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There is a high incidence of accidents in the United States involving large trucks (tractor-trailers, single-unit trucks, and some cargo vans weighing more than 10,000 pounds). According to government statistics, large truck accidents accounted for 5,264 deaths in 1997, 5,374 deaths and 127,000 injuries in 1998. See the U.S. Department of Transportation, National Highway Traffic Safety Administration, Fatality Analysis Reporting System, Traffic Safety Facts web site at http://www.nhtsa.dot.gov/people/ncsa/pdf/Truck98.pdf The purpose of this paper is to identify some tips that may be useful in presenting claims against trucking companies.
The United States Congress
attempted to reduce the health and safety hazard of an unregulated trucking
industry in 1935 when it passed the Motor Carrier Act, which created the Bureau
of Motor Carriers of the Interstate Commission. The law has been amended and
renumbered, and the agencies have been abolished, recreated and renamed from
time to time over the years. The law is currently codified as 49 U.S.C. Section
13901-13908. The law gives the agency the authority to establish and enforce
standards for the protection of the public.
Pursuant to the authority
granted to it by Congress through the enabling legislation described above, a
federal agency, the United States Department of Transportation, Federal Highway
Administration (FHWA), Bureau of Motor Carrier Safety, has promulgated Federal
Motor Carrier Safety Regulations applicable to trucking companies involved in
interstate commerce. These regulations are now codified in 49 C.F.R. Part 390.
See the agency’s web site at
http://mcregis.fhwa.dot.gov/regtoc.htm The actual language of the
regulations consists of hundreds of pages of text, too voluminous to set forth
in full in this document. The exact wording of the regulations can by seen by
clicking on the hyperlinks listed below. What follows is an outline of their
content.
The federal statute provides
that the leasing of motor vehicles shall comply with requirements set forth by
the FHWA. 49 U.S.C. Section 14102. See
http://www4.law.cornell.edu/uscode/49/14102.html All leases must be in
writing and signed by all parties involved. The statute requires that the lessee
have control and responsibility for the motor vehicle as prescribed by the
regulations on safety and operation. 49 C.F.R. Section 376.11.
Perhaps the most important
regulation regarding lease agreements is 49 C.F.R. Section
376.12(c), which states that the “authorized carrier lessee shall assume
complete responsibility for the operation of the equipment for the duration of
the lease.”
The common law reasoned that
responsibility for the motor vehicles could be determined through an analysis of
the relationship between the truck owner and driver, as compared to that of the
lessee and driver. Under the common law, the trucking company that held the
motor carrier certificate and employed the driver was the master and the driver
was the servant. The employer had control over and responsibility for the
driver only when the truck was being used for the employer’s business, but not
while the truck was being used for a different trucker under a trip lease. The
doctrine of respondeat superior applied to impose liability on the employer if
the accident occurred while the driver was acting within the scope of
employment. But if a trip lease was involved, if the driver was an
owner-operator, the employer holding the motor carrier certificate was off the
hook, since the employer did not control the driver, and there often was no
financially responsible party against whom the victim of an accident could
proceed. Therefore, motor carrier companies took advantage of common law that
insulated them from liability by entering into trip leases. Federal statutes and regulations have now changed the common law and imposed responsibility on the carrier when a trip lease is involved. This is referred to as "statutory employment,” which fixes liability on the carrier who enters into a lease and allows the driver to operate under its authority. When the regulations apply, the motor carrier is not only vicariously liable for the driver’s negligence, but the carrier may also be liable for its own independent violation of its statutory duty to ensure compliance by the driver with the regulations. 49 C.F.R. Section 390.11. If the plaintiff can prove that the carrier consciously and recklessly disregarded its duties, punitive damages may be sought and recovered.
Disputes still arise today over
liability between the lessor and lessee. The issue is usually scope of
employment, and employment for whom. Section
49 C.F.R. Section 390.21 provides leasing requirements for carriers. Special
identification of the equipment being used and the name of the motor carrier
operating the equipment is required on both sides of the vehicle. Scope of employment becomes an issue when the accident occurs while the driver is operating the vehicle but not on a specific pickup or delivery. The owner-lessor usually will purchase “deadhead” and "bobtail” insurance coverage for those times when a truck is coming to or from a job with an empty trailer, or no trailer at all, respectively.
