Drivers, Always Check Your Brakes! 2022 Brake Safety Week is Here

/in /by Drivers, Always Check Your Brakes! 2022 Brake Safety Week is Here

Operation Airbrake is a Commercial Vehicle Safety Alliance (CVSA) program dedicated to improving vehicle brake safety throughout North America. As part of the program, CVSA conducts two major brake-safety inspection and enforcement initiatives each year: an unannounced one-day Brake Safety Day, which may be held at any time; and Brake Safety Week, a seven-day initiative which is publicly announced in advance. During both the announced and unannounced brake safety enforcement campaigns, commercial motor vehicle inspectors conduct brake system inspections (primarily Level IV Inspections) on large trucks and buses throughout North America to identify brake-system violations. CVSA has announced Aug. 21-27 as the dates for this year’s Brake Safety Week.

During the brake portion of a vehicle inspection, inspectors will look for missing, non-functioning, loose, contaminated or cracked parts on the brake system, and non-manufactured holes (such as rust holes and holes created by rubbing or friction) and broken springs in the spring brake housing section of the parking brake. They will listen for audible air leaks around brake components and lines, and ensure the air system maintains air pressure between 90-100 psi (620-690 kPa). Inspectors will also check for S-cam flip-over and measure pushrod travel. They will check that slack adjusters are the same length (from center of S-cam to center of clevis pin) and the air chambers on each axle are the same size. They will also inspect required brake-system warning devices, such as ABS malfunction lamp(s) and low air-pressure warning devices. In addition, inspectors will ensure the breakaway system is operable on the trailer, and inspect the tractor protection system, including the bleed-back system on the trailer. In addition to reporting total inspections and brake-related out-of-service violations, inspectors will also capture and provide data on brake hose/tubing chafing violations – the focus area for this year’s Brake Safety Week.

This year’s unannounced Brake Safety Day was conducted on April 27, 2022, the results of which were reported on June 22, 2022. In the forty-six jurisdictions that participated, a total of 9,132 inspections were conducted. Of the total number of inspections conducted, 1,290 vehicles were placed out of service for brake violations, which is a brake-related out-of-service (OOS) rate of 14.1%. This is up slightly from last year’s Brake Safety Day, which reported a 12.6% brake-related OOS rate out of 10,091 total inspections. Commercial motor vehicle inspectors during last year’s Brake Safety Week inspected 35,764 commercial motor vehicles. Twelve percent of the vehicles inspected were placed out of service due to critical brake-related inspection item conditions.

Brake-related violations comprise the largest percentage of all out-of-service vehicle violations cited during roadside inspections, and brake systems and brake adjustment violations accounted for 38.9% of all vehicle out-of-service violations, the most of any category of vehicle violations

More information regarding Operation Airbrake and resources for drivers can be found here: https://www.cvsa.org/programs/operation-airbrake/

For more information, contact Stephen J. Marshall.

Transportation Safety Amid the Supply-Chain Issues of 2022

/in /by Transportation Safety Amid the Supply-Chain Issues of 2022

The 2021 Driver Shortage Report issued by the American Trucking Associations (ATA) found that the nationwide truck driver shortage hit a “historic high” with a loss of approximately 80,000truck drivers. If the current industry trend persists, a loss of 160,000 drivers is projected by 2030The ATA estimates that 1,000,000 new drivers will need to be recruited over the next ten years to replace truck drivers leaving the workforce and encourage industry growth. The national shortage of truck drivers is one of the many problems contributing to the significant supply-chain disruptions that have plagued 2022.It’s a dilemma that has caught the attention of everyone, including those governmental and political associations that have been tasked with finding the solution.

