News

RECENT DECISIONS

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HURRICANE LITIGATION

For updates on hurricane litigation, visit DCR's Hurricane Litigation web page by clicking here.

New Rule for Motor Carrier Operating Licenses Requires Audit

The Federal Motor Carrier Safety Administration (“FMCSA”) has published a final rule for its New Entry Safety Assurance Process, effective February 17, 2009, with a December 16, 2009 compliance date. The Rule requires any applicant transferring a motor carrier operating license to undergo a FMCSA safety audit within eighteen months of registration. The Administration estimates the rule will affect 40,000 motor carriers annually.

There are sixteen elements to the audit. For fourteen of the elements, failure of any one means outright failure of the audit. For the final two, failure does not mandate failure of the audit. The fourteen are:

• Failing to implement an alcohol and/or controlled substances testing program;
• Using a driver known to have an alcohol content of 0.04 or greater to perform a safety-sensitive function;
• Using a driver who has refused to submit to an alcohol or controlled substances test;
• Using a driver known to have tested positive for a controlled substance;
• Failing to implement a random controlled substances and/or alcohol testing program;
• Knowingly using a driver who does not possess a valid CDL (Commercial Driver’s License);
• Knowingly allowing, requiring, permitting, or authorizing an employee with a commercial driver’s license which is suspended, revoked, or canceled by a state, or who is disqualified, to operate a commercial motor vehicle;
• Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a commercial motor vehicle;
• Operating a motor vehicle without having in effect the required minimum levels of financial responsibility coverage;
• Operating a passenger carrying vehicle without having in effect the required minimum levels of financial responsibility;
• Knowingly using a disqualified driver;
• Knowingly using a physically unqualified driver;
• Requiring or permitting the operation of a commercial motor vehicle declared ‘‘out-of-service’’ before repairs are made; and
• Failing to correct out-of-service defects listed by a driver in a driver vehicle inspection report before the vehicle is operated again.

The two elements for which failure of one is not failure of the audit are:

• Failing to require a driver to make a record of duty status (log book); and
• Using a commercial motor vehicle not periodically inspected.

The last two elements are a status requirement—that is, failure of one only leads to failure of the audit with “a violation threshold of 51%.” The Agency established the 51% threshold out of concern that for larger carriers, a one-strike you’re out rule would be prohibitively challenging. For offenses under 50% of the time, the agency will use civil penalties.

If the entrant fails the audit, it will be notified within forty-five days, and the Agency will issue an out-of-service order. The carrier can then file evidence it has corrected the failure of the audit, but if it fails to do so, the FMCSA will issue an out-of-service order against the carrier. The carrier must wait thirty days before re-applying.

The Agency concluded that a safety audit may be less effective than a compliance review in establishing safety, but the compliance review, it found, would be prohibitively burdensome. It expects the safety audit to prevent 39,929 crashes in the ten years after its introduction.

A full copy of the rule can be found here:

New Federal Regulation Fails to Change
Maximum Drive and Work Hours for Truckers

On November 19, 2008, the U.S. Department of Transportation (DOT) adopted 73 FR 27346-01, effective January 19, 2008. The regulation leaves unchanged the maximum hours truckers can drive. As the regulation stands, CMV (Commercial Motor Vehicle) drivers can drive up to eleven hours within a fourteen hour window, following at least ten hours off duty. Drivers can restart calculations of their weekly drive limits if the driver has had at least thirty-four consecutive hours off-duty.

The 2008 regulation re-affirms the DOT’s 2005 regulation, which established a requirement that truckers get more sleep. Accordingly, rather than requiring eight hours off-duty, drivers require ten hours. The DOT found that requiring the extra time helped drivers rest more thoroughly and reduced accidents due to fatigue.

