Blog Archives

  • Fritz Named Chair of the USLAW Network

    St. Louis, Missouri (Friday, September 07, 2018) ― Kevin L. Fritz of Lashly & Baer, P.C. in St. Louis, Missouri, has been named Chair of USLAW NETWORK for 2018-19. He succeeds John D. Cromie of Connell Foley LLP in New Jersey. The change of leadership was made at the NETWORK’s annual Fall Membership Meeting in Montreal, Canada. “I am honored to serve as Chair of USLAW NETWORK for the upcoming year,” said Fritz, who most recently served as Vice Chair of USLAW. “Our members offer a broad range of legal experience and industry knowledge across diverse disciplines, and I look forward to working with them and continuing our Board’s longstanding commitment to ensuring that USLAW delivers exceptional service and networking opportunities to our clients.” Fritz is a past Chair of USLAW’s Transportation Practice Group and has held numerous leadership roles on the Board of Directors and Executive Committee since 2012.

     

    Fritz, who earned his J.D. from the University of Missouri School of Law, is a trial attorney experienced in both state and federal courts. His practice focuses on insurance defense and coverage, commercial litigation, premises liability, product liability, construction, vehicular negligence matters and personal injury. He also specializes in transportation-related matters that include interstate and intrastate issues, cargo, breach of contract and catastrophic casualty claims. He also is the current Chair of Lashly & Baer’s Litigation Department and Transportation Practice Section. He has further been selected through peer recognition as on

     

    of the top 50 St. Louis attorneys in multiple years, and most recently in 2018, as published by Super Lawyers magazine.

     

    USLAW NETWORK (USLAW) is an international organization composed of more than 60 independent, full-service firms with roots in civil litigation, including more than 6,000 attorneys across the U.S., Canada, Latin America and Asia, and with affiliations in Africa and with TELFA in Europe. USLAW, which was started in 2001, is comprised of highly rated law firms who are part of the NETWORK by invitation only. USLAW firms are experienced in commercial and business law, employment and labor law, litigation and other business-related areas of law. All firms have substantial trial experience. USLAW member firms provide legal representation to major corporations, insurance companies, and large and small businesses alike. For more information, visit uslaw.org.

  • Patrick Foppe Published Article on Precluding Discovery of Preventability Determinations in Trucking Accidents

    Lashly & Baer attorney, Patrick E. Foppe, was recently published in the December 20, 2017 DRI newsletter The Voice. Patrick’s featured article discusses Precluding Discovery of Preventability Determinations in Trucking Accidents Under 49 U.S.C. § 504(f).

    The discoverability and admissibility of post-accident preventability determinations by trucking companies is often much disputed in truck accident cases. The Federal Motor Carrier Safety Administration’s recent adoption of the crash preventability program breathes new life into the argument that 49 U.S.C. § 504(f) affords a statutory basis to keep preventability determinations out of civil lawsuits. To read a pdf version of the full article CLICK HERE or to learn more about DRI visit www.DRI.org.

     

     

  • Missouri Supreme Court Limits Personal Jurisdiction Over Businesses In Missouri

    The Supreme Court of Missouri recently restricted the extent to which Missouri courts have general personal jurisdiction over corporations. Plaintiffs can no generally longer use Missouri courts to sue out-of-state companies that operate significant portions of their business in Missouri for suits unrelated to Missouri (albeit relatively small portion in relation to their overall operations) even if they have registered agent in Missouri. A copy of the Missouri Supreme Court’s decision in State ex rel. Norfolk Southern Railway Company v. Dolan can be found here.

    The plaintiff sued Norfolk Southern Railway Company, a Virginia corporation, in St. Louis County, Missouri. The plaintiff was an Indiana resident, seeking recovery for a personal injury that occurred in Indiana. The action was unrelated to Missouri, but the plaintiff argued, among other things, that: (1) Norfolk Southern’s substantial and continuous contacts in Missouri were sufficient to establish general personal jurisdiction; and (2) Norfolk Southern consented to personal jurisdiction by complying with Missouri’s foreign corporation registration statutes. The Court soundly rejected the plaintiff’s arguments in the 6-0 decision.

    In Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the U.S. Supreme Court clarified that under the Due Process Clause a state may only exercise general jurisdiction (personal jurisdiction over a defendant for actions unrelated to the defendant’s activities in the state) over a corporate defendant in three situations: (1) when the corporation is incorporated in that state; (2) when the corporation’s principal place of business is in that state; or (3) in exceptional circumstances, when the corporation’s activities are “so substantial and of such a nature as to render the corporation at home in that State.” To determine whether a corporation is “essentially at home,” the court must appraise the corporation’s nationwide and worldwide activities and determine how the forum activities compare. Continuous and systematic business activities in a state are not enough for general personal jurisdiction when those activities only comprise a small portion of the defendant’s business overall.

    Following Daimler, the Missouri Supreme Court found that Norfolk Southern’s $232 million in Missouri revenue, 590 Missouri employees, and 400 miles of Missouri railroad tracks were not enough to establish general jurisdiction in Missouri. The Court noted that despite these substantial operations, Norfolk Southern’s Missouri business only accounts for approximately 2 percent of its employees, 2 percent of its revenue, and 2 percent of the tracks it owns or operates. Norfolk Southern had more substantial operations in several other states, so it could not reasonably be considered “at home” in Missouri.

    The court rejected plaintiff’s argument that Norfolk Southern consented to personal jurisdiction over any case filed against it in Missouri when it complied with Missouri’s foreign corporation registration statutes to do business in the state of Missouri and appointed a registered agent for service of process. The court stated that a “broad inference of consent based on registration would allow national corporations to be sued in every state, rendering Daimler pointless.” The court concluded that merely registering in a state does not open a corporation to lawsuits unrelated to that state.

