Brad Pistotnik Law
Abogado El Toro

How does Federal Law help lawyers and attorneys to bring claims for trucking accidents about bad drivers and bad trucking companies to get punitive damages and a big settlement or verdict?

How does Federal Law help lawyers and attorneys to bring claims for trucking accidents about bad drivers and bad trucking companies to get punitive damages and a big settlement or verdict?

Many truck accident lawyers and truck accident attorneys that are not highly trained or skilled fail to use the Federal Motor Carrier Safety Administration (FMCSR), the Motor Carrier Act CSA and the CSA BASICs in their settlement demands and in their allegations in their petitions and complaints against the trucking companies and their drivers.

Unfortunately, many plaintiffs’ attorneys dabble in tractor-trailer litigation and so they do not understand the full ramification and intent of the FMCSA regulations that are known as the FMCSR and their accompanying rules known as the CSA BASICs. These unskilled attorneys and lawyers bring simple negligence claims for driver errors and they forget about all of the other claims that are able to help them make the case into a much larger case where an injured trucking plaintiff can recover hundreds of thousands or millions of dollars more by the use of regulatory claims. The use of separate claims related to negligent hiring, supervision, training, monitoring, retention and qualification of truck drivers almost always provides a separate basis for negligence.

When the commercial motor vehicle (CMV) is placed into service and on the road was defective brakes and other improperly maintained equipment, it usually provides the basis for a separate claim just for negligent maintenance of the tractor-trailer or semi.

When the truck driver is not properly licensed with a commercial driver’s license (CDL) and actually trained properly and road tested, they may not be placed into service on the state and nation’s highways.

Just because a driver has a CDL does not mean that the driver is a trained and experienced truck driver. The U.S. Department of Transportation (DOT) and the Federal Highway Administration (FHWA) issued a bulletin in 1997 to alert motor carriers and their management and operators that simple possession of a CDL does not mean the driver is a trained and experienced commercial motor vehicle driver. The publication “On Guard” found that their recent contact with truck and bus operators across the nation indicated that some of the smaller motor carriers and operators are mistakenly assuming that if a driver possesses a CDL he/she is a trained and experienced commercial motor vehicle driver. They wrote that this is not true and it can be a very dangerous mistake. They then issued a bulletin so that all future employers of commercial drivers starting in 1997 would be aware of the following facts:

  • A CDL does not indicate that the holder is a trained or experienced truck or bus driver.
  • A CDL merely indicates that the holder has passed a minimal skills and knowledge tests concerning the type of vehicle he or she proposes to drive.
  • A CDL endorsement does not indicate that the holder is trained or experienced in the area covered by the endorsement.
  • The CDL endorsement merely indicates that the holder has passed a minimal knowledge test concerning the area covered by the endorsement.
  • It is incumbent upon a prospective employer of a commercial vehicle driver to ensure that the driver is properly trained to operate that employer’s trucks or buses and to handle that employer’s freight or passengers.
  • 49 CFR 391.11(b)(3) on qualification of drivers requires that a driver must be able, by reason of experience, training, or both to safely operate the commercial motor vehicle he or she drives. This requirement is not met by simply ascertaining that a prospective driver holds a CDL.

This bulletin was prepared by the Office of Motor Carriers in 1997. See, On Guard. U.S. Department of Transportation. Federal Highway Administration. Vol 25, No. Washington D.C., January 1997.

Some of the more important regulatory violations that help prove the industry standard of care for truck drivers and commercial motor vehicles as well as Motor Carriers and Operators are set forth below.

