Observations
In reviewing the contents of DQ files, often what does not exist may be more telling than what is found. The required annual review documentation should be in the file for “at least” each 12 month period the driver has operated a CMV for the motor carrier, subject to document retention requirements. The “annual review” is thus not tied to a calendar year; rather, it is typically keyed to the date of hire. Compliance every twelve months is not a safe harbor, and certainly it could be argued that the “at least once every 12 months” language means that a motor carrier with evidence of problems with a driver should be conducting reviews more frequently. Nonetheless, this author has yet to find a motor carrier who checks more than once a year.
Also, note that the fact the review shows the driver is not disqualified and does not mean that the driver passes the annual review required. The motor carrier is also required to determine whether the driver “meets minimum requirements for safe driving.” What are those requirements? Certainly the motor carrier’s own driver handbook should discuss what circumstances will require that a driver be taken off the road. It should not be too much to ask that the motor carrier follow its own policies when conducting an annual review. The motor carrier must pay attention to the type of citations (and, by inference, the type of accidents) a driver has experienced. In this vein, and unlike the regulations in other places, the annual review is not limited to convictions for moving violations. Instead, a motor carrier must consider “any evidence” that a driver has violated laws governing any operation of vehicles. The fact the driver is cited for reckless driving but has the charge reduced to a lesser offense does not mean the motor carrier may ignore the more serious charge.
The type of violations that a motor carrier must ascribe “great weight” to is open-ended. Literally, any violation that demonstrates a disregard for public safety must be given “great weight.” A carefully-plotted list of deposition questions to the safety department employee who administers the review process will show that the motor carrier had no such procedure for a more detailed review. Leading questions, perhaps quoting the language used in the regulations, can be used to have the employee agree that it is important to have such a system in place.
Regulation also creates a foundational relevance argument supporting the admissibility of other accidents and citations, even those that did not necessarily result in conviction. It is important to take this regulation into account when drafting or amending the complaint to potentially set forth a claim against the motor carrier based on the failure to properly comply with the annual review requirement. A claim for punitive damages may align neatly with some of the more outrageous examples of a driver being allowed to stay on the road despite an annual review that showed he was a menace to public safety.
Note that the DOT expects the motor carrier to consider “as much information about the driver’s experience as is reasonably available.” This would include “all known violation, whether or not they are part of an official record maintained by a State, as well as any other information that would indicate the driver has shown a lack of due regard for the safety of the public.” Violations “of traffic and criminal laws, as well as the driver’s involvement in motor vehicle accidents, are such indications and must be considered.” This language certainly creates a basis for the potential admissibility of criminal conduct by a driver in a claim against the motor carrier for a failure to properly carry out the review.
Finally, note that the regulation does not expressly require that anything other than the MVR and a note of the review be preserved within the DQ file. To probe more deeply into the review process, it may be necessary to depose the person who signed off on the annual review. At the least, discovery should flesh out what data and documents were considered by the motor carrier in completing the review and determining that its driver was qualified to stay on the road.
Pertinent Case Law
There is a dearth of authority regarding the annual driver review requirement. The lack of case law is somewhat surprising given the number of lawsuits that allege the failure to comply with this regulation.
Brandes v. Burbank
A motor carrier’s compliance with the required annual review has been cited as a basis to dismiss a claim for punitive damages. On the other hand, the 7th Circuit seemed to identify the failure to conduct an annual review as a possible grounds for negligence per se as a matter of law. In Brandes v. Burbank, the court addressed the question whether a violation of the required annual review would constitute negligence that was not rebuttable with evidence that the actions of the motor carrier were justified or in conformity with the standard of conduct of a reasonable man under similar circumstances. Unfortunately, the reference to the required annual review in the opinion is vague, and thus Brandes is unlikely to furnish a strong argument that the failure to conduct an annual review is negligence that may not be rebutted. However, the ruling is certainly applicable in response to a summary judgment motion filed by a motor carrier in an attempt to dispose of a plaintiff’s negligent retention claim.