Truck cases: rules of the road.

Federal and state regulations were designed to protect the public from the dangers of large trucks, yet 393,000 of them were involved in crashes in 1996.

In 1991, the U.S. Congress enacted the Intermodal. Surface Transportation Efficiency Act (ISTEA) to address, in part, the explosive growth of the transportation industry.(1) In an effort to protect the public, the act restricted the length and the number of trailers hauled by truck drivers. Most tractor trailers are 65 feet long, and in dual or triple combination the overall length may stretch to the ISTEA maximum of 110 feet, the same as an average city block.

Despite ISTEA's safety pledge, trucks continue killing and injuring America's citizens. In 1996, nearly 393,000 large trucks(2) were involved in traffic crashes in the United States.(3) Large trucks represent only 3 percent of all registered motor vehicles in this country, yet they are responsible for 22 percent of all deaths in multiple vehicle collisions.(4)

On October 1, 1997, the Congress unanimously reauthorized ISTEA for six months. The chair of the House Transportation and Infrastructure Committee, Bud Shuster (R-Pa.), favors replacing the act with the Building Efficient Surface Transportation and Equity Act. Should Congress do this, the present restriction on the length, weight, and number of trailers will be rescinded. This will result in more rollovers, jackknifed vehicles, turn instability, and increased stopping distance due to greater length and weight of vehicles. Public safety will be compromised.

The dangers associated with large trucks traveling on public thoroughfares were recognized as early as 1935. That year, Congress enacted the Motor Carrier Act, which created the Bureau of Motor Carriers of the Interstate Commerce Commission (ICC).(5) The commission was charged with developing and enforcing safety regulations in the trucking industry. In response to the charge, the commission developed the Federal Motor Carrier Safety Regulations (FMCSR).(6)

The 1980s brought extensive deregulation of the trucking industry, and licensing and monitoring of professional truck drivers have been transferred to the states. The FMCSR remains the sole safety standard that professional truck drivers and motor carriers must follow in operating commercial motor vehicles.

The purpose of the FMCSR is to "help reduce or prevent truck and bus accidents, fatalities, and injuries by requiring drivers to have a single commercial motor vehicle driver's license and by disqualifying drivers who operate commercial motor vehicles in an unsafe manner."(7) A commercial driver's license (CDL) is required by the federal government but issued by the state. It requires advanced levels of knowledge and operating skill. The written exam for a CDL tests not only driving rules and safety but also an understanding of air brake systems, hazardous materials, and pre-trip inspection procedures.

Drivers may hold only a single CDL issued by their home state, thus ending the once common practice of obtaining multiple licenses to circumvent license suspensions or revocations in a particular jurisdiction. Information is centralized in the Commercial Driver's License Information System, which is accessible to state motor vehicle licensing agencies. Applicants for a commercial license can be routinely checked through this system.

The regulations apply to everyone who operates a commercial motor vehicle in interstate, foreign, or intrastate commerce, and to all their employers. Each professional truck driver and motor carrier is required to comply with FMCSR [subsections] 383, 390-397, and 399 at all times.(8) The preface of the FMCSR booklet proclaims that "safety is no accident."

Truck drivers and motor carriers may be jointly and severally liable for violating the regulations. In most jurisdictions, a violation of a statute or ordinance adopted for the public's safety may be negligence per se and may establish the violator's civil liability. Before the negligence per se doctrine can apply, injured parties must show they are members of the class that the statute or ordinance was intended to protect.

In addition, an injured party must show that the injuries suffered were of the kind that the statute was enacted to prevent. Further, the party must show that the statute or ordinance prescribes or pro scribes the conduct at issue and that this conduct proximately caused the alleged harm.(9) For example, 49 C.F.R. [sections] 392.2 requires that hazard warning flashers must be used when a truck breaks down or stops on the traveled part of the road or the shoulder.

