Truck accidents are among the most severe auto accidents, because they can lead to catastrophic injuries due to the size and weight of an 18-wheeler. In 2015, 4,311 large truck and bus crashes resulted in fatalities and 87,000 resulted in injuries according to the Federal Motor Carrier Safety Administration. Roughly one in eight motor vehicle accidents involve a semi-truck, tractor-trailer, or 18-wheeler.
The trucking industry is a massive contributor to the United States’ economy, generating over 700 billion dollars in revenue annually. 1 As a network of commercial interests, it involves and employs various agents that for self-protective reasons remain relatively distinct. For example, a shipment of material from one place to another may involve:
Commercial transit carriers oversee not only the shipment of various cargo from place to place, and the maintenance of a fleet of trucks, but also the administration and management of a large crew of employees, specifically drivers. If/When this crew of CMV drivers is mismanaged, this has serious impact on drivers’ ability to operate safely on the road. Truck companies are, among other things, large-scale employers, whose policies shape their employees’ performance. Any employer relies on a system of rewards and penalties to guide employee behavior toward a desired outcome. Truck companies’ employer practices and policies have an impact on their drivers’ performance in terms of safety. “Driver management” are the activities that a carrier uses to “enable its drivers to detect and avoid potentially dangerous driving situations.” 2 There are four distinct kinds of driver management, or practices of employment in the CMV industry:
As in any industry designed principally to generate revenue, the trucking industry relies on management practices that drive their employees, particularly CMV drivers, to maximize profit. These practices sometimes compromise safety on public highways, particularly when they exert certain pressures on drivers. Among the most powerful ways to pressure drivers into compromising safety standards is a carrier company’s compensation structure. Depending on how they are paid, drivers may be more likely to stretch their personal limits of endurance as well as state and federal regulations concerning, for example, hours of operation. Both empirical studies and simulated models indicate that drivers who are compensated per trip and/or per mile are significantly more likely to drive while fatigued than those who were paid at a fixed rate. Still, industry groups representing the carrier interests often challenge the link between compensation formats, driver fatigue, and safety performance. 3
The trucking industry is heavily regulated at the federal and state levels by the Departments of Transportation. In 1999, the Motor Carrier Safety Improvement Act created the Federal Motor Carrier Safety Administration (FMCSA) as an administrative entity within the U.S. Department of Transportation. Its main responsibility is to reduce crashes and increase safety on U.S. highways. The FMCSA coordinates the efforts of multiple state and federal authorities, as well as industry organizations. The U.S. Department of Transportation regulates commerce that crosses state lines, while the states regulate commercial transports within their borders. Many states, including Texas, have adopted federal regulations of CMVs as state law pertaining to drivers, operators, and carriers.
The FMCSA’s regulations of the trucking industry include such aspects as:
In a concerted effort to monitor the safety fitness of commercial motor carriers, the FMCSA performs compliance reviews. A compliance review is “an on-site examination of motor carrier operations, such as drivers’ hours of service, maintenance and inspection, driver qualification, commercial drivers license requirements, financial responsibility, accidents, hazardous materials, and other safety and transportation records to determine whether a motor carrier meets the safety fitness standard.” 4 The FMCSA also performs regular safety audits, which entail “an examination of a motor carrier’s operations to provide educational and technical assistance on safety and the operational requirements of the FMCSRs [Federal Motor Carrier Safety Regulations] and applicable HMRs [Hazardous Materials Regulations] and to gather critical safety data needed to make an assessment of the carrier’s safety performance and basic safety management controls.” 5
One of the FMCSA’s programs is the seven-category system for evaluating commercial motor carriers’ ranks with respect to safety events and records. One of the program’s internal categories is the Unsafe Driving Behavior Analysis and Safety Improvement Category (BASIC), which focuses on the requirements for safety established in the Department of Transportations regulations, 49 CFR Parts 392 and 397. Each motor carrier is given a status and rank based on inspection results, which may be accessed in the FMCSA’s Safety Measurement System database: https://ai.fmcsa.dot.gov/sms/
The FMCSA maintains the Motor Carrier Management Information System (MCMIS), which catalogues information about the safety fitness of commercial motor carriers that must comply with the Federal Motor Carrier Safety Regulations (FMCSR). Public access to the information is managed through the MCMIS Data Dissemination Program. The MCMIS Catalog may be accessed here, where the safety reports for individual carriers are available for order.
