FMCSA to Study Driver Detention in Newly Announced Audit

No matter where you work, time invariably equals money. Drivers typically work tight schedules and any interruption affects the schedules of other drivers waiting at shipping facilities. This has ripple effects to countless other drivers using the same facility to load or unload. According to a 2009 FMCSA study, U.S. carriers could gain $3.08 billion annually by eliminating loading and unloading inefficiencies. This time waiting is unproductive and inefficient, and, in the context of the trucking industry can lead to serious ramifications, including the loss of customers or fatal accidents.

The FMCSA has been studying how detention affects drivers for a long time.  One study dating back to 2001, found a correlation between long delays in loading and unloading and crashes. As part of the FAST Act, the FMCSA was directed to issue regulations on collecting data on loading/unloading delays and report on their impact on transportation efficiency and its effect on the economy as a whole. This led to the recent announcement of the Inspector General of the Department of Transportation to initiate an audit of loading/unloading delays. No current law addresses driver detention or load/unloading delays other than drivers’ HOS requirements. In announcing the audit, the IG stated “[t]ruckers who experience these delays may then drive faster to make deliveries within hours-of-service limits or operate beyond these limits and improperly log their driving time, thus increasing the risk of crashes and fatalities.” The DOT stated its goals for the audit are to assess available data on motor carrier loading and unloading delays and to provide information on measuring the potential effects of loading and unloading delays.

Besides being an issue of safety, excessive loading/unloading delays can lead to late or missed deliveries. This can then lead to the loss of customers. Also, loading/unloading inefficiencies have a more pronounced effect on smaller carriers. A Virginia Tech Transportation Institute study found medium-sized carriers were detained for similar average detention times as large carriers, but were detained about twice as often. This is due to several factors, including larger carriers having long-term customers with close relationships so that formal procedures can be adopted, familiarity with those customers’ facilities and operations, and better logistical support. These advantages also provide larger carriers with more bargaining power to include in their contracts and enforce provisions related to detention charges, which naturally impacts detention times for larger carriers. Smaller carriers and owner-operators lack this leverage.

While the audit is mainly to collect data, this audit may lead to further studies which may lead to future regulations regarding driver detention, an area where the FMCSA has long been interested in improving and one where the U.S. lags behind other countries. For example, the U.S. may want to consider the example of Australia. In 2008, Australia passed sweeping laws regarding driver fatigue. The most important aspect was the concept of the Chain of Responsibility (CoR). Under the CoR, everyone in the supply chain, not just the driver or his or her employer, is responsible for preventing driver fatigue and ensuring drivers are able to comply with HOS regulations. In the event of a safety breach, authorities may investigate along the supply chain to determine if any actions, inactions, or demands of any person in the CoR contributed to the breach and hold the those responsible liable.

Because this audit likely precedes any future regulation by years, it is even more important for carriers to do what they can now to reduce unreasonable delays that can affect their bottom line. Even though many of the factors contributing to detention times are controlled by the shippers and receivers, studies indicate several factors in the control of drivers and carriers. These factors include having a driver’s paperwork in order, driver training and retention, and working with shippers/receivers in fostering deep relationships in order to become more knowledgeable on the procedures of specific companies and facilities. Additionally, those carriers with resources to do so should consider adopting helpful technologies in the form of trailers with tracking technology or using drop and hook operations more often.

This article was written by Andrew Laquet associate attorney at Roberts Perryman PC. Andrew’s focuses his practice on transportation, insurance defense and complex litigation.

andrew

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

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Infrastructure Is A Critical And Important Issue Among Both Democrats And Republicans

It’s no secret; this is in an election year. Putting the political banter and party differences aside, there is one issue that everyone, no matter the party, can agree is an important one: Our nation’s infrastructure. Our economy is fueled by transportation and boosting it could be the nation’s unifier.