Most states recognize the doctrine of negligence per se in areas of established statutory law, including building codes, motor vehicle safety statutes, motor vehicle and safety ordinances, and state liquor liability codes.(10)

The use of the FMCSR may be an important tool to establish liability in truck cases and to show how the negligent conduct of the truck driver and the motor carrier contributed to or caused the collision.

Sections of the FMCSR most regularly used in litigation against defendants are as follows:

[sections] 383 Minimum uniform commercial driver's license requirements: drug testing; required knowledge and skills; federal disqualification; employer responsibilities; requirements to obtain a driver's license.

[sections] 385 Safety fitness procedures.

[sections] 387 Minimum levels of insurance coverage: $750,000 per carrier operating in interstate commerce; and $1 million per carrier if the carrier transports hazardous cargo in interstate commerce.(11)

[sections] 390 Trucking company minimum requirements. (Carriers are subject to federal on-site review of vehicle inspection and maintenance procedures and records, driver qualifications and hours of service compliance, accident histories, and related subjects. Carriers receive a "safety fitness" rating: Certain aspects of the company's operating authority can be terminated for carriers that are judged unsatisfactory.)(12)

[sections] 391 Qualifications of drivers.

[sections] 392 Operation of motor vehicles.

[sections] 393 Vehicle options necessary for safe operation.

[sections] 395 Driver's hours of operation (including maximum hours on-duty, off-duty, and in sleeper berth).

[sections] 396 Inspection, repair, and maintenance of vehicles.

[sections] 397 Transportation of hazardous materials; driving requirements and parking rules.

The FMCSR establishes minimum safety standards for trucking companies and professional truck drivers. Merely because a company and a driver satisfy the standards does not obviate their responsibility to meet a higher standard of care that is reasonable under the circumstances.

Driver qualifications

Trucking companies have a nondelegable duty to hire only qualified operators. A qualified driver must satisfy the following criteria:(13)

1. Be at least 21 years old.

2. Be able to read and speak English.

3. By reason of experience or training, be able to safely operate the vehicle.

4. By reason of experience or training, be able to determine whether cargo is securely loaded.

5. Be physically qualified to operate a commercial motor vehicle (CMV). (A medical examiner must perform a thorough physical examination to determine if the driver is qualified.)(14)

6. Hold a valid commercial driver's license.

7. Complete an application form for employment.(15)

8. Complete a driving test in the type of vehicle the applicant will be expected to operate.(16)

9. Pass a written examination.

10. Be deemed qualified to operate a CMV (for example, must not have committed a criminal or other offense).

Defendant drivers who fail to satisfy one or more of these criteria subject themselves and the motor carrier to a viable punitive damages claim.(17)

Within 30 days after the initial hire, the carrier must submit an inquiry to every state agency that has issued a CDL to the driver during the last three years." A motor carrier must also investigate the driver's employment record for the previous three years. All materials obtained in the investigation must be maintained in the driver's employment file.

After the initial hire and investigation are completed, the carrier has a continuing duty to supervise drivers. A carrier must conduct an annual review of each driver's driving record and obtain a list of the operator's traffic violations.(19)

The carrier must also closely monitor the hours that its drivers work to ensure that they file correct logs and do not operate a CMV for more than the maximum number of hours.(20) Further, carriers are prohibited from encouraging drivers to speed or otherwise violate the FMCSR.(21)

All carriers are required to inspect, repair, and maintain vehicles subject to their control.(22) Carriers are also required to maintain repair records and perform periodic vehicle inspections.

Motor carriers may be liable for their violation of these regulations under the theories of negligent entrustment, negligent hiring and retention, and negligent vehicle maintenance.

