The most interesting development is the FMCSA’s desire to regulate the “transportation-life cycle.” FMCSA makes no bones about it: this transportation-life cycle phrase is designed to pull shippers, brokers and consignees into the regulatory process.

The FMCSA also continues its long standing complaint that it is unable to regulate passenger vehicles when it’s clear that passenger vehicles cause 75% of car-truck accidents. FMCSA plans to increase partnerships with state law enforcement to eliminate high risk activities around commercial motor vehicles.

The FMCSA also appears to be focused on preventing the reincarnation of chameleon carriers and eliminating fraud in the CDL process. It’s also no secret that the FMCSA wants to establish rulemaking to revise 49 C.F.R. § 385, Safety Fitness Procedures, so that the safety rating of the motor carrier is tied to the Compliance, Safety, and Accountability (CSA) Safety Management System (SMS). If they get their way, your Basic scores will be your safety rating.

FMCSA seems determined to continue to make more data available to the public, while acknowledging that the quality of the data is currently a problem. It would seem that increasing the quality of the data should be a priority before broadening the scope of the data that’s available. More concerning to motor carriers is the potential for expansion of programs such as the “safer bus mobile app” which purports to give consumers safety ratings of passenger carriers.

 Also problematic is the FMCSA’s backpedaling from the current regulations regarding carrier safety ratings. Unlike CSA/SMS, the current 49 C.F.R. § 385 creates the safety rating procedure through the due process of the Administrative Procedures Act. While the satisfactory/conditional/unrated/unsatisfactory framework are the current rules, FMCSA has recently issued a “shipper and insurer briefing” which states that “a satisfactory safety rating does not mean that the carrier is currently in compliance and operating safely.” In other words, although FMCSA has inspected the carrier and given that carrier a satisfactory safety rating, the FMCSA refuses to stand behind its statutorily mandated rulemaking, and instead pushes safety qualification of carriers onto shippers, brokers and plaintiff’s lawyers. More specifically, FMCSA “encourages the public to use the FMCSA information available to help make sound business judgments.”

This is problematic for a number of reasons. First, this abdication of the safety rating regulations is unacceptable and leaves shippers and brokers in the precarious position of not having clear guidelines in what should be an area that is federally preempted. When the FMCSA approves a carrier for operation, that should end the determination. There is nothing in the rulemaking to appoint shippers, brokers and plaintiff’s lawyers as the entities for qualifying carriers.

Further, with only 200,000 of the 525,000 active carriers having even one scored Basic, shippers and brokers are without data to make decisions as to the other 325,000 carriers.

In summary, the five-year plan along with recently issued positions on CSA/SMS should concern shippers and brokers as well as carriers. All of the parties in the “transportation life cycle” should contact their representatives and demand FMCSA do its job of qualifying carriers to operate on the roads of the United States.

Rob Moseley is a Partner in Smith Moore Leatherwood’s Greenville office, and the firm’s  transportation team leader.  He is   also  on the board of directors of the South Carolina Trucking Association, a member of the Safety & Loss Prevention Management Council of the American Trucking Associations and a member of both the National Truck & Heavy Equipment Claims Council and the Association for Transportation Law, Logistics and Policy.

Often times, these suspensions occur in states other than the driver’s home state. This leads to poor reporting of the suspensions to the home state because the violations never make it to the home state motor vehicle record (MVR). When the records don’t show up on the MVR, the motor carrier is not aware of the violation, even if it checks the records. When the driver is stopped on the roadside, it is possible that the roadside officer will have access to a database that gives the officer notice of the suspension. That leads to a violation for the motor carrier being cited for employing a driver without a valid CDL.

Recently, our firm filed a Data Q Challenge on behalf of a client. The violation involved an invalid CDL for which the carrier was assessed eight points on the FMCSA’s SMS system. The driver’s license was suspended for failing to pay a traffic ticket in a state other than its home state. In other words, even though the suspension never made it to the driver’s MVR, this violation continued to show on the motor carrier’s report. When the Data Q Challenge was filed, the responding officer indicated that the motor carrier should have checked driver MVRs for this particular driver in all 48 continental United States. Presumably, this would need to happen on a monthly basis as the driver’s annual MVR review had not rolled around following the out-of-state suspension.