The National Transportation Safety Board is an independent federal agency charged by the U. S. Congress with investigating not only major aviation incidents, but accidents in other modes of transportation as well, including highway traffic. In some serious events, the Board establishes the probable cause of accidents, and makes safety recommendations designed to prevent future accidents. In addition, “the NTSB carries out special studies concerning transportation safety and coordinates the resources of the Federal Government and other organizations to provide assistance to victims and their family members impacted by major transportation disasters.” 7 The public advocacy of the NTSB is that certain collision avoidance technologies such as lane departure warnings, forward collection warnings, adaptive cruise control, automatic breaks, and electronic stability control be mandated as standard equipment in CMVs. 8 According to the NTSB, these mechanisms significantly contribute to the Board’s objectives of reducing crashes, injuries, and fatalities.
In a case of personal injury and loss involving a Commercial Motor Vehicle, financial liability is attached to responsibility. An insurance company must compensate a victim of a crash if it can be established, for example, by a judge or jury that the insured party was culpable in the incident. What this means in the case of a CMV crash is that liability must be determined in relation to the cause or factors of the crash. Compelling an insurance company to cover the costs of injuries and losses requires that a responsible party be identified with what caused the crash. This can be exceedingly difficult, particularly as all of the persons and corporate entities involved attempt to evade blame.
The trucking industry is regulated heavily in terms of hiring drivers, operating on the road, and loading cargo. Failure to adhere to regulation means that a carrier may be held liable for the outcomes of the failure, specifically when the failure entails damages, injuries, and losses. CMV crashes are often more complicated than passenger vehicle crashes because the structures of ownership and liability are intricate. It could be the case that one company owns the vehicle, another owns or supplies fuel, another performs maintenance, another hires and manages drivers and dispatches, another manages cargo and loading procedures, another facilitates shipments and contracts. All of this may be regulated somewhat differently if interstate traffic is involved. And each corporate entity may be insured with a different agency or policy.
One or more of the following parties may be liable in a CMV crash:
The following kinds of insurance apply to the CMV industry:
The job of Commercial Motor Vehicle drivers is stressful and exhausting. Their sleep patterns are irregular; they plan and follow complex routes and pick-up locations; they face unpredictable weather conditions; and their ability to stay alert for long periods of time determines the safety of everyone else on the road. Indeed, studies show that drivers and driver behavior are the single most important predictor of CMV operations, including and especially safety. A multi-year research project combining embedded participant observation, interviews, and quantitative survey data of the trucking industry found empirical evidence to suggest that “safety was largely up to individual drivers.” 9 Many of the drivers, particularly more senior drivers, “felt the industry regulations could be a burden to productivity.” This must be considered in combination with the “solid empirical evidence that drivers’ attitudes toward regulations may influence their compliance attitudes and behavioral intentions to commit unsafe actions.” 10
A Commercial Driver’s License is required of any person who operates a commercial motor vehicle intrastate, interstate, or internationally. They are state-issued and regulated. Per the Texas Department of Public Safety’s regulations, a person applying for a CDL must specify whether he/she will be conducting interstate or intrastate commerce. Whether the shipment qualifies as interstate or intrastate is indicated on the Bill of Lading, the charter specifying the origin and destination of the cargo transport.
