Ashley Winsky of McGuireWoods discusses how to fend off claims by plaintiffs using federal safety regulations to up the ante on plain-vanilla negligence cases.
CCBJ: What are the FMCSRs, and what requirements do they impose on commercial drivers?
Ashley Winsky: FMCSR stands for Federal Motor Carrier Safety Regulations. The regulations are issued by the Federal Motor Carrier Safety Administration, which is a government agency whose goal is “reducing crashes, injuries and fatalities involving large trucks and buses.”
The regulations cover a host of topics. For example, they require drivers of commercial motor vehicles (CMV) to mark their vehicles with a USDOT number, maintain driver qualification files and maintain hours of service records. They also establish penalties for driving violations. The regulations specify testing and licensing requirements stipulating each state test all individuals who apply for a commercial driver’s license (CDL).
How can in-house counsel determine whether their drivers are subject to the FMCSRs?
The regulations apply to almost every person who operates a CMV in commerce and, importantly, to all employers of drivers operating a CMV.
Absent a stated exception, corporate counsel can determine if they are subject to the regulations by determining whether their employees – or the drivers they contract with – are operating a CMV.
To do this, you look to the vehicle’s weight or whether it is transporting passengers or hazardous materials. There are two CMV definitions under the regulations.
First, Section 390.5T describes a CMV as any vehicle used in interstate commerce to transport passengers or property with a gross vehicle weight rating, gross combination weight rating, gross vehicle weight or gross combination weight of 10,001 pounds or more. This definition applies to a host of vehicles such as delivery trucks, pickup trucks hauling trailers and box trucks.
This first definition also covers vehicles designed or used to transport more than eight passengers for compensation, more than 15 passengers without compensation and vehicles transporting hazardous substances.
A CDL is not required to operate these vehicles. However, these drivers are still subject to many of the FMCSRs.
Sections 382.107 and 383.5 define the second class of CMVs as vehicles with a gross vehicle weight rating of 26,001 pounds or more, or a gross combination weight of 26,001 pounds or more, including a towed unit with a gross vehicle weight rating of more than 10,000 pounds. These vehicles, including tractor-trailers and heavy cement trucks, require a CDL to operate, as do vehicles designed to transport 16 or more passengers and vehicles of any size used to transport hazardous materials.
The regulations clearly apply to companies that employ drivers of traditional big rigs, but they may also apply to shippers and brokers who hire trucking companies to move freight. In these situations, the hired drivers may be viewed as “service agents” under the regulations.
Suppose Company A contracts with Trucking Company B to ship widgets from New York to Texas. If the driver employed by Company B is involved in a collision and injures another motorist, that motorist may have grounds to sue Company A by arguing it was negligent in its hiring of Company B.
These types of claims often arise when Company B has inadequate insurance coverage. Plaintiffs in these scenarios often hunt for negligence on the part of the driver that could be imputed to Company A. You can bet that experienced plaintiff counsel will look to see whether the driver was in violation of any of the FMCSRs. They will ask whether Company A performed its due diligence in selecting this driver. That’s why it’s critical for corporate counsel to know who’s transporting their goods. If you’re contracting out shipping, carefully review your paperwork to see if the company you’re hiring is following the FMCSRs.
What strategies have plaintiffs’ lawyers employed to successfully argue for a heightened standard of care for CMV drivers in litigation?
Plaintiffs’ lawyers are attempting to turn simple negligence cases into truck driver malpractice cases. The plaintiffs’ argument is that operators of commercial motor vehicles have acquired special knowledge and skills. They argue that these drivers go through training because they’re operating large, dangerous vehicles and should be held to a higher standard of care than other motorists. In actuality, state law governs all motorists equally. I have to use the same caution when approaching an intersection as the truck driver to my right.
Plaintiffs’ counsel use the FMCSRs to advance their argument. Section 383.110 requires truck drivers to possess “the knowledge and skills necessary to operate a CMV safely.” Section 383.111 requires truck drivers to have knowledge of 20 specific areas, and section 383.113 states that all applicants for a CDL must possess and demonstrate seven basic motor vehicle skills.
