What it takes to advocate for legal abuse reform

Pamella De Leon

The surge of nuclear verdicts – post-crash jury awards exceeding over $10 million – against trucking companies have sent shockwaves through the industry.

Despite a decrease in fatal crashes, verdicts are increasing, according to a 2023 study by the U.S. Chamber of Commerce Institute for Legal Reform. Looking at 154 trucking litigation verdicts and settlements from June 2020 to April 2023, the statistical mean plaintiffs’ award was $27.5 million and a statistical mean award of $759,875 for settlements.

Addressing lawsuit abuse is a “top tier issue” for the American Trucking Association, said David Bauer, vice president of state and tax policy. This involves ATA and its Federation partners at the state level pressing for reforms at the state level.

Besides trying to rein in huge lawsuits and nuclear verdicts, Bauer noted that the goal of tort reform is to restore balance and fairness to the judicial process for the trucking industry, pointing out how the judicial environment has become “unbelievably skewed” against the industry.

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Insurance costs are also a major concern, with Bauer noting an increasing propensity of insurance carriers to completely leave states due to liability concerns is alarming.

“Our efforts are really this industry standing up and saying, ‘enough is enough’ to the plaintiffs’ bar, which has perverted justice and turned civil litigation into a profit center to line their pockets,” said Bauer. “The costs are borne by everyone, not just trucking companies, but consumers in the form of higher insurance rates and higher prices for everyday goods.”

The nitty gritty

As the surge in nuclear jury verdicts intensifies, various states have successfully pushed through reforms.

During this 2024 state legislative session, in Indiana, the “seatbelt gag rule,” which prevented jurors presiding over an auto accident lawsuit from knowing whether the injured party was wearing one and thereby led to unfair jury verdicts, was ended.

Persistence was an important factor, along with requiring “constant, unrelenting information sharing with legislative leaders,” and emphasizing how businesses and individuals were being impacted, said Indiana Motor Truck Association President Gary Langston.

“It took three legislative sessions to get the seat belt admissibility language passed,” he said. The first two attempts, though not successful, established a stronger base to start the next effort for the third session. Langston said they were also able to develop a coalition of stakeholders who were impacted by lawsuit abuse.

“Each attempt gave us additional opportunities to better inform the legislators about how their constituents are consumers being impacted by exorbitant lawsuit amounts being imposed on the transportation industry,” said Langston.

Last year, Iowa passed legislation to put a $5 million cap on noneconomic damages.

Having a member in every legislative district was the most powerful grassroots tool, said Iowa Motor Truck Association President and CEO Brenda Neville. She also credited the association’s volunteer leaders and members in educating lawmakers in their three years effort.

She commended their legislative leaders for their support who were “consistent” and “unwavering.” She added, “The trial bar is a very formidable opponent and many state legislatures are filled with trial lawyer legislators from both sides of the aisle, which make these lawsuit abuse initiatives very difficult and challenging. So, you really do need to have the right political landscape.”

Florida enacted last March a landmark legislation to protect consumers and businesses from trial lawyer tactics. Some of the reforms include increasing transparency in civil proceedings by reducing the ability of plaintiffs’ attorneys to introduce fictitious and inflated medical bills at trial.

“Phantom damages are but one of the tactics used by the plaintiffs’ bar to create a pervasive climate of lawsuit abuse that has sent insurance rates soaring to unsustainable levels,” Bauer said.

The tort reforms in Florida were almost 20 years in the making, said Alix Miller, president and CEO of Florida Trucking Association. Miller credited strong leadership and support at the legislative and executive level, preparedness and communication with the business level community, and long-term education.

“Before the pandemic, the supply chain crisis and even hurricanes in Florida, the public didn’t really understand the essential nature of the trucking industry,” said Miller. The association took the opportunity to launch a strategic communication plan so Floridians (elected officials and general public) would understand the crucial role of the trucking industry, and how, when it financially suffers, consumers suffer as well.

“If trucking companies are being targeted by billboard attorneys, via nuclear verdicts and the perpetual cycle of settlement mills in Florida,” Miller said, “that cost – or even worse, supply chain delays for the more important of commodities – trickles down to everyone in the state.”

To be successful, Miller said, they had to find a way to change the paradigm on how tort reform has pitted trial lawyers against insurance companies.

“This would not be a fight pitting wealthy trial lawyers, insurance companies with household names, and billion-dollar corporations,” she said. “It needed to be a fight about people, families and small business. The fight needed to defend the backbone of the American economy, not manage a food fight among the Goliaths of wealth and power.”

Miller said that the FTA engaged with not just the trucking industry, but also small business owners to hear the impact and rising cost of lawsuit abuse. “It was our members who testified in front of legislators and legislative committees to share their stories. And in the end, it was our members who joined the Governor to sign the most comprehensive tort reform package in the country into law,” she said.

Other states such as West Virginia, Georgia, Montana, Texas, and Louisiana have also enacted tort reform to mitigate the escalation of litigation costs.

Moving the needle

There’s still a lot of work to do. Wisconsin Gov. Tony Evers earlier this month vetoed a bill to put a $1 million cap on awards for noneconomic damages from commercial motor vehicle settlements.

As a bill aimed to protect small businesses, since most members are small carriers and family businesses, Neal Kedzie, president at Wisconsin Motor Carriers Association, expressed his disappointment, adding he plans to reconvene with coalition business partners over the next few months to strategize.

