Helpful Information

DEPOSITIONS IN TRUCKING CASES

I.  Introduction

Effective depositions in truck crash cases can only take place after a thorough review of source materials, facts, and a plan. Ideally, the practitioner will have retained an industry expert, accident reconstructionist, mechanic and/or other needed experts as soon as possible after the accident to inspect and evaluate the vehicle and facts of the accident. These experts should be extensively debriefed before any depositions are taken in the case.

In addition to a timely and thorough factual investigation, deposition preparation must include a review of all pertinent records and documents. Ideally, documents should be collected by way of records depositions taken at the trucking company offices whenever possible. All records pertaining to the driver, the company, and the crash itself should be reviewed prior to depositions.

II.  Source Materials

  1. Federal Motor Carrier Safety Regulations (FMCSR)

    A review of the Federal Motor Carrier Safety Regulations (FMCSR) will lead you to a number of relevant documents. The FMCSR requires that certain documents be compiled and maintained regarding drivers, vehicles and training programs. The table of the contents of the FMCSR indicates the scope of the regulatory scheme.

    The Federal Motor Carrier Safety Regulations are contained in Subchapter B, Chapter III, Subtitle B of the Code of Federal Regulations Title 49 - Transportation.
       

    Page

    *PART 40 -

    Procedure for Transportation Workplace
    Drug and Alcohol Testing Programs

    13

    PART 325 -

    Compliance With Interstate Motor Carrier
    Noise Emission Standards

    83

    PART 355 -

    Compatibility of State Laws and Regulations
    Affecting Interstate Motor Carrier Operations

    91

    PART 356 -

    Motor Carrier Routing Regulations

    95

    PART 360 -

    Fees for Motor Carrier Registration and Insurance

    97

    PART 365 -

    Rules Governing Applications for Operating Authority

    101

    PART 366 -

    Designation of Process Agent by Motor Carriers
    and Brokers

    110

    PART 367 -

    Standards for Registration with States

    111

    PART 368 -

    Applications for Certificates of Registration by
    Foreign Motor Carriers and Foreign Motor
    Private Carriers Under 49 U.S.C. 13902(c)

    115

    PART 370 -

    Principles and Practices for the Investigation
    and Voluntary Disposition of Loss and
    Damage Claims and Processing Salvage

    117

    PART 371 -

    Brokers of Property

    119

    PART 372 -

    Exemptions, Commercial Zones, and Terminal Areas

    120

    PART 373 -

    Receipts and Bills

    130

    PART 374 -

    Passenger Carrier Regulations

    132

    PART 375 -

    Transportation of Household Goods in
    Interstate or Foreign Commerce

    137

    PART 376 -

    Lease and Interchange of Vehicles

    146

    PART 377 -

    Payment of Transportation Charges

    151

    PART 378 -

    Procedures Governing the Processing,
    Investigation, and Disposition of Over-Charge,
    Duplicate Payment, or Over collection Claims

    155

    PART 379 -

    Preservation of Records

    157

    PART 381 -

    Waivers, Exemptions, and Pilot Programs

    163

    PART 382 -

    Controlled Substance and Alcohol Use and Testing

    169

    PART 383 -

    Commercial Driver's License Standards;
    Requirements And Penalties

    183

    PART 384 -

    State Compliance With Commercial
    Driver's License Program

    201

    PART 385 -

    Safety Fitness Procedures

    207

    PART 386 -

    Rules of Practice for Motor Carrier Safety and
    Hazardous Material Proceedings

    219

    PART 387 -

    Minimum Levels of Financial Responsibility for
    Motor Carriers

    237

    PART 388 -

    Cooperative Agreements with States

    255

    PART 389 -

    Rule making Procedures - Federal Motor Carrier
    Safety Regulations

    257

    PART 390 -

    General

    261

    PART 391 -

    Qualifications of Drivers

    271

    PART 392 -

    Driving of Commercial Motor Vehicles

    295

    PART 393 -

    Parts and Accessories Necessary
    for Safe Operation

    301

    PART 394 -

    [Removed and reserved]

    345

    PART 395 -

    Hours of Service of Drivers

    345

    PART 396 -

    Inspection, Repair, and Maintenance

    353

    PART 397 -

    Transportation of Hazardous Materials; Driving
    and Parking Rules

    359

    PART 398 -

    Transportation of Migrant Workers

    371

    PART 399 -

    Employee Safety and Health Standards

    377

    APPENDIX A -

    [Removed and reserved]

    379

    APPENDIX B -

    Special Agents

    379

    APPENDIX C -

    [Removed and reserved]

    379

    APPENDIX D -

    [Removed and reserved]

    379

    APPENDIX E -

    [Removed and reserved]

    379

    APPENDIX F -

    Commercial Zones

    380

    APPENDIX G -

    Minimum Periodic Inspection Standards

    392
     

    DOT Interpretations

    397
     

    Medical Regulatory Criteria

    475

    *Part 40 is contained in Subtitle A of Title 49.