  • Eighth Circuit Holds that Individual Acting as a Pilot to an Oversize Load Can Be Held Negligent for Causing Accident

    The Eighth Circuit Court of Appeals in Brown v. Davis, 813 F.3d 1130 (8th Cir. 2016) recently held that an individual acting as the pilot of an oversize load had duty to stop traffic or take other cautionary measures before allowing oversize truck and trailer to cross narrow bridge.

    The wrongful death case was bought by the family of a man who was killed when a log skidder fell from a truck onto a car while crossing a bridge. The family argued that that the individual acting as the pilot of the oversize load, who was also the owner of the motor carrier, was negligent for failing to close the bridge to oncoming traffic. The Eighth Circuit concluded that the record was sufficient to prove that the truck passenger had a duty to take precautions against the risks involved in transporting a wide load over a narrow bridge since the practice was to call law enforcement to block the bridge or to block it themselves. Further, the court found evidence of the defendant’s failure to stop traffic and his misleading signal was sufficient to find that the defendant failed to use ordinary care, and sufficient evidence support the jury’s verdict finding that the defendant acted negligently and caused the man’s death. The case does not discuss whether any oversize load permits were at issue. Attached is a copy of Brown v. Davis.

  • Handling Marijuana Issues in Your Trucking Case

    Recently, Patrick E. Foppe wrote an article for DRI’s magazine For The Defense titled ““Handling Marijuana Issues in Your Trucking Case.” Marijuana is the second most prevalent psychoactive substance involved in driving under the influence cases. As legalization efforts continue, attorneys should prepare to handle more marijuana issues in trucking cases. To read more about this from their April 2016 issue, CLICK HERE.

  • FMCSA Proposes New Rule for Determining Safety Fitness of Motor Carriers

    The Federal Motor Carrier Safety Administration (FMCSA) announced on January 15, 2016, a rulemaking proposal to modify how the agency determines safety ratings of motor carriers. The proposed rule would significantly change FMCSA’s safety fitness rating methodology by integrating on-road safety data from inspections, along with the results of carrier investigations and crash reports, to determine a motor carrier’s overall safety fitness on a monthly basis.

    The proposed rule would replace the current three-tier federal rating system of “satisfactory–conditional–unsatisfactory” for federally regulated commercial motor carriers (in place since 1982) with a single determination of “unfit,” which would require the carrier to either improve its operations or cease operations.

    Once in place, the proposed rule will supposedly allow FMCSA to assess the safety fitness of approximately 75,000 companies a month. By comparison, the agency currently investigates approximately 15,000 motor carriers annually.

    The proposed methodology would determine when a carrier is not fit to operate commercial motor vehicles in or affecting interstate commerce based on:

    The proposed rule purports to incorporate data sufficiency standards and would require that a significant pattern of non-compliance be documented in order for a carrier to fail a BASIC.

    When assessing roadside inspection data results, the proposal uses a minimum of 11 inspections with violations in a single BASIC within a 24-month period before a motor carrier could be eligible to be identified as “unfit.” If a carrier’s individual performance meets or exceeds the failure standards in the rule, it would then fail that BASIC. Evidently, the failure standard will be fixed by the rule. A carrier’s status in relation to that fixed measure would purportedly not be affected by other carriers’ performance.

    Failure of a BASIC based on either crash data or compliance with drug and alcohol requirements would only occur following a comprehensive investigation.

    You are encouraged to review the notice of proposed rulemaking, to share it with your clients, and to submit comments. The public comment period will be open for 60 days. FMCSA will also be providing a reply comment period allowing for an additional 30 days for commenters to respond to the initial comments.

    For more information on FMCSA’s Safety Fitness Determination proposed rule, including a full copy of the notice of proposed rulemaking, visit www.fmcsa.dot.gov/sfd.

  • Defending Motor Carriers Performing Oversize Load and Heavy Haul Operations

    Attorneys Patrick E. Foppe and Kevin L. Fritz co-authored, “Defending Motor Carriers Performing Oversize Load And Heavy Haul Operations,” in the USLAW NETWORK, Inc. Magazine, Winter/Fall 2015. View the link above to read a pdf copy of the article.

  • Defending Against Attempts to Impose Liability

    Patrick E. Foppe recently authored, “Defending Against Attempts to Impose Liability through the Broad Definitions under 49 C.F.R. § 390.5,” TLA’s The Transportation Lawyer, December 2015. Please view the above link to read a PDF copy of the article.

  • New House Bill Seeks to Reform FMCSA’s CSA Scores

    Representative Lou Barletta a Republican from Pennsylvania recently introduced a bill titled “Safer Trucks and Buses Act of 2015” (H.R. 1371) that seeks to reform the Compliance, Safety, Accountability (CSA) program. If passed, the Department of Transportation’s (DOT) Federal Motor Carrier Safety Administration (FMCSA) would be forced to remove from public view the current motor carrier ranking system. In addition, the program and the rankings would be restructured as part of the bill.

    The trucking industry has applied pressure to the legislature to revise the current CSA ranking system. Some organizations have called for it to be removed from public view.

    The overall criticism is that the general public is able to see the scores. Many in the trucking industry believe the CSA scores are flawed and may cause bias against certain carriers. It is further contended that the public nature of the scores may prevent motor carriers and truckers from being hired, insured or be able to hire employees.

    Barletta asserts his bill can fix the CSA scoring problems. Specifically, the bill will change the way the data is collected and used to calculate the CSA scores. If passed, the bill would require that the FMCSA work with the National Academy of Public Administration (NAPA), which is based in Washington DC) to rework CSA scoring system. Some items included in the directive for the FMCSA to work with the NAPA is:

    • Limit the data used to calculate the CSA score to “safety data determined to be predictive of motor carrier crashes,” with a purported emphasis on accuracy;
    • Address the differences between bus and truck companies;
    • Rework the system to reduce the alleged hard cause to small motor carriers: “as a result of limited safety data availability;”
    • Put in place better controls over the data that is reported by the State as well as the motor carrier agencies themselves; and
    • To adjust scores based upon “geographical differences with respect to enforcement.”