Senior fellow at The Brookings Institution, Alice Rivlin, points out that it is clear our infrastructure – especially our roads, bridges and water systems – are, in fact, “deteriorating.” A timely example of this was recently announced in our home state of Missouri. The bridge over the Missouri River in Jefferson City was being prepped for new paint when the blasting process to remove the old paint revealed the structure itself was not in good condition – a larger amount of rivets needed replaced than expected. Repairs are now underway to ensure the public’s driving safety, but this highlights just one example of the public safety issues going on with infrastructure we have no clue exist, yet depend on to get safely to our destinations. This particular bridge had approximately 28,000 vehicles using it a day. From a financial perspective, if the bridge had to be replaced in entirety, the cost would come in at 100 million dollars versus spending maintenance dollars to keep it in repair and safe at all times.

A big problem in fixing these worsening roads and bridges in the past two decades is the Highway Trust Fund. It is a transportation fund which is funded primarily from a federal gas tax of 18.4 cents per gallon for gasoline and 24.4 cents per gallon for diesel fuel, and that rate has not increased in over 20 years. The remainder comes from taxes on trucks and trailers, tires, and certain types of vehicles as well as interest credited to the trust fund. This fund is to pay for road and other transportation projects, and it has been running on a deficit and is predicted to run out of money late this summer.

The last highway bill, passed in July 2015, authorized transportation programs through late October 2015 and transferred $8.1 billion into the Highway Trust Fund (HTF). At the time, lawmakers thought the money would extend the life of the trust fund only to December 2015; but transportation officials realized that by slowing down the construction of projects this past winter, they would be able to stretch the funds until late summer of 2016.

United States Secretary of Transportation Anthony Foxx has urged the adoption a long-term transportation bill with increased funding, stating this past June 2016 that “[t]he state of our nation’s infrastructure is not a partisan talking point; it is a problem facing all Americans… As I have said many times, we cannot build tomorrow’s transportation system with yesterday’s policy and yesterday’s funding.”

Foxx is looking forward to working with both parties to pass a long-term bill that aggressively boosts investment and changes outdated policies so that America can build for the future. By modernizing the nation’s infrastructure, it will boost the economy and create more jobs.

American Trucking Association Immediate Past President and CEO Bill Graves has also spoken out on the HTF over years, realizing that the federal commitment to investment in transportation – if not properly addressed right now – could be placed in jeopardy for many years, or even decades, to come.  Newly appointed ATA President and CEO, Chris Spear, will hopefully see some much needed and significant gains begin early in his leadership tenure.

Historically the development and improvement of infrastructure has been a bipartisan effort, and as November’s election nears, Hillary Clinton and Donald Trump will likely expand on their own infrastructure investment plan. The issue will become not only which candidate is effective, but which candidate actually means what they say.

Now is the time to push all candidates, Democrat and Republican, to commit to real infrastructure improvement and hold them to it.

Updates on the Highway Trust Fund can be viewed at www.transportation.gov.

Anna Beck is an associate attorney at Roberts Perryman. Anna’s practice focuses on transportation, insurance coverage and defense.

Anna Newell

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

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Missouri Governor Vetoes Platoon Program; Comparing Apples to Oranges?

House Bill 1733 History

Earlier this month, Missouri Governor Jeremiah W. Nixon vetoed HB 1773- a bill that if passed would have authorized the Highways and Transportation Commission to promulgate administrative rules to lead to the establishment of a six-year connected vehicles technology testing program and would have allowed the platooning of two vehicles. (Platooning 101 click here: Platooning Basics Blog Post)

House Bill 1733 was approved by the Missouri General Assembly by a landslide when the House approved the bill 107-42 and the Senate approved 32-0. Notably, opposition to the bill was expressed by a well-connected-political group prior to the passing of the General Assembly. The bill also has a substantial amount of support throughout the industry- specifically from Robert Bishop, the chairman of the Automated Driving and Platooning Task Force of the American Trucking Associations and also of the Technology & Maintenance Council task force. Additionally, James Pflum, assistant resident engineer of Missouri Department of Transportation offered his support of the vetoed bill.