In another attempt to decrease
the number of motor vehicle accidents, the federal agency has promulgated
regulations describing specific requirements and qualifications for carriers and
drivers. The limits mandate that after ten hours of driving time or 15 hours of
on-duty time in a day, the employee must have eight consecutive hours of
off-duty time. In addition, no employee may drive after 60 hours of on-duty
work in a seven-day period, or 70 hours on-duty in an eight-day period. This
rule was established to prevent accidents resulting from drowsy or fatigued
drivers. The hours of service regulations are very important in a truck accident
case because if they are violated, the truck driver and carrier may be liable
without further proof of negligence. In order to enforce these laws, the federal agency requires that truck drivers keep daily logs of their driving time, pursuant to 49 C.F.R. Section 395.8. The drivers are responsible for recording information on a standardized grid, which includes the following: date, total miles driven that day, truck and trailer number, name of carrier, driver’s signature, 24-hour starting time, main office address, remarks, name of co-driver, total hours, and shipping document numbers. These records can be checked against any other documents available to investigating attorneys. Documents such as credit card receipts, pay records, and other daily driving records can be used to find discrepancies. Any falsification of records suggests that either the carrier did not properly monitor the driver, or that it consciously ignored the violation. In any case, such activity is not tolerated by the agency and can easily help a lawsuit against a trucking company.
Violations such as those above
can affect a carrier’s safety rating, which is made readily available to federal
agencies, insurance companies, and the public. These ratings also determine how
a company may operate. For example, an unsatisfactory rating means that the
carrier may not transport certain hazardous material or more than 15 passengers.
49 C.F.R. Section 385.13. Companies are given a satisfactory, conditional,
or unsatisfactory rating based on compliance with the safety fitness standards
spelled out in Section 49 C.F.R. section 385.7.
Drivers also have qualifications
they must satisfy in order to be hired by carrier companies. Section 49 C.F.R.
Section 391 lists the requirements and qualifications for drivers as follows: a
driver must be 21 years old, able to read and speak English, able to safely
operate the vehicle, able to determine whether cargo is securely loaded,
physically qualified to handle a commercial motor vehicle, hold a valid
commercial drivers license, complete an application for employment, pass a
written and driving test in the type of vehicle expected to operate, and have no
criminal history. Drivers are then to be reviewed annually by the carrier.
The use of alcohol and other
controlled substances often associated with motor vehicle accidents is under
strict scrutiny by the federal agency. No driver is allowed to report to duty
with an alcohol concentration of 0.04 or greater, pursuant to
49 C.F.R. Section 382.201, or be on duty with any measured alcohol
concentration level at all, pursuant to
49 C.F.R. Section 392.5. Violations of these laws can subject a carrier to
penalties and will definitely strengthen any case against a trucking company.
According to government
statistics, large trucks are involved in almost 5,000 fatal motor vehicle
crashes and almost 100,000 injury crashes per year in the United States.
http://www-nrd.nhtsa.dot.gov/pdf/nrd-30/NCSA/TSF2001/2001largetrk.pdf In
2001, 429,000 large trucks were involved in traffic crashes in the United
States, resulting in almost one out of eight traffic fatalities that year. See
Traffic Safety Facts, supra. More than one-fifth of all passenger vehicle
occupant deaths in multiple-vehicle crashes occur in collisions with large
trucks. Passenger car occupants are about six times as likely to die when they
collide with a large truck compared with another car. See the web site for the
Insurance Institute For Highway Safety, Fatality Facts for Large Trucks,
http://www.iihs.org/safety facts/fatality facts/trucks.htm.
The United States Congress
attempted to reduce the health and safety hazard of an unregulated trucking
industry in 1935 when it passed the Motor Carrier Act, which created the Bureau
of Motor Carriers of the Interstate Commission. The law has been amended and
renumbered, and the agencies have been abolished, recreated and renamed from
time to time over the years. The law is currently codified as 49 U.S.C. Section
13901-13908. http://www4.law.cornell.edu/uscode/49/stIVpBch139.html
The law gives the agency the authority to establish and enforce standards for
the protection of the public. These regulations are now codified in 49 C.F.R. Part 390. See the agency’s web site at http://www4.law.cornell.edu/uscode/49/stIVpBch139.html. © 1999 - 2008 James A. Pitts |
