The new Hours of Service (HOS) regulations go into effect today. In many ways these regulations are simply the old, pre-President Bush, regulations with some minor changes. Nonetheless, you can expect the trucking industry to be up in arms. I have posted on the new HOS previously HERE

The outrage is primarily because the trucking industry still imposes the burden of  all road delays on a truck driver. It is commonly known in the trucking industry that if the wheels aren’t turning, trucker’s ain’t earning." This causes many truckers to push the HOS. I have previously posted on the need for truckers to be paid hourly, with overtime, HERE.

The FMCSA sent out a press release on the topic which states: 

New Hours-of-Service Safety Regulations to Reduce Truck Driver Fatigue
Begin Today

WASHINGTON — The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) announced that new federal regulations designed to improve safety for the motoring public by reducing truck driver fatigue took full effect today, July 1, 2013.

"Safety is our highest priority," said U.S. Transportation Secretary Ray LaHood. "These rules make common sense, data-driven changes to reduce truck driver fatigue and improve safety for every traveler on our highways and roads."

Trucking companies were provided 18 months to adopt the new hours-of-service rules for truck drivers. First announced in December 2011 by FMCSA, the rules limit the average work week for truck drivers to 70 hours to ensure that all truck operators have adequate rest. Only the most extreme schedules will be impacted, and more than 85 percent of the truck driving workforce will see no changes.

Working long daily and weekly hours on a continuing basis is associated with chronic fatigue, a high risk of crashes, and a number of serious chronic health conditions in drivers. It is estimated that these new safety regulations will save 19 lives and prevent approximately 1,400 crashes and 560 injuries each year.

"These fatigue-fighting rules for truck drivers were carefully crafted based on years of scientific research and unprecedented stakeholder outreach," said FMCSA Administrator Anne S. Ferro. "The result is a fair and balanced approach that will result in an estimated $280 million in savings from fewer large truck crashes and $470 million in savings from improved driver health. Most importantly, it will save lives."

FMCSA‘s new hours-of-service final rule:

 

  • Limits the maximum average work week for truck drivers to 70 hours, a decrease from the current maximum of 82 hours;

  • Allows truck drivers who reach the maximum 70 hours of driving within a week to resume if they rest for 34 consecutive hours, including at least two nights when their body clock demands sleep the most – from 1-5 a.m., and;

  • Requires truck drivers to take a 30-minute break during the first eight hours of a shift.

 

The final rule retains the current 11-hour daily driving limit and 14-hour work day.

Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies and passenger carriers that allow drivers to exceed driving limits by more than three hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.

Further information, including "Hours-of-Service Logbook Examples," is available on FMCSA‘s web site atwww.fmcsa.dot.gov/HOS.

 

Just finished speaking at the Kentucky Justice Association on "When a Million Isn’t Enough – Broker and Shipper Liability. The moderator was a good friend of mine and great host, Tim Lange (a phenomenal Louisville, Kentucky trucking lawyer see HERE) and I was honored to share the stage with other brilliant lawyers who represent people injured by trucks and buses. It was truly a masterclass, national program.  In addition to myself and Tim, the faculty consisted of: Jay Vaughn, Joe Fried, Larry Simon, and Marion Munley Cartwright

 

Swift, like many trucking companies, has a history of destroying evidence that shows they were at fault for a wreck. I have posted on this previously. That is one of the reasons it is important to hire a lawyer as soon as possible when you have a trucking case.

Recently, in an Arkansas case, the trial court held, and the 8th Circuit Court of appeals agreed, that the jury was entitled to know that Swift spoliated evidence. Th Order from the 8th Circuit Court of Appeals states: 

The " trial court found “Swift has been intentionally deceptive,” mentioning “the things that Swift has done that have been intentionally wrong in [d]iscovery,” and commenting Swift “just flat out lied.” The trial court noted it was “not required to believe anything [Swift’s witnesses] sa[id],” and remarked that Swift “control[led] the satellite data, and some of it . . . [the trial court] believe[d] could have been preserved if, in fact, it had been exonerat[ing].” The trial court concluded by saying, “my reason is simply this, I don’t trust the document.” Although the trial court did not use the words “bad faith,” it is abundantly clear the trial court believed it was likely Swift intentionally allowed the electronic satellite tracking data to be destroyed. (emphasis added)
 
The opinion available here for download,  Swift Transportation Co. v. Angulo et al., was filed June 17, 2013. 

