ACI’s 4th Annual Defending and Managing Trucking Litigation will afford industry professionals including in house counsel, claims professionals, outside counsel, and consultants to stay abreast of all that is happening in the industry. It affords key networking opportunities for outside counsel to meet and hear from a premier faculty of in house professionals from leading insurers and trucking carriers as well as a renowned faculty of federal jurists. In depth panels will focus on new and emerging trends in trucking litigation, key cases, and the impact of federal regulations. The rolling implementation of MAP 21 requirements introduced by the FMSCA is creating controversy in the industry as some wonder how the regulation will necessitate operational changes, create new spheres of liability, and new consequences for actors engaged in unauthorized brokerage. To complicate matters further, the Plaintiff’s bar is very aggressively pushing new theories of liability by utilizing negative CSA scores and new pockets to attack for bigger settlements. ACI’s conference will afford outside counsel a way to develop innovate strategies to effectively respond and find a way to impede the rise and surge of lawsuits. Attendees will be able to stay ahead of the curve and remain competitive in the industry.
1. EXPANDED FEDERAL REGULATORY
REQUIREMENTS:
Incorporating CSA, FMCSA, DOT, and
Safety Ratings Into Your Litigation Strategy
AMERICAN CONFERENCE INSTITUTE
3rd National Forum on Defending and Managing
TRUCKING LITIGATION
November 29, 2012
Atlanta, Georgia
2. History of Electronic
On-Board Recorders
• 1985: FHWA issues waivers allowing electronic
recordkeeping of duty status
• 1986: FHWA begins rulemaking to allow electronic
recordkeeping of hours of service
• 1988: FHWA adopts final rule allowing use of
Automatic On-Board Recording Devices (AOBRDs)
49 C.F.R. § 395.16
3. History of Electronic
On-Board Recorders
• 2003: FMCSA adopts final rule, but does not impose
mandatory EOBR use
68 Fed. Reg. 22456 (Apr. 28, 2003)
• 2004: U.S. Court of Appeals vacates 2003 Final Rule;
requires FMCSA to collect and analyze data on costs
and benefits of EOBR mandate
Public Citizen v. FMCSA, 374 F.3d 1290 (D.C. Cir. 2004)
4. Recent Rulemaking Proceedings
• 2007: FMCSA issues first Notice of Proposed RuleMaking to address EOBR issue
72 Fed. Reg. 2339 (Jan. 18, 2007)
• 2010: FMCSA issues first Final Rule (EOBR-1)
75 Fed. Reg. 17208 (Apr. 5, 2010)
• EOBR-1 targets carriers with poor Hours of Service
records
5. Recent Rulemaking Proceedings
• EOBR-1 Vacated
OOIDA v. FMCSA, 656 F.3d 580 (7th Cir. 2011)
• FMCSA failed to address driver harassment, other
issues
49 U.S.C. § 31137(a)
• FMCSA withdraws EOBR-1 final rule
6. Recent Rulemaking Proceedings
• 2011: FMCSA issues second Notice of Proposed
Rule-Making regarding EOBRs (EOBR-2)
76 Fed. Reg. 5537 (Feb. 1, 2011)
• EOBR-2 requires EOBR us by all carriers required to
keep paper logs, including passenger carriers, but
excluding 100-mile drivers
7. EOBR Requirements
• EOBRs must be configured to track information in
paper logs – duty status, date/time, position
• EOBR data cannot be altered
• EOBR data must keep 7 days of data, plus current
day
• EOBRs must provide instructions for law enforcement
access
8. EOBR Requirements
• Driver must maintain paper logs in case of
malfunction
• Driver must still maintain supporting documents
• FMCSA may ease supporting document
requirements for driving duty status, but continue
requirement for On Duty-Not Driving and Sleeper
Berth duty status
9. EOBR Requirements
• NPRM is not especially specific as to configuration of
EOBR
• However, §§395.15-.18, and Appendix A provide
specifics for voluntary EOBRs
– Must allow officials to immediately check driver status, and
must provide detailed instructions to law enforcement
