Mr. Ronca is a truck accident attorney with over 20 years of legal experience. He has twice been named a Pennsylvania Super Lawyer.

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Examples of how to use the regulations in Depositions

In Trotter v. B & W Cartage Co., 2006 U.S. Dist. LEXIS 19074 (S.D.Ill. 2006).

The following testimony was elicited which is instructive.
In this case there is substantial evidence of record that, at the time of the incident in which Ryan Trotter was killed, Jeffrey Wiegert was driving well outside his federally-regulated hours of service, that he was operating a B & W tractor-trailer in a manner consistent with that of a person driving in a state of extreme fatigue, and that, in the weeks preceding Ryan Trotter's death, Mr. Wiegert repeatedly submitted faked logs of his driving hours to B & W. With respect to the issue of the availability of damages for aggravating circumstances in this case, the Court finds particularly noteworthy the testimony of Francis Amiot, B & W's Director of Safety Rules Compliance since 1994.

Mr. Amiot testified that B & W's primary means of preventing violations of FHWA regulations governing hours of service for drivers was through computerized scanning of driver logs. Mr. Amiot testified that, as the chief officer of B & W responsible for ensuring the company's compliance with FHWA hours of service regulations, he was aware that the log scanning program had been inadequate to prevent hours of service violations for at least five years prior to Ryan Trotter's death:
Q. . . . The log scanning program, was it inadequate for purposes of fulfilling the company's obligation with respect to reviewing driver logs to insure [sic] hours of service compliance?

* * * *

A. Did you say antiquated or inadequate?

Q. . . . Inadequate.

A. At the time of this incident I have to say, yes.

Q. At the time of this incident, being in February of 2005?

A. Correct.

Q. And had it been inadequate for those purposes for a period of time prior to February of 2005?

A. Probably, yes.

Q. Had that before of time been more than a year?

A. Oh, absolutely.

Q. Had -- had it been -- had the log scanning program been inadequate for several years?

A. That's a fair statement.

* * * *

Q. Is there a point in time when, in your opinion, as the director of-of safety and rule compliance, you felt that the-that the log scanning program became inadequate for the purposes necessary to insure compliance with hours of service regulations?

A. Yes. We got too big too fast, and in my opinion, it, therefore, became inadequate.

Q. When did the company become too big too fast?

A. Over the period of the last five, six, seven years.

Q. So for a period of approximately five, six, seven years, the log scanning program has been inadequate --

A. We have increased in size, and that --

Q. Go ahead.

A. Go ahead.

Q. For a period of the last five, six, seven years, the log scanning program has been inadequate for purposes of insuring [sic] compliance with hours of service regulations?

A. Yes, to -- yes, to the degree we have discussed.
Mr. Amiot testified that he brought the issue of the serious failure of B & W to comply with FHWA requirements that motor carriers maintain "management systems that effectively prevent [hours of service] violations," 62 Fed. Reg. at 16424, to the attention of the company's president, but that B & W, despite having knowledge of the compliance problem, took no action to correct it:
Q. Okay. Was that brought to the attention of anyone in the company and discussed in any way, that something needs to be done about that?

A. You know, I don't really recall. Probably, but I don't really recall. I think I -- I think I did at some point in time, but --

Q. Who would you have most likely brought that to the attention of?

A. Mr. Steve Klein [B & W's President].

Q. And do you know if any corrective action or any response was made to that suggestion or recommendation?

A. Not to my knowledge.

Q. Was there a reason that the company operated with an inadequate log scanning program for a period of five or six or seven years?

* * * *

A. We fell on our mistake. We made some errors. We are suffering for it, and we are correcting it.
Mr. Amiot testified that, in the absence of a reliable means of auditing driver logs, B & W's fallback measure was random "hard audits" of driving logs, in which logs were checked against supporting documentation to determine compliance with hours of service:
A. . . . From time to time amidst other duties, as we have earlier discussed, I would have randomly selected persons and looked at other relevant documents and compared them to that individual's record of duty status. But who those individuals are. I could not address.

