Understanding the Impact of Nuclear Verdicts on the Trucking Industry

The American Transportation Research Institute recently released comprehensive research that confirms that large verdicts against trucking fleets are increasing dramatically, both in number and in size of awards. ATRI’s research is partially based on a newly created trucking litigation database that provides detailed information on 600 cases between 2006 and 2019. In the first five years of the data, there were 26 cases over $1 million, and in the last five years of the data, there were nearly 300 cases. The number of verdicts over $10 million nearly doubled in that time.
In response to arguments that nuclear verdicts reflect real-world cost increases, the research documents that from 2010 to 2018, the size of verdict awards grew 51.7 percent annually at the same time that standard inflation grew 1.7 percent annually and healthcare costs grew 2.9 percent annually.
The research also surveyed and interviewed dozens of defense and plaintiff attorneys as well as insurance and motor carrier experts, and generated a qualitative analysis for why the litigation landscape has changed, recommendations for modifying pre-trial preparations, litigation strategies and mediation approaches, and how large verdict awards impact both safety and insurance.
At 80+ pages, ATRI’s report is a data-rich analysis with important findings that motor carriers, their defense attorneys and their insurers can implement to mitigate the frequency and size of large verdicts.
Pre-Crash Actions by Motor Carriers are Critical
• Both attorney bars emphasized that crash avoidance is everything and that strictly adhering to safety and operational policies is essential to staying out of court and/or reducing award sizes.
• Almost any failure to adhere to Federal Motor Carrier Safety Regulations (FMCSRs) or company safety policies will be the focus of plaintiff arguments.
• From a litigation standpoint, motor carriers should consider FMCSRs as minimum standards that can and should be exceeded. The ability of defense attorneys to document carrier or driver safety activities that exceed FMCSRs carries great weight with juries.
Litigation Preparation is – and should be – Both Complex and Costly
• Risk Assessments must be thorough and objective. Case vulnerabilities and potential liabilities must be acknowledged, and vetted against realistic financial damage projections.
• The ultimate strategy-driving question internally posed by most plaintiff attorneys and successful defense attorneys is: “what operational, safety or training factors could have prevented the crash in the first place?”
• Experience matters. Both defense and plaintiff attorney bars noted that attorneys inexperienced in trucking litigation are harmful to all parties.
When Mediation and Settling Makes Sense
• There was general agreement that mediation and settlements are missed opportunities, particularly by the defense when they do not believe that negligence by the carrier and/or driver exists.
• If mediation and settlements are pursued, initial offers should be realistic and equitable. Multiple plaintiff attorneys describe the frustration and consequence of initial “low-ball”

FMCSA has published new Hours of Service Rules

WASHINGTON – The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) today published a final rule updating hours of service (HOS) rules to increase safety on America’s roadways by updating existing regulations for commercial motor vehicle (CMV) drivers.  

 

“America’s truckers are doing a heroic job keeping our supply chains open during this unprecedented time and these rules will provide them greater flexibility to keep America moving,” said U.S. Transportation Secretary Elaine L. Chao.

 

“The Department of Transportation and the Trump Administration listened directly to the concerns of truckers seeking rules that are safer and have more flexibility—and we have acted. These updated hours of service rules are based on the thousands of comments we received from the American people. These reforms will improve safety on America’s roadways and strengthen the nation’s motor carrier industry,” said FMCSA Acting Administrator Jim Mullen. 

 

First adopted in 1937, FMCSA’s hours of service rules specify the permitted operating hours of commercial drivers. In 2018, FMCSA authored an Advanced Notice of Proposed Rulemaking (ANPRM) to receive public comment on portions of the HOS rules to alleviate unnecessary burdens placed on drivers while maintaining safety on our nation’s highways and roads.  Subsequently, in August 2019, the Agency published a detailed proposed rule which received an additional 2,800 public comments. 

 

Based on the detailed public comments and input from the American people, FMCSA’s final rule on hours of service offers four key revisions to the existing HOS rules:

 

  • The Agency will increase safety and flexibility for the 30-minute break rule by requiring a break after 8 hours of consecutive driving and allowing the break to be satisfied by a driver using on-duty, not driving status, rather than off-duty status.

 

  • The Agency will modify the sleeper-berth exception to allow drivers to split their required 10 hours off duty into two periods: an 8/2 split, or a 7/3 split—with neither period counting against the driver’s 14‑hour driving window.

 

  • The Agency will modify the adverse driving conditions exception by extending by two hours the maximum window during which driving is permitted.

 

  • The Agency will change the short-haul exception available to certain commercial drivers by lengthening the drivers’ maximum on‑duty period from 12 to 14 hours and extending the distance limit within which the driver may operate from 100 air miles to 150 air miles.

FMCSA’s final rule is crafted to improve safety on the nation’s roadways. The rule changes do not increase driving time and will continue to prevent CMV operators from driving for more than eight consecutive hours without at least a 30-minute break.