Kedzie said a formidable obstacle to overcome are the Wisconsin trial attorneys heavily advertising against the trucking industry and promoting lawsuits against carriers on media outlets.

“Though I’m disappointed that we didn’t have our tort reform passed, I’m encouraged that we had it pass both houses of the state legislature and make its way to the governor’s desk on our first attempt,” said Kedzie. “I believe that in time, we will be successful.”

As other states push for reform measures, Langston said it’s important to get legislators other than just those who serve on the judiciary committees involved in understanding the reptile theory tactics that trial lawyers use to divert a jury’s attention from the facts of the trial.

“The story to focus on is the impact of lawsuit abuse to the small business,” said Miller. “98% of trucking companies operate with 20 trucks or less. One fender bender can put an entire company out of business. Spend the time to humanize the industry.”

Bauer said ATA will work with any stakeholder that wants to enact reform. “In any effort to take unfair advantages from plaintiff’s attorneys, you are going to get their best efforts to distort our arguments and keep their gravy train going,” he said.

Bauer pointed out that even rational arguments can get twisted to misleading messaging. For example, in over half the states, it is still not permissible to introduce evidence that a plaintiff was not wearing their seatbelt at the time of an accident.

“These are falsifications we are fighting against as we continue our lawsuit abuse campaign,” he said. “We are not close to completion, in fact, we’re just getting started.”

ELD Mandate Comparison: Canada and the U.S.

Learn about the notable differences between the Canadian and US mandate rules.

Mark Samber

Canada’s electronic logging device (ELD) mandate was adopted on June 12, 2019, and is effective for all federally-regulated carriers.

The Canadian mandate closely follows the U.S. rules and operability requirements, which was a very intentional move by Transport Canada. Regulators and industry knew that Canada’s mandate must closely follow the U.S. rules to avoid disrupting cross-border transportation and the movement of goods across the border.

While the ELD operability requirements are very similar, there are a few notable differences between each country’s regulations. A few of the more prominent differences between the two countries are described below.

ELD Mandate Comparison – Canada vs. United States

How to Get More Out of Commercial Driver Vehicle Inspections

Deborah Lockridge

When Tom Bray was in charge of safety at a motor carrier, a frustration was seeing drivers leave the yard with an easily correctable problem that could result in a violation or worse — but should have been found in a driver vehicle inspection and fixed.

“I’d watch a truck roll out the driveway, and I’d see his left turn signal on the side of the tractor and on the side of the trailer,” he says. “But it wasn’t working on the back of the trailer. You’re pulling out of our facility with 30 mechanics dying to work on your vehicle, and you’re leaving with a turn signal that doesn’t work? Come on!”

Bray is a business advisor with J.J. Keller, working with fleets on safety and compliance. His experience ranges from being a truck driver to a trainer to a safety director, so he knows a thing or two about pre-trip and post-trip driver inspections.

So does Fred Fakkema, who was a commercial motor vehicle inspector for years and is now vice president of safety and compliance for Zonar, which got its start developing some of the first electronically verified inspections.

Fakkema points out that the top violation during roadside inspections is “inoperable required lamp” — an easy thing to find during a proper pre-trip inspection. Turn signals, tires, windshield wipers, are all common things that driver inspections should catch.

And when an enforcement officer spots low-hanging fruit like that, they’re going to start digging for more violations, Fakkema says.

“Because you got that missing light, now you’re getting dinged for your hours of service,” he says.

Similarly, one of the biggest issues that happen when trucks leave the yard are tire-related, says Michael Dominguez, VP of business operations, procurement and fleet management for Transervice Logistics, a provider of dedicated contract carriage.

Tire problems could lead to violations during roadside inspections or to a blow-out on the road. The latter, especially in a steer tire, could have serious repercussions.

And all this could have been prevented by making sure the tire pressure was right before departure.

“Doing the proper pre-trip not only gets you in compliance, but it increases the safety of your fleet as well,” Fakkema says. “You’d think that with the cost of maintenance today, the cost of fuel today, that you’d want to reduce those costs by actually doing a proper pre- and post-trip.”

Tire-related problems are a common reason for roadside inspection violations that often could have been found during a pre-trip inspection.

Stop Drivers from ‘Pencil-Whipping’ Inspections

Every driver is trained when they’re getting their commercial driver’s license to do pre-trip and post-trip inspections. It’s part of the test they must pass to get a license.

“But most sit in the cab and check the box,” Fakkema says. “It used to be called pencil-whipping because they used paper forms. Now there’s a lot of electronics, but it’s still just checking the box and not getting butts out of the seat and actually walk around the truck.”

Drivers want to drive. That’s what they get paid for, that’s why they got into this business. They don’t want to spend a lot of time doing inspections or filling out paperwork.

Barrett Young, chief marketing officer for Netradyne, says the conversation around vehicle inspections and driver vehicle inspection reports is similar to the adoption of dashcams — drivers just don’t want to do it.

“I don’t want to do it. So don’t make me do it. And I don’t see the importance of it,” he says of the mindset of many drivers. “Only do they really start to experience the gravitas or the importance of it is when something goes wrong.”

If Your Fleet Doesn’t Priorize Driver Inspections, Drivers Won’t Either

If the company and its leadership don’t put a priority on pre- and post-trip inspections, drivers won’t, either.

“Whether I go out to a location or somebody above or below me goes out to a location, we’re looking to see if the hoods are popped and the fluids are being checked and the lights are going around and you hear the air brake checks going on,” says Transervice’s Dominguez. “If you don’t set that expectation that this has to get done,” it won’t.

