The Driver Application
The first real step in the qualification process is the completion of an employment application that complies with the regulations. The application must be signed by the applicant and contain specific information. A motor carrier is free to require more information on its application than that called for under the regulations, but not less.
Employment Application Requirements
While no particular form is prescribed, the regulations specify that the application form furnished to the applicant must include the following:
- Name and address of the employing motor carrier
- The applicant’s name, address, date of birth, and social security number
- The applicant’s residence address(es) for the preceding three years
- The date on which the application is submitted
- The issuing State, number, and expiration date of each unexpired CDL issued to the applicant
- A description of the nature and extent of the applicant’s experience driving a motor vehicle, including the type of equipment he or she has operated
- A list of motor vehicle accidents for the preceding three years, including the date and nature of each, and any fatalities or personal injuries caused
- A list of traffic citations for which the applicant was convicted or forfeited bond or collateral during the preceding three years
- A statement describing the circumstances of any previous denial, revocation, or suspension of any motor vehicle license, permit, or privilege, or a statement that no such thing has previously occurred
- A list of the names and addresses of all of the applicant’s employers for the preceding three years, along with dates of employment and reasons for leaving, and a statement of: 1). whether the applicant was subject to the FMCSRs while employed by the prior employer(s); 2).whether the applicant’s job with the prior employer(s) was designated as a safety-sensitive function subject to alcohol and drug testing.
Observations
The application can be a gold mine of background information, both in terms of its content and the omissions. If possible, counsel should obtain it prior to filing suit to ensure an early opportunity to conduct an independent background investigation. Often the information provided on an application by the driver-candidate will not match other information obtained by the motor carrier in the qualification process, such as that obtained from third parties like previous employers. This can create a difficult situation for a motor carrier safety director who has, for instance, just testified his company would not employ a driver who has given false information during the hiring process.
Not surprisingly, a driver-candidate usually does not disclose the accurate reasons for leaving prior employment, such as “terminated for intoxication while working,” on their application. He does want the job, after all. This degree of falsehood may make certain evidence admissible that would otherwise not be. Therefore, the contents of the application, such as the social security number and prior addresses, may be used to conduct a background investigation with a level of detail not otherwise possible prior to filing suit. The information gained by counsel from such a background check can be very helpful in developing a discovery plan that is specifically geared to the facts and law of the case. Instead of boilerplate form requests that invite boilerplate form responses (and boilerplate objections), counsel will be able to serve ones that are targeted and case-specific. Non-party requests and subpoenas for the production of documents should be sent to the driver’s prior employers, law enforcement agencies in the areas the driver has previously had accidents and/or received traffic citations, the CMV licensing agencies of the States and jurisdictions where the driver has applied, and so forth.
Pertinent Case Law
The cases typically involve employee complaints to their employing motor carriers, such as when a labor dispute arises and the employees are told that they are considered independent contractors for the purpose of employment-related benefits. In those cases, the driver application and qualification process is usually argued to be evidence of an employment relationship. However, the case law interpreting the regulations also sounds a warning to plaintiffs. In more than one case, a plaintiff’s counsel was able to demonstrate poor or even non-existent qualification procedures, yet nevertheless suffered summary judgment on proximate cause grounds.
In other words, even where noncompliance with the FMCSRs’ driver qualification requirements was shown, the plaintiff was still unable to satisfy the trial court that the noncompliance caused or contributed to the underlying collision. Indeed, summary judgment motions that argue a plaintiff has failed to establish a causal link between prior regulatory violations and subsequent wrecks raise a pointed question. Arguably, the burden should be on the movant to show that violations were inconsequential, rather than placing the burden on the respondent to show they were not. Although issues of proximate cause are usually left for jury determination, there is enough case law on the books to put the plaintiffs’ bar on notice that some courts will apply a very narrow interpretation of causation when assessing what must be done before hiring and entrusting a vehicle to a driver.