As expected, Governor Nixon’s veto of the bill came as a shock to many and has raised concerns about whether Nixon’s motivations behind the veto were motivated by personal political gain.

Behind the Veto

In a letter explaining Nixon’s veto, he specifically referenced a fatal accident involving a self-driving Tesla car as an example of the danger automated driving technology could pose. To someone who is unfamiliar with the technology at issue, Nixon’s safety concerns may appear to be warranted.

However, those well versed in the technology at issue are not sold since there are significant differences between the self-driving Tesla car and the platooning technology presented in the vetoed bill thus making it a meritless comparison to many.  This turned a large number of industry members’ attention to the Governor’s office.

Comparison: Self-Driving Tesla Car vs. Truck Platooning System

Many, including Robert Bishop, have come forward with their disappointment in the governor’s actions. Recently (in this article: Veto a Mistake), Bishop was reported stating that “they’re completely different”, referring to the platooning systems of the heavy trucks vs. beta-testing autopilot system in the Tesla.  Those for heavy trucks are not nearly automated as the system that allowed a Tesla to run under a semi-trailer that was turning in front of the fast-moving sedan, killing its driver.

Instead, Bishop insists that “first generation truck platooning systems are not automated. The system only controls the pedals and leaves the steering and monitoring of the road to the drivers of the two connected trucks. It does not remove the need for a driver to be present in the trucks- despite opposition group’s contentions. Autopilot systems, such as Tesla’s, automate steering, braking, and acceleration, allowing drivers to disengage from driving — hands-off, feet-off, and eyes-off.”

While the industry does not deny that there are legitimate safety questions about autopilots and driver responsibility, Bishop further asserts that these “[safety] questions don’t apply to truck platooning. While platooning, the driver experience is basically the same as with today’s adaptive cruise control systems, but at inter-vehicle distances of 50-100 feet…..platoon-enabled trucks will likely be safer than most other trucks on the road, even when not platooning,” Bishop said.

Future of the Bill

Missouri law provides for this bill to be returned to the General Assembly where a two-thirds vote of both houses will be required to override the veto. If the General Assembly votes consistently, the bill will likely go through despite Nixon’s veto….but you never know what will happen in an election year.

Emily Littlefield is an associate attorney at Roberts Perryman. Emily’s practice focuses on transportation, insurance coverage and defense.

Emily Littlefield

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

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Beware of Common Pitfalls in Equipment Leasing Contracts

The motor carrier industry is one of the most competitive in the nation, and we recognize the need for equipment leasing services.  Equipment leasing gives carriers the ability to accept shipments they otherwise might not be able to because of the resource capital needed to purchase equipment. Leasing also avoids the long term costs and liabilities that naturally come with purchasing the equipment itself.  That being said, equipment lease agreements are still contracts with provisions enforceable against the lessee.  This blog discusses some of the common clauses in these lease agreements of which potential lessees should be aware. These common pitfalls include: venue selection/choice of law clauses; clauses regarding damaged equipment, including wear and tear; indemnification clauses; and hidden charges.

Venue Selection/Choice of Law Clauses:

It is a regular practice for equipment leasing companies to include venue selection and choice of law clauses in their agreements. These clauses typically read in the following manner:

“The Lease and its Conditions shall be governed by the laws of the State of Colorado, notwithstanding any conflicts of laws provisions.”

These clauses are usually paired hand-in-hand with venue selection clauses, which commonly say:

“Any dispute or action which arises from this Agreement between Lessee and Lessor shall be within the exclusive jurisdiction of the appropriate District Court of the City of Denver, Colorado.”