For example, to combat the truck driver shortage throughout the nation, Virginia Congresswoman Abigail Spanberger co-sponsored H.R. 7348; Strengthening Supply Chains Through Truck Driver Incentives Act of 2022. In short, the bill aims to fill truck driver vacancies and keep existing drivers on the road through refundable tax credits. If passed, the bill would give newly introduced truck drivers or those registered in trucking apprenticeship, a refundable tax credit of up to $10,000 and for up to two years. Those truck drivers that currently hold a valid Class A CDL and drive at least 1,900 hours in the year will receive up to a $7,500 refundable tax credit for up to two years. The bill was introduced in the House of Representatives on March 31, 2022, and was referred to the House Committee on Ways and Means at that time.

In Virginia, a partnership between the Virginia Ready Initiative and the Virginia Trucking Association offered $1,000 to any Virginian who completed a truck driver training program at a Virginia community college and passed a CDL test. Similar incentive programs are being launched throughout the country to help relieve the widespread supply-chain disruptions and combat local unemployment rates.

The push for new, inexperienced, commercial drivers on the road will certainly affect trucking liability and transportation safety. Consider the Safe Driver Apprenticeship Pilot program launched by the Federal Motor Carrier Safety Administration (FMCSA) that allows employers to establish apprenticeship programs for certain drivers between the ages of 18 and 21 to drive big rigs across state lines. Despite numerous strict safety measures, there is an overarching concern that young and inexperienced drivers have higher crash rates.

According to the results of the study conducted by Virginia Tech Transportation Institute, however, while both age and commercial motor vehicle (CMV) driving experience play a role in driver risk, CMV driving experience is more important than age when considering risk. The study found that older inexperienced CMV drivers had higher crash rates and odds of being involved in a crash than their younger, inexperienced counterparts. Based on the results of this study, employers are being urged to enhance their apprenticeship and training programs.

Written by associate Alexandra Monaco.

Maryland’s New “Move Over Law”

/in /by Maryland’s New “Move Over Law”

For many years Maryland’s “Move Over” law required vehicles approaching from the rear of an authorized vehicle stopped on a highway with the light flashing to change into an available lane not immediately adjacent to the vehicle. This is to be done assuming another lane in the same direction is available and the move can be made safely and without impeding other traffic. If a safe lane change is not feasible, the law requires vehicles to slow to a reasonable speed safe for existing weather, road, and vehicular or pedestrian traffic conditions. The new ‘Move Over” law now requires this action to be taken for ANY vehicle stopped on a highway.

Maryland Passes Legislation to Address Excessive Towing and Recovery Invoices for Police-Initiated Tows

/in /by Maryland Passes Legislation to Address Excessive Towing and Recovery Invoices for Police-Initiated Tows

Excessive invoices on police-initiated towing and recovery bills following motor vehicle accidents involving commercial vehicles have plagued the transportation industry, with the problem growing worse over the last several years. One of the reasons we have recently seen an increase in excessive invoices is an attempt by towing companies authorized by various law enforcement agencies to perform towing and recoveries following an accident. The towing companies have been attempting to charge for their services by the pound based on the vehicle’s weight and cargo, rather than by the hour. The per-pound billing practices have absolutely no relation to the nature, type, and amount of work involved in a particular towing and recovery and lead to excessive invoices for motor carriers. Compounding the problem, in many instances, is the towing companies’ refusal to release the vehicle and cargo unless and until the excessive invoices are paid. This leaves motor carriers, especially smaller motor carriers, with few options other than to pay the excessive invoice to secure the return of the vehicles and cargo and get the vehicle back on the road. The billing and business practices of companies performing police-initiated tows are not unique to Maryland. It is a problem facing the trucking industry nationwide. In response to the growing problem, some states have enacted laws utilizing a variety of ways to address the issues with some of the strategies, including setting maximum rates for police-initiated tows or requiring the return of vehicles after payment of a small deposit.