One of the mechanism of regulation of the trucking industry pertains to Hours of Service (HOS), or the number of hours during which CMV drivers work (on the road and stationary) and rest. HOS regulation was originally established in 1938 by the Interstate Commerce Commission. It required that drivers operate in ten-hour increments, followed by eight hours of rest. In 2004, the Federal Motor Carrier Safety Administration (FMCSA) instituted the so-called 34-hour restart provision. Because the provision was unlimited, drivers were permitted to drive 14-hour shift for several days in a row, and then set their drive-time log to zero after 34 consecutive hours off duty. In July 2013, the restart provision was changed such that only one restart is allowed per 168-hour period, or once per week; in addition, the 34 hours must occur over two consecutive nights (1am to 5am). The restart rule goes into effect when a driver has driven either 60 hours in a 7-day period, or 70 hours in an 8-day period.
There are two significant and potentially hazardous consequences of the 2013 provisions, which take drivers off the road for a certain amount of nighttime hours each week:
Moreover, drivers whose shifts are primarily scheduled at night, and who are in reality more fatigued than daytime drivers, may only take one full nighttime period of rest. A naturalistic field study that measured drivers’ alertness with a psychomotor vigilance test and driving performance with a test of lane deviation found that “when drivers had only one nighttime period in their restart break, they experienced greater nighttime fatigue during duty cycles.” 13
The number of hours driven are recorded by the driver, which places a significant responsibility on him/her and assumes honest self-reporting. According to the FMCSA’s guidelines, “Every driver shall prepare a record of duty status (driver’s daily log) in his or her own handwriting for each 24-hour period, unless operating under the 100 air-mile radius exemption or drivers of property-carrying CMVs who do not require a CDL for operation and who operate within a 150-air- mile radius of their normal work reporting location.” 14 A failure to maintain this log, or to enter false information in it, is fraudulent. The FMCSA states, “Failure to complete or retain the log, or knowingly falsifying logs or other reports, make the driver and/or carrier liable to prosecution.” Yet research published in the Journal of Public Health Policy indicates that as much as 73% of CMV drivers have violated HOS regulations. 15
The physical demands that a job as a CMV driver entails are considerable. Because the CMV driver is responsible not only for driving the vehicle, but for inspecting it and oftentimes for overseeing the loading and unloading, he/she must be able to bend and crouch, climb ladders, lift and move heavy objects like chains and ramps, etc. These tasks require a physically capable body, endurance, flexibility, and strength.
The medical professional who issues a certificate of health to a CMV driver, who by law must be registered with the National Registry of Certified Medical Examiners, shoulders a tremendous responsibility. He/she authorizes that a person in his/her care is physically, cognitively, and psychologically fit to drive safely. But, as the Journal of the American Academy of Physician Assistants recognizes, “Drivers are aware that greater emphasis is currently being placed on their medical evaluations. Drivers will talk among themselves and find out which examining facilities or medical examiners are likely to be less stringent than others in applying the regulations.” 16 This practice is both unethical and extremely dangerous.
Studies show that CMV drivers have a higher prevalence of Obstructive Sleep Apnea (OSA) than the general population, and that OSA is a statistically significant cause of motor vehicle crashes. 17 A recent regulation in the operations of a CMV is the requirement that drivers who have been diagnosed with a sleep disorder such as sleep apnea use a continuous positive airway pressure machine (a mask with a tube supplying continuous airflow) while they sleep in their trucks. However, because these apparatuses require a power-source, the kind that would only be available if a driver keeps the truck idling while sleeping, and because idling is prohibited in many rest areas, drivers may elect either to forego the breathing machine or to stay awake. In either case, the result is inadequate rest, fatigue, and potentially impaired judgment. 18
In an effort to increase CMV drivers’ safety performance, Section 2 of the Texas Commercial Motor Vehicle Drivers Handbook encourages:
“Don’t Be an Aggressive Driver; How you feel before you even start your vehicle has a lot to do with how stress will affect you while driving. […] Reduce your stress before and while you drive. Listen to ‘easy listening’ music. Give the drive your full attention. Don’t allow yourself to become distracted by talking on your cell phone, eating, etc. Be realistic about your travel time. Expect delays because of traffic, construction, or bad weather and make allowances. If you’re going to be later than you expected – deal with it. Take a deep breath and accept the delay. Give other drivers the benefit of the doubt. Try to imagine why he or she is driving that way. Whatever their reason, it has nothing to do with you. Slow down and keep your following distance reasonable. Don’t drive slowly in the left lane of traffic. Avoid gestures. Keep your hands on the wheel. Avoid making any gestures that might anger another driver, even seemingly harmless expressions of irritation like shaking your head. Be a cautious and courteous driver. If another driver seems eager to get in front of you, say, ‘Be my guest.’ This response will soon become a habit and you won’t be as offended by other drivers’ actions.” 19
To those who have encountered CMVs on the road, potentially in an accident scenario, this description of a cautious and courteous truck driver may seem like a far cry from reality. Legally demonstrating this discrepancy, however, between the ideal and a driver involved in a catastrophic event is difficult, requiring the expertise and acumen of a personal injury attorney.