Companies that have good maintenance scores in the Federal Motor Carrier Safety Administration’s CSA safety scoring program, he says, “put a big emphasis on, ‘We’re not leaving the yard unless we’ve done the proper pre-trip inspection.”‘

At Transervice, often someone from the shop is out in the yard ready to help drivers with pre-trip inspections and fast repairs, Dominguez says.

“If you give the concept of driver vehicle inspections lip service, that’s going to be [drivers’] attitude toward them. If they think you don’t take it seriously, they’re not going to take it seriously.”

“The driver is trying to get out on the road,” he says. “If there’s a guy out there in the parking lot with a cart and oil and bulbs and asking, ‘Hey, do you need something,’ it goes a long way toward making sure that the driver can do his pre-trip and get out of the yard in the most efficient amount of time. So having that collaboration goes a long way.”

Keller’s Bray says, “If you give the concept of driver vehicle inspections lip service, that’s going to be their attitude toward them. If they think you don’t take it seriously, they’re not going to take it seriously.”

He says setting those expectations starts with driver training.

“If you lay down that expectation initially, that goes a long way towards getting the drivers to start doing it,” Bray says.

Zonar’s Fakkema also speaks to the importance of company culture, saying pre-trip inspections can help drivers have a safety mindset before they leave the yard.

“You know, in sports, we stretch and we get ready to do what we do, and get in that mindset to play that day’s game,” he says. “If you’re doing a good pre-trip and you’re thinking about how you’re going to get back home safely, that pre-trip really gets you in that mindset.”

Bending over or crouching down to take a look under the vehicle during a driver inspection can catch problems not otherwise visible.

Give Drivers the Big Picture on Why Inspections Matter

Steve Keppler, co-director of Scopelitis Transportation Consulting, worked as an investigator and inspector for the Office of Motor Carriers (the FMCSA’s predecessor) and spent 15 years at the Commercial Vehicle Safety Alliance. Today he works with fleets on safety and compliance issues.

Fleets he’s worked with that have been successful in getting drivers to do proper inspections spend some time showing drivers real-world scenarios about what can happen when there’s a breakdown or out-of-service violation that could have been prevented with a driver inspection. That may include the cost of on-the-road maintenance, what violations do to fleet CSA scores, what the cost was of not being able to deliver a load on time, the possibility that the fleet could lose the customer.

“And by the way, you didn’t get home in time,” Keppler says. “You’re waiting out on the road to get a truck fixed and you didn’t get home in time and you missed your son’s or daughter’s game.

“Put it in real-world terms, so that it’s not just a driver issue. It’s a fleet issue.”

Dominguez has found it effective to bring in a commercial motor vehicle enforcement official to walk drivers through a true inspection training, including teaching them about how violations affect the drivers’ own CSA scores.

“Somebody internally could be having that conversation [with drivers] twice a year, and then somebody from DOT comes in and has that conversation, and it’s like, ‘Wow, that’s new news to me.’”

Invest in Driver Training for Better Pre-trip Inspections

Commercial drivers must know how to do a vehicle inspection in order to pass the test for their commercial drivers’ license. But don’t assume that means they’re doing it well or efficiently.

“That’s one of the issues that comes into play, especially with new drivers,” says Keller’s Bray. “For them to do a full-blown tractor-trailer inspection after coming out of most typical training programs, that’s a half an hour to 45 minutes. They’re just not very efficient at doing it.

“Then the push is, ‘This is costing me too much, so I’ll start cutting out parts of the inspection.’ Next thing you know, they’re not doing the inspection.”

The snow in Wisconsin gives Bray an interesting technique to illustrate how pre-trips aren’t done efficiently.

With fresh snow on the ground, he’ll ask a trainee to do a pre-trip inspection. “I kind of stand back and I watch how many times they went around the vehicle,” he says.

While drivers do need to make a couple of trips to check certain things such as brake lights, he says, “I see new drivers and even experienced drivers take eight or 10 laps around the truck. That’s when you step in as a trainer and say, ‘Look at all your footprints around the truck. That’s a lot of wasted motion, a lot of wasted time. Let’s get a pattern set up so that you’re not walking past things that you need to be checking.”

“The training you gave them hopefully gives them enough knowledge and skill that they can quickly and efficiently do the inspection and find the issues that you want them finding if they’re present on the vehicle,” Bray says. “If they’re not getting it done quickly, they’re just going to give it up.”

Bray also points out that while the FMCSA doesn’t expect drivers to get on a creeper and go underneath the vehicle, a driver can pick up on problems that aren’t as obvious by bending or crouching down and looking under the vehicle.

“There’s times where the driver, if they would have looked under, they’d have seen that brake chamber that broke loose from its mount or that airline hanging down lower than it should.”

Help Truck Drivers Make Vehicle Inspections More Efficient

Dominguez says whether you’re using old-school paper inspection checklists or an electronic inspection checklist on a phone or tablet, those forms should be laid out in the most efficient process for drivers to get it done.

“That’s a practice that we use even in our PMs and also use it in our DVIR,” he says, “is to try to have it in a flow that makes the most sense, so they can easily go around that truck and check everything as they hit the four corners.”

Bray and Dominguez both point out that whenever a driver gets a different truck, it may have different features that need to be checked, or that are in different places than he or she is used to.

