The Background Investigation
The regulations mandate that a detailed background check be conducted on any prospective driver. The requirements are quite rigorous, but also quite often not followed properly. A breakdown at this step is often an indicator that a motor carrier has a poorly-functioning safety department. In reviewing documentation of this step in the DQ process, it is important to know whether the required follow-up actions were taken and appropriately recorded. This can be very important where, for example, alcohol or drugs are believed to have been a factor in a wreck. If the motor carrier did not obtain drug and alcohol testing information from an applicant’s prior employers, that is significant evidence of a lax attitude towards safety.
Required Background Investigations and Inquiries
A motor carrier must do the following with respect to each driver it employs:
1. Obtain a motor vehicle record from every State where the driver held or holds a license during the previous three years. A copy of the MVR(s) must be placed in the DQ file within thirty days of the beginning of employment, and if none is received, a “good faith” effort to get the record must be documented and put in the file.
2. Perform a documented investigation of the applicant’s “safety performance history” with all USDOT-regulated employers in the last three years. Any replies received must be placed in the DQ file within thirty (30) days after employment commences. The investigation can consist of personal or telephone interviews, letters, or any other method the motor carrier deems appropriate. A written record of each contact or good faith effort to contact prior employers must appear in the DQ file. The documentation must include the names and addresses of the prior employers, the dates of contact (or attempts to contact), and the type and nature of information received. Notably, the failure to contact a prior employer must be documented, and the failure of a prior employer to respond must also be be reported to FMCSA.
3. The types of information that the motor carrier must request from previous employers are specifically listed in the regulations. The required types of information include:
a. All reportable accidents within the prior three years
b. Any non-reportable accident record which the prior employer maintains for internal purposes, i.e., “minor” accidents
c. Any violation of drug or alcohol prohibitions for the prior three years
d. Information related to a driver’s undertaking or completion of a drug and alcohol rehabilitation program
e. Note: As part of the process of requesting information related to drug and alcohol use, the motor carrier seeking information on an applicant must provide prior employers with a written release signed by the driver. If the driver has not signed the release or refuses to do so, he or she cannot operate a commercial motor vehicle.
4. Prior employers are required to maintain a record of all requests for information about former drivers, and their responses thereto, for a period of one year afterwards.
Observations
Under the regulations, a driver’s MVR, employment and accident information, and drug and alcohol history must only be placed in the DQ “within thirty days of the date the driver’s employment begins.” The downside to this “grace period” is that it often provides an ample opportunity for records from an investigation to fall through the cracks and never be seen again.
With regard to information from prior employers, a motor carrier’s compliance with the regulations does not automatically create a “safe harbor.” The motor carrier must “at a minimum” investigate the information set forth in the regulations. If the circumstances surrounding a driver’s prior employment appear to be suspicious, such as four different driving jobs in as many months, it may be argued that the motor carrier’s investigation should have been more detailed. The duty to follow up and complete the investigation, and the need to actually review and analyze the information received, may not have occurred. It is incumbent upon counsel investigating a truck wreck to flyspeck the motor carrier investigation to determine whether the regulations were met, and if so, whether the information received should have barred the driver from operating a CMV either under the regulations or the motor carrier’s own policies.
The requirements for background checks arguably omit two notable considerations. It does not categorically prevent a motor carrier from allowing a candidate to drive while awaiting receipt of the requested information. Moreover, the qualification process does not require any form of a criminal background check, as shall be discussed below.
Pertinent Case Law
The language does not explicitly require a motor carrier to conduct a criminal background check on a prospective driver, leading a number of courts to hold that no cause of action exists under the regulations for the failure to conduct such an inquiry. However, the background investigation is simply the minimum required by the FMCSRs. Therefore, a motor carrier’s compliance with the regulations, while evidence of the exercise of reasonable care in the hiring process, has been held as not dispositive on the issue of negligent hiring.
A motor carrier may unilaterally elect to conduct a more detailed investigation. Significantly, a more detailed background check than that required by the regulation may constitute evidence that the driver was an employee of the motor carrier, rather than an independent owner-operator. In cases where independent contractor status is an issue, plaintiffs’ counsel should consider this argument, which may be gaining traction based upon some fairly recent changes in the law related to leases of vehicles with a driver to a motor carrier.
As with other aspects of the qualification process, there usually must be fairly distinct evidence to support proximate cause based upon a failure to conduct a required background investigation. In Wanke v. Lynn’s Transp. Co., not only was the pre-employment investigation improperly done, but there was also evidence that no road test was given, no MVR was obtained, and that the prospective driver was given answers to the written exam and should not have been hired under the motor carrier’s own policies. Nonetheless, the court excluded this evidence and granted summary judgment on the plaintiff’s punitive damages claim, finding that these breaches did not rise to the level of “heedless indifference.”
