Commercial Transportation
| Publication year | 2022 |
Commercial Transportation
Madeline E. McNeeley
Joshua H. Dorminy
Spencer P. Mead
Caitlyn B. Clark
Stephn G. Lowry
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Commercial transportation involves all the significant forms of passenger and freight transportation across the United States. This Article surveys significant judicial, regulatory, and legislative developments in Georgia commercial transportation law from June 1, 2021 through May 31, 2022.1
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A. Regulatory Changes
On January 12, 2022, the Georgia Department of Driver Services Board approved an update to the rules that deal with commercial driver training.2 The purpose of the amendment was to align the rule with 49 Code of Federal Regulation §§ 383 and 384,3 which include the requirement of Federal Motor Carrier Safety Administration approved entry-level driver training (ELDT) for entry-level commercial drivers.4 The amendment added the requirement of ELDT for entry-level commercial drivers effective February 7, 2022.5 Entry-level commercial drivers are defined as any person who:
(i) seeks to obtain a new Class A or Class B commercial driver's license;
(ii) seeks to upgrade any existing commercial driver's license to a higher Class commercial driver's license;
(iii) seeks to obtain a new school bus (S), passenger (P), or hazardous materials (H) endorsement; or
(iv) is otherwise subject to the entry-level driver training requirements set forth in 49 C.F.R. Parts 383 and 384.6
The amendment lists the persons who do not require ELDT, which include:
(i) commercial drivers who hold a valid commercial driver's license or an S, P, or H endorsement that was issued prior to February 7, 2022;
(ii) commercial drivers who obtained a commercial learner's permit prior to February 7, 2022, and upgrade to a commercial driver's license before the commercial learner's permit expires; or
(iii) any person who is exempted from taking a skills test pursuant to 49 C.F.R. Part 383.7
The steps required to add a hazardous materials endorsement to a commercial driver's license on or after February 7, 2022, are also included in the rule change:
Effective February 7, 2022, in order to add a hazardous materials (H) endorsement to a commercial driver's license, the driver must:
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(i) complete [ELDT] prior to taking the knowledge exam for the hazardous materials (H) endorsement;
(ii) complete the Hazardous Material Endorsement Threat Assessment Program administered by the Transportation Security Administration (TSA);
(iii) pass the knowledge exam for the hazardous materials (H) endorsement; and
(iv) renew their commercial driver's license to have the H or X (Tank Vehicles and Hazardous Material) endorsement added.8
Also effective February 7, 2022, was a rule change concerning Georgia First Lady Marty Kemp's initiative against human trafficking.9 The change requires every commercial driver training school and every commercial driver license third-party tester "certified by the [Georgia] Department [of Driver Services] [to] provide, prior to administering a third-party skills test or as part of its instructional curriculum, a human trafficking awareness and prevention course that is administered to every student it tests and/or trains."10 Theoretical and practical instruction must be in accordance with 49 C.F.R. §§ 383 and 384.11
Other updates to the Georgia Rules include raising the minimum grade a student must score to pass the written exam in order to successfully complete a course from seventy (70) to eighty (80).12 Further, the mandatory maneuvers for range training were updated to current federal regulations and Georgia Department of Driver Services practices.13 The maneuvers now required during driver testing include: off-set left and right backing, sight and blind side parallel parking, and 45° and ninety 90° alley docking.14
B. Case Law
In Golden Peanut Co. v. Miller,15 the Georgia Court of Appeals reviewed two issues related to commercial motor vehicles.16 This case dealt with a collision between a tractor-trailer driven by the defendant driver and a passenger vehicle driven by the plaintiff. The collision occurred when the defendant pulled through an intersection causing the
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plaintiff to collide with the trailer that the defendant was transporting. The trailer was owned by Golden Peanut Company, LLC, and its parent company, Golden Peanut. The plaintiff filed suit asserting that Golden Peanut was liable under theories of common law vicarious liability and as a statutory employer under the Federal Motor Carrier Safety Regulations (FMCSR). Golden Peanut filed a motion for summary judgment arguing that (1) it had no right to control the defendant's driver's work and therefore vicarious liability was inapplicable and (2) that it was not liable as a statutory employer under the FMCSR. The motion for summary judgment was denied by the Gwinnett County State Court, and Golden Peanut appealed.17