* * * *

Q. . . . . You have talked about this random process. Was there any -- any procedure that you followed with respect to this randomness? Did you pull --

A. No, but --

Q. -- five files a day? Did you pull ten logs a day? Did you pull 20 logs a day? What -- what was done? How did you -- or was this just kind of haphazard, and whenever you got a few minutes you might have pulled a log?

A. I think that's a fair statement. By definition, it was random.

Q. Okay. But in what manner was it random? Did you have any -- did you do -- did you do a log review, at least one, every day?

A. I would say within certain realms I did at least one -- at least one log every day.

Q. All right. Did you have any set number that you tried to accomplish per day?

* * * *

A. I did one log a day as a -- as an average, I think, is a fair statement.

Q. I'm sorry. One a day, did you say?

A. I may have done five a day, I may have done one every other day, I may have done two every other day. I think a fair -- a fair average would be one a day.
A reasonable inference to be drawn from Mr. Amiot's testimony is that B & W operated for a substantial period of time, possibly as much as seven years, in conscious indifference to its duties under the FMCSRs governing driver hours of service.

Mr. Amiot also described resistance within B & W's corporate structure to improved hours of service compliance:
Q. So there were issues with terminal and operation managers resisting the recommendations of the safety department?

* * * *

A. No, I don't -- I don't think -- I don't think I recall any general resistance. Well, no, I can't say that. A person at a facility [in Clayton, Ohio,] was very hesitant to accept recommendations of the safety department in regard to hours of service. And gut reaction, again, my own gut reaction, if you will, was that money took precedent over safety.

Q. . . . I'm sorry, what was the last?

A. Money took precedent over safety.
Importantly, Mr. Amiot specifically testified to questionable hours of service practices by the manager of B & W's terminal in Gary, Indiana, out of which Jeffrey Wiegert operated:
A. I believe there is a person who -- at the facility you mentioned, that, in my opinion, stretch -- that stretches the regulations to the limit of being still within the law.

Q. The facility --

A. But very questionable.

Q. The facility I mentioned, you are referring to the Gary, Indiana, facility?

A. In my opinion, yes.

Q. And who is that person?

A. Mr. George Drain.

Q. And he is the operations manager or terminal manager in Gary, Indiana?

A. I believe that's his title, yeah.

Q. And you say that in your opinion he -- he stretches the hours of service limitations? What do you mean by that, if you can give me an example.

A. Nothing to the point of being illegal, but it doesn't give the time -- the driver a chance to eat. Mileage distances are figured point A to point B at almost the exact allowable driving time, which disallows any excessive time for perhaps a random drug screen, perhaps a -- well, let's -- let's leave it at a random drug screen. The runs -- the runs are figured so tight that there is no excessive time to be able to -- to do that without expediting the load and causing the driver to lose a day's work.

Q. Did you --

A. Personal opinion.

Q. I assume it's also your professional opinion, too; wouldn't that be correct?

A. I think that's a fair statement.

Q. Did you ever have any discussions with Mr. Drain about his stretching of the hours of service rules and regulations?

A. Yes.
A reasonable inference to be drawn from Mr. Amiot's testimony is that B & W ignored its duties under FHWA hours of service regulations, put drivers in positions where they would likely be forced to violate such regulations, and telegraphed to drivers its approval of violations of the hours of service regulations.

Based on the above the Court concluded that reasonable jurors could find that the imposition of damages for aggravating circumstances was warranted. The evidence of record showed that for five years or more prior to Ryan Trotter's death B & W operated with conscious indifference to its regulatory duty to maintain management systems effective in preventing hours of service violations by drivers. The evidence of record also showed that the conduct of B & W employees like the managers of the company's terminals was such as to send a message to drivers that hours of service violations were acceptable conduct. In fact, "money [taking] precedent over safety" is virtually the definition of the kind of corporate behavior warranting an award of punitive damages.