Plaintiffs’ counsel use CDL manuals to advance their argument as well. The regulations require every state to provide a CDL manual to each applicant. Since state manuals are nearly identical, plaintiffs’ counsel may try to use them to show that there is a national standard governing commercial motor vehicle drivers.
Another tactic for plaintiffs’ counsel is to use a company’s own written materials against it. Some companies’ policy manuals may identify their drivers as “professionals”; others may have defensive-driving training books that require drivers to be on a heightened lookout for danger or to maintain a cushion of safety around their vehicles. Typically, a company’s internal standards exceed what the law requires. There’s no zero-tolerance law, but some companies may enforce zero-tolerance policies.
What is at stake in these cases?
Quite frankly, a great deal of money and, potentially, a judgment exceeding a company’s insurance limits. Application of the wrong standard of care could mean the difference between winning or losing a multimillion-dollar lawsuit.
In Dakter v. Cavallino,  the Wisconsin Supreme Court upheld a jury instruction that imposed a heightened duty on a truck driver. The jury assessed the plaintiff’s damages at over $1 million, but eight-figure verdicts are certainly possible in these cases. Injuries can be quite severe when a collision occurs with a vehicle weighing over 26,000 pounds.
Dakter was decided in 2015. The good news for corporate counsel is that, since this decision, courts in other states – including Georgia, Pennsylvania and Oklahoma – have reaffirmed that licensed truck drivers should be held to the same standard as other motorists. The same month that Dakter was decided, an appeals court in Maryland held that the trial court was correct in refusing to give the plaintiff’s requested jury instruction for a heightened standard of care. 
How can inside and outside counsel best combat the argument for a heightened standard?
It’s possible to combat the heightened standard of care argument at every stage of a case, starting with the complaint. If you see the term “professional driver” in the complaint, move to strike it. You may not win the argument, but you’ve educated the court right off the bat.
The FMCSRs do not refer to truck drivers as “professionals,” and they do not state that truck drivers are held to a higher standard. Courts across the country have been granting motions to exclude internal company policies and driver-training manuals from evidence on the grounds that a company’s internal rules are voluntary – they do not set the standard of care. Courts also have held that CDL manuals are inadmissible because they constitute “only a recommendation or advice” and are not mandatory commands. 
Nevertheless, be sure to prepare your driver and company witnesses to deal with problematic language in company manuals in advance of their depositions.
Keep an eye out for experts citing industry standards or defensive-driving rules. Move to exclude expert opinions that cite the FMCSRs where there is no violation of the regulations. Courts have granted summary judgment for defendants where a plaintiff’s expert applied the wrong standard of care. 
In addition, an expert’s proposed testimony is not proper if it is obvious to a layperson. Don’t let plaintiffs turn truck driving into a subject matter requiring specialized knowledge and training, such as medicine or architecture. In February, an Oklahoma federal court held that an expert’s opinion regarding a driver’s duty to follow industry standards – to scan ahead, look for hazards and eliminate distractions – was inadmissible because those duties are obvious to all motorists. 
Finally, counsel should inquire whether prospective jurors hold the belief that truck drivers should be more careful than other drivers and make sure the jury is properly instructed on the standard of care.
Ashley Winsky is an associate, trial lawyer and member of McGuireWoods’ Transportation Industry group. She primarily advises motor carriers, automobile manufacturers and other transportation companies. Reach her at [email protected].
 Dakter v. Cavallino, 866 N.W.2d 656 (Wis. 2015)
 Jordan v. Torain, 2015 WL 5968530, *10 (Md. Ct. Spec. App. July 23, 2015)
 See, e.g., Rosas v. O’Donoghue, 2005 WL 5961992 (E.D. Pa. 2005)
 See, e.g., Parks v. Daily Express, Inc., 719 F. Supp. 2d 894, 898-900 (E.D. Tenn. 2010)
 Ferrell v. BGF Global, LLC, 2018 WL 878621, *2 (W.D. Okla. Feb. 13, 2018)
Published September 11, 2018.