Drivers, likewise, are obligated to comply with the FMCSR.(23) They must operate vehicles subject to the regulations "in accordance with the laws, ordinances, and regulations of the jurisdiction in which [the vehicle] is being operated."(24) Drivers are prohibited from operating a semitrailer when they are tired or ill or are so impaired that they cannot operate one safely.(25) Drivers are also required to report FMCSR and traffic violations to the carrier as part of a self-reporting program.(26)

Leased trucks

In circumstances involving a semitrailer that the carrier does not own, the carrier and the driver must sign a written lease agreement.(27) The agreement must include the following:

1. The names of the parties.

2. The duration of the lease, including the time and date it begins and ends.

3. The amount the carrier will pay the driver.

4. The assumption that the carrier exclusively possesses and controls the semitrailer's equipment.

5. The obligation of the driver to display the carrier's placard or sign on the truck identifying the carrier by name and including the ICC number issued to the carrier by the U.S. Department of Transportation.

6. A provision for termination of the lease and removal of the placard from the vehicle.

Generally, the motor carrier is vicariously liable for all acts of the driver while he or she is operating the semitrailer with the placard attached to the truck.(28)

In severe crashes, it may be prudent to search for additional entities partly or wholly responsible for the collision. For example, a company that loaded its goods into a trailer may be liable for damages caused by the negligent loading or configuring of the trailer if the contents shift and cause the vehicle to lose control or the contents fall on people unloading it.(29)

Also, an insurance company and/or claims management service that participated in approving or denying the hiring of a driver for the carrier may also be liable under the Restatement of Torts [sections] 324(a).(30)

Finally, a carrier that negligently provided a qualification certificate under 49 C.F.R. [sections] 391.65 indicating the driver was qualified to operate a semitrailer on a trip lease--a lease for one load or one day--may be liable even though the carrier is not a party to the ultimate lease agreement.

In truck crash litigation, it is important to immediately secure all evidence that may otherwise be lost, destroyed, or unavailable later. For example, the FMCSR requires all drivers to complete a log book (also known as Record of Duty Status) to document the number of hours the driver has operated the truck, been off duty, and been on duty but not driving. The FMCSR established timetables for drivers to file records with the motor carrier within 13 days of completing the approved log or form.(31) The driver's home terminal must keep the log book until the 20th day of the next calendar month. The book is then forwarded to the carrier's principal place of business and retained for six months.(32)

Immediately after a crash, trucking company representatives and its accident reconstruction experts will secure the semitrailer and perform the background investigation. Critical evidence inside the truck, including beer cans, pep pills, cellular telephones, magazines, and duplicate log books, may be removed. The truck itself may be sold for scrap and destroyed before an attorney is even consulted by members of the victim's family to protect their interests.

Safety at risk

The FMCSR, ISTEA, and state regulations require professional truck drivers to comply with specific rules designed to protect public safety and to disqualify unsafe drivers from operating semitrailers. Should the U.S. Congress further deregulate the trucking industry, there will be even larger, longer, and heavier trucks on our public thoroughfares. Professional truck drivers may be inadequately trained to safely handle the new rigs.

If these monster trucks start traveling the roadways, the number of truck-car crashes will probably increase and more innocent people will be injured or lose their lives.

Notes

(1.) 42 U.S.C. [subsections] 101-112 (1994).

(2.) As of 1995, there were 6,881,074 "large trucks" registered with the U.S. Department of Transportation or its state counterpart. NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., TRAFFIC SAFETY FACTS 1996, LARGE TRUCKS (1997). Federal Motor Carrier Safety Regulations define commercial motor vehicles (large trucks) to include trucks of 10,001 or more pounds. 49 C.F.R. [sections] 390.5 (2)(iii)(2) (1996).

(3.) NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., supra note 2.

(4.) INSURANCE INST. FOR HIGHWAY SAFETY, LARGE TRUCK FATALITY FACTS 1 (1997).

(5.) 40 U.S.C. [subsections] 1-27, 301-327 (1994).

(6.) 49 C.F.R. [sections] 301-399. A copy of the FMCSR Handbook for operators of commercial motor vehicles may be obtained for a nominal fee from the American Trucking Associations, 2200 Mill Rd., Alexandria, VA 22314-4677. The FMCSR is administered by the U.S. Department of Transportation, Federal Highway Administration.