Most public comments about the 2008 regulation wished for the Department of Transportation to go further, noting that, owing to the thirty-four hour restart period, a driver could have up to 84 hours on duty in seven days, or 98 hours on duty in eight days. The DOT found the concern unavailing, concluding that there was insufficient evidence of driver fatigue as a cause of accidents to demand more rest. It found that accidents had fluctuated mildly, but not enough to require stricter regulations. It further concluded that though truckers can drive for eleven consecutive hours in a fourteen hour window, they rarely do.

With the inauguration of a new president of a different party on January 20, the DOT will likely be re-staffed and the past eight years’ regulations, including this, will be re-evaluated. Therefore, this regulation could potentially be overturned. Given the lengthy time required for agency regulation—researching and promulgating a proposed rule, then receiving public comments—the regulation will likely remain effective for some time.

Increase in the Federal Minimum Wage

Every employer of employees subject to the Fair Labor Standards Act’s minimum wage provisions must post, and keep posted, a notice explaining the Act in a conspicuous place in all of their establishments so as to permit employees to readily read it. Additionally, calculations of future wage loss for plaintiffs will be affected by the recent increase in the Federal Minimum Wage over the course of the next three years.

In May of 2007, the Federal Minimum Wage was increased. The increase is the first since 1997. The pay increase will be a total of $2.10 and will be increased in three increments:

$5.85 per hour, effective July 24, 2007
$6.55 per hour, effective July 24, 2008
$7.25 per hour, effective July 24, 2009

To be compliant with federal employment law, your business must post the Fair Minimum Wage Act of 2007.

Louisiana’s Third Circuit Affirms Exception of Prescription and Dismissing Plaintiff's Claims Against DCR's Client

The Louisiana Third Circuit affirmed Judge Marilyn Castle’s ruling sustaining a peremptory exception of prescription in a case dismissing all of plaintiff's claims against our client. The wireline worker filed suit against the platform owner and the crane operator within Louisiana’s prescriptive period, but failed to amend his Petition for Damages to assert a claim against the vessel owner until nearly four years after his initial Petition was filed.

In response to plaintiff’s untimely claim, on behalf of our client, we filed a Peremptory Exception of Prescription, arguing general maritime law applied to plaintiff’s claims against it and, consequently, the Uniform Statute of Limitations for Maritime Torts, 46 U.S.C.A. §763(a), applied, barring plaintiff’s claim.  The trial court sustained the vessel owner’s Exception and plaintiff appealed the ruling.

The Third Circuit found plaintiff’s claim was governed by general maritime law because plaintiff’s accident occurred on navigable waters and the alleged tortious activity of the vessel owner was so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply.  Accordingly, plaintiff's claims against our client were dismissed.

For the complete opinion, click here to see Bell v. American Intern. Group, 2007 WL 397263; 2006-1242 (La. App. 3 Cir. 2/7/07).

Texas passes House Bill 1602:
Venue in civil actions under the Jones Act

Prior to the passing of Texas House Bill 1602 in May 2007, there was a loophole that allowed cases brought under the Jones Act to be filed in the county of the plaintiff's residence. This loophole caused an explosion of lawsuits under the Jones Act in Hidalgo and Starr counties, largely affecting dredging companies.

The bill establishes venue for Jones Act claims filed in Texas state courts as follows:

If the accident occurred in Texas on land:

(1) In the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; or (2) in the county where the defendant's principal office in Texas is located; (3) if venue is unavailable in one of the counties described in (1) or (2) above, then the claimant can file a Jones Act claim in the county where the plaintiff resided at the time the cause of action accrued.

If the accident occurred ashore in Texas or on the inland waters of Texas:

The plaintiff can file a civil action in the county in which the incident occurred or in the county where the defendant’s principal office in Texas is located. 

If all or most of the incident occurred in a Gulf Coast state or waters, other than Texas:

The plaintiff can file a civil action in the county where (1) the defendant’s principal office in Texas is located, or (2) if the defendant has none, in the county where the plaintiff resided at the time the cause of action accrued.