Georgia Injury Lawyers Blog
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 out-of-service disqualification periods are given in ranges of time, i.e. “not less than 90 days nor more than one year.” The question thus becomes: who sets the period of disqualification? Since the interpretations say a motor carrier cannot “disqualify” a driver, there should be evidence in the DQ file of the motor carrier’s efforts to learn the disqualification period from the FMCSA. If this information is absent, the question to put to the motor carrier’s representative during his or her deposition is: “how did you know how long the driver was to be disqualified?” Information about the disqualification period obtained after the wreck occurs, or after the company attorney tells the safety director he must know this for his deposition, is not sufficient. If no contemporaneous data is found in the DQ file, counsel should follow up on when the period of disqualification was discerned.
The interpretations further provide that a driver using a company vehicle for personal reasons while off-duty is not subject to these disqualification regulations “if he returns to the same terminal from which he went off-duty.” The example given is a driver using a company tractor for transportation to a motel, restaurant or home. This interpretation seems questionable, given that the driver is operating a commercial motor vehicle at all such times and must maintain a driver’s daily log as such. Imagine the scenario of a driver, barhopping while using a Schedule I drug in a company tractor, that is arrested for DUI on the way to the motel after running into another vehicle. It seems unreasonable to believe that such a driver should avoid mandatory disqualification simply due to his destination at the time of his conduct.
At the least, notice of a conviction should prompt more frequent reviews of a driver even if, for technical reasons, no disqualification occurred or was otherwise required. In such a case, counsel may inquire whether the driver “return[ed] to the same terminal from which he went off-duty.” Arguably, this interpretation applies only to a driver who went off-duty only after reaching the motor carrier’s terminal. If the incident happened on the road, between terminals, then the interpretation found in the regulations is unlikely to apply. Note that “on-duty” time as used here tracks the broad definition of “on-duty” found in the hours of service regulations, and includes driving time.
The revocation of non-CMV license privileges does not invoke the disqualification provisions. However, conviction of a disqualifying offense in a CMV, even when the driver is allowed to keep his CDL by the court, is still a disqualifying offense. The USDOT interpretations also state that a driver who commits a felony in a CMV, but not while in the employ of a motor carrier, will not be disqualified; rather, the offense must be committed while on duty and in the employ of a motor carrier or while “engaged in activities that were in furtherance of commercial enterprise.” Again, whether disqualified or not, a negligent retention claim against the motor carrier is still raised by such actions.
Also note that because a motor carrier may not “require or permit” a driver to operate a CMV while disqualified, a motor carrier that allows a driver to drive for another motor carrier may be potentially liable. This presents the possibility of multiple at-fault parties, and thus, more than one insurance policy applicable to claims arising from a wreck.
The disqualification regulations must be kept in mind as counsel reviews the DQ file (especially the annual driver review documents therein) and takes depositions. Is there any evidence that a driver got a DUI while in a CMV? If so, did the motor carrier know or have reason to know? Did the DUI occur while “on duty?” If not, the motor carrier may argue no disqualification occurred, despite knowledge (possibly as part of the annual review) of the offense and conviction. Count on the motor carrier’s attorneys to carefully scrutinize the conviction to argue the driver was not “on duty.” This argument will be made even if the motor carrier itself never made such an inquiry.
If such evidence comes to light, it is important be proactive. Counsel should look for a transcript of the hearing where the conviction occurred. If a wreck was involved, was an accident report done? Does the investigating police officer recall the incident? Was the driver pulling a loaded trailer, or on the way to pick one up? If it can be shown that the motor carrier continued to use a disqualified driver, this can be a mortal blow to the defense. Even if some technical exception applies, the argument remains that because the motor carrier knew of its driver’s propensities, it should have accelerated its annual review process. Again, the motor carrier’s own internal policies and handbook requirements should not be forgotten. These may be far stricter than the disqualification requirements.