    The FMCSR is not the only source of valuable information with which you should be familiar.

  2. Driver's Guide to Federal Motor Carrier Safety Regulations

    The introduction to the Driver's Guide to the FMCSRs sums up its purpose:

    Often, the words and phrases used in the Federal Motor Carrier Safety Regulations (FMCSRs) are hard to understand, making it difficult for drivers and their employers to comply with the regulations. The Drivers Guide to the FMCSRs is a plain English explanation of the motor carrier safety regulations drivers and their employer must follow.

    This book is meant to be used as a companion to the Federal Motor Carrier Safety Regulations Pocketbook. It summarizes many of the main points of the FMCSRs, covering the topics that affect drivers.

    Driver's Guide to the FMCSRs, 2nd Edition, J. J. Keller & Associates, Inc., p. 1 (1998).

  3. The Truck Driver's Handbook

    The introduction to the Truck Driver's Handbook stresses the relationship between the truck driver and the public:

    Your job, the future of your company, and the future of the trucking industry all depend on good public relations Every company and its employees must accept the basic responsibility to act in ways which do not endanger or inconvenience the public....

    Truck Driver Handbook, J. J. Keller & Associates, Inc. p. 1-2 (1998).

    The Handbook offers tips and suggestions to drivers concerning such varied topics as personal appearance, courtesy, first aid training, going through towns and off duty activities. This Handbook can provide good background and practical information for the deposition of a driver.

  4. Driver Training Manuals

    Keller's The Driver Training Manual: A Practical Guide to Tractor-Trailer Operations, begins with this basic, straightforward and insightful passage:

    Driving a truck is a tough job. It isn't something just anyone can jump into a cab and do. It takes training. And, it takes practice Remember, this manual alone won't give you everything you need to learn to drive a big rig. It's a tool to be used by the student and instructor together. Learning to be a professional driver is a lifetime process. It begins with a good instructor with a solid program and the information presented in this manual.

    What truck driver wouldn't agree with the first sentence of that passage? What instructor wouldn't agree with the rest?

  5. Preventable Accidents Manual

    The Preventable Accident Manual defines a preventable accident as one wherein the driver and/or the carrier failed to act in a reasonably expected manner to prevent it. Commercial Vehicle Preventable Accident Manual at page 1. Although the manual disclaims any attempt to set criteria to determine whether a given level of performance is, in fact, reasonable, the implication is to the contrary. Indeed, in Section A1, "Accident Preventability Evaluations," the "Objective" of the suggested countermeasure for "excessive incidence of preventable accidents in fleet" is: "To reduce motor carrier fleet accidents rates by establishing a company standard for safe driving." (Emphasis added.)

All of these manuals and documents may be very helpful in preparing for the full, complete, and effective deposition of a driver, truck company manager or supervisor, or employee in your case. Knowledge of the regulations, however, is most effective when used to ferret out and use mandated documents to support your theories of the case.

III.  Documents

The most common causes of truck crashes are negligent hiring, substance issues, driver fatigue, and poor maintenance and/or vehicle inspections. Each of these causes are covered by the FMCSR. Some form of documentation is required for each

  1. Driver Qualifications

    Part 391 of the FMCSR controls the qualifications and disqualification of drivers. Generally speaking, a person is qualified to operate a commercial vehicle if he/she:

    1. is 21 or older;

    2. can read and speak English well enough to talk to the public, understand road signs and prepare reports and records;

    3. by reason of experience, training or both, safely operate the vehicle;

    4. can pass the physical;

    5. has a valid commercial license issued only by one state or jurisdiction;

    6. has furnished list of violations or certificate to his/her employer;

    7. is not disqualified for any reason listed in 391.15; and

    8. has successfully complete a driver's road test and been issued a certificate.

    Id. at 391.11.

    The employer is required to compile and maintain a Driver Qualification File. 391.51. The Qualification File should be reviewed prior to depositions. Documents that must be maintained in the file, all of which may trigger examination points, include:

    1. application for employment;

    2. written record showing each past employer and state agency contacted and their response regarding the driver's employment in the preceding three years;

    3. certificate of road test;

    4. response of each state agency to annual driving record inquiry;

    5. note of annual review of driver's driving record;

    6. list of violations of laws and ordinances;

    7. medical examiner's certificate;

    8. letter regarding any waiver granted regarding a physical disqualification.

    The file should be maintained as long as the driver is employed.

