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Trucking Crashes

Ken Levinson Speaks on Multiple Topics at AAJ Convention

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From July 14-18, trial attorneys from across the country will converge on the Pennsylvania Convention Center in Philadelphia for the American Association for Justice’s (“AAJ”) 2023 Annual Convention.
Levinson and Stefani’s founding partner, Ken Levinson, will be giving the three following presentations:

July 14th: The Melvin M. Belli Societies’ 75th Annual Seminar – “Top Non-Legal Books Trial Lawyers Need for Their Practice.”

July 16th: The Advocacy Track: Freedom of Trial: Methods to Identify and Overcome Various Forms of Jury Bias Program – “What Focus Groups Have Taught Us About Presenting Our Cases.”

July 17th: The Truck/Bus Litigation Group Program – “Most Recent Trends for Focus Groups and Framing Your Client’s Truck and Bus Crash Case.”

Ken founded his firm in 2014 in order to offer client-first legal representation for victims of personal injury from auto, truck, and bus crashes. Ken is a co- author of Litigating Major Automobile Injury and Death Cases, published by AAJ Press/Thomson-Reuters. Ken holds leadership roles with the American Association for Justice and the Chicago Bar Association. Ken also sits on the Illinois Trial Lawyers Association Board of Managers.

Many Concerns Still Loom Over Driver Safety, FMCSA Says

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“We’re looking at the latest crash trends. They concern us,” said FMCSA Office of Research and Registration associate administrator, Tom Keane, at the recent Analysis, Research, and Technology Forum. “So, we’re taking a wholesale look at our programs, reassessing where we might be able to do some things differently. We’re talking with our state partners to figure out what the best practices are, and where we might be able to go from here moving forward.”

This discussion arises as many FMCSA officials presenting findings regarding recent statistical and research-related updates, including those surrounding heavy truck-related crash fatalities and injuries, which have seen a steady increase over the last few years. One particular worry is the increase specifically in regards to truck-involved pedestrian deaths, according to FMCSA’ analysis division chief, Bill Bannister.

Other areas of major safety concern in fatal crashes, according to FMCSA officials, include work zone accidents, distracted driving, failure to use a seat belt, and speeding. 

Bannister added that other risky behaviors often involved in dangerous crashes are cell phone use and drug- and alcohol-impaired driving.

“However, we should note that a little more than two-thirds of truck fatal crashes have no driver-related factors cited in the crash,” Bannister noted. Furthermore, he explained that although we do indeed see an uptick in fatal truck crashes, the overall number of bus and truck crashes leading to fatalities is well below the number of these crashes that were reported in the year 2000.

It is important to note, though, that the National Highway Traffic Safety Administration’s methods around collecting data through its Fatality and Analysis Reporting system underwent changes in 2016–the year pickup trucks weighing in at an excess of 10,000 pounds were first counted as being ‘large trucks,’ thus changing considerations regarding comparisons of crash numbers in recent years and those prior to 2016.

“Starting in 2016, NHTSA improved its methodology in assessing the number of trucks, adding pickup trucks to the mix that would have previously counted as small trucks,” Bannister explained.

Pertaining to on-site focused and on-site comprehensive carrier investigations, FMCSA’s acting associate administrator for its Office of Enforcement, Joe DeLorenzo, explained that 2020’s investigation numbers show the ways in which the agency should change its approach to compliance enforcement.

“I think that’s kind of a good story,” he said. “I also think it starts to make us think about lessons learned and what our posture may be in terms of enforcement going into the future, and using maybe more of a blended approach which we were heading in [the direction of], anyway.”

Last year, FMCSA conducted a total of 5,052 off-site carrier investigations, 3,926 on-site focused carrier investigations, and 2,903 on-site comprehensive investigations.

“What this shows is that it does seem that we were able to do as many, or more, investigations remotely during the COVID-19 national health emergency–or any other situation–but also continue to identify non-compliance in those carriers that are presenting us with high risk,” DeLorenzo continued. “It really [made us feel] good about how that worked and how quickly the agency was able to transition.”

One surprise in terms of what was found during these inspections was that the number of hours-of-service violations–besides violations related to 30-minute mandatory break times–saw little to no decline since the HOS regulation change was officially put into effect, boosting break and driving time flexibility for truckers.