In addition to seeking medical care and attending to their physical recovery, the most important and urgent task for a victim of a Commercial Motor Vehicle collision is to gather evidence. This investigation is an exceedingly complicated process involving both hardcopy materials (such as driving logs and notes kept inside a truck) and electronic information (such as the maintenance data for the vehicle in operation). Most of the time, victims of CMV crashes are unaware of the kinds of procedural information that the trucking business generates, and that the information may be accessed as part of the process of legal discovery. By state and federal law, trucking companies, drivers, and dispatches are required to keep detailed records of their compliance with (or violation of) the laws and policies that regulate their industry. It is critically important that as much evidence as possible pertaining to an incident and its parties is preserved as quickly as possible following a CMV crash. Indeed, the strength of a CMV crash case may depend on it.
One of the ways in which a personal injury attorney brings value to a CMV victim’s legal case is by coordinating the effort of collecting and organizing evidence, initially by issuing a so-called Letter of Preservation. A Letter of Preservation is a formal request asking responsible parties (such as the trucking company that owns and operates the vehicle involved in the crash) to submit the following kinds of materials to the personal injury attorney:
Gathering evidence, a personal injury attorney may request, in addition to the documents listed in Letter of Preservation, that an impartial expert be allowed to examine the vehicle that was involve in the crash. The vehicle may be damaged, impounded, or in storage. Access to perform this kind of inspection may be very difficult without the assistance of an attorney, as trucking companies are often eager to repair a vehicle and restore it to full capacity for operation. In addition, a personal injury attorney may request copies of eyewitness testimonies collected by first responders at the scene of the crash and any other documentation generated by the 911 authorities, clean-up crews from the scene, or emergency services.
An Engine Control Module (ECM) or an Event Data Recorder (EDR) functions like the black box computers in an air plane, capturing the events and circumstances leading up to a catastrophic incident like a crash. This captured data may be used to reconstruct the series of events that caused or precipitated a dangerous situation. The Final Report presented by the Event Data Recorder Working Group to the National Highway Traffic Safety Administration states, “Event Data Recorders have the ability to profoundly impact highway safety. While simple or complex in design and scope, EDRs collect vehicle and occupant based crash information. EDRs can assist in real-world data collection, better define safety problems, and aid law enforcement’s understanding of crash specifics, ultimately improving safety.” 20 A trucking company may be reluctant to share or disclose the data generated by these monitoring technologies, particularly if it reveals any kind of malfeasance or lack of judgment on the part of the driver. While a CMV crash victim may have a hard time communicating personally with a trucking company and/or its insurers, a personal injury attorney may be able to obtain the information contained within the recorders using a Letter of Preservation.
The extreme size and force of CMVs mean that the personal injuries sustained in a crash may be catastrophic. They change the life and future prospects of victims and their families. In order to develop a strong legal case in which a victim may seek compensation for losses, a personal injury attorney relies on the documented diagnoses of expert physicians. These diagnoses indicate the scope and severity of a victim’s injuries, specifically identifying the future implications thereof. Based on expert diagnoses, personal injury attorneys ensure that victims are adequately compensated for losses and injuries.
