SC Lawyer, July 2012, #1. Commercial Vehicle Cases.

• Author: By Michael Goldberg

South Carolina BAR Journal

2012.

SC Lawyer, July 2012, #1.

Commercial Vehicle Cases

South Carolina LawyerJuly 2012Commercial Vehicle CasesThe Interplay Between South Carolina Law and Federal RegulationsBy Michael GoldbergThe U.S. Department of Transportation estimates that there are more than 500,000 vehicular accidents involving commercial vehicles each year. Almost 5,000 people die in these commercial vehicle accidents. Most personal injury lawyers will handle a commercial vehicle case at some point in their career. Numerous state and federal regulations govern commercial vehicle operations. The main mistake practitioners make in handling these cases is treating them as though they were "big automobile accidents." Practitioners need to know the laws governing commercial vehicles in order to fully comprehend the scope of these cases and to handle them properly.

It is impossible to understand the law governing commercial motor vehicles without knowing the relationship between interstate motor carriers and intrastate motor carriers. Interstate commerce is commerce between any place in a state and any place in another state. S.C. Code Ann. Regs. 103-102(13) (1976). Intrastate commerce is (1) commerce between points and over a route or within a territory wholly within one state, (2) commerce that is not a part of a prior or subsequent movement to or from points outside of the state in interstate or foreign commerce, and (3) commerce that includes all transportation within the state for compensation that has been exempted by Congress from federal regulation in interstate or foreign commerce. S.C. Code Ann. Regs. 103-102(14) (1976). Federal regulations govern transportation by commercial motor vehicles in interstate commerce, while state law governs shipments that are completely intrastate and do not affect interstate commerce. Texas v. United States, 866 F.2d 1546, 1569 (5th Cir. 1989).

Definition of a commercial ve.

Under federal regulations, a commercial vehicle is defined as any vehicle, including any trailer towed by the vehicle, with a gross vehicle weight rating (GVWR) that exceeds 10,000 pounds. 49 C.F.R. 390.5 (2012). While most people traditionally envision a commercial vehicle as a tractor-trailer, a commercial vehicle can also include a heavy pickup truck, a utility work truck, a heavy van or other vehicles that weigh more than 10,000 pounds. If a vehicle, including any trailer towed by the vehicle, has a GVWR of greater than 26,000 pounds, the vehicle can only be driven by a person with a commercial driver's license (CDL) and is subject to additional rules and regulations for driver qualifications. 49 C.F.R. 383.5 (2012) 383.23 (2011). South Carolina law defines a commercial vehicle as any vehicle, machine, tractor, semi-trailer or any combination thereof that is propelled or drawn by mechanical power and used upon the highways to transport property for hire. S.C. Code Ann. Regs. 103-102(18) (1976).

Driver qualifications

Under the federal regulations, truck drivers working for interstate motor carriers must meet minimum requirements for driver qualifications. 49 C.F.R. 391.1 (2012). In order to be qualified to drive a commercial vehicle, a driver must (1) be at least 21 years old, (2) be able to read and speak the English language sufficiently to converse with the general public and understand highway traffic signs and signals and to fill out reports and records, (3) be able to safely operate the type of commercial vehicle he drives by reason of experience or training or both, (4) be physically qualified to drive a commercial vehicle, (5) have a current valid commercial driver's license, (6) provide the motor carrier with a list of moving violations over the past three-year period, (7) not be disqualified under the federal rules, and (8) complete a driver's road test or have a license that requires a road test as part of the application process. 49 C.F.R. 391.11 (2012). A driver is disqualified from driving a commercial vehicle for driving under the influence of drugs or alcohol or leaving the scene of an accident, either in a commercial vehicle or non-commercial vehicle, and is disqualified for 60 days for any second conviction within a three-year period in a commercial vehicle of (1) speeding in excess of 15 mph of the speed limit, (2) driving recklessly, (3) making improper or erratic lane changes, (4) following too closely, (5) violating any law arising in connection with a fatality, (6) texting or using a hand-held cellphone while driving, or (7) driving without a valid commercial driver's license. 49 C.F.R. 391.15 (2012).

