Georgia Injury Lawyers Blog

CMV Law: The Accident Register

April 26, 2016 | by Slappey & Sadd, LLC

The Accident Register: Overview

A motor carrier is required to prepare and maintain a list of certain accidents. This “accident register” provides significant information regarding the type of accidents involved. It may allow a motor carrier to be compared statistically with other motor carriers using data available on the SAFER system database. Further, the motor carrier is required to maintain certain accident reports that further describe the accident(s) listed on the register.

The Accident Register

CMV Law: Regulatory Compliance & Recordkeeping

April 22, 2016 | by Slappey & Sadd, LLC

Regulatory Compliance and Recordkeeping

The FMCSRs have been discussed in detail in preceding blog posts. This blog post will address various aspects of the regulations necessary to give the practitioner an understanding of the recordkeeping requirements imposed upon motor carriers, including how and when those regulations apply. While these sections are unlikely to furnish a basis for a claim against a motor carrier, it is important for the practitioner to know how the regulations apply and what documents should are required to be kept.

The regulations related to record retention and the maintenance of an “accident register” are very helpful when crafting a discovery plan and following up on a defendant’s initial responses. For example, the information contained within an accident register may reveal a pattern of accidents that the motor carrier has failed to address. Such information serves as a “pressure point” that warrants a more detailed inquiry by way of additional discovery.

CMV Law: Case Law & MCS-90

April 21, 2016 | by Slappey & Sadd, LLC

Pertinent Case Law

Carolina Casualty Ins. Co. v. Yeates

There are dozens, if not hundreds, of cases that construe the MCS-90. Its evolution and interpretation has been torturous. In a significant late 2009 decision, the Tenth Circuit in Carolina Casualty Ins. Co. v. Yeates held that the MCS-90 did not “stack” on top of other coverage that a motor carrier had in place which met the minimum required level of financial responsibility set forth in § 387.9. 584 F.3d 868 (10th Cir. 2009). There, a motorist suffered a significant and permanently-disabling injury in a collision with a truck owned by Bingham Livestock. The truck was specifically covered by a State Farm policy with the minimum $750,000 limits allowed under the regulations. State Farm quickly settled for its policy limits. Bingham Livestock then sought coverage under a general liability policy it held from Carolina Casualty. That policy insured a number of vehicles owned by Bingham, but significantly, it did not extend to the truck involved in the collision.

CMV Law: Nature & Amount of Security Required

April 19, 2016 | by Slappey & Sadd, LLC

Nature & Amount of Security Required: Overview

The regulations prescribe what form the “evidence of financial responsibility” shall take, how it may be cancelled, and how it may be obtained by a member of the public. Further, the regulations prescribe certain levels of financial responsibility based on the nature of the freight transported. The type of instrument used to provide evidence of financial responsibility may create exposure for the entity issuing the instrument above and beyond that created by an insurance policy. The “MCS-90” endorsement, a form prescribed by the FMCSRs, is the most important and most common instrument used to collect against a motor carrier who causes injury but for whatever reason does not have coverage, whether because the vehicle was not covered or the motor carrier itself breached a policy condition. It is important to understand this endorsement and it is therefore the focus of this chapter.

Nature and Amount of Security Required

CMV Law: Financial Responsibility

April 15, 2016 | by Slappey & Sadd, LLC

The regulations require an interstate motor carrier to produce “evidence of financial responsibility” to the FMCSA in order to obtain and maintain a permit to operate. The many variations of this topic and the related subject of insurance coverage for motor carriers and independent owner-operators, are beyond the scope of this blog post. However, familiarity with the regulations and their requirements will provide a good basis for identifying the typical sources of recovery from a motor carrier. It is important to know how a motor carrier may provide its “evidence of financial responsibility,” how much financial responsibility it must demonstrate, and what rules govern the ability to recover.

Applicability of Financial Responsibility Requirements: Overview

The implications that arise when a motor carrier falls under the FMCSRs’ requirements for evidence of financial responsibility can be significant. In questionable cases, it must be determine whether the motor carrier was required to comply. This discussion will focus on motor carriers of property, but note that the regulations also address the financial responsibility obligations of motor carriers of passengers, property brokers, and freight forwarders.