 

In addition, FMCSA’s rule modernizing hours of service regulations is estimated to provide nearly $274 million in annualized cost savings for the U.S. economy and American consumers. The trucking industry is a key component of the national economy, employing more than seven million people and moving 70 percent of the nation’s domestic freight.

 

The new hours of service rule will have an implementation date of 120 days after publication in the Federal Register. 

 

The complete final rule is available here: https://www.fmcsa.dot.gov/regulations/hours-service/hours-service-drivers-final-rule

 

 

 

The FMCSA announces the start of the Crash Preventability Determination Program (CPDP).  Under this program, if you have an eligible crash that occurred on or after August 1, 2019, you may submit a Request for Data Review (RDR) with the required police accident report and other supporting documents, photos, or videos through the Agency’s DataQswebsite.

On July 27, 2017, FMCSA announced a Crash Preventability Demonstration Program to evaluate the preventability of eight categories of crashes through submissions of Requests for Data Review to its national data correction system known as DataQs.  On August 5, 2019, based on experiences with the demonstration program, FMCSA proposed a new CPDP with a streamlined process.  Based on comments received in response to the August 2019 proposal, FMCSA established the CPDP which will expand the types of eligible crashes, modify the Safety Measurement System to exclude crashes with not preventable determinations from the prioritization algorithm and note the not preventable determinations in the Pre-Employment Screening Program. 

The following crash types are eligible for participation in the program:

Struck in the Rear type of crash when the CMV was struck:

  • in the rear; or
  • on the side at the rear.

Wrong Direction or Illegal Turns type of crash when the CMV was struck:

  • by a motorist driving in the wrong direction; or
  • by another motorist in a crash when a driver was operating in the wrong direction; or
  • by a vehicle that was making a U-turn or illegal turn.

Parked or Legally Stopped type of crash when the CMV was struck:

  • while legally stopped at a traffic control device (e.g., stop sign, red light or yield); or while parked, including while the vehicle was unattended.

Failure of the other vehicle to Stop type of crash when the CMV was struck:

  • by a vehicle that did not stop or slow in traffic; or
  • by a vehicle that failed to stop at a traffic control device.

Under the Influence type of crash when the CMV was struck:

  • by an individual under the influence (or related violation, such as operating while intoxicated), according to the legal standard of the jurisdiction where the crash occurred; or
  • by another motorist in a crash where an individual was under the influence (or related violation such as operating while intoxicated), according to the legal standard of the jurisdiction where the crash occurred.

Medical Issues, Falling Asleep or Distracted Driving type of crash when the CMV was struck:

  • by a driver who experienced a medical issue which contributed to the crash; or
  • by a driver who admitted falling asleep or admitted distracted driving (e.g., cellphone, GPS, passengers, other).

Cargo/Equipment/Debris or Infrastructure Failure type of crash when the CMV:

  • was struck by cargo, equipment or debris (e.g., fallen rock, fallen trees, unidentifiable items in the road); or crash was a result of an infrastructure failure.

Animal Strike type of crash when the CMV:

  • struck an animal

Suicide type of crash when the CMV:

  • struck an individual committing or attempting to commit suicide

Rare or Unusual type of crash when the CMV:

  • Was involved in a crash type that seldom occurs and does not meet another eligible crash type (e.g., being struck by an airplane or skydiver or being struck by a deceased driver).

 For more information on the Crash Preventability Determination Program, please visit:

For information on the previous Demonstration Program, please visit:

Crash Preventability Demonstration Program

CDC Statement on Self-Quarantine Guidance for Greater New York City Transportation and Delivery Workers

When we issued the self-quarantining guidance for greater New York City residents leaving this area, it was out of an abundance of caution to help protect U.S. areas with lower levels of COVID-19 spread. In line with our recommendations for other essential critical infrastructure workers, this guidance does not apply to critical transportation and delivery workers who are desperately needed for New York residents to continue their daily lives and respond to the COVID-19 outbreak.

Truck drivers and other people driving into the city to deliver needed supplies should stay in their vehicles as much as possible as supplies are loaded and unloaded, avoid being within 6 feet of others as much as possible when they exit their vehicles, and move to electronic receipts if possible. If these drivers need to spend the night in the greater New York City area, they should stay in their hotel rooms or sleeper cab, when available, to the extent possible and continue to practice social distancing. Drivers who take these precautions should not need to self-quarantine when they leave the greater New York area, unless self-quarantine is recommended by state or local officials for all residents in the areas where they live.

FMCSA just released an additional round of Emergency Declaration Frequently Asked Questions, covering important questions such as the inclusion of feed under the exemption and other products. 

https://www.fmcsa.dot.gov/emergency/expanded-emergency-declaration-under-49-cfr-ss-39023-no-2020-002-relating-covid-19

Frequently Asked Questions Related to the FMCSA Emergency Declaration Part 2: 03/25/2020

Note: This guidance document does not have the force and effect of law and is not meant to bind the public in any way. This guidance is intended only to provide clarity regarding existing requirements under the law.

