Trucking Practice Tips

• For any parties known to have insurance, you should send the preservation letter to both the party and the insurance carrier.
• The FMCSR is published with “guidance”, which answers FAQs.
• Retaining Trucking Experts very early in the process can help you with preservation of evidence, discovery requests, depositions and even insurance coverage determinations.
• Don’t forget to preserve electronic data – ECM and EDR data, Mobile Communications Systems, GPS Tracking devices, Cellular phone data, EZ pass data.
• Send FOIA requests to the Federal Motor Carrier Safety Administration: FOIA Team MC – MBI 400 7th Street SW, Washington, D.C. 20590.
• Commercial Motor Vehicles include not only tractor-trailers, but also buses (including school buses), some RVs and tank vehicles.
• The FMCSR, like all regulatory schemes, changes year to year. Be sure to find and apply the regulations for the time period your collision occurred.
• 49 C.F.R. Appendix A to § 379 provides a schedule of records and periods of required retention.
• The FMCSR are a great resource in compiling your written discovery requests, as they include several lists of required documents, records and policies for motor carriers.
• Violation of the FMCSR May Constitute Negligence Per Se IF you establish 1) plaintiff was within the class of persons protected by the statute; and 2) the injury is of the type that the statute was intended to prevent.
• Companies often argue that the driver is an “independent contractor”, not an employee. The FMCSR specifically guts this defense, making the motor carrier a statutory employer. (See FMCSR § 390.5).
• Internet Brokerage Companies are a relatively new addition to the trucking world – and designed to shield shippers and carriers from liability. ALWAYS inquire about brokers in written discovery and at deposition.
• Coupling the FMCSR with the CDL Manual is an effective tool for establishing Rules of the Road and violations at deposition.
• 390.13 Can serve as foundation to apply the FMCSR regulations to non-carriers.
• 390.11 Gives you Direct Negligence against the motor carrier.
• Post-Accident, the motor carrier is required to ensure the driver receives a test for alcohol within eight hours of the incident, and a drug test within thirty-two hours. Failure to comply is grounds for a spoliation charge.
• A driver cannot drive after 15 hours of work, cannot exceed 10 hours of driving during a 15 hour period, and cannot exceed 60/70 hours within 7/8 days (depending on the motor carrier schedule). After the 60/70 mark is reached, the driver must have a 34-hour “restart”.

This page is intended as a resource for practicing attorneys only and is not to be construed as legal advice or representation.