In order to determine the qualifications of a driver, the motor carrier must require the driver to submit a comprehensive application for employment that includes a list of any accidents or moving violations for a three-year period and prior employers for a 10-year period. 49 C.F.R. 391.21 (2012). The motor carrier must obtain a moving violations report (MVR) on the driver and make a written inquiry to prior employers for the previous three-year period seeking information on the driver's history including accidents, moving violations, and drug and alcohol use. 49 C.F.R. 391.23 (2012). The motor carrier must also conduct an annual review of the driver's history to make sure the driver remains qualified. 49 C.F.R. 391.25 (2012). In addition to reviewing the driving history, the motor carrier must obtain a medical certificate attesting that the driver meets the physical qualifications required to operate a commercial vehicle. 49 C.F.R. 391.41 (2012). The motor carrier must maintain a driver qualification file with all documentation of its compliance with federal regulations on each driver. 49 C.F.R. 391.51 (2012).

South Carolina has adopted the federal regulations governing driver qualifications found in 49 C.F.R. 391 et. seq. as applicable to intrastate drivers, with the exception of federal rules allowing a driver who is physically disqualified for loss of a limb to obtain a special medical exemption found in 49 C.F.R. 391.49 (2012). S.C. Code Ann. Regs. 103-133 (1976). Under South Carolina law, intrastate drivers must also (1) possess a first aid and CPR certificate, (2) be in compliance with OSHA regulations, (3) be trained on use of safety equipment such as two-way radios, first aid kits and fire extinguishers, (4) be able to assist persons with disabilities when applicable, (5) wear a uniform and photo identification badge that identifies the driver and company for whom he works, and (6) complete 12 hours of in-service training annually in the area of safety. Id.

Drug and alcohol screens

Under federal regulations, interstate motor carriers must conduct drug and alcohol screens on drivers who are required to have a commercial driver's license. 49 C.F.R. 382.109 (2012). Under the federal regulatory scheme, motor carriers must conduct pre-employment screening of prospective drivers and random drug and alcohol screening of employee drivers. 49 C.F.R. 382.301 382.305 (2012). Motor carriers must conduct screens on drivers if there is a reasonable suspicion that they are using drugs or alcohol and must train supervisors on when to conduct reasonable suspicion testing of drivers. 49 C.F.R. 382.307 (2012). When a truck driver is involved in a vehicular accident, he must undergo a post-accident drug and alcohol screen if he is involved in an accident involving a fatality, if the truck driver receives a citation and a person involved in the accident suffers injuries requiring treatment away from the scene, or if there is disabling damage to the other person's vehicle. 49 C.F.R. 382.303 (2012). South Carolina law also requires intrastate motor carriers to conduct pre-employment, random and post-accident drug and alcohol screens on drivers who are required to have a commercial driver's license. S.C. Code Ann. Regs. 103-130(6)(D) (1976).

Hours of service regulations

Truck drivers who operate in interstate commerce cannot operate a commercial vehicle more than 11 hours and cannot be on duty sooner than 14 hours following 10 consecutive hours off-duty. 49 C.F.R. 395.3 (2012). A truck driver cannot operate a commercial vehicle after having been on duty more than 60 hours in any seven consecutive days or having been on duty more than 70 hours in any eight consecutive days. Id. Truck drivers who operate in interstate commerce must complete a daily log identifying their status as (1) on duty, (2) sleeper berth, (3) driving or (4) off duty, and they must identify each city where a change of status occurs, the miles driven and hours of each status per day. 49 C.F.R. 395.8 (2012). The requirement for keeping daily logs does not apply to a driver who operates within a 100 mile radius if the driver is released from work within 12 consecutive hours on duty and does not exceed the 11 hours maximum driving time per day and the company keeps time cards or records showing the driver's compliance with these regulations. 49 C.F.R. 395.1 (2012).