Is wood pulp covered under the expanded emergency declaration?

Wood pulp is covered if it is being used as a precursor to one of the essential items listed in the exemption as follows: (1) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19; (2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants or (3) food, paper products and other groceries for emergency restocking of distribution centers or stores;

Are the raw materials used to manufacture bleach, disinfectants, hand sanitizers and similar items covered under the expanded emergency declaration?

Yes, these items and their precursors are covered as “supplies necessary for community safety, sanitation and community prevention of. . .COVID 19.”

Does the Declaration cover packaging for food — for example, produce containers?

Yes, packaging is covered as a precursor necessary to the production and transportation of products covered under the emergency exemption.

Are feed and fertilizer covered under the emergency declaration?

Yes, both are covered as precursors to essential items.

Is pet food covered under the emergency declaration?

No, pet food is not covered.

The emergency declaration states that after completed work under the declaration and returning to normal operations, a commercial vehicle driver must take 10 hours off. What if there is nowhere at the location for the driver to park?

The driver may proceed to the nearest reasonable, safe location to obtain the required 10 hours of rest.

Is the time spent driving to pick up a truck regulated as on duty time?

No. Time spent travelling to work in a personal vehicle does not meet the definition of on duty time in 49 CFR 395.2.

 

A few have requested a template of a letter/notice for drivers to carry in their cabs that spells out “Truck Drivers have been designated as essential critical infrastructure workers by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency”.

Be advised, the use of this or any other similar type letter is NOT required anywhere, but it may come in handy for a driver especially when dealing with law enforcement personnel not overly familiar with industry practices and trying to enforce something like a local “shelter-in-place” declaration. Again, this is not required by any jurisdiction and it is not a “Get of jail free” type card either.

Feel free to use but be sure to emphasize that this is just an explanation of the industry’s status under the CISA guidance. Keep in mind also, the CISA Guidance is not law so, as best they can, companies and drivers need to work together to keep their drivers aware of the rules, regulations, declarations of jurisdictions in which the vehicle will be traveling. 

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Two very important documents were completed last night relating to CDLs and Medical Cards as well as a PHMSA notice relating to HM Training. Please see below for description and links. The documents are also attached for easy reference.  

 

Enforcement Notice on Expiring CDLs 

https://www.fmcsa.dot.gov/emergency/enforcement-notice-expiring-cdls-32420

This Notice of Enforcement Policy, effective from March 24, 2020 to June 30, 2020, provides needed relief from specified FMCSRs for CLP holders, CDL holders, and non-CDL drivers and motor carriers using those drivers. This Notice of Enforcement Policy applies to all CLP holders, CDL holders, and non-CDL drivers whose license was issued for less than the maximum period established by 49 CFR 383.25 and 383.73 and was valid on February 29, 2020 and expired on or after March 1, 2020.

 

Waiver for States, CDL Holders, CLP Holders, and Interstate Drivers Operating Commercial Motor Vehicles

https://www.fmcsa.dot.gov/emergency/fmcsa-cdl-waiver-32420

 

The waiver is effective until June 30, 2020 and provides important relief resulting from situations where many CDL and CLP holders are unable to renew their CDLs and CLPs and are unable to provide medical certificates to their State Driver Licensing Agencies. In addition, many medical providers nationwide have canceled regularly scheduled appointments to dedicate resources to the COVID-19 response. As a result, drivers are unable to obtain appointments for physical examinations with medical examiners.

 

PHMSA Notice of Enforcement Policy Relating to HM Training

https://www.phmsa.dot.gov/news/phmsa-enforcement-policy-notice-regarding-hazardous-materials-training

PHMSA has provided there will not take enforcement action taken against any HM employer and/or HM employee unable to provide the required “recurrent training” during the Covid-19 pandemic. This policy was coordinated across the Department and applies to FMCSA and all modes. It does not apply to initial training, or the need to have a new HM employee work under the supervision of a trained HM employee until they can get their initial training. 

 

Emergency Declarations Page

https://www.fmcsa.dot.gov/emergency/expanded-emergency-declaration-under-49-cfr-ss-39023-no-2020-002-relating-covid-19

March 23, 2020
This guidance document provides clarity to DOT-regulated employers, employees, and service
agents on conducting DOT drug-and-alcohol testing given concerns about the Coronavirus
Disease 2019 (COVID-19). We, as a Nation, are facing an unprecedented public health
emergency that is straining medical resources and altering aspects of American life, including the
workplace. The Nation’s transportation industries, which are not immune to the impacts and
disruptions resulting from the spread of COVID-19 in the United States, are playing a vital role
in mitigating the effects of COVID-19.
DOT is committed to maintaining public safety while providing maximum flexibility to allow
transportation industries to conduct their operations safely and efficiently during this period of
national emergency.
The below guidance on compliance with the DOT and modal drug and alcohol testing programs
apply during this period of national emergency.

DOT_Guidance_on_Compliance_with_Drug_and_Alcohol_Testing_Regulations