Due to the combined efforts of the Maryland Motor Truck Association and the Owner-Operator Independent Drivers Association, Maryland is the most recent state to pass legislation to combat the problem of excessive invoices for police-initiated towing and recoveries. This is despite strong opposition from the towing industry. Although Governor Hogan has not yet signed the legislation into law, under the new legislation, the following provisions will take effect on October 1, 2022:

  • While there is no rate-setting requirement by the Maryland State Police (MSP), all towing companies on the police-initiated towing lists are required to provide their maximum rates when they apply annually for the MSP tow program. The MSP must make those rates available to the public upon request.
  • The MSP must establish a complaint and disciplinary process where towers can be expelled from their list.
  • Motor carriers must be allowed to use the tower of their choice and bypass the MSP list as long as the motor carrier’s preferred tower can arrive at an accident scene in 30 minutes or less, except where the MSP believes allowing the use of the motor carrier’s preferred tower creates a safety risk.
  • If there is a dispute over the amount of an invoice and the towing company is in possession of the cargo:
    • If the cargo is owned by a person or entity other than the motor carrier involved, the tower must release the cargo to its owner or designee without any payment being made.
    • If the cargo is owned by the motor carrier, the motor carrier must provide insurance information demonstrating it has sufficient coverage to cover the cost of the cargo cleanup.  If it does not have sufficient coverage, the motor carrier will have to sign a letter of guarantee for payment of the cargo clean-up before the cargo is released.

These additional provisions take effect on October 1, 2023, under the new legislation:

Per pound billing will be banned in Maryland on police-initiated tows.

  • A tower must release a motor carrier’s equipment (truck and trailer) with payment of a 20% deposit of the amount on the invoice.

The General Assembly will also be forming a legislative workgroup to further study various other issues related to police-initiated tows, including the number of towing companies on the MSP tow list, potential parameters for establishing fair and reasonable per pound billing rates, the number and nature of complaints filed with the MSP on towing related issues, and the number and nature of complaints filed with the Maryland Insurance Administration regarding towing related issues.

This new legislation is a step in the right direction in addressing the issue of excessive invoicing and protecting motor carriers from unreasonable and egregious billing and business practices.

Written by counsel Renee Bowen.

New Year, Same Problem: Commercial Trucker Shortage

/in /by New Year, Same Problem: Commercial Trucker Shortage

The lobbying organization for the nation’s big trucking employers, the American Trucking Associations (ATA), has long touted a nationwide shortage of truck drivers due in part to its older workforce entering retirement. However, it was undeniably exacerbated by the constraints of the COVID-19 epidemic, much as the already constrained supply chain to move goods across the country was exacerbated as retirements were accelerated faster than new commercial truck drivers could be trained. According to the ATA, a record 80,000 additional truck drivers are currently needed to meet the nation’s freight demand, while the driver shortage is expected to exceed 160,000 by 2028. Not only does a trucker shortage clog the country’s supply chain, which increases consumer pricing, but it also adversely impacts the bottom lines of commercial trucking companies, whose trucks sit for days, unused, while costs continue to accumulate.

Various reasons for the driver shortage have been proposed. According to the ATA, age restrictions on drivers, gender issues, and schooling issues are lead amongst them; while nearly every state permit drivers under the age of 21 to obtain their commercial driver’s licenses (CDL), federal law prevents drivers who are younger than 21 from hauling freight across state lines. The public health crisis limited trucking opportunities to experienced drivers, as most schools closed since they could not teach truck driving via Zoom. As for gender, the stereotype of a trucker is male-dominated. The industry has struggled to attract women to commercial truck driving; while women comprise 47% of America’s workforce, they only account for 6% of commercial truck drivers. Interwoven within these issues is the “trucker lifestyle,” which is not appealing to many: unhealthy diet and sedentary lifestyle due to being on the road, long-distance travel with long hours and sometimes weeks away from home, and separation from families. Moreover, implementation of vaccine mandates or weekly COVID-19 testing, while arguably a vital part of the fight to quell the surge of COVID-19, has another negative impact on the industry. The companies already stretched thin struggle to implement the government-mandated policies, and not all commercial truck drivers are willing to participate.

