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Can lawyers use a trucker who admits to breaking law to build a case?

Written by Steve Gursten Posted May 1st, 2014

When a truck company tasks a driver with delivering a load within an impossible time frame, lawyers should turn to 49 CFR § 390.13

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If you’re an attorney who has never  litigated a serious truck accident injury case, or if you are a regular reader of this truck safety legal blog, you know that most lawyers make cases about what the driver did wrong.

It is easier. It requires far less work, time, legal discovery, and you don’t have to have a lot of knowledge of the special rules and laws that apply to bus and trucking companies.

But it is invariably also wrong.

These cases are about the truck company, not the driver.

A truck accident case should never be litigated as a car accident, but with bigger policy limits.

Yes, it can be easy for lawyers unfamiliar with the FMCSRs to build a case against a truck driver. Think about how many drivers are driving in excess of the hours of service regulations, speeding, using illegal stimulants, doing shoddy pre-trip inspections (or entirely skipping them) –  or even all of the above.

But these cases are really about  the trucking company that employed him and fails supervise and monitor as they are required under law. Or worse, actively pushes the truck driver to break the law – and threatens them when they don’t.

And what do you do if the defense lawyers for the company blame the trucker and say he was driving rogue?

The answer lies in 49 CFR § 390.13.

This rule is short, sweet, and highly effective.  It’s a rule that any lawyer who is litigating a truck accident must know.

The rule reads that no person shall aid, abet, encourage or require a motor carrier or its employees to violate the federal motor carrier safety regulations.

Here’s a presentation I gave for the American Association for Justice, where I touched on the rule, and how a lawyer should properly put the onus on the trucking company after a crash.

The commercial trucking industry is extremely competitive, with carriers looking to expedite deliveries at the lowest price possible to its customers. The industry business model is fundamentally unsafe, as carriers typically pay drivers by the mile and do not compensate truckers for “on duty” time spent doing inspections, mandatory rest breaks, or time spent out of service due to safety and maintenance concerns that may arise.

If you’re a truck accident lawyer sitting in the trucker’s deposition, you can use this rule to put responsibility where it belongs.  This is where a  truck driver will blame his dispatcher, the transportation manager, the president of the company, or anybody else.  Sometimes the truck driver will acknowledge that he or she broke the rules, but only because he “was on a hot load” and had to get it delivered to a customer by a certain deadline. Using this rule, you can ask the truck driver who it was that pressured him to make a delivery that could not possibly be accomplished without breaking the safety rules.

When the trucking company assigns their driver an impossible delivery, that is a  §390.13 violation.

49 CFR §390.13 is a great tool to consider  in the fight against unsafe trucking companies.

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About Steve Gursten

Attorney Steven Gursten is president of the Motor Vehicle Trial Lawyers Association and past president of the American Association for Justice Trucking Litigation Group. He has been named a Michigan Lawyers Weekly "Leader in the Law" for his efforts to prevent truck accidents and promote national truck safety. Steve was also a Michigan Lawyers Weekly "Lawyer of the Year" for a record settlement in a truck accident case. He has received the top reported truck accident jury verdict and top reported truck accident settlement in Michigan for multiple years, according to published year-end compilations of all jury verdicts and personal injury settlements by Michigan Lawyers Weekly. He has been named a "Top 50 Super Lawyer," by SuperLawyers, is listed in Best Lawyers in America, and has been awarded an AV-rating by Martindale-Hubbell, which is the highest rating for legal ability and ethics. Steve speaks to lawyers throughout the country on truck accident litigation. He is a founding member of the Truck Accident Attorneys Roundtable, head of Michigan Auto Law, and has dedicated his legal career to making our roads safer.
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