiagnosed or untreated sleep apnea.
– “It is very likely that most of the drivers who did not comply with sleep studies or sleep apnea treatment sought medical certification from examiners who do not screen for sleep apnea and are driving with untreated or inadequately treated sleep apnea.”
– The Federal Motor Carrier Safety Administration is currently deliberating recommendations to require sleep apnea screening for all obese drivers based on body mass index or “BMI.”
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Handling truck accident injury and death cases in Georgia, I have often seen how inadequate the levels of insurance coverage can be for the havoc created by large truck crashes. Now there are efforts to catch up the levels of coverage for 29 years of inflation.
The current levels of insurance coverage required for interstate motor carriers were set in 1980.
The Motor Carrier Act of 1980 set minimum insurance standards for interstate trucks at $750,000 for trucks hauling general freight up to $5 million for trucks carrying hazardous materials.
Adjusted to inflation according to the Consumer Price Index:
• $750,000 in 1980 equals $1,921,811in 2009, and is worth only $292,693 today.
• $1 million in 1980 equals $2,562,415 in 2009, and is worth only $390,257 today.
• $5 million in 1980 equals $12,812,075 in 2009, and is worth only $2,491,933 today.
My friend Steve Gursten in Michigan has done a good job summarizing some horror stories of the inadequacy of the 1980 levels of coverage required for trucking companies on michiganautolaw.com.
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As a trucking safety trial attorney in Atlanta, I often see cases involving medically unfit drivers. I’ve seen cases where truckers were blind in one eye, were supposed to carry an oxygen tank 24/7 for COPD, or had untreated obstructive sleep apnea, all medically disqualifying conditions.
Fortunately, the Federal Motor Carrier Safety Administration has initiated efforts to tighten medical certification requirements.
As reported by the Kentucky Post, in 2008 a congressional investigation revealed roughly one-third of medical certificates examined in roadside stops could not be verified. The doctors either didn’t exist or denied ever examining the truck driver.
Blank medical cards have been readily available on government websites. Until now, there has been nothing to stop drivers from just filling out the certificates themselves. A trucker could pick a doctor’s name from the phonebook, sign the certificate in their own hand, and look up the doctor’s medical license number on the internet. There is now no electronic database for truck drivers’ medical cards. When a trooper stops a trucker, there is no way for the officer to verify the medical card is real or valid. It’s just a piece of paper.
The congressional investigation also revealed more than 500,000 commercial drivers qualify for full medical disability, according to federal agencies like the Veterans Administration and the Social Security Administration.
Until the new rules on medical certification take effect, those of us who handle trucking cases for the people hurt by truck accidents must be diligent in checking behind the medical certifications, which are too often bogus.
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The Federal Motor Carrier Safety Administration determined that a 99% pass rate in safety audits of new motor carrier entrants might be missing something, since new entrants were still involved in a higher percentage of trucking accidents.
The initial grant of authority to operate as an interstate motor carrier is provisional. For the first 18 months the new carrier is subject to stricter scrutiny than other carriers. Provisional authority to operate may be revoked immediately if any of the following “seven deadly sins” are found in a roadside inspection:
1. Using a driver who does not have a valid CDL (commercial drivers license). This includes drivers with falsified, revoked licenses, or one missing a required endorsement.
2. Operating a vehicle placed out of service for violations of safety regulations without taking necessary corrective action.
3. Involvement in a hazardous materials reportable incident involving radioactive material, certain explosives, and poison inhalation hazard materials.
4. Involvement in two or more hazardous materials reportable incidents.
5. Using a driver who tests positive for controlled substances or alcohol or who refuses to test for those substances.
6. Operating a commercial motor vehicle without the required levels of financial responsibility (insurance or approved self-insurance).
7. Having a driver or vehicle out of service rate of 50% or more based on at least three inspections within a 90 day period.
Any of these will trigger an immediate safety audit if there has not yet been an audit. If there has been an audit, there will be a notice requiring corrective action within 30 days. Failure to respond within 30 days will result in revocation of the new entrant’s registration.
I will post more later about safety audits and penalties for failing safety audits.
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It is not uncommon for a carrier with a bad safety record to shut down one corporate entity and open a new company involving the same individuals. By changing corporate entities and getting a new DOT number the company could effectively hide the bad safety record. When an existing motor carrier seeks to register as a new carrier to get a new DOT number, it is known as a “chameleon carrier.”
Now, however, the adoption of 49 CFR 385.306 seeks an end to this shell game. If a company provides false or misleading information in the application process any new applicant registration is subject to revocation. The application requires disclosure of related companies and individuals, and these are to be scrutinized for outstanding orders to cease operations. The new entrant registration will be linked to the history of any related old motor carrier in the FMCSA database.
When we have cases against companies with new DOT numbers, we normally conduct discovery about the relationship of the owners to former companies with bad safety records.
And when we have had cases against unsafe motor carriers with minimum insurance coverage, thinking we can seize their assets to collect a judgment in excess of policy limits, we have been alert to the possibility that the owners would shut down their corporation and open up the next day under a new name and DOT number.
The new regulation is a step in the right direction to protect the safety of the traveling public.
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Georgia Truck Accident Attorney Blog