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As a trucking accident attorney in Atlanta, I have sometimes wondered how can one predict which truck drivers will be in crashes. Now a study by the American Transportation Research Institute reveals the predictive value of driver records. Drawing on data from 582,772 U.S. truck drivers over a two-year time frame, the study shows that:

* A ‘failure to use/improper signal’ conviction was the leading conviction associated with an increased likelihood of a future crash. A truck driver convicted of this offense had a risk of future crash increased by 96 percent.

Nine additional convictions were also significant crash predictors:

* A past crash – 88 percent * An improper passing violation – 88 percent * An improper turn conviction – 84 percent * An improper or erratic lane change conviction – 80 percent * An improper lane/location conviction – 68 percent * A failure to obey traffic sign conviction – 68 percent * A speeding more than 15 mpg over speed limit conviction – 67 percent * Any conviction – 65 percent * A reckless/careless/inattentive/negligent driving conviction – 64 percent
Prudent trucking companies try to assess the crash risk of drivers. Others just don’t seem to care enough to examine anything. One former employer of a truck driver — whose new employer had not followed the rule requiring background checks — told me “I wouldn’t trust that boy to drive a wheelbarrow.” If the new employer had bothered to call the former employer, he would not have been hired, the new crash would not have happened, and my client wouldn’t have had his back broken.
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Container freight trucks entering and exiting the Port of Savannah have presented a substantial safety hazard on surface streets near the port.

Now Gov. Nathan Deal is supporting a proposal to build a new 3.1 mile highway link between I-95 and the Port of Savannah. It would be used primarily by tractor-trailers hauling cargo to and from the Savannah port, the nation’s fourth largest container port.

While the economic development motivation is to invest in the seaport and international trade, a side benefit would be to separate all those container trucks from street traffic around Port Wentworth and Garden City. That will save lives.
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In my truck and bus accident law practice in Atlanta, one of the more newsworthy cases in which I have participated arose from the crash of the Bluffton Univeristy tour buss in Atlanta in 2007. In predawn darkness, a bus took a confusingly marked exit ramp and crashed off a bridge, killing the bus driver, Jerome Niemeyer, his wife, and five Bluffton University baseball team members and injuring other passengers. I have been local counsel for ten of the team members.

After the Georgia DOT and the bus company’s insurer paid their coverage limits, litigation was initiated in Ohio seeking to have the university’s liability insurance apply to the bus company and driver.

Recently, teh Ohio Supreme Court ruled that a driver of a rented bus is covered under a university’s auto insurance policy.

The representative parties for our team in Ohio argued that Niemeyer was an insured because he drove a bus, with Bluffton’s permission, that Bluffton hired. The university’s insurers each filed a declaratory judgment action, arguing that the university did not hire but rather contracted for transportation services, making Niemeyer an independent contractor and unforeseen third party they did not intend to cover.

In a 5-2 decision, the Ohio Supreme Court sided with the plaintiffs, reversing the lower court’s ruling. Considering the plain meaning of “hire” and “permission,” the court held that Niemeyer was an insured.

Justice Paul Pfeifer wrote for the majority, “We are not persuaded by the contention that the driver of a bus that Bluffton rented from a company in the business of renting buses is an unforeseen third party, when a clause in the insurance policy covers ‘anyone else’ driving a hired auto.” He added, “Whether the insurance company intended the clause to apply is immaterial because the language of the policy supports a conclusion that Niemeyer is an insured.”

Justice Evelyn Lundberg Stratton dissented, writing that,. “Today’s opinion unreasonably extends coverage to a third party and effectively opens the door for similar claims under other scenarios because the omnibus clause is standard in many insurance policies.”

This opens the door for additional compensation for injured members of the baseball team.
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The Safe Roads Act, proposed bipartisan legislation sponsored by Senators Mark Pryor and John Boozman, both of Arkansas, would tighten the handling of truckers‘ drug and alcohol tests. If passed into law, this bill would require medical review officers, employers, and service agents to report to the Federal Motor Carrier Safety Administration (FMCSA) any positive drug or alcohol test results
The bill would also establish a drug test database for commercial drivers and require employers to check it prior to hiring a truck driver. The database is the recommendation of the Government Accountability Office (GAO).

Currently, some big rig commercial truckers keep driving tractor trailers Drug and alcohol testing requirements do exist, but some truckers keep driving big rigs even after they test positive. Not all job applicants report their drug test history when seeking a job, not all carriers do full background checks, and some self-employed drivers just ignore the rules. In recent studies, about 68,000 commercial drivers tested positive for drug use, out of a total of 3.4 million.

In my Georgia trucking accident trial practice, I have sued trucking companies that show a nearly total disregard for rules requiring drug tests and truck driver background checks. In one recent case, a trucking company had been cited for dozens of violations of drug test and background checking rules within three years before a crash involving a newly hired driver. The new driver, as you might suspect, had not been subjected to a drug test and his background had not been checked before he crashed into a lady in rush hour traffic.

Unfortunately, such scofflaw conduct is all too common among some trucking companies. The Safe Roads Act, if passed, would help, though I have no delusion that it would stop the cheating.

