AT&T outage leads to ELD, tech concerns for truckers

Mark Schremmer

A large-scale AT&T outage on Thursday, Feb. 22 raised questions about how truck drivers can remain compliant if their electronic logging device stops working.

The short answer is that truckers may have to turn to paper logs to track hours of service, which was the norm before ELDs became federally mandated in 2017.

“If the ELD goes down and they can’t transfer the information … the safety official will use the ELD display or the printout to verify compliance,” said Tom Crowley, a compliance and regulatory expert for the Owner-Operator Independent Drivers Association. “The issue becomes if your ELD doesn’t retain that last seven days of information, you’d have to go back and recreate those seven days.”

According to reports, tens of thousands of AT&T customers lost cell service on Thursday. AT&T said that service was restored by Thursday afternoon and that it did not believe the outage to be caused by a cyberattack.

“Based on our initial review, we believe that today’s outage was caused by the application and execution of an incorrect process used as we were expanding our network, not a cyberattack,” the company wrote Thursday evening. “We are continuing our assessment of today’s outage to ensure we keep delivering the service that our customers deserve.”

A cell service outage can be extremely problematic for truck drivers, as the technology can be needed for a wide array of reasons including ELDs, dispatch, mapping, weather forecasts and engine control module updates.

This was the first large-scale outage since ELDs became mandated in 2017.

For truckers who started after the mandate, Crowley voiced concerns about how many know how to fill out a paper log.

“You have a lot of drivers out there who have only used ELDs,” Crowley said. “You hand them a paper log, and they’re going to get lost. People are so reliant on the ELD now to keep track of their time. The ELD tells them if they’re getting close to their hour limitations. Back in the day, that was up to the driver to keep track of their hours. I bet there are a lot of drivers out there who don’t have a clue on how to do a recap.”

OOIDA Executive Vice President Lew Pugh stressed the importance of truck drivers making notations for why they had to move to paper logs.

“Notate why you’re doing what you’re doing,” Pugh said. “Because five months from now and you get audited, we’ve all forgotten.”

Crowley noted that the U.S. Department of Transportation can request logs from up to six months ago.

Pugh said the concerns over a technology outage are amplified “a million times” when we’re discussing autonomous vehicles.

“If an ELD screws up, it doesn’t kill anybody. If an AV screws up, it’s a family of five,” he said.

Deadline nears for filings as Werner seeks review of nuclear verdict

Arguments at Texas Supreme Court recap liability and blame apportionment in fatal 2014 accident

John Kingston

Deadlines are looming for all briefs to be filed with the Texas Supreme Court as it decides whether to review the enormous verdict against Werner Enterprises growing out of a 2014 fatal wreck. With interest, the sum now stands above $100 million.

A primary brief was filed in October by attorneys for the Blake family, which suffered one death, one catastrophic brain injury and other injuries in the Dec. 30, 2014, West Texas crash.

On Feb. 15, attorneys for Werner (NASDAQ: WERN) filed a brief for the company, and earlier this month the Texas Trucking Association filed a friend-of-the-court brief.

The Supreme Court’s page dedicated to the case lists March 6 as the final date for any respondents to file with the court.

Werner’s legal brief reviews well-trod ground on the accident and what happened in a lower court in 2018, when the decision against Werner was first handed down.

But it and the Blake brief also weigh in on the issue of extending liability out to Werner, as it appears clear that the trucking industry is concerned that precedents set in the case could impact future verdicts against carriers.

The facts of the accident are not in dispute. A pickup truck heading east on Interstate 20 in West Texas driven by Trey Salinas and ferrying members of the Blake family hit a black ice patch, streaked across a more than 10-yard-wide median and crashed into a westbound Werner truck driven by Shiraz Ali. Winter storm watches were in effect. One of the Blake children died, and a second was severely injured. Other passengers had less serious injuries.

The Blakes’ core argument is that Ali had not sufficiently slowed his truck to compensate for the weather. If he had, the Werner truck would not have been where it was when the pickup driven by Salinas crossed the median.

In its brief, Werner’s attorneys summed up the trial court’s ruling as saying that Ali “owed a duty to reasonably foresee that the Blakes’ vehicle might careen into his path.”

In apportioning blame, the lower court jury assigned 70% to Werner on one of the key questions of liability and 30% on another liability issue. On the former question, Salinas’ blame was assessed at 16%.

The arguments leveled against Werner by attorneys for the Blakes in their attempt to put blame on the carrier involved such disparate issues as driver training (along with a borderline personal attack on the person who filled the company’s role as head of training), the demand for on-time delivery, and the lack of a control system that could have instructed Ali to get off the road.

Appeals court upholds lower court ruling

The lower court award of just under $90 million was appealed, and ultimately the full Court of Appeals for the 14th District of Texas grabbed the case before a three-judge appellate court panel could issue its ruling. In a 5-4 decision, the justices ruled in favor of the Blakes. (Interest fees on the initial award resulted in the case being worth more at every stop through the judicial system).

The briefs filed by attorneys for the Blakes and for Werner both provide significant discussion of the “Admission Rule.” Attorneys for the Blakes describe the rule as “[barring] derivative-liability claims like negligent training and supervision when the employer concedes vicarious liability.”

They said the rule was “once the majority rule [but] the modern trend is to reject the rule.”

The Admission Rule is a “relic” of a period before juries could hand down very specific proportionate blame for an accident, according to the Blakes’ attorneys, and “conceals all the ways the employer contributed to the harm except its driver’s conduct, resulting in a fictional apportionment where much of the employer’s responsibility is redistributed among other parties.”

Dissent cited by Werner on issue of Admission Rule

Justice Randy Wilson, in a dissent to the 5-4 vote, wrote that the Admission Rule holds that if an employer acknowledges one of its employees “was acting in the course and scope of his employment when the employee allegedly engaged in negligent conduct (that) bars a party allegedly injured by the employee’s negligence from pursuing derivative theories of negligence against the employer.” His minority argument was that the Admission Rule should have barred the enormous liability claim against Werner, which employed Ali.

Attorneys for Werner concur and say the issues in the case could be precedent-setting. The brief says the “question [has] never [been] definitely resolved by this Court: whether a claimant injured by a person acting in the course and scope of employment may pursue derivative negligence theories against an employer” if the employer concedes the worker was performing duties for the employer.

Werner’s brief called Wilson’s dissent “powerful” but conceded that while courts recognize the Admission Rule, they aren’t in agreement on what its impact can be.

By not limiting liability down the line, the Werner attorneys argue, it effectively defined a driver’s duty as “one owed to the whole world.” “If affirmed, the trial court’s judgment will establish that a driver and his or her employer may be held liable for injuries to other motorists no matter how improbable, fantastic, or farfetched,” Werner said in its brief. “Because that result has no basis in Texas law, reversal of the trial court’s judgment is necessary.”

In its amicus brief, the Texas Trucking Association says the Admissions Rule helps provide “appropriate boundaries for argumentation on employer liability and reduce the likelihood of error.”

“Had Ali been driving outside the course and scope of his employment, [the Blakes] may have been able to use derivative liability theories like negligent hiring, training, entrustment, or supervision to find Werner responsible for Ali’s actions,” the association writes. “But when an employer stipulates to course and scope — as Werner did here — the employer’s negligence is no longer in doubt, so long as the employee is found to have been negligent.”

Werner attorneys also are raising the issue of the charge to the lower court jury, saying it improperly mixed issues that they believe should have remained separate, affecting the final verdict.

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.