Kudos to my friend, Ken Shigley, an excellent Atlanta attorney and truck accident lawyer. Ken recently wrote a blog post that suggests the only real way to deter trucking companies from intentionally violating the law is to hold truck company owners and officers personally liable for their participation in dispatching unfit drivers on trips that cannot be lawfully completed. I am not yet aware of a Michigan case adopting this rationale, but as I discuss below, it is certainly something I believe lawyers specializing in truck accident litigation should be pursuing.

First, the rules that apply here certainly suggest this can be done. Violations of Federal Motor Carrier Safety Regulations provide standards of care, duty, evidence of negligence and other important truck safety rules including:

49 C.F.R. § 390.13: “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.”

49 CFR § 390.5: “Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals.”

49 CFR § 392.3: “No driver shall operate a motor vehicle, and a commercial motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.” (Read here on truck drivers under the influence.)

49 C.F.R. § 395.3 (2003 version on hours of service): “Except as provided in § 395.1(b)(1), 295.1(f), and 395.1(I), no motor carrier shall permit or require any driver used by it to drive not shall any such driver drive: (1) More than 10 hours following 8 consecutive hours off duty; or (2) For any period after having been on duty 15 hours following 8 consecutive hours off duty.”

Violations of Federal Motor Carrier Safety Administration Truck Regulations

Violations of FMCSA Regulations establish standards of care upon which a jury should be instructed in negligence actions. See, e.g., Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist., 2005); Donaldson v. J.D. Transportation Co., Inc., 2005 WL 1458230 (Tx. App. 2005); Payne v. Cornhusker Motor Lines, Inc., 2005 WL 1867727 (Mo.App. 2005); Ngueyn v. Arce, 34 Fed.Appx. 879, n. 4 (4th Cir., 2002)(not selected for publication); Green v. Prouty, 2001 WL 1773871 (Ohio App. 5 Dist., 2001); Muehlhauser v. Erickson, 621 N.W.2d 24 (Mn. App., 2000); Hagan v. Gemstate Manufacturing, Inc., 328 Or. 535, 982 P.2d 1108 (1999); Harmon V. Grande Tire Co., Inc., 821 F.2d 252 (5th Cir., 1987); Osborne Truck Lines, Inc., V. Langston, 454 So.2d 1317 (Ala. 1984); Gorby v. Schneider Tank Lines, Inc., 741 F.2d 1015, 39 Fed.R.Serv.2d 1217, 17 Fed. R. Evid. Serv. 97 (1984).

In appropriate cases, FMCSR violations may also be charged as negligence per se or negligence as a matter of law. In Hill v. Western Door, 2005 WL 2991589 (D.Colo.,2005), the court held that violation of the FMCSR driver log requirement is negligence as a matter of law. If the driver’s violation is negligence per se, there is certainly a good faith argument that the acts of the company owners who aid and abet the violation by dispatching the driver under circumstances that the violation must occur also constitutes negligence per se. See also North American Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 123-4 (Tx. App. 2001); Crooks v. Sammons Trucking, Inc, 2001 WL 1654986 (Cal.App. 3 Dist. 2001)(unpublished opinion); cf., J.R. Mabbett & Son, Inc. v. Ripley, 185 Ga.App. 601, 365 S.E.2d 155 (1988). In addition, FMCSR violations may be considered as foundations for award of punitive damages in appropriate cases. See, e.g., Trotter v. B & W Cartage Co., Inc., 2006 WL 1004882 (S.D.Ill., 2006); Came v. Micou, 2005 WL 1500978 (M.D.Pa., 2005).

Principle of Personal Liability - Truck Companies

There are certainly cases outside the truck accident context both in Michigan and throughout the country that also support the principle of personal liability of corporate officers for their personal acts and omissions. In fact, it is the same principle behind piercing the corporate veil that lawyers are taught in law school: “One who is sued in his personal capacity, whether the alter ego, an officer or agent of a corporation, may not escape personal liability for his tortious misconduct damaging employees or third persons by hiding behind the corporate veil even in those situations where the corporation might also be a proper party to the action.” Wrigley, 111 Ga.App. at 406, 141 S.E.2d 859. (210 Ga. App. at 553)

The general rule throughout the United States is that an officer of a corporation who takes part in the commission of a tort of gross negligence or reckless indifference by the corporation may be personally liable. Additionally, an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done.

With that, an owner or safety director of a trucking company that knowingly dispatches unfit or fatigued drivers or who intentionally puts dangerous, out-of-service trucks on roads that later kill or seriously injure people should be held accountable. Currently, criminal prosecution is non-existent, and too many personal injury lawyers are content to settle these cases within insurance policy limits; without pursing accountability of the real actors who cause needless and preventable truck crashes.

Perhaps it is time lawyers start taking Ken’s advice.

-    Steven M. Gursten is recognized as one of the nation’s top experts in serious truck accident injury cases. He is on the board of governors for the Association of Plaintiffs Interstate Trucking Lawyers of America and past president of the American Association for Justice Truck Litigation Group. Recently, he was named a Michigan Lawyers Weekly Leader in the Law for his efforts to promote truck safety.

