Update on Relevant U.S. Regulations

FMCSA Requests Comments on Application for Certificate of Registration for Foreign Motor Carriers and Foreign Motor Private Carriers ICR

On Feb. 16, the Federal Motor Carrier Safety Administration (FMCSA) requested comments on the Application for Certificate of Registration for Foreign Motor Carriers and Foreign Motor Private Carriers information collection request (ICR). Foreign for-hire and private motor carriers are required to file an application if they wish to register to transport property within municipalities in the United States on the U.S.-Mexico international border or within the commercial zones of such municipalities. Comments are due by April 16.

 

FMCSA Requests Comments on Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ICR

On Feb. 16, FMCSA requested comments on the Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ICR, which allows for ongoing, collaborative and actionable communication between FMCSA and its customers and stakeholders. Feedback may also contribute directly to the improvement of program management. Comments are due by April 16.

 

FMCSA Requests Comments on Impact of Driver Detention Time on Safety and Operations ICR

On Feb. 16, FMCSA requested comments on the Impact of Driver Detention Time on Safety and Operations ICR. This research study will collect data on commercial motor vehicle (CMV) driver detention time representative of the major segments of the motor carrier industry, analyze that data to determine the frequency and severity of detention time, and assess the utility of existing intelligent transportation systems solutions to measure detention time. Comments are due by March 18.

 

FMCSA Requests Comments on Truck Leasing Terms and Conditions

On Feb. 16, FMCSA requested comments and information to assist the agency’s Truck Leasing Task Force (TLTF) in reviewing such leases to identify terms and conditions that may be unfair to drivers. The TLTF is tasked with examining the terms, conditions and equitability of common truck leasing arrangements, particularly as they impact owner-operators and trucking businesses subject to such agreements. Comments are due by March 18.

 

U.S. DOT Announces Upcoming DOT Advisory Committee on Human Trafficking Meeting

On Feb. 13, the U.S. Department of Transportation (DOT) announced a virtual meeting of the U.S. DOT Advisory Committee on Human Trafficking which will be held March 13. Pre-registration is required, and those interested in attending should email their name and affiliation to trafficking@dot.gov by March 5.

 

U.S. DOT Requests Comments on Updates to Department-wide Learning Agenda

On Feb. 13, the U.S. DOT requested comments on the Department-wide Learning Agenda for Fiscal Years 2022-2026 (Learning Agenda). The U.S. DOT seeks public input regarding potential updates to the published Learning Agenda. Comments are requested by April 9.

 

FHWA Requests Comments on Truck Parking Facilities ICR

On Feb. 12, the Federal Highway Administration (FHWA) requested comments on the U.S. DOT Survey and Comparative Assessment of Truck Parking Facilities. The goal of the survey is to evaluate the capability of the states to provide adequate parking and rest facilities for CMVs engaged in interstate transportation. Comments are due by April 12.

 

U.S. DOT Publishes Unified Agenda of Federal Regulatory and Deregulatory Actions

On Feb. 9, the U.S. DOT published the Unified Agenda of Federal Regulatory and Deregulatory Actions (Regulatory Agenda). The Regulatory Agenda is a semiannual summary of all current and projected rulemakings, reviews of existing regulations, and completed rulemaking actions of the U.S. DOT. The Regulatory Agenda provides information about the agency’s planned regulatory activity for the next 12 months.

 

FMCSA Requests Information on Efforts to Study Sexual Assault and Harassment in the CMV Industry

On Feb. 8, FMCSA requested information on efforts to study and quantify the prevalence and severity of sexual assault and sexual harassment experienced across the CMV industry. FMCSA specifically seeks information on how to best approach this study holistically in terms of statistical sampling, study design and administering the appropriate data collection efforts. Comments are due by March 11.

Accident Response Tips

By Alyssa Adams

The moment an accident occurs is not the time to put your company’s accident response plan into place.  Having an accident response plan in place, including training your dispatchers on the policy, will allow you to act as soon as an accident occurs.  The faster you act, the better prepared you can be to prevent a lawsuit or claim, and the better prepared you will be to defend yourself in the event of a lawsuit.  Also, by acting fast and taking a proactive approach, you can potentially save money and litigation fees.  Even if a suit is filed, taking a proactive approach gives you the opportunity to collect evidence from the scene, surveillance, statements, or social media evidence to use in your favor at trial.  Below are the top 5 tips for you to keep in mind when preparing to respond to an accident.

