Blog Category Archives — Page 9 of 15 — Georgia Injury Lawyers Blog Published by Georgia Injury Attorneys

CMV Driver Drug & Alcohol Test: Observations & Case Law

December 16, 2015 | by Slappey & Sadd, LLC

The CMV Driver Pre-Employment Test: Observations

It certainly seems easier to simply administer a pre-employment test than to comply with the rather detailed and administratively burdensome exception set forth in the regulations. However, the use of outside data-gathering agencies (such as DAC1) may make the job easier. If there is no pre-employment controlled substance test in the DQ file, verify that the proper exception procedures were followed. Documentation of the procedures that were followed should be contained in the DQ file.

Note the requirement that a motor carrier test (or verify an exception for) a non-employee driver that it uses more than once a year. This exception was drawn to deal with the trip-leased driver, i.e. “a driver employed by one motor carrier, but who is temporarily leased to another motor carrier for one or more trips generally for a time period less than thirty days.” This is an area where the possibility of a wide crack in procedure can ensnarl a motor carrier.

CMV Driver Drug and Alcohol Testing

December 14, 2015 | by Slappey & Sadd, LLC

CMV Drug and Alcohol Testing: Overview

The specifics of testing, rehabilitation, procedures for obtaining samples, qualifications of testing personnel, and other detailed requirements for drug and alcohol issues are found at 49 C.F.R., which is entitled “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.” These regulations are detailed and extensive, and reference to them should be made if any questions arise about the testing program at issue.

In a quest for safety, the regulations establish a number of checkpoints that may reveal improper or illegal use by a driver. They provide both strict standards and harsh penalties. Most of the time the motor carrier is the party responsible for implementing these rules, so bad drivers inevitably can and do slip through the cracks. A motor carrier may seize on the intoxication of its driver may be seized upon by the motor carrier as evidence that he was outside the scope of employment at the time of the wreck. This defense may not even be applicable to a motor carrier operating leased equipment using an owner-operator driver. However, in the case of an employee driver, the strange truth is that the more outrageous the facts, then the stronger the defense may be. In such a case, a direct claim for negligent entrustment or retention is usually necessary to impose liability on a motor carrier that has not followed the regulations. This type of direct claim may help avoid an “outside the scope of employment” defense, since it is the motor carrier’s own negligence, not vicarious liability, which is at issue in such a claim. Accordingly, if the motor carrier argues that the use of drugs or alcohol by its driver took him outside the scope of his employment, the plaintiff will need evidence to support an argument that the motor carrier should remain responsible because the use was foreseeable.

CMV Litigation: Retention of Documents

December 9, 2015 | by Slappey & Sadd, LLC

Retention of Documents: Overview

Document retention requirements are found throughout the various subchapters and subsections of the FMCSRs. While the overview of the qualification process laid out thus far in these blog posts has addressed document retention at various points, it makes sense to compile the requirements for quick reference.

Document Retention

CMV Disqualification Regulations: Observations & Case Law

December 8, 2015 | by Slappey & Sadd, LLC

CMV Disqualification Regulations: Observations

Like the annual review process, the disqualification regulations are a form of post-hiring check that must be known, understood, and performed by the motor carrier. However, the chance that a motor carrier does not know, understand, or perform its duties under the regulation, is actually quite high. Attorneys who have represented motor carriers admit that the rule is frequently overlooked, or even worse, routinely ignored. This is particularly the case for smaller motor carriers with no dedicated safety department to monitor such things.

The USDOT interpretations state that motor carriers have no authority of their own to “disqualify” a driver, but upon notice of a disqualification by the authorities, may not use or permit the driver to operate a CMV. This is a distinction without a difference, and does not provide a safe harbor to a motor carrier who has used or permitted a driver to operate its CMV while on notice of a conviction for a disqualifying offense or out-of-service violations.