-    Photo courtesy of Creative Commons, by Franco Folini

Related information:

Video for Attorneys: Phases of a Truck Accident Lawsuit

Finding the Dirt on Unsafe Truck Companies

Discovery Documents for Michigan Truck Accident Attorneys

Find a Lawyer for Your Truck Accident Case

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout Michigan. We are the largest law firm in the state exclusively specializing in truck accidents, with offices in Southfield, Sterling Heights, Detroit, Ann Arbor and Grand Rapids. For more information, please read our law firm quick facts. If you have been involved in a truck accident, call one of our attorneys for a free consultation at (800) 777-0028.

The key point of his letter is that after a shamelessly activist and extreme right-wing Court decimated decades of Michigan precedent and case law — protecting insurance companies over injured consumers no matter how absurd the result — the Freep should not now opine that restraint should be shown by our new, more moderate and centrist Court if an opportunity to restore common sense to Michigan law exists.  Examples of how ridiculous things have become after the old Court’s extreme rulings are expressed below by Mr. Brown far more eloquently than I could do so:

Your Oct. 11 editorial, “Restoring Judicial Restraint,” hits the mark, then misses the point. You rightly reveal how destructive the previous state Supreme Court was to the rights of citizens and families. But then you advise the present court to accept the legal system that the previous activist court left.

That court reversed decades-old precedent that held road commissions and local governments responsible for properly maintaining traffic signals. Under the new law that the activist court created, they can now allow traffic lights to malfunction without any responsibility, even if they ignore lights they knew were broken. So if all four lights at an intersection mistakenly show green, and cause two school buses to collide and kill the children, there is no liability on the part of the errant city or road commission.

In that instance, the court wrote a new definition of an old law that had always been understood to require safe traffic lights. It was not an oversight by the Legislature. Will this Legislature restore the old law, as you suggest? It is unlikely to agree on anything, as we are seeing in the budget debacle. Should this new law stand simply because the court ruled that way, as you suggest?

All high courts occasionally overturn or reshape precedent. Precedent is not sacrosanct simply because it exists. In its essence, precedent is binding because it is well considered, wise and legitimately created. That court routinely discarded precedent authored by the most well respected legal minds, precedent that stood the test of decades of examination and that all sides understood and accepted as fair, true and correct law.

Nevertheless, the court’s opinions became the law, but the beauty of precedent is that it can be reshaped by future courts in the interests of justice for all.

Jose T. Brown
Chairperson
Negligence Law Section
State Bar of Michigan

-    Steven M. Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. Steve has received the largest reported jury verdict for an automobile accident case in Michigan in four of the past seven years, including 2008, according to Michigan Lawyers Weekly.

-   Photo courtesy of Creative Commons, by CedarBenDrive

Related information:

Michigan No-Fault Insurance Law

Do I Have a Case?

Michigan Supreme Court Blogs

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Call (800) 777-0028 for a free consultation with an auto accident attorney.

On Friday, the U.S. Department of Transportation, Federal Motor Carrier Safety Administration (FMCSA), announced it was awarding NIC Technologies, LLC, the contract for a National Motor Carrier Pre-Employment Screening System.

This new service is designed to spread commercial truck drivers’ safety and driver performance history as part of a more comprehensive pre-employment screening process. It will assist the trucking industry in assessing individual operators’ crash and safety violation inspection history as a pre-employment condition. Drivers will also be able to obtain their individual history.

The new system launch as early as December 2009. It will be developed and maintained using a self-funded, transaction-based model. It is anticipated that users of the service will pay a subscription fee of $100 per year and a $10 transaction fee for each record pulled. There will be additional fees for records requested via fax or mail. Individual truck drivers requesting their own record will not be subject to any subscription fee.

As an experienced truck accident lawyer who has spoken and testified about the dangerous lack of safety today regarding truckers and trucking companies that choose to disregard mandatory truck safety laws, I applaud the Obama administration and Transportation Secretary Ray LaHood.  I hope Secretary LaHood is indeed correct when he said, “Safety is our number one priority at the Department of Transportation.  This new initiative will help trucking companies ensure the safest drivers are behind the wheel of commercial trucks and buses…Making this information more transparent will make our roads and highways safer for everyone.”

How the Pre-Employment Screening System Can Help Truck Accident Lawyers

For lawyers handling truck accident cases, this new service could also be an incredibly important new source of discovery about the truck driver who causes a crash.  Lawyers should add this to standard interrogatories to trucking companies to see if they have subscribed or checked new hires with this service. (Visit our web page on how to use SafeStat to determine the safety of any truck company in the U.S.)

I’ve blogged and lectured to other trucking lawyers about new theories of liability, including making available a former employer’s insurance policy limits for failure to report past safety violations. I wonder if this new service may also open up new avenues of liability to trucking companies that routinely ignore their obligations under the FMCSR to report accidents, as well as drug and alcohol violations of former employees who then go on to cause serious crashes.

It seems that a company that fails to report similar violations to this new service may also be vulnerable, and rightly so, for a claim against it for violating reporting requirements in the type of case where the new employer would argue it never would have hired an obviously unfit truck driver if past safety violations had been evident.

My thanks to my friend, Joe Fried, at Fried, Rogers, Goldberg in Atlanta for alerting me to this new development.  Keep up the great work and results, Joe.

-    Steven M. Gursten is recognized as one of the nation’s top experts in serious truck accident injury cases. He is on the board of governors for the Association of Plaintiffs Interstate Trucking Lawyers of America and past president of the American Association for Justice Truck Litigation Group. Recently, he was named a Michigan Lawyers Weekly Leader in the Law for his efforts to promote truck safety.

