The Federal Motor Carrier Safety Administration (FMCSA) passed a new rule which requires truckers to install an electronic logging device (ELD) to record the number of hours they are on or off the road. These ELDs must be installed by April 1, 2018. Ahead of this deadline, the FMSCA granted agricultural truckers a second 90-day extension on ELD compliance.
Yesterday, December 2, 2015, Congress released a report detailing the results of the bicameral agreement reached concerning the terms of the surface transportation reauthorization bill commonly known as the “Drive” Act or the “FAST Act” (“Fixing America’s Surface Transportation”). The original House and Senate proposals for the Act included a number of anti-safety provisions which were strenuously objected to by Public Safety Advocates, including Trucking Attorneys like myself. I pointed out some of the key problems with the initial proposal in a prior blog.
Fortunately, the Members of Congress serving on the Conference Committee listened to the facts and to the arguments presented for greater safety, and made a number of positive changes to the final bill.
Examples of these improvements include:
- Removal of a section which provided exemptions to hours of service requirements for certain classes of truck drivers;
- Modifications to the “teen drivers provision” such that there will be a limited pilot program and a greatly reduced volume of higher-risk drivers who are permitted to drive large trucks across state lines;
- Removal of a provision designed to limit the liability of shippers and brokers who negligently hire unsafe trucking companies;
- Removal of a proposed Amendment which would have prohibited states from providing additional meal and break protections for truck drivers; and,
- Modifications to the language in the Act that will eliminate some of the hurdles the Federal Motor Carrier Safety Administration (FMCSA) must navigate in making its determination as to whether minimum insurance limits for large trucks should be raised.
Unfortunately, not all of the anti-safety provisions were eliminated from the final bill. The bill still includes:
- Vehicle weight limit exemptions for the shippers of logging products and milk products, and for large trucks powered by natural gas; and,
- Provisions restricting public access to certain CSA scoring data, and implementing other procedures which may impact the Safety Management System (“SMS”) ratings maintained by the FMCSA for trucking companies.
While the bill is not entirely free of anti-safety provisions, I would like to extend a thank you to those Members of Congress who listened to the appeals for public safety and worked to improve the final bill.
12/3/15 Update: “The FAST Act” Still Contains Anti-Safety Provisions
Members of the United States Congress are currently negotiating the final language of a transportation bill known as “the DRIVE Act.” This legislation will have a major impact on everyone using our nations’ roadways in the years to come.
The terms of the Act have been a subject of debate for some time now, and certain anti-safety provisions (such as the proposed increase in the maximum weight limit for commercial trucking) have been defeated. However, the current legislation still contains numerous provisions that must be removed because they present a threat to the health and safety of the public. Some examples include:
How many times have you been driving on the highway and been passed by a Tractor Trailer that was going 75-80+ mph? It probably happens more frequently than you think. Why should you care? Well, beyond the obvious dangers presented by a truck moving at that speed, there is a hidden danger as well – and it comes from the truck’s tires.
Many, if not most, heavy truck tires are designed for a maximum sustained speed of 75 mph. Driving a tire above its rated speed is a recipe for disaster, as the heat generated can cause the tire to break down and fail. Excessive speed has been linked to many blow outs and crashes. According to data maintained by the National Highway Traffic Safety Administration (NHTSA), between 2009 and 2013 there were over 14,000 crashes in the United States which involved heavy trucks and buses, resulting in nearly 16,000 deaths. Tire failure was a reported factor in 198 of those crashes.
The trucking industry has complained that, in some instances, blowouts are related to manufacturing problems, citing a high volume of instances with certain tire brands/modes. However, investigations conducted by NHTSA into such complaints (concerning certain Michelin tires) revealed that the most likely cause in each instance was “driver error” – that is, drivers pushing the tires beyond their speed rating.
Some in the trucking industry argue that the problem is larger than simply “driver error,” as some 14 states currently have speed limits of 75 mph or higher (85 is permissible in some parts of Texas). However, the simple fact that the law permits travel at a specific speed does not mean it is safe for everyone to do so. A responsible trucker knows the limits of his/her equipment and takes care not to exceed those limits.
If you or someone you know has been involved in an accident with a tractor trailer or bus, it is recommended that you consult with legal counsel immediately to discuss your rights.
