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Archive for the ‘Transportation’ Category

Federal Mandate for Electronic Logging Devices Upheld in U.S. Court of Appeals’ Ruling

Posted on: November 3rd, 2016

semitrucksBy: Parker M. Green

The Federal Motor Carrier Safety Administration’s mandate requiring most commercial truck drivers to use electronic logging devices (ELD) survived its strongest legal challenge to date when the 7th Circuit Court of Appeals voted unanimously to uphold the regulation.  As a result, the transportation industry still faces a December 18, 2017 compliance deadline with the ELD mandate.  In order to comply, any driver who currently records their duty status with paper logs must install and adopt ELDs to record hours-of-service.

The 7th Circuit’s decision comes after the Owner Operator Independent Drivers Association (“OOIDA”) filed a petition seeking to have the FMCSA’s mandate for installation and use of ELDs overturned.  OOIDA presented five arguments for vacating the mandate: (1) ELDs will not record enough information automatically; (2) the ELD mandate fails to sufficiently protect drivers from harassment; (3) the benefits of the ELD mandate will not outweigh its costs; (4) the ELD mandate fails to protect the confidentiality of personal data collected by ELDs; and (5) the mandate violates the Fourth Amendment prohibition against unreasonable searches and seizures, i.e., a commercial driver’s right to privacy.  The 7th Circuit rejected OOIDA’s arguments and upheld the FMCSA’s mandate in its entirety.

As to the argument that the FMCSA’s new mandate violates commercial drivers’ rights under the Fourth Amendment, the 7th Circuit specifically held the commercial trucking industry is a “pervasively regulated industry,” and the ELD mandate (1) was informed by a substantial government interest, (2) warrantless inspections were necessary to further the regulatory scheme of the proposed regulations, and (3) the inspection program permitted under the ELD mandate provided a constitutionally adequate substitute for a warrant.  See, New York v. Burger, 482 U.S. 692, 702-03 (1987).

As such, the 7th Circuit determined the ELD mandate is not “arbitrary or capricious, nor does it violate the Fourth Amendment,” and upheld the FMCSA’s proposed regulations.  OOIDA still has the option to appeal the 7th Circuit’s ruling to the United States Supreme Court.  However, in light of the 7th Circuit’s opinion (click here), the FMCSA’s mandate for ELDs appears as if it is here to stay.  That means nearly all transportation providers have until December 18, 2017 to begin using qualified ELDs to record their compliance with the FMCSA’s hours-of-service regulations.  As the compliance deadline draws closer, transportation providers and insurers must also prepare for the liability and evidentiary implications of ELDs proliferating through the industry.

Several members of Freeman Mathis & Gary, LLP’s transportation law practice group published an article in the Georgia Defense Lawyers Association’s 2016 Law Journal introducing many of the potential legal implications to the defense of personal injury claims. The law journal article is available at the following address:  2016 GDLA Law Journal. On November 10, 2016, this author will also participate in a panel discussion on the ELD mandate during the Georgia Motor Trucking Association’s annual Fleet Expo.  For additional information on the panel discussion, please refer to the GMTA’s announcement on the Fleet Expo.

U.S. DOT Issues Guidelines for Self-Driving Vehicles

Posted on: September 27th, 2016

Red Sport carBy: Wes Jackson

On Tuesday, the U.S. Department of Transportation ushered in the long-anticipated future of transportation with guidelines for “autonomous vehicles,” or self-driving cars (available here). The policy guidance focuses primarily on “highly automated vehicles,” (“HAVs”) or those that have automated systems that actually monitor the driving environment as opposed to merely conducting some part of the driving task (such as a cruise control function). The DOT’s executive summary of the policy states that the policy “sets out an ambitious approach to accelerate the HAV revolution.”

One of the main takeaways from the guidelines is the “15 Point Safety Assessment” for manufacturers, which covers traditional automobile safety considerations like “Crashworthiness” along with new considerations unique to driverless or highly automated vehicles, such as “Object and Event Detection and Response” and “Post-Crash Behavior.” The Safety Assessment also includes an “Ethical Considerations” assessment, which will address the ethical implications that arise from programming a vehicle to make choices, for example, between the safety of its occupants or another car’s occupants. Aside from these safety guidelines, the policy also introduces a Model State Policy which, if widely adopted by the states, will lead to uniform nation-wide regulations of HAVs and avoid state-level regulatory inconsistencies that could delay widespread utilization of new automated vehicle technology.

It may go without saying, but the promise of driverless vehicles will be the biggest change in personal transportation since the invention of the motor carriage itself. But the new technology will not only change how (or if) we drive—it will also transform the existing legal framework for assigning liability when accidents occur. While it may be years before driverless cars hit the road, auto insurers, commercial carriers, and other industry participants should begin assessing how HAVs will impact the industry and steer their businesses accordingly.

Driver Risk Management Systems (DRMs) May Be Double-Edged Sword in Trucking Accident Litigation

Posted on: September 2nd, 2016

Semi Truck In Motion. Speeding Truck on the Highway. Trucking Business Concept

By: Barry Brownstein

What if you could watch a trucking accident that is the subject of complex litigation that could result in millions of dollars in damages? What if you could watch the driver’s conduct minutes or seconds before the accident occurred?