  1. Act Fast and Be Prepared
  • The faster you act, the better you can respond.
  • To effectively respond, you must start well before an accident occurs.

o   The best place to start is by training your dispatchers on how to respond when an accident call comes in.  Train your dispatchers on:

  • What they should be asking the driver,
  • What information to obtain, and
  • What additional individuals, including attorneys or field adjusters, to contact to help with the response.
  1. Do not takes statements from your driver
  • Do not have your driver make any written or recorded statements regarding the accident.
  • Advise your driver not to give any statements to anyone or talk to anyone else about the accident.
  • One thing that you can do to completely protect your driver’s version of events, is to immediately have an attorney speak to the driver.

o   Everything said to the attorney would be confidential and protected by attorney-client privilege and could not be used later against the driver.

  1. Bring in outside help
  • You may want to have an attorney speak with your driver so that it is protected by attorney-client privilege.
  • You will want to hire an independent adjuster to help investigate the accident.

o   Hire an independent adjuster to call the other driver and witnesses to obtain their statement.

o   If you believe that there may be security cameras in the area, from other businesses or entities, you can have the adjuster go out to the scene to try to obtain any videos that have footage of the accident.

o   Hire an independent adjuster to go out to the scene and take photographs.

  • Hire an accident reconstructionist to inspect the vehicle, do a download of the black box of the vehicle, and to review the accident site for to determine how the accident happened.
  1. Social Media
  • Have you or your attorney’s office search for information concerning the accident.

o   Check Facebook and other social media.

  • Family members of the person hurt in the accident may comment on news articles or post about their loved one’s injuries.
  • Have your attorney or independent adjust run a public record search and a social media search for the claimant.

o   Make sure to keep checking on social media to see if they mention their injuries.

  • Usually once the claimant retains an attorney, they will be told to take their social media down, so it is important to find it immediately, if you think there could be future litigation.
  • Social media is very important and can sometimes be the piece of evidence that you need to prove the claimant is not injured. However, you must act fast on this.  If you wait until a lawsuit is filed, it may be too late.
  1. Preservation of evidence
  • Make sure to preserve any evidence from the accident.

o   This would include pulling the driver’s logs for the week before the accident.

  • If a preservation letter is received from the claimant’s attorney, make sure that you save anything that is included in the letter so that you are prepared in case of potential litigation.

o   If not saved, you can be accused of spoliation and may have sanctions issued by the Court.

o   If a preservation letter is received, have counsel send your own preservation letter to have the claimant preserve any evidence they have regarding the accident.

This is not an exhaustive list and assumes accident response measures are planned prior to the happening of the accident. We would be happy to provide accident response packets, forms, and checklists for free – just send an email to Alyssa Adams at aa@saxtonstump.com .