On Wednesday, April 22, 2015, five nursing students from Georgia Southern University were tragically killed in a crash with a tractor trailer just outside of Savannah.Unfortunately, the investigation into the accident has revealed that the trucking company involved has a questionable safety/violation history.
John Wayne Johnson, the 55 year old trucker from Shreveport, Louisiana, who was recently confirmed to be the tractor trailer driver involved in the Georgia crash, was driving for “Total Transportation” – a large carrier with approximately 740 trucks and 900 drivers based out of Mississippi. According to the US Department of Transportation (“USDOT”) records, Total Transportation drivers have received a total of 266 violations for unsafe driving in the last two years alone! And these violations were not for trivial matters. To the contrary, Total Transportation’s drivers were cited 107 times for speeding, 45 times for disregarding traffic control devices (i.e., stop lights, stop/yield signs, etc.), 9 times for improper use of a cell phone while driving, and 5 times for failing to maintain a safe following distance. Unfortunately, the list of the company’s violations doesn’t end there. Close review of the USDOT data for that same 2 year window reveals that Total Transportation’s trucks have also been involved in 85 other crashes, which led to a multitude of injuries, and the company’s trucking fleet also received over 500 citations for maintenance violations.
While these numbers are staggering, the sad truth is that this data only captures the instances in which the company and its drivers were actually caught violating the rules, regulations and laws governing safety. One’s mind reels when considering the actual frequency with which this company or its drivers may have ignored safety. Distracted driving, excessive speed, unsafe following distances, and poor maintenance are amongst the leading causes of preventable truck crashes.
In my experience as a trucking lawyer, a safety record as bad as Total Transportation’s can only be explained at the corporate level. All too frequently, trucking companies in this country push their drivers to meet schedules that cannot be met without violating speed laws, cutting back on necessary safety inspections, or violating the hours of service regulations. Those hours of service regulations exist to make certain that drivers get the rest needed to ensure public safety.
Why do these trucking companies do this? Usually, the answer is simple: profit. Many of them have corporate cultures that place greater emphasis on dollars over safety.
Is this the explanation for Total Transportation’s safety record? Only time will provide the answer. But, I can tell you for certain, companies that ignore safety and fail to penalize drivers who violate the traffic laws are a menace, and as long as they are permitted to exist, our roadways will not be safe.
Trucking companies now have access to technologies which can dramatically improve the safety of their operation, safe on fuel costs, and provide accurate feedback concerning the conduct of their drivers. For example, products like “Smartdrive” utilize a multi-camera computer interface to simultaneously capture video footage of the driver’s actions within the cab of the truck and a driver’s-eye view of the path of travel, and combine it with other computer feeds from the truck itself to produce a real-time record of what is happening with any given truck. Though such systems, a trucking company’s safety director or fleet manager can track the location of a truck, the g-forces applied on the truck by the driver’s actions, engine and vehicle data (such as vehicle speed, engine RPMs, hard braking events, etc.), active safety system data (such as following distance, lane departures, etc.), and other similar data.
As a trucking lawyer at Stark & Stark, my question to the industry is why aren’t systems such as “Smartdrive” in broader use? Perhaps the answer lies in the impact the data from these systems can have in litigation. They have the unique ability to show exactly what was or wasn’t done by the truck driver. They can allow for a completely accurate reconstruction of a crash – one which eliminates the ability of a driver’s selective memory to create opportunities for the company to defend its wrongful actions.
However, the fact that trucking companies (and the public at large) should be focusing on, is that data from these systems can also be used to improve everyone’s safety. Companies which employ these systems and utilize technology have the ability to improve driver training and to identify dangerous drivers. As such, these systems can be used by the trucking industry to help stop crashes before they happen!
More information on “Smartdrive” can be found here.
The trucking industry is heavily regulated. Unfortunately, those very regulations, which exist to insure the safety of the motoring public (that’s you, me and everyone else on the road), are frequently ignored by trucking companies, large and small, often with devastating results. When a person is injured in a crash with a tractor trailer, the qualifications of the driver to operate the vehicle, and the steps taken by the motor carrier to qualify him/her, should be a primary area of inquiry by any trucking attorney. And the best evidence of this is frequently found in the driver qualification file.
