Trucking Company Motor Carrier 2017-11-28T21:02:07+00:00

Trucking Company Motor Carrier

Liability of the Trucking Company

  1. When the driver is an employee (“Company Driver”) for the Trucking Company

When the motor carrier is the actual employer of the truck driver, the state common law theories of agency should be your guide to determining the liability of the motor carrier under the specific set of facts of your case. The doctrine of respondeat superior provides that an employer is vicariously liable for the actions of an employee when the actions take place within the line and scope of the employment or agency. Since there is no set national standard for respondeat superior, you will need to familiarize yourself with the laws governing agency and applicable tests to prove respondeat superior in the state having jurisdiction over your wreck case, if the driver is employed by the trucking company.

 

  1. When the truck driver is an “owner-operator” of a tractor-trailer leased to the trucking company

In an “owner-operator” situation, the tractor is owned by one party (usually the “owner-operator”) but leased to the trucking company. Such leases must comply with the federal statutes and regulations if the truck will be used in interstate operation. Under the federal statutes and regulations: (1) the lease must be in writing; (2) the lease must provide that the carrier-lessee has the exclusive possession, or control and use of the equipment for the duration of the lease[1]; and (3) the motor carrier-lessee must assume the full direction and control of the leased vehicle(s) as if the motor vehicle(s) was/were owned by the motor carrier.[2]

The lease may also contain other provisions, which can impact the overall liability evaluation in the event of a wreck, such as: (1) contractual indemnity provisions or (2) contractual insurance requirements (these may include that the owner-operator maintain “bobtail” insurance to cover the owner-operator when he/she is not using the tractor for purposes related to the trucking company’s business).

When a trucking company enters into a leasing arrangement with an owner-operator (or other individual or entity) by statute, the trucking company is deemed to have the exclusive possession, control and use of the equipment for the duration of the lease and must assume the full direction and control of the leased vehicle as if the vehicle were actually owned by the trucking company.[3] So, under federal law, the trucking company is allowed to freely contract with drivers and “owner-operators” under independent contractor contracts; however, the trucking company’s responsibility to the members of the motoring public for a wreck will be the same as if the driver was its actual employee. Courts across the country have held for years that a statutory employee-employer relationship exists between a trucking company and the drivers it uses to drive on its behalf, including independent contractors.[4] Many courts have held that state common law concepts of liability under the respondeat superior doctrine are irrelevant and that the interstate trucking company is vicariously liable as a matter of law for the negligent actions of the “statutory employee” driver.[5] This doctrine of liability has sometimes been called “Logo” or “Placard” liability in that if the interstate trucking company’s logo or placard was being displayed at the time of the wreck liability of the driver will be imputed to the trucking company.

In 1986, the ICC adopted some changes which eliminated a requirement for lessee motor carriers to remove their placards before the termination of lease and allowed the terms of the lease to dictate which party would remove the identification “logo” or “placard” from the vehicle.[6] At that time, the ICC issued some clarifying comments disavowing the reasoning of some cases which previously held that the motor carrier was strictly liable in the event its logo was displayed on a vehicle at the time of the wreck and stated that the leasing regulations were not intended to completely override state tort, contract and agency law to create carrier liability where liability otherwise would not have existed.[7] Since 1986, some courts seem to recognize that a change in regulations eliminated the strict liability aspects of the “logo liability” doctrine.[8] Thus, in situations where the evidence has shown that the parties to the lease have treated it as having been terminated, the motor carrier was not held to be liable despite the fact that the truck continued to bear the motor carrier’s logo and the lessor/lessee had not fully complied with the regulations and/or termination of the lease.[9]

Currently, the law varies relative to cases involving leased trucks as to whether some kind of respondeat superior analysis should be applied or whether the logo liability rule of strict liability still applies during the duration of the lease. So, if you have a case in which the motor carrier disputes that it is responsible for the actions of the owner-operator driver be sure to familiarize yourself with any court cases addressing “logo” liability in the applicable jurisdiction.

  1. Potential direct liability claims against the trucking company
  2. Negligent hiring

Federal regulations establish the minimum qualifications for truck drivers and address a trucking company’s responsibility to obtain background information on a driver before hiring him/her.[10] The minimum requirements for investigation and inquiry of a motor carrier prior to hiring a driver are outlined in 49 C.F.R. §391.23. A motor carrier must at a minimum investigate the driver’s safety performance history by contacting any DOT-regulated employer who the driver has worked for within the previous three years and obtain a motor vehicle record (MVR) for each state where the driver has held or holds a driver’s license during the preceding three years.[11] A trucking company who fails to comply with the minimum standards for hiring drivers established by the federal regulations may be subject to liability if compliance would have shown that the driver was unfit/incompetent.