“Generally, I had hoped to see 14-hour violations, and maybe 11-hour violations, starting to go down,” DeLorenzo said. “We haven’t quite seen that yet.”

Another recent regulation change was that of electronic logging device mandates, and in December 2020, 92.4 percent of ELD data transfers during inspections went smoothly, up from the average success rate of ELD data transfers of 88.6 percent in 2017.

“This is a little bit of an overlooked part of the ELD rule, but it’s particularly important to me, because what I am hoping to see here as time goes on [is that] we are able to increase the data transfers,” said DeLorenzo, “[so] we should be able to see efficiency in the inspection process.”

Still, it is indeed surprising that even with the recent ELD and hours-of-service regulation changes going into effect last year, the overall number of violations found during these routine roadside inspections saw very few changes–or improvements.

“It doesn’t seem that [in] 2020, even with the pandemic–albeit at lower levels–violation rates really changed in any way, [nor did] types of violations from years past,” DeLorenzo said.

2020 International Roadchecks Have Been Set for May Fifth Through the Seventh

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The Commercial Vehicle Safety Alliance (CVSA) an organization that includes both local and national government officials in North America, as well as industry representatives, will be conducting its International Roadcheck this year on May 5-7. The Roadcheck is an initiative meant to focus attention on the importance of commercial vehicle safety through a 72 hour marathon of roadside vehicle inspections throughout North America. 

Inspectors will be checking both vehicles and drivers. They will conduct driver interviews, review documents, and check their records and inspection reports. Inspectors will also be looking for signs that a driver may be ill or fatigued, and whether the driver displays any signs of drug or alcohol abuse.

The inspectors will also conduct vehicle inspections to make sure drivers are operating a properly maintained rig. CVSA inspectors will be placing decals on vehicles on which no critical violations are found during their Level I or Level V inspections. However, inspections that do reveal critical violations may be rendered out of service until any violations are corrected. 

Some drivers or motor carriers may decide they want to sit out the inspections all together. If you stay off the road in early May there is less of a chance of having to go through an inspection. However, not driving to avoid getting checked is not only unsafe it is also a bad business move. 

If you’re not driving, you’re not earning. The purpose of running any efficient transportation business is to make a profit. With plenty of time and a warning of upcoming inspection dates, drivers and motor carriers can prepare to make sure all their logs, records, licenses, certifications, and vehicles are in proper order. A vehicle that doesn’t pass and is put out of commission cannot produce an income. A vehicle that has violations but is hidden from inspectors creates a great safety risk to professional drivers and to the public who use the roads. When a crash happens, you can be certain that there will be law enforcement, government officials, and lawyers scrutinizing over records and conducting inspections to find violations. In these situations, the risk of being put completely out of business is a real consequence that motor carriers can face. Even if the majority of a given company’s fleet is violation free, the part that is not can result in a shutdown. 

Chances are that everything we see around us from goods, food, to furniture got to where it is at least in part by a truck. Commercial motor carriers are operating in a business that holds definite risks to public safety and property damage when people do not follow safety rules. If motor carriers or drivers do not follow safety rules and a crash occurs, government inspectors can cause the whole operation to be shut down. Crashes can also lead to insurance rates skyrocketing, making it too expensive to keep the business running. 

Public safety is not the only concern when it comes to operating a commercial trucking company. IF a driver gets hurt as the result of an unsafe truck the company that driver works for can incur costs for worker’s compensation and will be short a driver. Additionally, vehicles are expensive. It costs money to fix or replace a damaged truck. Taken as a whole, it will certainly be less expensive to properly maintain a fleet of vehicles and follow all the proper safety rules rather than to cut corners. It’s much less expensive to stay safe than to recoup after a crash. Of course, your life and health are priceless. 

New Federal Rules Will Help Trucking Companies Hire Safe Drivers

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The Federal government has adopted new policies aimed at taking unqualified truck drivers off the road. Registration is now open for the Drug and Alcohol Clearinghouse, a new substance abuse screening system for truckers that is scheduled to be operational early in 2020 . The Clearinghouse is a database that will keep track of drivers who have violated drug and alcohol policies in order to stop them from operating commercial vehicles. The Federal Motor Carrier Safety Administration anticipates that the implementation of this database will substantially reduce motor vehicle crashes involving heavy trucks. 