The violation charged was 49 C.F.R. 391.15(a), which is for driving a CMV while disqualified. This violation particularly makes no sense when it’s related to the failure to pay a traffic ticket, child support, or some other civil obligation. None of these affect a driver’s safety on the road.

Section 391.15(a) states that a motor carrier shall not “require or permit a driver who is disqualified to drive a commercial motor vehicle.” Further, section 383.37 prohibits a motor carrier from “knowingly” allowing, requiring, permitting or authorizing a driver to operate a CMV in the United States. The FMCSA has interpreted 383.37 to require the motor carrier’s actual knowledge of the suspension.Thus, it seems that carriers should aggressively challenge these types of Driver Fitness Basic violations on the grounds that it requires actual knowledge of the suspension.

In conversations with roadside enforcement, we have become aware that this issue is one that is currently being addressed. We are hopeful that the regulations will be enforced as written and that violations for suspensions which are not visible on a driver’s home state MVR and which do not affect safety be eliminated.

Rob Moseley is a Partner in Smith Moore Leatherwood’s Greenville office, and the firm’s  transportation team leader.  He is   also  on the board of directors of the South Carolina Trucking Association, a member of the Safety & Loss Prevention Management Council of the American Trucking Associations and a member of both the National Truck & Heavy Equipment Claims Council and the Association for Transportation Law, Logistics and Policy.

Another positive development is that the South Carolina Transport Police and the Department of Public Safety are designated as the only two agencies charged with commercial motor vehicle enforcement, severing municipalities. At times, municipalities began enforcing motor carrier safety Regulations and did so inefficiently and inaccurately. This is helpful for a number of reasons.

Thanks for the efforts of the South Carolina Trucking Association in bringing about this positive development. The new law is effective immediately.

Rob Moseley is a Partner in Smith Moore Leatherwood’s Greenville office, and the firm’s  transportation team leader.  He is   also  on the board of directors of the South Carolina Trucking Association, a member of the Safety & Loss Prevention Management Council of the American Trucking Associations and a member of both the National Truck & Heavy Equipment Claims Council and the Association for Transportation Law, Logistics and Policy.

The program is managed via web-based access that is accessible to drivers, motor carriers, medical examiners, enforcement officials, and the general public. However, protected health information will not be accessible. Registration for medical examiners who wish to be certified and listed on the registry will be available August 20, 2012. The FMCSA has announced as a goal the certification and registration of 40,000 medical examiners.

What the rule seeks to accomplish.

Stated generally, the NRCME clarifies and adds uniformity to the DOT physical and medical certification process and establishes requirements for healthcare professionals that perform physical qualification examinations for interstate commercial drivers. FMCSA states that it developed the National Registry “to improve highway safety and driver health by requiring that medical examiners be trained and certified so that they can determine effectively whether a CMV driver’s medical fitness for duty meets FMCSA’s standards.” The rule clarifies that, in order to issue a DOT medical certificate, a practitioner must be either a doctor of medicine, doctor of osteopathy, doctor of chiropractic, physician’s assistant, advanced practice nurse, or any other medical professional authorized by the particular state’s law to perform physical examinations. Moreover, in order to be included on the registry and thus permitted to conduct DOT physicals, the practitioner must first pass an examination of the FMCSA medical certification requirements as set forth in 49 C.F.R. part 391.43(c), as well as the medical advisory criteria set forth by the FMCSA. Once registered, a medical examiner must be recertified every ten years, and must complete periodic refresher training every five years.

Beginning May 21, 2014, all DOT medical examiners will have to be certified and registered with the NRCME and all drivers will have to obtain medical certificates from a certified and registered medical examiner. The examiners are required to consistently and uniformly apply the driver qualification standards in all driver examinations. Additionally, medical examiners are required to transmit certain information on drivers examined (name, date of birth, driver’s license number and state of issue, date of examination, examination outcome, whether the driver is intrastate only, and the date on which the certification expires) on a monthly basis. This information is submitted electronically by way of a secure connection to the FMCSA National Registry website.

Application and requirements for drivers.