    A full copy of the bill can be found at https://www.govtrack.us/congress/bills/114/hr1371.

  • 2014 News from the FMCSA and a Look Down the Road

    February 17, 2015 – Lashly & Baer attorney, Patrick E. Foppe, published an article in the December 2014 issue of the Defense Research Institute’s For The Defense Magazine entitled, “2014 News from the FMCSA and a Look Down the Road.”

    CLICK HERE to download a copy of the article.

     

  • FMCSA Releases Crash Weighting Analysis And Seeks Public Input

    On January 21, 2015, the Federal Motor Carrier Safety Administration (FMCSA) announced through the Federal Register a study that examined (1) whether Police Accident Reports provide sufficient, consistent, and reliable information to support crash weighting determinations, (2) whether a crash weighting determination process would offer an even stronger predictor of carrier crash risk than the current assessment method, and (3) how the agency might reasonably manage and support a process for making crash weighting determinations, including the acceptance of public input. The announcement invites public comment along with a request for feedback on what steps the agency should take regarding the weighting of crash data in the agency’s systems based on the carrier’s role in a crash.

    Presently, the agency considers all recordable crashes involving a commercial motor vehicle occurring in the preceding 24 months as an assessment within its Safety Measurement System, which quantifies the on-the-road safety performance of motor carriers to prioritize enforcement resources.

    FMCSA maintains that independent research has demonstrated that a motor carrier’s involvement in a crash, regardless of their role in the crash, is a strong indicator of their future crash risk.

    The study examined Police Accident Reports obtained from two national datasets: the National Highway Traffic Safety Administration (NHTSA) Fatality Analysis Reporting System (FARS) and the National Motor Vehicle Crash Causation Survey (NMVCCS). Various statistical and analytical approaches were employed to assess crash weighting benefits including an analysis of motor carriers involved in single-vehicle fatal crashes over time.

    According to the FMCSA, changing the crash weights based on a motor carrier’s role in the crash did not appear to improve the ability to predict future crash rates when all crashes are considered.  FMCSA was also concerned about the reliability of using Police Accident Reports to make this determination. The study pointed out that implementing a crash weighting effort on a national scale would require a method for uniformly acquiring final Police Accident Reports, a process and system for uniform analysis, and a method for receiving and analyzing public input.

    FMCSA estimates that the annual costs for operating a system to process Police Accident Reports, including the acceptance of public input and reviewing appeals, would be between $3.9 million and $11.2 million. FMCSA has invited the public to review the full report and provide feedback.

    For more information, please contact Patrick E. Foppe at 314-621-2939, or at pfoppe@lashlybaer.com, or contact your Lashly & Baer attorney.

  • FMCSA Seeks Public Comment Regarding Revising Minimum Levels of Financial Responsibility of Commercial Carriers

    The Federal Motor Carrier Safety Administration (FMCSA) recently announced through an Advance Notice of Proposed Rulemaking (ANPRM) that the Agency is seeking comment from the public, liability insurance providers, motor carriers, brokers and freight forwarders on the safety and financial impacts of revising minimum levels of financial responsibility.

    The Federal Government has long required motor carriers to maintain certain levels of financial responsibility, either through insurance, a bond, or other financial security, as a means to protect the public in the event of a crash.  An April 2014 Report to Congress found that while catastrophic motor carrier crashes are rare, the costs for resulting severe and critical injuries can exceed $1 million; current insurance limits do not adequately cover these costs, which are primarily due to increases in medical expenses and other crash-related costs.

    To provide a basis for proposing changes to insurance rules and estimating those impacts in the future, the Agency is seeking additional information on 26 questions.  Whenever possible, commenters should provide data in support of their responses.  FMCSA recognizes that an individual commenter may choose to respond to all of the issues or only a subset, based on his or her interest or area of expertise.

    A copy of the ANPRM and instructions for submitting comments is available at https://www.federalregister.gov/articles/2014/11/28/2014-28076/financial-responsibility-for-motor-carriers-freight-forwarders-and-brokers.

    Comments will accepted through February 26, 2015.

    For more information, please contact Patrick Foppe at pfoppe@lashlybaer.com, or at 314-621-2939, or contact your Lashly & Baer attorney.

  • FMCSA Curtails Driver Vehicle Inspection Reports

    FMCSA recently rescinded the requirement that commercial motor vehicle (CMV) drivers operating in interstate commerce, except drivers of passenger-carrying CMVs, submit, and motor carriers, retain Driver Vehicle Inspection Reports (DVIRs) when the driver has neither found nor been made aware of any vehicle defects or deficiencies. The No-Defect DVIR rule also harmonizes the pre- and post-trip inspection lists. The rule does not change the requirement to perform the end of day DVIR inspection; rather it simply removes the requirement to document the inspection even when no safety-related vehicle defects exist. It responds in part to the President Obama’s January 2011 Regulatory Review and Reform initiative, removing a significant information collection burden without adversely impacting safety.

    FMCSA estimated that professional truck drivers spend approximately 46.7 million hours each year completing DVIRs. Eliminating DVIRs when no safety defects or mechanical deficiencies are identified will result in time savings valued at $1.7 billion dollars annually according to FMCSA. Violations related to DVIRs were the most common vehicle inspection violation discovered by FMCSA that was considered “critical” and which impacted motor carrier safety ratings. Rescinding the DVIR rule for no defect inspections may possibly reduce the chance of a motor carrier being cited for a safety rating-impacting vehicle maintenance violation here forward.