The federal rules regarding professional truck drivers already prohibit drivers from getting behind the wheel when they test positive for illegal drugs. Of course, everyone knows that drunk driving is illegal. The Clearinghouse database will allow trucking companies to screen drivers applying for jobs to see if they have previously tested positive for drugs and are looking to get hired at a new place. Drivers can also lookup their own information once they have registered with the Clearinghouse themselves. Once registered, drivers can search for their own information for free. The database will include information about whether a professional driver has any drug or alcohol program violations and, if applicable, the status of their petitions to return to duty. 

The new system is meant to act as a check on drivers who violate substance abuse rules follow the proper protocol to get back in to good standing, if possible, before they are allowed to keep driving. Drivers with commercial driver’s licenses, employers, law enforcement, medical review officers, and substance abuse processionals will be among the groups who will be authorized to access the Clearinghouse. 

As for what should be reported to the database – Federal Statutes cover that: 

Employers will report a driver’s drug and alcohol program violations. Medical review officers will do this as well. A driver does not need to register him or herself into the system for a medical review officer to enter a violation in the system. In fact, it is not mandatory for a driver to register. But, if an employer needs to conduct a full check on a driver, that driver will have to register. This means, drivers who don’t want to take part may not be able to get hired for certain jobs because perspective or current employers will not be able to conduct a full search on the database for their information. After January 6, 2019 a driver will have to be registered with the Clearinghouse in order for an employer to be able to conduct a full search on their record for new hires. Drivers who are registered will be able to give their consent to release drug and alcohol program information to employers. Also, when new information is added to their profile, drivers will receive notifications from the Clearinghouse in the mail or electronically. 

Drug abuse is a problem that needs to be addressed with treatment and counseling. Allowing drivers to keep working when they have a substance abuse problem by slipping through bureaucratic cracks doesn’t help drivers who may need help to get sober. It obviously makes roads less safe. 

In the computer age with so much information going digital, this just makes sense. Professional truck drivers have a difficult job. They have to work long hours, often by themselves, away from their families. They have to keep alert on the road and get enough rest to do so. Drug use is a problem that poses a great risk to the health and safety of, not only professional drivers, but also everyone else who shares the road with them. Safety is on the roads is imperative. This database is likely the least intrusive way to keep records of drug and alcohol program violations so that employers know if they are sending a driver out on the road with the proper credentials. 

FMCSA Altering Motor Carrier Scoring

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The Federal Motor Carrier Safety Administration (FMCSA) recently announced a plan to remove some types of truck crashes from how it tracks and scores trucking companies’ safety records. The FMCSA’s Compliance, Safety, Accountability (CSA) site, which compiles safety data on the nation’s motor carriers, had been criticized in the past for including collisions that may not have been the fault of the truck driver or trucking company. The agency has been testing the revised system since 2017, but now plans on making the changes more permanent.

FMCSA’s Safety Measurement System

“The Federal Motor Carrier Safety Administration’s (FMCSA) core mission is to prevent crashes, injuries, and fatalities related to large trucks and buses on our Nation’s roads.” Working toward this goal, the SMS is designed to help motor carriers incorporate federal safety rules into their operations. Adherence to these regulations is assessed by reviewing on-road performance and compliance, then analyzing the data into seven categories: Unsafe Driving, Crash Indicator, Hours- of-Service Compliance, Vehicle Maintenance, Controlled Substances/Alcohol, Hazardous Materials Compliance (HM), and Driver Fitness. These categories are referred to as Behavior Analysis and Safety Improvement Categories, and are commonly referred to as a BASIC score. The BASIC score for every motor carrier in the United States is used to create a percentile-based safety ranking.

The Crash Indicator category had included all crashes involving a motor carrier’s trucks, regardless of fault. While this made the scoring system easier from a data-collection standpoint, it drew the ire of the trucking industry because it arguably penalized a truck or bus driver for a crash that was caused by someone else.

Certain types of truck crashes eligible for review

The “new” program will allow carriers, including owner-operator truck drivers, to contest certain crashes. If the crash is determined not to be the fault of the carrier or driver, the resulting points would be removed from the Crash Indicator score, thereby improving (or, more accurately, not reducing) the percentile ranking.