As we approach the two-year anniversary of the COVID-19 epidemic, we can reflect upon what creative solutions to the commercial trucker shortage are proving effective for various companies. The most obvious answers are financial ones, in line with the general concept of supply and demand: increasing driver pay, providing sign-on bonuses, and offering pay increases, along with better benefits and 401(k) or tuition reimbursement programs. The area of trucking with the most significantly seen shortage is “long-haul trucking,” which refers to truck drivers who must travel long distances across state lines, adversely affected by the above-referenced lifestyle issues. To address this, companies are offering options for part-time drivers, decreasing time on the road by offering weekend or local routes with steady and reliable hours and increasing the number of available distribution centers. Some companies have targeted minorities, women, and military veterans with focused advertising on social media or financial incentives. There has been a cry through initiatives such as the ATA’s DRIVE-Safe Act to lower the age minimum for a commercial driver from 21 to 18 so that the younger commercial driver force is not prohibited from transporting goods nationally. It may be that the improvement of and likely entry of autonomously operated vehicles into the workforce may decrease the adverse effects of product distribution caused by the trucker shortage.

What is clear, is that the effects of COVID-19 are ongoing, with no clear end in sight for either the epidemic or its impact upon the commercial trucker shortage. However, just as there is no singular cause of the commercial trucker shortage, there is no singular solution. But we know now, more than ever, that commercial truckers are vital to the economy in our society, and we need to keep working to support commercial truck drivers and attract them to the industry.

For more information contact Tamara B. Goorevitz.

Maryland’s Preventive Maintenance Program Takes a Step in the Right Direction

/in /by Maryland’s Preventive Maintenance Program Takes a Step in the Right Direction

Maryland’s Preventive Maintenance Program (“PMP”) for commercial vehicles, Md. Code Ann., Transp. § 23-301 et seq (West 2021) is one of the strictest in the country. Until recently, the PMP required Maryland registered commercial trucks be inspected annually or every 25,000 miles, whichever comes first. Federal law only requires annual preventive maintenance inspections regardless of miles, and no other states have a mileage-based requirement. This requirement has created a disincentive for companies to register their trucks in Maryland and puts Maryland motor carriers at a disadvantage compared to their out-of-state counterparts, who run trucks through Maryland but are not subject to the same stringent requirements.

In January 2021, Maryland State Delegate David Fraser-Hidalgo sponsored House Bill 250 (“HB 250”) seeking to make Maryland’s truck inspection laws less strenuous by increasing the mileage at which Class F vehicles and certain Class E vehicles must be inspected, maintained, and repaired. Under HB 250, Class F tractors less than five years old would be subject to preventive maintenance inspections every 35,000 miles or every 12 months, whichever comes first. The thought was that increasing the mileage requirement for inspections on tractors to 35,000 miles would ease the financial cost to long-haul trucking companies by reducing the average inspections per year. Additionally, because zero-emission vehicles (“ZEVs”) require less maintenance than internal combustion engine vehicles, HB250 also sought to increase the inspection mileage requirements for ZEV straight trucks (Class E) to every 50,000 miles, or every 12 months, whichever occurs first.

On May 30, 2021, Governor Larry Hogan signed HB 250 into law, and it became effective on October 1, 2021. Therefore, as of  October 1, 2021, Maryland vehicles are now subject to the following Preventive Maintenance Inspection requirements: annually or every 35,000 miles (whichever comes first) for Class F tractors if they are no more than five years old; annually or every 50,000 miles (whichever comes first) for Class E straight trucks if they are no more than five years old and powered by a zero-emission fuel source; and annually or every 25,000 miles for vehicles that are older than five years, consistent with the law before HB 250.

Maryland’s recent PMP requirements will help Maryland become a more viable state for motor carriers to conduct business. These requirements will promote public safety and environmental health by encouraging companies to invest in newer, more reliable, and fuel-efficient trucks equipped with modern safety features. Even with these revisions, which only affect trucks less than five years old, Maryland still has one of the strictest preventive maintenance programs in the country. However, the enactment of HB 250 is a step in the right direction.