    FMCSA’s No-Defect DVIR rule will be effective on the date it is published in the Federal Register, which is scheduled for December 18, 2014.

    For more information, please contact Patrick E. Foppe at pfoppe@lashlybaer.com, or at 314-621-2939, or contact your Lashly & Baer attorney.

     

  • Missouri Court of Appeals Holds that Missouri’s Statutory Caps on Punitive Damages Do Not Apply in Wrongful Death Cases

    Recently, in Mansfield v. Horner, WD76310, 2014 WL 2724854 (Mo. App. W.D.  June 17, 2014), the Missouri Western District Court of Appeals held that Missouri’s statutory caps on punitive damages do not apply to cases brought pursuant to the Missouri Wrongful Death Act. Under Section 510.265 RSMo, “punitive damages” are capped at (1) five hundred thousand dollars; or (2) five times the net amount of the judgment awarded to the plaintiff against the defendant. The Western District concluded that the legislature’s reference to “punitive damages” in section 510.265 was not intended to include within its scope “aggravating circumstances” damages allowed under the Missouri Wrongful Death Act. The Western District rejected the view that “aggravating circumstance awards” and “punitive damages” are statutory synonyms for purposes of Section 510.265. The Western District noted that the term “punitive damages” is not defined in Section 510.265 RSMo. Further, Section 510.263RSMo, which addresses trial procedures when “punitive damage” awards are claimed, specifies that those procedures are equally available where “aggravating circumstances” damages are claimed. The Western District stated that the Missouri legislature: (i) understands that “aggravating circumstances” damages are not synonymous with “punitive damages” as a matter of course; and (ii) plainly knows how to write legislation to express its intent to include “aggravating circumstances” within the scope of “punitive damages” if that is intended. The Western District limited prior holdings of the Missouri Supreme Court, which had previously stated that “aggravating circumstance damages in wrongful death cases are the equivalent of punitive damages,” to merely the context of determining whether damages for aggravating circumstances are subject to due process considerations. Presently, it is unclear whether this decision will be appealed to the Missouri Supreme Court.

    For more information, please contact your Lashly & Baer attorney, or Patrick Foppe at 314-621-2939, or at pfoppe@lashlybaer.com.

  • FMCSA Initiates Rulemaking Process to Update the Financial Responsibility of Commercial Carriers

    On July 6, 2012, President Obama signed into law the Moving Ahead for Progress in the 21st Century Act (MAP-21; P.L. 112-141). Section 32104 of MAP-21 directed the Secretary of the U.S. Department of Transportation (DOT) to issue a report to Congress the appropriateness of the current minimum financial responsibility requirements for motor carriers of property and passengers, and the current bond and insurance requirements for freight forwarders and brokers. Section 32104 also directed the Secretary to issue a report on the appropriateness of these requirements every 4 years starting April 1, 2013. The Secretary of Transportation delegated the responsibility for this report to the Federal Motor Carrier Safety Administration (FMCSA).

    On April 18, 2014, the FMCSA reported to Congress that current financial responsibility minimums for the commercial motor vehicle industry are inadequate to meet the costs of some crashes. The agency’s report to Congress includes findings from a recent study that weighed the benefits of increasing insurance minimums, including improved compensation for crash victims and reductions in commercial vehicle crashes, against costs imposed on commercial motor vehicle operators and the insurance industry. The FMCSA analysis shows that the costs for catastrophic accidents often exceed $1 million. The FMCSA concluded that the current insurance limits do not adequately cover these costs. The agency has formed a rulemaking team to further evaluate the appropriate level of financial responsibility for the motor carrier industry.

    The report does not examine the current bond and insurance requirements for freight forwarders and brokers since MAP-21 mandated these requirements to be $75,000 effective October 1, 2013, and the FMCSA will report on the appropriateness of these levels after it has had the opportunity to observe their impacts.

    The full report to Congress can be found at: http://www.fmcsa.dot.gov/mission/policy/report-congress-examining-appropriateness-current-financial-responsibility-and.

    To download the article, click here. For more information, please contact your Lashly & Baer attorney, or Patrick Foppe at 314-621-2939, or pfoppe@lashlybaer.com.

  • FMCSA Announces Proposed Rule For Electronic Logging Devices

    On March 12, 2014, the Federal Motor Carrier Safety Administration (FMCSA) announced its proposed amendments to the Federal Motor Carrier Safety Regulations (FMCSRs) regarding Electronic Logging Devices (ELDs), formally known as Electronic Onboard Recorders (EOBRs). The American Trucking Association has announced its general support for FMCSA’s proposed mandate for the use of ELDs. The proposed rule purports to address issues raised by the U.S. Court of Appeals for the Seventh Circuit in its 2011 decision vacating the FMCSA’s April 5, 2010 final rule concerning ELDs (see Owner-Operator Indep. Drivers Ass’n v. FMCSA, 656 F.3d 580 (7th Cir. 2011)) as well as subsequent statutory developments.

    The proposed rule would amend the FMCSRs to establish: (1) minimum performance and design standards for hours-of-service (HOS) electronic logging devices (ELDs); (2) requirements for the mandatory use of these devices by drivers currently required to prepare HOS records of duty status (RODS); (3) requirements concerning HOS supporting documents; and (4) measures to address concerns about harassment resulting from the mandatory use of ELDs. Specifically, the proposed rule includes provisions designed to:

    • Respect driver privacy by ensuring that ELD records continue to reside with the motor carriers and drivers. Electronic logs will continue to only be made available to FMCSA personnel or law enforcement during roadside inspections, compliance reviews and post-crash investigations.
    • Protect drivers from harassment through an explicit prohibition on harassment by a motor carrier owner towards a driver using information from an ELD. It will also establish a procedure for filing a harassment complaint and creates a maximum civil penalty of up to $11,000 for a motor carrier that engages in harassment of a driver that leads to an hours-of-service violation or the driver operating a vehicle when they are so fatigued or ill it compromises safety. The proposal will also ensure that drivers continue to have access to their own records and require ELDs to include a mute function to protect against disruptions during sleeper berth periods.
    • Increase efficiency for law enforcement personnel and inspectors who review driver logbooks by making it more difficult for a driver to cheat when submitting their records of duty status and ensuring the electronic logs can be displayed and reviewed electronically, or printed, with potential violations flagged.