I have previously posted on how inadequate current insurance limits are on tractor trailers. In that blog post I stated (regarding the minimum $750K  limits being inadequate for catastrophic wrecks, limits having not been increased in almost 3 decades): 

 If you go to any present value calculator on the Internet and use a 4% inflation rate you will find that the present value of $750,000, 29 years from now, is about $240,000 in today’s dollars. To put it another way, you would need $3,120,000 in today’s dollars to equal $750,000 in 1980.

A new actuarial study, sponsored by The Trucking Alliance, has found that trucking companies insured at the $750,000 level are, in effect, uninsured. “They are just rolling the dice that they don’t have an accident,” Lane Kidd, president of the Arkansas Trucking Association and an Alliance member stated.

The study included data on more than 8,600 truck accident settlements between 2005 and 2011. An article on the study can be found HERE 

I note many safety groups, and my own firm, agree that insurance minimum limits need to increase for all truck and bus companies.

 

 

My trial schedule has been more than hectic recently with cases in Rhode Island, Florida, North Carolina, California, Wisconsin, and Arizona all having significant depositions, motions or trials scheduled over the last few months. Having weathered the worst of it I was able to attend a "Mastermind" meeting with some of the finest truck accident lawyers in the United States (more on this later).

So what happened at the Mastermind group? We discussed ways to make the roads safer (pay truck driver’s by the hour, oppose larger heavier trucks, etc…) as well as how to help our clients in current cases achieve fair restitution for the damage inflicted on them by negligent truck drivers and trucking companies.

Why do I call this group of lawyer’s, all member’s of TAAR,  a "mastermind" group? Since they are all good friends who I have worked with in the past some might say I was biased. Let me tell you who attended and what some other folks have said about this rare group of lawyers that are as caring as they are smart: 

  1. Steve Gursten – Michigan Trial Lawyer of the Year, SuperLawyer, AV rated, etc… Steve’s accomplishments in the courtroom on behalf of his client’s are second to none. I have worked on several seven figure cases with Steve and he spares no effort on behalf of his clients.
  2. Michael Leizerman – THE Ohio Truck Accident Lawyer, Michael literally wrote the book (Three volumes, trucking cases are not a simple area of the law!) on Truck Accident Litigation. Numerous record verdicts in courts around the country. We have also worked on several seven figure cases together
  3. Ken Levinson – A great Chicago Lawyer (selected as a SuperLawyer, Top 100 Trial Lawyer, AV rated, etc…), Ken focuses his trial expertise and passion in representing children as well as the victims of truck accidents. Ken and I recently worked on a $5 Million dollar trucking case in Rhode Island where a child died, and have also agreed to work together on future trucking cases in Chicago. Our new website, to help Chicago Truck Accident Victims, can be found HERE. 
  4. Morgan Adams – I am one of just a handful of lawyers in the country who exclusively represents the victims of truck and bus accidents, and have a national practice working with clients and lawyers in every state. In order to better serve my clients around the nation, I now have a San Francisco Truck Accident Office as well as a Chicago Truck Accident Office.

The results of our collective efforts as a "mastermind" group will benefit not only our current clients, all those we will represent in the future, but also everyone who will ever use a public road. 

The four of us look better in suits, but after some long nights working out common problems for our clients, I am happy to say we were all awake for breakfast! 

Michael Leizerman, Steve Gursten, Morgan Adams, and Ken Levinson

.  

I have been talking to some of the finest trial lawyers across the United States with about how they handle trucking cases and issues in the trucking industry. I have asked a number of them provide blog posts and will add guest blogs from them as I receive them.  

Nelson Tyrone is a tractor trailer accident lawyer in Atlanta that I have worked with on a number of cases. A fellow graduate of the Spence Trial Lawyers College, Nelson has had incredible success in the courtroom, is a trial lawyer’s trial lawyer, and is a flat out nice person to boot. Recently we were talking about fatigue in trucking cases and I asked him to put his thoughts down for the blog. Nelson’s reply is as follows: 

Fatigue is a major issue for over the road (OTR) truck drivers and therefore, a concern for all of us who share the roadways. Due to the very nature of the occupation, many truck drivers suffer from sleep deprivation and the disruption of normal sleep cycles. Not as much attention is given to the topic of fatigue in initial truck driver training, where the focus is more on safe operation of the commercial vehicle. Fatigue management is something trucking companies are supposed to train their drivers on as it is so critical to safety, and such a recognized problem in the trucking industry (see my  prior posts on fatigue and sleep apnea).

