Commercial Transportation

• Publication year: 2018

Commercial Transportation

Madeline E. McNeeley

Yvonne S. Godfrey

Andrew J. Conn

Stephen G. Lowry

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Commercial Transportation

by Madeline E. McNeeley^*

Yvonne S. Godfrey^**

Andrew J. Conn^***

and Stephen G. Lowry^**** I. Introduction

Commercial transportation involves all of the significant forms of passenger and property transportation across the United States. This Article covers four major areas: (1) trucking and commercial transit; (2) aviation; (3) limousines, taxis, and rideshare services; and (4) railroads.¹ Most of these areas are subject to heavy federal regulation due to their involvement in and effect on interstate commerce. This Article surveys

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significant judicial, regulatory, and legislative developments in Eleventh Circuit commercial transportation law during the period from January 1, 2016 through December 31, 2017.²

II. Trucking and Commercial Transit

The United States Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) was established on January 1, 2000,³ to regulate commercial motor vehicles by "consider[ing] the assignment and maintenance of safety as the highest priority, recognizing the clear intent, encouragement, and dedication of Congress to the furtherance of the highest degree of safety in motor carrier transportation."⁴ More specifically, the FMCSA is charged with enforcing federal laws and regulations, particularly the Federal Motor Carrier Safety Regulations (FMCSR).⁵ The FMSCR is "applicable to all employers, employees, and commercial motor vehicles that transport property or passengers in interstate commerce."⁶ However, the FMSCR does not apply to the following: (1) school bus operations; (2) "[t]ransportation performed by the Federal government, a State, or any political subdivision of a State, or an agency established under a compact between States that has been approved by the Congress of the United States";⁷ (3) transportation of personal property not for compensation; (4) transportation of corpses or sick and injured persons; (5) fire trucks and other rescue vehicles while operating in an emergency circumstance; (6) "[t]he operation of commercial motor vehicles designed or used to transport between 9 and 15 persons (including the driver)";⁸ and (7) propane transporters if the FMCSR would prevent them from responding to an emergency requiring immediate response.⁹

In addition to complying with the FMSCR, commercial motor vehicle operators must comply with state and local laws and regulations, including obtaining and maintaining a commercial driver's license

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(CDL).¹⁰ Although issued by individual states, the Motor Carrier Safety Improvement Act of 1999¹¹ authorizes the FMCSA to regulate CDLs nationwide.¹² Typically, there are three classes of CDLs: Class A, for "[a]ny combination of vehicles with a gross combination weight rating (GCWR) of 11,794 kilograms or more (26,001 pounds or more) provided the GVWR of the vehicle(s) being towed is in excess of 4,536 kilograms (10,000 pounds);"¹³ Class B, for "[a]ny single vehicle with a GVWR of 11,794 kilograms or more (26,001 pounds or more), or any such vehicle towing a vehicle not in excess of 4,536 kilograms (10,000 pounds) GVWR;"¹⁴ and Class C, for "[a]ny single vehicle, or combination of vehicles, that meets neither the definition of Group A nor that of Group B as contained in this section, but that either is designed to transport 16 or more passengers including the driver, or is used in the transportation of hazardous materials."¹⁵

A. Regulatory Developments

Since the inception of the Motor Carrier Safety Improvement Act of 1999, commercial motor vehicle drivers regulated by the FMCSA have been required to maintain hours of service (HOS) logbooks recording the driver's duty status for each twenty-four-hour period.¹⁶ In the past, commercial motor vehicle drivers had the option to record their HOS manually using a specific handwritten grid.¹⁷ As of December 18, 2017, however, motor carriers "operating commercial motor vehicles must install and require each of its drivers to use an [electronic logging device (ELD)] to record the driver's duty status."¹⁸ Although the overall implications of this new regulation are unclear, there are two particular areas of the law that will undoubtedly be affected by the FMCSA's new ELD mandate. First, the requirement of using ELDs to log HOS should improve the integrity of recording a driver's on-duty and off-duty hours. Better tracking, in turn, should improve motor carriers' and law enforcement's ability to spot HOS violations. Second, ELDs should help prevent spoliation of evidence in litigation involving commercial motor vehicles by eliminating a driver's or motor carrier's ability to destroy the

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paper logs before they can be saved in an electronic filing system. Hopefully, this will reduce the number of issues arising in trucking litigation and make for a more efficient litigation process.

