HOUSTON – If motorcoach operators haven’t found a good enough reason to make sure their drivers aren’t using hand-held cell phones while behind the wheel, they should take a close look at a recent state court case here.
A 12-person jury awarded nearly $17.7 million to two women who were injured when the Greyhound they were riding in ran off the road and flipped over while the driver apparently was using his cell phone.
The award, which was more than triple what the victims sought, included $5.97 million in compensatory damages to Janie Reeves and $2.12 million to Ashley Reedy, plus an additional $4.8 million to each of them in punitive damages.
The bottom-line message: Juries have zero tolerance for motorcoach drivers talking on a hand-held cell phone while behind the wheel.
While the total amount of the award was staggering, the jury tried – and came within a single vote of succeeding – to push the total punitive damages to a whopping $500 million. The only thing that prevented the huge award was one juror who refused to go along with the other 11 panel members.
“It’s just the latest indication of how juries react to drivers and the use of cell phones,” suggested Randy O’Neill, vice president of Lancer Insurance Co., a leading provider of insurance to the motorcoach industry. “It’s a problem and it’s getting worse as the proliferation of cell phones continues.”
He said it is becoming extremely important that drivers strictly avoid anything — eating, drinking, talking on a cell phone or using any type of electronic device — that might distract them from driving.
“If a driver must use the phone, it certainly must be hands-free and it must be used only in an emergency,” he said, adding that for any other use the driver should first pull off the road and park in a safe location.
Additionally, he said it also is important for operators to include in their company policies a strict ban on employees using hand-held cell phones while driving, and to make certain everyone in the company not only understands it but follows the rule as well.
The Federal Motor Carrier Safety Administration made driver distraction a target of its safety programs last year and early this year banned drivers from using hand-held telephones while driving.
Drivers violating the rule can be fined $2,750 and operators who allow their drivers to use a hand-held cell phone while driving can be penalized as much as $11,000.
Lancer also has been warning the motorcoach industry that the rise in juror anger over drivers using cell phones while at the wheel can have financially devastating consequences and operators need to heed the message.
“We’ve frequently described how cell phone usage generates anger that will drive up verdicts, perhaps substantially,” said Paul Berne, Lancer senior vice president for claims. “With 11 of the 12 jurors on this case prepared to award $500 million in punitive damages, we can now frame just how much anger can be generated.”
He said the message will be emphasized in an advisory that will be sent to all of the company’s policyholders.
The accident that triggered the threat of the $500 million award occurred on a wintry night in 2007, on Interstate 40, a short distance inside the Texas border with Oklahoma. While the highway in Oklahoma was concrete and retained some heat that prevented it from freezing over, the pavement in Texas was asphalt and was covered with about a three-inch sheet of ice.
Greyhound maintained during the three-week trial that the accident was unavoidable because of the poor weather conditions and the condition of the road, pointing out that within a four-mile radius of the accident there were 186 vehicle crashes in Texas and just four in Oklahoma.
Attorneys for the two accident victims, however, hammered away at the driver’s use of the cell phone, revealing that a check of his cell phone records showed he made or received 17 calls during the three hours leading up to the accident, including one just before or during the crash.
They initially were tipped off about the driver being on his cell phone by a passenger who was seated at the front of the bus. At least one other witness also reported seeing the driver talking on the phone.
The attorneys also faulted the driver for not following a company policy that required him to put chains on the tires of the bus after being warned by other bus drivers that the roads in Texas were ice covered.
In addition they contended that Greyhound was negligent in hiring the driver, Rashad Nichols, because it violated a company rule that does not allow the hiring of a driver who has had more than two serious moving violations within a three-year period. Nichols reportedly had three speeding tickets eight months before the accident.
The jury, which reached the $17.7 million verdict after deliberating a full day on the compensatory damages and another day on the punitive damages, found Greyhound 80 percent responsible for the accident and the driver 20 percent at fault.
The total damages awarded by the jury were well above the $3 million requested by Reeves, who suffered a fractured pelvis, ruptured spleen, several broken ribs and a collapsed lung, and the $2.35 million sought by Reedy, who incurred a herniated disc.