Most truck drivers are paid by how much ground they cover in a certain amount of time. The faster they cover ground, and the longer they work, the more they get paid. Other common scenarios that could possibly contribute to truck driver fatigue may be a driver who is anxious to get home to his family after being on the road all week, a driver who is worried about beating rush-hour traffic in a certain locale, or a truck driver attempting to make up for lost time due to unanticipated traffic or inclimate weather.

In an effort to reduce fatigue-related crashes involving truck drivers, the FMCSA (Federal Motor Carrier Service Administration) has worked together to reduce the number of “hours of service” worked by commercial truck drivers.  These hours of service were extended a few years ago, and the new regulations return the regulations to the earlier limits (see HERE). The studies show that by reducing the hours, it will reduce the number of fatigue-related crashes, as well as reduce the number of long-term health problems for many drivers that can result from long term sleep deprivation. Of course no ruling can ensure that the drivers will actually rest, however, it can ensure that they have adequate time off the schedule to recuperate before their next work assignment.

The FMCSA’s new hours of service reduces the maximum number of hours a truck driver can work in a week by 12 hours. While the old rules permitted drivers to work a maximum of 82 hours within a seven-day period, under the new regulations 70 hours per week is the maximum allowed. This is a 15% reduction in the number of allowable hours to be worked. The new regulations also require a 30 minute rest period between every 8 hour period of driving.

A large truck on the road can be a deadly instrument when the driver is overtired. “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.”

Companies or drivers who commit egregious hours of service violations could face the maximum fine for each offense. Companies can be fined up to $11,000 per violation, and the individual drivers may be fined up to $2,750 per incident. Truckers are required to use a logbook to record their drive time and break times, therefore ensuring compliance with the regulations. FMCSA initially announced these changes in December of 2011 as a method to help prevent fatigue – related crashes. Commercial truck drivers and trucking companies must comply with the Hours of Service Final Rule by July 1, 2013.

The new regulation on hours of service is available for downloading free HERE.  

Nelson Tyrone  handles Trucking Injury, Brain Injury, Spine Injury, RSD/CRPS and wrongful death cases in Georgia. You can reach Nelson at 404-377-0017 or via email at admin@tyronelaw.com. 

One of the the requirements of every trucking company before they put a truck on the road, and every truck driver before they get behind the wheel of a tractor trailer, is that they both must agree to follow the Federal Motor Carrier Safety Regulations. These are the regulations that keep us, the public, safe on the roadway while 80,000 pound tractor trailers are driven around us. Trucking companies, truck drivers, and truck accident lawyers must know all the regulations to determine if a violation of a safety regulation contributed to a wreck. The FMCSA lists all of the potential violations of the FMCSR in a chart it uses under the  Behavior Analysis and Safety Improvement Category (BASICs) program.

The FMCSA came out with revisions to the BASIC violations today, which means it also updated the FMCSR violation chart. Each violation of the FMCSR results in points being assigned through BASIC against the truck driver and trucking company. The points are then used to determine a trucking company’s safety rating.

Lawyers can look at the list of BASIC (FMCSR) violations to make sure they are not missing potential negligence per se claims. Trucking companies and truck drivers can review the list to make sure they are running legal. The master list of FMCSR violations can be found HERE

One of the things you do when handling a trucking case, whether as a plaintiff or a defense lawyer, is to audit the drivers logs to determine if the driver was over hours and driving in a fatigued state. I have blogged on fatigued driving extensively in the past. A key in auditing logs is to get all of the supporting documents (see FMCSR 395.8 (k)(1)(Question 10)) federal regulations require a trucking company to keep. These documents "support" the driver’s logs by showing where the driver/truck was at a specific time.

E-ZPass – One of the most overlooked supporting documents is the information found in E-ZPass data. E-ZPass is an electronic device that records when and where a truck passes through a toll plaza.

Currently E-ZPass data is available in the following states: 

  1. Illinois
  2. Indiana
  3. Ohio
  4. West Virginia
  5. Virginia
  6. Pennsylvania
  7. Maryland
  8. Delaware
  9. New Jersey
  10. New York
  11. Massachusetts
  12. New Hampshire
  13. Rhode Island
  14. Maine

Other states have similar devices for toll plazas within their state. For example Georgia has Peach Pass and Florida has SunPass.