“Even if you’ve hired an experienced driver from another company, your equipment’s unique,” Bray says. And not every vehicle within a fleet is identical, either. There are subtle changes from one model year to another, even in the same model, he adds, and fleets with mixed makes are going to have even more differences.

The Role of Maintenance in Truck Driver Vehicle Inspections

If there’s not a good relationship between drivers and the shop, if drivers don’t feel their inspection reports are being addressed, they have less incentive to do proper inspections.

“It’s never a good situation if a company has pillars between the maintenance shop and the drivers,” says Dominguez. “If there’s animosity in trying to work together, even more reason that the driver is not going to put a lot of emphasis on it.”

Dominguez says it’s vital that driver inspections be an extension of the overall preventive maintenance program.

“One of the things that works really well is that when we do have a violation and even breakdowns, we do an analysis. Could it have been prevented, one, from the last PM, and two, from the DVIR.

“And I say it in that fashion, because the DVIR needs to be an extension of the PM process.”

A truck may have a preventive maintenance inspection every three months or every six months, but in between, “You rely on the driver on a daily basis telling you, ‘I’ve got a light out, I’ve got a mudflap that’s going, I hear this noise, I see something that seems a little bit off.’ You’re looking for all those minor things that can happen in between PMs to be identified by that pre-trip DVIR or post-trip DVIR.”

Transervice often has maintenance personnel in the yard to help drivers with pre-trip inspections.

Keppler also advises fleets not to overlook how technicians are doing their PM inspections.

“Maintenance folks like to fix stuff,” he says, and may focus on fixing problems without doing a real inspection. That’s why it’s critical to have a uniform procedure for technician inspections, he says.

“That inspection should be done the same way every time, regardless of what the driver tells you. If you find stuff, don’t stop and fix it. Note it, do the inspection the way you’re supposed to do, document everything, and then you can worry about how you’re going to get it fixed.”

Getting the Problem Fixed After the Inspection

Once a driver has reported a safety-related defect, it’s sometimes not fixed promptly. And that’s a problem, says Keller’s Bray.

“You can’t have the driver filling out paper DVIRs or even doing electronic ones and telling you six days in a row that he has a bad tire, and you’re not doing anything about it. That causes all kinds of problems during an audit.

“Some companies still believe that the driver just fills them out and when he gets back to the terminal in a week, he turns them all in. No, that’s not at all how that works,” Bray adds.

“In a post-crash environment, if that tire failure leads to loss of control, there’s going to be a lot of people saying, what are you doing?”

One of the reasons drivers say they don’t pay more attention to their vehicle inspections and DVIRs is that they keep reporting the same problem that doesn’t get fixed.

Regulations don’t require a defect found during a driver inspection to be fixed right away if it’s not critical to the safe operation of the vehicle. If the driver reports a problem that isn’t going to be fixed right away, Keppler says, “they need to tell the driver that, ‘We’re going to get it fixed, just not right now.’

“I look at lots of DVRs where I see the same thing appearing over and over,” he says. “A lot of times, if it’s the same driver, as days go on, their writing will get larger, they’ll put exclamation points on the DVIR, because they’re upset that people aren’t paying attention to it.

“That’s on management, to have that feedback loop to the driver,” he says.

Similarly, Keppler says, it’s important to make sure technicians and drivers complete the loop following a repair.

“The driver that gets in the vehicle the next time needs to review that the issues were fixed, and they need to see a mechanic certification that they were fixed. A lot of times you don’t see that mechanic certification on there. The driver should be asking questions about that — and they shouldn’t be penalized for that, they should be encouraged to do that.”

Bray recalls a driver with a fleet he was working at “who was extremely agitated, because his seat squeaked.”

He told the driver that it would be fixed when the truck came in for service, “but we’re not sending you into a dealership to have your squeak on your seat fixed,” because it’s not a safety violation.

Driver Inspections Should be Part of a Holistic Maintenance Approach

Keppler says driver pre-trips and post-trips and DVIRs should be part of a more holistic approach.

“I look at vehicle inspections as a three-legged stool,” he says:

1. Pre- and post-trip inspections by the driver.
2. Periodic inspections, primarily done by the maintenance department, including the mandatory annual inspection
3. Roadside inspections done by commercial motor vehicle enforcement officials.

“If you’ve got a good systematic maintenance program in place, all legs of the stool are strong,” he says. “But if you’ve got one of those areas that’s failing, the stool falls over. And so they all need to be working in harmony.

“When we go in and audit a carrier, what we’re going to look at is how those three legs of the stool work together,” Keppler says. “So we’re going to look at a roadside inspection. What violations were discovered during that roadside inspection? What day did it happen? We’re going to map that back and take a look at the pre-trips. Was a pre-trip done on that vehicle for that day? Did the driver discover anything that the driver notated as defects?

“It’s never a good situation if a company has pillars between the maintenance shop and the drivers. The DVIR needs to be an extension of the PM process.”

“We’re also going to look at the most recent periodic inspection. What did that inspection uncover, If anything? Was it close to the time that the roadside inspection took place? Was the out-of-service condition something that’s latent, that’s probably been there a while that could have been picked up during a periodic inspection?”

But many fleets, he says, don’t do that kind of analysis.

“When you go in and look their maintenance files, the DVIRs are in one place, the periodic inspections are in one place, and the roadside inspections are in another place. They’re not collated together.

