Using safety regulations in tractor-trailer cases.

Some recent telephone calls to motor carrier safety organizations brought forth the following updated information from federal and state databases:

* Although tractor-trailers and medium-to-heavy trucks accounted for 9 percent of all accidents in the United States during 1992, they were involved in 19 percent of fatal accidents.(1)

* On the interstate highway that encircles Atlanta (I-285), tractor-trailers accounted for 14 percent of all accidents but were involved in 27 percent of fatal accidents.(2)

* Inspectors from the Georgia Public Safety Commission found 59,989 truck safety violations during 1992 - an average of 2.2 violations per truck.(3)

Collision-related deaths and catastrophic injuries involving trucks have become so numerous that the average motorist - and juror - is becoming increasingly intolerant of careless tractor-trailer operators. Given this environment, a favorable outcome for a tractor-trailer crash victim is likely if the attorney prepares the case recognizing differences between collisions involving ordinary vehicles and those involving tractor-trailers.

While a passenger-vehicle collision can most often be tried using only the uniform rules of the road, a tractor-trailer collision is most successfully prosecuted by using federal and state safety regulations. This article describes the nature and use of these regulations in tractor-trailer cases.

Federal and state authorities have established a uniform regulatory scheme for motor vehicles engaging in interstate and intrastate commerce. Trucks in interstate commerce are subject to 49 C.F.R. [sub-sections]300-399(1992). Trucks engaged solely in intrastate commerce arc governed by corresponding rules in each state's regulatory code.(4)

Significantly, the states have generally adopted the federal safety regulations, modifying them only to address state needs. Determining which regulatory scheme applies to the defendant is the starting point of meaningful research in any truck collision case. It must then be determined whether the defendant is subject to the regulations or is exempt from them.

As a general rule, before a trucking concern may operate in either interstate or intrastate commerce, the company must register for and obtain a certificate of public necessity and convenience from either the U.S. Department of Transportation or the governing state agency. Failure to do so does not mean the safety regulations do not apply to the truck, because the regulations apply to "all employers, employees, and commercial motor vehicles, which transport property or passengers in interstate commerce."(5)

Specifically excluded from most of these regulations, however, are school bus operations, transportation by federal or state authorities, ambulances, emergency and rescue vehicles, and the movement of personal property for noncommercial purposes (for example, moving furniture to a new apartment).(6)

It is the attorney's job to determine whether the truck involved in the collision met the general requirement of the regulations (operation as a commercial motor vehicle) and did not fall within an excluded category.

The C.F.R. definition of commercial motor vehicle (CMV) is broad:

any self-propelled or towed vehicle used on public highways in interstate commerce to transport passengers or property when:

(a) The vehicle has a gross vehicle weight rating or gross combination weight rating of 10,001 or more pounds;(7) or

(b) The vehicle is designed to transport more than 15 passengers, including the driver; or

(c) The vehicle is used in the transportation of hazardous materials in a quantity requiring placarding under regulations . . . .(8)

Note that a towed vehicle, such as the trailer, is also a CMV. Since all CMVs must carry liability insurance, both policy limits may be used to satisfy the plainfiff's damages. If a tractor involved in a collision had only $100,000 in coverage full recovery might still be possible under the trailer's separate policy.

Subsection (a) of the regulation is the provision frequently used to classify a vehicle as a CMV, since the weight of any tractor or trader will usually meet this requirement.

Most often it is possible to classify both the tractor and the attached trailer as CMVs. Both must fully comply with all applicable safety regulations. Further, the tractor driver is considered for insurance purposes to be a permissive user of both the "tractor vehicle" and the "trailer vehicle." This is useful to know when separate entities own the tractor and the trailer and each is covered by a separate insurance policy. This commonly occurs during "trip leasing," when the trucker carries one company's trailer to a destination and returns with another company's trailer.

A good rule of thumb for classification is that virtually any tractor or trailer with six or more wheels is considered a CMV and is subject to the federal motor carrier safety regulations.

Once a determination has been made that the tractor-trailer is a CMV (or that both the tractor and the trailer are CMVs), the rig must comply with the requirements of the safety rules promulgated by the governing federal or state agency. Many attorneys believe these regulations apply only to large trucking concerns and mistakenly disregard them, basing their cases solely on the uniform rules of the road. However, most safety regulations apply even to companies that carry only their own goods over the highways.