For more information, contact Stephen J. Marshall.

Driver Qualification Standards and Training

/in /by Driver Qualification Standards and Training

Driver shortage continues to be a major concern facing the commercial transportation industry. For four years running, motor carriers rank this as the number one problem facing the industry. ATRI estimates the driver shortfall at 100,000 over the next five years. A significant contributing factor is the retirement of older drivers without enough younger drivers to replace them. The Federal Motor Carrier Safety Administration (“FMCSA”) continues to implement measures and entertain proposals aimed at increasing the pool of qualified drivers.

In 2019, the FMCSA commissioned a study by the Virginia Tech Transportation Institute (“VTTI”) to analyze the relationship between the age and safety of truck drivers.  The study included information on more than 9000 truck drivers ages 21-24 and compared their safety performance levels to drivers of different ages. The research found that driver experience, rather than age, has a greater impact on driver safety risk. The study concluded that there is no safety-based reason not to use younger drivers when structured training, mentoring, and coaching systems are available. However, some members of the FMCSA’s Motor Carrier Safety Advisory Committee (“MCSAC”) disagreed about whether drivers age 21-24 could match the safety performance of older drivers, noting a positive correlation between driver maturity, experience, and safety. One member recommended exercising a high degree of caution when considering the Institute’s research. Still, the study findings may encourage more insurers and employers to provide opportunities to younger drivers.

To promote a larger pool of younger drivers, the FMCSA launched a three-year pilot program in June of 2019 that allows military veterans and reservists under the age of 21 to operate commercial trucks in interstate commerce. The program provides a limited number of individuals, ages 18-20, the opportunity to operate large trucks, provided they have the military equivalent of a commercial driver’s license and are sponsored by a participating trucking company. The FMCSA hopes the program’s benefits will be two-fold, (i) helping military personnel transition into well-paying jobs and (ii) addressing the driver shortage.

The FMCSA also took steps to ensure driver availability and to enable new drivers to continue to receive valuable mentoring during the COVID-19 pandemic. In April 2020, the FMCSA issued a three-month waiver to allow truck drivers with commercial learners permits to operate without a licensed commercial driver in the front seat, provided the driver was still in the truck. This allowed the new drivers to continue to receive necessary additional training while enforcing social distancing.

To reduce regulatory barriers to drivers obtaining their CDL’s, the FMCSA proposed eliminating a federal rule prohibiting state CDL skills instructors from teaching and testing the same applicant. The proposal would also grant states discretion to allow qualified third-party trainers to conduct skills testing for the same person. Research commissioned by the Commercial Vehicle Training Association (“CVTA”) found that the nation’s economy suffers $1.5 billion in annual losses due to delays in driver skills testing. The FMCSA reported that the rule change would expedite the skills testing process, helping to reduce that loss. The CVTA noted the importance of allowing aspiring licensees the chance to take the skills test soon after training, stating that fewer delays help to ensure higher pass rates.

            In 2019, the FMCSA also entertained a petition from the National Association for the Deaf (“NAD”) to ease the rules for deaf and hard-of-hearing drivers. NAD contends that the hearing requirements were conceived at a time of misguided stereotypes about individuals with disabilities. It proposed ending the federal regulation requiring commercial motor vehicle drivers to pass a hearing exam as part of their medical evaluation and amending the requirement that deaf drivers be able to speak. NAD pointed to the fact that the FMCSA has granted five-year exemptions to the medical evaluation for more than 450 deaf drivers with good records. The petition faced strong opposition from the CVTA who argued that driving involves many tasks that require the ability to hear.