(7.) 49 C.F.R. [sections] 383.1(a); see also NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., HIGHWAY SAFETY DESK BOOK, introduction (1996).

(8.) Id. [subsections] 390.1,390.3(e). American Trucking Associations, FMCSR Handbook, Receipt ("This receipt is to be read and signed by the driver. It should then be countersigned by the motor carrier representative and placed in the driver's qualification file"); see also Smith v. Tommy Roberts Trucking Co., 435 S.E.2d 54 (Ga. Ct. App. 1993).

(9.) Hageman v. TSI, Inc., 786 P.2d 452,454 (Colo. Ct. App. 1989); see also Inland Steel v. Pequignot, 608 N.E.2d 1378, 1383 (Ind. Ct. App. 1993).

(10.) The policy of the Federal Highway Administration "is to encourage each state to enforce uniform motor carrier safety and hazardous materials regulations for both interstate and intrastate motor carriers and drivers. The requirements for compliance with safety standards in one state should be compatible with the requirements in another state." 49 C.F.R. [sections] 350.5.

(11.) The Federal Motor Carrier Safety Act of 1997 amended 49 U.S.C. [sections]31138(g) to $5 million for the transportation of petroleum products classified as hazardous material in cargo tanks, portable tanks, or hopper-type vehicles with capacities of over 3,500 water gallons.

(12.) NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., supra note 7. To obtain a copy of a motor carrier profile, contact Computing Technologies, P.O. Box 3248, Merrifield, VA 22116-3248, tel. [phone]. The cost of the profile is $27.50.

(13.) 49 C.F.R. [sections] 391.11.

(14.) Id. [subsections] 391.41(2)-391.49.

(15.) Id. [sections] 391.21.

(16.) Id. [sections] 391.31.

(17.) Zamalloa v. Hart, 31 F.3d 911 (9th Cir. 1994); Harmon v. Grande Tire Co., 821 F.2d 252 (5th Cir. 1987); see also J.R. Mabbett & Son, Inc. v. Ripley, 365 S.E.2d 155 (Ga. Ct. App. 1988); Pequignot, 608 N.E.2d 1378; Stong v. Freeman Truck Line, Inc., 456 So. 2d 698 (Miss. 1984).

(18.) 49 C.F.R. [sections] 391.23.

(19.) Id. [sections] 391.25.

(20.) See id. [subsections] 385.5, 390.11, 390.13, and 395.3.

(21.) Id. [subsections] 390.13, 392.6.

(22.) Id. [subsections] 393.1, 396.9, 396.11.

(23.) Id. [sections] 390.3(e)(2).

(24.) Id. [sections] 392.2.

(25.) Id. [sections] 392.3.

(26.) Id. [sections] 391.27.

(27.) Id. [subsections] 1057.1-1057.42. A verbal lease may also be binding. See Zamalloa, 31 F.3d 911, 917. See generally DAVID N. NISSENBERG, THE LAW OF COMMERCIAL TRUCKING [sections] 7-16(e) (1994 & Supp. 1997).

(28.) Rediehs Express, Inc. v. Maple, 491 N.E.2d 1006, 1011-12 (Ind. Ct. App. 1986).

(29.) See 49 C.F.R. [sections] 392.9.

(30.) Hutcherson v. Progressive Corp., 984 F.2d 1152, 1156 (11th Cir. 1993).

(31.) 49 C.F.R. [sections] 395.8(i).

(32.) Id. [sections] 395.8(k).

RELATED ARTICLE: Section guides members past roadblocks to protecting consumers' rights

The motor Vehicle Collision, Highway, and Premises Liability Section-- now 2,026 members strong--uses technology and networking to provide its members with information about automobile recalls, highway design, reconstruction evidence, and experts.

