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Commercial Trucking Claims
by Michael W. McNee
Table of Contents:
- Introduction
- State Statutes and Regulations
- Federal Statutes and Regulations
- Discovery Issues
- Insurance Coverage Issues
The wide variety of state and federal statutes and regulations that apply to commercial motor vehicles in intrastate and interstate carriage will be outlined in these materials. While the federal statutes do not necessarily have any immediate and direct effect upon negligence claims in Minnesota, the new federal agency in charge of motor carrier safety will have rule making authority that will ultimately affect Minnesota claims handling. Presently, the new Federal Motor Carrier Safety Administration (FMCSA) is holding hearings to change the hours of service of truck drivers. In addition, drug and alcohol screening rules may be changed in the foreseeable future as well. For the attorney handling tort and negligence claims involving commercial motor vehicles, the ICC Termination Act of 1995, Pub.L.104-88, 109 STAT. 803, December 29, 1995, 49 U.S.C. § 13101 et. seq. went virtually unnoticed. The insurance requirements for motor carriers remain virtually unchanged but under a new section, 49 U.S.C. § 13906; and, statutory provisions regarding leasing and loading practices were retained in 49 U.S.C. § 14102 and § 14103.
However, the recent Motor Carrier Safety Improvement Act of 1999, Pub.L.106-159,113 STAT.1748, December 9, 1999, 49 U.S.C. § 101 et. seq. which creates the Federal Motor Carrier Safety Administration may prove to have a more dramatic effect on Minnesota claims and discovery. The MCSIA will improve data and record requirements, collection and reporting, as well as providing more detailed information on crash causation. Since the express purpose of MCSIA is to reduce the number and severity of large truck involved crashes through more inspections and stronger enforcement measures, there will be considerably more information at the disposal of everyone involved in the claims process. This ultimately means more discovery for those of us handling these cases. A knowledge of the interplay between federal and state statutes and regulations will become even more important in the future.
These materials will provide a brief introduction to these federal and state regulations. They should be considered more of a road map than an effort at analysis. The confusing array of state and federal regulations can best be put into context by considering the basic purpose of the regulations deals with each of the following:
- The driver;
- The motor carrier;
- The truck or commercial motor vehicle;
- The operating rules;
- Accident reporting; and,
- Insurance coverage to protect the public.
- Federal Motor Carrier Safety Administration: www.fmcsa.dot.gov/
- MN DOT: www.dot.state.mn.us/
- J.J. Keller & Associates, Inc.: www.jjkeller.com
- American Trucking Association: www.truckline.com
- CRASH (Citizens for Reliable and Safe Highways): www.trucksafety.org/
Minnesota's starting point is the Traffic Regulation Act, Chapter 169 of Minnesota statutes. Minn. Stat. § 169.025 reads as follows:
169.025. Application of motor carrier rulesSection 169.67 has detailed requirements for brakes.
Notwithstanding any provision of this chapter other than section 169.67, a vehicle, driver, or carrier that is subject to a motor carrier safety rule adopted under section 221.031 or 221.605 shall comply with the more stringent or additional requirement imposed by that motor carrier safety rule.
Minn. Stat. § 221.031 applies to intrastate commerce, while § 221.605 applies to interstate carriers. Since the Minnesota statute refers to requiring compliance with 49 C.F.R., parts 390-398, a table of those sections follows:
390 Federal Motor Carrier Safety Regulations; GeneralWhile there may occasionally be a pre-emption issue, it should be noted that 49 C.F.R. § 355.25 prohibits any state from having any law or regulation relating to safety and interstate commerce which is incompatible with the Federal Motor Carrier Safety Regulations. For the Minnesota state rules on motor carrier safety with the various federal rules incorporated by reference, see Minn. Rules Chapter 8850.