Pertinent Case Law
One immediate question presented by the disqualification regulations is whether a motor carrier may be liable for an accident by virtue of letting a disqualified driver operate its vehicle. Not surprisingly, the case law emphasizes the plaintiff’s burden to prove proximate cause. In Donaldson v. J.D. Transp. Co., Inc., a motor carrier allegedly failed to conduct a proper pre-hire qualification on its driver and thus did not learn that he was an insulin-dependent diabetic, which disqualified him from driving a CMV. Nevertheless, the Texas Court of Appeals reversed a finding of negligence against the motor carrier and held that there was insufficient evidence that a proper qualification process would have disclosed the driver’s insulin-dependent diabetic. Applying a traditional proximate cause analysis, the court agreed the motor carrier breached a duty by failing to conduct a proper qualification, but nevertheless held that there was insufficient evidence of causation because, it found that even proper qualification would not have disclosed the medical condition at issue.
However, the Texas Court of Appeals used a somewhat different analysis in its earlier opinion in Morris v. JTM Materials, Inc. Morris may be distinguished from Donaldson at least procedurally, as Donaldson involved evidence at trial and Morris involved summary judgment. In Morris, the appellate court reversed the trial court’s grant of summary judgment to the motor carrier on plaintiff’s negligent hiring, retention and supervision claims, finding evidence that the driver’s serious record of drug convictions, DUI, reckless conduct, and the like, were not picked up during the qualification process. The motor carrier argued the qualification process would not have uncovered these convictions, and that, in any event, they were not committed during the operation of a CMV. The collision occurred while the driver was under the influence. In reversing the grant of summary judgment, the court noted, in pertinent part:
Further, regardless of what the FMCSRs may require, we believe the summary judgment evidence raises a fact issue concerning whether JTM exercised reasonable care by qualifying as a driver an individual who had committed three drug- or alcohol-related offenses, the most recent of which had occurred less than three years before the qualification, and had falsified his employment application.
Moreover, this evidence raises a fact issue concerning whether JTM’s failure to exercise reasonable care in qualifying [the driver] was a substantial factor without which the [collision] would not have occurred and whether a motor carrier of reasonable intelligence should have anticipated the danger created by the failure to exercise reasonable care.
Because the summary judgment evidence raises material fact issues concerning whether JTM exercised reasonable care in qualifying [the driver] and whether JTM’s acts or omissions were a proximate cause of the accident, the trial court erred by granting JTM summary judgment on Morris’s negligent hiring, retention, and supervision claims.
While not directly addressing whether a motor carrier is liable for using a disqualified driver, these cases do point toward a traditional proximate cause analysis, while also highlighting the distinction between evidence at trial and at summary judgment. The only reported opinion that directly posed the question whether a breach creates “strict liability,” obviating the need for knowledge of the disqualification or, presumably, some proximate cause analysis, refused to find so on the grounds of the Eleventh Amendment immunity of the state. The essential question thus remains more or less unanswered: if a motor carrier allows a disqualified driver to operate a CMV, and a wreck subsequently occurs, must the injured party prove that the disqualification (or the event(s) precipitating the disqualification) proximately caused the wreck, or is the act of putting a disqualified driver on the road alone enough to impose direct liability on the motor carrier?
The opposite side of this issue was touched upon in Bartja v. Nat’l Union Fire Ins. Co. of Pittsburgh. There, a motor carrier sought summary judgment as to the plaintiff’s punitive damages claim, arguing in part that the driver involved in the rear-end collision was not disqualified. The appellate court adopted this evidence as part of its reasoning in affirming the trial court’s grant of summary judgment to the motor carrier.
This gives rise to another question: if the driver was disqualified while allowed to drive, would this stand as evidence in favor of punitive damages, regardless of whether the basis of the disqualification had anything to do with the accident? As the saying goes, “sauce for the goose is sauce for the gander.” It would seem unfair to allow a motor carrier to use the absence of disqualification in support of its summary judgment defenses to punitive damages, then insist that a plaintiff seeking damages for willful or reckless conduct link the disqualification with the cause of the wreck. Put differently, courts are likely to determine that it is at least evidence of wanton or reckless conduct to allow a disqualified driver behind the wheel of a CMV. After all, without any further evidence, had the disqualified driver not been allowed to drive, the wreck would likely not have happened. This “but for” test is used in proximate cause analysis throughout tort litigation, and there is no reason to think it should not be applied in trucking litigation, as well.