– Must display key information (395.16(n))
– Support systems at MC’s principal place of business of
driver home terminal must provide summary of activity
– EOBRs must conform to standards of ANSI, NBS, IEEE
USBIF (395.18(a))
10. EOBR Requirements
• EOBR must provide (395.15):
–
–
–
–
–
Duty status following lines 1-4 of paper log
Location of duty status change
ID of all drivers for team operations and ID of who is driving
Information on how to recover data
Manufacturer certification that EOBR design has been tested
to meet FMCSR requirements
– Tamper-proof, as is practical
– Visual and audio warning of malfunction
– Information must replicate capability of paper logs
11. EOBR Requirements
• 395.16 (l):
– Location must be noted to nearest city, village or town for
each change of duty
– No greater than 60 minute intervals
– Look out for GPS glitches -- names of towns can be vague
– Satellites are prescribed
• Driver name duty status, date and time, distance
traveled, ID of MC and CMV
– Just what you’d expect
– After stationary for 5 minutes –- default to on-duty not driving
12. EOBR Requirements
• Driver must affirmatively review information before
submitting record
– Drivers must be adequately trained in use and operation
– MC must maintain back-up copy of electronic HOS in a
different location than original
– If FMCSA determines MC has permitted violations or
tampered with device, authority to use EOBR can be
revoked and paper logs will be required
– If CMV is used for personal conveyance, that must be noted
before trip starts
13. EOBR Requirements
• Authority to use EOBR is granted under 395.16(a)
– Driver is able to make annotations on hard copy of EOBR
printout (legible)
– Current day and 7 prior days must be produced
– If EOBR fails (more than 5 minutes), driver must note it
within 2 days and be able to reconstruct 8 days
– Go to paper logs after failure
• Driver must submit and certify HOS within 3 days of
completion
• Driver input can only occur at rest
14. Reaction to EOBR Regulations
•
•
•
•
•
In Favor
Large Carriers
ATA
NPTC
TCA
Alliance for Driver
Safety & Security
Opposed
• Small Carriers
• Owner-Operators
• OOIDA
15. Reaction to EOBR Regulations
• Concerns about cost, upkeep, burden on smaller
carriers and owner-operators
• Concerns about Mexican trucks
• U.S. will pay for and own Mexican EOBRs; will be
reimbursed when rulemaking goes into effect
16. Recent Developments in
EOBR Regulation
• 2012 Highway Appropriations Bill
– FMCSA must develop a rule requiring EOBR use within one
year
– Amendment to bill prohibits federal funding for EOBR
mandate
• Commercial Driver Compliance Improvement Act
(Senate Bill 695)
– Requires integration of EOBR into ECM
17. Practical Considerations
• Litigation and evidentiary considerations:
– Spoliation
– Not complying with records policies
– Why not add more data?
• Pandora’s box?
• May help “logs not current” violations
18.
19.
20. Hours of Service
Link to Rulemaking
http://www.fmcsa.dot.gov/rules-regulations/topics/hos/index.htm
21. Caution Urged in the Use of SafeStat Data
WARNING: Because of State data variations,
FMCSA cautions those who seek to use the
SafeStat data analysis system in ways not
intended by FMCSA. Please be aware that use of
SafeStat for purposes other than identifying and
prioritizing carriers for FMCSA and state safety
improvement and enforcement programs may
produce unintended results and not be suitable for
certain uses.
22. SafeStat
U.S. Inspector General Opinion
“Consequently, while SafeStat is
sufficient for internal use, its continued
public dissemination and external use
require prompt corrective action.”
23. SafeStat and Safer in Court
Evidence Admissible in Favor of Plaintiffs
• At least two courts permitted evidence re:
negligent hiring claims
• Jones v. C.H. Robinson Worldwide, Inc.