According to these clauses, the agreement itself would be interpreted and enforced under the laws of Colorado, and any dispute related to the agreement would have to be adjudicated in Denver.  When dealing with larger leasing companies, these clauses can be especially inconvenient and burdensome for the equipment renter, such as a situation where the equipment was rented by a company located in Alabama from a local branch of a national company with its headquarters in Colorado which uses the above clauses.  If the Alabama company had any issues with the lease agreement and intended to file suit, or if the lessor filed suit against the Alabama company, then the only court where such claims could be filed would be in Denver, Colorado, and the contract and any other issues would be adjudicated according to the laws of Colorado.

Beware as well of certain venues being well known as plaintiff or defendant friendly.  The American Tort Reform Foundation puts out an annual “Judicial Hellholes” report.  The ATR describes their methodology of inclusion as “focusing primarily on jurisdictions where courts have been radically out of balance.” Most of the venues are considered plaintiff friendly, however, it doesn’t hurt to check to see if the venue selection in a contract is listed in the “Judicial Hellholes” report and understand why they were included.

The problems posed by these clauses range from the substantive, such as specific state law issues on damages, contract interpretation, etc., to logistical nightmares posed by a necessity to find an attorney in a foreign jurisdiction and the potential for having to travel across the country just to assert or defend your rights under the contract.

Damaged Equipment/Wear and Tear:

Typically, equipment lease agreements provide something like:

“Lessee shall maintain at its own expense and in accordance with Lessor’s Equipment Standards the equipment in good condition and free from defects. Lessee shall return all equipment in the same condition as when received, normal wear and tear excepted. Determinations as to wear and tear shall remain in the sole discretion of Lessor.”

It is not uncommon for there to be disputes between lessors and lessees as to what damages are due to wear and tear and what damages are attributable to the lessee. These clauses are typically part of the standard contractual provisions, and it is unlikely any one lessee could negotiate it out of the contract. However, the lessee can try to press the lessor to use a more precise definition of wear and tear in the contract. If the lessor will not budge on the language, the lessee would simply have to be careful in the use of this equipment in an attempt to avoid extra charges.

Indemnification Clauses:

These clauses typically read in the following manner, and are standard as part of any lease agreement:

“Lessee hereby agrees to indemnify, defend, and hold harmless Lessor from and against any and all claims, losses, liabilities,  obligations and expenses, including reasonable attorneys’ fees, which in any way arise out of or are incident to the lease, use,  possession, maintenance, control, or condition of the equipment during the lease.”

These clauses impose contractual obligations on one party, the lessee, to pay or compensate the other party, the lessor, for its own legal liabilities or losses, which usually include attorneys’ fees. The laws of the states, though, vary as to their interpretation of indemnification clauses and what is subject to indemnification. For example, some states do not permit attorneys’ fees to be part of the indemnity where it is not explicitly stated, whereas in other states the right to indemnity automatically includes the rights to attorneys’ fees.

Hidden Charges:

You may think that you’re getting a bargain at the rental rate you’ve been provided by the leasing company. Beware, though, of potential charges hidden in the terms and conditions of the lease agreement which could greatly reduce the advantage of leasing the equipment in the first place. For example, it is not unheard of for leasing companies to charge, in addition to the rental charges, mileage charges, tire wear charges, and break wear charges. These charges are enforceable contract provisions and potential lessees should be extremely wary of them.  Again, if a more precise definition can be negotiated by the lessee as to what constitutes these charges, this can help avoid additional, unplanned for cost to the lessee down the road.

As one can see, there are a number of potential pitfalls to be aware of when leasing equipment. These issues can be compounded by the fact some attorneys who represent trucking companies also represent equipment leasing companies.  If you have an attorney you use and he represents leasing companies, you might want to consider a different attorney to offer legal advice and counsel when it comes to equipment lease agreements. You can ask your attorney if he represents any leasing companies.  This is not to say every attorney who represents leasing companies would not give appropriate and sound legal advice if they also represent trucking companies.

It is always recommended to seek the advice of counsel before entering into any binding, and potentially questionable, agreement. If you have a lease agreement for equipment, or are thinking about entering into one, and have questions or concerns, contact your attorney.  Additionally, any of our attorneys at Roberts Perryman would be more than happy to answer any questions you might have.