However, once a causal link is established between the failure of a motor carrier to investigate and the wreck itself, evidence of such a regulatory violation may become admissible and help to overcome summary judgment. In Meyer v. Trux Transp., Inc., a federal district court held that a proper background check would have disclosed serious flaws in the driver’s past and disqualified him from operating a commercial motor vehicle.
One interesting theory of relief based in part upon the failure to conduct a proper background check is found in Tooley v. Hill Truck Line, Inc. That case arose from a collision involving a CMV and two other passenger vehicles that resulted in six fatalities. The cause was an alleged drunk truck driver who crossed the center median on an interstate while speeding on an ice-covered road during a snowstorm. The truck driver had two prior DUI convictions in Nebraska, where his driver’s license was issued. Prior to being sentenced for the second DUI conviction, he went to Iowa and exchanged his Nebraska license for an Iowan license. Then, on the actual day of sentencing, he obtained a duplicate Nebraska license claiming he had lost his original.
After discovering that the motor carrier’s former insurer had inserted itself into the driver qualification process, the plaintiff in Tooley made a separate claim directly against the insurer for the breach of an independent duty to supervise and oversee the hiring and employment of drivers employed by the motor carrier (Hill Truck Line). As the plaintiff learned, the insurer (Great West) had utilized its internal safety department to assist its insured motor carriers with background checks and other aspects of the driver qualification process. Apparently, the Great West adjuster responsible for the Hill Trucking account approved the defendant driver after reviewing his “clean” Iowa MVR, which of course showed that the license had been issued less than three years earlier. However, the driver had given a history of driving commercial motor vehicles for longer than that period, which was considered a “red flag” by the Vice President for Safety and Loss Prevention at Great West.
The plaintiff, after dismissing Hill Truck Line, proceeded against Great West under the theory that, inter alia, Great West was liable for its own negligence in the qualification process under the Restatement (Second) of Torts. Great West moved for summary judgment, but the court denied the motion, finding that Great West may have undertaken the duty owed by Hill Truck Line to third parties, and further, that Hill may have relied upon Great West’s actions in this regard, which proivded a potential basis for liability. The liability of an insurer as seen in Tooley is a potentially significant development in any case, since the exposure of the insurer for its own negligence is not constrained by the particular coverage limits of the policy it has issued to an insured. Tooley also served as salt-in-the-wound for Great West for yet another reason: the opinion reveals that Great West had previously cancelled Hill Truck Line’s policy because it considered the company a bad risk(!).
Less successful was the attempt to impose liability upon a cargo broker who arranged the trucking company’s transport of cargo for third parties in McLaine v. McLeod. There, an intoxicated truck driver rear-ended a vehicle, forcing it into another. Three people were killed, including two small children, and two others were critically injured, including another small child. Suit was filed against a number of defendants, including the broker who had arranged the load being carried when the wreck occurred. The broker, Container South, moved for and was granted summary judgment before appeal was taken by the plaintiffs.
The Georgia Court of Appeals first analyzed the claim that the broker was the employer of the driver. It noted that the broker’s contract with the motor carrier stated that the motor carrier was an independent contractor. The court further observed that the driver was being paid by the motor carrier, which also owned the tractor-trailer he was operating at the time of the collision. Completing the analysis, the court found that the broker had no authority to control the time, manner, or method of the driver’s work. Accordingly, under a standard independent contractor analysis, the broker was held not to employ the driver.
Turning to the claim that the broker was liable for failing to conduct a background investigation of the driver, the court again affirmed summary judgment, nothing that the plaintiffs “cited to no authority which would have allowed [the broker], who was neither [the driver’s] employer nor potential employer to have access to [his] driving records.” Thus, the court distinguished which deals with motor carriers hiring drivers, from a broker who simply uses a driver on a daily basis in scheduling deliveries.
Finally, the court refused to find a cause of action against the broker for negligently hiring a motor carrier based upon a theory that the operation of a tractor-trailer is an inherently dangerous activity, and thus not delegable to an independent contractor. In any event, there was a lack of evidence that the broker should have known the motor carrier had hired an incompetent or unsafe driver. McLeod would appear to support the conclusion that Georgia courts have chosen to limit the applicability to motor carriers exclusively, rather than extending its requirements to cover brokers or, arguably, even insurers. However, a close reading of the McLeod opinion leaves open the real possibility of broker liability in cases with more evidence of a broker’s knowledge and involvement in the hiring and retention process.