A Double-Edged Sword: The Defense of Trucking Claims in the Aftermath of the ELD Mandate
by Wayne S. Melnick, Parker M. Green and Matthew S. Grattan
On December 16, 2015, the FMCSA adopted regulations mandating the use of electronic logging devices (“ELDs”) to track hours-of-service. Now, more than a year later, uncertainty and confusion over the ELD mandate continues to permeate across large segments of the trucking industry. The ELD mandate is conceptually straightforward: any company that is currently required to keep paper records of duty status must adopt ELDs to track hours-of-service. Motor carriers have until December 18, 2017 to install and begin using certified ELDs to record their compliance with hours-of-service regulations.
As more trucking fleets implement ELDs across the country, motor carriers will start to accumulate vast amounts of easily accessible information on their drivers, commercial motor vehicles, and trucking operations. In some cases, ELDs will establish compliance with hours-of-service regulations and other relevant laws. The functionality of ELDs could also yield information critical to rebutting liability and damage claims. However, the ELD mandate cuts both ways in the defense of future trucking claims.
Many trucking companies lack the resources and skillset to properly manage the amount of information generated by ELDs, or they might be oblivious to their relevance in a future claim or litigation, leaving some vulnerable to potential consequences for spoliation of evidence. That could, in turn, raise questions as to the motor carrier’s duty to proactively investigate ELD information in its possession in order to avoid claims for negligent hiring, retention, supervision, and entrustment even before accidents occur.
The ELD mandate neither changes nor alters any of the restrictions that already apply to hours-of-service and driver duty status. Instead, the new regulations govern the method, format, and accessibility of information previously recorded in paper logs and records of duty status. The proliferation of ELDs and similar technology – commonly known as “Telematics” – will pose predictable and unique challenges to the defense of trucking claims. The identification of critical liability and evidentiary issues today might avoid certain pitfalls and complications in the litigation of trucking claims tomorrow.
I. ELD Mandate In A Nutshell
The FMCSA’s new regulations effectively replace paper logs by mandating the use of ELDs to track compliance with hours-of-service restrictions. See, generally, 49 C.F.R. §395, Subpt. B, App. A - “Functional Specifications for All Electronic Logging Devices.” ELDs are defined as any “device or technology that automatically records a driver’s driving time and facilitates the accurate recording of the driver’s hours of service, and that meets the requirements of subpart B of this part.” 49 C.F.R. §395.2 (2016). Stated another way, ELDs automatically and electronically record duty status and other aspects of the driver’s paper hours-of-service logs. Id. at §395.26(b) and §395, Subpt. B, App. A, ¶ 184.108.40.206 (“ELD data automatically recorded”).
In their simplest form, ELDs sync with a vehicle’s engine to capture power status, motion status, miles driven, and engine hours. Id. at §395, Subpt. B, App. A, ¶ 1.4. ELDs also monitor the engine to collect data on whether and when it is running, vehicle movement, miles driven, and duration of an engine’s operation over a given time period (hours). Id. at §395, Subpt. B., App. A, ¶ 4.3.1. A certified ELD must also allow drivers to manually enter certain data during the process of recording hours-of-service. Drivers are specifically required to use the ELD interface to input one of the following categories: (1) off duty, (2) sleeper berth, (3) driving, and (4) on duty not driving. Id. at §395.24(b).
As with the current regulations, the ELD mandate require drivers to submit their records of duty status to the motor carrier within 13 days of the 24-hour period to which each record pertains. Id. at §395.8. In response, motor carriers retain the record “for a period of not less than 6 months from the date of receipt.” Id. at §395.8(k). The new regulations further require the motor carrier to retain a “backup” copy of any information or data recorded by the ELDs operating in their fleet. Id. at §395.22(i).
II. Evidentiary Implications
Across all jurisdictions, spoliation generally refers to a party’s destruction or alteration of evidence. The precise definition of spoliation varies by jurisdiction, but it generally involves the destruction or alteration of evidence that is relevant to pending or anticipated litigation. See, e.g., West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (defining spoliation as “destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation”); Aaron v. Kroger Ltd. P’ship I, 2012 WL 78392, at *3 (E.D. Va. 2012) (explaining that spoliation occurs when a party destroys evidence relevant to pending litigation).
Determining what evidence is “relevant to the anticipated litigation” depends on the specific facts of each case in addition to the applicable substantive law in the venue. In regards to ELDs, even though the FMCSA’s mandate does not require the motor carrier to record a driver’s speed, braking information, acceleration, etc., a large number of the ELDs currently marketed throughout the transportation industry capture that type of information in one form or another, which often includes real-time data. Those datasets and types of information are almost universally relevant and necessary to personal injury and property damage claims that arise out of commercial vehicle collisions.
The safe assumption, therefore, is that the loss or destruction of ELD information will provide claimants with legitimate grounds for requesting an imposition of sanctions from the trial court. The degree of sanctions will vary between jurisdictions based on the controlling substantive law. See, e.g., R.A. Siegel Co. v. Bowen, 246 Ga. App. 177, 180 (2000) (sanctions include a rebuttable presumption the evidence would have been harmful to the spoliator, dismissal, or exclusion of testimony); Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 471 (Minn. App. 1997) (allowing sanctions if one party gains an evidentiary advantage over another by failing to preserve evidence); Coleman v. Eddy Potash, Inc., 120 N.M. 645, 649 (N.M. 1995) (recognizing the tort of intentional spoliation of evidence); Moskovitz v. Mt. Sinai Med. Ctr., 635 N.E.2d 331 (Ohio App. 1994) (spoliation may support an award of punitive damages in an underlying litigation).
