Category Archives: Trucking

New Study Shows Forward Collision Warning and Automatic Emergency Braking (AEB) Systems Can Eliminate Rear End Truck Crashes

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The Insurance Institute for Highway Safety (IIHS), has released a new report, September 3, 2020, which found that:

“Equipping large trucks with forward collision warning and automatic emergency braking (AEB) systems could eliminate more than 2 out of 5 crashes in which a large truck rear-ends another vehicle . . . ”

“IIHS Director of Statistical Services Eric Teoh examined data on crashes per vehicle mile traveled from 62 carriers operating tractor-trailers and other trucks weighing at least 33,000 pounds. He found that trucks equipped with forward collision warning had 22 percent fewer crashes and trucks with AEB had 12 percent fewer crashes than those without either technology. Forward collision warning and AEB reduced rear-end crashes —the specific type of collision they’re designed to prevent —by 44 and 41 percent, respectively.”

This technology, which can dramatically reduce rear end crashes and save lives, has been available as an option on new trucks/tractors since at least 2015.  The National Highway Transportation Safety Agency NHTSA, recommended such technology in 2014.  J.J. Keller stated in 2017 that researchers recommend “install now”.

Should AEB have been standard equipment on all large trucks and tractors for the past several years? Shouldn’t any new tractor that has been sold within the past few years without this crucial and proven technology be considered defectively dangerous?

Just Published: Should a Truck Wreck Case Be Handled Like a Car Wreck?

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” . . . it costs a lot to win, and even more to lose” (Jerry Garcia)

Cases involving a tractor trailer (18-wheeler, semi, big rig) or other commercial motor vehicle(s) should not be handled like the typical car wreck case!

In an article just published in the The Tennessee Trial Lawyer, the journal of the Tennessee Trial Lawyers Association (Click here and scroll to pp. 10-13), Patrick Cruise and Hubert Hamilton point out just some of the considerations that make truck wreck cases very different from the typical car wreck case:

  • Commercial drivers are required to have a commercial driver’s license (CDL) and are supposed to be screened, qualified and professionally trained, 49 CFR 383 and 391. They must also be medically certified as fit to drive.
  • Different standards apply to commercial drivers. Most important are the Federal Motor Carrier Safety Regulations (FMCSR), which apply to “all employers, employees, and commercial motor vehicles that transport property or passengers in interstate commerce” (49 CFR 3T).
  • Trucking cases are aggressively investigated and defended by trucking companies, their insurers and their lawyers. Trucking companies often have rapid response teams at the scene of a bad wreck while the injury victims are being evaluated in the emergency room. While your client is still in the hospital recovering from his or her injuries, the trucking company’s team (experts, lawyers, and investigators) are likely interviewing the parties and witnesses, and securing evidence.
  • 49 CFR 387.9 requires a minimum of $750,000 liability coverage for any motor carrier operating in interstate commerce carrying non-hazardous cargo for hire. In addition, there may be complicated layers of excess coverage over and above the required minimum.
  • A commercial truck driver is a professional and should be held to a higher standard of care than the driver of an ordinary passenger vehicle. See Dakter v. Cavallino, 866 N.W.2d 656 (Wis. 2015). For instance, 49 CFR 392.14 requires a commercial driver to exercise extreme caution and to reduce speed when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction.  And, 49 CFR 392.3 prohibits the operation of a commercial motor vehicle while the driver’s ability or alertness is impaired, or so likely to become impaired, due to fatigue, illness, or any other cause, so as to make it unsafe for him/her to operate the tractor trailer.
  • Much more is at stake than in the typical car wreck case, as a wreck involving a tractor trailer often results in fatalities or severe injuries. And, several vehicles may be involved with multiple plaintiffs.

In the typical car wreck case, lawyers are usually focused on the actions of each driver in the few seconds leading up to the crash. Did the defendant stop at the stop sign? Who ran the red light? Was the defendant speeding? Was the defendant following too closely? Was the plaintiff speeding?  Was the plaintiff or defendant distracted, on the phone or texting? The actions or omissions of each driver just before the crash are examined and the jury is asked to determine who was at fault based on those few seconds.