The new rule will apply to both interstate commercial drivers as well as intrastate drivers carrying placarded amounts of HAZMAT. Although, beginning May 21, 2014, a driver must obtain his medical certificate from a registered medical examiner, a medical certificate issued before May 21, 2014 will remain valid until its date of expiration. States will continue to establish their own requirements for intrastate drivers, although states that receive Motor Carrier Safety Assistance Program (“MCSAP”) grant funds are required to adopt regulations compatible with the Federal regulations – though they are not being required to establish their own state registries.

Drivers and motor carriers can locate registered examiners via the National Registry website by name, location, or identification number. Upon completing and passing their physical examination, drivers will be issued a medical certification card (the short form) just as they have been prior to the new rule. The only difference is that the card will list the medical examiner’s national registration number. With respect to internationally-domiciled drivers from Canada and Mexico, these drivers are not subjected to the requirements and their drivers’ licenses themselves serve as proof of the drivers’ medical qualification. Of note, the medical certification requirements in both countries is actually quite strict – Canada permits only medical doctors to perform examinations and medical examinations in Mexico are conducted by Federal government doctors or government-approved doctors. Moreover, the FMCSA has compared its physical qualification standards to the Mexican requirements and found them to be appropriately aligned.

Currently, the FMCSA is not transmitting medical certificate information to state agencies; however, they are considering a new rulemaking that would require the FMCSA to transmit medical certificate information to state driver’s licensing agencies. At this time, it will remain the responsibility of drivers to submit medical certificates to state licensing agencies and drivers may contact their state agencies for information concerning the state-specific process for submitting certifications.

Requirements for motor carriers.

Motor carriers are required to obtain an original copy of their drivers’ medical certificate (short form). However, they are not required to obtain copies of their drivers’ Medical Examination Report (long form). Upon request to the medical examiner, a motor carrier employing a driver is entitled to receive an original copy of the driver’s medical certificate. Beginning May 21, 2014, all carriers are required to verify their drivers’ medical certifications upon hiring or expiration of a medical examiner’s certificate by validating them against the medical examiner’s registration number. Additionally, this verification must be noted in the driver qualification file. However, there is no requirement for the carrier to recheck the registry to ensure the examiner remains properly registered and has not been involuntarily removed.

Additionally, employers will continue to have the option to require their employee drivers to be examined by a medical examiner selected and/or compensated by the motor carrier. The basis for this is 49 C.F.R. part 390.3(d), which provides that nothing in the FMCSRs “shall be construed to prohibit an employer from requiring or enforcing more stringent requirements relating to safety of operation and employee safety and health.”

Conclusion.

So, what does this mean for motor carriers? Certainly, the NRCME will do much to unify the standards of medical examiners performing DOT physicals and ensure that medical examiners conducting driver medical certifications have been trained in FMCSA physical qualifications standards and guidelines. It will also allow motor carriers to verify driver representations regarding medical approval. However, the new requirements will certainly reduce the number of medical providers willing to conduct DOT physicals. At this time, there were no medical examiners listed within 500 miles of Greenville, SC. Of course, with a decreased supply and more stringent requirements, the cost of these physical exams will certainly rise.

Joseph Rohe is Of Counsel in Smith Moore Leatherwood’s Greenville office. Mr. Rohe  has worked in the areas of commercial litigation and insurance defense in Charleston, while also completing an American law degree at the Charleston School of Law. He is now a member of the firm’s Transportation Team.

In Edso Exporting LP v. Atlantic Container Line AB, 2012 U.S. App. Lexis 5720 (2d Cir. March 20, 2012), Edso Exporting contracted with Atlantic Container Line for the shipment of a crane from Baltimore to Tripoli. The crane was damaged in transit, and the principal issue before the court was the applicability of COGSA’s limitations on the carrier’s liability. The crane itself was shipped unpackaged and Edso did not declare any value of the crane in the bill of lading. Therefore, it was essentially undisputed that Edso’s damages were limited under COGSA to $500 “per customary freight unit.” Atlantic Container, of course, argued that the crane itself constituted a customary freight unit and that Edso’s damages were accordingly limited to $500 total. On the other hand, Edso argued that the shipment was rated based on size and therefore the customary freight unit should be each cubit meter, resulting in a much larger limitation on liability of $61,000. The United States District Court for the Southern District of New York sided with Edso, holding that because the pricing was based on weight, the cubic meter constituted the customary freight unit.

