Southeastern Trucking and Transportation Defense Blog

Insight Into Defending Against Trucking Claims Provided in GMTA Publication

Gary Lovell — Wed, 04 Apr 2012 13:01:32 -0500

"The target on the motor carrier has gotten much bigger and the ammunition and the guns being pointed at them a lot more powerful." In the latest issue of Georgia Motor Trucking Association's publication, Trux, I provide historical perspective and practical insights into defending against trucking claims in today's environment.

The American Trucking Associations Issue A Response to the New Hours of Service Rule

Renee Little — Tue, 27 Dec 2011 10:17:25 -0500

The American Trucking Associations contend that the new final rule governing hours-of-service will do nothing to improve highway safety, and will likely increase the risk of truck-involved crashes.

The "announcement of a new rule on the hours-of-service is completely unsurprising. What is surprising and new to us is that for the first time in the agency's history, FMCSA has chosen to eschew a stream of positive safety data and cave in to a vocal anti-truck minority and issue a rule that will have no positive impact on safety," ATA President and CEO Bill Graves said. "From the beginning of this process in October 2009, the agency set itself on a course to fix a rule that's not only not broken, but by all objective accounts is working to improve highway safety. Unfortunately, along the way, FMCSA twisted data and, as part of this final rule, is using unjustified causal estimates to justify unnecessary changes."

"Even with an uptick in truck-involved fatalities in 2010, since the current rules went into effect in 2004, fatalities have fallen 29.9%, even as overall miles traveled for trucks has risen by tens of billions of miles," said ATA Chairman Dan England, chairman of C.R. England, Salt Lake City. "No one can dispute these facts.

"By forcing through these changes FMCSA has created a situation that will ultimately please no one, with the likely exception of organized labor," England said. "Both the trucking industry and consumers will suffer the impact of reduced productivity and higher costs. Also, groups that have historically been critical of the current hours of service rules won't be happy since they will have once again failed to obtain an unjustified reduction in allowable daily driving time. Further, it is entirely possible that these changes may actually increase truck-involved crashes by forcing trucks to have more interaction with passenger vehicles and increasing the risk to all drivers."

"This rule will put more truck traffic onto the roadways during morning rush hour, frustrate other motorists and increase the risk of crashes," Graves said. "By mandating
drivers include two periods between 1 a.m. And 5 a.m. as part of a 'restart' period, FMCSA is assuring that every day as America is commuting to work, thousands of truck
drivers will be joining them, creating additional and unnecessary congestion and putting motorists and those professional drivers at greater risk. The largest percentage of truck-involved crashes occur between 6 a.m. and noon, so this change not only effectively destroys the provision of the current rule most cited by professional drivers as beneficial, but it will put more trucks on the road during the statistically riskiest time of the day.

"If there is a positive in this rule, it is the lengthy period of time before it becomes effective," Graves said of the 18-month delay in the rule's compliance date. "This will give ATA time to consider legal options. And, by delaying implementation of this rule, the agency is acknowledging there is no safety crisis on our highways."

U.S. DOT Announces New Hours of Service Rule

Renee Little — Tue, 27 Dec 2011 10:15:29 -0500

U.S. DOT's Press Release

WASHINGTON - U.S. Transportation Secretary Ray LaHood today announced a final rule that employs the latest research in driver fatigue to make sure truck drivers can get the rest they need to operate safely when on the road. The new rule by the U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) revises the hours-of-service (HOS) safety requirements for commercial truck drivers.

"Trucking is a difficult job, and a big rig can be deadly when a driver is tired and overworked," said Transportation Secretary Ray LaHood. "This final rule will help prevent fatigue-related truck crashes and save lives. Truck drivers deserve a work environment that allows them to perform their jobs safely."

As part of the HOS rulemaking process, FMCSA held six public listening sessions across the country and encouraged safety advocates, drivers, truck company owners, law enforcement and the public to share their input on HOS requirements. The listening sessions were live webcast on the FMCSA Web site, allowing a broad cross-section of individuals to participate in the development of this safety-critical rule.

