I. Introduction

Protocol for the administration of personal injury claims normally suggests that plaintiff=s counsel forego filing litigation until the client has either recovered,  or stabilized with permanent injuries,  medical costs have been quantified and the  negotiation process has been either explored or exhausted. The process often takes months to complete, depending upon the severity of the injury. While this methodology might be the most cost and judicially efficient in the case of passenger car collisions, it is ill advised in the instance of semi-tractor trailer claims. Many times, while the client is convalescing, valuable evidence is slipping away, being quietly destroyed in the normal course of business by the motor carrier.  The prudent measure is to file the litigation at once, taking all possible steps to preserve the evidence that is typically available from the either the motor carrier or the commercial motor vehicle itself.  

The available evidence in support of potential claims is diverse in the case of tractor trailers. The advent of computerized engines has changed the playing field, adding to plaintiff=s ability to reconstruct the collision with the recorded speed, engine rpm, braking and in some cases, even driving habits data of the commercial motor vehicle and its driver. On newer CMV=s, this information can be downloaded from the onboard computer by either manufacturer representatives, dealers or even the motor carrier. Possession of the tractor after any collision, then, is paramount to the preservation of this critical evidence.  

Furthermore, if the motor carrier has followed applicable  federal regulations which govern interstate commerce, plaintiff=s counsel will find yet another lode of demonstrable evidence in support of a number of potential claims. To this end, plaintiff=s counsel must become intricately familiar with the massive Federal Motor Carrier Safety Regulations (the AFMCSR@) or associate counsel who does know the regulatory scheme to not only gather the evidence, but to competently interpret the same as it relates to the potential claims.

Potential claims against the motor carrier include, in addition to the typical vicarious liability- negligence action, direct actions for negligent hiring, training and retention of drivers as well as negligent maintenance of both tractors or trailers. FMCSR seems to create a cause of action for aiding and abetting violations of the FMCSR as well.  ¹Counsel should be mindful of the standard for punitive damages in his or her home state as the evidence, either in support of or against,  is plentiful when discovery is promptly made. ²

FMCSR impose near strict liability upon the motor carrier for the negligent acts of the driver irrespective of the formal relationship by and between the carrier and the driver. The only requirement is that there was some type of contractual relationship between the driver and the carrier and that the commercial motor vehicle was carrying a load arranged by and for the authorized motor carrier. Initial discovery should be geared toward materials that will support a motion for partial summary judgment on vicarious liability.

To that end, initial discovery should target the:

(1) relationship between the driver and the authorized motor carrier;

(2) shipping point and destination point of the load;

(3) ownership of the tractor and trailer, which in many cases are not the same. 

FMCSR apply to interstate commerce. To win the advantage of those regulations,  attention must be directed to the shipping point and destination of the load. Bills of lading and other shipping documents, plus the driver=s log book, if properly maintained,  should provide evidence in this regard. Of course, if state lines were crossed the issue is moot. However, when the carrier=s business is limited to intrastate activity, a question might arise as to the applicability of federal regulations. In the case of intrastate commerce, the DOT has relinquished power to the states. Predictably, there is ample case law which expands the concept into whether a load is a Acontinuation@ of goods in interstate commerce. If, in fact, the load was a continuation of interstate commerce, then the federal law may very well apply. Also, astute counsel will determine if the state where the collision occurred has adopted the FMCSR as the state regulation or whether the state has its own regulations independent of the federal regulatory scheme.³

Once the applicable regulations are identified, the relationship of the driver to the motor carrier must be determined. In the case of employee drivers, attention should be directed to any Adriver=s manual@ that may have been adopted by the motor carrier and any written agreements between the carrier and the employee driver. In the instance of employee drivers, written agreements seldom exist. However, when independent drivers are involved, FMCSR require a written agreement. 

Motor carriers have for years Aleased@ tractors from independent carriers providing the trailers and the loads. The driver typically owns the tractor having financed the same through a local bank or manufacturer=s credit organization. The leasing practice initially developed in response to the former Interstate Commerce Commission=s adoption of a expansive regulatory scheme designed to put safer trucks, and drivers, on the  interstate highways. Because of the expense of inspections, driver qualifications and liability for collisions, originally born by the motor carriers, companies leased trucks from independent carriers in attempt to shift the burden and expense, and liability,  to the driver/owner of the tractor.⁴  In many cases, these drivers had no insurance and their maintenance practices were substandard. The ICC, in turn, adopted 49 C.F.R. Section 379.12 which requires the lessee-motor carrier to assume Aexclusive control@ and complete Afinancial responsibility@ for the operation of any leased commercial motor vehicle^.5

The regulatory language imposes an affirmative duty upon the motor carrier to control the equipment and correspondingly, the driver. Hence, the regulatory language encompasses the traditional test of agency, being the right and actual control of the agent driver, thereby causing the relationship to satisfy the vicarious liability hurdle under common law. In fact, in most federal circuits, the rule has become a matter of federal law, stated to be the Astatutory employee@ rule, the operation of which imposes vicarious liability as a matter of law. ⁶

FMCSR require that any lessee-lessor relationship must be in writing. ⁷  Additionally, a copy of the lease must be carried on board in the truck. Finally, the FMCSR further require the motor carrier to provide not less than $750,000.00 in insurance coverage for the leased tractor. ⁸  Accordingly, discovery should be calculated to discover the applicable leasing documents, any leasing rules or manual for independent contractor drivers adopted by the carrier, any and all financing agreements for the truck and  trailer, payment schedules and history on the promissory note, insurance agreements and declaration pages (commonly referred to as an AMSC-90 Endorsement@), and the entity agreements and associated documents between the driver and any corporate shell owner that might exist.

