I recently wrote a series of posts about common motor carrier compliance problems, the first of which was hours of service compliance. The purpose of this post is to consider the legal consequences that arise from a commercial driver’s non-compliance with hours of service regulations.
What’s troublesome for me is not when a driver’s logsheet is non-compliant on its face. In fact, that’s a very easy problem to confront during litigation. At that point, you can call your client and say, “Hey, our driver has over his driving limit when the accident happened. The plaintiff is going to try to argue that our driver was fatigued. If the jury believes it and thinks the driver was aware of his fatigue but kept driving, they’re going to try to get punitive damages.” It’s not a pleasant reality, but it’s a problem you can diagnose and plan for.
Spotting Non-Compliance with Hours of Service Can Be Tricky
But you don’t see the easy ones very often. Because drivers know the rules. And motor carriers know the rules. What happens more often is that drivers and motor carriers hedge. Here’s an example of what I mean.
As you might recall from my prior post, most commercial drivers are subject to 49 C.F.R. § 395.3, which governs drivers’ hours of service. For the purposes of this discussion, the relevant portion of the regulation is 49 C.F.R. 395.3(a)(2)-(3). To paraphrase, a truck driver may drive a maximum of 11 hours within a 14-hour on-duty period, which must be followed by 10 consecutive hours off duty.
Looking at the logsheet, this driver reporting that he drove 11 hours and was on duty for another 2.75 hours, bringing his total on-duty hours to 13.75. Assuming he is within his driving limits for his 7/8 day schedule, then he’s compliant, right? As long as you dig too deeply then, yes.
But you’ll also see that this driver traveled 706 miles in 11 hours. That’s averaging 64.18 mph for the entire time he’s driving. Try averaging 64 mph on a trip from Atlanta to Dallas, which is roughly the same distance. It’s a hard thing to do. And that’s all interstate. I-20 all the way across. What you can’t see on this logsheet (I had to cut it out to protect the guilty) are the travel points for this driver. From a farm in rural Alabama to a rock pit in the middle-of-nowhere Mississippi, and back. Very little interstate, mostly state highways, with some other turnoffs in between. It’s not possible for this driver to have traveled 706 miles in 11 hours.
A good plaintiff’s lawyer is going to see that. He may or may not bring it out in a deposition. But you can be certain he’s going to bring it out at trial. And not only now is he going to talk about driver fatigue, he’s going to accuse the driver of violating the federal regulations and lying about it on his logsheets and endangering the public by doing so. But it doesn’t stop there, he’s also going to suggest the motor carrier has some culpability for the driver’s non-compliance because they weren’t auditing his logsheets.
The non-compliance with hours of service has created a situation in which, regardless of the facts of the accident and the liability associated with it, a jury has something to hold against the driver or motor carrier. The defense lawyer needs to do the work ahead of time to discover these potential pitfalls and communicate them to the client. The hard conversations are the most important ones, as they will allow the client to evaluate the risk and strategize with you for handling the case.
With all that said, this problem is going to go the way of the dodo bird within the next few years with the mandatory implementation of the ELD Rule.
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