Another example of how past unrelated violations of the FMCSR’s can relate to the reckless indifference on the Trucking Company is to establish how the company should be accountable for assuring driver compliance and a pattern and practice of not enforcing the regulations prevents the company from being alerted to a driver who does not follow the regulation and the concomitant failure to anticipate the hazard such drivers represent. First establish the importance of the safety policy and mission. Then establish that the drivers are taught the importance of safety and the mandatory nature of the regulations. Third, establish that drivers are taught to anticipate hazards. Fourth, establish that the company had reason to anticipate that a given driver was not following regulations but took no action. An example from a current case:

Q.    Now, the manual on page 188 has a safety mission statement. Does this represent the philosophy that you try to instill in all of your drivers and employees?
A.    Yes, sir.
Q.   Would you agree that safety of employees and the general public was the No. 1 priority?
A.    Yes.
Q.    XXX Transport will strive to be the safest motor carrie in the industry?
A.    Yes, sir.
Q.    Would it be fair to say that every motor carrier should strive to be the safest?
A.    I believe that 100 percent, sir.

Establishing that not only was safety the number 1 goal of that company, it should be the number one goal of all companies.

Q. And the method by which you were going to obtain this goal according to the mission statement is you were going to take a comprehensive approach; correct?
A.    Yes.
Q.   And that approach would include accountability, education, reward and recognition. Now, you mentioned before how you tried to make the approach comprehensive by making it standardized for all of your different terminals; correct?
A.    Yes, sir.
Q.    All right. Now, another way that you wanted to achieve the goal was by accountability. What does the mission statement mean when it says accountability?
A.    We work very hard to address any issues, accident issues especially because something that may be a simple fender bender could in theory many times be that far away from a catastrophic event or a critical crash, so we try to look at accidents not on the face value, but what did we almost get involved in and address that with our -- drivers.

Establishing that the company safety program should be comprehensive and stresses accountability of the drivers, but later we will establish that the company too should be accountable. This sets the table.

Q.    If I understand that correctly, XXX Transport emphasized the importance to looking into all       accidents because there could be lessons learned from all accidents; is that right?
A.    Yes, sir.
Q.    And that some accidents where there might only be minor damage could have been near misses of a fatality or something very serious, and you wanted to correct it before you got to the fatality; is that right?

Yes, sir.

Establishing the importance of addressing problems before there is a serious accident

Q.    As part of accountability, did you also hold the drivers accountable for their conduct?
A.    Yes, sir.
Q.    And how did you enforce that? How did you enforce that accountability?
A.    Defensive driving classes that they were charged for, and in the process maybe put on a final notice or a watch list in which they -- disciplinary action, up to termination could result in any further events.
Q.    So as part of your program, drivers were made aware that they should follow the knowledge and skills that were taught in the training program; is that right?
A.    Yes, sir.

Driver’s awareness of the regulations and knowledge requirements established through employer. The driver’s specific deficiencies in knowledge established elsewhere not shown here.

Q.    And if they failed to do so, there would be penalties?
A.    Yes, sir.
Q.    And they were aware that there would be review of all incidents?
A.    Yes, sir.
Q.    And that they would be accountable for their actions while they were behind the wheel of one of your vehicles?
A.    Yes, sir.
Q.    That applied not only to driving skills but also important things like hours of service record?
A.    Yes, sir.
Q.    Those hourly service records referred to federal motor carrier safety regulations, doesn't it?
A.    Yes, sir.
Q.    As part of your comprehensive program, did you try to enforce the federal motor carrier safety regulations all across your company?

Yes, sir.

A motor carrier safety official has to answer “yes.”

Q. And can you think of any reason why any other company in the industry would not have a system of accountability for their drivers that was similar to the system set up at XXX Transport? MR. 4: Just objection to form, You can answer.

No sir.

Again, using this safety official to establish standards for the whole industry in a multi truck crash.