III. Negligent Hiring, Training and Retention

FMCSR require authorized motor carriers to Aqualify@ drivers prior to their employment. The regulations do not discriminate between independent contractor or employee drivers. ⁹  Other FMCSR support the Atotal control@ concept set forth in 379.12. To be Aqualified@, drivers must complete an application for employment on a form provided by the carrier and therein provide a list of all employers for the previous ten years and all truck driving jobs for the prior three years. In response, carriers are required to perform background checks and to maintain permanent records of their efforts. Background checks are to include a review of past driving record for both CDL and non-CDL licensees. ¹⁰ Drivers must pass a drug test and complete a routine physical prior to taking their first load. Additionally, drivers must be administered a Adriving test@ to ensure competence behind the wheel. The written, verified results of the driver qualification process must be maintained by the motor carrier. Industry commonly refers to this as the ADQ@ file.

Currently, the industry shortage of professional truck drivers has caused many companies to unconsciously, and at times purposefully, relax standards of both hiring and retention of profitable drivers. Hence, discovery of the driver=s personnel file and driver qualification file is a must. Once obtained, the files must be compared to federal regulations to determine compliance. Deficient driver qualification files are the lynchpin of any negligent hiring and retention action.

Discovery should further be directed toward the driver logbooks and the carrier=s auditing process of those logs. FMCSR require each driver to maintain a standard Alogbook@ of all activities behind the wheel (on duty status) and at rest (off duty status). There are strict and specific rules regarding hours of service for each driver set forth in the FMCSR. The rules address not only maximum hours per day, but maximum hours per groups of days. Under these rules, a driver can typically only drive 3900 miles per week.

Theoretically speaking, a driver=s logbook should not only indicate where the driver was on a certain day and time, but how many total miles he or she has driven and the days and times of rest.  Drivers are required to transmit the logbooks to the motor carrier.  Responsible carriers then audit the logbooks for hours of service violations. Naturally, drivers can falsify, as many do, the logbooks to meet the federal minimum hours of service rules. However, the reason for falsified logbooks, in many cases, is to violate the hours of service rules, thereby allowing the driver to drive more miles which necessarily translates into additional profits for the carrier and income for the driver. Therefore, in addition to logbooks, counsel should seek any and all disbursement and income records for that driver. The total disbursements for mileage should then be reconciled to the  maximum number of hours that a theoretical driver could have lawfully driven over a course of time. Repetitive violations of the hours of service rules by a driver clearly substantiate both a claim for driver fatigue and for negligent retention of that driver by the motor carrier. Logbooks, reconciled to disbursements,  can be instrumental in the case for fatigued drivers. Add into this mix an independent driver who is two truck payments behind and a prima facie case for punitive damages has developed.

IV. Satellite and ECM Data

Most newer trucks are equipped with an electronic control module (AECM@) or a vehicle control module(AVCM@). Both VCM=s and ECM=s are directly analogous to the  Ablack box@ found on most airplanes. ECM=s record data such as engine RPM, engine temperatures and shifting data. VCM=s record items such as speed and braking data. When speed or braking are an issue, ECM or VCM data can be the difference in speculation and the truth. Most ECM and VCM data must be downloaded on manufacturer databases and is typically maintained for only 6o days. On many newer trucks, there is also a computer database which maintains a permanent maintenance log for the tractor. Again, manufacturer programs must be used to retrieve this often crucial data from the truck=s onboard system. If the tractor was destroyed, carriers often take steps to junk the vehicle prior to the discovery of this crucial evidence.

In some newer model trucks there is additional technology known as VORAD. VORAD and its counterparts actually record up to thirty days of data that would indicate if a driver has been following too closely, turning too sharply or shifting lanes too closely to other vehicles. VORAD data can typically only be read, or downloaded,  by qualified manufacturer representatives.

Finally, most up to date carriers have some type of on board satellite communications system located in each tractor. These systems will typically send automated data Apings@ every hour that record the driver's location and the driver's speed. Drivers can also send typewritten communications about their location, ETA on load destination and in some cases, collision data. The data is typically stored in a mainframe computer at the carriers home office for 30 to 60 days. In many cases, the satellite data, which does not lie, will not match with the driver logbooks concerning hours of service and driver location.

Finally, many drivers now carry cellular telephone and cameras. Records and photos in and around the collision time should be obtained. Excited utterances made by drivers in and around collisions can be the difference in many cases.