With the program, the following types of crashes are eligible for review:

  • When the commercial motor vehicle (CMV) was struck by a motorist driving under the influence (or related offense)
  • When the CMV was struck by a motorist driving the wrong direction
  • When the CMV was struck in the rear
  • When the CMV was struck while legally stopped or parked, including when the vehicle was unattended
  • When the CMV struck an individual committing or attempting to commit suicide by stepping or driving in front of the CMV
  • When the CMV sustained disabling damage after striking an animal in the roadway
  • When the crash was the result of an infrastructure failure, falling trees, rocks, or other debris
  • When the CMV was struck by cargo or equipment from another vehicle

Beginning in October, the FMCSA will begin accepting review requests for the following additional types of truck and bus crashes:

  • When a truck is hit by a vehicle that did not stop or slow in traffic.
  • When a truck is hit by a vehicle that failed to stop at a red light, stop sign or yield sign.
  • When a truck is hit  by a vehicle that was making a U-turn or illegal turn
  • When a truck is hit by a vehicle driven by a driver who experienced a medical issue that caused the crash.
  • When a truck is hit by a driver who admits to falling asleep or being distracted (by a phone, passengers, etc.)
  • When a crash involves a driver under the influence.
  • When a crash involves a driver operating in the wrong direction, even if the truck was hit by another vehicle other than the one driving in the wrong direction.

Potential impact

As with many revisions to regulations and review processes, the potential impact will likely not be fully seen for some time. From a common sense standpoint, it seems fair that carriers shouldn’t be penalized for a crash that is neither their nor their driver’s fault. While that is true, there are questions that need to be addressed:

  • Who reviews the requests?
  • What kind of investigation is involved in the review?
  • Will there be transparency?
  • Will the review process be adequately funded and staffed? Or will a backlog of requests lead to nothing happening?

If the plan works as intended, it should result it more accurate safety rankings for carriers. This would, in theory, lead to safer motor carriers have better scores, and less safe motor carriers having worse scores. Obvious as this may seem, it is critically important for people who care about highway safety. A more credible scoring system would allow companies to select safer carriers to transport their cargo. A more reliable safety ranking would let shippers avoid carriers that cut corners and ignore rules and regulations intended to protect the general public.

Speaking from experience handling numerous truck crash cases, the truck is not always at fault. Or, I should say, one of the trucks isn’t always at fault. In many of our trucking cases, we represent a truck driver who was hit by another truck. Being on the road so frequently, it stands to reason truckers are more exposed to getting hit by other trucks. In a very real sense, safe trucking benefits truckers. Adhering to hours-of-service limits, hiring qualified drivers, and implementing drug awareness programs are all examples of actions carriers should be rewarded for. Safe truckers and truck companies that follow the rules should be advocating for any system that ranks them higher than those that do not.

Correctly identifying who is safe and who is not is a step in the right direction for everyone.

Technology Could Stop the Rise in Fatal Truck Crashes

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Despite numerous safety regulations put in place to protect commuters, the number of traffic deaths involving semis and large trucks is on the rise. This puts travelers in passenger vehicles at greater risk on our nation’s highways. Rear end accidents are the most common types of crashes with big rigs going too fast and failing to stop in time to prevent crashes.

A lot of new cars are equipped with automatic breaking technology that assists drivers when they get too close to vehicles in front of them on the road. There has been no action in Washington and resistance by the trucking industry to require installation of automatic emergency breaking systems or warning signals in large trucks to try and decrease, if not eliminate, rear-end truck wrecks. Instead the death toll keeps climbing.

Driving a truck is hard work. Federal regulations allow truck drivers to work 11 hour shifts and they do. A trucker has to stay alert and focused on the road, traffic, and other potential hazards for extended periods of time. Add to that the time constraints that shippers place on getting their goods delivered on time and you have the potential for fatigued operators who might be driving too fast.

With trucks being the largest and heaviest vehicles on the road, it makes sense to require trucking companies to equip their rigs with sensor technology that will alert drivers when they are following too close to other vehicles. A big rig can destroy another semi in a high speed collision, and a truck driver may be more protected from injury in a big vehicle, but riders in passenger cars are at a much greater risk of injury or death from a rear-end collision from a truck. This is clearly a case where technology could help save lives.