- Photo courtesy of Creative Commons, by jakebwotha

Related information:

Finding the Best Truck Accident Lawyer

Truck Driver Fatigue

Lawyer Video: Discovery in a Truck Accident Case

8 Things About Your Truck Accident Case

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout Michigan. We are the largest law firm in the state exclusively specializing in truck accidents, with offices in Southfield, Sterling Heights, Detroit, Ann Arbor and Grand Rapids. For more information, please read our law firm quick facts. If you have been involved in a truck accident, call one of our attorneys for a free consultation at (800) 777-0028.

Sound outrageous?

As an attorney who has handled hundreds of very serious truck accident lawsuits throughout my career, and as past-president of the American Association for Justice Truck Litigation Group, I see versions of this scenario time and time again.

This week, I had the pleasure of being interviewed by Chicago Fox 2 News reporter Larry Yellen.  Larry was looking for a national expert on serious truck accidents cases caused by truck drivers who were drunk or high on illegal drugs. He was investigating the case mentioned above.

Here are some of the topics I covered with Larry:

Again, in the case Larry was investigating, the truck company responsible for the accident did not have drug testing protocol in place. But federal law requires that drivers operating any truck that’s more than 26,000 pounds must be tested after causing catastrophic truck accident.

Why aren’t trucking companies testing their drivers as they are legally required under 382.303 and 382.401 of the Federal Motor Carrier Safety Administration Regulations?

“Disappearing” Truck Drivers: The Lying Game to Avoid Serious Consequences

I’ve lost count of how many truckers I’ve deposed who caused a catastrophic truck accident and then “disappeared” immediately afterward; sometimes for days, and always when drugs or alcohol were suspected in the crash.

The truck drivers disappeared because the trucking company safety directors and owners knew full well that there would be almost no consequences for telling drivers strongly suspected of using drugs or alcohol  to disappear for a few days. For example, according to a 2008 GAO report on motor carrier safety, the average fine for failure to perform post-truck accident drug testing is $1,802.  There is very little in the way of civil fines, and the threat of criminal prosecution is nonexistent.

Compare that, with the very substantial threat of a large punitive damages verdict (in a state other than Michigan, which does not have punitives and therefore has some of the worst truck drivers on our roads) and the potential of a very large potential multi-million dollar liability for allowing a driver suspected of using drugs or alcohol to operate a truck.

And the average fine for failure to remove a driver with a positive drug test?  $3,141.  Almost nothing.
So, if a truck driver kills or seriously injures somebody because they are under the influence of drugs or alcohol, there is almost no penalty.

There is a lying game being played here. If a trucking company owner or truck safety director strongly suspects drugs or alcohol involved in a crash, what do you think he or she will tell the drivers to do?  What’s worse, a $1,802 fine, or a potential multi-million dollar punitive damages claim or civil judgment?

Like I discussed in my blog about experienced truck accident lawyers estimating  200,000 truckers under the influence, these truckers who just caused a catastrophic truck accident aren’t going home once they’ve caused an terrible accident, because it’s too easy to find and test them. It’s always the same story: They go to the home of a “friend” or “relative,” claiming they were so emotionally upset by the crash that they had to be consoled.  For days.  And then these truck drivers reappear after the alcohol in their system metabolizes, or they’ve taking masking agents to remove traces of the illegal drugs they’ve taken.

Or, my personal favorite.  When these truckers know they’re going to busted, and there will still be traces of drugs in their system by the time they “reappear,” they claim they were so upset from the crash they caused that they took drugs AFTER - to cope.

And why not lie? The penalties are so much less, it’s literally easier for truck companies to break the law and ignore the mandatory requirement to perform drug testing.

-    Steven M. Gursten is recognized as one of the nation’s top experts in serious truck accident injury cases. He is on the board of governors for the Association of Plaintiffs Interstate Trucking Lawyers of America and past president of the American Association for Justice Truck Litigation Group. Recently, he was named a Michigan Lawyers Weekly Leader in the Law for his efforts to promote truck safety.

Related information:

Find a Lawyer for Your Truck Accident Case

SafeStat: Finding the Dirt on Unsafe Truck Companies

Lawyer Video: Why So Many Truck Accidents in Michigan? No Punitives

Is There a Trucking Company Conspiracy to Cheat on Drug Testing?

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout Michigan. We are the largest law firm in the state exclusively specializing in truck accidents, with offices in Southfield, Sterling Heights, Detroit, Ann Arbor and Grand Rapids. For more information, please read our law firm quick facts. If you have been involved in a truck accident, call one of our attorneys for a free consultation at (800) 777-0028.

If there’s one truth to emerge from the horrifically flawed Michigan Supreme Court ruling in Kreiner v. Fischer, a case that has doomed thousands of auto accident victims in Michigan, it is this:

The word “normal” doesn’t mean what you think it does.

At least not for innocent Michigan residents who have suffered serious personal injury from car accidents and must now follow Alice into Wonderland.  Linda Berishaj has had to learn that lesson the hard way.

Despite undisputed evidence documenting how a horrific motor vehicle collision drastically altered her life, Ms. Berishaj was just told by a three-judge panel of the Michigan Court of Appeals that her collision-related injuries didn’t prevent her from resuming the “normal life” she had enjoyed before the crash.