    Details regarding the proposed rule can be found at: http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/rule-programs/rule_making_details.aspx?ruleid=475. Comments to the proposed rule should reference “Docket Number FMCSA-2010-0167” and be sent by one of following methods:

    • Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001;
    • Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or Fax: 202-493-2251.

     

    To download a copy of this article, please click here. For more information, please contact your Lashly & Baer attorney, or Patrick Foppe at 314-621-2939, or at pfoppe@lashlybaer.com.

     

     

     

     

     

     


     

  • FMCSA Finalizes Rule to Shut Down Carriers based on Patterns of Safety Violations and Proposes New Rule for National Drug and Alcohol Testing Clearinghouse

    On January 22, 2014, the FMCSA published its new Patterns of Safety Violations Rule which implements the agency’s authority to shut down a bus or truck company if the company, or a company officer, has a history of purposely violating federal safety regulations. The rule is purportedly designed to target “high-risk carriers that endanger travelers by avoiding or covering up their negative history of safety compliance.” FMCSA stated it intends to apply the rule in “egregious cases” in which it finds that a motor carrier has committed a pattern of unsafe practices, even if that particular investigation alone does not result in a downgrade of the carrier’s safety fitness rating. The new rule is related to a rule adopted by the agency in 2012 to apply out-of-service orders to reincarnated or chameleon carriers and to consolidate their enforcement histories. The new rule goes one step further by authorizing a complete revocation of the motor carrier’s authority to operate. The new rule can be found at: http://www.fmcsa.dot.gov/rulesregulations/administration/rulemakings/rule-programs/rule_making_details.aspx?ruleid=470.

    On February 12, 2014, the FMCSA announced a proposed rule to establish the Commercial Driver’s License Drug and Alcohol Clearinghouse, a database under the Agency’s administration that will contain controlled substances and alcohol test result information for the holders of commercial driver’s licenses. The proposed rule would require FMCSA-regulated motor carrier employers, Medical Review Officers, Substance Abuse Professionals, and consortia/third party administrators supporting U.S. Department of Transportation (DOT) testing programs to report verified positive, adulterated, and substituted drug test results, positive alcohol test results, test refusals, negative return-to-duty test results, and information on follow-up testing. The proposed rule would also require employers to report actual knowledge of traffic citations for driving a commercial motor vehicle while under the influence of alcohol or drugs. The proposed rule would establish the terms of access to the database, including the conditions under which information would be submitted, accessed, maintained, updated, removed, and released to prospective employers, current employers, and other authorized entities. Finally, it would require laboratories that provide FMCSA-regulated motor carrier employers with DOT drug testing services to report, annual, summary information about their testing activities. The proposed rule can be found at: http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/rule-programs/rule_making_details.aspx?ruleid=471

    For more information, please contact your Lashly & Baer attorney, or Patrick Foppe at 314-621-2939, or pfoppe@lashlybaer.com.

  • RECENT NEWS FROM THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION

    1)  One-Year Extension of Paper Medical Certificate Requirement for Commercial Bus and Truck Drivers

    FMCSA recently announced that it is extending by one year, until Jan. 30, 2015, a requirement that interstate commercial driver’s license (CDL) holders retain paper copies of their medical examiner’s certificate and continue to make the document available for review upon request at the roadside by federal and state commercial motor vehicle inspectors. In Dec. 2008, FMCSA issued a Final Rule modernizing, streamlining, and simplifying recordkeeping obligations for drivers, carriers and state governments by requiring that a driver’s medical certification record be merged with state-issued CDLs. States received support from FMCSA to implement the necessary IT system upgrades and merge the records into one, online database – the Commercial Driver’s License Information System (CDLIS). FMCSA announced the one-year extension today to protect commercial drivers from being cited for violations because some states are not yet in full compliance with the new system. For a copy of the Federal Register announcement, see: www.FMCSA.DOT.gov.

    2)  New Rule to Shut Down Carriers based on Patterns of Safety Violations

    FMCSA is expected this week to publish a Patterns of Safety Violations Rule which implements the agency’s authority to shut down a bus or truck company if the company, or a company officer, has a history of purposely violating federal safety regulations. The rule is one of the new enforcement tools that the agency has developed in recent years to target high-risk carriers that endanger travelers by avoiding or covering up their negative history of safety compliance. FMCSA intends to apply the rule in “egregious cases” in which it finds that a motor carrier has committed a pattern of unsafe practices, even if that particular investigation alone does not result in a downgrade of the carrier’s safety fitness rating. The new rule complements a rule adopted by the agency in 2012 to apply out-of-service orders to reincarnated or chameleon carriers and to consolidate their enforcement histories. The new rule goes one step further by authorizing a complete revocation of the motor carrier’s authority to operate. For a copy of the Federal Register announcement, see: http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/rule-programs/rule_making_details.aspx?ruleid=470.

    3)  Public Listening Sessions on Knowledge Testing Requirements for New Entrant Carriers, Freight Forwarders and Brokers

    FMCSA plans to hold public listening sessions to solicit ideas and information from interested parties on possible knowledge testing requirements for New Entrant passenger and property carriers, freight forwarders, and brokers as follows:

    • March 28, 2014 at the Mid-America Trucking Show taking place at the Kentucky Exposition Center in Louisville, Ky.
    • April 7, 2014 at the Commercial Vehicle Safety Alliance’s spring conference taking place at the Westin Bonaventure Hotel & Suites in Los Angeles.