            Though the FMCSA appears to be clearing the way for more drivers, especially younger drivers, the implementation of the Entry-Level Driver Training rule (“ELDT”) has been delayed, possibly until February 2022. The rule, finalized in 2016, specifies standards for new driver Class A and Class B CDL training programs. The rule also requires training providers to upload driver-specific training certification information into the Training Provider Registry, and for state driver licensing agencies to confirm that CLD applicants have complied with ELDT requirements before taking a skills test. The FMCSA pointed to a lack of technological readiness by the states to implement the new system as the reason for the delay. However, some training providers note that the federal Training Provider Registry is not up and running either. This delay halts the implementation of new standards and professional-level curriculum available to all new drivers nationwide.

            One area of driver qualification where the FMCSA has not compromised is in its treatment of drug use. In the face of an overall increase in the use of marijuana and cannabidiol (“CBD”) products among American workers, the United States Department of Transportation (“DOT”) advised truck drivers to use CBD products at their own risk. Hemp, from which CBD oils and other products are derived, is now legal. However, marijuana remains a Schedule I drug not permitted for use by commercial drivers. Both contain levels of the psychoactive ingredient THC, but CBD product’s levels are usually much lower. In February 2020, the DOT issued guidance advising that the THC levels in CBD products are not monitored or regulated by the Food and Drug Administration and that certain CBD producers mislabel their product’s THC content level. CBD products containing more than 0.3% THC have been shown to result in positive marijuana drug tests for users. The DOT advised that drivers who test positive for marijuana will not be excused on the basis that they use CBD, and penalties for a positive drug test still apply.

The FMCSA has also taken a firm stance on the issue of human trafficking. On July 16, 2019, the FMCSA issued a final rule permanently banning the employment of commercial motor vehicle drivers who have been convicted of human trafficking. The Administration hopes that the rule will prove a strong and effective deterrent to this criminal activity.

For more information contact Tamara B. Goorevitz.

How the FMCSA’s New Crash Preventability Program Affects Motor Carrier’s BASIC Status

/in /by How the FMCSA’s New Crash Preventability Program Affects Motor Carrier’s BASIC Status

Over the course of the last few years, the Federal Motor Carrier Safety Administration (“FMSCA”) has engaged in a Crash Preventability Determination Program (“the Program”).  It was developed and implemented by FMSCA at the behest of stakeholders in the motor carrier industry who desired changes to how FMSCA calculated the safety risk posed by motor carriers. That program has now been made permanent.

Historically, the FMSCA calculated and or expressed the risk posed by a particular motor carrier through its Safety Measurement System (“SMS”), which uses safety performance information in the Behavior Analysis and Safety Improvement Categories (“BASICs”) to identify motor carriers that, when compared to others, have a high crash frequency that requires federal monitoring and or safety intervention.  The Program allows motor carriers to petition FMSCA to review reported crashes for a non-preventability finding that, if accepted, would prevent that crash from inflating their BASIC risk rating.

Here is how it works.  Motor carriers may only submit certain types of crashes to FMSCA for a review under the Program.  This is what is known as a “Request for Data Review” (“RDRs”). A motor carrier’s RDR must involve a crash that occurred on or after August 1, 2019.  Moreover, only the following crash types should be submitted as an RDR: (1) struck in the rear; (2) wrong direction or illegal turns; (3) parked or legally stopped; (4) under the influence; (5) medical issues, falling asleep, or distracted driving; (6) cargo/equipment/debris or infrastructure failure; (7) animal strike; (8) suicide; and (9) rare or unusual.  An RDR will not be rejected simply because FMSCA views the crash as more properly suited to a different category than how the motor carrier identified it at the time of the RDR’s submission.  However, the FMSCA will close the RDR if it determines that no category is applicable or if the crash occurred before August 1, 2019.   All RDRs must be accompanied by the Police Accident Report (“PAR”) that was generated as a result of the crash.  If a PAR is not available for the crash, an RDR cannot be submitted.  Other evidence, such as photographs, video, or court documents, may be submitted with the RDR, but FMSCA does not require motor carriers to provide this additional information.