Although both federal and state regulatory schemes distinguish between "contract motor carriers," "common motor carriers," and "private motor carriers" regarding reporting, insurance, and other matters, no distinction has been made regarding their compliance with safety regulations. As a result, most of the federal regulations apply to all highway tractor-trailers.

Corporate retailers like Kroger, Sears, or Circuit City, who usually have their own trucks to haul their merchandise, must comply with virtually all safety rules. Advance knowledge of this fact is useful at trial when the defense tries to argue that the company is not subject to the regulations because "It hauls its own goods."

Once a determination has been made that a tractor-trailer is subject to existing safety rules, the process of discovering whether the defendant has fully complied with them begins.

Liability and the Regulations

The Federal Motor Carrier Safety Regulations begin at 49 C.F.R. [sections]390. The many requirements for driver and carrier translate into possible safety violations to be used against the defendant. Although the safety requirements are too numerous to cover comprehensively in this article, the following examples demonstrate how they may apply to the issues of preemption, negligent operation and maintenance, negligent hiring and retention, and punitive damages.

Preemption. The issue of preemption frequently arises in tractor-trailer cases. The defense will claim that because the federal authorities have spoken on the issue of operating a truck in interstate commerce, state laws and regulations pertaining to the same issue are superseded. Provisions of the C.F.R., however, state otherwise. For example:

Except as otherwise specifically indicated, subchapter B (the Federal Motor Vehicle Safety Regulations) of this Chapter is not intended to preclude States or subdivisions thereof from establishing or enforcing state or local laws relating to safety, the compliance with which would not prevent full compliance with these regulations by, the person subject thereto.(9)

This provision essentially puts to rest the notion of preemption unless the C.F.R. indicates otherwise. In addition, the C.F.R. states:

Every motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a regulation of the Federal Highway Administration imposes a higher standard of care than that law, ordinance, or regulation, the Federal Highway Administration regulation must be complied with.(10)

These provisions allow the use of state laws, rules, and ordinances in addition to the C.F.R. to show violations constituting negligence per se.

Negligent operation and maintenance. Aside from a state's uniform rules of the road, the C.F.R. provides rules or guidelines for operating a truck in the following instances:

* when the driver is ill or fatigued,(11)

* When the driver is under the influence of drugs and alcohol,(12)

* during equipment inspection and use,(13)

* during loading of trailers,(14) and

* during hazardous conditions.(15)

These rules apply in addition to state statutes, and they are appropriate for submission to the jury.

The C.F.R. also contains a series of regulations pertaining to the maintenance of trucks involved in commerce, the placement of placards, and the care of the vehicle's lighting systems. For example, the C.F.R. requires -

* use of hazard signals, emergency reflective triangles, and flares or fuses when a vehicle is stopped on the highway or shoulder;(16)

* placement of clean, unobscured, and well-maintained lights, lamps, and reflectors on the truck in specific places;(17)

* installation and correct calibration of specified brake systems;(18) and

* use of specified methods for securing loads.(19)

These maintenance regulations can become instructions establishing negligence per se. For example, negligence can be established by showing that the rear lights were covered with mud, that the vehicle did not have all required lights and reflectors, that a covering tarpaulin or cargo was not properly tied down, or that the owner had failed to provide the driver with required emergency triangles and fuses.

Negligent hiring and retention. Using the C.F.R. to establish claims of negligent hiring and retention of drivers is much simpler than using general common law principles. The reason is that the C.F.R. has a broad range of requirements that must be met before a driver may be hired. Moreover, the C.F.R. requires that all generated or collected records concerning an employee be maintained at the carrier's principal place of business for as long as the driver is employed by that carrier and for three years after.(20)

The employer must administer, and the driver applicant must pass, a written test about the C.F.R. and a road test demonstrating competence in driving a type of truck.(21) The employer must also check the applicant's driving record for the past three years in every state where the applicant has held a license.(22) The employer must contact prior employers for the past three years and ask about the applicant's employment status and quality of work. Written notes must be retained regarding each contact.(23) Also every 12 months the employer must sit down with the driver and review the preceding year's driving violations.(24) Recent additions to the law require pre-employment, post-accident, and random drug testing of each driver.(25)

Failure to comply with these requirements or the negligent performance of required functions goes far toward establishing a negligent hiring and retention claim. Few drivers have stellar driving backgrounds when hired. In fact, attorneys should be aware that employers may have forged driver records to pass random federal inspections. If an employee file lacks required information, the attorney should question the employer about the veracity of the file and seek to confirm, deny, or supplement the information in it.