In a truck wreck case, however, the focus should be on the trucking company, and not necessarily on the truck driver. What the driver could have done to prevent the wreck is certainly important, but what the trucking company could and should have done to prevent the crash may be far more important.  The trucking company, which is supposed to train and supervise its drivers, plan safe routes, and actively work to prevent wrecks, will have had numerous opportunities to understand, plan, train and prevent most crashes. Focusing on system failure by the trucking company is often the key to success in truck wreck cases.

Lawyers who try to handle a serious injury or death case involving a tractor trailer or other commercial motor vehicle just like a typical car wreck case are not likely to obtain a full and fair recovery the client. When our firm accepts representation in a truck wreck case, we start preparing for trial immediately. There are no short cuts, and there is no substitute for meticulous, thorough preparation.

FMCSA expands Personal Conveyance exemption to Hours of Service Rules

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Effective immediately, the Federal Motor Carrier Safety Administration (FMCSA) has said it will allow drivers to use personal conveyance status to get to the nearest safe parking spot/rest location after hours are exhausted by a shipper/receiver, or off-duty periods are interrupted by law enforcement.  Will this expansion of the “personal conveyance” exemption be abused by some drivers?  Probably, and so the logs and actual movements of tractor trailers should be carefully examined in any case where time and distance traveled before a wreck looks suspicious.

“The movement from a shipper or receiver to the nearest safe resting area may be identified as personal conveyance,” text of the clarification reads, “regardless of whether the driver exhausted his or her HOS, as long as the CMV is being moved solely to enable the driver to obtain the required rest at a safe location.” (p. 7)

The new interpretation of when it is legal to use a truck for personal conveyance allows use of personal conveyance whether the truck is loaded or not.

Generally, personal conveyance use has not been allowed for any move intended to further the direction of the current or next dispatch, and is intended as truly personal use of the truck, outside the stream of commerce. Further clarifying the change in personal conveyance interpretation, the agency noted it recognized that “the driver may not be aware of the direction of the next dispatch and that in some instances the nearest safe resting location may be in the direction of that dispatch. If the driver proceeds to the nearest reasonable and safe location and takes the required rest, this would qualify as personal conveyance.”

Any driver using personal conveyance should “annotate on the log if he/she cannot park at the nearest location and must proceed to another location.”

Personal conveyance is also newly specifically allowed in other similar circumstances, the agency noted — when a safety official (such as a law enforcement officer) requires a driver to move during an off-duty period. Such a use should be “no farther than the nearest reasonable and safe area to complete the rest period,” according the Federal Register publication.

Travel to home after working “offsite,” as long as the driver’s home is not in the direction of the current or next dispatch, is also explicitly allowed as personal conveyance by the new guidance.

Georgia Chiropractor Alleged to Have Falsified Thousands of DOT Physical Exams for Truckers

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Truckers came by the thousands from all across the country, pulling into into the Petro Stopping Center, a 24-hour truck stop off Interstate 285 in Atlanta, where they could find coffee and CB radios, tires and a tattoo shop, and a chiropractor, known as “Dr. Tony.”  Dr. Anthony Lefteris got federally certified in 2014 to conduct the DOT medical exams that truckers must pass to get their commercial driver’s license (CDL). Lefteris is alleged to have completed nearly as many exams in an hour as a typical federally certified examiner did in a month. In less than three years, he issued more than 6,500 certificates of good health to truckers from 43 states!  But they appear to have been falsified.

An anonymous tip from a trucker led to Lefteris’s arrest in December and he now faces criminal charges of falsifying documents filed with a federal agency.  All his bogus DOT cards have been revoked by FMCSA, and this could have repercussions throughout the industry, as those drivers may have been operating commercial vehicles illegally.