The Disqualified CMV Driver: Regulations

December 7, 2015 | by Slappey & Sadd, LLC

The Disqualified Driver: Overview

The regulations pertaining to driver qualifications include specific instructions regarding when, why, and how long an otherwise qualified driver will be disqualified for certain acts. These regulations deal with the driver who has already been qualified, and is presumably already driving a commercial motor vehicle. However, they do not describe all disqualifying events that may occur during employment. For example, a driver who fails to submit his “record of violations” “at least once every twelve months” becomes disqualified. It also includes additional regulations that can cause a driver to be disqualified. These, too, must be kept in mind when reviewing a driver’s history.

Disqualification of Drivers

CMV Driver Investigation History File & Case Law

December 3, 2015 | by Slappey & Sadd, LLC

The Driver Investigation History File

The driver investigation history file may be maintained separately from the DQ file. Its contents may include private and sensitive documents that are confidential and privileged. Despite this, the motor carrier’s insurer will likely have access to it, with the exception of drug and alcohol records. This furnishes an argument that one injured by the driver should have similar access.

The driver investigation history file must include:

CMV Litigation: The Driver Qualification File

November 30, 2015 | by Slappey & Sadd, LLC

The Driver Qualification File: Overview

As emphasized, the DQ file is one of the first things to review when putting together a trucking wreck claim. The contents of the DQ file are not a matter of interpretation or speculation. The regulations definitively state what documents must be included. Anything missing equates to non-compliance. The particular reasons why a required form or piece of information may be missing are unlikely to have significant consequences on a case. It is the company’s responsibility to follow safety regulations, and excuses for not doing so are usually not well received. Therefore, it is necessary to organize the file once received and compare it to the regulations. It can be beneficial to carefully indexing the file so that those documents that re-occur, such as the record of violations, are in chronological order.

Bear in mind that a discovery request to produce for the “DQ file as required to be maintained pursuant to regulation standards” may get you just that – the documents referenced regulation standards, and nothing else. In making such a narrow request, counsel has incidentally given the motor carrier a free pass to withhold items from the DQ file that, while not technically required for inclusion, may nonetheless be kept therein. The regulations specifically permit motor carriers to combine DQ files with internal personnel files. Thus, a technicality in a discovery request could incidentally result in the non-production of documents that are of interest to counsel and potentially damaging to the motor carrier. To avoid this situation, the request should be drafted broadly enough to capture all documents that comprise the motor carrier’s DQ file, and if maintained separately, its personnel files.

The CMV Driver’s Record of Violations Requirements

November 25, 2015 | by Slappey & Sadd, LLC

The Driver’s Record of Violations: Overview

Much like the annual review required, the “record of violations” requirement is a post-hiring, at-least-annual check to be performed on all CMV drivers. However, it differs in one material respect: a motor carrier cannot allow a driver who has failed to comply with this regulation to continue operating a CMV. This is in contrast to the annual review requirement which does not impose any such sanction of immediate disqualification for noncompliance.

Record of Violations Requirements

CMV Driver Annual Review: Observations & Case Law

November 23, 2015 | by Slappey & Sadd, LLC

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.

CMV Drivers And The Annual Review

November 20, 2015 | by Slappey & Sadd, LLC

The Annual Review: Overview

Ensuring its CMV drivers are fit for the road is not a “one and done” proposition for motor carriers. Rather, the regulations require them to monitor their drivers annually. The failure to do so may allow a driver who is accumulating tickets, accidents, or both, to slip through the cracks. The regulatory requirement of an (at least) annual review is a post-hiring safety checkpoint that is all too frequently ignored by motor carriers. As a result, it is also a frequent basis upon which counsel can demonstrate that the motor carrier itself was negligent, separate and apart from its vicarious liability for the driver who caused a collision.

Many motor carriers’ internal policies, embodied in driver handbooks, require that a driver be disqualified when a set number of accidents, tickets, or a combination of both, have occurred. These policies are understandably stringent given the degree of danger involved in the operation of a CMV, i.e., dismissal for anything over two moving vehicle citation convictions in a year. The motor carrier will find itself in a grim situation if its safety director is forced to admit in his deposition that a driver should or would have been disqualified at an annual review that never actually took place.