Check out the latest Transport Topics for Andrew’s contribution to the article “States Passing Legislation to Clear Way for Platooning Tests”.

This article was written by Andrew Laquet associate attorney at Roberts Perryman PC. Andrew’s focuses his practice on transportation, insurance defense and complex litigation.

andrew

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

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Proposed Mandatory Speed Limiter Rule Delayed Once Again

A proposed rule to mandate a speed limiter on heavy-duty trucks has been delayed once again, as the rule awaits clearance from the White House’s Office of Management and Budget (OMB).

It’s been a year since the proposed rule mandating speed limiters was sent to the White House’s OMB from the Department of Transportation, and if cleared, the rule will be published with the public given 60 days to weigh in. However, the publication date for the proposed rule has been pushed back from spring to the end of the summer, and it may even be pushed back further.

This rule could require governors on all trucks weighing over 27,000 pounds. The speed limit will likely be set no higher than 65 miles per hour, but the details of the rule will not be made public until the OMB reviews the proposal.

The rule has been a joint effort by the Federal Motor Carrier Safety Administration and the National Highway Traffic Safety Administration. Among the rule’s supporters is the American Trucking Association (ATA). According to an article released by the ATA, “[s]lowing trucks down will reduce the frequency and severity of crashes. Federal data show that driving too fast for conditions or over the posted speed limit was the primary reason for 18% of all fatal crashes where a large truck was deemed at fault.”

The ATA realizes that a speed limiter rule will not prevent all crashes, but it will certainly help, as nationally, speed is a cause or factor in nearly 30% of all fatal crashes. This rule is part of a commitment to highway safety that the ATA has petitioned for since 2006 to the National Highway Safety Administration and the FMCSA.

Opponents of this speed limiter mandate include the Owner-Operator Independent Drivers Association (OOIDA), which has been cited as contending there is “a lack of solid science” to back up the mandate and that speed-limited trucks “would make highways less safe.”

As the Obama administration winds down, the progress on issues such as rulemaking begin to slow down. Only time will tell if the rule will be published by the end of summer. We will keep you posted.

Anna Newell is an associate attorney at Roberts Perryman. Anna’s practice focuses on transportation, insurance coverage and defense.

Anna Newell

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

 

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FMCSA Fires Back at OOIDA Forcefully Defending the ELD Rule

The FMCSA fired back at OOIDA in their 60-page responsive brief filed June 15, 2016 forcefully defending its ELD rule.

Rewind. What is this all about?

The Owner-Operator Independent Drivers Association (OOIDA) is the international trade association representing the interests of independent owner-operators and professional drivers on all issues that affect truckers. In 2011, the OOIDA successfully challenged the FMCSA’s 2010 rule related to electronic logging when the court overturned the rule and sent it back to the FMSCA on the grounds that the FMCSA had not adequately addressed concerns about driver harassment.

Since then: In 2012, Congress, stepped into the fray with an order to the agency to mandate ELDs and to promulgate rules preventing driver coercion and harassment. The FMCSA released its driver coercion rule in November, and included anti-harassment provisions in the new ELD rule. On December 10, 2015, the agency issued a final rule that mandates all model year 2000 and newer trucks be equipped with electronic logging devices by December 2017. Logging devices and automatic on-board recorders currently approved for use in tracking hours of service will be allowed for four years beyond the December 2017 deadline.

To say that OOIDA is not happy with the new rule would be an understatement. Jim Johnston, OOIDA president and CEO, said the ELD mandate could have the “single largest, most negative impact on the industry than anything else done by FMCSA. We intend to fight it with everything we have available.”

