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November 1, 2010

By Barbara Haubrich-Hass, ACP/CAS

My parents owned a very successful trucking company in Tehachapi, California. I watched first-hand the hard work that went into managing and maintaining a trucking business. If you have never driven a big rig, bus, or other high profile vehicle, it is easy to forget how hard it is to stop these vehicles in an emergency. The legal weight of an 18-wheeler is 80,000 lbs. In comparison, the average automobile weighs around 5,000 lbs. The length of time to stop an 18-wheeler is 40% greater than that of an automobile. Combine the huge difference in weight with the speeds of the vehicles, and it is easy to see why so many trucking collisions end in fatalities or catastrophic injuries.

This article will discuss some of the basic elements in trucking litigation:

A. Random Facts About the Trucking Industry:

• Some truck drivers carry cameras in their trucks in order to take photographs of an accident scene if their truck is involved.
• Some tanker trucks carry rollover warning devices. Actual warnings may be entered into a data logging unit that is an electronic memory device that records data on truck and component performance and may later be downloaded.
• General Motors cars have been fitted with Black Boxes since 1990. Data stored on GMC vehicles manufactured in years 1999 to 2002 will include engine speed, vehicle speed, throttle position and brake status 5 seconds before impact.
• If the incident occurred on a bridge, it may have been videotaped. Some governmental agencies videotape bridge activity for traffic flow purposes.

B. Potential Defendants:

1. Tractor: Potential defendants related to the tractor include the owner, driver, and /or lessee.
2. Trailer: Potential defendants related to the trailer include the owner, driver of the tractor, and/or lessee.
3. Shipper: The truck load is loaded and unloaded at a shipper's premises.
4. Freight Broker: The person, other than a motor carrier, who provides, sells, or arranges for transportation by a motor carrier for compensation in interstate or foreign commerce.
5. Third Party: Sometimes a third party will maintain and supply all of the pallets and boards used by shippers and carriers as platforms for the carriage of freight. In accidents involving loading or unloading, there is potential liability on this other party.

C. Minimum Insurance Requirements:

Confirming all insurance available is critical. It is important to confirm if there are multiple primary insurers covering the tractor-trailer rig. The minimum insurance requirements are contained in 49 CFR § 387.9. They range from $750,000; $1,000,000; and $5,000,000. Oftentimes, there are multiple layers of umbrella coverage.

D. Requirements for the Driver Qualification File:

49 CFR § 391.51 requires a motor carrier to maintain a driver qualification file for each driver it employs. The file must contain the following:

1. The driver's application for employment completed in accordance with 49 CFR § 391.21.
2. Written responses from previous employers and state agencies contacted as per 49 CRF § 391.23 involving investigations and inquiries of the driver's driving and employment record during the 3 years preceding the application for employment.
3. The certificate of driver's road test issued to the driver pursuant to 49 CRF § 391.31(e) or a copy of the license or its equivalent accepted pursuant to 49 CFR § 391.33.
4. Written responses from state agencies of every state in which the driver held a CDL in the previous 12 months to the motor carrier's annual driver record inquiry pursuant to CFR § 391.25(a).
5. A note naming the person who reviewed the driver's driving record and the date of the review pursuant to 49 CFR § 391.25(c)(2).
6. A list or certification furnished to the motor carrier by the driver setting forth all traffic violations for which the driver was convicted or forfeited bond or collateral during the past 12 months pursuant to 49 CFR § 391.27.
7. The medical examiner's certificate or a legible copy of the driver's physical qualifications to drive a commercial motor vehicle as required by 49 CRF § 391.43(f).
8. Any letter of waiver of a physical qualification, if issued, pursuant to 49 CFR § 391.49.

The motor carrier is required to retain the driver qualification file for as long as the driver is employed and for 3 years thereafter.

E. Annual Review:

49 CFR § 391.25 requires a motor carrier to review the driving record of each driver it employs on an annual basis to determine whether the driver meets minimum requirements for safe driving or is disqualified to drive a commercial motor vehicle pursuant to 49 CFR § 391.15.

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