To combat potential sanctions for spoliation, motor carriers must develop effective policies for the preservation of relevant documents and information. With the transition to ELDs and the significant amount of relevant data they yield, defense counsel should proactively confirm the reliability of the motor carrier’s electronic storage capabilities, and then ensure that retention of any relevant documents and information occurs in accordance with company policy, federal regulations, and any other controlling laws.
III. Liability Implications for Motor Carriers
The ELD mandate could provide motor carriers with large quantities of information (or easy access to) on an employee’s driving behavior, tendencies, timeliness, and various other factors relevant to safety and regulatory compliance. The duty of a motor carrier to proactively review this information and, if necessary, take remedial action is unclear. As such, the spike in available ELD information coupled with vague statutory responsibilities on the duty to review that information could present issues in future litigation. Defense counsel should be particularly aware of the potential impact of ELD information in defending a motor carrier against negligent hiring, retention, supervision, and entrustment claims.
Many jurisdictions follow the general rule that an employer’s admission of respondeat superior obviates the need for negligent retention, supervision, hiring, and entrustment claims. See e.g., Durben v. Am. Materials, Inc., 232 Ga. App. 750 (1998); Cole v. Alton, 567 F.Supp. 1084, 1086 (N.D. Miss. 1983). The rationale is that since respondeat superior establishes liability for the driver’s negligence, independent claims against the motor carrier are “merely duplicative” of the respondeat superior claim. Durben, 232 Ga. App. at 751. Nevertheless, some courts have applied the majority rule to still allow independent negligence claims to proceed against the employer where a valid claim for punitive damages exists. See, e.g., Sterner v. Titus Transp., LP, 2013 WL 6506591 at *3 (M.D. Pa. 2013); Wilson v. Image Flooring, LLC, 400 S.W.3d 386, 393 (Mo. Ct. App. 2013). The remaining jurisdictions allow claimants to assert claims of respondeat superior in addition to negligent entrustment, retention, supervision, and hiring. See, e.g., Fairshter v. American Nat’l Red Cross, 322 F.Supp.2d 646, 653-54 (E.D. Va. 2004); Quinonez on Behalf of Quinonez v. Andersen, 144 Ariz. 193 (1984); Lim v. Interstate System Steel Div., Inc., 435 N.W.2d 830 (Minn. App. 1989).
In the aftermath of the ELD Mandate, motor carriers will possess larger quantities of information that potentially reveal a driver’s disqualification or other violations at the time of the accident, e.g., hours-of-service violations. The question becomes: what duty does a motor carrier have to proactively review this data during annual reviews or when, say, it receives notice of an employee-driver’s potentially unsafe driving or violations? Currently, the FMCSA requires motor carriers to “consider any evidence that the driver has violated any applicable [federal safety regulations]” during the mandatory annual inquiry and review of a driver’s record. 49 C.F.R. §391.25(b). The “any evidence” standard could extend, arguably, to the consideration of ELD information that motor carriers will either possess or can easily access by virtue of the ELD mandate. If the duty to consider any evidence extends to ELD information, claimants could reasonably argue that a motor carrier was independently negligent in flouting a legal duty to review ELD data for violations or safety concerns.
In the alternative, ELD information can establish a driver’s lack of prior violations or unsafe driving practices, which would strengthen a motor carrier’s argument in support of any dispositive motions. Thus, ELDs can provide defense counsel with an excellent opportunity to show certain allegations are unsubstantiated and, if possible, pursue early resolution through a dispositive motion or settlement. ELD information may also allow claimants to undermine a defendant’s strongest defense theories with very little effort, though. In sum, ELD information can and will cut both ways, which will certainly require plaintiffs and defendants to closely scrutinize the evidence in future trucking litigation.
ELD information – both good and bad – will play a critical role in effectively defending transportation claims in the aftermath of the ELD mandate. The potential for spoliation of evidence is concerning based on the quantity of data available, which is often the case with preservation and retention of electronic information. If at all possible, defense counsel should try to overcome spoliation of ELD information with the “supporting documents” required under the FMCSRs. See, 49 C.F.R. §395.2 (“Supporting document means a document, in any medium . . . that can be used, as produced or with additional identifying information . . . to verify the accuracy of a driver’s record of duty status.”). Otherwise, the loss or destruction of ELD information could undermine a dispositive motion notwithstanding a majority of jurisdictions’ preference for summary judgment in favor of the motor carrier with respect to independent claims of negligence against the company.
Ultimately, the potential implications of the ELD mandate make it abundantly clear that proactive steps are necessary to avoid future headaches. Defense attorneys should work with trucking clients to implement effective procedures for preserving information that ELDs record on employee-drivers, which should go well beyond the FMCSA’s six month document retention requirements. Defense attorneys should also encourage trucking clients to take appropriate steps to properly investigate ELD information, possibly even proactively during annual reviews, and pursue corrective action if and when necessary. Otherwise, motor carriers could face exposure to future claims for negligent hiring, retention, supervision, and entrustment as substantive law adapts to current trucking technologies.
Wayne S. Melnick is a partner with Freeman, Mathis & Gary, LLP in Atlanta, Georgia. He has a broad based civil litigation practice and serves as the Vice-Chair of the firm’s transportation group. Wayne is panel counsel for some of the nation’s largest insurers of motor carriers, and is commonly called on to defend catastrophic transportation claims and cases across the country. He can be reached at [email protected].
Parker M. Green is an associate with Freeman, Mathis & Gary, LLP’s general liability section and transportation defense team. He has extensive experience defending motor carriers, CDL drivers, and transportation insurers against wrongful death, personal injury, and property damage claims throughout the country. Parker can be reached at [email protected].
Matthew S. Grattan is an associate in the business and complex litigation section of Freeman, Mathis & Gary, LLP’s general liability and transportation practice group. His practice focuses on the defense of various Georgia businesses in personal injury claims and contractual disputes. Matt can be reached at [email protected].