Punitive damages. Due to rigorous records-retention requirements and the rule requiring annual reviews of driving records, it is possible to establish a claim for punitive damages. For example, a driver becomes "disqualified" for a specific time period, during which he or she may not operate a CMV, whenever the driver

* is caught driving a commercial motor vehicle when the driver's blood alcohol level is .04 percent or higher,

* refuses to undergo alcohol tests requested by the authorities,

* drives while under the influence of a controlled substance,

* leaves the scene of a collision, or

* commits a felony using a commercial motor vehicle.(26)

During the annual review of violations, the employer may overlook one of these offenses, or, more typically, the driver may "neglect" to volunteer the information. Sometimes the employer allows the driver to continue working even though it is clear that the driver is prohibited from doing so. Proof that the driver was disqualified from driving when the collision occurred opens the case to a punitive damages claim.

Challenge to Attorneys

Litigating these cases can be challenging and rewarding. The opportunity to enhance a case by using federal and state motor carrier regulations should not be overlooked. In this way, a small case can be developed into a significant case, and a significant case can produce dramatic results. The key to full recovery for a client's damages is mastery of applicable safety regulations.

Notes

(1) Telephone Interview with Joann Banks, Office of Motor Carrier and Highway Safety, Federal Highway Administration (Nov. 17, 1993). (2) Telephone Interview with Jim Fincher, Traffic Operations, Georgia Department of Transportation (Nov. 17, 1993). (3) Telephone Interview with Nelda Chatman, Motor Carrier Division, Georgia Public Service Commission (Nov. 17, 1993). (4) See 49 C.F.R.[sections]350.1 (1992). (5) 49 C.F.R. [sections]390.3(a). (6) 49 C.F.R. [sections]390.3(f)(1-6). Other exemptions buried within the regulations exempt "arm-to-market" operations and "intracity zone" operations (49 C.F.R. [sections]390.5). (7) 49 C.F.R. [sections]390.5. Gross vehicle weight rating (GVWR) is defined as "the value specified by, the manufacturer as the loaded weight of a single vehicle." Gross combination weight rating (GCWR) is defined as "the value specified by, the manufacturer as the loaded weight of a combination (articulated) vehicle. In the absence of a value specified by, the manufacturer, GCWR will be determined by adding the GVWR of the power unit and the total weight of the towed unit and any load thereon." (8) 49 C.F.R. [sections]390.5. (9) 49 C.F.R. [sections]390.9. (10) 49 C.F.R. [sections]392.2. (11) See 49 C.F.R. [sections]392.3 (requires an ill or fatigued driver to immediately, stop operating the truck). (12) 49 C.F.R. [sub sections]392.4 and 392.5. (13) 49 C.F.R. [sections]392.7. (14) 49 C.F.R. [sections]392.9. (15) 49 C.F.R. [392.14 (requires the use of "extreme caution" when operating in hazardous conditions like snow, ice, sleet, or smoke. The language of the regulation makes an excellent jury, instruction). (16) 49 C.F.R. [sections]392.22 (17) 49 C.F.R. [sub sections] 392.30, .32, .33; 393.11, .17-.26. (18) 49 C.F.R. [sections]393.40 (19) 49 C.F.R. [sub sections]392.9; 393.100-.106. (20) 49 C.F.R. [sections]391.51(f). (21) 49 C.F.R. [sub sections]391.31, .35. (22) 49 C.F.R. [sections]391.23(a)(1). (23) 49 C.F.R. [sections]391.23(c). (24) 49 C.F.R. [sections]391.25. (25) 49 C.F.R. [sub sections]391.103, .109, .113. (26) 49 C.F.R. [sections]383.51.