Upon receipt of an RDR, the FMSCA will make an eligibility determination.  If the RDR involves one of the nine categories listed above, then the FMSCA will proceed with its review, which will culminate with FMCSA assigning a “Not Preventable,” “Preventable,” or “Undecided” finding to the crash.  These findings have the following meanings:

Not Preventable:  If a driver, who exercises normal judgment and foresight, could not have foreseen the possibility of the accident that in fact occurred, and could not have avoided it by taking steps within his/her control.

Preventable:  If a driver, who exercises normal judgment and foresight, could have foreseen the possibility of the accident that in fact occurred, and avoided it by taking steps within his/her control, which would not have risked causing another kind of mishap.  This includes when the driver or commercial motor vehicle was legally prohibited from operating at the time of the crash, including if the post-crash inspection report shows there was an out-of-service violation.

Undecided:  If the documentation submitted did not allow for a conclusive decision by reviewers.  This includes cases that are closed because the carrier did not provide additional information as requested.

The goal of the RDR is to obtain a “Non-Preventable” finding.  If the RDR is successful in that regard, then FMSCA will not use that RDR’s crash when calculating the carrier’s BASIC measure and percentile, which is a favorable result for motor carriers.  Consequently, it is this firm’s opinion that that motor carriers should submit RDRs for all eligible crashes.  A review of the data collected by FMSCA during its consideration of the Program bears this out.  For instance, FMSCA assigned a “Non-Preventable” finding for 94% of all RDRs submitted during the Program’s demonstration period between 2017 and 2019.  Consequently, even though FMSCA will continue to list all crashes on SMS, motor carriers have been able to correct their risk rating by submitting RDRs.

If, however, the RDR receives a “Preventable” finding, motor carriers can rest assured that this result will not be held against them in court should litigation ensue from the crash.  According to a Notice published in the Federal Register, “a crash preventability determination does not assign fault or legal liability for the crash.”  See Federal Register, Vol. 85, No. 88 (May 6, 2020).  Relatedly, federal law renders these determinations not admissible in a civil action for damages.  See 49 U.S.C. 504(f).

(f) No part of a report of an accident occurring in operations of a motor carrier, motor carrier of migrant workers, or motor private carrier and required by the Secretary, and no part of a report of an investigation of the accident made by the Secretary, may be admitted into evidence or used in a civil action for damages related to a matter mentioned in the report or investigation.

Thus, there appears to be little downside to submitting an RDR, this is particularly so since FMSCA further advises that an “Undecided” finding does not mean that the crash was preventable.

In conclusion, FMSCA has permanently adopted a program by which motor carriers may petition the government to review crashes that affect their risk assignment.  The Program has basic eligibility and documentation requirements that most crashes will meet, and its review process has a quick turnaround of sixty days.  It is, by all accounts, a favorable process for motor carriers that should be utilized to prevent misleadingly negative safety classifications.

Hours of Service Regulations: They’re on the Move Again

/in /by Hours of Service Regulations: They’re on the Move Again

The Federal Motor Carrier Safety Administration (“FMCSA”) has issued new rules intending to give drivers more flexibility with hours of service in their workdays while also improving safety for all motorists. According to a recent analysis from the American Transportation Research Institute, these new regulations will allow drivers to take “strategic periods of rest.” Four major changes to the Hours of Service (“HOS”) regulations went into effect on September 29, 2020:

  1. The short-haul exception is expanded to 150 air-miles and allows a 14-hour work shift to take place as part of the exception.
  2. The driving window during adverse driving conditions is expanded by up to an additional two hours.
  3. Drivers are required to take a break of at least 30 consecutive minutes after eight cumulative hours of driving time (instead of on-duty time). This new rule allows an on-duty/not-driving period to qualify as the required break.
  4. The sleeper berth exception is modified to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least seven hours of that period in the sleeper berth combined with a minimum off-duty period of at least two hours spent inside or outside the berth, provided the two periods total at least 10 hours (the former rule required drivers to divide a 10-hour off-duty period in a sleeper berth into eight hours of rest and two hours of non-driving time). When used together as specified, neither qualifying period counts against the 14-hour driving window.