“Most fleets are not taking that approach to their maintenance program from a compliance and safety perspective. They’re taking a Band-Aid approach: ‘Fix it when it happens, and we’ll deal with it the next time something happens.’ And that’s a problem.”

There are various e-DVIRs to help make driver vehicle inspections and filing defect reports easier. This one from Zonar uses RFID tags to prompt the driver to inspection various zones around the truck.

How e-DVIRs Can Help Make Driver Vehicle Inspections Better

Using traditional paper-based driver vehicle inspection systems is time-consuming and subject to inaccuracies (“What did the driver write here?”) and delays. Electronic driver vehicle inspection checklists and driver vehicle inspection reports are available from a number of providers, often accessed through the driver’s electronic logging device or a mobile device.

7 Things to Consider in an E-DVIR System

1. Does it provide an inspection checklist that works for your vehicle type and compliance needs?
2. Does it have the ability for a driver to add photos of problems?
3. What is the flow of information when a driver finds a problem? How automatic is the process for getting maintenance performed? How much visibility does it offer?
4. What type of device do drivers need? Is it a separate piece of hardware? Integrated into a tablet they may already be using? An app on a driver’s phone?
5. Are you able to customize to meet your fleet’s specific needs? Based on type of trailer/cargo, or when specs change on trucks?
6. How easy is it to use?
7. How does it work with all the other technology your fleet is using?

What is an e-DVIR? As Whip Around explains, e-DVIRs allow drivers to quickly fill out an inspection form from their mobile device, take images and make notes on vehicle faults, and automatically send in the report.

“It’s easy to miss something on a paper report and chalk it up to simple forgetfulness,” the company explains on its website. “With Whip Around you can’t miss something in your pre-trip vehicle inspection because you have to physically check off an item before you can move onto the next one.”

“One of the big benefits of the e-DVIR is that it’s added some level of automation in the sense that it makes it easier,” says Netradyne’s Young. “You go through a very defined checklist that you would on paper. And it’s kind of checking your boxes inside the app or on your phone or whatever device is being used.

“But the really important part is the automation of the maintenance request,” he says. When a driver has discovered a problem, a report automatically goes into the back-end portal for fleet managers. Drivers can even attach a photo of the problem, sometimes video. Some integrate into a fleet’s maintenance management software.

“Before you know it, you’re back in the terminal the next day, and they can get that fixed immediately, where previously that would take weeks sometimes.”

Not only does that mean less frustration and downtime for the driver, but it also has a major benefit for fleets in terms of liability, Young says. When it takes a week or more for a traditional DVIR to get processed and maintenance/repair performed, “That means that vehicle’s on the road for X amount of days or potentially a week or two, before maintenance is actually scheduled or taken care of. And that is a liability issue at its finest.”

Why e-DVIRs Are Especially Useful for Long-Haul Trucking Fleets

J.J. Keller’s Bray says the e-DVIR is especially helpful when you have trucks and drivers that operate far from their home terminal.

Say you’re a fleet in Wisconsin and you have a driver out in Sacramento.

With an e-DVIR, he says, “The driver writes up he’s got a light out, and that immediately shows up in the maintenance person’s inbox. So he says, ‘I got a truck in Sacramento with a light out, let’s get this squared away.’ He gets it squared away, then loads the e-DVIR back up into the system after he signed off on it saying it’s been taken care of. Then the next driver just retrieves it and signs off on it and everything’s taken care of.”

Keppler also points to the benefits of e-DVIRs in making it easier for fleets to connect everything together.

“You can monitor those periodic inspections, you can monitor the roadside inspections, you can monitor their pre-and post-trips, you can monitor the repair work,” he says.

“A lot of fleets even take it to the next level. Once you have the information in an electronic database, you can do all kinds of analysis on it. You can do predictive analytics; you can start getting to the next level of not just being reactive.”

How to Incentivize Your Drivers to Do Vehicle Inspections

When it comes to incentivizing drivers to do inspections, “I think you have to be somewhat creative in this space, because it’s a requirement that they do it every day,” Keppler says, “versus like a roadside inspection, if you get a clean inspection, a lot of fleets offer a monetary benefit there.”

If you’re using an electronic DVIR system, he says, it’s relatively easy to look at drivers’ DVIRs and set up a bonus or recognition system for doing all their DVIRs on time.

“And you can look at gamification, too,” he says, with drivers or terminals competing against each other.

In addition, he suggests that drivers who excel at their inspections be offered the opportunity to serve as trainers to other drivers. “Part of advancement within the company and getting recognized for something that they do very well.”

Electronic driver vehicle inspection reports make it more efficient to report defects and ensure safety-related problems are fixed promptly.

For vehicle inspections, as with other compliance elements, the carrot works better than the stick, says Netradyne’s Young.

“If you’re rewarding those who are doing it the way they should be, then those that are not doing it can see that reward and think, ‘Man, I wish I got qualified to enter to win that vacation my fleet’s offering because I checked all the boxes of things I was supposed to do this month.’

“Then you begin to improve compliance, simply by reinforcing and congratulating those that did it well. Punishing those that constantly don’t do well is just continuing to damage or increase a contentious relationship between the back office and drivers.”

5 Fleet Dash Cam Myths

Mark Schedler

Dash cam use among commercial and business fleets is exploding, and those who haven’t yet invested in this cab technology are missing out on significant risk reduction and operational benefits. If you’re one of the fleets still on the dash cam sidelines, consider these myths cited frequently.

Myth #1: If I get dash cams, my drivers will quit.

