Blog Category Archives — Page 6 of 15 — Georgia Injury Lawyers Blog Published by Georgia Injury Attorneys

CMV Law: Pre-Trip & Emergency Equipment Inspection

March 3, 2016 | by Slappey & Sadd, LLC

Pre-Trip and Emergency Equipment Inspection: Overview

The regulations require inspection of certain components of intermodal equipment prior to driving the CMV. These requirements are generally referred to as the “pre-trip” inspection, and while the regulations do not limit their requirements to an inspection at the beginning of a “trip”, this term is generally accepted. Given the often-abysmal state of intermodal trailers, this requirement may be significant.

The regulations also require the driver make certain that emergency equipment as required is available, and this requirement may have particular impact when a vehicle is involved in an accident. The regulation was revised substantially at the end of 2009, so that language describing inspection requirements for CMV other than intermodal was deleted.

CMV Regulation: Schedules And Speed Limits

March 2, 2016 | by Slappey & Sadd, LLC

Schedules and Speed Limits: Overview

This regulation is quite simple, straightforward and often overlooked. It may provide a powerful argument against a motor carrier, particularly when coupled with the DOT interpretation which accompanies it. The regulation essentially codifies the requirement that a motor carrier who imposes some time limitation upon the driver movement from one point to another must analyze how long the trip may take, given prevailing speed limits. The opportunity for critical analysis of a motor carrier’s operations is dramatic when this is not done.

Schedules & Speeds

CMV Law: Drugs, Alcohol & Use

February 29, 2016 | by Slappey & Sadd, LLC

Drug and Alcohol Use and Possession: Overview

The regulations’ directions concerning use or transportation of drugs or alcohol are fairly straightforward, but have been subject to at least one rather questionable interpretation by the DOT. Further, the regulations are not limited to “drugs” in their prohibition, and it is important to consider whether a driver may be affected in his abilities by some other substance in violation of the law. The issue where a driver is in violation of the regulations on use or transport of drugs or alcohol will likely be the same as before: causation.

Drug and Alcohol Possession and Use

CMV Litigation: Operations & Case Law

February 25, 2016 | by Slappey & Sadd, LLC

CMV Operations: Pertinent Case Law

As was just mentioned, most of the cases involving operation regulations deal with claims for wrongful discharge brought by drivers against their employers/motor carriers as a result of their being terminated for refusing to drive while tired or sick.

Gaibis v. Werner Continental, Inc.

CMV Law: Observations Of CMV Operations

February 23, 2016 | by Slappey & Sadd, LLC

Observations

First and foremost, it must be noted that the regulations for the safe operation of a CMV is not simply a “fatigue” regulation. It is far broader, specifically addressing both a driver’s “ability” and “alertness.” Accordingly, it encompasses not only fatigue but also illness and “any other cause” that makes it unsafe to begin or continue driving. The duty expressed by the regulation also extends to the motor carrier, who must not “require or permit” a driver so impaired to operate its CMs. This is important because the “we had no idea” defense is a common one raised by defendant motor carriers. In some cases this defense may very well be valid, but it is important for counsel to probe for policies and procedures that the motor carrier had in place to detect problems and instruct drivers in how to deal with them. The acts and omissions of the motor carrier should be a focus because the regulations require it to instruct its employees as to the rules for safely operating a CMV. If the motor carrier never instructed its drivers that they must not drive while sick, the regulation may have been violated even if the driver did not report his illness.

This regulation is obviously critical when a driver falls asleep or, because of illness or injury, cannot safely operate a CMV. There are numerous real world examples that illustrate its importance:

Operation of CMV: Introduction & Overview

February 19, 2016 | by Slappey & Sadd, LLC

Operation of the Commercial Motor Vehicle: Introduction

Having properly qualified its drivers, dealt with controlled substance and alcohol testing issues, and confirming they each hold the proper CDL, the motor carrier must thereafter ensure they comply with the regulations governing the actual operation of its CMVs. These regulations include some of the most critical aspects of CMV operation. In a number of instances, the rules impose duties on drivers, and hence the motor carriers that employ them, beyond that of a non-CMV driver. The FMCSA has specifically stated that the FMCSRs may impose a higher degree of care than State law, and further provide that the FMCSRs prevail when there is any conflict between the two.