The Federal Motor Carrier Safety Administration (FMCSA) Issued the Following Public Notice December 28, 2016:

On December 1, 2016, a Criminal Complaint in the U.S. District Court, Northern District of Georgia, was issued against Anthony Lefteris, Doctor of Chiropractic (D.C.), National Registry of Certified Medical Examiners (“National Registry”) No. 8343724872, of Atlanta, Georgia.  Dr. Lefteris was charged with Making False Statements, in violation of Title 18, U.S.C. § 1001; and Making a False Entry in U.S. Department of Transportation’s Records with the Intent to Impede and Influence the Proper Administration of the U.S. Department of Transportation, in violation of Title 18, U.S.C. § 1519.

The investigation initiated by the U.S. Department of Transportation determined that while listed as a Certified Medical Examiner on the National Registry, Dr. Lefteris conducted a number of medical certification examinations that far exceeded a reasonable number of examinations.  An undercover investigation conducted by the Georgia Department of Public Safety revealed that the purported medical examinations conducted by Dr. Lefteris at a truck stop in Atlanta, Georgia, exhibited a pattern whereby the examination was incomplete, required tests were not performed and information on the medical examination form was falsified.

The Federal Motor Carrier Safety Administration (FMCSA) removed Dr. Lefteris from the National Registry on December 2, 2016.

USDOT/FMCSA intends to revoke all certificates issued by Dr. Lefteris to commercial motor vehicle operators within the past two years.

FMCSA offices nationwide are presently working with State Driver’s Licensing Agencies to obtain the contact information for all affected drivers. FMCSA is contacting these drivers and informing them that they have THIRTY DAYS to obtain a Medical Examiner’s Certificate from a Medical Examiner with valid certification on the National Registry.

Drivers and carriers with further questions should contact USDOT/FMCSA via email at FMCSAMedical@dot.gov

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or by calling 1-202-366-4001.

Georgia Court of Appeals Adopts “Trip Specific” Approach to Determining Coverage Under MCS-90 Endorsement in Trucking Cases

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A motor carrier engaged in interstate commerce and subject to Federal Motor Carrier Safety Regulations (FMCSR) must have minimum liability coverage of $750,000. The insurer must provide a MCS-90 endorsement to the liability policy, and that endorsement is supposed to be filed with FMCSA.

In Grange Indemnity Insurance Company v. Burns, 2016 Ga. App. LEXIS 365, decided June 23rd, the Georgia Court of Appeals held that an MCS-90 endorsement attached to a commercial auto policy did not provide additional insurance coverage to the trucking company even though it was registered as an interstate motor carrier.

The trucking company, J. B. Trucking, was insured under a Grange Indemnity commercial auto insurance policy with limits of only $350,000.00. But the policy also contained an MCS-90 endorsement (with minimum coverage of $750,000.00 for nonhazardous materials). The plaintiff was injured as result of their driver’s negligence, resulting in a jury verdict of $3.3 million, but the Court of Appeals limited the plaintiff’s recovery from the insurance proceeds to $350,000, holding that the crash occurred during an intrastate delivery (involving nonhazardous materials), as opposed to during an interstate trip, and therefore the MCS-90 endorsement did not provide coverage.

The Court found that it was undisputed that the truck driver, Franks “was engaged in a trip involving purely intrastate commerce and that he was transporting nonhazardous commodities. Franks picked up a box truck in Monroe, Georgia, and drove the truck to Norcross, Georgia, where he picked up a load of “sales papers” and delivered them to a paper company in Newnan, Georgia. The sales papers were manufactured in Georgia and were destined for end users located in Georgia. While he was on his way from Newnan to Monroe to return the empty box truck, Franks struck the vehicle Burns was driving.”

The plaintiff argued unsuccessfully that once an MCS-90 endorsement is issued to a registered interstate carrier, the endorsement should apply regardless of whether a “specific trip” is intrastate or interstate. Burns argued that a Georgia citizen injured by an interstate motor carrier conducting intrastate commerce of nonhazardous materials at the time of an accident should be given the same amount of protection as a citizen injured by the same truck, owned by the same carrier, and covered by the same insurance policy, but whose cargo may be destined for another state. Burns argued that the MCS-90 endorsement should apply to all J. B. Trucking trips because J. B. Trucking was registered as an “interstate” carrier and J. B. Trucking had on many other occasions been involved in interstate trips.

