Over 20 percent of your drivers may be putting you at risk of noncompliance, especially because a motor carrier who does not receive such notification from its employee, and keeps that disqualified driver on the road, faces fines of nearly $6,000 per violation.
Let’s face it, driver behavior is your greatest source of fleet liability.
As a motor carrier, you are prohibited from permitting a driver to operate a CMV on your behalf if you know or should have known (this is important!) that the driver has been disqualified from driving or has otherwise lost their driving privileges. This knowledge requirement relies in part on notification from your drivers. Yes, really.
Since regulated drivers have a duty to self-report disqualifying convictions to their employer within 30 days of the conviction date, the motor carrier has a duty to know whether a driver is disqualified and must be removed from driving responsibilities within the same timeframe.
The regs also require that the employee notify his/her current employer of any “suspension, revocation, cancellation, lost privilege, or disqualification” no later than the day after the employee receives notification of such action being taken by the state licensing agency. This creates a second notice requirement for disqualified drivers to essentially self-report the fact that they can no longer remain employed.
As you can imagine, even with multiple notification requirements in place, reliance on self-reporting has its flaws. In fact, according to a report from the American Association of Motor Vehicle Administrators, fewer than 80 percent of drivers let their employers know when they lose their qualification to drive. This means that over 20 percent of your drivers may be putting you at risk of noncompliance, especially because a motor carrier who does not receive such notification from its employee, and keeps that disqualified driver on the road, faces fines of nearly $6,000 per violation. And in the event of an accident, the consequences are far greater.
As too many unfortunate and sometimes preventable accidents demonstrate, motor carrier-employers are also liable in court for what they didn’t actually know, but had constructive notice of and should have known—that their employee was driving for them on a suspended, revoked, or disqualified license— and as a result, the employer is liable for any accident resulting from the disqualified driver’s actions while driving for the motor carrier. And in the case of regulated drivers, since the employer has a duty to know that the driver was disqualified and should not have been operating a commercial motor vehicle when the incident occurred, the motor carrier will face willful violations and an award of punitive damages.
4 Cases That Highlight the Need for MVR Monitoring
If all of this seems scary, it certainly is. The following recent cases are a few concrete examples:
- Armijo, Estate of v. Werner Enterprises, Inc. (2019). This wrongful death case was brought after the death of 54-year-old female Kathryn Armijo when her westbound vehicle was struck in a head-on collision by an eastbound 18-wheeler driven by Jose Johnson, acting during the course and scope of his employment with defendant Werner Enterprises, Inc. The estate contended that the defendant was negligent in hiring drivers who were disqualified to drive under FMCSA regulations and failed to use ordinary care in hiring, training, supervision and retention of drivers. The decedent’s estate further claimed that Werner Enterprises knowingly made a willful, reckless decision to place unqualified drivers behind the wheel, warranting punitive damages. A jury returned a verdict in favor of the plaintiff’s estate of $40,500,000 in damages.
- Amparo v. Ayala et. Al. (2019).Plaintiff Amparo was struck by the tractor-trailer driven by Ayala while sitting in traffic on Interstate 95 in Westport, Connecticut. Defendant Ayala was driving the tractor-trailer during the course of his employment with co-defendant D. Matos Transportation. The complaint alleged, among other things, a failure of the Employer to investigate Ayala’s driving record during his employment, and included a negligent entrustment theory of liability. A jury awarded Mr. Amparo $15,000,000 in damages.
- Copeland v. Jones Al. (2019). This action arose from an auto/tractor-trailer collision which occurred on Interstate 10 in Jacksonville, Florida. The truck driver Jones was in the course and scope of his employment driving a tractor trailer for the defendant trucking company. The plaintiff claimed the truck driver negligently changed lanes, struck her vehicle, rode it into the left guardrail, and kept driving. She asserted claims of negligent hiring, supervision, retention, and entrustment on the part of the defendant trucking company. Specifically, the plaintiff alleged that the trucking company failed to conduct an adequate background check for the driver to discover his dangerous driving record and criminal history. The jury found the truck driver 15% negligent; the trucking company 75% negligent; and the plaintiff 10% comparatively negligent. She was awarded $400,000 in compensatory damages and $1,000,000 in punitive damages, for a total gross verdict of $1,400,000. The jury determined that punitive damages were warranted against the trucking company (but not the driver).
- Bohne v. Enviroclean (2007). Bohne was struck by a tractor-trailer driven by Turner Bruce Yarbrough in the course of his employment with Enviroclean. After the accident, Yarbrough tested positive for crack cocaine usage. The complaint alleges that if Enviroclean had done proper research and background checks, they would have found a conviction for marijuana use, a suspended license, and a history of crack cocaine use. The complaint included theories of negligent hiring and negligent supervision. The plaintiff was awarded a judgment of damages in excess of $20 million.
The way we interpret the regulatory requirements and related litigation that has ensued after these tragedies, a motor carrier is at risk of violating the FMCSRs (and paying the associated fines and penalties, not to mention defending against negligent entrustment lawsuits) if the motor carrier does not continuously monitor its drivers’ motor vehicle records for new disqualifying activity, or at a minimum, re-run its drivers’ MVRs at 30-day intervals. Foley has developed highly specialized MVR monitoring products and re-screening solutions to eliminate this risk.
Keep in mind that while there is no express requirement in the regs to monitor your CDL employees’ driving records during the 364 days per year when you are relying on them to notify you of the violations that disqualify them from earning a paycheck, you should basically write that requirement in, because failing to do so could mean hefty fines in the event of an audit and will cause irreparable harm to your company when an accident occurs.
Indeed, hindsight is 20/20. But with MVR monitoring, you receive a 100% fail-safe solution to protect your employees, your company, and your brand. To learn more about Foley’s solution, click here or call (860) 815-0764.
About the Author
Melissa Snyder, FCRA Advanced Certified from the Professional Background Screening Association (PBSA), is Foley’s Attorney and Compliance Manager. Not only is she an expert in the background screening legal landscape, she is also a lifelong Disney fanatic and is always on the hunt for hidden Mickeys.