"This final rule is the culmination of the most extensive and transparent public outreach effort in our agency's history," said FMCSA Administrator Anne S. Ferro. "With robust input from all areas of the trucking community, coupled with the latest scientific research, we carefully crafted a rule acknowledging that when truckers are rested, alert and focused on safety, it makes our roadways safer."

FMCSA's new HOS final rule reduces by 12 hours the maximum number of hours a truck driver can work within a week. Under the old rule, truck drivers could work on average up to 82 hours within a seven-day period. The new HOS final rule limits a driver's work week to 70 hours.

In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window.

The final rule retains the current 11-hour daily driving limit. FMCSA will continue to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time.

The rule requires truck drivers who maximize their weekly work hours to take at least two nights' rest when their 24-hour body clock demands sleep the most - from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule's "34-hour restart" provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. The final rule allows drivers to use the restart provision only once during a seven-day period.

Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.

Commercial truck drivers and companies must comply with the HOS final rule by July 1, 2013. The rule is being sent to the Federal Register today and is currently available on FMCSA's Web site at http://www.fmcsa.dot.gov/HOSFinalRule.

Happy Holidays from Southeastern Trucking & Transportation

Gary Lovell — Tue, 20 Dec 2011 09:08:26 -0500

Warmest wishes for a happy holiday season and a wonderful new year.

US DOT Bans Use of Hand-Held Cell Phones for CMV Drivers

Renee Little — Thu, 08 Dec 2011 11:49:29 -0500

The FMCSA and the PHMSA issued a final rule restricting the use of hand-held mobile telephones by interstate commercial motor vehicle drives (CMV) and intrastate hazmat drivers. The rule does not prohibit the use of hands-free devices. The final rule will take effect on January 2nd, 2012.

The rule prohibits CMV drivers from holding, dialing, or reaching for a hand-held cellular phone. This includes all push-to-talk functions., but hands-free use of a cellular phone is allowed. The ban does not prohibit or restrict the use of Citizen Band Radios, GPS, or fleet management systems.

Dialing

A driver is allowed to initiate, answer, or terminate a call by touching a single button on a mobile telephone or on a headset. This action should not require the driver to take his or her eyes off the road.

Reaching

A driver is not permitted to reach for a cellular phone or hands-free device that is done in "an unacceptable and unsafe manner." Examples of this behavior would be reaching for a cellular phone on the passenger seat, under the driver's seat, or into the sleeper berth. To be in compliance with the rule, a driver must have a cellular phone and/or hands-free device within "close proximity" to his or her person.

Driver and Motor Carrier Penalties

CMV drivers who are convicted of a hand-held cell violation twice within a three year period will be disqualified for 60 days. If convicted for a third violation within three years the driver will be disqualified for 120 days. They will also be subject to federal civil penalties of up to $2,750 for each offense. Motor carriers that allow their drivers to use hand-held cell phones while operating a commercial motor vehicle face a maximum civil penalty of $11,000 per violation.

Employer Liability

The rule states that "no motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV." In the preamble, FMCSA interprets the regulatory language to mean that motor carriers are responsible for the actions of its drivers, regardless of whether or not such actions are sanctioned by the motor carrier, FMCSA will hold employers accountable if the employee was doing his or her job, carrying out company business, or otherwise acting on the employer's behalf when a violation occurs.

State Requirement

States are required to adopt the regulations within three years of enactment. Once states adopt the federal regulatory language, the rule will become applicable to intrastate non-hazmat CMV drivers.

Exemptions

The proposal also allows hand-held cell phone use by drivers for emergency purposes and contacting law enforcement.

Charleston Congressman discusses proposed federal truck regulations

Gary Lovell — Mon, 14 Nov 2011 09:29:36 -0500

U.S. Rep. Tim Scott rallied against new federal trucking regulations, such as a new U.S. Department of Transportation rule that could reduce truckers' allowable daily driving hours from 11 to 10, recently in Charleston. He said the rule proposed in December is unnecessary given the industry's safety record -- a 40 percent decrease in fatalities since 2006 -- and threatens jobs.

"What we're doing is working," Scott said. "I don't understand where their common sense has gone."