There is a split of authority on this issue nationwide, as there are other courts which have held that the MCS-90 endorsement will apply to interstate and intrastate accidents (involving nonhazardous materials). Those courts rejected the “trip specific” approach, which focuses on the character of the shipment itself as interstate or intrastate, and instead based their decision on the fact that the FMCSA had jurisdiction over all of the interstate carrier’s trips, regardless of destination. Some courts have also held that based on public policy considerations, the MSC-90 should apply because the endorsement was designed to protect members of the general public injured by interstate carriers, regardless of the carrier’s destination on a particular trip. The public policy underlying the MCS-90 is to provide a safety net to members of the public injured as a result of negligent operation of tractor trailers used in interstate commerce. Its primary purpose is to assure injured members of the public are able to obtain judgments from negligent authorized interstate carriers. See Reliance National Insurance Co. v. Royal Indemnity Co., 2001 U.S. Dist. LEXIS 12901 (S.D.N.Y.) and Heron v. Transportation Casualty Insurance Co., 274 Va. 534 (Va. 2007).

Increasing Carnage On Our Highways from Truck Wrecks

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The Huffington Post reports, in an article released April 16, 2016, on:

The inside story of how the trucking industry and politicians have conspired to make our highways less safe.

What follows is an excerpt from that extensive article about truck-related deaths, which hit an all-time low during the economic doldrums of 2009, when 2,983 truck accidents killed 3,380 people, that they have increased as the economy has recovered, and the carnage has been on the rise:

“In 2013, the most recent year for which finalized statistics are available, 3,541 wrecks killed 3,964 people — an increase of 17.3 percent in just four years. In 2014, the number of deaths resulting from truck accidents was down slightly, but the total number of crashes and injuries increased.

At the same time, Congress has been caving, very quietly, to lobbying from trucking interests that want to roll back, block or modify at least a half-dozen important safety regulations. Significant parts of the hauling industry have long opposed many of the federal rules governing working hours, rest periods, size and weight limits, and safety standards. When the Great Recession began in 2008, profit margins for shippers shrank and bankruptcies rose, prompting a desperate industry to step up its lobbying effort.

Perhaps, the trucking companies’ lobbyists suggested to Congress, trucks could haul loads heavier than the federal 80,000-pound limit, which would allow them to deliver more goods with each truck. Maybe they could have longer double trailers, increasing the limit from 28 feet for each unit to 33 feet — turning each rig into an 80-foot-long behemoth, as long as an eight-story building is tall. Or they could let truck drivers be more flexible with their rest breaks, which would allow them to work up to 82 hours a week instead of the already-exhausting limit of 70. Maybe trucking firms could reduce labor costs by hiring lower-paid drivers, younger than 21 — as young as 18. Maybe they could stop federal regulators from raising insurance requirements that were set during the Reagan administration. Maybe the federal motor carrier safety ratings for unsafe trucking companies could be kept secret.

Indeed, the trucking industry is trying to do all of those things. If they are successful, these changes would amount to the most significant overhaul of highway safety rules in decades. But most people don’t know such sweeping revisions are even being considered.”

Safety regulations and requirements should be strengthened, not watered down, but that is exactly what trucking industry and their lobbists are trying to do.  We don’t need larger and heavier trucks on our roads.  And, truck drivers are falling asleep at the wheel now; they need to take more breaks and time off.  With the potential for death and destruction these behemoths present, one would think that the federal government would require them to carry at least $5,000,000 in liability coverage.  But no, when FMCSA begin consideration for increasing the current minimum of $750,000, another measure the industry pushed last year short-circuited federal regulators’ efforts to even evaluate raising insurance requirements for trucking companies. The current $750,000 minimum has been unchanged since the 1980’s.  But it is obvious to all that $750,000 doesn’t even begin to cover the costs of a serious semi wreck.  All the large trucking companies carry multiple layers of coverage, often far in excess of $5,000,000.  It is the small operators that present the clear and present danger, carrying only the minimum limits required by FMCSA.  And those small operators are often running poorly maintained equipment with marginally qualified drivers.

