Truck Accident Cases are not the Same as Car Accident CasesJanuary 1, 1900
A trucking accident case can be extremely complex and challenging. Without a team of experts on your side, you may feel as if you are running blindfolded through a mine field. Fortunately, there are a number of professional organizations with seasoned experts who are available to assist victims with these cases. One of those organizations is the Association of Plaintiff Interstate Trucking Lawyers of America (APITLA) www.apitlamerica.com. APITLA is a national organization of plaintiffs’ attorneys who joined together to help eliminate unsafe and illegal interstate trucking practices. Edward (Ted) Bassett, the head of Mirick O’Connell’s Personal Injury Practice, recently completed his term as President of APITLA. At the present time Ted continues to serve on APITLA’s Executive Board of Trustees and on the APITLA National Advisory Board. Ted has been a frequent speaker at APITLA conferences throughout the country and a frequent contributor to the “Lawyers Log Book,” a quarterly publication for interstate trucking attorneys. Ted is also the author of “An Introduction To Interstate Trucking Litigation in Massachusetts” published by Massachusetts Continuing Legal Education, Inc. (“MCLE”) in the Massachusetts Motor Vehicle Torts Liability and Litigation treatise.
Accidents involving large trucks and heavy commercial vehicles are among the most serious and deadly in the United States. An automobile does not stand a chance against an eighteen-wheel tractor-trailer weighing up to 80,000 lbs. (twenty-five to thirty times the weight of most passenger cars). The most recent statistics reveal that approximately 4,000 people are killed each year in truck accidents and another 100,000 people are injured. Large trucks are nearly twice as likely as automobiles to be involved in a fatal accident. The National Highway Transportation Safety Administration (NHTSA) estimates that up to 40 percent of accidents involving large trucks may be the result of driver fatigue and up to 30 percent of all large trucks on the highway exceed allowable weight limits.
Sources of information on truck safety include National Safety Transportation Administration Traffic Safety Facts, the Insurance Institute for Highway Safety, the Federal Motor Carrier Safety Administration, and the Association of Plaintiff Interstate Trucking Lawyers of America (APITLA).
Accidents involving large trucks are not simply personal injury cases involving large vehicles. Specific statutes and regulations govern the safe operation of heavy commercial vehicles, and civil cases involving heavy commercial vehicles involve unique and complex issues that require a thorough understanding of the federal regulations. Edward J. Hershewe, Personal Injury and Wrongful Death Caused By Trucking Accidents (APITLA Oct. 24, 2008).
Federal Motor Carrier Safety Regulations
The Federal Motor Carrier Safety Administration (FMCSA) of the U.S. Department of Transportation is charged with reducing crashes, fatalities, and injuries involving large trucks and buses. The FMCSA’s primary tool for improving highway safety is the Federal Motor Carrier Safety Regulations (FMCSR). The FMCSR are contained in Title 49, Subtitle B, Chapter III, Subchapter B of the Code of Federal Regulations. See also 49 C.F.R. pts. 40, 303, 325.
These regulations are constantly changing. A good way to keep up to date on the regulations is a subscription to The Federal Motor Carrier Safety Regulations Pocketbook, which is updated monthly and published by J.J. Keller & Associates, Inc., Neenah, Wisconsin.
These regulations govern all “commercial motor vehicles” engaged in “interstate commerce.” In general, a “commercial motor vehicle” is a vehicle that is used as part of a business and fits any of the following descriptions:
weighs 10,001 pounds or more,
is designed or used to transport sixteen or more passengers (including the driver) not for compensation,
is designed or used to transport nine or more passengers (including the driver) for compensation, or
is involved in interstate or intrastate commerce and is transporting hazardous materials in a quantity requiring placards.
There are two kinds of commercial motor vehicles: interstate carriers and intrastate carriers. An interstate carrier operates across state borders, while an intrastate carrier operates entirely within one state.
Interstate motor carriers are required to register with the Secretary of Transportation, 49 U.S.C. § 13901, and each interstate carrier must designate a resident agent for each state in which it is authorized to operate, 49 C.F.R. §§ 366.3–.4(a).