391 Qualifications of Drivers
392 Driving of Commercial Motor Vehicles
393 Parts and Accessories Necessary for Safe Operation
394 [Reserved]
395 Hours of Service of Drivers
396 Inspection, Repair, and Maintenance
397 Transportation of Hazardous Materials; Driving and
Parking Rules
398 Transportation of Migrant Workers
Minnesota statutes also require vehicle inspections on both a daily and annual basis in Minn. Stats. § 169.781 and § 169.782. Comparison should be made with respect to the federal regulation, 49 C.F.R. § 396.
3. FEDERAL STATUTES AND REGULATIONS
The Motor Carrier Safety Improvement Act of 1999 went into effect on January 1, 2000. The purposes of the Act are to:
- Establish a Federal Motor Carrier Safety Administration; and
- Reduce the number and severity of large-truck involved crashes by improving safety.
Electronic control modules and other onboard computers, the so-called black boxes or event recorders, are not required in the Act. However, the devices are the wave of the future and may ultimately be required.
As per other changes, the Federal Motor Carrier Safety Administration is already conducting hearings on hours of service regulations for truck drivers who are now allowed to drive 10 hours continuously before taking a mandated rest break pursuant to 49 C.F.R. § 395.3. The emphasis that is being placed on inspections and qualified safe drivers will create more data available with respect to safety fitness of motor carriers, the safety of commercial vehicles and qualifications for drivers.
While the standard of care in a negligence case for a truck driver remains that of reasonable care, the knowledge and skill level required in order to obtain and retain any CDL (commercial driver's license) probably becomes a part of the reasonable care equation. For example, 49 C.F.R. § 390.3(e) requires motor carrier-employers to be knowledgeable and to comply with the motor carrier safety regulations, as well as to instruct drivers and employees with respect to all applicable regulations. Subpart G to 49 C.F.R. § 383 relating to commercial driver's license standards sets forth required knowledge and skills. The general requirements under 49 C.F.R. § 383.110 are that all drivers shall have knowledge and skills necessary to operate a commercial motor vehicle safely. The knowledge required in 49 C.F.R. § 383.111 provides a laundry list of areas which includes visual search methods, night operation, extreme driving conditions, hazard perceptions, space management, emergency maneuvers and other skills. The required skills that must be demonstrated for safe driving are provided in 49 C.F.R. § 383.113. The FMCSA has not yet made any changes to these particular motor carrier safety regulations.
A table of contents of the current federal motor safety regulations is attached as an appendix for easy reference, however, these sections can be readily reached on the website of the Federal Motor Carrier Safety Administration.
4. DISCOVERY ISSUES
While it will not always be necessary to have every available document with respect to either a driver or the truck, the following list of documents may be needed:
- The lease or contractor operating agreement under Minnesota Rules or 49 C.F.R. § 376.12;
- The driver qualification file required under 49 C.F.R. § 391.51with motor vehicle record, road test record and medical examiner's certificate of physical qualifications;
- Drug and alcohol testing results. 49 C.F.R. § 382 relates to controlled substances and alcohol use and testing. Currently, there is a proposal before the federal DOT to revise the drug and alcohol testing procedures under 49 C.F.R. § 40. Under both state and federal law, the blood alcohol limit is 0.04 (Minn. Stat. § 169.1211 and 49 C.F.R. § 382.201). There is also a prohibition to any on-duty use and pre-duty use within four hours with respect to alcohol. There are also stringent requirements regarding the prohibition of controlled substances. Obviously, post-accident test results must be sought in discovery. 49 C.F.R. § 382.303 provides for post-accident testing. Testing is required in accidents involving: 1) a fatality, 2) a driver who receives a moving violation citation and there is bodily injury with immediate medical treatment away from scene, or 3) if there is disabling damage to a motor vehicle requiring towing.
