How much insurance coverage is available in bus collision cases?

busA for-hire motor carrier operating in interstate commerce must have $5 million insurance for any vehicle that seats 16 passengers or more. The minimum insurance for vehicles that transport less than 16 passengers is $1.5 million. This applies, for example, when a private bus company takes people across state lines to a casino or from one state to another, like Greyhound or Megabus. These minimum insurance amounts are required by Title 49 of the Code of Federal Regulations, Part 387.

The federal minimum limits do not apply to school buses that transport students and teachers to and from school. Also, the minimum insurance limits do not apply to a bus operated by a motor carrier under contract with a school district when transporting preschool, elementary and secondary school student. A small minority of states have adopted 48 CFR 387, which means the limits apply in those states. In other states, it is necessary to look to state minimum insurance limits.

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What laws apply in a school bus accident?

The law that governs commercial motor vehicles, their companies and drivers is the school-busFederal Motor Carrier Safety Regulations (FMCSRs). These regulations are found in Title 49 of the Code of Federal Regulations and govern many areas of commercial transportation, such as random and post-collision drug and alcohol screening, minimum insurance limits, hours of service requirements, maintenance and inspection of vehicles, driver qualification criteria and much more.

On the whole, school buses are not covered by the FMCSRs except for drug and alcohol testing and commercial driver’s license requirements in some circumstances. Why not? The federal regulations apply to transportation that occurs interstate—across state lines. When a transportation company never crosses state line, which is usually true with school buses, then the federal government largely defers to state law.

To make things more complicated, most states have adopted the FMCSRs, so it’s necessary to analyze what regulations apply from state-to-state.

There is also a distinction between public transportation and for-hire school buses, even if hired by a public school. Here’s a quick guide when a school bus is involved in interstate transportation:

  School to Home or Home to School Extracurricular School Activities
Public School Transportation provided by Government Entity Not subject to FMCSRs Not subject to FMCSRs
Private School Transportation of non-college students Not subject to FMCSRs Subject to FMCSRs as non-business private motor carrier of passengers
Contract Transportation of non-college students Not subject to FMCSRs Subject to FMCSRs as for-hire carrier
Private college transporting with its employees Subject to FMCSRs as non-business private motor carrier of passengers Subject to FMCSRs as non-business private motor carrier of passengers
Contract Transportation of college students Subject to FMCSRs as for-hire carrier Subject to FMCSRs as for-hire carrier
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FMCSA Plans to Catch Chameleon Carriers

chameleonThe Federal Motor Carrier Safety Administration (FMCSA) has plans over the next two years to improve identification of chameleon carriers. Chameleon carriers, also called reincarnated carriers are motor carriers that shut down, often due to outstanding fines related to safety compliance, and reform as another company. In the past, the new company started with a clean slate and could start breaking the law again. I have handled many cases like this and have taken several to trial. In one, a family was repeatedly forced to close down their trucking companies for failure to conduct random drug tests, as required by federal regulation. They formed a total of 13 different companies before I took the case to trial in which one of their drivers was high on crystal meth and killed another truck driver.

The FMCSA is in the early stages of using its new system ARCHI (Application Review and Chameleon Investigation). Using information from the FMCSA’s Licensing and Insurance database, new carrier applicants are screened using all available data fields to spot chameleons–including address, phone number, applicant name, employer identification number and more. ARCHI algorithm also considers whether the prior carrier was in bankruptcy, was involved in a fatal or serious injury crash, was fined by the FMCSA, ever issued an out-of-service order or received an unsatisfactory safety fitness rating.

Now that ARCHI has been implemented, the FMCSA plans to spend the next year analyzing data and quantifying false-negative and false-positive results.

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New Illinois Laws for Obtaining a Driver’s License

Illinois has three new laws that apply to new drivers. Two take effect January 1, 2014:
1. Judges will no longer be permitted to sentence a person to “supervision” if they cause a fatal collision and do not have a clean driving record. Supervision allows the driver to pay a fine and sometimes attend driving school to avoid having a violation listed on their record.

2. Anybody ages 18-21 who did not take driver’s education in high school must complete a 6 hour driver training course before the state will issue a driver’s license.

In addition, the state has immediately put into effect a rule that it will deny driver’s licenses to anybody 18 years old or younger who have outstanding traffic citations.

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Horse trailer legislation

For the third year in a row, the U.S. Senate is considering legislation to make double-decker transport of horses illegal. The Horse Transportation Safety Act of 2013 bans transportation of horses in trailers with two or more levels, according to bill co-sponsor Senator Robert Menendez (D-NJ). Co-sponsor Senator Kirk of Illinois (R) states that it is not only a matter of cruelty but that motorists lives are put at risk.