What makes this latest ruling, Berishaj v. Shkreli, et al., so bewildering, outrageous, and injust, however, is not simply that it is the latest extension of our Supreme Court’s tortured, judicially activist ruling in Kreiner.

What’s really bewildering is that the Court of Appeals could look at the injuries suffered by Ms. Berishaj as a result of her car accident and just dismiss them as if she were complaining about a skinned knee.

Some “skinned knee!”

Is Berishaj the Worst Kreiner Casualty Yet?

Before her car crash, Ms. Berishaj went to work everyday at a job that required physical activity. She walked freely and independently without the use of prostheses. She had no problems with concentration or pain.

That life came to a screeching halt the day of her accident.

Her crash-related injuries disabled her from working for 15 months.

As an attorney specializing in auto accidents, I’ve read all the cases interpreting Kreiner and Michigan’s auto threshold law.  Fifteen months makes Berishaj the longest in “time off work” after an auto accident that I am aware of.  The Court of Appeals has essentially said that 15 months off work is not “serious enough” to constitute a serious impairment of body function under Kreiner.

Not serious enough?  Really?

But Ms. Berishaj didn’t return to her job after 15 months.  When her doctors did clear her, they imposed physician restrictions. First, Ms. Berishaj couldn’t return to the job she had before the collision. Second, she was restricted to working a desk job. And third, she could work only if she used a walker.

But that’s not all. For the first five months after the car accident, Ms. Berishaj’s injuries confined her to a wheelchair. For the next five months, she could walk only with the assistance of a walker. Now, for the indefinite future, Ms. Berishaj can’t walk without the assistance of a cane.

In addition to losing the ability to work her previous job and having to abide by the other restrictions, Ms. Berishaj has concentration problems and pain prevents her from attending work meetings.

Ms. Berishaj raised these points in her lawsuit seeking compensation for the pain and suffering she has and will continue to endure as a result of her serious accident-related injuries.

Serious Impairment Car Accident Injuries Fall on Deaf Ears

So far, her pleas have fallen on deaf ears in Michigan courts. (Read the following blog on other injury cases that have been shot down because of Kreiner.) Macomb County Circuit Court Judge James M. Biernat Sr. dismissed Ms. Berishaj’s case when asked to do so by the insurance lawyers hired to defend the negligent driver who had caused her injuries.

And when she appealed that ruling to the Michigan Court of Appeals, the appellate judges were shockingly unsympathetic to her plight. In a per curiam opinion signed by Judges Christopher M. Murray, Jane E. Markey, and Stephen L. Borrello, the judges said Ms. Berishaj “had failed to establish that her impairments ‘affected [her] general ability conduct the course of … her normal life.’”

In reaching its outlandish conclusion, the Court certainly glossed over Ms. Berishaj’s injuries preventing her from doing her job for a year and three months, and preventing her from returning to the job she had had prior to the collision. Instead, they pointed out that “[n]onetheless, she returned to work 15 months after her accident,” as if to say “So what if she missed a little work? She eventually went back to work, didn’t she? That’s all that matters.”

Importance of Work Not a Priority to Michigan Courts

Regrettably, these Court of Appeals judges make no mention of the importance of work in peoples lives.  Someday, this common sense approach may come back into favor in Michigan courts, despite having long ago been washed away in the messy wake of the Supreme Court’s Kreiner travesty by the “Majority of Four.”

In 2003, slightly more than one year before the Supreme Court would hand down its ruling in Kreiner, Judge William B. Murphy wrote the following in the Court of Appeals’ Kreiner opinion:

“We find that one’s general ability to lead his or her normal life can be affected by an injury that impacts the person’s ability to work at a job, where the job plays a significant role in that individual’s normal life … Employment or one’s livelihood, for a vast majority of people, constitutes an extremely important and major part of a person’s life. Whether it be wrong or right, our worth as individuals in society is often measured by our employment. Losing the ability to work can be devastating; employment, regardless of income issues, is important to a sense of purpose and a feeling of vitality. For those working a standard forty-hour work week, a quarter of their lifetime before retirement is devoted to time spent on the job. An injury affecting one’s employment and ability to work, under the right factual circumstances, can be equated to affecting the person’s general ability to lead his or her normal life. For many, life in general revolves around a job and work. It would be illogical to conclude that where a person loses the ability to work because of an injury resulting from a motor-vehicle collision, after being gainfully employed, the person’s life after the accident, in general, would be unaffected.”

Although the Court of Appeals miraculously and necessarily acknowledged that walking was an important body function, it flat-out ignored the fact that Ms. Berishaj has not and likely will never regain her ability to walk freely, independently and without the assistance of a wheelchair, walker or cane.

Ms. Berishaj’s case is not only another casualty of the Supreme Court’s absurd and ill-conceived ruling in Kreiner, but it is also another gut-wrenching example of how devastatingly unjust Kreiner has become and how shocking our auto accident threshold law must now appear to any resident of this state.

Considering the:

•    Unworkable framework of Kreiner’s analysis,
•    Distorted interpretation the Court of Appeals and the trial courts have given Kreiner,
•    Cover Kreiner provides any trial court and appellate judge - as well as Supreme Court justices - to ignore the plain, compelling and dramatic facts presented by pain-ridden and suffering motor vehicle accident victims…

It’s time to demand that Kreiner and the Kreiner-era body of jurisprudence be brought to its long-overdue end.

