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What lawyers can do when truck companies try to avoid liability by classifying truckers as independent contractors

Written by Steve Gursten Posted June 25th, 2015

A recent $228 million lawsuit against FedEx shows how to get around this incorrect classification after a truck accident

independent truck driver classification

The new trend in trucking litigation over the last several years has been trucking companies attempting to re-classify their drivers as “independent contractors,” instead of as actual employees of the trucking company. They’re doing this to cut-off certain negligence claims in a lawsuit against the company to protect themselves against liability in the event one of their drivers causes a serious wreck and hurts or kills someone.

This classification is often incorrect, and for the trucking companies who are doing this to avoid potential claims, it is also illegal. A powerful recent example that just came down is the  $228 million settlement FedEx has to pay in a lawsuit alleging it deliberately misclassified thousands of workers as independent contractors instead of employees, according to a rundown of transportation stories in Politico. The piece notes:

“The settlement is important beyond the dollar amount: the lawsuit challenged the legality of FedEx’s classification system designating drivers as independent contractors, not permanent employees.”

Independent contractors operating in bobtail mode

Many truckers are actual independent contractors who own a tractor-trailer and work for several companies on an as-needed basis. At times, they operate in “bobtail mode,” which means they have no trailer attached to the tractor, but may or may not be under dispatch to a trucking company.

There are special legal and insurance issues that arise when these truckers are injured in a wreck— or when they cause a truck accident and injure someone else in a crash.

For instance, the independent contract truck drivers often have their trucks registered in the home states where they’re leased. Some bring the tractor cab to their homes, storage lots or the truck company. Whatever the scenario, there’s often a significant amount of confusion with regard to who’s responsible for insurance coverage in the event of a serious truck accident.

What trucking lawyers need to know about defeating the independent contractor defense

Here’s a common scenario regarding a truck accident at the hands of a trucker in “bobtail mode” from a recent case. Take note of the truck company’s independent contractor defense:

“An independent contract truck driver drops his trailer off at the trucking company that’s contracted him. His logs show he’s off duty after that and is driving somewhere, and stops for repairs to a tire on the tractor. He is bobtailing. While at the tire repair shop, he injures someone with his tractor. The trucking company has filed a motion for summary judgment, saying the trucker was not on duty and because he’s an independent contractor, the coverage should come from the bobtail policy. The trucker’s records show he was not on duty at the time of the accident.”

Our Truck Roundtable attorneys’ solution is as follows: First, obtain a copy of the lease agreement with the motor carrier. Find out if the trucker is hauling for any other companies and whether he has motor carrier authority and does jobs on the side.

If not, than the duty to maintain and inspect rests with the motor carrier he’s leased to, pursuant to FMCSR 396.3.  Also, it’s best for an attorney to look up the insuring agreement of the motor carrier’s policy.  If his independent contact vehicle is an “insured vehicle” under the motor carrier’s policy, the insuring agreement covers maintenance or use of a covered auto.

The bottom line is that employers cannot misclassify their truck drivers, and when they do, a prepared truck lawyer can still defeat these improper classifications from employee to independent contractor.

As the FedEx lawsuit illustrates, the cost of independent contractor misclassification can be financially punishing.

Related information:

Why the truck industry pay model is fundamentally flawed

Steven Gursten Photo

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.