A 2019 co-sponsored FreightWaves/J. J. Keller survey (1) reported that among fleets with dash cameras, 74% said that turnover has stayed the same or improved, while the remainder experienced a minimal or insignificant increase relative to industry norms. Many drivers now see dash cameras as protection against frivolous lawsuits and proof that they are doing their job. Pairing dash cam use with clean and concise policies and procedures, driver coaching, training and reward programs, carriers create an effective countermeasure to driver attrition.

To convince drivers to accept dash cameras requires a significant effort into communicating the ‘why’ of dash cams. The message is, “we want to improve skills and protect our drivers and the company from a wrongful lawsuit.”

Myth #2: Insurance will cover the cost if we have an accident.

The FMCSA regulations and individual state laws require insurance. Interstate for-hire operations of any property-carrying commercial motor vehicle must have $750,000.00 minimum coverage. Hazardous materials carriers are required to carry a $5,000,000.00 minimum. Unfortunately, carriers could find themselves in the red if they merely adhere to the federal minimum levels for liability coverage, as those minimums have not kept up in the era of nuclear verdicts.

Transportation providers should assess their actual exposure to risk, as it’s not uncommon for multi-million dollar lawsuit awards. Organizations have to provide for the amount their insurance provider does not cover. Smaller operations are at greater risk of losing everything in litigation.

Forty-nine percent of survey respondents who had installed dash cams stated they had seen a decrease in the average value of insurance claims. Sixty-one percent said they had seen a decline in the number of insurance claims.

Myth #3: Dash cams could hurt me in court if my driver is at fault for an accident.

False. Even if your driver is in the wrong, the dash cam footage provides indisputable evidence so you and your lawyers can work toward a quick settlement. Dash cams also often help reduce the insurance claims process time because video evidence helps investigators quickly determine fault, which results in lower costs, demonstrating once again that time is money.

American Transportation Research Institute (ATRI) released the study “Issues and opportunities with driver-facing cameras” in April 2023. The study found that legal experts estimated:

• Driver-facing camera footage helps exonerate drivers in 49 percent of cases, and
• Road-facing camera footage helps exonerate the driver (and carrier) approximately 63 percent of the time.

Dean Croke, FreightWaves’ Chief Insights Officer, stated, “When a claim is underway, lack of evidence is one of the biggest issues underwriters face.”  Croke, who spent several years leading an insurance provider shared that, “One of the things we always credited companies with was having technology that could help exonerate them in the event of an accident.”

Survey results showed that 45% of fleets with dash cameras identified lower legal fees and risks of litigation as a benefit.

Myth #4: The cost of cameras is too high, and the ROI takes too long to secure.

This is simply not the case. It’s no secret that fleets run on small operating budgets and margins. However, dash camera costs have come down substantially over the last few years while innovation and technology capabilities have drastically improved, ensuring that most fleets see a return on investment in less than a year. The ROI is immediate if they have an accident and their driver is exonerated.

Additionally, carriers and organizations that coach drivers against observed risky behaviors can reduce cell phone use and distracted driving in a few days! Dash cams help uncover everything from failure to use a seatbelt to distracted driving, following too closely and hard braking — allowing carriers to address and effectively reduce the risk of future accidents. These efforts reduce violations, accidents, and CSA BASIC scores.

Fleets even offer monetary rewards to reinforce proper driving behaviors, using dash cam metrics to generate healthy competition among drivers. Turning learning into a game provides drivers with a quantitative and measurable sense of achievement, encourages training and focus on the tasks at hand, and delivers an engaging learning experience.

Don’t forget that you can also use dash cam footage as part of the Crash Preventability Determination Program to remove a non-preventable crash from the Compliance, Safety, Accountability (CSA) calculations used to create your Crash Indicator BASIC score.

Myth #5: There are too many rules for mounting hardware, and installations are complex.

Not the case. Federal Motor Carrier Safety Association (FMCSA) revised rules in May 2022 to give drivers and carriers more flexibility in mounting their tech hardware on the interior of their windshields. Now, dash cameras, GPS devices, and other safety technologies can be mounted up to 8.5 inches below the upper edge of the area swept by the windshield wipers or up to 7 inches above the lower edge. The FMCSA also expanded the definition of “vehicle safety technology” in §393.5 to include almost any “system” or “item of equipment” that uses cameras, lidar, radar, sensors, and/or video to promote driver, occupant, or roadway safety.

SOCIAL MEDIA IN TRUCKING LITIGATION

Doug Marcello

The prevalence of social media is indisputable. When there has been an accident, social media is an important litigation tool. Here are some key considerations:

1. Check it early and often.

• Accidents grab attention, so claimants may post about them long before considering litigation, providing both information and material for a defense attorney to cross-examine or impeach.
• Updates and comments may be added or removed at any time by the claimant and others.

2.  So, what are you looking for?

• Anything related to this accident
• Anything related to prior or subsequent accidents and injuries
• Anything related to the claims being made, for example:

o   If the plaintiff is claiming a loss of income or earning capacity, look for any posts regarding income, work, or job prospects.

o   If the plaintiff is claiming a loss of life’s pleasures, look for pictures and posts about vacations, travels, celebrations, etc.

o   If the plaintiff is claiming an inability to do physical activities, look for content relating to their physical activities.

3. Save it.

• Once claimants speak to an attorney, they will likely be instructed to make their social media private.
• Save or print content when you find it so it does not disappear forever –  screenshots work well for this.