On appeal, the United States Court of Appeals for the Second Circuit, based in New York, noted that its precedent established that the customary freight unit is not the standard unit of measure used in the industry but the actual freight unit used by the parties to calculate freight for the shipment at issue. To determine the customary freight unit for a particular shipment, the court examined the bill of lading, which is the basic contract at issue between the parties. In examining the bill of lading, the intent of the parties is the primary consideration to which the court will give weight. In addition, the court noted that it would also consider the tariff required to be filed with the Federal Maritime Commission, which also sets forth the freight weight. Where the bill of lading and the filed tariff are unambiguous as to the freight unit used to calculate freight for the shipment at issue, the court will apply those terms and will not consider any extrinsic evidence of the party’s intent. In that regard, the court noted that if the bill of lading and tariff unambiguously established that the freight is charged on a lump sum basis, or based on the number of items shipped, it is irrelevant that the parties may, as a practical matter, have calculated freight based on the weight or volume measured of the goods.

Applying this law to the facts before it, the court concluded that on the basis of the bill of lading and the tariff, the freight charges for the crane were assessed on a per item rather than a per cubit meter basis. Most importantly, the bill of lading did not on its face state that the freight was calculated based on the cubic meter of the crane. Instead, it described the unit of cargo as one crane for which a charge of $7,320 would be applied “as agreed.” In addition, the tariff, which was expressly incorporated by reference into the bill of lading, identified a base freight rate of $7,320 “each.” The court noted that in the context of the bill of lading, “each” could refer only to each crane. In these circumstances, because the bill of lading and tariff were unambiguous that the customary freight unit was each crane, the court held that the lower court erred by considering extrinsic evidence as to how the parties calculated the $7,320 freight charge. Accordingly, the court held that the carrier’s liability for damage to the crane was limited to $500.

The determination of what constitutes a package or customary freight unit under COGSA is not always clear and is often dependent on the facts of each specific transaction. However, as demonstrated by this case, the bill of lading and its description of the freight, as well as the carrier’s tariff, are of vital importance in making this calculation. Here, the clarity of those documents resulted in a liability of $500 versus $61,000. The lesson for carriers? Where you have the opportunity to draft bills of lading, make sure the language is clear as to its description of the freight and freight charges. Second, always have a tariff and incorporate that tariff into the bill of lading itself. Then, continue to reap the benefits of COGSA — while it lasts.

Fredric Marcinak concentrates in civil litigation, practicing primarily in the firm’s Transportation Industry Group, where he represents trucking firms in tort actions and works with insurance carriers on complex coverage matters. 

 On March 9, 2010, a 2000-model Kenworth tractor trailer was involved in a collision with a 1995 Dodge pick-up truck in Lee County, Florida, which resulted in the death of the pick-up’s driver. Counsel was retained by the defendant trucking company along with an accident reconstruction expert within hours of the collision. An ECM download was performed by a qualified service center; however, the technician downloading the ECM failed to obtain the Snapshot data from the incident QuickStop (a QuickStop occurs any time the vehicle decelerates quicker than 8 mph/second). The company’s attorney, not being qualified to interpret ECM data, did not recognize the download was incomplete and simply placed the results in his file. Testimony provided that technicians at the engine dealer do not normally download Snapshot information in the normal course. Thus, it would be prudent for counsel to specifically direct that this information is included in any post-accident ECM download.

Nearly a year later, upon discovering the data download to be incomplete, the attorneys again tried to access the ECM data on the vehicle; however, any Snapshot data for the incident QuickStop had been overwritten by a more recent QuickStop event. Testimony by the attorneys involved was that there was no intent to spoliate evidence or block plaintiff from accessing the vehicle or data, and that there was no bad faith on the part of the defendants – the defendants did everything possible to retain and preserve the ECM data and, upon realizing some of the data was missing, did everything possible to recover it.

 It was not disputed that the defendants did not preserve the Snapshot data from the ECM download immediately following the accident or the data from their subsequent access (it allegedly being apparent that it was an overwrite and not related to the subject accident). In its analysis, the Court specifically noted that the attorneys were not experts in ECM downloads and were not initially aware that data was missing. Likewise, the defendants’ expert was unaware additional information was obtainable or missing. Accordingly, the Court held the defendants did not intentionally destroy the information and their actions or inactions did not constitute spoliation.

