Paul R. Ayerbe

Driver fatigue is the hot topic right now for truck accident attorneys and the trucking industry, and for a very good reason. Truckers are often pushed to drive beyond physical - and legal - limits.  Most often, they’re forced to do this by trucking companies aiming to cut corners and save money. For the truckers, breaking these hours of service regs can mean the difference between putting food on the table, or being next in the unemployment line.

But a tired truck driver is as impaired as an intoxicated driver. And truck driver fatigue is one of the most common causes of preventable truck accidents, both in Michigan and across the country.

It’s important to stop these trucking companies, and I’m going to tell you how.

Hours of service regulations are found at 49 CFR §§ 395.3 and 395.8, and are some the most important federal regulations for lawyers to remember in any truck crash case. Knowledge of hours of service regulations, coupled with a careful study of a truck driver’s record of duty status (or daily log book) and supporting documents, can reveal driver fatigue.

Driver fatigue is typically caused by inadequate sleep, working too many hours or driving while sick.  Studies have found truck driver fatigue to be a more potent driving impairment than the influence of drugs or alcohol — yet a wide number of truck drivers bend the rules to maximize their time behind the wheel. In an effort to combat dangerous sleep deprivation, the Federal Motor Carrier Safety Administration (FMCSA) strictly regulates the amount of time truck drivers spend their workday driving and being classified as “on-duty.” Under 49 CFR  § 395.3, drivers are limited to 60 hours of compensated work in a seven-day period or 70 hours in an eight-day period.

Under the current rules, truck drivers can be driving on the road for 11 hours each shift, up to 70 hours per week.

Drivers are limited to a total of 14 hours of work in a single “on-duty” period. This type of non-driving activity could include all time:

* Waiting to be dispatched at a terminal,

* Doing a pre-trip inspection,

* Loading and unloading,

* Repairing the truck,

* Waiting for the truck to be repaired, or,

* Even  during a DOT roadside inspection.

Virtually any work performed in the capacity of a motor carrier should be added to a driver’s 14-hour daily work limit. However, even work performed for another company or organization will count toward a driver’s on-duty period - even if it’s completely unrelated to the trucking industry. Under 49 CFR § 395.2(9), “on- duty” time means performing “any compensated work for a person who is not a motor carrier.”  See the official interpretation of this regulation accompanying the rule:

Here’s an example to illustrate the point:

John Doe is an assembly technician for a manufacturing plant. He typically puts in 40 to 45 hours a week at the plant and makes a modest living to support his family. Recently, the variable interest rate mortgage on his home increased, forcing John to find another job. He began driving for XYZ trucking company in the fall. Last week, John put in 45 hours at his manufacturing job, and on Friday night, took a weekend load spanning 1,000 miles. John drove 11 hours on Saturday and nine hours on Sunday.

On the surface, it seems John was fully compliant with the hours of service rules, but under the interpretation of §395.2(9), John was on-duty for 65 hours in a seven-day work week - five hours longer than is allowed under the current federal regulations. Be aware of § 395.2(9) when deposing your drivers, as they may work several different jobs within a given work week, exposing themselves and the truck company to further liability.

Here’s a well-known secret: Many drivers cheat on their logs. Because most truck companies pay their drivers by the mile, drivers do whatever they can (or fraudulently report whatever they can) to maximize the amount of distance traveled in the shortest amount of time possible. This logically leads to one of two results: The driver will speed beyond posted limits, or the driver will fail to accurately report the amount of time actually worked or driven on his daily log.  After all, time is money right?

Click here for an example of a truck driver log.

On its face, this log looks like it is compliant with CFR §§ 395.3 and 395.8. The driver spent less than 11 hours driving for the day, and was on duty, but not driving, for only a half hour. This means the driver spent less than 14 total hours on-duty for the day. But remember, truck accident attorneys are not interested in what the driver said he did that day, we’re interested in what he really did that day leading up to the crash with our client.

Buried within this log are dozens of questions that must be fleshed out in discovery. Take a closer look at Mr. Doe’s on duty (not driving) reporting: He spent 15 minutes performing a pre-trip inspection in Little Rock, Arkansas at 6 a.m., and loaded for only 15 minutes in Corsicana, Texas. There could be hundreds of small details left off Mr. Doe’s on-duty (not driving) status, that a truck accident attorney can highlight:

*  Did Mr. Doe spend any time refueling?

*  Did Mr. Doe really only take 15 minutes to perform his inspection?

*  Is that time adequate for a thorough inspection?

*  Did Mr. Doe spend any time speaking to dispatch?

*  How did he communicate with dispatch?

*  Did Mr. Doe spend any time securing his load?

*  Did Mr. Doe spend any time cleaning his rig/trailer?

*  How much time did Mr. Doe spend at Corsicana waiting to get loaded?

*  15 minutes seems pretty quick, doesn’t it?

*  Did Mr. Doe spend any time waiting in line behind other drivers?

If Mr. Doe responds “yes” to any of these questions, chances are, the driver has misrepresented the amount of time he’s actually spent on-duty. The log that’s been presented to his carrier (and the federal government) is admittedly incorrect, and now Mr. Doe’s credibility has been seriously called into question. The time that’s not being reported has probably been spent driving, making Mr. Doe in excess of his 11-hour driving limit, or working, in excess of his 14-hour on duty limit.

Congratulations! With proper knowledge of the rules, and careful analysis of the driver’s log, we’ve uncovered at least some evidence that a truck driver was fatigued leading up to the accident.

In the next few weeks, I will explain 11 more Federal Motor Carrier Safety Administration rules and how they’re integral to the success of your truck accident cases. These will be principles the defense cannot dispute, and easy for the jury to understand. Read Thursday for some information on the physical qualifications of drivers.