The Department of Transportation has announced the rates at which motor carriers will be required to administer random drug and alcohol testing on commercial drivers for 2018. Requirements for Random Drug and Alcohol Testing Under 49 C.F.R. § 382.305, motor carriers are required annually to administer random drug and alcohol testing on a certain minimum percentage of its average number of driver positions. For 2018, the FMCSA is keeping the random testing rate at 25% for drug screens and 10% for alcohol screening, just as they were for 2016 and 2017. Under this code section, the required testing percentage is...
The Value of Written Statements Several months ago, I witnessed a multi-vehicle accident. To be more accurate, I narrowly avoided being smashed to bits by a tanker truck. After the accident, I hung around to give a written statement to the State Trooper who was investigating the accident. I think I probably gave him the best written statement of his career. For one thing, as I am all the time handling accidents, I knew exactly what I would want to read in a witness statement and the specificity that would be helpful later. For another, with three commercial vehicles involved...
The Alabama Department of Public Safety has adopted the Alabama Commercial Driver’s License Manual as a mechanism to train prospective commercial drivers. It has not been adopted by the legislature and is not state law. Where it conflicts with either the Federal Motor Carrier Safety Regulations or the Alabama Rules of the Road, those laws apply over and above any recommendation made in the Alabama CDL Manual. In fact if asked, the Alabama Law Enforcement Agency will inform an inquirer that the Alabama CDL Manual should be thought of as “guidelines,” as opposed to mandatory regulations. For example, in a...
Hershel Easterling, et al. v. Progressive Specialty Ins. Co.: A tortfeasor’s bankruptcy discharge does not operate to relieve any legal liability that may be found against her, and the plaintiff still has an opportunity to prove the merits of his claims but is prevented by law from collecting damages for that harm from the tortfeasor, even after establishing legal entitlement to recover. However, this injunction does not extend to the UIM insurer, from whom a judgment may still be collected. Facts and Procedural History Following a December 2014 motor vehicle accident, Hershel and Charlotte Easterling brought suit against Ashley McCartney for...
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...
Ragland v. State Farm Mutual Auto. Ins. Co.: In a UM/UIM context, the validity of a bad faith failure to pay claim against an insurance company may be entirely dependent on the success of an underlying liability claim, and is not be ready for adjudication until after the underlying claim has been decided. Ragland’s Allegations against State Farm In July 2016, Lamar Ragland filed a lawsuit against State Farm, seeking punitive damages for State Farm’s alleged bad-faith failure to pay and related failure to subject Ragland’s claim for underinsured motorist (“UIM”) benefits for cognitive review. Ragland made the following allegations: He...
This series will address the various types of documents, electronic, human, and physical evidence that can and often will exist after a motor vehicle accident (including accidents involving commercial motor vehicles) and what should be done to preserve the evidence for future litigation. Part 1 was an introduction to the subject and looked at preservation letters. Part 2 considered preserving physical and witness statements. Part 3 reviewed all the many motor carrier records that must be maintained. And this finale, Part 4, discusses the various types of electronic data that may be available for retention after an accident. Black Box Features...
Ex parte GEICO Indem. Co., et al.: When an UIM insurer allows the applicable statute of limitations to run as to any “new” claims that it may assert directly against a tortfeasor, the UIM insurer (1) maintains its rights to opt out of the litigation and decline to consent to the settlement between the claimant and tortfeasor, pursuant to its consent-to-settle clause in the policy, and (2) may still obtain reimbursement from the insured’s recovery against the tortfeasor. Consent-to-Settle Clauses and UIM Carrier Subrogation Rights The matters addressed in this decision arise from separate automobile accidents involving persons having underinsured...
This series will address the various types of documents, electronic, human, and physical evidence that can and often will exist after a motor vehicle accident (including accidents involving commercial motor vehicles) and what should be done to preserve the evidence for future litigation. Part 1 was an introduction to the subject and looked at preservation letters. Part 2 considered preserving physical and witness statements. This post, Part 3, will review all the many motor carrier records that must be maintained. Part 4 discusses the various types of electronic data that may be available for retention after an accident. Motor Carrier Records Motor...
This series will address the various types of documents, electronic, human, and physical evidence that can and often will exist after a motor vehicle accident (including accidents involving commercial motor vehicles) and what should be done to preserve the evidence for future litigation. Part 1 was an introduction to the subject and looked at preservation letter. Part 2 considers preserving physical and witness statements. Part 3 reviews all the many motor carrier records that must be maintained. Part 4 discusses the various types of electronic data that may be available for retention after an accident. Preserving Physical Evidence An accident scene is replete...