CMV Law: Annual Inspections & Case Law

April 13, 2016 | by Slappey & Sadd, LLC

Observations

Proof of a valid periodic inspection only relieves the motor carrier from being cited for a violation of regulation. A CMV may still nevertheless be subject to a roadside inspection even if it already passed an annual inspection and displays proof thereof. Thus, be certain to look for any inspection by a state or federal entity even if the motor carrier had produced a current annual certificate. Note, however, that although a DVIR from an inspection by an FMCSA agent must be retained for twelve months after the date of inspection, the FMCSRs do not appear to require that a motor carrier keep a copy of a state inspection form. Therefore, state inspection forms may sometimes only be available from the inspecting agency itself via an open records request.

As touched on earlier, the periodic inspection rules, and Appendix G in particular, should be consulted in any case dealing with a component defect, malfunction, or failure. If the component is among those required to be inspected, the details surrounding the performance (or non-performance) of the inspection can assume an even more significant role. In some cases, the inspector who signed off on the annual may need to be deposed. If that course of action is pursued, the deposition should address that person’s qualifications to perform the annual inspection. In order to do so intelligently, evidence of his or her qualifications should be obtained before the deposition goes forward, which will also allow counsel to assess and verify them. In a pinch, the inspector can be asked to bring them to the deposition by including a Notice To Produce within the deposition notice.

CMV Law: Periodic or Annual Inspections

April 11, 2016 | by Slappey & Sadd, LLC

Periodic or Annual Inspections: Overview

The Regulations require the periodic inspection of a CMV, commonly referred to as “the annual.” The CMV must pass the inspection at least once a year using the criteria set forth by the FMCSA. The components of the required inspection are the “minimum.” There are various ways in which a motor carrier may comply with the periodic inspection duty. This inspection is distinguishable from the IMR requirements imposed by vehicle manufacturers.

It is not unusual to find that a CMV involved in a crash lacks a “current annual” and therefore arguably should not have been on the road. However, there is a proximate causation hurdle to clear before a jury question will arise from the lack of annual. The court will need to be shown that the missed annual would have revealed a defect or deficiency that contributed to the collision.

CMV Law: The Driver Vehicle Inspection Report

April 8, 2016 | by Slappey & Sadd, LLC

Driver Vehicle Inspection Reports: Overview

The Driver Vehicle Inspection Report (DVIR) is often mistaken for the separate “pre-trip” inspection report. It is not. The DVIR is completed by the driver of a CMV at the end of each day of driving. However, the last DVIR for a vehicle must be reviewed and, in certain instances, signed by a driver before commencing driving for the day (or night, as the case may be). These reports may provide important information regarding the condition of a CMV over time, including in-between normal maintenance intervals and periodic inspections. Oftentimes, the DVIRs are made part of the form for driver’s daily logs. However, this does not alter the retention requirements for the DVIR.

Driver Vehicle Inspection Reports

CMV Law: FMCSA Inspections

April 6, 2016 | by Slappey & Sadd, LLC

Inspections by the FMCSA: Overview

FMCSA agents are authorized by the Regulations to perform inspections of a motor carrier’s vehicles, and upon finding problems, take measures up to and including declaring a vehicle out-of-service. It is possible that a vehicle previously the subject of such an inspection, whether before or after an incident, is involved in your case. The various aspects of the FMCSA’s inspection powers are the subject of this section.

FMCSA Inspections

CMV Law: Inspection, Maintenance, & Repair

April 4, 2016 | by Slappey & Sadd, LLC

Introduction

All motor carriers are subject to explicit requirements for the inspection, maintenance, and repair (“IMR”) of CMVs. Detailed record-keeping, including records of the qualifications of mechanics that perform the inspections of vehicles and brake IMR, is required. The inspections required include those applicable to the fleet as a whole as well as the specific individual vehicles within the fleet. In addition, a motor vehicle is subject to inspection by FMCSA personnel, daily inspections by drivers, and “periodic,” or “annual,” inspections under the Regulations.

All of these IMR requirements are accompanied by record-keeping requirements, which may be used to form a detailed and date-specific picture of a CMV’s IMR history. That is, if the records are created and kept as required. The Regulations provide different periods of time for which a motor carrier is required to maintain different types of documents.