For more information and to read the full article, please visit the Post & Courier website.

Non-Lawyers cannot Answer garnishments for Corporations in Georgia Courts

Gary Lovell — Mon, 19 Sep 2011 16:15:06 -0500

The Georgia Supreme Court recently ruled that corporations cannot utilize Non-Lawyers to answer or respond to garnishment actions. In UPL (Unauthorized Practice of Law) Advisory Opinion # 2010-1 the Supreme Court of Georgia held that, since businesses are not individual persons, they cannot represent themselves in court proceedings, including responding to garnishment actions. Thus, untilo changed by the legislature, the rules required that a business must retain a licenced attorney to represent them in court on garnishment and other civil actions.

Beware the violation of a Rule of the Road and Punitive Damages

Gary Lovell — Thu, 01 Sep 2011 10:22:22 -0500

In South Carolina, the courts have held that the violation of a statute (Rule of the Road) is sufficient evidence of willfulness, recklessness or wantonness to require the judge to submit the issue of punitive damages to a jury. In Austin v. Specialty Transportation Services, 258 S.C. 298 (2004), the court held :“The causative violation of a statute constitutes negligence per se and is evidence of recklessness and willfulness, requiring the submission of the issue of punitive damages to the jury.” Wise, 315 S.C. at 276, 433 S.E.2d at 859.Violation of a statute does not constitute recklessness, willfulness, and wantonness per se, but is some evidence the defendant acted recklessly, willfully, and wantonly. Id. The jury determines whether a party has been reckless, willful, and wanton. However, even in cases involving disputed liability, punitive damages are sustainable if there is any evidence supporting a violation of a statute. See, e.g., id. (evidence of a violation of an applicable statute is a proper basis for submitting punitive damages to the trial jury); Bethea v. Pedro Land, Inc., 290 S.C. 341, 350 S.E.2d 392 (Ct.App.1986)"

Thus, the threshold for submission of punitive damages to a jury is very low in South Carolina Courts.

South Carolina Enacts Punitive Damages Caps

Gary Lovell — Wed, 17 Aug 2011 13:13:49 -0500

Effective January 1, 2012, South Carolina will limit punitive damage awards in most cases. Under Section 15-32-510 et. seq., punitive damage must be specifically prayed for in a complaint and will result in bi-furcated trials. Additionally, damages will be limited to the greater of 3 times compensatory damages or $500,000 in cases where the jury finds that the conduct was NOT motivated by (1) unreasonable financial gain involving unreasonably dangerous conduct of a corporation which was known by the officer or person responsible for making policy decisons or (2) the actions could subject the defendant to a felony conviction. In those cases where the jury finds that activity, then punitive damages are limited to the greater of 4 times the compensatory damages or $2,000,000. In cases involving drugs or alcohol, intentional harmful acts, or prior felony conviction for the same conduct, there is no cap on punitive damages.

Will Bus Driver's On Duty Hours Be Reduced to Match Truck Drivers?

Renee Little — Wed, 15 Jun 2011 11:55:29 -0500

Recent deadly crashes involving motor coaches, large buses that travel between cities, have heightened concern about driver fatigue.

Federal regulations allow bus drivers up to 10 hours behind the wheel followed by a minimum of eight hours rest. That adds up to 18 hours, making it legal for a driver to work an entire shift and start a second shift all in one 24-hour period. Bus drivers also have a 15-hour window in which they can be considered on duty. For example, they could drive five hours, wait five hours at a terminal to pick up passengers, and then drive five more hours. That 15-hour window can be extended if drivers have off-duty breaks in between.

Rules differ for truck drivers, who are permitted to drive for 11 straight hours after 10 hours off. They have a hard 14-hour window, which can't be extended.

It is unclear if, due to these highly publicized accidents, the government will change the on duty hour limitations. Industry leaders claim that the current regulations are appropriate and only a few carriers are skirting the law. We will continue to monitor these regulations and advise clients of any changes.

http://www.thestate.com/2011/06/11/1855033/fatal-va-bus-crash-shines-light.html#ixzz1PGYDG8tC