Liability Implications for Hours of Service Regulations
When a commercial motor vehicle is involved in an automobile collision, directly or indirectly, the motor carrier and driver often end up as defendants in litigation. Almost immediately, written discovery leads to requests for the driver’s work hours and log books for the past week, month, or even year. The intent of the Federal Motor Carrier Safety Administration’s (FMCSA) Hours of Service (HOS) regulations is to make commercial motor vehicle (CMV) operation safer by managing the amount of time drivers spend on the road. As technology has improved, and with the help of an FMCSA mandate, which is currently “phasing in” a requirement of electronic logging devices (ELD) use, more and more carriers are using ELDs to track driver compliance with HOS regulations through data collected by ELDs. This means that the work hours or log book data plaintiffs seek in discovery is now more readily available.
As a reminder, the HOS rules allow CMV drivers who have been off duty for ten (10) consecutive hours (sleeping or resting) to drive a maximum of eleven (11) hours within a fourteen (14) hour window once back on duty. In addition, the rules require drivers to take at least 30 minutes off duty no later than eight (8) hours after coming on duty if they wish to continue driving after the eighth hour. Lastly, the rules do not allow drivers to drive after having accumulated 60 hours of on-duty time in seven (7) consecutive days of any given week, or 70 hours in eight (8) days. Drivers may restart the 60/70-hour ‘‘clock’’ by taking 34 consecutive hours off duty.
The stringent and outdated (having not been updated in over 15 years) HOS rules have had unforeseen negative effects on drivers—such as forcing them to drive during the heaviest traffic times or counting the time they sit in traffic against their permissible driving hours. This, in turn, has led to HOS violations— off of which plaintiff’s attorneys attempt to capitalize. Data gathered by ELD companies indicate that the most commonly violated HOS rules are the 30-minute rest break, the 14-hour overall on-duty limit, and the 11-hour driving limit. Unsurprisingly, these violations are exactly what plaintiffs hope to find in discovery to bolster negligence claims against drivers and carriers by arguing that a driver was over-worked, tired, or asleep when a crash occurred.
As a result, while the rules may or may not be making CMV operation safer, they have been causing problems for drivers and costing fleet owners and their insurers money in litigation.
On a positive note, the FMCSA is currently considering changing the HOS rules by making them more flexible to eliminate some of the problems they have created for drivers. In feedback gathered by the FMCSA, from the industry, its CMV drivers have suggested eliminating the 30-minute off duty rule, allowing rest breaks to stop the 14-hour clock, and increasing the 11-hour driving limit. If the FMCSA succeeds in its HOS revisions, perhaps in time there will be a reduction in the prevalent use of HOS rule violations captured by ELDs as fuel in litigation fires.
For more information about this articled, please contact Elena Patarinski at 804.932.1996 or epatarinski@fandpnet.com.