 There were however several additional factors that may have played a role in the Court’s decision. There was evidence that the ECM data may not have been reliable and there was additional “roadway” evidence available (skid marks, etc.) to allow plaintiff’s experts to reconstruct the accident. Although the Court did not find spoliation occurred, it did note that “the facts of this case point out the changes to the practice of law that are occurring as information technologies evolve.” To that end, “[i]t is incumbent on the Court and counsel to understand the ramifications of technology, and most importantly, to determine what it is that we may have and how do we preserve it.” Accordingly, it is increasingly important for counsel and experts to stay abreast of developments in the technology of our field and understand how to direct proper preservation of electronic data and evidence.

 As a side note, up until recently, only U.S.-based auto makers included “black box” technology in their vehicles. However, officials have mandated that all vehicles equipped with black box technology manufactured after September 1, 2012 be in compliance with 49 C.F.R. Part 563 governing how and what data must be recorded.

The new regulation distinguishes between four types of drivers; the holder of a CDL will be required to notify their respective SDLA as to which type of driver he/she is or expects to be. The four types of drivers are as follows: interstate non-excepted; interstate excepted; intrastate non-excepted; or intrastate excepted. An interstate non-excepted driver must meet the Federal DOT medical card requirements. If excepted, a driver will not have to meet the physial qualificaton requirements of the FMCSRs. The same is true for the intrastate non-excepted and excepted categories.

 If a driver is subject to FMCSR medical card requirements, he/she should provide a copy of each new medical card to his/her SDLA prior to the expiration of the his/her current medical card. Holders of a CDL required to have a medical card, but who fail to provide or keep current their medical card with their SDLA, will have their license downgraded or may lose their CDL all together.

 The program is to be fully implemented by each state by January 30, 2014. Until that time, an interstate driver subject to the CDL regulations and the FMCSRs regarding physical qualification requirements must retain paper copies of their medical examiner’s certificate. Interstate motor carriers are similarly required to retain copies of their drivers’ medical certificates in their driver qualification files through January 30, 2014. As a practical matter, it would be wise for a commercial driver to continue to carry his/her medical card, whether required to or not. Continuing to carry one’s medical card is a small price to pay to know that he/she will will be able verify that they have meet the FMCSRs physical qualification requirements in the event modern technology fails.

The Court of Appeals, adopting the reasoning of the single dissenting opinion of the Commission, determined that the employee had not voluntarily quit his position and made particularnote of the fact that the employer continued to employ the claimant for a period of weeks upon discovering that his license was suspended. In fact, the employer even paid for courses that the employee was required to take as a condition of having his license reinstated, and accommodated the situation by finding employee work to perform that did not require that he drive. It was only when the employer discovered that it would take nearly a month – as opposed to several days – for the employee to have his license reinstated that the employer decided to terminate him.

 So how might this decision affect an employer of professional licensed drivers? There are two significant facts that appear primary in the Court of Appeals decision reversing the Commission:

(1) the employer did not immediately terminate the employee upon discovering that he no longer maintained the required valid driver’s license, but rather “accommodated” him by finding other tasks for him to perform and assisting him in the process of having his license reinstated; and

 (2) because performance of the employee’s primary task – that of a licensed master plumber – was not affected by the loss of a driver’s license, the employer was not prohibited by law from continuing to employ him in that role.

A key distinction may be found with respect to the second element – with professional drivers, they cannot perform their duties absent a valid driver’s license. Thus, an employer is prohibited by law from permitting a driver to continue to work when his license has been suspended. That does not mean the employer cannot find other temporary work for an employee while the license is being reinstated; however, if an employer does so and then subsequently makes the determination to terminate the employment on the basis of the lack of a valid license, the employee will likely be entitled to receive unemployment benefits.