Motor Carriers are obligated to explore the background and training of any person hired to operate their trucks. And, they are required to maintain a record of the results for duration of the driver’s tenure of employment. This is known in the industry as a “driver qualification file”. Given that these documents are required by law, and are spelled out in great detail by the regulations the trucking industry is acutely familiar with, one would presume that every company would have a complete file for each driver, right? Unfortunately, in my experience, this rarely proves true. I am frequently astonished by the important documentation which is missing from driver’s files, and this often serves as a marker for the care and attention a trucking company takes toward cultivating competent drivers.
The following documents should exist in every driver’s qualification file:
- Driver-specific application for employment (§391.21);
- An original motor vehicle record requested within 30 days of hire (§391.23);
- Documentation proving the driver’s qualifications to operate [this may be in the form of a road test (company road, (§391.31(g)), or a road test certificate conducted by another motor carrier within the past 3 years (§391.33(a)(2)), or a photocopy of a CDL accepted in lieu of road test (unless the person is hired to operate doubles, triples, or tankers)]
- Results of the background investigation on the driver (§391.23 & §391.53 ) including:
- For drivers hired before October 30, 2004: Employment verifications sent to all former employers for the 3 years prior to the application date or a record of a good faith effort;
- For drivers hired on or after October 30, 2004: Safety Performance History data from all former DOT-regulated employers for the 3 year period preceding the application or a record of a good faith effort.
- If applicable, copies of any driver rebuttals to the Safety Performance History data and responses to the rebuttals from the former DOT-regulated employers.
- The driver’s medical certificate (§391.43(g) (or equivalent)
- A waiver of a physical disqualification, if applicable (§391.49(j)
- The driver’s annual motor vehicle record (§391.25);
- A record of the driver’s annual review of his/her driving record (§391.25);
- A list of the driver’s moving violations on an annual basis (§391.27).
- Combination vehicle training certificate, if applicable (§380.401);
- Entry-level driver training certificate, if applicable (§380.509(b)).
In certain situations, additional or differing documentation may be required and/or may exist.
Data reflecting a motor carrier’s safety history is presently available to the general public by the Federal Motor Carrier Safety Administration (FMCSA). The FMCSA generates a carrier’s score through this data, compiled in its “Safety Measurement System” (SMS), which incorporates the results of roadside inspections and other safety-based violations – also known as “Compliance, Safety, Accountability” (CSA) data. Amongst other things, a motor carrier’s rating is influenced by unsafe driving practices (evidenced by moving violation history), hours of service violations, vehicle maintenance/condition violations, and other issues which pose significant risks to the motoring public. Access to these data points provides the public with a snapshot of a company’s safety record, thus arming industry watchdog groups and persons/companies seeking to hire a motor carrier with highly valuable information. This, in turn, applies social & industry pressure to improve the trucking industry’s overall compliance with important safety measures. By improving one’s ability to identify target disreputable and unsafe motor carriers, access to SMS data serves to reduce the risk presented to everyone using the public highways. (An overview of the SMS system can be found here: https://csa.fmcsa.dot.gov/about/basics.aspx )
Access to a carrier’s CSA data through SMS can provide an important and often vital resource to those seeking to improve public safety, hire reputable motor carriers, and to obtain justice. The data is reliable. It is generated by the government based upon each carrier’s actual violation history. All good things. So why is the “Commercial Vehicle Safety Alliance” (CVSA), a trucking industry group, now seeking to hide CSA data from public view? That’s right. Stephen Keppler, CVSA’s Executive Director, has presented U.S. Department of Transportation Secretary, Anthony Foxx, with a written request seeking removal of CSA carrier data from public view. According to the letter, the CVSA’s “stakeholders” are concerned that “inconsistent enforcement” practices between jurisdictions may affect the “accuracy” of a carrier’s safety rating. This position is ridiculous. A carrier’s score is based upon actual violation data. If a carrier wishes to improve its rating, it need only improve its compliance.
As a trucking lawyer in Lawrenceville, New Jersey and safety advocate, I sincerely hope that Mr. Foxx and the FMCSA see through Mr. Keppler’s ruse and reject this blatant effort to hide this important safety information from the public.