On December 11, 2015 (the day after the final rule was issued), OOIDA filed a Petition for Review of the ELD rule with the U.S. Court of Appeals for the 7th Circuit.  Essentially they are seeking to have the rule overturned (further discussed here: April Grab Bag – Restart Language, Weekly HOS Language & E-Log Constitutionality). The Petition asks the Court to review the ELD final rule on the grounds that the rulemaking does not improve hours-of-service compliance, fails to ensure that ELDs are not used to harass drivers and violates drivers’ fourth amendment rights to be free from unreasonable seizures and searches. The FMCSA filed their response brief on June 15, 2016.

All Caught Up- Now Onto the FMCSA’s Response

The FMCSA’s response asserts that the OOIDA is wrong on every count and they distilled their arguments for the mandate into six key points:
1. The rule was required by Congress and is consistent with their instruction that ELDs be “capable of recording a driver’s hours of service and duty status accurately and automatically.”

2. ELDs are the most “robust form of documentation” and thus more reliable at tracking hours of service than paper logs and will increase compliance with hours regulations, and prevent tampering.

3. The agency has shored up the trucker harassment concerns that caused the court the toss out the prior ELD mandate.

4. The rule will reduce crashes, according to FMCSA’s cost-benefit analysis. The agency estimated that the greater hours-of-service compliance achieved through ELDs would result in 1844 crashes avoided and 26 lives saved annually.

5. Drivers’ personal data and records are protected in adjudication processes, including when drivers file complaints against carriers. The rule takes “appropriate measures to preserve the confidentiality of personal data contained in ELDs”.

6. ELDs do not violate illegal search and seizure protections. ELDs are neither a “search” nor a “seizure” under the Fourth Amendment. ELDs are not secretly attached to motor vehicles, but rather installed willingly and openly as part of participating in the commercial motor carrier industry nor do they violate any privacy expectations because they don’t track vehicles in real-time.

The FMCSA’s response has certainly created a lot of chatter and opinions- Jim Johnson said in a recent statement, “there is simply no proof that the costs, burdens, and privacy infringements associated with this mandate are justified.”

This case is pending before the same court that overturned the previous rule in 2010.  However, the rule has undergone a substantial amount of change and Congress has since intervened making it hard to predict the outcome. Stay tuned for further developments.  We’ll be keeping a close eye on this one.

Emily Littlefield is an associate attorney at Roberts Perryman. Emily’s practice focuses on transportation, insurance coverage and defense.

Emily Littlefield

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

 

 

 

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Roberts Perryman Welcomes New Associate, Brandon Howard

ST. LOUIS, MO — 6/14/16 –Roberts Perryman PC is pleased to announce a new hire, Brandon Howard. Brandon will be working in the Springfield, MO office.

Brandon will be practicing Transportation Law & Litigation. He graduated from St. Louis University School of Law. While at Saint Louis University, Brandon wrote for the Saint Louis University Law Journal. He was also published by the Missouri Bar Association during this time. Additionally, Brandon won an award for Academic Excellence for Bankruptcy. He completed two internships while attending law school. Brandon’s first internship was for Judge Charles E. Rendlen III, Federal District Court Judge for the Eastern District of MO in Saint Louis, MO. The second internship was at Unigroup Inc., a worldwide logistics and moving/transportation company.

Previously, Brandon worked at Baird, Lightner, Millsap & Harpool, PC focusing on insurance defense. Brandon’s last position before joining Roberts Perryman was at XPO Logistics, formerly Con-way Inc. Brandon was the lead Counsel of the truckload division at XPO, the second largest freight brokerage in the world.

“We are thrilled to have Brandon join our firm.” said Mr. Perryman, Chairman of Roberts Perryman. “Brandon’s background & experience allows him a unique perspective coming from a huge player in the trucking & logistics industry. As we grow we have been focused on hiring attorneys who understand transportation and the important role client service plays in being the go-to firm for trucking defense.“

Roberts Perryman has been defending clients for over 50 years. The headquarters is in St. Louis, MO with an office in Belleville IL & Springfield MO. http://www.robertsperryman.com

Contact: Jennifer Mason, Director, Marketing & Communications
+1 314 421-1850 or e-mail jmason@robertsperryman.com

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