PrePass – PrePass is another electronic device that helps determine the location of a truck at a given date and time. PrePass allows trucks to bypass weigh stations by electronically transmitting a truck’s license number, motor carrier identification, and weight to the weigh station so the truck doesn’t have to stop.

According to a recent report there are 435,000 trucks in the PrePass system and 123,000 trucks in the E-ZPass system. Each of these trucks has an electronic record that will help put them at a specific place and time. Once that is done you can compare the data to what is shown in the driver’s logs to determine if his truck was moving while the driver claimed he was sleeping.

These PrePass and E-ZPass records should be obtained in almost every case and help lawyers and trucking companies properly audit a truck driver’s logs. Any trucking company that fails to use this data in auditing a driver’s logs doesn’t care whether its drivers violate the HOS regulations and is placing the public – you and me – at risk.

Recently I was associated on a trucking case in Arizona by my friend Peter Gorski and his brilliant associate Kelley Durham. Our client, a seasonal agricultural worker, had run into a parked trailer that had been left on the side of the road. The force of the wreck killed our client and the defendants’ believed the death occurred immediately at impact. The police report indicated it was our client’s fault, and there was even allegations that our client had drugs and alcohol in his system.

After a thorough investigation our trial team determined that the truck driver 1) failed to place the required warning triangles (FMCSR 391.22), 2) illegally parked on the roadway, and 3) had even parked the trailer in the wrong direction so there was no lights, reflectors, or visibility tape facing oncoming traffic. These factors had not been taken into account by the police.

After many depositions we felt liability was clearly the fault of the trucking company. The trucking company was at fault for failing to properly train the truck driver and for knowingly allowing the illegal parking in order to speed up its operations and make more money. We then deposed the defense toxicologist and were prepared to file a Daubert Motion to keep out the speculative results of the sloppily conducted drug and alcohol testing of our client. Having strongly established our case through deposition, we were able to present a strong case at mediation.

The case resolved at mediation for one of the largest settlements or verdicts we could find for a Yuma, Arizona death case – one million dollars.

Obstructive Sleep Apnea (OSA) has long been know to be a problem in the trucking industry. A recent study confirms overweight drivers are more likely to be involved in a crash, 54% more likely than other drivers! The researchers stated that OSA is most likely the cause of the increased crash risk.  

Drivers who have OSA fail to get enough sleep, drive tired, and drive down the road "nodding" off. These "micro sleeps," where the eyes close for a few seconds or shorter, the driver nods, then "wakes" back up, have the 80,000 pound tractor trailer going down the road BLIND. During these nodding periods wrecks happen because the driver has no idea what is going on around the truck.

OSA is frequently found in overweight people, and trucking companies can expect OSA, more likely than not, with drivers with a body mass index (BMI) over 30 (Obese). The National Institute of Health has a BMI calculator HERE for easy calculation of your BMI. If it is over 30, and you are a truck driver, you should immediately be checked for OSA. OSA is a condition contributed to by the long hours a driver spends sitting down, fast food eaten on the road, and the lack of places to exercise. Trucking companies know the FMCSA prohibits drivers with untreated OSA (OSA can typically be treated with a CPAP machine, many of which are made for truck drivers.) to drive a tractor trailer.

Even though OSA is a known danger in the industry, unsafe trucking companies have generally failed to take precautions against putting drivers with OSA on the road. These days there are hundreds of articles about the dangers of fatigue and OSA in every truck industry trade publication. Any trucking company that doesn’t know about OSA at this point, and the dangers it  causes, is so incompetent and dangerous that they should IMMEDIATELY be taken off the road! Most trucking companies already have OSA screening programs in place. While Schneider National and I have had our disputes in the past (HERE), I will point out that they have had an OSA policy since 2004. J.B. Hunt entered into a program with SleepSafe in 2009 for its drivers to be tested and treated for OSA.

Sleepsafe, a company employing doctors that specialize in OSA in the trucking industry, estimated that trucking companies recouped the full amount spent on OSA programs in the first 4-10 months, with cost savings thereafter (Article at TruckingInfo.com HERE ). Far from being an expense, OSA policies saved trucking companies money .. and now clearly save lives as well.