Final Rule for Determining Independent Contractor Status under the FLSA

The U.S. Department of Labor (DOL) finalized its regulation for determining employee or independent contractor status under the Fair Labor Standards Act (FLSA), the federal statute governing minimum wage and overtime pay. The final rule repeals and replaces a prior regulation put in place by DOL at the end of the Trump administration in favor of a less predictable framework that increases the likelihood of an employee determination. The regulation will be formally published in the Federal Register on January 10; its effective date is March 11.
The rule considers six factors to determine whether independent contractor status is present. The DOL has adopted a totality of the circumstances analysis, and additional factors may be considered. The six factors are:
  • Opportunity for profit or loss based on managerial skill.
  • Investments by the worker and the potential employer.
  • Degree of permanence of the relationship.
  • Nature and degree of control.
  • Extent to which the work performed is an integral part of the potential employer’s business.
  • Skill and initiative.
Some notable positive changes in the final regulation include:
  • Costs borne by a worker for equipment to perform specific jobs are not deemed entrepreneurial and instead are indicative of employee status. However, in response to comments, the final rule recognizes leasing a truck to be able to provide truck driving services may be capital investment or entrepreneurial in nature, even if leased from a trucking company and not an independent third party.
  • The regulation introduces a comparison of the worker’s investment relative to the putative employer’s investment in the business. In a change from the proposed rule, the final rule calls for comparing the investments in a qualitative manner (to consider the nature of the investment not merely its comparative cost) rather than solely using quantitative comparisons, pointing to a trucking example in the preamble.
  • The final rule includes a change so that actions taken for the sole purposes of compliance with a specific law or regulation are not indicative of control. However, actions beyond compliance with a specific law or regulation and those taken for the putative employer’s safety or quality control standards may be indicative of control.
  • A driver with a CDL has a specialized skill that, combined with business initiative, weighs toward independent contractor status under the skills and initiative factor.
A few other troubling aspects of the proposed rule:
  • Contractual right to control or supervise will be considered indicative of employee status, even if in practice that right is never exercised by the putative employer.
  • Exclusivity of a working relationship is considered indicative of employee status under this factor as well as under the control factor.

The hidden connection between fleet safety and efficiency

Jim Perkins

The harsh weather of winter months naturally brings fleet safety more into focus.

At face value, fleet safety is keeping drivers out of harm’s way. Beneath the surface, safety is a key factor in boosting efficiency and decreasing total cost of ownership. Simply put, a culture of safety instilled into all facets of a fleet can be good for the bottom line.

Preventing accidents not only protects drivers and others on the road, but also prevents additional expenses. For example, the Network of Employers for Traffic Safety (NETS) reported on-the-job crashes that result in an injury can cost upwards of $75,000.

Ultimately, a safer fleet relies on systems allowing a more seamless and intentional on-the-road process. In the fleet management industry, there are several services that not only provide worthwhile safety features but also increase efficiency. A commitment to reducing potentially dangerous incidents doesn’t mean a sacrifice in profits.

The following is a list of fleet management tools that not only increase safety, but fleet efficiency as well. Working together in tandem or individually, they can help save fleets money and help reduce costly incidents.

Telematics

The offerings in transportation mobility technology continue to evolve. Telematics solutions emphasize efficiency via safety perhaps more than any other fleet management tool, but also help boost fuel economy and reduce fuel costs. The amount of data available through telematics, increasingly complex safety systems and advanced analytics continue to grow in importance and add to more standard telematics offerings.

According to analysts at Frost & Sullivan, telematics helps fleets save about 20% to 25% on fuel expenses through the promotion of better driving practices, including the reduction of speeding, harsh acceleration and hard braking. Optimizing routes is one of the most used features of telematics. In doing so, drivers are more likely to remain on-task and reduce mileage that could lead to further wear and tear on vehicles.

Telematics also help manage work hours and improve schedules that can help reduce fatigue – a major reason for accidents. Using data effectively can help fleet managers increase productivity by 10 to 15% and reduce overtime by 10 to 15%, decreasing daily driving time by 20 to 30 minutes based on the previously mentioned Frost & Sullivan analysis.

Telematics and in-vehicle cameras can reconstruct accidents, allowing fleet managers to build safety training programs for drivers.  Additionally, monitoring driving behavior is a safety-added value that helps prevent on-the-job incidents.

Fleet vehicles can be put through great stress and strain over time. Breakdowns and unplanned maintenance can impact efficiency, and place drivers in dangerous situations. Telematics can alert fleet managers to needed vehicle maintenance, helping keep fleet vehicles safe and ready for the road. In turn, this helps avoid even more expensive repairs or accidents that can occur from inconsistent upkeep.

Fleet cards

Implementing a fleet card program is an easy and popular way to save money on everyday fuel purchases. However, most overlook that safety is built into most fleet cards. For drivers, it eliminates the need to carry cash or personal credit cards to fill up fleet vehicles and helps drivers avoid the need to collect cumbersome paper receipts.

Fleet cards and their software platforms can help avoid fleet fraud, with the ability to track exact fuel spend and set limits on fuel purchases. The ability to quickly activate cards or cancel them at a moment’s notice if lost or stolen is another convenient safety feature. Driver ID technology helps to monitor expenditures for each vehicle driver.

