Perhaps hard-wired somewhere in an attorney’s genetic makeup is the common gene that compels each of us to be as comprehensive as possible with our pleadings and discovery requests. What listserv member has not had his inbox flooded with “please forward me a copy, too” emails whenever a fellow member offers to share a complaint or a set of interrogatories?
APITLA, AAJ and various continuing education seminars frequently provide beneficial sample pleadings, requests for admissions, interrogatories and requests for production of documents to propound on the defendant common carrier. While our firm generally tailors discovery requests to the underlying facts in each case, we maintain a file of exemplar discovery (as I imagine most other trucking attorneys also do) and we regularly review and update our discovery in an effort to be as complete as possible. This practice should be as automatic as sending a well-drafted spoliation letter to the trucking company and its insurer the same day each trucking accident victim executes your professional services contract or shortly thereafter.
Too many times plaintiff’s attorneys handling cases against common carriers end the discovery inquiry after the defendants respond to the initial requests and a deposition or two is taken. This abbreviated discovery path is often a byproduct of not having the experience of working up a trucking case and knowing what to make of the sometimes voluminous documents produced.
A frequent question we receive from lawyers either working their first case against a common carrier or who do not regularly handle trucking cases is: “I’ve sent my discovery and I’ve received a pile of documents from the trucking company. Now what do I do?”
All trucking attorneys recognize the attention is in the details and often it is not the documents initially produced that are important, but recognizing what documents were not produced, as invariably those will be the ones that help develop the theme of the case and “tell the story.” Taking that aside, this article is the first in a series of practice tips designed to assist those preparing a case against a common carrier.
Hours of Service of Drivers- Short-haul Operations
Start with the Federal Motor Carrier Safety Regulations and familiarize yourself with them. There is no other way around it and the regulations are beneficial.
Pursuant to 49 C.F.R. § 395.3, motor carriers shall not permit or require a driver of a property-carrying commercial motor vehicle to drive in violation of the maximum hours of service. The motor carrier shall require every driver used by the motor carrier to record his/her duty status for each twenty-four (24) hour period and the driver shall record his duty status as required by 49 C.F.R. § 395.8.
However, a driver is generally exempt from the requirements of Section 395.8 if the driver operates within a one hundred mile radius of the normal work reporting location; returns to the work reporting location and is released from work within twelve consecutive hours; has at least ten consecutive hours off duty separating each twelve hours on duty and does not exceed eleven hours maximum driving time following ten consecutive hours off duty. 49 C.F.R. § 395.1(e).
The short haul exemption found in 49 C.F.R. § 395.1(e)(1)(v) exempts drivers from keeping a record of duty status in compliance with 49 C.F.R. § 395.8, provided the driver keeps mandatory time record information, which includes:
- The time the driver reports for duty each day
- The total number of hours the driver is on duty each day
- The time the driver is released from duty each day
- The total time for the preceding seven days in accordance with § 395.8(j)(2) for drivers used for the first time or intermittently
If a driver does not maintain and retain the time records with the mandatory information, he is required to keep a record of duty status (logs). 49 C.F.R. § 395.1.
Trucking companies will generally produce in discovery the driver’s logs or time records for the day of the collision and at least a week leading up to the collision without too much resistance. (However, always request and insist on the production of all driver’s logs and time records in existence.) Let’s face it though, more often than not professional drivers will know how to log and rarely will we find in black and white flagrant and obvious hours of service violations on a driver’s record of duty status. The short-haul operator should not have difficulty maintaining time records that illustrate compliance with 49 C.F.R. § 395.1(e).
In Georgia, we frequently come across short-haul operators with no driver’s logs and only time sheets. In just about every case the time records will appear to be in compliance with 49 C.F.R. § 395.1(e)(1)(v). The question becomes, how do you verify whether the short-haul driver is actually compliant with the hours of service regulations? The answer lies in one of my favorite regulations, 49 C.F.R. § 392.6. This section states: no motor carrier shall schedule a run nor permit nor require the operation of any commercial vehicle between points in such period of time as would necessitate the commercial vehicle being operated as speeds greater than those prescribed by the jurisdictions in or through which the commercial vehicle is being operated.
Remember, a driver cannot operate a commercial motor vehicle until he has inspected and is satisfied the motor vehicle is in safe operating condition. 49 C.F.R. § 396.13. The driver must prepare a report in writing at the completion of each day’s work. 49 C.F.R. § 396.11. Vehicle inspection reports contain valuable information, such as the vehicle’s mileage. By analyzing the short-haul operator’s timecards to determine how many hours he was on duty each day and by knowing how many miles the commercial motor vehicle was driven each day, one can easily determine whether the operator is in compliance with the hours of service regulations or the speed limit (i.e., whether or not the driver is driving over the maximum allowable hours each day or if he is making trips that are incapable of being made in compliance with the speed limit).
We recently had a case where we were successful in implementing this methodology and we were able to prove that the “professional driver” was making runs that were incapable of being made in compliance with the speed limit and hours of service limitations for not only the week leading up to the collision with our client, but also for over half of his employment period with the trucking company. Needless to say, this type of evidence is instrumental in supporting negligent supervision and retention claims, in addition to claims for punitive damages.
In areas where a 55 mph speed limit is in effect, trips of 450-500 miles are open to question, and runs of 500 miles or more are considered
incapable of being made in compliance with the speed limit and hours of service limitation. 49 C.F.R. § 392.6, Interpretation 1.