South Carolina has adopted a less stringent hours of service rule for intrastate truck drivers. Under the South Carolina rule, truck drivers cannot operate a commercial vehicle more than 12 hours and cannot be on duty more than 16 hours following eight consecutive hours off-duty. S.C. Code Ann. 565-90 (2006). An intrastate truck driver cannot operate a commercial vehicle after having been on duty more than 70 hours in any seven consecutive days or having been on duty more than 80 hours in any eight consecutive days. Id.

Federal Motor Carrier Safety Regulations

The Federal Motor Carrier Safety Regulations (FMCSR) apply to all commercial vehicles operated in interstate commerce and to every motor carrier, its officers, drivers, agents and representatives. Employees directly concerned with the inspection or maintenance of commercial motor vehicles must be knowledgeable of and comply with these regulations. 49 C.F.R. 396.1 (2012). Under the FMCSR, the motor carrier must systematically inspect, repair and maintain, or cause to be systematically inspected, repaired and maintained, all motor vehicles operated by the motor carrier. 49 C.F.R. 396.3 (2012). Before driving a commercial vehicle, the truck driver must conduct a pre-trip inspection of the vehicle to make sure it is in good mechanical condition. 49 C.F.R. 396.13 (2012). At the end of the work day, the truck driver must complete a report identifying any problems or defects with the vehicle. 49 C.F.R. 396.11 (2012). The motor carrier must also conduct a comprehensive annual inspection of all components on each vehicle that it operates. 49 C.F.R. 396.17 (2012). South Carolina has adopted the FMCSR as applicable to commercial vehicles operated in intrastate commerce S.C. Code Ann. Regs. 103-130(6)(C) (1976).

Lease liability

In many instances, the motor carrier leases the tractor and driver instead of hiring the driver as an employee. The driver is designated as an independent contractor but carries loads under the motor carrier's authority. This scenario is commonly referred to as an owner/operator lease and is designed to keep the motor carrier from being subject to workers' compensation laws for any injury to the driver. Federal regulations require an interstate motor carrier that leases a tractor and driver to have "exclusive possession, control and use" of the leased vehicle. 49 C.F.R. 376.12(c) (2012). Based on these provisions, the motor carrier is responsible to the public for the negligence of the driver even though the driver is an independent contractor. Republican W. Ins. Co. v. Williams, 212 F. App'x 235 (4th Cir. 2007); Proctor v. Colonial Refrigerated Transp., Inc., 494 F.2d 89 (4th Cir. 1974). South Carolina rules for intrastate motor carriers have even stronger language than the federal regulations and state that the "lessee has exclusive possession, control and use of the power unit and bears the complete assumption of public responsibility (i.e., insurance) for the vehicle for the duration of said contract, lease or other arrangement." S.C. Code Ann. Regs. 103-220(1)(d) (1976). Because of this language, motor carriers who lease tractors and drivers are equally responsible for the negligence of these drivers, even if the drivers are independent contractors.

Insurance requirements

Federal regulations require interstate motor carriers of vehicles with a GVWR in excess of 10,000 pounds to have $750,000 in liability coverage for non-hazardous materials, $1 million in liability coverage for hazardous materials, and $5 million in liability coverage for hazardous materials that are explosives, compressed gas or radioactive material. 49 C.F.R. 387.9 (2012). South Carolina law requires the same amount of coverage for a vehicle with a GVWR over 10,000 pounds and also requires a vehicle with a GVWR under 10,000 pounds operating to transport non-hazardous property to have $500,000 in liability insurance coverage and must have the same limits of liability coverage as a vehicle with a GVWR over 10,000 pounds for hazardous materials. S.C. Code Ann. Regs. 103-172 (1976).

Conclusion

Because federal law dominates the trucking industry, South Carolina has adopted as state law many of the federal regulations governing commercial vehicles. Practitioners must know and understand these federal regulations that are applicable in most trucking cases. It would be a mistake to ignore these regulations and handle a commercial vehicle case as though it were a regular automobile accident. Because there are some significant differences between the federal law and South Carolina law on hours of service and insurance requirements, a practitioner handling a commercial vehicle case must know if the motor carrier is governed by state or federal law and appreciate the differences in the laws.