    Room locations and times to be announced. To learn more about the New Entrant requirements in the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141) and the types of information FMCSA is requesting through the listening sessions, please see the FMCSA website.

    If you would like more information, please contact your Lashly & Baer, P.C. attorney, or Patrick E. Foppe at (314) 621-2939, or at pfoppe@lashlybaer.com

  • 2014 News from the FMCSA and a Look Down the Road

    Patrick E. Foppe authored, “2014 News from the FMCSA and a Look Down the Road,” DRI For The Defense Magazine, December 2014. View the above link to read a PDF copy of this article.

  • Illinois Bans Using Handheld Cell Phones Behind the Wheel

    Effective January 1st, Illinois drivers cannot legally hold cell phones and talk. Public Act 98-0506 subjects drivers to a blanket ban on the use of “electronic communication devices” while operating motor vehicles on any Illinois roadway. The new law expands an existing ban in the Illinois Vehicle Code on texting and emailing while driving and will prohibit all use of electronic communication devices while driving but for a few narrow exceptions for things like hands free telephone calls, GPS navigation, CB and HAM radios, and emergency situations. The new law creates an exception for phones and other devices that can be used “by pressing a single button to initiate or terminate a voice communication.” Thus, many smart phones, like iPhones and Samsung Galaxy S4, which have voice activated features that allow the device to be used solely with hands free voice commands will be permitted.

    If you would like more information, please contact your Lashly & Baer, P.C. attorney, or Patrick E. Foppe at (314) 621-2939, or at pfoppe@lashlybaer.com

  • New Law in Missouri Requires Uninsured Motorists to Forfeit Recovery of Noneconomic Damages Under Certain Circumstances

    Yesterday, the Missouri Legislature overrode Governor Jay Nixon’s veto of HB 339, which requires uninsured motorists to forfeit recovery of non-economic damages under certain circumstances. The new law, now section 303.390 of the Missouri Revised Statutes, prohibits an uninsured driver who is the owner of the vehicle or a driver operating a vehicle with or without permission who is uninsured from collecting for non-economic damages in a civil action against an insured motorist alleged to be at fault for an accident. The provisions do not apply to an uninsured driver who has lost his or her insurance coverage for failure to pay unless the notification of termination or non-renewal was provided at least six months prior to the accident. Reductions in damage awards based on the new law will not be disclosed to the trier of fact.

    The limitation does not apply to passengers in an uninsured driver’s vehicle and does not limit the recovery of benefits provided or economic losses. Recovery of non-economic damages in instances where an insured driver who is at fault because of operating a vehicle while under the influence of drugs or alcohol or who is convicted of involuntary manslaughter or second degree assault will still be allowed under the new law.

    If held constitutional by the courts of Missouri, the new law will dramatically limit recovery for injuries in cases to which it applies. Practitioners would be well advised to conduct discovery on these issues. Further, it remains to be seen whether the new law will require juries to complete a special verdict form allocating economic and non-economic damages similar to special verdicts required in medical malpractice cases in Missouri.

    The full text of Section 303.390 reads:

    1. An uninsured motorist shall waive the ability to have a cause of action or otherwise collect for non-economic loss against a person who is in compliance with the financial responsibility laws of this chapter due to a motor vehicle accident in which the insured driver is alleged to be at fault. For purposes of this section, the term “uninsured motorist” shall include:

    (1) An uninsured driver who is the owner of the vehicle;

    (2) An uninsured permissive driver of the vehicle; and

    (3) Any uninsured non-permissive driver. Such waiver shall not apply if it can be proven that the accident was caused, in whole or in part, by a tort-feasor who operated a motor vehicle under the influence of drugs or alcohol, or who is convicted of involuntary manslaughter under subdivision (2) of subsection 1 of section 565.024, or assault in the second degree under subdivision (4) of subsection 1 of section 565.060.

    2. The provisions of this section shall not apply to an uninsured motorist whose immediately previous insurance policy meeting the requirements of section 303.190 was terminated or non-renewed for failure to pay the premium, unless notice of termination or non-renewal for failure to pay such premium was provided by such insurer at least six months prior to the time of the accident.

    3. In an action against a person who is in compliance with the financial responsibility laws prescribed by this chapter by a person deemed to have waived recovery under subsection 1 of this section:

    (1) Any award in favor of such person shall be reduced by an amount equal to the portion of the award representing compensation for non-economic losses;

    (2) The trier of fact shall not be informed, directly or indirectly, of such waiver or of its effect on the total amount of such person’s recovery.

    4. Nothing in this section shall be construed to preclude recovery against an alleged tort-feasor of benefits provided or economic loss coverage.

    5. Passengers in the uninsured motor vehicle are not subject to such recovery limitation.

    For more information, please contact your Lashly & Baer attorney or Patrick E. Foppe at (314) 621-2939.

     

     

     

     

  • Federal Appeals Court Upholds Most New Hours of Service Rules

    On August 2, 2013, the U.S. Court of Appeals for the D.C. Circuit issued its long-awaited ruling on the challenge by the American Trucking Association (ATA) to the most recent revisions in the hours-of-service rules promulgated by the Federal Motor Carrier Safety Administration (FMCSA), which went into full effect on July 1, 2013. The new rules added the following new provisions:

    • 30–Minute Off–Duty Break, which bars truckers from driving past 8 hours unless they have had an off-duty break of at least 30 minutes;

    • Once–Per–Week Restriction, which allows truckers to invoke the 34–hour restart provision only once every 168 hours (or 7 days);

    • Two–Night Requirement, which also mandates that the 34–hour restart include two blocks of time from 1:00 a.m. to 5:00 a.m.

