Georgia Injury Lawyers Blog
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.
In assessing a driver’s time, he should be probed during his deposition, after his logs have been fully analyzed, to find out what he considers “off-duty” time. If, for example, he is counting forty-five minutes spent filling out paperwork and planning his next day’s drive as “off-duty”, he is under-counting his hours because that type activity is “on-duty, not driving.” If, for example, the logs suggest a pattern of a driver who always logs the same number of hours driving, or who never has “on-duty, not driving” time, red flags should go up. Indeed, as a general rule, counsel should look for patterns which defy the random nature of life.
Counsel must also test the time the driver is logging. If his logs show he covered 600 miles in eight hours, or if his toll receipts show him moving through Indiana while his logs put him in Iowa at the same time, or if he fueled at a time his logs do not show a stop, then it is highly likely there has been log falsification. While a mistake is always possible, it is more typical that a couple of these instances are really just the tip of the iceberg. A trucking expert who in a former life audited for the FMCSA may make the HOS detective job much easier.
The other side of the coin is the motor carrier. Counsel should endeavor to determine what the motor carrier does to detect and prevent log falsification, or, significantly, perhaps what it does to promote and conceal log falsification. Ask: how often are logs audited? By who? What criteria are used, and what documents provide the check? If an inconsistency is detected, what is done by the motor carrier, and how are such actions documented? In this day of GPS, computer analysis, and instant messaging, the “squirm room” afforded to a motor carrier to overlook log falsification is very much in decline. As shown in the Torres case above, Torres v. North American Van Lines, Inc., a motor carrier may be subject to a direct claim for punitive damages when it has breached its duty to prevent drivers from violating HOS regulations.
In this regard, the USDOT has issued an interpretation which states that:
[A] carrier is liable for violations of the hours of service regulations if it had or should have had the means by which to detect the violations. Liability under the [FMCSRs] does not depend upon actual knowledge of the violations.
Carriers are liable for the actions of their employees. Neither intent to commit, nor actual knowledge of, a violation is a necessary element of that liability. Carriers “permit” violations of the hours of service regulations by their employees if they fail to have in place management systems that effectively prevent such violations.
The USDOT’s regulatory interpretation leaves an offending motor carrier little room to hide, and creates an objective standard by which to judge the carrier’s failure to detect and correct HOS violations. Certainly, a gross pattern of violations – the driver who never, ever, logs “off-duty,” but rather is always either driving or in the sleeper – should be noticeable, and even a single instance of a serious violation, as seen in the Peterson case Peterson v. Transport Corp. of America, Inc., 2008 WL 4299934 (Minn. Ct. App. Sept. 23, 2008),, should be detected and addressed.
Finally, in pursuing this line of attack, counsel should consider deposing rank and file employees who monitor and administer the HOS requirements, rather than exclusively pursuing testimony from the motor carrier’s safety director or other officers. Deposing such employees should usually be done before deposing the higher-ups. The impact on a V.P. or safety direct who is confronted with an employee’s testimony about monitoring of drivers, or the handling of problem drivers in a manner totally at odds with “handbook” policy, is worth the wait to experience. To put it bluntly, look for a line of rot, follow it to the source, then use it to slap those whose job it is to create a system to prevent such rot in the first instance.
Pertinent Case Law
Numerous cases address the applicability and effect of breach of HOS regulations. For example, in Darling v. J.B. Expedited Services, Inc., 2006 WL 2238913 (M.D. Tenn. Aug. 3, 2006) a federal district court in Tennessee held that keeping a false log book in violation of the FMCSRs constituted negligence per se. In Williams v. Schram and Foodliner, Inc., 2008 WL 2788758 (S.D. Ill. July 16, 2008), a motor carrier was also held to have exposure for punitive damages in a case which cited the aforementioned USDOT interpretations of regulations as a basis of liability. Those interpretations impose an objective standard on a motor carrier to seek out and eliminate HOS violations and log falsification. Using an expert analysis of the CMV driver’s logs and Foodliner’s HOS audit system, the plaintiff showed that violations committed on 50% of the logs went undetected. Based on this, the court found that “a reasonable inference could be drawn that Defendant Foodliner turned a blind-eye to Schram’s violations of the FMCSRs governing driver hours of service and maintenance of a driving log book.” This case is a reminder of an important practice pointer: it may be possible to discover the motor carrier’s own audits of driver logs in order to test its system. The chance of obtaining such broad discovery will probably hinge upon a finding of serious log violations by the driver involved in the wreck, or perhaps testimony from the motor carrier’s employees that reveals their lack of familiarity with the HOS regulations.
Further support for punitive damages against a motor carrier that fails to properly monitor its driver’s HOS is found in Trotter v. B & W Cartage Co. 2006 WL 1004882 (S.D. Ill. April 13, 2006. The plaintiff there was successful in causing a corporate officer of the motor carrier, who was charged with ensuring compliance with HOS regulations, to admit its system of auditing was inadequate and a consequence of the carrier’s getting “too big too fast.”Further testimony revealed this gap was brought to the attention of the motor carrier’s president, who ordered no corrective action and, in fact, provided evidence of overall corporate resistance to proper HOS oversight. In upholding the plaintiff’s punitive damages claim, the Illinois federal district court cited numerous cases from various jurisdictions that upheld a claim for punitive damages based on corporate ignorance of, or refusal to comply with, HOS regulations. These authorities are of considerable value in identifying areas where a motor carrier may fail to comply and when educating a court as to the basis for punitive damages.