Soon.

- Steven M. Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the past seven years, including 2008, according to Michigan Lawyers Weekly.

Related information:

10 Lessons for Michigan Car Accident Attorneys

Help for Attorneys Handling Truck Accidents

13 Ways to Meet Serious Impairment of Body Function

Car Accident FAQs

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Call (800) 777-0028 for a free consultation with an auto accident attorney.

The presentation below shows you exactly how to use SafeStat, a Federal Motor Carrier Safety Administration Web site that details the Department of Transportation’s assessment of a truck company’s regulatory compliance:

Meanwhile, I’d like to give a shout out to my personal friend Morgan Adams, an excellent truck accident lawyer, and current chair of the American Association for Justice Interstate Truck Litigation Group. Morgan e-mailed me a very pointed observation after reviewing my SafeStat presentation. On the overview tab on slide 7 about Safety Evaluation Areas (SEAs), we noted that SEAs are ranked on a scale of 1 to 100, with higher scores equaling a non compliant safety history. A score of 75 plus indicates a very deficient truck company that is subject to increased inspections.

When discussing driver safety, Morgan made an important insight that really helps put these scores in a context that everyone can better understand.  A truck driver safety value of 53 is, technically, “OK.”  But is it really?  Especially when a truck driver is behind the wheel of an 80,000 pound vehicle on our roads?

Morgan writes:

“I would never say that 50 percent is OK. Are you OK in school at 50 percent?”

Morgan’s remark is important for everyone - not just truck accident lawyers - to understand. We should never be complacent about safety. We as truck accident attorneys must continue to demand safer laws and regulations for the trucking industry. As I said yesterday, a good start is considering suing load brokers and others that are putting out of service trucks on the roads with unqualified drivers behind the wheel, without regard to the safety on our roads to save a few cents per mile.

-    Steven M. Gursten is recognized as one of the nation’s top experts in serious truck accident injury cases. He is on the board of governors for the Association of Plaintiffs Interstate Trucking Lawyers of America and past president of the American Association for Justice Truck Litigation Group. Recently, he was named a Michigan Lawyers Weekly Leader in the Law for his tireless efforts to hold trucking companies accountable for negligence.

Related information:

Finding the Right Truck Accident Attorney: Video

Meeting with Your Michigan Truck Accident Attorney

Regulated Hours for Truckers

8 Things to Know About Your Truck Accident Case

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout Michigan. We are the largest law firm in the state exclusively specializing in truck accidents, with offices in Southfield, Sterling Heights, Detroit, Ann Arbor and Grand Rapids. For more information, please read our law firm quick facts. If you have been involved in a truck accident, call one of our attorneys for a free consultation at (800) 777-0028.

Why does this happen?

Why do trucking companies do this?

What are the financial incentives that create these dangerous conditions for the public?

As an attorney specializing in truck accidents, former president of the American Association for Justice Truck Litigation Group, and a member of the Board of Governors for the Association of Plaintiff Interstate Trucking Lawyers of America, allow me to explain what I see every day in my own truck accident cases.

There are a number of smaller trucking operations who will hire anyone, rules be damned.

And I do mean anyone.

One study suggests as many as 25 percent of truck drivers for these small one to 10 vehicle truck companies are even driving without CDLs. There are also a number of one-man operations where the guy goes out, buys a truck and works as a subcontractor; again in many cases, without a CDL or proper insurance.

And it goes like this: These local “gypsy” or “bandit” truck companies subcontract with load brokers on the Internet, let’s say, for 90 cents a mile (which is a low bid). The load broker is paid $1.50 a mile, so there is big money at stake for the load brokers to use unsafe trucking companies that do not play by the rules. They have a huge incentive to subcontract to the cheapest drivers, who not coincidentally, are also often the most unfit drivers that can bid lower than everyone else. In other words, these are the truckers who are not performing safety and maintenance checks and not properly insuring the trucks.

The subcontractors also hire the worst drivers. Remember, a good truck driver who has an excellent safety record and has driven a million miles without causing any accidents is more expensive. This is how truckers who have caused too many serious truck crashes or who have a criminal past get hired. Remember, all the load broker has to do is bid on a contract on a computer. The load brokers keep the difference and have a huge financial incentive to hire the low bid.

Finding the Bad Truck Companies

But this practice is something that is incredibly easy to prevent from a load broker’s standpoint.  It just takes two clicks on the Internet — one click to a FMCSA website called Safersys.org, type in the name of the carrier and then click to the truck company safety snapshot. Visit our truck accident attorney Web page for a step-by-step guide to finding the dirt on unsafe trucking companies using Safersys and SafeStat.

Most of these unsafe trucking companies and drivers have either a conditional safety rating (which means that the company has demonstrated it does not have appropriate safety programs), an unsatisfactory rating, or no rating whatsoever.

In Michigan, there were 1,087 trucking companies that had either conditional or unsatisfactory safety ratings. I discovered this astounding and scary fact after I sent a FOIA request to the FMCSA last year.

There is no easy answer. State-hopping by bad truckers is common, as is trucking companies shutting down and re-opening under a new name, but with the exact same unsafe trucks and unfit drivers. While the regulatory and enforcement vacuum continues to exist, allowing this to happen, the only short-term solution is to work with experienced truck accident attorneys who know what to look for and can properly investigate the real facts behind horrific truck accidents.