Mobile fueling

Mobile fueling services deliver a variety of fuel options to fleets with trained technicians filling vehicles on site during downtime. This service, in addition to helping save on costs via bulk fuel purchasing, removes the need for drivers to carry cash or personal credit cards to fill up.

Requiring drivers to fill-up vehicles frequently can reduce productivity. According to Geotab, drivers are diverted about two miles out of the way to get gas, spending about 8 minutes at the gas station each time they stop for fuel on average. A fueling trip adds more than 20 minutes to a driver’s shift. Mobile fueling drastically reduces driver fill-ups at gas stations, helping save over 3,000 hours of fueling and over 20,000 miles of fueling trips for a fleet of 100.

For those fleets utilizing the service, safety starts before the first truck delivers a drop of fuel on-site. A mobile fueling provider, such as Shell TapUp walks fleets through the required permitting and guidelines approvals, establishing safety procedures from the onset. Fueling technicians follow strict adherence to safety procedures and protocols on- and off-site, even leading local officials and fleet staff through on-site fueling demonstrations designed to help prevent safety incidents.

Electric vehicles and EV charging

Safety is also an important element among EV fleets. More fleets are turning to electric vehicles (EVs) with each passing year, largely due to their long-term cost savings, federal and local policy, incentives and the push to decarbonize. Safety comes into play when a fleet is assessing EV implementation which also helps fleet operators run a more efficient fleet. Technical and commercial proposals are shared between teams before installation, and technicians follow high safety and security standards on charging station installation days. Following that, online platforms are used to monitor efficiency, and dedicated teams provide ongoing support to answer day-to-day inquiries and keep equipment running.

 

Pennsylvania Lawyer Employs Creative Strategy in Crash Case

Eric Miller

The crash occurred on a chilly morning in Bensalem Township, Pa., between a tractor-trailer and a passenger vehicle traveling at what witnesses described as a “relatively fast speed.” The truck driver wasn’t injured, but the driver of the passenger car was killed. After a thorough investigation, police determined fault for the accident was shared between the two.

That determination provided trucking defense attorney Doug Marcello of Carlisle, Pa., with an opportunity to deploy a little-used legal strategy to protect Gypsum Express Ltd. — the motor carrier in the crash and his client — from the potential for a multimillion-dollar “nuclear” verdict.

The pre-emptive tactic, which he dubbed a “sue them first” strategy, was applicable since fault was shared and there was the potential for a liability dispute — in this case, damages to the truck or cargo. This accident, while tragic, provided an opportunity for the strategy.

In the October 2014 crash, the truck was stopped at a traffic signal to make a left turn. As the light changed and the truck began its turn, a Honda Civic traveling in the cross street and driven by the victim, 23-year-old Michael Baronofsky, ran the red light and collided with the truck.

Typically, in a case where a truck driver bears any portion of the blame in a fatal crash, the motor carrier and its insurance company could face a large jury verdict or out-of-court settlement.

Choosing against waiting for the Baronofsky estate to file a lawsuit against his client, Marcello filed a civil lawsuit against the estate seeking to recover $50,000 in damages to Gypsum’s truck. According to the lawsuit, Baronofsky operated his vehicle carelessly and recklessly, failed to obey a traffic signal, was speeding and a host of other allegations.

“If this was a rear-end accident caused by a driver, we’re probably not going to be able to do it,” Marcello said. “If at least partial fault could not be attributed to the other party, it wouldn’t be a good tactic. You wouldn’t use it if the accident is only blamed on your driver or your company.”

“In this time of nuclear verdicts, we must be innovative and aggressive,” Marcello wrote in an essay on the subject. “One of the tactics we frequently use is to sue the car driver. We do this before they sue our client.”

Marcello stressed that, in the case of a fatal accident, the family of a victim should be compensated fairly. In this instance, the strategy — one that is admittedly used sparingly ­— resulted in a $300,000 settlement with Baronofsky’s estate.

Gypsum received $19,000 from the opposing side’s insurance company for repairs to the truck.