- The record of on-duty status or the driver's logs as required in 49 C.F.R. § 395.8. This is either completed in hand by the driver or a motor carrier may have an automatic onboard recording devise as described in 49 C.F.R. § 395.15. Regardless, the retention of the record of duty status under § 395.8(k) is six months. Logs are frequently important in order to determine whether or not a driver is over hours, fatigued or if the motor carrier's schedule does not conform with speed limits;
- Annual inspection reports and daily inspection reports as required in 49 C.F.R. § 396 and Minn. Stats. § 169.781 and § 169.782. Obviously, these records are necessary in the event of any claim of equipment failure or other problem with the truck itself. Consequently, the entire maintenance file for that particular accident-involved truck will also be needed;
- Electronic control modules, the so-called black boxes or event recorders for heavy trucks. Many heavy trucks manufactured in the late 1990's are equipped with these devices which are essentially like black boxes. While not mandated, a number of manufacturers have installed them. They are available with the trucks having engines from the Detroit Diesel Corporation, Cummins and Caterpillar, Inc. These devices can be used to determine speed at impact, throttle position, clutch engagement, quick stop function data and brake pedal application. Obviously, all of this information could be vital in a given accident and significant in dealing with accident reconstruction issues. There may be spoilation issues if a repair shop or towing service removes the electronic control module from the engine block. While not mandatory at this point, CRASH (Citizens for Reliable And Safe Highways) is advocating the mandatory use of these devices. In the past, event recorder information in railroad cases has been held to be admissible in Stone v. CSX, 37 F.Supp.2d 789 (S.D. W. Va. 1999); and, National R.R. Passenger Corp. v. H&P, Inc., 949 F.Supp.1556 (M.D. Ala. 1996).
Insurance or security of motor carriers is mandated by Congress in 49 U.S.C. § 13906. The insurance regulations and limits of liability are set forth in 49 C.F.R. § 387. Under the Minnesota Motor Carrier statute, financial responsibility is required in Minn. Stat. § 221.141 with applicable regulations being in Minn.R. 8855. The statutes, regulations and court decisions interpreting them all emphasize the primary purpose of protecting the public. Any other concerns addressed within the insurance statutes and regulations are considered secondary.
The first issue when considering coverage issues is whether or not the truck was engaged in the business of the motor carrier. If the truck driver was under lease with a contractor operating agreement with the motor carrier, it is necessary to know whether or not the driver was bobtailing or operating pursuant to the lease. If the driver was not engaged in the employment or business of the motor carrier, then the driver's bobtail or non-truck use policy would apply; and, the motor carrier's policy would not apply. Gackstetter v. Dart Transit Co., 269 Minn. 146, 130 N.W.2d 326 (Minn.1964). If the driver was acting at least in part in furtherance of the motor carrier's interest, there would probably be coverage under the motor carrier policy and not the bobtail or non-truck use policy. Mensing v. Rochester Cheese Express, Inc., 423 N.W.2d 92 (Minn.App.1988).
The issue has become more complicated in Minnesota, however, because Gackstetter was decided before the advent of the no-fault statute. For purposes of Minnesota law, the motor carrier lessee would be vicariously liable as the owner under a long term lease pursuant to Minn. Stat. § 65B.43 subd.4 and the Safety Responsibility Act, Minn. Stat. § 170.54. This principle was also applied in the case of Laurich v. EMCASCO Ins. Co., 455 N.W.2d 527 (Minn.App.1990)
Under the concept of logo or lease liability, applying Minnesota law, the Eighth Circuit in Acceptance Ins. Co. v. Canter, 927 F2d. 1026 (8th Cir. 1991) determined that both the policy of the truck driver-lessor and the motor carrier applied to an accident when the driver was not in the business of the motor carrier and not under dispatch.
Minnesota also has accepted the distinction between truckers' policies and non-truck use or bobtail policies. The leasing requirements under the federal regulations, 49 C.F.R. § 376.12, allow lessors and lessees to specify obligations to insure. In the liability coverage case of National Indem. Co. of Minnesota v. Ness, 457 N.W.2d 755 (Minn.App.1990). Non-truck use or bobtail policies were approved by the Minnesota Court of Appeals. Coverage for the semi trailer was found to apply to the accident, however. More recently, bobtail or non-truck use policies were approved in the UM and UIM context in Steele v. Great West Cas. Co., 540 N.W.2d 886 (1995).