While talking to a personal injury attorney is prudent for any victim of a motor vehicle accident, it is especially important in the case of a Commercial Motor Vehicle (CMV) for three reasons:
It is not uncommon for an insurance agent of a major CMV company to contact a crash victim privately, sometimes with offers of large sums of money – “no strings attached.” Clients may be tempted to accept what seems like an assurance of payment, not realizing that doing so forecloses any prospect of seeking other recompense with the aid of a personal injury attorney. Victims who “sign on the dotted line” with an insurance company sign away their right to a day in court. And while an offer for quick lump sum may seem to circumvent a lengthy legal process, there may be more significant matters at hand. A CMV victim with a catastrophic injury has a legal right to seek justice – to get recognition for what he/she has endured and seeking compensation for losses. A pursuit of justice may include holding a CMV company and/or a driver accountable for a preventable incident with a devastating outcome. It is a search for victims’ and their families’ peace of mind.
1 Howard Abramson, “The Trucks are Killing Us,” New York Times, August 21, 2015.
2 Michael C. Mejza et al., “Driver Management Practices of Motor Carriers with High Compliance and Safety Performance,” Transportation Journal 42 (2003): 16-29.
3 Jason Thompson, Sharon Newman, and Mark Stevenson, “A Model for Exploring the Relationship between Payment Structures, Fatigue, Crash Risk, and Regulatory Response in a Heavy-Vehicle Transport System,” Transportation Research Part A 82 (2015): 204-215.
4 Federal Motor Carrier Safety Administration, A Motor Carrier’s Guide to Improving Highway Safety, December 2009, LINK, p. 29.
5 Federal Motor Carrier Safety Administration, A Motor Carrier’s Guide to Improving Highway Safety, December 2009, LINK, p. 29.
8 National Transportation Safety Board, Mandate Motor Vehicle Collision Avoidance Technologies, LINK
9 Matthew Douglas and Stephen Swartz, “Truck Driver Safety: An Evolutionary Research Approach,” Transportation Journal 55 (2016): 268.
102 Douglas and Swartz, 270.
11 T. L. Bunn et al., “Sleepiness/Fatigue and Distraction/Inattention as Factors for Fatal versus Nonfatal Commercial Motor Vehicle Driver Injuries,” Accident Analysis and Prevention 37 (2005): 864.
12 Jason R. Anderson et al., “An Exploratory Study of Hours of Service and its Safety Impact on Motorists,” Transport Policy 53 (2017): 161-174.
13 Amy R. Sparrow et al., “Naturalistic Field Study of the Restart Break in US Commercial Motor Vehicle Drivers: Truck Driving, Sleep, and Fatigue,” Accident Analysis and Prevention 93 (2016): 63.
14 Federal Motor Carrier Safety Administration, A Motor Carrier’s Guide to Improving Highway Safety, December 2009, LINK, p. 90.
15 Braver, E. R., et al., “Long Hours and Fatigue: A Survey of Tractor-Trailer Drivers,” Journal of Public Health Policy, 13 (1992): 341– 366.
16 James R. Pace, “Understanding DOT Examinations for Commercial Vehicle Drivers,” Journal of the American Academy of Physician Assistants 25 (2012): 42.
17 Natalie Hartenbaum et al., “Sleep Apnea and Commercial Motor Vehicle Operators: Statement from the joint task force of the American College of Chest Physicians, American College of Occupational and Environmental Medicine, and the National Sleep Foundation,” Journal of Occupational and Environmental Medicine 48 (2006): S1.
18 Anne Balay and Mona Shattell, “Long-Haul Sweatshops,” New York Times, March 9, 2016.
19 Texas Department of Public Safety, Texas Commercial Motor Vehicle Drivers Handbook, June 2014, section 2.10.2. LINK.
20 U.S. Department of Transportation, National Highway Traffic Safety Administration, Summary of Findings, Event Data Recorders. August 2001, LINK.