Marcello believes filing the case in the local jurisdiction of Bucks County, Pa., gave him a better shot of a trial in a jurisdiction more advantageous to the motor carrier.

“Once we file it there, the action starts in that court,” he said. “It not only locks in the jurisdiction, but it also gives us a jump on discovery.” In legal terms, discovery is the formal process of exchanging information between parties about the evidence and witnesses that will be presented in the event of a trial, and could include depositions and/or subpoenas.

Marcello was convinced the estate’s Philadelphia attorney would have preferred a trial in his own backyard. For years, Philadelphia has earned infamous recognition as either being on the American Tort Reform Foundation’s Judicial Hellholes list, or on its watch list. “It’s a place one plaintiff’s attorney referred to with a smile as ‘that magical place,’ ” Marcello said.

Jeffrey Oster, a transportation attorney with the Philadelphia law firm of Vaughan Baio & Partners, noted the benefits of securing the right jurisdiction. “In Pennsylvania, I would much rather try a case before a jury in relatively conservative Dauphin County, near Harrisburg, over uber-liberal Philadelphia County because, statistically, any award potentially entered against my client would be lower in Dauphin County.”

While Marcello is not alone in using the strategy, he wants trucking defense attorneys to know that the tactic can help reduce financial exposure in some cases, including those where fault is either shared or unknown, and where trucks or cargo have been damaged. Unlike plaintiff attorneys, trucking attorneys generally don’t widely share legal tactics, according to Marcello.

“We lament the fact that these billboard attorneys are targeting trucks,” he said. “But while we may lament that, we have an advantage none of them have: We know about the accident before they do. If we aren’t prepared and don’t act immediately, we will squander our greatest advantage — immediacy.”

“I’ve used the tactic in limited ways,” said Ted Perryman of the St. Louis law firm of Roberts Perryman. “I’ve probably had a handful of these cases, but we always talk about it on every case. If I had a trucking company that had my headquarters situated in a judicial hellhole, and I had an accident out of state, I would certainly give the strategy some serious consideration.”

“With the exception of the optics, which are never good, the tactic can help lower the cost of the case to the motor carrier,” Perryman said. “Ninety-five percent of these cases get settled.”

But, as he noted, it may not look good.

You’re suing the family,” said Rob Moseley, a trucking attorney with Moseley Marcinak Law Group in Greenville, S.C. Not necessarily the most empathetic of parties.”

Moseley added, “You never can tell just how it’s going to go. It could have the effect of galvanizing the other party when you’re suing [a] widow. And you can’t unring the bell when you do it. Once you do it, you could make them really mad and they’ll settle for nothing but putting your company out of business.”

“The situation is a regrettable and unfortunate one that we’ve got to address,” Marcello acknowledged. “[But] what you lose in optics more than makes up in terms of the jurisdictional benefits.”

“I think it’s something that might work in some jurisdictions where the judicial system moves with some expediency,” said Bradford Hughes, an attorney with Los Angeles-based Clark Hill, who defends truckers in civil cases. “In other jurisdictions it may not work as well. Further, it may not be well received by some jurors. It really depends largely on where the defense can file, and that jurisdiction.”

He added, “Being in California, and considering the various challenges that the defense has under California law, I have not yet had a circumstance where my client felt that filing a pre-emptive suit was prudent. However, we have had situations where a plaintiff will file suit, not serve the defense, and wait several additional years for the plaintiff to continue unnecessary treatments. In those situations, we will voluntarily appear in the case after it is filed so that we can try and get ahead of some of the treatment being sought by the plaintiff.”

Oster warned, however, that there are risks. “Suing a potential plaintiff pretty much guarantees counterclaims lodged against the motor carrier in a case where, in theory, the plaintiff may have originally had no intention of suing,” he said. “Therefore, by forcing the plaintiff to court and encouraging him or her to countersue, you are causing the motor carrier to incur a possibly avoidable claim against its insurance policy and likely face an increase in premiums — especially if the trucking company is regularly forcing others into litigation.”

But Marcello believes, in an accident lawsuit, it’s naive to think that a plaintiff’s lawyer won’t come after a motor carrier with everything they have, no matter the strategy being used by the trucking attorney.