Observations
Proof of a valid periodic inspection only relieves the motor carrier from being cited for a violation of regulation. A CMV may still nevertheless be subject to a roadside inspection even if it already passed an annual inspection and displays proof thereof. Thus, be certain to look for any inspection by a state or federal entity even if the motor carrier had produced a current annual certificate. Note, however, that although a DVIR from an inspection by an FMCSA agent must be retained for twelve months after the date of inspection, the FMCSRs do not appear to require that a motor carrier keep a copy of a state inspection form. Therefore, state inspection forms may sometimes only be available from the inspecting agency itself via an open records request.
As touched on earlier, the periodic inspection rules, and Appendix G in particular, should be consulted in any case dealing with a component defect, malfunction, or failure. If the component is among those required to be inspected, the details surrounding the performance (or non-performance) of the inspection can assume an even more significant role. In some cases, the inspector who signed off on the annual may need to be deposed. If that course of action is pursued, the deposition should address that person’s qualifications to perform the annual inspection. In order to do so intelligently, evidence of his or her qualifications should be obtained before the deposition goes forward, which will also allow counsel to assess and verify them. In a pinch, the inspector can be asked to bring them to the deposition by including a Notice To Produce within the deposition notice.
If a crash involves problems with the CMV brakes, note that the Regulations include a separate set of requirements for individuals who inspect, maintain and repair brakes. § 396.25 (“Qualifications of brake inspectors). As with annual inspectors governed under regulation, a motor carrier is required to retain evidence of the qualifications of a brake inspector/mechanic.
If the CMV did not pass its annual inspection, this is obviously a relevant detail that counsel needs to know. To find that out, discovery requests should seek not only the annual inspection report, but other documents that may describe or refer to any inspection that was failed, along with supporting documents that show the required repairs were in fact made. While the Regulations are not as explicit as they could be, they reference the inspector’s report as needing to identify “those components not meeting the minimum standards set forth in appendix G.” This language makes it arguably somewhat clear that a motor carrier must maintain not only the report that shows the motor vehicle passed the periodic inspection, but the one or more documents that relate to those components which failed. It would not be unusual to find that a motor carrier, rather than expend the money for repairs, shopped for a more lax inspector after its CMV failed the annual inspection.
Finally, be mindful that the recordkeeping requirements of regulation apply only when the motor carrier self-inspects its CMV or does so through an agent. The requirements do not apply if the motor carrier has used an FHWA-approved state inspection program. In that situation, the motor carrier is required to comply with the recordkeeping requirements of the state. Therefore, if a defendant motor carrier claims its complied with the periodic inspection requirement through such a program, state law should be consulted to determine if they provide a longer retention period than those found in Part 396 of the Regulations.
Pertinent Case Law: Craft v. Graebel-Oklahoma Movers, Inc.
In the Oklahoma Supreme Court’s opinion in Craft v. Graebel-Oklahoma Movers, Inc., discussed earlier in this chapter, it was held that an inspector may be subject to liability for knowingly preparing a false inspection report required by regulation. The court in Craft actually found two sources for potential liability. The first source was the common law duty of one who undertakes to repair a motor vehicle to warn the persons requesting the repairs, as well as any persons who “might reasonably be expected to be endangered by probable use . . . after repair,” of known defects. The second source, not surprisingly, were the regulations. Although it did not use the phrase “negligence per se,” the court’s statement that the inspector had “an independent statutory duty,” the violation of which could result in fines of $10,000, clearly suggests that it would have upheld a jury charge to that effect. While Craft involved a knowingly false report, its logic would appear to extend to a negligent inspection of a CMV that falls short of actual knowledge, as well.