To my lawyer friends out there in other states, start suing those load brokers. They are putting the good truckers and trucking companies out of business, and picking the cheap bids without any regard to public safety or whether these trucking companies are following mandatory safety laws.

Many literally have blood on their hands.

-    Steven M. Gursten is recognized as one of the nation’s top experts in serious truck accident injury cases. He has received the largest reported jury verdict for an auto accident case in Michigan in four of the last seven years, including 2008.  Recently, he was named a Michigan Lawyers Weekly Leader in the Law for his tireless efforts to hold trucking companies accountable for negligence.

- Photo courtesy of Creative Commons, by Howardigantius

Related information:

Support for Truck Drivers

Truck Driver Safety

Finding the Right Truck Accident Attorney

Start Your Michigan Truck Accident Investigation Fast

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout Michigan. We are the largest law firm in the state exclusively specializing in truck accidents. For more information, please read our law firm quick facts. If you have been involved in a truck accident, call one of our attorneys for a free consultation at (800) 777-0028.

I realize many people may disregard what I say, as an attorney handling truck cases, when I opine on this issue. But last year, a Government Accountability Office report to Congress called the Department of Transportation’s drug and alcohol testing program for truck drivers unreliable and riddled with problems.  For example:

“Our testing clearly shows that the drug user could easily beat the DOT drug test, even if the collection sites followed all of the DOT protocols,” said Gregory Kutz, managing director of forensic audits for the Government Accountability Office. “The test can be beat using counterfeit documents, synthetic urine or adulterants.”

Another GAO official, Katherine Siggerud, told the House Transportation Committee’s highways subcommittee, “There appears to be a significant lack of compliance [with drug and alcohol rules] among motor carriers, particularly small carriers and self-employed drivers.”

Rep. Peter DeFazio (D-Ore.), chairman of the highways subcommittee, said the danger of truck drivers with drug and alcohol problems in the present is “absolutely devastating.” He added that the investigations showed, “in the United States, we have no meaningful program of drug testing for commercial truck drivers. None.”

Rep. James Oberstar (D-Minn.), chairman of the full Transportation and Infrastructure Committee, agreed: “To find that [our drug-testing program] falls so grossly short, as you put it, is shocking.”

The GAO looked at the way test protocols were handled. Said Kutz, “with respect to protocols, 22 of the 24 sites that we visited failed at least two of the 16 DOT protocols we tested for.”

Products to “Beat” Drug Tests

Another industry official, as quoted in DOT Drug tests Faulty, GAO Tells House Panel, by Sean McNally in the Transportation Topics Nov. 12, 2007, issue said: “Products designed to ‘beat’ the test are marketed brazenly on the Internet.” This makes samples unreliable, even when a trucking company has a testing program in place.

Oberstar has criticized the practice of marketing and selling masking agents or synthetic samples.
“There’s no other beneficial use for those products — they ought to be banned,” he said.

Oberstar said the current system of relying on drivers to self-report positive drug tests to employers, and past employers to provide information to prospective ones was not good enough, as it allowed drivers to “jump from job to job to job and leave their drug history behind.”

GAO Report on Drugs and Truckers

The GAO report describes a flawed oversight system that allows truckers to fail a drug test and yet move on to driving for another company. Fewer than half of the estimated 85,000 truck drivers who test positive in random drug tests each year are believed to complete the required treatment and follow-up testing to return to their jobs, according to a story by Gregg Jones of the Dallas Morning News.

The GAO report also found that some trucking companies don’t bother to conduct the required pre-employment and random drug tests and have limited incentives to do so. According to the report, only about 2 percent of all trucking companies undergo checks each year by state agencies and the Federal Motor Carrier Safety Administration, which regulates interstate traffic.

In addition, truckers who choose to do so can beat the testing system by using false IDs and chemicals to alter their urine for drug tests. If caught, they easily move on to other trucking companies, again, which the GAO described as “job-hopping.”

If they fail both at beating the test and job-hopping, they can “state-hop,” since the states don’t communicate.

The report concluded that drug use could be significantly higher among truck drivers than what the random test data indicates, because not all companies actually test, urinalysis can be unreliable and results can be altered. For example, GAO investigators who posed as truckers appearing for drug tests weren’t required to empty their pant pockets at 10 of 24 sites. The requirement is designed to prevent a driver from using drug-concealing agents or substituting clean urine samples.

Among the report’s recommendations is the creation of a national database of truckers who fail drug tests. This could at least start weeding out the irresponsible truck drivers in exchange for the ones who truly care about safety, hopefully preventing thousands of unnecessary truck accidents.

-    Steven M. Gursten is recognized as one of the nation’s top experts in serious truck accident injury cases. He has received the largest reported jury verdict for an auto accident case in Michigan in four of the last seven years, including 2008.  Recently, he was named a Michigan Lawyers Weekly Leader in the Law for his tireless efforts to hold trucking companies accountable for negligence.

- Photo courtesy of Creative Commons, by micahb37

Related information:

Michigan Truck Rules and Regulations

Do I Have a Truck Accident Case?

National Truck Accident Statistics

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout Michigan. We are the largest law firm in the state exclusively specializing in truck accidents. For more information, please read our law firm quick facts.

Now imagine 100,000 truckers on our roads on drugs and alcohol.