The second issue to consider when reviewing policies of motor carriers and truck drivers is policy form MCS-90 which is found in 49 C.F.R. § 387.15. The Minnesota Court of Appeals referred to this form in U.S. Fire Ins. v. Fireman's Fund Ins., 461 N.W.2d 23 (Minn.App.1990) in resolving a primary-excess dispute. Typically, these forms are added as endorsements to policies by the insurers of motor carriers. A critical factor of this form and endorsement to consider is that a truck does not have to be specifically listed on the policy in order to provide coverage. Second, late notice or failure to cooperate cannot be used to deny coverage.
The MCS-90 form in the regulations and as it appears in policy endorsements refers to a requirement that 35 days notice in writing is to be given for cancellation of the policy as mandated in 49 C.F.R. § 387.7(b)(1). Section 387.15 would require 30 days notice to be provided to the DOT as well. If this notice is not provided, then the policy would remain in effect, regardless of whether or not premiums are paid, which unfortunately occurred to the insurer in Great West Cas. Co. v. Christenson, 450 N.W.2d 153 (Minn.App.1990). Therefore, even if the policy lapsed for nonpayment of premium, unless the proper cancellation forms were provided, the policy would remain in effect. Minn. Stat. § 221.141 also provides for cancellation in subd. 1a.
Another potential issue may arise with replacement policies. Replacement of one policy by another for whatever reason retires the first policy according to 49 C.F.R. 387.7(c) and Minn. Stat. § 221.141 subd.3. However, if the second policy is canceled and the replaced policy is never canceled, that original policy may go back into effect. Remember, the purpose of the financial security requirements is always to protect the innocent public.
Because policies of motor carriers are often single limit policies, limits issues arise when there are multiple claimants to a catastrophic loss. In an uninsured motorist case in 1987, the Minnesota Supreme Court held in Dorn v. Liberty Mut. Fire Ins. Co., 401 N.W.2d 662 (Minn.1987) that Minnesota does not recognize single limit policies and that the policy must be re-written to provide the Minnesota statutory minimum coverages. However, according to the federal district court in Hamm v. Canal Ins. Co., 10 F. Supp.2d 539 (MD NC 1998), single limit policies are acceptable despite multiple claimants. In an unpublished opinion of the Fourth Circuit Federal Court of Appeals, the Court agreed in Aetna Cas. & Sur. Co. v. Clayton, 56 F.3rd 60, 1995WL330815(4th Cir. W. Va.1995).
Born Austin, Minnesota, July 18, 1950; admitted to bar, 1977, Minnesota and U.S. District Court, District of Minnesota; 1985, Wisconsin, and U.S. District Court, Western District Court of Wisconsin. Education: B.A., Carleton College, 1972; J.D., William Mitchell College of Law, 1977. Author and Faculty Member: Minnesota CLE, 1997 Insurance Law and Insurance Law Deskbook. Co-Author: MN Claims Guide for Motor Carriers and Trucking Versus Non-Trucking Use Insurance Policies: Current Trends. Faculty Member 1996 Trucking Industry Defense Association Seminar. Qualified Neutral Arbitrator under Rule 114 of the Minnesota General Rules of Practice. Member: Hennepin County Bar Association; Minnesota State Bar Association; Wisconsin State Bar Association; American Bar Association; Defense Research Institute; Minnesota Defense Lawyers Association; Association of Ski Defense Attorneys; Trucking Industry Defense Association; American Trucking Association; Transportation Lawyers Association; Conference of Freight Counsel.
direct dial number: (612)525-6932
e-mail: mmcnee@cousineaulaw.com