The states of Maryland, Massachusetts, New York, Pennsylvania, Rhode Island and Vermont already ban double-decker horse transport. Arizona, California, Minnesota and Virginia have laws regulating their use. In 2007, the USDA banned double-decker trailer use for transporting horses to slaughter but does not have authority to issue a ban for other uses.

The bill is Senate Bill 1459 to amend Title 49 of the United States Code to prohibit the interstate transportation of horses in motor vehicles with 2 or more levels stacked on top of each other.horse trailer

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The OP-1 and MCS-150 forms in truck accident cases

OP-1 is a form motor carriers use to register with the Federal Motor Carrier Safety Administration (FMCSA) for operating authority. MCS- 150 is form to register for a USDOT number. Many companies will have filled out both forms. If you are an attorney handling a tractor trailer collision case, make sure you send a Freedom of Information Act requests request for both. They both include a spot for the carrier to sign that it is familiar with Federal Motor Carrier Safety Regulations. The forms contain other useful information such as commodities carried.

The states of Alabama, Alaska, Arizona, Colorado, Connecticut, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, New York, Nebraska, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Washington, West Virginia, Wisconsin, and Wyoming require MCS-150 registration of commercial vehicles even when intrastate. All carriers will have MCS-150s, but not all will have OP-1s (for example, a private carrier). Brokers and freight forwarder will have an OP-1 but not an MCS-150.

Hazardous material haulers fill out an MCS-150B; all other carriers fill out an MCS-150. Brokers and for hire carriers hauling property fill out an OP-1. For-hire passenger carriers must fill out an OP-1(P). Freight forwarders fill out an OP-1(FF). OP-1(MX) refers to a Mexican carrier and OP-1(NNA) refers to a non-North American Carrier.

Here is a chart from the FMCSA that explains what company must fill out what form.

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FMCSA will not enforce 30 minute rest provision against short haul drivers

The Federal Motor Carrier Safety Administration (FMCSA) announced this week that consistent with the August 2, 2013 U.S. Court of Appeals decision, it will immediately cease enforcement of the 30 minute rest break provision against short haul drivers. While the court decision does not take effect until 52 days or more after the decision, the FMCSA will not wait to cease enforcement.

This means that all drivers (with or without commercial drivers licenses or CDLs) operating within 100 air miles of their workplace and who satisfy the requirement of 49 CFR 395.1(e)(1) are not required to take a 30 minute break after 8 hours driving. This is also true for non-CDL drivers who operate within 150 air miles of their workplace and who satisfy the requirements of 49 CFR 395.1(e)(2).

The FMCSA will initiate rulemaking consistent with the non-enforcement stance. I take this to mean that the FMCSA will not be appealing the recent court decision; certainly not with regard to the issue surrounding short haul drivers.

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Fatigue Management Program Module 3 (part 3 & 4) – Truck Driver Health, Sleep and Alertness

This is a summary of the third and fourth lessons of Module 3 of the North American Fatigue Management Program (NAFMP). This lesson analyzes the components of sleep and alertness.

Lessons 3 and 4:

Health and wellness is important for truck drivers and includes proper nutrition, exercise, sleep, positive relationships and other positive behaviors. To get the recommended 2.5 hours of exercise per week, drivers can take two 10 minute walks twice per day. Approximately 50% of truck drivers obese (BMI >30) and about 75% are obese or overweight (BMI >25). About 20% of Americans smoke, but nearly half of CMV drivers smoke. Nicotine does not improve alertness, but rather reduces oxygen flow to the brain.

General strategies for drivers to have quality sleep includes enough sleep, naps, healthful lifestyle, a regular schedule, following circadian rhythm, wind down before sleep and don’t consume too much caffeine. On longer trips between time zones, drives can pre-adjust their internal clock by shifting bedtime, use light and dark to help adjust and drivers should make sure they get enough sleep before the trip.

Good scheduling practices include a regular schedule with 7-8 hours sleep, all time for rest breaks, naps and commuting time, work with circadian rhythms when possible and total wake time should be no more than 16-17 hours per day. When scheduling, it is best to be regular; if not possible, it is better to have forward rotation than backward. Most people have trouble with the backward rotation of having to start earlier each day:

forward rotation

backward rotation

It is a driver’s obligation to comply with the Hours of Service (HOS) regulations and to exercise good judgment beyond complying with the rules by managing fatigue and alertness beyond HOS compliance. There are advantages and disadvantages to using team drivers. Teams can help each other stay awake and drivers can get more sleep. On the other hand, drivers get poorer quality of sleep in a moving truck.

To download Module 3, go to http://www.nafmp.org/en/downloads.html.

Michael Leizerman is a lawyer and truck safety advocate who has handled truck accident cases in a variety of circumstances, including fatigue and distracted driving.