4. Tell your drivers.

• Make sure drivers know to avoid posting ANYTHING on social media about the accident.
• Tell drivers to check their privacy settings regularly.
• Plaintiffs’ attorneys will look for anything they could show a jury that makes you look bad – even content that would seem irrelevant.
• While admissibility can be fought, it is better to not have it out there.

5. Other key points.

• Never friend or otherwise reach out to plaintiffs to gain access to private portions of social media pages.
• Check for relatives or friends of the plaintiff who may post additional relevant content.
• Social media surveillance is cheap and can help to focus traditional surveillance if conducted.
• If the information that is accessible to the public suggests that there may be more relevant private content, some Judges may require production of that private content in discovery.

How to Get Control of Driver Log Falsification

Deborah Lockridge

In the years since mandatory electronic logging devices for most U.S. truck drivers went fully into effect in late 2019, log falsification violations rank as one of the most common driver-related violations discovered by enforcement officials.

Log falsification is a misrepresentation of a commercial driver’s duty status or driving time on their daily record of duty status. They can be uncovered during roadside inspections or during Department of Transportation audits of motor carriers. And whether they are deliberate or unintentional, they can be a major problem for fleets.

But there are things you can do to reduce the number of violations.

Nearly 5% of all driver-related roadside inspections involved some kind of a log falsification in the years from 2019 to 2023, according to Federal Motor Carrier Safety Administration statistics — and they rank as the fourth most common driver-related violation.

It’s even worse in compliance reviews, AKA DOT audits, where log falsification is actually the second most common violation that’s discovered. The FMCSA has reportedly discovered around 21,000 log falsification violations in their DOT audits, which amounts to around 6% of the audits that they conduct, says Brandon Wiseman, president of Trucksafe Consulting.

“Those numbers — 5, 6% — don’t seem like all that all that big of a deal, but they are,” Wiseman says.

Why can log falsification violations be so bad for motor carriers, why are there so many false log violations, and what can fleets do to fix it?

Log Falsifications Hurt Your CSA Score

Log falsifications discovered during roadside inspections affect a motor carrier’s CSA (Compliance, Safety, Accountability) score in the hours of service BASIC as shown in the FMCSA’s Safety Measurement System.

“They are heavily weighted, and they can cause a motor carrier’s CSA score in the hours of service basic to tick up pretty quickly,” Wiseman says. “And in fact, a high hours of service BASIC score is a very common trigger for a DOT audit.

“The more log falsifications you as a fleet are incurring, the more likely it is you’re going to have the DOT knocking at your door,” he says.

Log Falsifications Hurt Your Motor Carrier Safety Rating

What those DOT inspectors discover during that audit will mean the difference between a Satisfactory, Conditional, or Unsatisfactory Safety Fitness Determination (more commonly known simply as a safety rating.)

Wiseman explains that during a DOT audit, investigators are looking for critical-level violations in your hours of service records.

“What they mean by a critical level of violations is a pattern of noncompliance over a certain period of time, or over a certain number of logs that they are sampling,” Wiseman explains. “A 10% or higher violation rate in that context, that would amount to a critical level violation.”

Investigators are looking for violations of the rules themselves — the 11-hour driving rule, the 14-hour daily rule, the 70-hour rule, etc. — but they’re also looking for log falsifications.

“If they find a log falsification violation rate of 10% or more in the DOT audit — which is not that hard to find — then you’re going to get a critical level violation in the hours of service factor for that audit. And if you get a critical level violation in the hours of service factor, you’re not getting out of that audit with anything better than a Conditional safety rating.”

What he has seen in the years of working with clients on their regulatory compliance is that the most common way fleets get a downgraded safety rating is log falsifications.

“Aside from getting a downgraded safety rating, the other thing you can usually expect to receive is a civil penalty,” Wiseman adds. Just how much that fine may be will vary based on factors such as the size of your company and how many violations were discovered, but Wiseman said he’s seen log falsification fines from $5,000 up to $50,000.

False Logs + Crash Litigation = Bad News

And let’s not forget the potential for litigation following a crash.

In its 2020 research report on how “nuclear verdicts” affect the trucking industry, the American Transportation Research Institute found that there were five particular factors brought against a defendant that yielded 100% verdicts in favor of the plaintiff.

The top one was hours-of-service or logbook violations.

“If your fleet has a real problem with drivers falsifying their logs, whether it’s deliberately or inadvertently, and one of your drivers is involved in a catastrophic accident, you can be sure that the log falsification issue is going to come to light in that litigation,” Wiseman says. “And it may very well haunt you in that litigation, particularly if one of the reasons for the accident has to do with driver fatigue.”

How do Log Falsifications Happen?

One of the biggest culprits behind log falsification, says Wiseman, is the use and abuse of “personal conveyance” status.

“In fact, it is being widely misused by a lot of drivers to conceal hours of service violations,” he says.

“Personal conveyance has always been and continues to be a significant source of misunderstanding among drivers, among carriers, among law enforcement, among the FMCSA itself. Nobody can really get their arms around it.”

Personal conveyance, he says, is for a limited circumstance where a commercial driver could legally log their driving time as off duty. When ELDs were implemented, because the device will automatically log as on-duty driving if the vehicles is moving, officials added the “personal conveyance” status as an option so the ELD doesn’t count against their hours limits.

A legitimate use of personal conveyance might be an owner-operator who’s not under dispatch and needs to use his truck to help move his brother from Indiana to Florida. Or he has a boat that he needs to take down to the lake.