According to the Commercial Vehicle Safety Alliance (CVSA) Roadcheck 2008, 1 percent of the truck drivers who were stopped during checks were under influence of drugs or alcohol. One percent  multiplied by the number of truck drivers on our roads would be 92,500 truck drivers under
influence of drugs or alcohol.

Now double that.

Most experienced truck accident lawyers believe there are least 200,000 truck drivers on our roads today with substance abuse problems.

Why do truck lawyers think 100,000 truckers on drugs is just the beginning?

The Roadcheck inspections are considered a joke by many in the trucking industry. The inspection dates are announced five months in advance; and everyone in the industry knows exactly when the inspections are going to occur. That means most trucking companies will keep their trucks with safety violations (and really bad truck drivers) off the roads during the three inspection days.

Keep in mind, despite everyone knowing the dates of this safety “pop quiz” and with many trucking companies avoiding roads during this time, the CVSA still found 1 percent of all drivers under the influence of drugs and alcohol!

Attorneys handling truck accident cases believe the number of intoxicated truck drivers is at least double that for the following reasons:

* Doctor shopping,

* Industry-wide cheating on drug testing,

* Truck drivers hired without criminal history or background checks, and

* “Disappearing” truckers following crashes where drugs and alcohol are suspected.

Below is a synopsis on each of the above factors.

Doctor shopping

When your professional livelihood depends upon being cleared to drive a truck, and you know you have a major problem that will prevent you from being cleared to drive a truck; trust me, you’re going to go find the doctor that says you can go back to work.

This is called “doctor shopping” and it’s a very serious problem. Here’s how it works: There are certain doctors that many truckers with serious medical issues visit. These doctors clear them and get them to drive — even with very serious medical issues, including drug and alcohol dependencies.

An MSNBC article, “Study finds sick truckers causing fatal wrecks,” covered this last year, noting high numbers of truckers with heart issues, seizure disorders, extreme fatigue and sleep apnea. The story also called for doctors to step up scrutiny of drivers’ medical conditions.

Doctor shopping has been rampant in the trucking industry for a very long time. In fact, in 2001, there was a safety recommendation by the Federal Motor Carrier Safety Administration to prevent drivers from specifically choosing their own doctors, because so many medically unfit drivers were being cleared to drive.

Industry-wide cheating on drug testing

There is essentially an industry conspiracy to cheat on drug tests for truckers. One recent instance of irresponsibility is in the trucking trade magazine Transport Topics. In its April 14, 2008 issue, the publication listed the names of products used to cheat on drug testing, allowing drivers to purchase them on the Internet, thereby avoiding positive drug tests.

You just can’t make this stuff up.

Another great example of how easy it is for truckers to cheat on drug testing comes from a transportation logistics company, J.B. Hunt Transport Services. I think J.B. Hunt should be commended for this. A top safety official for J.B. Hunt named Greer Woodruff recently reported that it had achieved more accurate drug testing results from testing hair samples of drivers than the usual urine samples.

A hair sample test is dramatically harder to cheat than a urinalysis. According to J.B. Hunt, 866 drivers applied for a job in 2007, and 9.22 percent tested positive for drugs based on the hair sample, but only 1.59 percent of the exact same group tested positive through traditional urinalysis.

Drug cheating is so prevalent and so widespread, that an additional 7.63 percent of the truck drivers applying for jobs were discovered positive when J.B. Hunt used hair testing instead of urinalysis. (Hair drug testing does not detect recent use, as it takes 5-7 days for the hair to grow enough to be tested. But hair testing is much better at detecting a history of drug use.)

Additionally, the Government Accountability Office has told Congress that the Department of Transportation’s drug and alcohol testing program for truck drivers is unreliable and riddled with problems. Tomorrow I will expand on the GAO statements, and how the problem of industry-wide cheating on drug testing is worst than your worst nightmare.

No criminal background checks

There is no requirement under 391 of the Federal Motor Carrier Safety Administration Regulations to perform a criminal background check on a truck driver. Michigan law does not demand them either.

This is how truck drivers with histories of marijuana and cocaine use, criminal drug distribution, and other problems are hired and allowed to drive these large commercial vehicles.

“Disappearing” truckers

Over the years, I’ve witnessed that truckers who have caused serious or catastrophic truck accidents tend to “disappear” immediately afterward, especially where drugs and alcohol are suspected. This is because truck company safety directors know there will be little in the way of fines or criminal prosecution for failing to drug test, compared to the substantial threat of punitive damages and large liability for failed safety programs.

These truck drivers don’t go home, because it’s too easy to be found and tested. They always seem to go to the house of a “friend” or “relative,” claiming they were so emotionally upset by the crash that they had to be consoled. They always reappear after the alcohol in their system metabolizes, or the drug trace disappears.

There is a game being played here.  If a trucking company owner or truck safety director strongly suspects drugs or alcohol involved in a crash, the last thing he or she will do is test for it, even though testing is required under 382.303 and 382.401 of the FMCSR.  The choice is easy and the problem, as any experienced truck accident lawyer will tell you, is this happens time after time.

-    Steven M. Gursten is recognized as one of the nation’s top experts in serious truck accident injury cases. Steve has received the largest reported ury verdict for an automobile accident case in Michigan in four of the last seven years, including 2008.  Recently, he was named a Michigan Lawyers Weekly Leader in the Law for his tireless efforts to hold trucking companies accountable for negligence.