As a trucking attorney and consumer safety advocate, I am pleased to report that the Federal Motor Carrier Safety Administration (“FMCSA”) has recently announced that it is considering a rulemaking to increase the minimum levels of financial responsibility for interstate motor carriers, as well as rulemaking pertaining to broker and freight forwarders, trip insurance, bus brokers and self-insurance. This important move is long, long overdue.
The federal government has imposed mandatory minimum insurance limits for all interstate motor carriers since the Motor Carrier Act was passed in 1980. The Bus Regulatory Reform Act, passed in 1982, imposed similar regulations on passenger carriers. The amount of coverage required by the current regulations varies depending on the type of cargo being hauled and the size of the vehicles involved. General freight carriers are required to carry at least $750,000 in coverage, unless the vehicles being operated are less than 10,001 lbs (GVW), in which case the mandatory limits are reduced to $300,000. Carriers hauling hazardous materials are subject to increased limits, which may be as high as $5,000,000 depending on the type of materials being transported. Passenger carrier limits also vary, depending on the number of passengers involved.
At first blush, these limits may seem significant. However, the sad reality is that they all too frequently fail to cover the medical costs and related damages which are inflicted by negligent motor carriers. The simple truth is that the current limits may have sufficed in the 1980’s, when they were put in place. However, the financial burdens imposed by the catastrophic injuries negligent carriers cause have dramatically increased since then. A change is needed to protect the public.
The FMCSA’s review of the appropriateness of current minimum financial responsibility requirements was required by legislation which President Obama signed in 2012. The FMCSA’s report was issued to Congress in April, 2014 and concluded what we trucking attorneys have known for quite some time: “that the current financial responsibility minimums are inadequate to cover the costs of some crashes.” Among the report’s notable findings are the following:
- “The Costs for severe and critical injury crashes can easily exceed $1 million”
- “Insurance premiums have declined in real terms since the 1980s and inflation-adjusted premium rates have also declined over the same period.”
- “Current insurance limits do not adequately cover catastrophic crashes due, in part, to the significant increases in medical costs associated with injury since the current minimum insurance levels were set in 1985.” As such, the “real value of insurance coverage has decreased” over the past 30 years and simply “does not cover as much of the cost of a catastrophic crash as it once did.”
For more information, the FMCSA’s announcement can be accessed here.
Local news here in Mercer County has been filled with reports of a tragic accident which claimed the life of James McClean, 59, a resident of Trenton, NJ. The crash occurred on July 17, 2014, when a dump truck driven by Daniel C. Everett, 38, of Westampton slammed into the rear of McClean’s Nissan Altima, pushing it through a guardrail and into Colonial Lake in Lawrence Twp. Witnesses indicate that the trucker was speeding and driving erratically when he hit the car and pushed it more than 200 feet into the lake. Scorer Trucking, the Pemberton based company which reportedly owns the dump truck, has apparently declined to comment on the accident. While the official cause of the accident remains under investigation, police reportedly found an “eye dropper” in the cab of the truck with a “brown residue” which is suspected to be heroin. Lab tests are pending.
Formal charges have been filed against the truck driver, including “death by auto”. As a truck accident attorney, I am appalled by an accident of this nature. Frankly, this is the type of event simply should never happen. The trucking industry is heavily regulated, and trucking companies, such as Scorer Trucking, are required to perform thorough background inquiries into their employees. However, from my experience, companies often fail to live up to the letter of the regulations. Truckers and trucking companies are supposed to limit the hours drivers spend behind the wheel on a daily/weekly basis, but in practice these rules are routinely violated. Trucking companies are supposed to police the qualifications of their drivers and to insure their trucks are maintained. Yet, these important safety regulations are frequently ignored — often with tragic results.
Frankly, the best way to know how or why a trucking accident occurred is to immediately seek the assistance of an experienced trucking attorney. Doing so will insure access to important documentation which may otherwise be lost or disposed of by the trucking company. My heart goes out to the family and friends of Mr. McClean and others whose lives have been ended or permanently altered by the negligence of truckers. The involvement of the authorities in this specific case should allow us to learn how and why this particular accident occurred. However, if this accident did not implicate criminal conduct, Mr. McClean’s family would likely never learn the “how” and “why” of the accident without the help of an attorney
If you, your friends or family have been injured by the negligence of a truck or bus, you should immediately contact an experienced trucking lawyer for assistance. Have a legal question? Contact Stark & Stark today.