Electronic Hours of Service – Why?
An electronic onboard recorder (EOBR) is the FMCSA’s nomenclature for a device that produces compliant, paperless, electronic drivers’ hours of service logs. These devices have been approved in lieu of handwritten records in the United States and Canada for the last 18 years. Several times since then, calls have been made by various groups to mandate electronic log devices in the name of highway safety. In spite of the fact that these devices remain entirely voluntary, thousands of fleets have adopted them. Why do fleets spend money on onboard computer technology?
Fleets implement technology because it increases their returns; either through increased safety, higher revenue miles, or lower operating costs. Onboard computer (OBC) systems available today perform many functions; vehicle maintenance tracking, accident recording, two-way communications, driving performance monitoring, dispatch and routing, inventory control, proof of delivery, trailer tracking, and a host of other interesting features. In many cases, this may have nothing to do with FMCSA compliant electronic logs. The ability to do paperless logs, in today’s driver-driven environment, is just one of the many reasons that fleets use onboard technology.
What occurs in our industry every time an accident happens involving a commercial motor vehicle? Safety and the public’s perception of our industry go hand in hand. The implementation of an onboard computer system creates a positive impression that the company cares about safety, and is committed to giving the drivers a reasonable and legal work schedule. An EOBR makes it easier to measure HOS compliance, providing the tools to adjust dispatch schedules with greater efficiency. Onboard computers that measure driving performance give the driver feedback on critical driving habits that directly influence safety and fuel efficiency. Over time, it is proven that this type of professional environment improves driver retention. A recent survey conducted by the American Transportation Research Institute (ATRI) shows that “motor carriers using EOBRs have not experienced the negative impacts on driver retention expected by the motor carrier non-users”.
Increased complexity of US and Canadian rules, especially regarding sleeper berth provisions and short haul operations, increases the burden on carriers/drivers to accurately keep their logs. With every concession, exemption, or exception for a segment of industry, hours of service rules become harder to understand and calculate. In the middle of this dynamic environment, drivers and fleet operators are under increasing pressure to comply. The law becomes harder to understand, and harder to communicate. The repercussions of non-compliance become harsher for carriers and drivers. In this environment, shifting clerical tasks away from drivers is a proven best practice. According to the ATRI, fleets that use EOBRs report 19% increased driver retention and 76% report increased driver morale after they implemented these devices.
The FMCSA estimates that drivers using electronic logs spend 20 minutes less per day filling out paperwork than drivers using paper logs. However, many fleets report greater time savings with paperless logs, especially with the most recent sleeper berth rules. Properly preparing hand-written logs is time consuming, difficult, and displaces part of the driver’s focus on their real job. Further, more drivers are entering today’s job market without any previous connection to our industry. Educating these new drivers on today’s HOS rules is difficult.
How does this work? The fleet indicates which of the 26 currently applicable rule sets are suitable in their operation. This allows the system to operate within the 6 or 7 day cycle, intrastate or interstate, applying proper exemptions and exceptions. The driver indicates the beginning and end of work periods by electing on duty and off duty statuses. The EOBR calculates distance, determines location at each change of status, and keeps track of worked and available hours. Fleets can elect to automatically warn drivers when they are in danger of exceeding allowable time, and to warn drivers when they exceed allowable time. Any time the vehicle is stopped, drivers can look up a detailed daily log or a summary recap of hours.
Back at the office, the truck communicates back via several different methods, from satellite to terrestrial to 802.11 hotspots to memory cards. Carriers can review logs that are current up to the last synchronization. More important, carriers can instantly review who is in and out of compliance, as well as plan dispatch schedules, without reviewing each individual log or relying on manually created recaps.
Although rumors of mandated electronic logs have circulated for years, our industry has not waited for the federal government to act. Lower cost, easier to use, more reliable technology that increases fleet safety has been adopted without governmental intervention. Government intervention will change the availability, price, and complexity of telematics and onboard computers. What’s worth considering is the voluntary adoption of an EOBR. Is it not better to voluntarily adopt a known and improving technology now; or wait to install a mandated and static technology when it is forced on our industry.
Joel Beal
Senior Vice President
Tripmaster Corporation