“Truly personal reasons,” Wiseman notes.

Part of the problem, he says, is that personal conveyance is not written in the official rules but is published as a guidance.

Mis-Using Personal Conveyance Status

Drivers can mis-use the personal exemption option in their ELDs, whether it’s from a lack of understanding of the rules or a deliberate falsification.

Wiseman offers the example of a driver who’s under dispatch for a motor carrier and has only 50 more miles to go when he or she hits the 11-hour daily driving limit. Regulations require the driver to shut down for the required rest period right there.

“But if you really want to get the job done, and you want to avoid the appearance of an hours of service violation, the way you get around that is by flipping yourself into personal conveyance status,” Wiseman says.

To someone who’s not digging into it very deeply, he says, it will look like the driver was in compliance with the hours of service rules that day.

However, he says, “it doesn’t take much for law enforcement and for motor carriers to do a little bit of digging on that personal conveyance segment of your time and figure out if you were legitimately off-duty for personal reasons or not. And if they find out that you weren’t, then it’s a log falsification.”

Ironically, Wiseman says, the driver actually would have been better off to have just violated the 11-hour rule than to be found falsifying driver logs.

Personal Conveyance Misconceptions

A common misconception is that the personal conveyance status can be used by drivers to get to a safe parking place for their required rest if the first place they stop is full. In fact, Wiseman points out, that is only for right after loading or unloading. The guidance says an accepted use of personal conveyance is “time spent traveling to a nearby, reasonable, safe location to obtain required rest after loading or unloading.”

“That’s a very common misunderstanding is that that there’s some so-called safe haven allowance in the personal conveyance guidance,” Wiseman says. “It’s not true. If you run out of hours and you’re in the middle of the highway, there’s no way for you to get to a safe location to rest except to go in violation. That’s your only option.

“DOT would tell you, you should have planned better for that situation. And now you’re going to suffer the consequences of your hours violation.”

Other Reasons for Driver Log Falsifications

Some of the other common reasons behind log falsification violations may be inadvertent.

For instance, a driver might put themselves into off duty status in a situation where the regulations require them to be in on-duty/not driving status.

The most common example, he says, is drivers logging off-duty when fueling their trucks. That time is supposed to be logged as on duty/not driving.

“A lot of times drivers just don’t realize that they’re supposed to be an on-duty status during while they’re fueling their vehicles, and so they flip themselves into off duty status. That’s considered a log falsification.”

Another common area where logs are falsified — deliberately or inadvertently — is unassigned driving time when using an ELD.

ELDs automatically start logging driving time whenever a vehicle starts moving. If nobody is logged in, that goes into the carrier’s back-office access to the ELD software and put on an unassigned driving report.

When the DOT comes to audit you, Wiseman says, “one of the first things they’re going to ask for when they’re looking at your hours of service is your unassigned driving report. And it’s a very common way that carriers run into trouble in those audits.

“They turn over this unassigned driving report, and if it’s got thousands of hours of unassigned driving time, DOT oftentimes considers those to be log falsifications. Because a way for drivers to conceal hours of service violations is just by not logging into the device.”

FMCSA expects motor carriers to be reconciling the time on those unassigned driving reports and assigning them to the driver to whom they belong.

There are certain instances where there’s no driver to whom they belong, like when a technician is taking the truck out to diagnose or evaluate a problem. In those cases, Wiseman says, it’s important to annotate what those unassigned driving time entries are.

What Can Motor Carriers Do to Prevent Log Falsification Violations?

“There’s no magic formula to this,” Wiseman says. “It takes effort on your part to get these things under control.

“First things first, you can’t fix what you’re not measuring.”

Wiseman recommends fleets watch key safety and compliance metrics. When it comes to log falsifications, he says, safety managers need to watch the carrier’s hours-of-service CSA score in the SMS.

“If you see that you’re getting a bunch of log falsifications, now’s the time to deal with that before it balloons into a big problem and you have DOT knocking at your door,” he says.

In addition, monitor key reports that come from your ELD system, such as personal conveyance and unassigned driving time.

Carriers need to regularly audit their driver logs to look for common problems, such as logging fueling time as off-duty.

“Once you know where you are having problems, you actually have to take action to get control of them,” Wiseman says.

If a driver is incurring false log violations or a lot of personal conveyance time, the first step is to have a conversation with that driver.

“If it turns out that it’s a nefarious reason, then you need to take disciplinary action against them,” he says. There needs to be a progressive discipline program in place in fleet policies and it needs to be followed.

But if it turns out that false log violation, an overabundance of unassigned driving or personal conveyance time stems from a lack of understanding of the rules, drivers need education.

“You need to be educating your drivers, making sure they understand when they can use personal conveyance and when they can’t. Or if it’s unassigned driving time that you’re having a problem with, making sure that they are being held accountable to logging into their device. “Holding drivers accountable, giving them the education they need. That’s really what goes into getting control of these issues.”

What’s Your Trucking Fleet’s Personal Conveyance Policy?

One way motor carriers can address personal conveyance problems is by putting in place a more restrictive company policy than what the DOT guidance outlines.

For instance, the guidance says, a motor carrier could:

• Ban the use of a commercial motor vehicle for personal conveyance purposes.
• Set a distance limitation on personal conveyance.
• Prohibit personal conveyance while under a load.

Click on link below to see video.

https://youtu.be/t61S5Qs5lKQ