The CMV operation rules are found in part 392. This part is applicable to “[e]very motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers.” 49 C.F.R. § 392.1 (“Scope of the rules in this part”). The FMCSA requires that all such persons “shall be instructed in and comply with the rules in this part.” The implications of the broad application of Part 392 and the duty to instruct are both apparent and enormous

CMV Driver’s Logs: Observations & Case Law

February 16, 2016 | by Slappey & Sadd, LLC

CMV Driver’s Logs: Observations

If there is any question about whether time or fatigue is a factor in a wreck, an audit of the logs produced in discovery should be performed quickly after they are received. If counsel finds significant errors, this may provide a basis to seek more logs in order to determine whether the motor carrier was not properly monitoring its drivers, and whether this was a problem driver who fell through the cracks of a careless motor carrier’s substandard system. Auditing even a few weeks worth of logs can be time-consuming, but it is important to carve out enough time to do it right.

It may be helpful to devise some type of system to graphically illustrate the flaws found in the logs, either when before the court on a motion to compel, in mediation, or before the jury at trial. No one type is likely to work in every case. The trick is to find the flaw and figure out a visual way to illustrate it without having to go back and do everything a second time.

CMV Law: Driver’s Daily Logs

February 15, 2016 | by Slappey & Sadd, LLC

Driver’s Daily Logs: Overview

While the previous blog posts discussed what hours a driver may legally drive a CMV, this section details how his driving and non-driving time must be recorded. Section 395.8 allows the use of traditional paper logs and also permits a motor carrier to require drivers to use an automatic on-board recording device. Therefore, an early task is to request that any paper logs or any electronic file used with an automatic on-board recording system be maintained and preserved. Concomitantly, a request or requests should be made requiring that the supporting documents referenced by the Regulations also be preserved.

In theory, the preparation of logs is fairly straightforward, and a fair explanation of how to prepare the logs is set forth in the Regulations, which include a drawing of a typical paper log and an explanation of how it is meant to be filled out. Despite this, a driver’s actual preparation of his logs often falls considerably short of the ideal. This does not automatically mean that foul play is involved, and one should resist the urge to characterize any mistake on a log as a falsification. Rather, an examination of the logs along with their supporting documents will typically reveal whether a error, such as an addition error, or a falsification such as logging one activity (sleeper berth) while pursuing another (driving), is involved.

CMV Maximum Driving Time: Observations & Case Law

February 12, 2016 | by Slappey & Sadd, LLC

CMV Maximum Driving Time: Observations

These rules limit driving to eleven hours over a fourteen-hour period between ten hours of rest for property-carrying vehicles, and ten hours driving over a fifteen-hour period after eight hours rest for a passenger-carrying CMV. However, as the “11 hours driving in a 14 hour period” rule suggests, there is more to working as a driver than just driving. A driver may wait at a shipper’s terminal for hours. He may have to fill out paperwork, inspect and fuel his truck, or load or unload cargo. These activities are all included within “on-duty” time, and they all count towards the maximum period of time a driver may go – fourteen hours – between rests of at least ten hours. (or fifteen hours on-duty between eight hours rest for a passenger carrying CMV).

Thus, a cargo driver who has sat at a terminal waiting four hours for his truck to be loaded may only drive ten hours before he takes his ten hours of off-duty rest. This rule must be examined in every case where there is any suspicion of forged logs or avoidance of the rules. Note also the concern with cumulative fatigue, embodied in the regulation’s prohibition against driving after seventy hours on duty over an eight day period for an every-day-a-week motor carrier that is hauling property. Thus, a driver who drives eleven hours and takes ten hours off every day, counting round the clock, is out of hours by day six of the eight day period, assuming he has no “on-duty, not driving” time. To be sure, a driver with no “on duty-not driving” time is highly suspect in any event.

CMV Law: Regulations & Overview Of Maximum Driving Time

February 10, 2016 | by Slappey & Sadd, LLC

Maximum Driving Time: Overview

The regulations concerning maximum driving time constitute the heart of the HOS rules promulgated by the FMCSA. The rules provide the time a driver may drive, be on-duty, and the period of rest necessary to “reset” driving or on-duty time. These rules must be understood in order to prosecute a claim that a driver or motor carrier drove or was on-duty too long, or had insufficient rest such that driver fatigue occurred contributed to a wreck. Note that the rules pertaining to operation of property-carrying vehicles differ from those for passenger carrying vehicles. §§ 395.3, 393.5. Also, keep in mind these rules remain subject to the various exceptions of regulation, which were described in the previous chapter.

Maximum Driving Time for Property-Carrying CMVs