    A prospective driver must also be physically qualified to drive. A person generally is not physically qualified to drive if he/she has lost a foot, leg, hand, or arm. He/she must have no impairments of hands or fingers which interfere with grasping. A driver cannot have an established medical history or diagnosis of insulin dependent diabetes mellitus; myocardial infarction or other coronary-related diseases; severe respiratory dysfunction; epilepsy; high blood pressure, rheumatic, arthritic, orthopaedic, muscular, or vascular diseases that would interfere with his/her ability to drive; or mental or nervous organic or functional disease or psychiatric disorder. Their visual acuity must be at least 20/40 or corrected to 20/40.

    The presence or absence of these medical issues must be documented in the Medical Examination Report for Commercial Driver Fitness Determination found in 391.43 of the FMCSR.

  2. Alcohol and Substance Abuse and Testing

    Federal regulations related to the use of controlled substances and alcohol and testing are found at part 382 of the Federal Motor Carrier Safety Regulations. Generally, "the purpose of this part is to establish programs designed to help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by drivers of commercial motor vehicles." Section 382.101, FMCSR.

    The use of alcohol is prohibited and "an employer that knows that a driver is using alcohol while performing safety-sensitive functions shall not permit a driver to perform or continue to perform those safety-sensitive functions" Section 382.205. Drivers cannot report for duty if they have a blood alcohol concentration of 0.04 or greater. Safety-sensitive functions are defined as, "[a]ll time from the time a driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work." They include inspecting equipment, time at the driving controls of a commercial motor vehicle in operation, resting in a sleeper berth, loading or unloading the vehicle or supervising or assisting in the loading or unloading of a vehicle, or repairing or remaining in attendance with a disabled vehicle. Section 382.107.

    With some exceptions, all employers (domestic, foreign, large and small) were required to implement alcohol and drug testing programs between 1995 and 1997. Section 382.115. Prospective drivers are required to submit to a pre-employment alcohol and substance abuse test. Section 382.301. The results of this test are documented and maintained in the driver's Qualification File. A prospective driver is exempt from the test if they have previously undergone a DOT test within the previous six months and the employer insures that no other or prior employer has knowledge of a violation of the alcohol misuse rule.

    Drivers are also required to take a post-accident test as soon as practical after an occurrence pursuant to the following chart:

    Type of Accident Involved

    Citation Issued to
    the CMV Driver

    Test Must Be
    Performed
    By Employer

    i. Human fatality

    Yes
    No

    Yes
    Yes

    ii. Bodily injury with immediate
    medical treatment away from scene

    Yes
    No

    Yes
    No

    iii. Disabling damage to any motor
    vehicle requiring tow away

    Yes
    No

    Yes
    No

     

    Employers are required to check with the driver's former employers about alcohol and controlled substance abuse issues pursuant to a driver's written authorization. They must inquire as to whether there were any alcohol tests with a result greater than 0.04, verify positive controlled substance test results, and refusals to be tested. This check is documented and maintained in the driver's Qualification File.

  3. Hours of Service of Drivers

    Time truly is money in the trucking industry. Truckers are often paid by the mile or the load; therefore, if they are not driving, they are not making any money. The profit motive often encourages drivers to drive too long and companies to shortcut vehicle maintenance and repairs.

    This is often a fertile area for examination of any truck driver or employer. This section describes in detail the time limitations placed on a driver's ability to operate a vehicle. Parts of this segment of the regulations have been updated effective January 4, 2004. In general, Section 395.3 allows drivers to drive 11 hours instead of the previous 10 hours, but they are limited to 14 hours in a duty period. Each duty period must begin with at least 10 hours off duty rather than 8 as under the old regulation. A driver cannot drive after having been on duty 60 hours in any 7 consecutive days or 70 hours in any 8 consecutive days and, in order to return to duty, they then must have been off duty at least 34 consecutive hours.

    Truck drivers must document every 24 hours of their on and off duty time, location in a "logbook." Section 395.8 discusses the information that must be contained in the logbook. The employer must keep the logbook and all supporting documents for six months from the date of receipt. The driver must keep a copy of each logbook page for the previous seven consecutive days. Section 395.8.

    Whenever there is any hint or suspicion of a violation of the Hours of Service, the logbook should be thoroughly reviewed. The logbook must be viewed as a whole rather than as a single entry for the day of the accident. Sometimes there are patterns of violations. In some cases, examination of an entire week or two of log entries may show that the driver could not have been where he/she says they were at the times they say they were there. It may be necessary to send an anti-spoliation letter to the truck company to make sure that it is not "lost" or "misplaced."

IV.  Summary

Preparation for depositions in a truck crash case may be detailed and painstaking, but it can be the key to success or failure. The regulations are detailed and long. The documents may be voluminous, however, the key to the case may be hidden in them.

After a thorough review of the regulations and documents, you may be able to formulate the 20 depositions that will make the defense lawyer's heart stop.

The Sly James Firm serves clients throughout the midwest, primarily in the states of Missouri, Kansas, Illinois, Arkansas, Nebraska, Iowa, Minnesota and many other states.