- Photo courtesy of Creative Commons, by Meepocity

Related information:

How to Find the Dirt on Unsafe Truck Companies

Dangerous Michigan Truck Companies

8 Things to Know About Your Truck Accident Case

Michigan Truck Accident Attorney Promotes National Truck Safety

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout Michigan. We are the largest law firm in the state exclusively specializing in truck accidents. For more information, please read our law firm quick facts.

I settled a tough motorcycle accident case last month on the eve of trial.  My client had very serious injuries, and the insurance company was offering zero.  Preparing for trial, I had focus-grouped the case a number of times to mock juries. Even as an attorney who specializes in motorcycle accidents, the results surprised me.

In each focus group, there were members of the mock jury who were already blaming my client, for no reason other than he was riding on a motorcycle when the crash occurred.  This — combined with some recent statistics I found on motorcycle crashes — is leading me to share the biggest mistake lawyers make when handling motorcycle accident cases. Avoiding this mistake can help all personal injury lawyers protect clients from being unjustly blamed for causing a crash when they are not at fault.

First, consider the most recent findings from the National Transportation Safety Board:

* Motorcycle accidents were up 17 percent in 2007.

* Fatalities from motorcycle crashes increased 7 percent.

* In 41 percent of these, the motorcyclist was legally drunk.

* In 25 percent of these accidents, the motorcyclist was unlicensed.

* 37 percent of bikers were speeding when they were involved in motorcycle accidents.

* 20-29 year old motorcyclists are more likely to crash, but 30-49 year old bikers are more likely to die.

What Does this Mean for Motorcycle Accident Lawyers?

First, the obvious: Motorcycles are dangerous. And far too often, as the above statistics demonstrate, a motorcyclist is drunk, speeding or has exercised poor driving judgment. Now, the not-so-obvious lessons: Many people think a motorcyclist was drunk, speeding, or exercising poor driving judgment…even when he was not and is, in fact totally innocent!

Personal injury attorneys handling motorcycle accident cases should expect defense attorneys to blame bikers, even when they are completely innocent, because like it or not, most jurors who do not ride motorcycles have a propensity to blame the motorcyclist. This unfair perception many people have of all motorcyclists (even one who is a safe and experienced operator) makes these cases very dangerous — especially for lawyers unfamiliar with motorcycle accident laws and accident reconstruction principles.

Aggressive voir dire on this subject is an absolute must for any lawyer going to trial in a case involving a serious injury from a motorcycle crash.

What Else Should Motorcycle Lawyers Do?

Having handled many serious motorcycle accident cases, and at the heels of several successive focus groups on a tough, contested liability motorcycle injury case, here are some important trial themes we developed to prevent defense lawyers from unfairly blaming motorcyclists:

* The rules of the road apply to motorcyclists just as they would to anyone else on the road.

* Motorcycle riders are entitled to same protections as any other person or vehicle on the road.

* A car or truck driver has to see what is there to be seen, whether it’s a motorcycle or car.

* A driver has to yield to a motorcyclist who has the right of way in the same manner as any other vehicle.

* Motorcyclists are entitled to an entire lane of traffic.

* Motorcyclists are entitled to the same three-to-four-second follow distance, just as with a car or truck.

The motorcycle injury case I was preparing for trial settled for $825,000 in Monroe, Mich. The insurance company went from the previous offer of nothing, in large part, to these themes.

My client was initially found at-fault when a driver turned in front of his oncoming motorcycle, and was unable to give his version of events to the investigating police officer at the scene because of a traumatic brain injury. Applying the rules and themes above, I proved that my client was entitled to the same protections and safeguards as anyone else.

I wouldn’t be surprised if our personal injury law firm has handled more motorcycle accident cases in its 50 years than any other lawyer or law firm in Michigan. One of the things I’ve come to understand is that motorcycle cases are different from other types of cases. Our attorneys understand the physical, psychological and financial hardships motorcycle accident victims experience, including a “triple-whammy” in many of these cases. Usually, motorcycle injuries are more serious than car accidents, but without the Michigan no-fault insurance benefits to help pay for medical bills and wage loss. Read here for information on insurance for motorcyclists. Then, there’s juror suspicion and a predisposition to blame the victim.

My client would have received nothing, regardless of the fact he was innocent and unfairly blamed for causing an accident. This example shows that an experienced motorcycle accident lawyer can help.  If you have questions or wish to speak to a motorcycle accident lawyer about your circumstances, please call Michigan Auto Law for a free case evaluation at (800) 777-0028.

-    Steven M. Gursten heads Michigan Auto Law. He is recognized as one of the nation’s top experts in serious motorcycle accident injury cases and insurance no-fault litigation. Steve received the largest jury verdict for an auto accident and top reported overall personal injury settlement in Michigan in 2008, according to year-end verdicts and settlements report. He is available for comment on motorcycle accident law in Michigan, motorcycle crashes and catastrophic personal injury cases.

- Photo courtesy of Creative Commons, by f360biker

Related information:

Motorcycle Accident FAQs

What To Do After a Motorcycle Crash in Michigan

Michigan Motorcycle Insurance Protection for Catastrophic Injury

Crotch Rocket Motorcycle Deaths Continue to Rise

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. For more information, please read our law firm quick facts.