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Trucking Litigation

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.

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Trucking Litigation

  1. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 14. Reaction to EOBR Regulations • • • • • In Favor Large Carriers ATA NPTC TCA Alliance for Driver Safety & Security Opposed • Small Carriers • Owner-Operators • OOIDA
  15. 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. 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. 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. 18. Hours of Service Link to Rulemaking http://www.fmcsa.dot.gov/rules-regulations/topics/hos/index.htm
  19. 19. 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.
  20. 20. 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.”
  21. 21. 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
  22. 22. CSA 2010 • Created in response to criticism of SafeStat and SAFER • Three ratings – Continue to operate – Marginal – Unfit
  23. 23. 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
  24. 24. CSA 2010/CSA • Seven BASICS (Behavior Analysis and Safety Improvement Categories) – Unsafe driving – Fatigued driving – Driver fitness – Drugs/alcohol – Vehicle maintenance – Improper loading/cargo issues – Crashes
  25. 25. CSA 2010/CSA • Admissibility • CSA disclaimer – Data not meant for litigation • Unreliability of data • Use SAFER/SafeStat cases for arguments against admissibility
  26. 26. Mexican Trucking Program • 1993-NAFTA was approved, however President Clinton declined to implement full open border policy with Mexico
  27. 27. 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
  28. 28. 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
  29. 29. 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
  30. 30. 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.
  31. 31. Hand-Held Mobile Telephones • Ban includes texting on mobile devices • Note: the “single button” rule will be difficult to comply with
  32. 32. 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.
  33. 33. 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
  34. 34. 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.”
  35. 35. Hand-Held Mobile Telephones Link to Rulemaking http://www.gpo.gov/fdsys/pkg/FR-2011-1202/html/2011-30749.htm
  36. 36. Thank You! Joe Pappalardo jpappalardo@gallaghersharp.com