Q.    What about the elements of the XXX Transport program that are not contained in the regulations. The elements of your safety program for accountability of your drivers, was there any reason why other trucking companies should not have a similar accountability program for their drivers?                       MR. 6: Same objection.
Q.    I believe that all companies should have an accountability policy, yes?
Q.    Another way XXX Transport would achieve its goal is through education. We talked about some of that, but could you just give us a little more detailed answer of how XXX Transport would achieve that goal through education?
A.    Well, we are constantly creating ways to touch drivers. A counseling session, for example, we've been hitting hard for the past few years is the speed of a truck, what about a phone call, a driver gets a speed ticket or is known to speed, we get them on the phone and do a verbal counseling session. To me that's education, that's explain to go the driver what this is all about when he's in the truck and then we have ongoing development training modules that we continue to put together. We institutionalize the driving value training piece approximately two hours long which emphasizes the importance of decision-making by the over the road truck driver. So that we are constantly trying to build our arsenal so to speak of educational opportunities to get to -- to get to drivers.
Q.    And is it your belief based upon your training and experience over the past eight and a half years that every trucking company in the industry should make efforts at education the way XXX Transport does?
A.    I'm a believer in education and training.
Q.    Can you think of any reason why a trucking company would not have a program for educating their drivers?
A.    No, sir.
Q.    And do you believe that what XXX Transport does meets a reasonable standard of the way safety policy should be handled in the industry?            MR. 5: Objection to form. If you can answer it, go ahead.
A.    My experience is at XXX Transport. I believe that we do a good job at this, but the strength of our policies is that we are not willing to accept everything we've got today and walk away. We are going to make it better all the time. I believe in what we do.
Q.    And you wouldn't accept anything less than that, would you, sir?
A.    No, sir.
Q.    Nor would your company?
A.    No, sir.
Q.    Should any other company accept something less than that?            Fouler: Objection.
Q.    In your opinion.
A.    As for safety, sir.
Q.   Could you repeated your answer, I'm sorry?
A.    I have high standards for safety.
Q.    Do you believe that there is another company that should not have standards so high?
A.    No, sir.
Q.   Bring up Exhibit 5. Am I correct that this document records violations for Driver           Smith for his hours of service logs from October 1st through January 20th, 2004.
A.    Yes.
Q.    What's the purpose of the document?
A.    Well, at the time, we were trying to get more and more into a formalized log review program, heavier -- heavier than we had ever done before, so we were improving the system so we had instant access, almost instant access to logs.
Q.    So this is a document maintained in your department to try to ensure that drivers do not violate the hours of service regulations?

Yes.

Establishing a program that provides awareness of violations to the company

Q.    And the hours of service regulations are part of the federal motor carrier safety regulations and they are mandatory for drivers; correct?
A.    Correct.
Q.    Now, Mr. Smith had missing logs from January 1st through January 6th, 2004; correct?
A.    Yes.
Q.    And he had a number of other listed violations; correct?
A.    Yes.
Q.    Including at least five 10-hour driving violations; correct?
A.    Yes.
Q.    What action was taken against Mr. Smith for these violations?
A.    Well, when -- as far as the defensive driving class, the log violations would have been reviewed and whether it was something he misunderstood or was doing wrong, it could be corrected in that defensive driving process.
Q.    Was there any discipline or penalty assessed separate from those assessed related to the collision?
A.    No, It was part of the same defensive driving class.
Q. Was this report generated because he had been in an accident?
A.    Yes.
Q.   Based on this report, it looks like you have a computer system which reads the logs and determines the violations; correct?
A.    Yes.
Q.    What's the name of your system?
A.    At that time it was RAIR technologies, R-A-I-R,
Q.   Did drivers filled out their logs by hand?
A.    The logs are all filled out by hand.
Q.    And the computer system is designed to read the logs that are filled out by hand?
A.    Yes
Q. On the standard log form that we've all seen many times; correct?
A.    Yes, sir.
Q.    Is the purpose of this program to alert you when drivers have violations?
A.    That was the intent of the program, yes.
Q.    Was the program working so poorly that he could have this many violations over a three month period without safety people being alerted?
A.    When he had -- there are violations and then there are violations. Some in here no manifest number is found on the form, that's --
Q. No manifest number was written on the log form, that's a very technical violation that doesn't affect safety; right?
A.    Right, that's filling in a box.
Q.    But 10-hour driving violations, those are safety violations; correct?
A.    Yes
Q.    Are each of those violations a safety violation?
A.    Well, it's an issue, there are safety violations, we need to find out what's causing them.
Q.    Did you need to find that out before they continued for almost three months?