Removal Procedure

The Act begins by codifying the long-standing requirement that in order for an action to be removed to Federal Court there must be unanimity among the defendants removing an action. Thus, in keeping with prior case law, all defendants must agree and join together to remove a case to Federal Court. Importantly, however, the Act goes on to clarify the mechanics of the removal of a case by multiple defendants by resolving a split among the federal circuits as to the procedure by which such actions are removed. Previously, the majority of circuits had adopted the “last served defendant rule,” which provided that each defendant had a separate thirty (30) days in which to remove an action from its particular date of service. Thus, the last served defendant could remove within thirty (30) days of its date of service and previously served defendants could join in that removal, even though these earlier served defendants had not removed the action to Federal Court. In contrast, other circuits, including the United States Court of Appeals for the Fourth Circuit, adhered to the “first served defendant rule.” Under this rule, the first served defendant had the option of removing the case within thirty (30) days of its date of service. Any defendant served after the initial thirty (30) days of service from the first served defendant had expired could not remove the action to Federal Court. The Act adopts the “last served defendant rule.” Thus, in jurisdictions such as the Fourth Circuit that had adopted the “first served defendant rule,” each party will now have thirty (30) days to remove the case to Federal Court after it has been served. Any earlier-served defendants must join in the later-served defendants’ notice of removal so that unanimity is maintained. This change also prevents plaintiffs’ attorneys from manipulating the timing of service of process so that defendants less likely to remove are served first. Instead, each defendant will now have an equal opportunity to remove to Federal Court.

The Act also makes modifications to the procedure for determining the amount in controversy. Currently, the amount in controversy in a particular case must exceed $75,000 in order for the case to be removable. The Act states that where a state court pleading does not specify an amount in controversy, or where state practice permits a plaintiff to recover more than the amount sought, the defendants may remove to Federal Court and file documentation along with their Notice of Removal to demonstrate that the amount in controversy exceeds $75,000. The removal will succeed if the defendants can show by a preponderance of the evidence that the amount in controversy exceeds $75,000. Alternatively, in this situation, the defendants can leave the action in state court and can remove the action at a later time if a document is produced which indicates that the amount in controversy exceeds $75,000. In those circumstances, the defendants must remove within thirty (30) days of receipt of the document indicating that the amount exceeds $75,000. On the other hand, where the state court pleadings state an amount sought in the lawsuit, that amount can be used to determine the amount in controversy and it will be conclusive as to the amount in controversy, except in states where state law or procedure permits the plaintiff to recover an amount beyond the amount named in the Complaint. In those states, defendants may remove the matter to Federal Court and argue that the amount in controversy nonetheless exceeds $75,000 despite the amount claimed in the Complaint.

Finally, the Act adds several provisions to ameliorate the harshness of the one-year bar on removal of cases to Federal Court based on diversity jurisdiction. Under current law, a party may not remove a case to Federal Court on the basis of diversity jurisdiction if more than one year has elapsed since the date the action was filed. The Act creates two exceptions. First, a party case remove a case to Federal Court after one year has passed where the plaintiff acted in “bad faith” to prevent removal of the case. Second, the Act provides that if the court finds that the plaintiff deliberately failed to disclose the amount in controversy to prevent removal, such action constitutes bad faith. Currently, it is common practice for attorneys who want to prevent removal of a lawsuit against a citizen of a different state to include a citizen—even one whose liability to the plaintiff is tenuous—of the same state of the plaintiff to defeat diversity jurisdiction. Oftentimes, the in-state defendant will be dismissed from the case after the one-year prohibition against removal has been triggered. In these situations, defendants will now be able to assert that the plaintiff has acted in bad faith to prevent removal and that the action should be removable, the one-year bar notwithstanding.

Jurisdiction

With regard to federal question jurisdiction, the Act makes one change that, upon first reading of the statute, appears to be broader than it is. The Act states that where a Complaint asserts a claim under federal law and also claims under state law, the entire action can be removed to Federal Court but that a District Court “shall sever” and “shall remand” any claim that is not within “the original or supplemental jurisdiction of the District Court.” On first blush, this appears to require that any state law claims that are removed along with the federal claim must be remanded to District Court. However, the key phrase in the statute is the reference to supplemental jurisdiction. Supplemental jurisdiction, formerly known as ancillary or pendant jurisdiction, and currently embodied in 28 U.S.C. § 1367, provides that state law claims that are “so related to [federal] claims in the action . . . that they form a part of the same case or controversy” may generally be removed to Federal Court along with the federal claim. Thus, even under the amendments made by the new Act, state law claims that are related to the claim that is removed on the basis of federal jurisdiction will remain in Federal Court. Only unrelated state law claims over which there is no diversity jurisdiction must be remanded to state court. It is certainly unusual to find a Complaint that pleads both related and unrelated claims, therefore the circumstances in which the Act will be invoked to remand state law claims to state court appear to be limited. However, the apparently broad terms in which the Act speaks are likely to lead to confusion in that arguments for remand of related state law claims are likely to be made, and the Act must be carefully parsed and briefed to the courts so that claims over which supplemental jurisdiction exists will be maintained in Federal Court.