The court of appeals reviewed the record for evidence that would support the plaintiff's claim for vicarious liability.18 The evidence showed that the defendant driver was a sole proprietorship, owned the tractor involved in the collision, paid his own expenses, and was engaged to haul for Golden Peanut by a brokerage service which paid the defendant driver a flat fee. The evidence further showed that Golden Peanut did not tell the defendant driver which route to take or have any control over when the freight was delivered. The plaintiff argued that Golden Peanut employees gave instruction to the defendant driver as to where to park to unload the freight and how to unload the freight.19 In reversing the trial court's denial of summary judgment, the court of appeals held that there was no evidence in the record of any relationship between the defendant driver and Golden Peanut that would convert him from an independent contractor to an employee.20 The court of appeals further held that "merely taking steps to see that the contractor carries out his agreement . . . is not such interference and assumption of control as will render the employer liable."21
Next, Golden Peanut argued that the statutory employment theory was no longer legally viable, but the court of appeals did not address this issue as the argument was not made before the trial court.22 Golden Peanut argued that it was not the statutory employer of the defendant driver and therefore the trial court erred in denying its motion for summary judgment.23 Citing to 49 C.F.R. § 390.5T,24 the court of appeals
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held that an employer is "any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it."25 Thus, "the existence of a lease between the defendant and owner of the vehicle involved in an accident is the defining element in creating a statutory employment relationship under the FMCSRs."26 As there was no evidence of any lease agreement between the defendant driver and Golden Peanut, the court held that Golden Peanut was not a statutory employer, and therefore, the trial court erred in denying its motion for summary judgment.27
Commercial aviation is generally controlled by federal authority, but there are several important areas related to aviation that are within state jurisdiction.28 In Georgia, there is substantial importance in providing and regulating emergency medical services, such as air ambulances,29 and the legislature has placed this responsibility with the Department of Public Health (DPH).30 The DPH promulgated new rules and regulations last year31 that clarified that air ambulances must have current Federal Aviation Administration (FAA) approval to operate in Georgia32 and must maintain current Clinical Laboratory Improvement Amendments (CLIA) certification as a laboratory that is permitted to perform waived tests.33 Further, the new rules removed the records-keeping requirements for air ambulance providers.34
Similarly, regulating airports is of substantial importance at the state level because operating airports without regulation of minimum and uniform safety requirements endangers the lives and property of those located within the state.35 To this end, Georgia provides for the licensing of airports based on rules and regulations36 promulgated by the
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Department of Transportation (DoT),37 and the legislature passed a bill last year amending the licensing requirements for airports.38
Subsection (i) of the Official Annotated Code of Georgia section 32-9-839 was amended to clarify that it is unlawful to operate an airport without obtaining a license from the DoT.40 When the DoT is made aware of an airport operating without a license, the DoT is authorized to issue an initial cease and desist order requiring the airport to cease operations.41 The initial cease and desist order will be final twenty (20) days after issuance, unless the unauthorized airport provides the proper license or evidence of exemption from the licensing requirements.42 After becoming final, the DoT may, through the Attorney General, petition the superior court in the county where the unlicensed airport is located to obtain an order instructing the unauthorized airport to cease operations.43 Should the airport continue to operate in violation of an issued order, the unauthorized airport can be assessed a penalty of up to $1,000 per day.44 The DoT will take into consideration the appropriateness of the penalty relative to the gravity of the violation, as well as any other contributing factors or circumstances.45 All penalties and fines recovered under O.C.G.A. § 32-9-8(i)(4) shall be paid to the general fund of the State, but the DoT has the discretion to remit the net cost of recovery.46 Any person that is...
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