How can the public protect itself?  Speak up and get Congress to pay attention.  The relationship between the industry and Congress, including members of both parties, is far to cozy.  More on this topic to come, including truck drivers who fall asleep at the wheel.

Peterbilt is Recalling 2000 Trucks Due Tire Safety Defect That Can Cause a Crash

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Peterbilt is recalling more than 2,000 trucks because they reach speeds greater than their tires are built to handle. The move by Peterbilt in the U.S. and Canada raises questions about the safety of thousands of other big trucks on U.S. roads. Peterbilt is recalling certain tractors from 2009 to 2016 because they can exceed 75 miles per hour, even though the maximum speed their Michelin tires can handle is 65 mph. Such trucks mainly haul automobiles.  The tires on the front or steer axle can fail and cause a crash.

Media outlets are reporting that dealers will reprogram computers so the trucks can’t go over 65.

The National Highway Traffic Safety Administration is encouraging other truck makers with similar risks to fix the problem. But at this time, the agency is not seeking more recalls. NHTSA began investigating Michelin’s 22.5” diameter XZA tires in 2014, and one of the findings was travelling at speeds higher that the tire can handle can lead to tire failure.

In any crash involving a Peterbilt truck manufactured since 2009, such tire failure should be considered as a possible cause, keeping in mind that the recommended maximum speed for certain Michelin tires is only 65 mph.  If the driver was exceeding 65, he was violating that safety recommendation, even if 65 was within the posted speed limit.

Tragedy in Chattanooga Illustrates Need for New Safety Systems for Tractor Trailers

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On June 25, 2015, a horrible crash on I-75 involving a tractor trailer killed six people, including two children.  The tractor trailer plowed into nine vehicles that were stopped due to road construction.  A more complete account of the tragic wreck, including the names of the victims, can be found in the Chattanooga Times Free Press:

http://www.timesfreepress.com/news/local/story/2015/jun/26/witness-tractor-trailer-mowed-cars-down-9-vehicle-crash-killed-six/311684/

It is almost universally agreed upon by highway safety advocates that requiring installation and use of forward collision avoidance and mitigation systems and speed governors on all tractor-trailers would reduce the number and severity of truck crashes on our highways and save lives.  Here’s how:

Forward Collision Avoidance Systems: This technology, which works by alerting the driver and taking over the brakes and engine of the tractor-trailer when an imminent collision is anticipated, is already fully developed and comes as a standard feature on many new automobiles. It is estimated that it would cost less than $500 per vehicle to retrofit current tractor-trailers to meet this standard. On average, according to NHTSA, two to three rear-end collisions involving tractor-trailers occur somewhere in the U.S. about every hour.

Speed Governors: Every tractor-trailer manufactured since 1992 comes from the factory with a speed governor installed as standard equipment, which works by setting a predetermined speed limit that the vehicle cannot exceed. Unfortunately, many truck companies and individual truckers opt not to use them. However, the companies that require the use of speed governors in their trucks report that, in addition to being safer on the roads, their tractor-trailers also are more profitable due to fuel savings, last longer because of the reduced wear-and-tear, and have lower liability costs as a result of the reduction in the number and severity of crashes.

It is estimated by the U.S. Department of Transportation that there are nearly 100,000 injuries and 4,000 deaths nationwide each year as a result of tractor-trailer crashes.  It is time to do something and reduce the carnage on our roadways.

 

Labeling Fed Ex Drivers as Independent Contractors Does Not Necessarily Make Them So

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Although we generally confine our blog posts to developments in the law from Tennessee, Georgia and Alabama (as well as law firm announcements), this California case is worthy of comment.