The process of investigation and discovery to uncover such a record of violations requires an attorney experienced in trucking litigation and who knows how to dig out hidden information, and then get it into evidence at trial.
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Federal trucking safety rules continue to expand on commercial truck drivers’ texting or calling while they drive As a trial attorney handling tractor trailer and big rig crash cases throughout Georgia, I see how important this can be in trucking accident cases.

The latest Notice of Proposed Rulemaking was published April 29 by the Pipeline and Hazardous Materials Safety Administration, part of DOT, would prohibit use of a handheld cell phone by drivers moving a quantity of hazardous materials that must be placarded under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR Part 73 in intrastate commerce.

This would expand upon rules already proposed by the Federal Motor Carrier Safety Administration (also part of DOT). FMCSA barred texting by commercial motor vehicle drivers in a September 2010 final rule. It proposed to restrict the use of hand-held mobile phones in a Dec. 21, 2010,

PHMSA estimates that there are approximately 1,490 intrastate motor carriers that could be affected by this rulemaking.
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Monday morning, an unidentified man died when he drove his Honda into the rear of an unoccupied tractor-trailer truck parked on the shoulder of a southbound ramp on to Interstate 85 in DeKalb County., according to a report by Rhonda Cash of the Atlanta Journal Constitution.

While strange to the uninitiated, this sort of event is common enough that the Federal Motor Carrier Safety Regulations include the following rule:

49 CFR 392.22 Emergency signals; stopped commercial motor vehicles.

(a) Hazard warning signal flashers. Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section. The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b) of this section.

(b) Placement of warning devices–

(b)(1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by Sec. 393.95 of this subchapter, in the following manner:

(b)(1)(i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;

(b)(1)(ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and
(b)(1)(iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.

(b)(2) Special rules–(i) Fusees and liquid-burning flares. The driver of a commercial motor vehicle equipped with only fusees or liquid- burning flares shall place a lighted fusee or liquid-burning flare at each of the locations specified in paragraph (b)(1) of this section. There shall be at least one lighted fusee or liquid-burning flare at each of the prescribed locations, as long as the commercial motor vehicle is stopped. Before the stopped commercial motor vehicle is moved, the driver shall extinguish and remove each fusee or liquid- burning flare.

(b)(2)(ii) Daylight hours. Except as provided in paragraph (b)(2)(iii) of this section, during the period lighted lamps are not required, three bidirectional reflective triangles, or three lighted fusees or liquid- burning flares shall be placed as specified in paragraph (b)(1) of this section within a time of 10 minutes. In the event the driver elects to use only fusees or liquid-burning flares in lieu of bidirectional reflective triangles or red flags, the driver must ensure that at least one fusee or liquid-burning flare remains lighted at each of the prescribed locations as long as the commercial motor vehicle is stopped or parked.

(b)(2)(iii) Business or residential districts. The placement of warning devices is not required within the business or residential district of a municipality, except during the time lighted lamps are required and when street or highway lighting is insufficient to make a commercial motor vehicle clearly discernible at a distance of 500 feet to persons on the highway.

(b)(2)(iv) Hills, curves, and obstructions. If a commercial motor vehicle is stopped within 500 feet of a curve, crest of a hill, or other obstruction to view, the driver shall place the warning signal required by paragraph (b)(1) of this section in the direction of the obstruction to view a distance of 100 feet to 500 feet from the stopped commercial motor vehicle so as to afford ample warning to other users of the highway.

(b)(2)(v) Divided or one-way roads. If a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a divided or one-way highway, the driver shall place the warning devices required by paragraph (b)(1) of this section, one warning device at a distance of 200 feet and one warning device at a distance of 100 feet in a direction toward approaching traffic in the center of the lane or shoulder occupied by the commercial motor vehicle. He/she shall place one warning device at the traffic side of the commercial motor vehicle within 10 feet of the rear of the commercial motor vehicle.

The reason for such a rule is that drivers approaching at the speed limit often do not perceive that a tractor trailer is sitting still until too late to stop, and then impact with an 80,000 vehicle is much like impact with a cement barrier. Moreover, impact with the side or rear of a stopped tractor trailer with typically weak under-ride bars can easily lead to decapitation of occupants of the striking passenger vehicle.

When such incidents get into litigation, the challenge is to prove whether an unmarked tractor trailer or big rig had been sitting on the shoulder more than ten minutes. Often this requires an immediate demand for preservation of electronic data from electronic data recorders and satellite communications systems that many trucking companies employ.

In making such demands, one must anticipate that a trucking company will also demand an opportunity to download data from the electronic control module of the striking vehicle This may require an immediate investment of several thousand dollars in accident reconstruction costs.

One must also anticipate disclosure of cell phone billing records to determine whether the driver was distracted by a cell phone when he collided with the stopped big rig.

If the driver who struck the stopped truck was speeding or distracted, then rules of comparative negligence, contributory negligence and failure to avoid consequences of another’s negligence would reduce or bar tort recovery.