In addition to the ELD mandate, the FMCSA has issued a final rule heightening the minimum training requirements of new commercial motor vehicle operators.¹⁹ These new regulations for training standards apply to "individuals applying for their commercial driver's license (CDL) for the first time; an upgrade of their CDL . . . or a hazardous materials (H), passenger (P), or school bus (S) endorsement for the first time."²⁰ The rule primarily revises the FMCSR's special training requirements²¹ to require that entry-level drivers receive mandatory training.²² The regulation went into effect on June 5, 2017.²³

Next, the FMCSA promulgated a final rule revising the medical examination report that medical examiners of commercial motor vehicle drivers must complete before issuing a medical examiner's certificate to the drivers.²⁴ This final rule was issued on April 23, 2015, and went into effect on April 20, 2016.²⁵ The new forms required by the FMCSA do not change the physical qualifications to be applied by a medical examiner, but the new forms do seek more information from the medical examiner and require more information to support their qualifying decisions, especially where medical conditions exist.²⁶ The new forms will likely lead to higher scrutiny of medical examiners that could result in more failed medical examinations and more out-of-service drivers.

Finally, the National Highway Traffic Safety Administration (NHTSA) is currently teaming with the FMCSA to make additions to regulations affecting motor carriers and drivers. Most notably, the NHTSA and the FMCSA proposed a new regulation to be added to the FMCSR that would limit the speed of certain commercial motor

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vehicles.²⁷ The proposed regulation "would require vehicles with a gross vehicle weight rating of more than 11,793.4 kilograms (26,000 pounds) to be equipped with a speed limiting device initially set to a speed no greater than a speed to be specified in a final rule."²⁸ This rule proposal has not become final and is still under deliberation.²⁹ If instituted, the rule would no doubt slow down tractor-trailer drivers and prevent many dangerous, and often fatal, vehicle collisions.

B. Judicial Developments

Pursuant to 49 U.S.C. § 31139,³⁰ motor carriers transporting property must have a minimum of $750,000 in insurance coverage for automobile wrecks involving commercial motor vehicles.³¹ In National Specialty Insurance Co. v. Martin-Vegue,³² the United States Court of Appeals for the Eleventh Circuit examined whether an MCS-90 endorsement, which guarantees the minimum level of coverage, applied in a case where the at-fault tractor-trailer driver was excluded from coverage under the motor carrier's insurance policy.³³ The case involved two motor carriers—Freight and Transport—that allegedly were both the motor carriers "for-hire" at the time of the wreck.³⁴ Evidence suggested that Freight had a contract to carry the cargo contained in the trailer involved in the collision and that Transport leased the tractor, trailer, and driver from Freight.³⁵ Freight's insurance policy specifically excluded any driver who was using one of Freight's covered vehicles under a "written lease or trailer interchange agreement," such as the driver in this action.³⁶

The individual who brought the underlying personal injury action argued here the MCS-90 endorsement applied to her claims and Freight

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was obligated to provide the minimum insurance limits despite the exclusion in its insurance policy. The court disagreed, holding the MCS-90 endorsement did not apply because Freight was not the "for-hire" motor carrier.³⁷ The Eleventh Circuit reasoned that "[f]ederal regulations define a for-hire motor carrier as a carrier in 'the business of transporting, for compensation, the goods or property of another.'"³⁸ The court determined that the driver of the tractor and trailer was hauling the cargo on behalf of Transport, not Freight.³⁹ Consequently, Transport was the only motor carrier that could be considered the "for-hire" motor carrier, and only Transport's—not Freight's—MCS-90 applied to the collision.⁴⁰

The United States District Court for the Northern District of Alabama denied a defendant's motion for summary judgment in a hit-and-run involving a tractor-trailer where there was an eyewitness who could identify the owner of the tractor-trailer from the company's display of its logo on the side of the tractor-trailer.⁴¹ In Howze v. Western Express, Inc.,⁴² the plaintiff was run off the road and injured by an unknown tractor-trailer.⁴³ Fortunately for the injured motorcyclist, an eyewitness to the incident testified that the at-fault tractor-trailer bore the words "Western Express"—the same name as the defendant in the action.⁴⁴ The court determined that the eyewitness account was sufficient evidence for a jury to determine that Western Express, Inc. "owned and operated" the tractor-trailer.⁴⁵ This ruling is important because it provides a potential avenue of recovery for...