In Alexander v. FedEx Ground Package System, Inc., a major decision by the 9th Circuit Court of Appeals (August 27, 2014) the Court determined that Federal Express could not necessarily avoid claims by the drivers for employment expenses and unpaid wages under California law, or duck federal liability under FMLA, by calling the drivers “independent contractors”:

“Labeling the drivers “independent contractors” in FedEx’s Operating Agreement does not conclusively make them so when viewed in the light of (1) the entire agreement, (2) the rest of the relevant “common policies and procedures” evidence, and (3) California law.”

This decision could have broad application nationally to other types of claims against Fed Ex. As the Court stated, “As a central part of its business, FedEx Ground Package System, Inc. (“FedEx”), contracts with drivers to deliver packages to its customers. The drivers must wear FedEx uniforms, drive FedEx-approved vehicles, and groom themselves according to FedEx’s appearance standards.  FedEx tells its drivers what packages to deliver, on what days, and at what times. Although drivers may operate multiple delivery routes and hire third parties to help perform their work, they may do so only with FedEx’s consent. FedEx contends its drivers are independent contractors under California law. Plaintiffs, a class of FedEx drivers in California, contend they are employees. We agree with plaintiffs.”

The concurring opinion includes this delightful and appropriate comment:

“Abraham Lincoln reportedly asked, “If you call a dog’s tail a leg, how many legs does a dog have?” His answer was, “Four. Calling a dog’s tail a leg does not make it a leg.” Justice Cardozo made the same point in W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 62 (1935), counseling us, when called upon to characterize a written enactment, to look to the “underlying reality rather than the form or label.” The California Supreme Court echoed this wisdom in Borello, saying that the “label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.’ ”

Increase in Minimum Liability Insurance for Commercial Motor Vehicles Under Serious Consideration by FMCSA

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According to the Federal Motor Carrier Safety Administration (FMCSA) the agency is exploring the potential to  raise the $750,000 insurance minimum requirement for commercial motor vehicles. In a report to Congress in April 2014, the FMCSA says current minimums are inadequate to meet the costs of some crashes because “inflation has greatly increased medical claims costs and related expenses.” The FMCSA has formed a team to further evaluate required levels of financial responsibility.

The report was mandated by MAP-21 legislation and includes findings from a study that weighed the benefits of increasing insurance minimums, including improved compensation for crash victims and reductions in commercial vehicle crashes, against costs imposed on commercial motor vehicle operators and the insurance industry.

The $750,000 minimum has been in place since 1985, and the agency says if it had kept up with the core consumer price index, the minimum would be $1.62 million, and if it kept up with the medical consumer price index, which measures the annual increase in medical costs, the number would be $3.18 million in liability insurance.

As expected, the Owner-Operator Independent Drivers Association (OOIDA) responded to the FMCSA’s report saying that any increase in insurance rates would devastate small businesses that comprise over 90 percent of the trucking industry.

“Even though the agency’s report confirms that fewer than one percent of all truck-involved accidents result in injuries or property damage that exceed current insurance requirements, it seems pretty clear they plan to raise those requirements anyway,” says Todd Spencer, executive vice president. He also points out that “the amount of insurance carried by motor carriers has never been shown to have a correlation with safety.”

The American Trucking Associations (ATA) echoed the OOIDA in a statement about the report that said “ATA has yet to see any evidence that increased insurance minimums will lead to improved highway safety, and until we can review the underlying study FMCSA’s report relies on, that continues to be the case.”

Despite industry reaction, the FMCSA intends to make the matter a priority and has formed a rulemaking team “to further evaluate the appropriate level of financial responsibility for the motor carrier industry.”

The Hamilton Firm urges a substantial increase in the minimum limits given the devastating effects of a collision between a passenger car or small truck and a tractor trailer or other large commercial vehicle.  The likely result of such collisions is catastrophic injury or death.  The current minimum limit of $750,000 is grossly inadequate.

A copy of the FMCSA’s report can be viewed at:

http://www.fmcsa.dot.gov/mission/policy/report-congress-examining-appropriateness-current-financial-responsibility-and

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