We need to find out as soon as possible, yes.

They “need” to find out “as soon as possible.”

Q.    Because in your own operations manual, it says if you are driving more than 5 hours, you should take a break and you should add a second to the space around your vehicle for safety; correct?
A.    Yes.
Q.    Because you said you are never as good at the end of the trip as you are at the beginning; correct?
A.    Yes, sir.
Q.    There are specific rules about how much you can drive with rest or no rest in a given period of time and these were violations of those mandatory rules; correct?
A.    Yes.
Q.    And is it a fact that if there were violations of the 10 hour rule, those are serious safety violations? A.    Yes.
Q.    Did you ever find out if these violations were mathematical errors or if they were, in fact, hours of service violations?
A.    They were treated as hours of service violations.
Q.    So then there really wasn't any consideration that they were mathematical errors because they were treated by your department as actual 10 hour driving violations; correct?
A.    Yes.
Q.    Why was it no action was taken when a driver has 10 hour driving violations on October 1st, October 22nd, October 24th, November 30th, and December 9th, in any of that time?
A.    I don't know, sir.

They “need” to find out “as soon as possible” using a system they put in place to “ensure” there were no violations yet this driver could go on for 3 months with “serious violations” and nothing is done, and he does not know why..

Q.    Does that meet the standard that you wanted to set for CRST in their safety reviews?
A.   No, sir.
Q.    Should a driver who does something like this be disciplined?
A.    An action should be taken against the driver, yes sir.

Liability established

Q. Okay. Let's look at the other document you mentioned associated with this accident review. It says “I'm not sure he understands the seriousness of his accident, and I reminded him and explained to him how many dollars we have lost?“ Is the seriousness of the accident related to how many dollars the company has lost?
A. You know, Dan -- Dan probably -- I'm assuming Dan talked about the possibility this is a costly accident.

Is safety the number 1 priority?

Q.    Then he goes on to say he has some serious logging issues. His logbook burnt up in the truck, so I am going over his RAIR files. That's the computer program you mentioned; correct?
A.    Yes.
Q.    In three months he has 16 over 10's. Over 10 is a 10 hour violation?
A.    Yes.
Q.    Lots of missing information and other issues. Correct?
A.    Yes.
Q.    Now, wasn't this evidence that this driver had problems well before this accident?
A.    He had some logging issues.
Q. Well, when you trained him, you told him how important the motor vehicle safety regulations were, didn't you?
A.    Yes, sir.
Q.    He was required to be familiar with them; correct?
A.    Yes.
Q.    And the training he is specifically taught how to fill out the form; correct?
A.    Yes, sir.
Q.    He's told never to violated the 10-hour rule; correct?

Yes.

Again, awareness of deiver.

Q.   He has 16 violations in three months. Isn't that evidence the driver is not following the rules?
A.   He's not following the rules and the root cause of that may be a mathematical error or some other problem we can fix.
Q.    Did you ever determine that?
A.    I'm not sure that we did.
Q. So shouldn't we now be able to look back and see if there was some record whether this was a math error or just a guy that didn't follow the rules?
A. He was breaking the rules. We tried to address it.
Q. After the accident, you tried to address after the accident?
A. Yes.
Q.   But like a driver, you are supposed to take the high view and anticipate hazards. Shouldn’t the company where they have a serial safety regulation violater, try to anticipate that this driver
might be a problem, might be a hazard?
A. Yes, sir.

Company ignored enforcement of the rules, and did not anticipate the hazard this driver created. This is a classic case repeated over and over in the industry. It is easy to establish in the drivers deposition that he did not really understand the regulations or the safety requirements when operating a large truck.