    The court upheld these new rules, except struck down the 30-minute off-duty break for short-haul drivers only. Even though the court agreed with the ATA that the FMCSA’s justification for the rules had serious flaws, it declined to “second-guess” the agency’s methodologies and interpretations of the evidence, instead taking a “highly deferential” approach to the agency’s presumed expertise, concluding that “FMCSA won the day not through the strengths of its rulemaking prowess,” but rather through “an artless war of attrition . . . .”

    Further, the court found no merit in the challenge of the coalition of interest groups that have repeatedly fought to make a working regulation more restrictive, correctly concluding it “would have been unreasonable and unfounded on the record” to reduce the driving day from 11 to 10 hours. The court also rejected the groups’ call to eliminate the restart altogether.

    At present, it is unclear whether any party will appeal the court’s ruling. The case is styled: Am. Trucking Associations, Inc. v. Fed. Motor Carrier Safety Admin., 12-1092, 2013 WL 3956992 (D.C. Cir., Aug. 2, 2013).

  • Missouri Appellate Court Allows Imputed Liability Claims Against Employer Even After Admitting Agency When Punitive Damages Are At Issue

    In 1995, the Missouri Supreme Court adopted the majority view “that once an employer has admitted respondeat superior liability for a driver’s negligence, it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability.” McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. banc 1995). The Missouri Supreme Court qualified its holding, however, noting that:

    it may be possible that an employer or entrustor may be held liable on a theory of negligence that does not derive from and is not dependent on the negligence of an entrustee or employee…. [I]t is also possible that an employer or an entrustor may be liable for punitive damages [that] would not be assessed against the employee/entrustee. See Clooney v. Geeting, 352 So.2d [1216,] 1220 [ (Fla.Dist.Ct.App.1977) ]. Finally, it is conceivable that in a contribution action between an employer and employee, the relative fault of those two parties may be relevant. However, none of those circumstances exist here. Those issues await another day.

    Id. Recently, in Wilson v. Image Flooring, LLC, Nos. WD75141, WD 75142, 2013 WL 1110878, 2 (Mo. App. W.D. Mar 19, 2013), the Missouri Appellate Court for the Western District took up the issue of whether a “punitive damages exception” to the general rule barring direct negligence claims against an employer who had already admitted vicarious liability. While many federal courts in Missouri have addressed the question of whether there exists a punitive damages exception to the general rule under Missouri law, no Missouri court had yet addressed this issue. See Kwiatkowski v. Teton Transp., Inc., No. 11–1302–CV–W–ODS, 2012 WL 1413154, at 3–4 (W.D.Mo. Apr. 23, 2012). The Wilson court found that “if faced with the issue now, [the Missouri] Supreme Court would determine that such an exception exists.” Wilson,  2013 WL 1110878, 2. The Wilson Court explained:

    The rationale for the [the Missouri Supreme] Court’s holding in McHaffie was that, where vicarious liability was admitted and none of the direct liability theories could prevail in the absence of proof of the employee’s negligence, the employer’s liability was necessarily fixed by the negligence of the employee. McHaffie, 891 S.W.2d at 826. Thus, any additional evidence supporting direct liability claims could serve only to waste time and possibly prejudice the defendants. Id.

    The same cannot be said, however, when a claim for punitive damages based upon the direct liability theories is raised. If an employer’s hiring, training, supervision, or entrustment practices can be characterized as demonstrating complete indifference or a conscious disregard for the safety of others, then the plaintiff would be required to present additional evidence, above and beyond demonstrating the employee’s negligence, to support a claim for punitive damages. Unlike in the McHaffie scenario, this evidence would have a relevant, non-prejudicial purpose. And because the primary concern in McHaffie was the introduction of extraneous, potentially prejudicial evidence, we believe that the rule announced in McHaffie does not apply where punitive damages are claimed against the employer, thus making the additional evidence both relevant and material.

    Id.

     Wilson v. Image Flooring, LLC

  • Missouri Courts Examining Possible Exceptions to When a Plaintiff Can Pursue Other Imputed Theories of Liability Against an Employer Even After Respondeat Superior Liability is Admitted

    Missouri follows the majority rule that a jury cannot generally assess a defendant employer’s fault based on imputed theories of liability, such as “negligent entrustment” or “negligent hiring,” after an employer has admitted the wrongdoer was its agent acting within the scope of his/her agency at the time of the accident. McHaffie v. Bunch, 891 S.W.2d 822, 826–27 (Mo. banc 1995). In other words, in cases where respondeat superior liability is admitted, it is generally improper to allow a plaintiff to proceed against the employer on any other theory of imputed or derivative liability. The rationale is that allowing other theories of imputed liability “serves no real purpose,” wastes the time and energy of the court and litigants because the employer’s liability “is fixed by the amount of liability of the employee,” and opens the door to potentially inflammatory and irrelevant evidence. McHaffie, 891 S.W.2d at 826. Importantly, however, the Missouri Supreme Court in McHaffie left open the possibility for several exceptions to the general rule. Id. at 826. For instance, “an employer or entrustor may be held liable on a theory of negligence that does not derive from and is not dependent on the negligence of an entrustee or employee,” or “an employer or an entrustor may be liable for punitive damages which would not be assessed against the employee/entrustee.” Id.. The contours of these possible exceptions to the general rule are the subject to recent appeals in Missouri.

    First, in Coomer v. Kansas City Royals Baseball Corp., WD73984, 2013 WL 150838 (Mo. App. W.D. Jan. 15, 2013), the Missouri Western District Appellate Court held that negligent supervision and training claims, like negligent hiring and negligent entrustment claims, are based on theories of imputed liability. Imputed liability claims involve those which there is no evidence that the “employer’s lack of care” caused a plaintiff’s injuries “in the absence of the negligence by the employee.” Id. Therefore, negligent supervision and training claims, like negligent hiring and negligent entrustment claims, are generally barred when the issue of agency is admitted.