If you are injured in a trucking accident, you can obtain the identity of the motor carrier’s Massachusetts registered agent by going online here. The FMCSA possesses extensive information that is not posted here; the FMCSA FOIA Web site is available here.
The FMCSR govern all interstate carriers. Furthermore, many states, including Massachusetts, have adopted most, if not all, of the FMCSR for intrastate carriers. In Massachusetts, intrastate carriers are subject to
49 C.F.R. pt. 382 (Controlled Substances and Alcohol Use and Testing);
49 C.F.R. pt. 390 (General Applicability and Definitions);
49 C.F.R. pt. 391 (Qualification of Drivers);
49 C.F.R. pt. 392 (Operating Rules for Commercial Drivers);
49 C.F.R. pt. 393 (Safety Equipment, Brakes and Equipment);
49 C.F.R. pt. 395 (Hours of Service);
49 C.F.R. pt. 396 (Inspection, Repair and Maintenance); and
49 C.F.R. pt. 397 (Transportation of Hazardous Materials).
Specific exceptions and limitations are expressly set forth in 540 C.M.R. § 14.04.
Part 382 of Title 49 of the Code of Federal Regulations covers “Controlled Substances and Alcohol Use and Testing.” This part mandates preemployment testing for drugs and permits preemployment testing for alcohol. See 49 C.F.R. § 382.301. Postaccident testing is required in the following situations:
any person dies in an accident;
the driver receives a traffic citation and any person is injured in the accident; or
the driver receives a citation and any vehicle is towed from the accident scene.
See 49 C.F.R. § 382.303.
In addition, a trucking company must conduct random drug and alcohol testing, and drivers can be tested if the employer has “reasonable suspicion” that the driver is using drugs or alcohol. See 49 C.F.R. §§ 382.305, 382.307. Under the federal regulations a trucking company is not allowed to permit a driver to operate a vehicle if the driver has “any measured alcohol concentration or detected presence of alcohol.” 49 C.F.R. § 392.5. Therefore, even if a truck driver may not be “intoxicated” under G.L. c. 90, § 24 (a blood alcohol level of .08), you should always request any postaccident alcohol test results because presence of any alcohol may show a clear violation of the federal safety regulations. These regulations mandate strict record retention policies for up to five years. 49 C.F.R. § 382.401. The regulations specify that, “in personal injury litigation,” the trucking company can release the results of the drug and alcohol tests if a court determines that a postaccident test result is relevant to determining whether the driver was negligent. See 49 C.F.R. § 40.323.
If an interstate carrier is operating in Massachusetts, the driver and trucking company are also subject to 49 C.F.R. pt. 383 (Commercial Driver’s License (CDL) Standards) and 49 C.F.R. pt. 387 (Minimum Levels of Insurance). (In 1990, Massachusetts came into line with 49 C.F.R. pt. 383 by adopting the Uniform Operation of Commercial Motor Vehicles Act, G.L. c. 90F.) Under 49 C.F.R. § 387.9, an interstate carrier that operates a vehicle weighing 10,001 pounds or more must carry minimum insurance of $750,000. Commercial carriers hauling “hazardous materials” must carry between $1 million and $5 million. 49 C.F.R. § 387.9.
The FMCSR mandate that interstate truck drivers be at least twenty-one years old and able to read and speak the English language fluently. 49 C.F.R. § 391.11(b)(1)–(2). However, an intrastate truck driver in Massachusetts can obtain a commercial driver’s license (CDL) at age eighteen, and the intrastate driver in Massachusetts does not need to fluently read and speak English. See 540 C.M.R. § 14.04.
The Federal Highway Administration is required to perform annual reviews of every interstate carrier and give it a safety rating. See 49 C.F.R. § 385.9. The FMCSA notifies each carrier of the rating and provides the carrier with a list of deficiencies that the carrier must correct. See 49 C.F.R. § 385.11. A carrier rated “unsatisfactory” is prohibited from operating its vehicles. 49 C.F.R. § 385.13(a). Safety ratings for interstate carriers may be found here.