According to Section Chair Linda Miller Atkinson of Channing, Michigan, the section's Internet home page--one of its most valuable resources--is constantly updated with links to current documents and information on experts. "The section pulls together bread-and-butter concerns," Atkinson said, "and puts the trial lawyer in touch with the tools needed to investigate, prove, and win a case. The lawyer is also given contact information for a wide variety of affiliated litigation groups."

At ATLA's Annual Convention in San Diego last year, the section sponsored a program in conjunction with ATLA's National College of Advocacy. The program featured speakers on noneconomic damages in motor vehicle wrongful death cases and compensation in soft tissue injury cases.

ATLA's Annual Convention gives section members the opportunity to network in person with colleagues from across the nation. To further encourage networking, the section publishes a directory, which includes the names, addresses, phone and fax numbers, and e-mail addresses of members as well as information on practice specialties.

To promote sharing of information, section leaders encourage members to submit pleadings, briefs, depositions, and memoranda on motor vehicle collision, highway, and premises liability issues to the ATLA Exchange's Deposition and Document Banks. The Exchange also offers section members discounts on database searches and documents. For more information, call the Exchange at [phone].

Other section officers include First Vice Chair Lawrence Friedman of Boca Raton, Florida; Second Vice Chair Laird of Fort Worth, Texas; and Secretary Daniel Chamberlain of Indianapolis.

For more information about the section, contact section Coordinator Nancy Dugan at [phone], ext. 313. To become a section member, call Membership at [phone], ext. 611. Membership dues are $28.

RELATED ARTICLE: Proceeding to success: 10 litigation tips

Depending on when an attorney is hired, the following 10-step checklist may be useful in successfully litigating truck cases:

1. Hire investigators to photograph and videotape the crash site. They should take detailed pictures of the inside and outside and an overhead view (to show angle and severity of the impact) of all vehicles involved in the collision and, if possible, an overhead photo of the crash site.

2. Tape record statements of witnesses, police officers, investigators, emergency response personnel, the tow truck operator, the defendant driver and any passengers in the cab, and representatives of the motor carrier. Review written reports of investigating police officers and emergency personnel before taking their statements. Try to videotape statements at the collision scene so that witnesses can clarify and explain their testimony.

3. Immediately send a letter by certified mail informing the motor carrier, the truck driver, and the carrier's insurance company about the law firm's retention. The letter should clearly state that all physical evidence pertaining to the collision, including the vehicles, is necessary to investigate and prosecute the case and that the destruction or loss of evidence could result in a separate civil claim for spoliation of critical evidence.

4. Obtain legal title to the client's vehicle and the semitrailer. Locate secure storage facilities. If you are unable to obtain title to the vehicles, file a motion for a temporary restraining order to prevent any destruction or tampering of evidence until a thorough supervised inspection is completed.

5. Retain a competent expert to inspect the truck for mechanical difficulty, including improper brake adjustments. A mechanic and tow truck may be helpful to allow the expert to inspect all parts of the semitrailer, including the undercarriage, air brakes, and system operations.

6. File a lawsuit against the motor carrier and the truck driver. Attach comprehensive discovery documents to the complaint, such as interrogatories, requests for production, and requests for admissions, based on information that you have already obtained in the investigation. Request copies of all permanent and trip leases or contacts between the driver, the carrier, and the shipper to discover the legal obligations and responsibilities of each.

7. Request a motor carrier safety profile from Computing Technologies, P.O. Box 3248, Merrifield, VA 22116-3248. Obtain a driver's license record and criminal infraction sheet from the state where the truck driver's commercial driver's license was issued.

8. Consider whether to hire specialist to prepare an accident reconstruction and produce a computer animation of the crash.

9. Notice the deposition of the truck driver and the 30(b)(6) deposition of the motor carrier employee responsible for the safety and training of the company drivers.

10. File a nonparty subpoena to the defendant driver's previous employers to obtain a complete copy of the driver's employment file, including application, record of road test, violation history, and employment status and termination.