• Schramm v. Foster
• Evidence admissible in favor of Motor Carrier
• Fike v. Peace
• Smith v. Spring Hill
24. CSA 2010
• Created in response to criticism of
SafeStat and SAFER
• Three ratings
– Continue to operate
– Marginal
– Unfit
25. CSA 2010/CSA
• Focus on evaluating and targeting
“behaviors” which affect safety
• Through use of web based technology
and data reports from states, FMSCA
can more effectively evaluate safety and
at risk motor carriers and drivers
27. CSA 2010/CSA
• Admissibility
• CSA disclaimer – Data not meant for
litigation
• Unreliability of data
• Use SAFER/SafeStat cases for
arguments against admissibility
28. Mexican Trucking Program
• 1993-NAFTA was approved, however
President Clinton declined to implement
full open border policy with Mexico
29. Mexican Trucking Program
• Announced February 23, 2007; permitted by
FMCSR Part 381
• Allowed limited number of Mexican-based
trucks to travel throughout the United States
• Mexican motor carriers held to identical
standards as U.S. Carriers
• DOT inspectors in Mexico
– Truckload – no LTL
– U.S. Insurers
30. Mexican Trucking Program
• 2004 –Supreme Court of U.S. holds that
Mexican/U.S. cross-border provisions of
NAFTA can move forward
• Heavy opposition from Congress,
Teamsters, Interest Groups
31. Mexican Trucking Program
• Early 2009 Obama Administration and Congress
cease funding program
• Mexico retaliated with tariffs
• Deal reached – program reinstated, tariffs
removed
• Interest Groups and hostile legislators are still
opposed – Teamsters and OOIDA have sued
again
• EOBRs paid for by U.S.
• As of 11/18/11 26 Mexican motor carriers have
applied
32. Hand-Held Mobile Telephones Banned:
1/3/12
FMCSR §390.5: Definition of use of hand-held mobile
telephone:
• Using at least one hand to hold a mobile telephone to
conduct a voice communication;
• Dialing or answering a mobile telephone by pressing
more than a single button; or
• Reaching for a mobile telephone in a manner that
requires a driver to maneuver so that he or she is no
longer in a seated driving position, restrained by a
seat belt that is installed in according with 49 CFR
393.93 and adjusted in accordance with the vehicle
manufacturer’s instructions.
33. Hand-Held Mobile Telephones
• Ban includes texting on mobile devices
• Note: the “single button” rule will be difficult to
comply with
34. FMCSR §392.82: Statement of Prohibited
and Allowed Conduct
• No driver shall use a hand-held mobile telephone while driving
a CMV
• No motor carrier shall allow or require its drivers to use a
hand-held mobile telephone while driving a CMV
• Driving means operating a CMV on a highway, including while
temporarily stationery … does not include when driver has
moved to side of, or off, a highway, or halted in a location
where the vehicle can safely remain stationery
• Emergency exception: Permissible when necessary to
communicate with law enforcement or other emergency
services.
35. Hand-Held Mobile Telephones: Penalties
• Commercial drivers will face fines up to $2,750
for using phones, and revocation or suspension
of their commercial driver’s license for second
and subsequent offenses
• Employers who allow drivers to use phones
while driving face up to $11,000 in fines
36. Hand-Held Mobile Telephones
• CSA Motor Carrier Score Implications:
• Five texting and cell phone use violations will now
contribute to highest (10 points) weighted severity to
carrier’s numerical rankings in the Unsafe Driving Behavior
Analysis and Safety Improvement Score (BASIC)
• Violations include two each relating to operating a
commercial motor vehicle while texting and operating a
CMV while using a hand-held mobile telephone. The fifth
violation applies to motor carrier safety procedures
assigning a 10-point severity weighting to carriers’
“allowing or requiring driver to sue a hand-held mobile
telephone while operating a CMV.”