In addition to the required minimum background check in the federal regulations, the motor carrier may also, with written permission of the applicant, request a pre-employment screening program (PSP) report for the driver applicant. PSP information is obtained from the FMSCA’s Motor Carrier Management Information System (MCMIS). A motor carrier can obtain five years of crash data and three years of roadside inspection data on a prospective driver applicant via a PSP report.[12] PSP reports must only be used for pre-employment screening purposes and, thus, may not be used for current employees.[13] The primary differences between PSP records and an MVR for pre-employment screening purposes have been outlined by HireRight, a national company who provides employment background checks, as follows:

  • MVR and PSP records are maintained by different sources. MVR driving records are reported by each State’s Department of Motor Vehicles (“DMV”, or similar State agency), and there is no national database housing driver records. The FMCSA is responsible for the PSP report. An important point to remember is that the two records are not linked, so the information may not match.
  • A PSP report may include traffic citations or warnings which prompted a roadside inspection but will not include all of the driving record activity. The list of DOT crashes represents a driver’s involvement only, it does not determine responsibility.
  • An MVR will provide the driver’s driving history as reported by a given State’s DMV. PSP reports only contain entries of traffic convictions and warnings related to roadside inspection.
  • Citations, warnings, and tickets yet to be settled in the courts will not appear on an MVR.
  • Use of the PSP in hiring decisions for drivers is not required by regulations. However, it is becoming a fairly common best practice among motor carriers and bus operators.
  • FMCSA regulations require that a three year MVR report be checked within 30 days of hiring and then rechecked annually.[14]

Failure on behalf of a motor carrier to investigate a driver’s qualifications in compliance with the federal regulations, will subject the motor carrier to liability for negligent hiring in the event such background check would have revealed evidence of prior accidents, traffic violations or disqualifications of the driver which should have been red flags as to his competency.[15]

  1. Claims for negligent supervision and retention

 

Trucking companies operating in interstate commerce have a clear, non-delegable duty to monitor, control, and supervise the conduct of their drivers and employees, including any independent contractors driving on their behalf.[16] Per 49 C.F.R. §385.5:

“To meet the safety fitness standard, the motor carrier shall demonstrate that it has adequate safety management controls in place, which function effectively to ensure acceptable compliance with applicable safety requirements to reduce the risk associated with:

(a) Commercial driver’s license standard violations (part 383),

(b) Inadequate levels of financial responsibility (part 387),

(c) The use of unqualified drivers (part 391),

(d) Improper use and driving of motor vehicles (part 392),

(e) Unsafe vehicles operating on the highways (part 393),

(f) Failure to maintain accident registers and copies of accident reports (part 390),

(g) The use of fatigued drivers (part 395),

(h) Inadequate inspection, repair, and maintenance of vehicles (part 396),

(i) Transportation of hazardous materials, driving and parking rule violations (parts 170 through 177), and

(k) Motor vehicle accidents and hazardous materials incidents.”

Trucking companies must maintain supervision practices to monitor: (1) compliance with federal regulations dealing with drug and alcohol use; (2) driver compliance with maximum hours of service regulations to reduce the risk of fatigued driving; (3) driver and company practices to make sure that vehicles and equipment are being properly maintained in compliance with the regulations; (4) any traffic citations or out of service violations received by its drivers; and (5) any motor vehicle collisions involving its drivers. (This list of areas for which a trucking company is required to monitor and supervise its employees and drivers is certainly not comprehensive.) If a trucking company’s failure to monitor and supervise drivers as required under the federal regulations leads to a wreck, the trucking company may be held liable under a claim for negligent supervision.

In many jurisdictions, Plaintiffs are not allowed to proceed forward with negligent hiring, supervision and retention claims against a trucking company if the trucking company admits to being vicariously liable for the actions of its driver. Fortunately, Alabama is not one of those jurisdictions. If you have a case in one of the jurisdictions which does not allow for negligent hiring, supervision, or retention claims when the trucking company admits to vicarious liability for the driver, it is wise to claim wanton conduct and seek punitive damages so that you will at least be allowed an opportunity to conduct discovery on those theories of liability.

Note: At the beginning of a trucking case, it is good practice to make a Freedom of Information Action (“FOIA”) request to the Federal Motor Carrier Safety Administration for data, correspondence, reports, etc. which they have on file for the trucking company in your case. Unfortunately, receiving a response to a FOIA request made to the FMCSA will likely take anywhere from nine months to a year, at a minimum.

[1] 49 C.F.R. §376.11-.12 (2000)

[2] 49 USCA §14102(a)(4)

[3] 49 USCA §14102(a)(4)

[4] “Insurance Coverage In A Trucking Case” by David Schubert (2013), citing White v. Excalibur Insurance Company, 599F.2nd 50 (5th Cir. 1979)

[5] Id. Citing Empire Indem. Co. v. Carolina Cas. Ins. Co., 838 F. 2nd 1428 (5th Cir. 1988); Omega Contracting, Inc. v. Torres, 191 S.W. 3rd 828 (Tex. App. – Ft. Worth 2006)

[6] 49 C.F.R. §376.112(c)

[7] “Insurance Coverage In A Trucking Case” by David Schubert (2013), citing Ex Parte No. MC-43(Sub.-No. 16) Lease and Interchange of Vehicles (identification devices), 3 I.C.C. 2nd 92-3 (1986)

[8] “Insurance Coverage In A Trucking Case” by David Schubert (2013), citing Jackson v. O’Shields, 101 F. 3rd 1083, 1086-7 (5th Cir. 1986).

[9] Id.

[10] 49 C.F.R. §391.1-.71

[11] 49 C.F.R. §391.23.

[12] “PSP vs. MVR: What’s The Difference?” – The HireRight blog, March 2014.

[13] Id.

[14] Id.

[15] Smith v. Tommy Roberts Trucking Company, 435 S.E. 2nd 54, 57 (1993) (Finding that a claim for punitive damages against a truck driver’s employer was supported by evidence that the employer had knowledge that the driver had received two traffic violations while driving company vehicles, the employer failed to follow federal regulations requiring it to check into a driver’s driving record, and that such a check would have shown that the driver had several other traffic violations on his record.)

[16] See generally, 49 C.F.R. §385.

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