 

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Fatigue Management Program Module 3 (part 2) – Components of sleep and alertness

This is a summary of the second lesson of Module 3 of the North American Fatigue Management Program (NAFMP). This module is focused on driver education as part of a Fatigue Management Programs (FMP). Due to the length of this module (157 PowerPoint slides), I have divided this module into several blog posts. This lesson analyzes the components of sleep and alertness.

Lesson 2:

Features of sleep: We don’t know exactly why, buy sleep is necessary for performance and health. Brain cells grow and create connections during sleep. The brain does not rest during sleep. Sleep is not rest.

Types and stages of sleep: Non-REM. sleep (when there is no Rapid Eye Movement) includes four stages from light to deep sleep in which brain activity is decreased. In REM sleep, the brain is very active, similar to being awake. The name derives from the fact that your eyes move as if you were awake. You enter REM sleep several times throughout the sleep cycle. REM is indicated in blue below:

FMP 2

Sleep inertia: This is the grogginess you feel when you first wake up and can last 20+ minutes. Sleep inertia affects driving, especially during times when it is dark out.
Age and sleep: Adults need 7-8 hours. Older adults sleep more lightly, are more easily awakened, may take more naps and are not more likely to fall asleep while driving. Males under 30 are the highest risk for falling asleep while driving.

Factors affecting sleep and alertness: Factors that affect sleep quality include the amount of sleep, bed comfort, darkness of room, time of day, noise, temperature (cooler is better for sleep) and anything else that interrupts sleep. Sleep debt accumulates. The longer a person has restricted sleep, the greater the increased performance.
Naps are the best antidote to sleepiness. A 20-40 minute nap can greatly increase driver alertness and performance. A 1994 NASA study of airplane pilots showed planned naps reduced dozing by half and errors by a third. Be aware, that sleep inertia follows naps and can disrupt subsequent sleep periods.

Circadian rhythms are daily cycles of physiological occurrences such as hormones and body temperature. Alertness also follows a daily pattern:

FMP2

Peak performance is after 8am and in the evenings. Least alertness occurs before sunrise and mildly after lunch. Time zone travel affects circadian rhythms. Sleep loss makes the dips in circadian alertness greater. For most people, 16 hours awake is “nature’s Hours-of-Service” rule. A 1997 study showed that being awake more than 17 hours is equivalent to .05% Blood Alcohol Content (BAC) and more than 24 hours is like .10% BAC.
Environmental factors that affect alertness are road conditions, weather, noise, light and social interaction (which can increase alertness while simultaneously distracting).

In a 1996 study, 14% of drivers were identified as high risk drivers with diagnoses of obstructive sleep apnea (OSA), insomnia, and other sleep-related disorders like narcolepsy and restless leg syndrome. The 14% of all drivers who were high risk were responsible for over half of all observed drowsy episodes in the study. Apnea is when a person stops breathing for more than 10 seconds. This is considered OSA if it occurs more than 5 times per hour. This highest risk categories for OSA are obesity, males, 40+ years old, large neck size (17”+ for males; 16”+ for females), recessed chin, small jaw or large overbite and family history. Warning signs include snoring, daytime sleepiness, high blood pressure and diabetes.

It is estimated that 28% of commercial motor vehicle (CMV) drivers have OSA. A 2004 study found a 2x to 7x crash risk for drivers (non-CMV in study) with OSA. Diagnosis occurs through assessment of risk based on criteria discussed above and a sleep study.

To download Module 3, go to http://www.nafmp.org/en/downloads.html.

I am honored that years ago, Dr. William Dement, M.D., Ph.D. of Stanford Sleep Disorders and Research Center, agreed to contribute a chapter to my book Litigating Truck Accident Cases. Dr. Dement is the grandfather of all modern sleep research. Nearly 60 years ago, he coined the phrase “rapid eye movement” or REM. Many of the ideas cited by the NAFMP either comes from the Stanford Sleep Center or finds its roots in the research performed there.

Michael Leizerman is a lawyer and truck safety advocate who has handled truck accident cases in a variety of circumstances, including fatigue and distracted driving.

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Hours of Service Regulations Upheld; A Decade of Court Battles Finally Over?

The Hours of Service battle in the courts has been going on for a decade. Friday, the U.S. Court of Appeals in D.C. upheld the bulk of the new HOS regulations. The court wrote that “the third time’s a charm,” referencing the fact that this court had overturned the regulations twice in the past. The current regs were challenged both by the ATA and various truck safety groups. The court denied petitions from all the groups with one small exception—the 30 minute break requirement does not apply to short-haul drivers.

This means that the regulations that went into effect July 1 are the law: 1) 34 hour restart must include two 1am to 5am periods and can only be used once in 7 days, 2) 30 minute break period after 8 hours, 3) the 11 hour driving limit.

Click here to read the decision. We seem to be left with more certainty than previous two go-arounds. I wouldn’t count on the issue making it to the Supreme Court. I do not know yet if any of the entities plan on appealing further. The battle may be over… we’ll see.

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