Venue

Finally, the Act makes several changes to venue provisions. The most important of these is that District Courts now have the ability to transfer any civil action “to any district or division to which all parties have consented” for “the convenience of the parties and witnesses and in the interest of justice.” This statute allows the parties to consent to transfer to any venue that they can agree on. Further, the Act eliminates the distinction between federal question and diversity actions for purposes of venue and adopts a single, general venue statute.

Conclusion

The changes made by the Act are likely to eliminate some of the confusion surrounding the timing and procedure for removal of actions to Federal Court and jurisdiction in Federal Court. Overall, these changes will likely work to the benefit of defendants who are seeking to have actions removed to Federal Court. These changes will be beneficial to parties who seek the uniformity of federal policy and procedure, the avoidance of bias in local state courts, and the ease and access of electronic filing in Federal Courts.

While an updated MCS-150 must be filed every two years, one may be filed at any time. To check the status of your MCS-150, view the FMCSA Company Snapshot here.

Any particular carrier’s CSA score is comprised of six BASICs – Unsafe Driving, Fatigued Driving (Hours of Service), Driver Fitness, Controlled Substance/Alcohol, Vehicle Maintenance, and Cargo-related – along with the carrier’s Crash Indicator Measure. The calculations used to determine scores differ for any given BASIC and for the Crash Indicator. The formulas used are also fairly complicated. However, the Unsafe Driving BASIC and the Crash Indicator Measure are directly impacted by the number of power units in operation, the number of vehicle miles traveled (“VMT”), and the Carrier Segment (“combo” or “straight”) into which the carrier is categorized.

Primary in the Unsafe Driving BASIC and the Crash Indicator Measure calculations are two figures – the “AveragePU” – which is a calculation of the average number of power units in operation over an 18 month span – and the “Utilization Factor” – which is determined by the Carrier Segment and the VMT per AveragePU.

For instance, in the “combo” segment, a carrier with 160,000-200,000 VMT per AveragePU has a utilization factor of 1.6. If the VMT per AveragePU exceeds 200,000, then the utilization factor drops to 1.0. Likewise, in the “straight” segment, a carrier with a VMT per AveragePU of 60,000-200,000 has a utilization factor of 3.0, but that same factor drops to 1.0 when the mileage exceeds 200,000. Because the utilization factor and AveragePUs directly impact the score calculation, updating the number of power units, the VMT, and the Carrier Segment will affect the outcome.

Because of the complexity of the equations used in the calculations, whether updating the MCS-150 will produce a positive or negative result on a carrier’s CSA score must be determined on a case by case basis. However, generally speaking, the score will be positively impacted as the AveragePU and Utilization Factor increase. In short, as these figures increase, the weight of violations or crashes is diluted.

Accordingly, as the economy returns and miles and fleet size increase, a carrier would be wise to file this form on a regular basis to obtain the most accurate scores for your company.

Joseph Rohe is Of Counsel in Smith Moore Leatherwood’s Greenville office. Mr. Rohe  has worked in the areas of commercial litigation and insurance defense in Charleston, while also completing an American law degree at the Charleston School of Law. He is now a member of the firm’s Transportation Team.

Rob Moseley is a Partner in Smith Moore Leatherwood’s Greenville office, and the firm’s  transportation team leader.  He is   also  on the board of directors of the South Carolina Trucking Association, a member of the Safety & Loss Prevention Management Council of the American Trucking Associations and a member of both the National Truck & Heavy Equipment Claims Council and the Association for Transportation Law, Logistics and Policy.