The FMCSA published an Advanced Notice of Proposed Rulemaking in April 2019 and hosted five listening sessions nationwide. Between written public responses and statements gathered at the listening sessions, the FMCSA received more than 8,000 comments regarding the proposed HOS revisions. One overriding theme throughout the comments was a request that drivers be given more control over how they use their time.

One provision included in the August 2019 proposal that was not included in the final rule was a provision that would have paused a driver’s 14-hour driving window and allowed one off-duty break of at least 30 minutes but no more than three hours. The overall industry feedback was that the sleeper berth revision provided adequate flexibility, although most commenters suggested a 5-5 or 6-4 split rather than the final 7-3 split. Many drivers expressed that they thought a 30-minute break was too long, while others did not mind a required break but did not want to be told when to take the break, so allowing an on-duty, not driving period was supported by most drivers.

The FMCSA has added an “Educational Tool for Hours of Service” (“ETHOS”) to its website that allows drivers to create a sample record of duty log to make sure that they comply with the new regulations (ETHOS does not cover the 60/70 hour regulation). The FMCSA states that ETHOS is solely meant for educational purposes and that the data is not being recorded so that drivers can clear up any confusion arising from the new HOS changes without worrying about the sample logs being used for any other purpose.

ATRI’s White Paper: Understanding the Impact of Nuclear Verdicts on the Trucking Industry

/in /by ATRI’s White Paper: Understanding the Impact of Nuclear Verdicts on the Trucking Industry

In June 2020, the American Transportation Research Institute (“ATRI”) released an 80-page report summarizing its comprehensive research into large “nuclear verdicts” over the past 15 years. The study, “Understanding the Impact of Nuclear Verdicts on the Trucking Industry,” analyzes litigation data from over 600 cases between 2006 and 2019.   The data was collected from multiple sources in the industry, including a litigation database firm. In sum, the data reveals that jury verdicts against trucking companies are increasing at an alarming rate.

According to the study, in the first five years of the data (i.e., 2006-2009), there were only 26 cases with jury verdicts over $1M. From 2012 to 2019, there were nearly 300 cases with jury verdicts over $1M – a 335% increase. The number of verdicts greater than $1M but less than $2M increased by 300% in the same period. Further, the number of verdicts over $10M doubled in the last five years of the data.

ATRI’s research revealed that the average verdict between 2006 and 2019 was $3.16M, with a large standard deviation of $7.19M.  However, the average size of verdicts from 2010 to 2018 increased from $2,305,736 to $22,288,000 – a 967% increase.

While it is often argued that nuclear verdicts reflect real-world cost increases, the data shows that the verdict’s size has far exceeded standard inflation and healthcare cost increases. From 2010 to 2018, mean verdict awards increased 51.7% per year, in contrast to inflation and healthcare costs, which on average grew 1.7% and 2.9% per year, respectively.

In addition to data analysis, ATRI interviewed defense attorneys, plaintiff attorneys, insurance agency brokers, insurance executives, and underwriters. The interview subjects identified six categories which they deemed to influence large verdicts: 1) prevention; 2) crash-related details; 3) post-crash/pre-litigation stage; 4) litigation strategies; 5) unfavorable practices; and 6) additional factors.  The data analysis confirmed that the type of injury, number and type of parties involved, and even vehicle types had a statistically significant impact on verdicts.

Ultimately, ATRI concluded that a “comprehensive and multifaceted program” is required to reign in the nuclear verdict trend. Such a program must address state and federal litigation landscapes, modified approaches to trial preparation, new safety compliance standards, broader fraud investigations, and expanded strategy and information-sharing among the defense bar.