  • Failing to meet industry standards of care set forth under 49 C.F.R. §§ 381 through 399;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 392.3 by operation of a CMV while the driver's ability or alertness is impaired;
  • For driving in excess of the maximum hours-of-service time limits which leads to fatigued driving under 49 C.F.R. § 395.1, §395.3 as well as having an inappropriate driver’s record of duty status under 49 C.F.R. § 395.8.
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 391.11(a) by operation of a CMV when the driver is not properly qualified pursuant to this regulation;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 383.113 by operating a CMV when the driver does not possess and demonstrate the safe driving skills required by this regulation;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 383.111 by operating a CMV motor vehicle when the driver does not have sufficient basic knowledge of safe operating regulations, including the effects of fatigue, safety systems knowledge, basic knowledge of basic control maneuvers, and basic information on hazard perception and when and how to make emergency maneuvers;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 383.110 by operation of a CMV without the knowledge and skills necessary to operate the same safely;
  • Failing to meet the minimum duties and industry standards set forth under 49 C.F.R. § 390.11 by failing to observe and follow the FMCSR;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R § 383.110, 49 C.F.R. § 383.112, 49 C.F.R. 383.113 by failing to have adequate safety management controls in place that would require and provide that the driver had the required skills safety management controls required under this regulation;
  • By using a cellular phone device, wireless communication device or other PDA device while operating a motor vehicle and talking, texting or looking at GPS directions, thereby violating many states laws on the use of hand held or mounted communication devices.
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 391.11 and 49 C.F.R. § 391.21, 49 C.F.R. §391.23 by failing to properly qualify the driver, and by failing to properly make appropriate investigation and inquiries of the driver’s background in the prior ten (10) year period and by failing to obtain the federally required information on the application for employment of their driver with appropriate ten (10) year background checks, criminal history checks and obtaining actual responses from prior employers;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 391.31 failing to properly road test their driver and maintain a road test completion form as required under the FMCSR and BASICs;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 392.2 for operation of a CMV while failing to have a registration or temporary registration for this tractor which did not have an IRP apportioned tag or registration;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 396.17(c) by operating a CMV without a periodic inspection;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 393.60(c) by operationof a CMV with a discolored windshield;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 393.209(d) by operation of a CMV with an inadequate steering system;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 393.75(a)(3) by operation of a CMV without adequate Brake Tubing and Hose Adequacy;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 392.207(a) by operation of a CMV with axle positioning parts that were defective or missing;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 393.75(c) by operation of a CMV without sufficient tire tread depth;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 397.17(c) by operation of a CMV without periodic or annual inspections;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 392.2 by leaving the scene of an injury accident;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 392.2 by failure to yield right-of-way at an uncontrolled intersection;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 383.23)a)(2) by operation of a CMV without a valid CDL;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 393.15(a) by operation of a CMV while disqualified and when the driver’s state license was suspended under K.S.A. 8-262;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 392.2 by operation of a CMV with excessive weight;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 393.47(e) by operation of a CMV with clamp or roto type brake systems out-of-adjustment;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 393.3(a)(1) by operation of a CMV with brakes out-of-service;
  • Failing to meet the minimum duties and industry standards of care set forth under 49 C.F.R. § 393.48(a) by operation of a CMV with inoperative/defective brakes;

There are many other rules and regulations under the FMCSR and the CSA basics. Only a seasoned and highly trained and experienced personal injury lawyer or attorney that has spent a substantial amount of time studying the mass of trucking literature that exists today and who studies the Smith System ® which trains drivers of large vehicles on how to drive defensively and learn accident avoidance techniques and hazard awareness techniques to minimize and avoid deadly crashes will be able to properly help you and your family when you have a car accident or motorcycle accident or truck accident with a large truck or tractor-trailer or semi. The Bull Attorneys ® and Brad Pistotnik including Brad Pistotnik Law ® and their team of attorneys are highly trained, educated, skilled and artful about handling wrongful deaths and serious injuries caused by these large trucks creating hazards on the nation’s highways and roads. You can call us at 800-WIN-BULL or 800-241-BRAD. Hire the Bull Attorneys! ® You can always reach Brad Pistotnik on his cell at 316-706-5020 or Tony Atterbury at 316-617-9237 or call one of our other teams members at 316-684-4400 including Jay Sizemore, Bill Barr and Corey Sucher.