An example is found in King v. Fierro Trucking, Inc., where a motor carrier was essentially absolved from responsibility for what can only be described as a complete breakdown of the driver qualification process. The record included a litany of regulatory violations that ranged from technical to flagrant. No DQ file was created and driver training was minimal to nonexistent. The motor carrier did not require a written application, nor did it check references or conduct its own background check. The motor carrier also not only failed to perform the required post-accident drug and alcohol test, but it had no written drug policy at all. Moreover, no annual review process was followed, and no vehicle maintenance records were maintained. Despite the laundry list of breaches, the court granted summary judgment for the defendant, ironically observing that, “Plaintiffs do not draw the Court’s attention to any evidence in the record that a written application would have afforded evidence of [the driver’s] inability to safely operate a truck.”
Setting aside for the moment the shifting of burdens at play here, the difficulty of establishing that compliance with the regulations (which were blatantly ignored) would have made a difference in the truck wreck that eventually occurred is a significant hurdle in its own right. In essence, a court’s adherence to a strict interpretation of the duty to produce evidence of proximate cause at the summary judgment stage creates a real problem for plaintiffs pursuing motor carriers who flout the regulations. However, King is not alone in its conclusion.
The critical goal of the plaintiff is to establish evidence linking the breach of regulations to the occurrence of the wreck. The above line of authority can therefore be interpreted as requiring plaintiffs’ counsel to do the investigation that the motor carrier itself failed to do. If, for example, it is discovered that the driver had convictions on his record that would have barred him from operating a CMV during the time the accident occurred, then there is a clear basis to resist summary judgment and create a jury question on issues of negligent hiring and entrustment.
Once again, it is important not to ignore the possibility that while the driver may have passed muster under the regulations, he still ran afoul of the motor carrier’s own internal policies, or those found in its driver handbook (the two are not necessarily one and the same). Discovery should be crafted to ferret out any policies that may apply to hiring decisions, while deposition questions should seek to uncover any unwritten but understood policies. For example, if the motor carrier’s safety director testifies that no applicant with more than speeding tickets within the past 12 months is hired, yet its driver’s record of violations shows just that, it may be possible to survive even the most narrow interpretation proximate cause in a claim based upon the failure to obtain a pre-employment motor vehicle record (“MVR”). Counsel should endeavor to look for the link, or the “fit” in Daubert terms, between the breach(es) and the wreck.
One case where a plaintiff prevailed against a motion for summary judgment by showing the link between a breach and the subsequent wreck is Meyer v. Trux Transp. Inc. There, the defendant motor carrier and its driver moved for summary judgment on the plaintiff’s claims for negligent hiring, supervision, training, retention, entrustment and punitive damages. At issue was the driver’s positive test for marijuana after the wreck and his false deposition testimony regarding that test result. While it is not difficult to see why the court denied the driver’s summary judgment motion, it should be noted that there was no evidence referenced in the opinion that the driver was actually under the influence at the time of the incident. Of course, some expert testimony would have been stronger evidence of a breach proximately causing injury, but was not required by the court in Meyer.
The plaintiff’s negligent hiring claim against the motor carrier in Trux provided an interesting analysis of the link between breach and proximate cause. The plaintiff was able to show that the defendant driver had been fired from a previous job driving CMVs due to a positive drug test. For its part, the defendant motor carrier was unable to prove that it had sent the request for information to the prior employer as required by the FMCSRs and, in any event, no response from the prior employer was found in the driver’s DQ file. In denying the motor carrier’s summary judgment motion, the court noted in pertinent part:
While plaintiff does not present evidence that [the motor carrier] had actual knowledge of [the] prior failed drug test, there is sufficient evidence presented to create a question of fact regarding whether [it] complied with federal regulations during the hiring process of [the driver].
Again, the presence of evidence that “fits” the cause of the wreck at issue was sufficient to overcome the defendant motor carrier’s motion for summary judgment. Given this law, it is essential to look for that missing step in the hiring process, either in the FMCSRs or the motor carrier’s own policies, which would have made a difference in determining whether a driver was allowed behind the wheel in the first place. Absent that showing, a claim for negligent hiring, retention, or entrustment based on a breach of the application requirements may be dismissed.