Thus, the starting point for survivors in such a situation may be to immediately check cell phone records and download electronic data from the car, and then make a decision about requesting data from the trucking company.
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The SmartDrive Safety study of commercial drivers observed with in-vehicle recorders that capture video, audio and vehicle data during sudden stops, swerves, collisions and other risky driving maneuvers reached a surprising conclusion.

The study showed that the top 5 percent of drivers with the most driving distractions were distracted 67 percent of the time during which a risky driving maneuver was observed – nearly six times more often than the rest of the drivers.

Just 5 percent of the drivers accounted for the majority of events involving those devices – 57 percent of all mobile phone incidents captured and 52 percent of all operating-handheld-device incidents.

The nine most common distractions observed in conjunction with a risky driving maneuver were:

* Object in Hand, 44.5%, which includes mp3 players, PDAs and paperwork * Talking on a Handheld Mobile Phone, 13.4%
* Beverage, 12.7%
* Food, 10.1%
* Smoking, 9.9%
* Operating a Handheld Device, 9.1%
* Talking/Listening Mobile Phone – Hands Free, 5.2%
* Manifest, Map or Navigation, 1%
* Grooming/Personal Hygiene, 0.6%
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Trucking safety practices over the past year and a half have been impacted by adoption of the Comprehensive Safety Analysis (CSA) program.

The CSA has three components that measure safety performance, evaluating high-risk behaviors and crafting appropriate interventions.

For commercial motor carriers, the standards significantly alter how truckers and companies operate and maintain their vehicles and deal with federal compliance. Some of the changes include:

– CSA replaces the old SafeStat system with the Safety Measurement System (SMS). Under the SMS, safety fitness determinations are issued monthly; factors such as driver fitness, unsafe driving practices, vehicle maintenance, crash history and cargo loading or securing impact this monthly evaluation.

– Companies are required to modify their “on-duty” hours and maintain comprehensive electronic travel logs.

– Trucking companies that do not pass monthly safety evaluations are subject to earlier safety interventions, including:

– Early warning letters

– Targeted roadside inspections

– Focused compliance reviews Continue reading →

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For nearly as long as I’ve been an attorney representing people hurt in tractor trailer accidents in Georgia, we have seen a running battle over the hours of service rules that are supposed to protect people from the dangers of truck driver fatigue.

Without reviewing the whole history (see this, this, this, this, this, this , this and this), let’s just say it hasn’t stopped.

Trucking industry organizations now say that the current rule — 11 hours driving / 14 hours on duty per day — has improved safety. For 2009, the National Highway Traffic Safety Administration (NHTSA) recorded 3,380 fatalities in 2,987 truck-involved crashes, down from 4,245 fatalities and 3,754 truck-involved crashes reported in 2008. At the same time, the Federal Highway Administration (FHWA) has reported that trucks traveled more than 288 billion miles in 2009, down from 310.7 billion in 2008. Industry advocates say that means the rate of truck-involved fatalities on U.S. highways fell to 1.17 per 100 million miles– down from a rate of 1.37 in 2008 for a 14% drop.

We all know that figures don’t lie, but they can be subject to manipulation. Before concluding that the current hours of service rule has actually caused an improvement in safety, it would be good to see a study that adequately takes into account multiple factors in addition to the rules change — changes in overall motor vehicle traffic in the economic slump, trucking miles, weather and road condition variables, etc.

Of course, in handling individual truck crash cases, and the resulting mayhem, we work with the rules as they are and don’t worry too much about what they ought to be.
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For many years, interstate truck drivers have referred to the driver logs required by federal law as “comic books.” Falsification of logs has been so common that many drivers kept two sets of logs, one for their own use and another to show to inspectors. As a trucking accident trial attorney, I have spent many hours ferreting out the misrepresentations, using loading dock tickets, fuel receipts, etc., to recreate an honest timeline. Once, when I established in deposition that a log was a complete bundle of lies, and that the trucker had been driving 20 of the previous 24 hours before he ran over a family and killed their son, the truck driver broke down and cried.

Though the technology has long been available, the trucking industry has been slow to accept a requirement of electronic on board recorders, replacing easily falsified paper logs with electronic ones. The current FMCSA rule, which will go into effect June 4, 2012, says that carriers that violate hours of service rules 10 percent of the time, based on single compliance review, must use electronic onboard recorders to track driver hours. It will affect only 5,700 of 500,000 interstate carriers.

Now, however, there is growing acceptance among trucking industry groups of the idea of electronic driver logs. The Truckload Carriers Association, American Trucking Associations, National Private Truck Council, and . National Tank Truck Carriers, and all recently announced support for federal laws and regulations that would require trucking companies to use electronic logging devices to monitor driver hours-of-service. The Owner Operator Independent Drivers Association still opposes mandatory electronic logs.

Of course, the devil is often in the details. As long as there is an economic motivation to cheat, there will be those who find a way to do so. As electronic logging systems become more common, those of us whose job it is to look behind the surface to determine the truth will be required to become more sophisticated about detection of falsified electronic records.
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Email: ken.shigley@johnsonward.com
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