Video cameras and Driver Risk Management Systems (“DRMs”) have been installed in almost a half-million trucks around the United States. Major trucking companies, like Swift and Volpe Express Inc., have installed cameras in thousands of trucks to protect themselves from accident litigation. Now, with the installation of DRMs, cameras not only record what is in front of the moving truck, but also the driver controlling the truck in motion. Most cameras used in trucks are triggered by sudden changes in speed or other movement that may be an accident in progress. Some systems can even notify a driver when they are driving dangerously or burning too much fuel. Also, most cameras record in roughly ten-second increments after being triggered. By recording both the road and the driver, cameras and DRMs have become very useful for lawyers who represent transportation companies in complex and costly trucking accident litigation.

Cameras and DRMs allow an attorney and the transportation company to know what may have caused an accident that is the subject of litigation. The front-facing cameras can record swerving, illegal turns and lane changes, rate of speed, and the conduct of other drivers on the road. The driver-facing cameras, or DRMs, record the driver’s behavior, which can display signs of intoxication, sleeping, texting, and other dangerous driving habits that lead to accidents. With accident and driver footage, the lawyer and client have more information available to evaluate the case. Most importantly, the footage may show evidence of who is at fault, which is crucial in defending transportation companies from false accusations of dangerous driving. Studies also show that when drivers know they are being monitored, they avoid bad driving habits, which in turn could reduce the transportation company’s exposure to liability.

Being able to watch a recording of an accident and the truck driver involved as the accident occurred may seem too good to be true, and it could be. The benefits of installing truck camera systems could change the way accident claims are litigated, but the camera systems also raise other concerns. First, the installation of recording devices in long-haul rucks raises privacy concerns. Truck drivers spend a large part of their lives in their trucks. The drivers eat, sleep and talk to friends and family on the phone in their trucks. Some drivers believe the cameras are more for spying on the transportation employees rather than monitoring the safety of the driving. While DRMs, like Lytx and SmartDrive, claim that the cameras are not constantly recording and never viewed live, drivers are still skeptical about wide-spread system installations. In addition, there are concerns as to what exactly may be used while representing a client and who gets to view the recordings.

The concerns associated with truck cameras are similar to those involved in taxi cab cameras that have been being discussed since 2010. It should be noted that how taxi cab videos are used in litigation is highly regulated. Laws regulate how long an in-car camera can record once it is triggered. Also, all jurisdictions require that the recordings be given to the opposing party’s counsel during discovery, which could lead an injured party to file further claims against the transportation company. These are concerns that may affect the use of cameras and DRMs in long-haul trucks if the trend continues to grow.

How Fast is Too Fast? Federal Agencies Propose Speed Limiter Rule for Heavy Vehicles

Posted on: September 1st, 2016

A bright, sharp double exposure of a southwest highway & a speed limit sign

By: Wesley C. Jackson

Federal regulators have proposed that heavy commercial vehicles be equipped with speed-limiting devices to cap the vehicles’ speed. The National Highway Traffic Safety Administration (NHTSA) and the Federal Motor Carrier Safety Administration (FMCSA) proposed the new rule on August 26, 2016.

The proposed rule would require that new commercial vehicles weighing over 26,000 pounds be equipped with the limiting device. The agencies have not yet selected a specific speed limit, but have analyzed the benefits of setting the maximum speed at 60, 65, and 68 miles per hour. While the proposal in its current form would only apply to new vehicles, the agencies are also considering whether to require all commercial trucks on the road to be retrofitted with a limiting device.

The rule could potentially give rise to new claims against carriers, ranging from negligence per se for failing to install an approved limiter to punitive damages for willfully disengaging a limiter. And even if the rule does not require carriers to retrofit their fleets, jurors may begin to see limiters as an industry safety standard as they become more prevalent. It is difficult to forecast exactly how the new rule will effect trucking litigation, but carriers should nevertheless expect some changes on the horizon should the proposed rule become final. The full proposal is available here.

Hair Follicle Testing for Truck Drivers

Posted on: June 15th, 2016

Marc Blog PostBy:  Marc Bardack and Matthew Grattan

In December 2015, President Obama signed The Fixing America’s Surface Transportation Act, a law allowing motor carriers to test a driver’s hair follicles during pre-employment and random drug screens.  Although some companies, including J.B. Hunt and Schneider National, already test their drivers using this method, DOT regulations currently require these tests to be used in conjunction with traditional urine samples.  Under the new law, motor carriers who choose to use hair follicles for drug testing must do so in accordance with scientific and technical guidelines issued by the Department of Health and Human Services.

Supporters of the law, including the American Trucking Association, note that hair follicle testing provides a more accurate analysis than traditional methods, preventing impaired drivers who could potentially pass a urine test from continuing to operate a commercial vehicle.  Hair follicle testing is also able to detect drug use over a 90-day period compared with only a 2-3 day period for urine tests and is purportedly better at revealing chronic or multiple drug use.

Groups opposing the law, including the AFL-CIO and several smaller carriers, say hair follicle testing can produce “false positive” results, leading to the potential elimination of drivers in an industry already struggling to attract and retain drivers.  With hair follicle testing, a driver can test positive based on exposure to drugs rather than ingestion.  Additionally, because the tests alert to very low concentrations, even some over-the-counter medications can mimic illegal drugs.

There is also a racial component to hair follicle testing.  Some studies have shown that darker and more porous hair retains drugs at greater rates than lighter hair.  This could lead to more positive test results for African-American than Caucasians, exposing motor carriers to claims of racial bias.

Regardless of the perceived benefits and negatives of hair follicle testing, companies planning to use this form of drug testing need to ensure their methods comply with the guidelines issued by the Department of Health and Human Services, set to be released in late 2016.  They also need to adopt policies and procedures to ensure that hair tests are evaluated accurately and consistently, so as to avoid, as much as possible, false positives and the risk of racial bias.