Whooooooo! One month has passed since I posted. I promised myself this year I wouldn’t go more than two weeks without posting something. Epic fail three months in.
But I have a good excuse (okay, maybe not good, but it’s an excuse and I’m using it). In addition to my regular work load and trying to be a family man, I have been out of town for two weeks straight at various trucking conferences. First I attended the Great West Casualty Leadership Symposium in Knoxville. I’m thankful to call them a client, and more importantly friends. Great conference, and if you ever get a chance to attend, I recommend it.
After that, I went to New Orleans to the ABA Trucking MegaConference. Let’s just say that with me attending, the best and brightest minds in the trucking industry and trucking legal world united!
Having attended that the ABA Conference for about the last 10 years, one thing that is always presented, and which is always a crowd pleaser and well put together, is a trucking industry top ten list, particularly top ten where trucking and the legal world cross paths. So I thought for this post, I would share what an all-star panel (Andrew Stephenson, Christy Comstock, Michael Langford and Nigel Green) shared last week.
So without further ado, here are the Top Ten issues (as we lawyers see them) facing the trucking industry right now:
1. ELD Mandate
ELD’s will be required by 12/18/17. I’m no rocket surgeon, but that’s soon! Carriers with ELD’s are 11.7% less likely to be involved in a crash if an ELD program is mplemented. Small carriers are going to have trouble with ELD implementation if they haven’t already started because of the steep learning curve. Finally, a selling point…drivers are learning that ELDs actually maximize their hours and therefore their pay.
2. Hours of Service
Always an issue and will never go away. But the recent DOT study finding there was no appreciable benefit from the 34 hour restart containing two 1 a.m. to 5 a.m. periods seems to have nipped this in the bud for now. So business as usual under the prior HOS regs.
3. JB Hunt Amicus Brief
This one was interesting and something I had not heard about. So track with me. It’s out of Indiana and a case where a JB Hunt driver loses control on icy interstate, jackknifes into median, but no other vehicles involved. The cops come and attend to the accident. The JBH driver is transported from the scene via ambulance, but before he leaves, no triangles/flares are put out and the flashers are not activated. In fact, the police that responded to the accident determine the tractor-trailer in the median is not a safety hazard and then the police leave the scene to tend to another accident.
Hour later, another car comes along and spins out of control on the interstate and into the trailer. A lawsuit is filed and litigation ensues. The case ends up being tried three times, two times with a mistrial.
But here’s where it gets sticky…on cross examination, a JBH safety rep is asked whether a motor carrier should monitor weather conditions, notify drivers of bad weather conditions, and shut down operations when necessary. Unfortunately, as a good safety manager, he agreed. However, the FMCSA hazard conditions regulation interpretation speaks differently and leaves the decision to a driver to determine weather conditions based on traction and visibility. Because of the testimony, the Court allowed a direct negligence claim against JBH. The jury came back and assessed 40% to the driver that hit the tractor, 30% to JBH Driver, and 30% to JBH.
The problem with this case is that it allowed a direct claim against JBH when vicarious liability was admitted (which a lot of states don’t allow). Likewise, it allowed a direct claim that the carrier has to monitor weather, contrary to FMCSA 392.14. Also it allowed admissibility of preventability of the accident (see Number 7, below).
4. Entry Level Driver Training
Here’s the deal…Anyone who is getting a new Class A or B license, or who is upgrading, as well as anyone getting hazmat, passenger or school bus endorsement, are required to undergo the new driver training. Applicants are subject to a training program administered by registered training providers (Training Providers Registry) prior to taking the state test. There will be a classroom and behind-the-wheel component from a defined curriculum; No minimum number of hours. Once the training is completed and the test taken, FMCSA sends that to the state to let them know the driver will be seeking the license and taking the state test.
5. Driver Health
Sleep apnea is being discussed again and FMCSA has issued recommendations. They are not rules, but the recommendations are pretty stringent. And the testing/treatment for sleep apnea is expensive. It also can get a lot of drivers: Over 42, male, and you snore, you may have SA. Body Mass Index is also included: Over 40 BMI, get tested. Over 35, and the above things, get tested. It’s gonna get a lot of our drivers!
6. Dakter v. Cavallino
This is a Wisconsin case. It’s one of kind now and not the law of the land. But pay attention to this. Essentially, it allowed a jury instruction that said truck drivers are professionals and have a heightened duty when operating their trucks, more so than the normal motoring public. We don’t want this.
7. Admissibility of Preventability Determinations
Preventability decisions…Safety departments love them, Claims hate them. Know this…A PREVENTABILITY DETERMINATION IS NOT REQUIRED UNDER THE REGS. Preventability comes from three different definitions (FMCSA, NTSA and ATA). With preventability decisions, there is no regard to what adverse drivers may have done or contributed to the accident. Practice pointer…Rename the reports and call them Remediation Reports and focus on remediation (Counseling/Re-Trainin, Discipline, Termination).
Also, talk to your legislators. Seek legislative change, both state and federal statute. Ask them to use simple language to prevent these reports from being admissible in Court.
8. Graves Amendment
You probably know this one. Lessors can’t be liable for the lessee’s negligence if they have an accident. Stratton v. Wallace put a ding in this Amendment by allowing a lessor to be found negligent (call me if you want specifics as to why). However, Eisenberg v. Cape Bestway extended Graves to interpool defendants. So that’s good.
9. DOT Speed Limiter
Not coming anytime soon. Boom!
Truthfully…I didn’t write this one down. Let’s assume it wasn’t that big of deal!!!!!
Hope you enjoy. And if you have any questions or want to know more…..holla!