    Second, whether there is a so-called “punitive damages exception” to the general rule is currently before the Missouri Western Appellate Court. See Wilson v. Image Flooring, LLC, et al., WD 751412012 (Mo. App. W.D. 2012). Although never before formally recognized by a Missouri appellate court, many jurisdictions allow a plaintiff to proceed under other imputed negligence theories after respondeat superior liability is admitted when punitive damages are at issue. Likewise, several federal district courts while applying Missouri law have recognized a “punitive damages exception.” See e.g., Jackson v. Wiersema Charter Serv., Inc., 2009 WL 1310064 (E.D.Mo. 2009); Miller v. Crete Carrier Corp., 2003 WL 25694930 (E.D.Mo. 2003); Burroughs v. Mackie Moving Systems Corp.,  2010 WL 576799 (E.D.Mo. 2010); Kwiatkowski v. Teton Transp., Inc.,  2012 WL 1413154, 4 (W.D.Mo. 2012). These federal decisions, though persuasive and authoritative, are not of course binding on Missouri state courts. The ruling in the Wilson case, which is expected this spring or summer, will likely help resolve whether Missouri allows for a “punitive damages exception.”

  • U.S. Department of Transportation Announces New Regulations Reducing the Maximum Allowable Hours Truck Drivers May Drive

    In December 2011, the U.S. Department of Transportation announced new regulations reducing the maximum allowable hours truck drivers may drive. The “hours of service” regulations are designed to reduce driver fatigue and to make sure truck drivers can get the rest they need to operate safely when on the road. Since 1938, the federal government has regulated the amount of hours that a commercial truck driver may drive. The framework for the current “hours of service” regulations has been in effect since 2004 and the new regulations are to go into full effect by July 1, 2013.
     
    The new “hours of service” regulations reduce the maximum number of hours a truck driver can work within a week by 12 hours. Under the current regulations, truck drivers can work on average up to 82 hours within a seven-day period. The new “hours of service” regulations limit a driver’s workweek to 70 hours, a 15% reduction.

    In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window. The new regulations retain the current 11-hour daily driving limit.

    Further, the new regulations require truck drivers who maximize their weekly work hours to take at least two nights rest when their 24-hour body clock demands sleep the most from 1-5 a.m. This rest requirement is part of the 34-hour restart provision that allows drivers to restart the clock on their workweek by taking at least 34 consecutive hours off-duty. The new regulations allow drivers to use the restart provision only once during a seven-day period.

    Companies and drivers that commit egregious violations of the new regulations could face the maximum penalties for each offense. Trucking companies that allow drivers to exceed the 11-hour driving limit by three or more hours could be fined $11,000 per offense and the drivers themselves could face civil penalties of up to $2,750 for each offense.

    While the trucking industry generally supports the current “hours of service” regulations, it is expected to challenge the new regulations in court. The trucking industry will likely argue that the new regulations will increase transportation and shipping costs and destroy jobs. Also, since the current “hours of service” regulations have been in effect, truck related fatalities have decreased by 33% and truck related injuries are down 39%, as compared to all traffic fatalities, which are only down 21%. With positive results under the current “hours of service” regulations, the trucking industry will likely argue that the new regulations are unnecessary at this time. As such, there remains an open question whether the new regulations will survive a court challenge and actually take effect.

  • Federal Government Outlaws Hand-Held Cell Phone Use by Truck and Bus Drivers

    On Wednesday, November 23, 2011, the Federal Motor Carrier Safety Administration (“FMCSA”), along with the Pipeline and Hazardous Materials Safety Administration, announced a joint final rule that prohibits interstate truck and bus drivers from using a hand-held cell phone while operating their vehicle.

    According to FMCSA, drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and multiple offenses could result in disqualification from operating a commercial motor vehicle.

    Trucking companies that allow drivers to use hand-held cell phones while driving will face penalties as high as $11,000.

  • Illinois Supreme Court Continues to Reject Post-Sale Duty to Warn

    Today, the Illinois Supreme Court in Jablonski v. Ford Motor Co. (Docket No. 110096) held in part that a manufacturer has no duty to warn its customers of risks first known after a product has left its control. A continuing duty to warn may be imposed if at the time the product was manufactured the manufacturer knew or should have known of the hazard. Nevertheless, the Court did say that a post-sale duty to warn could be recognized in the future in Illinois.

    In this case, the Illinois Supreme Court reversed a $43 million general verdict awarding compensatory and punitive damages to the plaintiffs in an automotive product liability case. The court concluded that the plaintiffs’ negligence claims either lacked evidentiary support, or, in the instance of a claimed post-sale duty to warn, were not legally viable.

  • Federal Safety Group Preparing to Issue Rule on Cell Phone Use in Commercial Vehicles

    Last week I attended the Illinois Trucking Association’s Annual Meeting. The Federal Motor Carrier Safety Administration’s (FMCSA) Administrator, Anne Ferro, spoke to the attendees outlining many of the items that the agency is currently working on.

    Administrator Ferro told members that FMCSA is on track to release a final rule on the Hours of Service Regulation by the end of October. Ferro also indicated that FMCSA will be proposing a rule in a month or so that will address “hand-held” cell phone use in commercial motor vehicles, which is in contrast to the National Transportation Safety Board’s recent recommendation to eliminate all cell phone use in trucks.

    Check back for updates. We’ll keep you posted as soon as we learn of any new developments.

  • Injuries to Unauthorized Passengers in Trucking Accidents Pose Unique Issues

    Patrick E. Foppe and Kevin L. Fritz have co-authored,  “Injuries to Unauthorized Passengers in Trucking Accidents Pose Unique Issues,” USLAW NETWORK, Inc. Magazine, Spring-Summer 2011. View the above link to read a PDF copy of this article.

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