Still preparing for trial, but don't lose faith...

I will blog again soon. In the meantime, let's talk about motivating employees!

Sorry...I'm getting ready for a jury trial so...

I have not had time to prepare any blog posts this week.

It's also been a pretty bad week, but not as bad as these people had:

I am working on some information about the issues of independent contractor or employment status in the trucking industry.

I will try and get that out next week.

In the meantime, if you know of a topic you are interested, let me know. I will give it some thought it write about it.

As always, if you have any concerns or questions don't hesitate to call day or night.

Mark Perkins
Perkins & Associates, LLC
401 Market Street, Suite 900
Shreveport, LA 71101
318-222-2426

Do Federal Laws Preempt State Law Claims Alleging Negligent Hiring, Training, Retention, and Supervision?

The short answer: maybe. There’s no harm in trying.

Recently, I read a very interesting article in the Transportation Law Journal by Aubrey Holloway about this issue of  a federal law possibly preempting state law claims for negligent hiring issues. All credit for the this blog is given to Aubrey and one of my associate attorneys, Tara Hoffman, who I asked to elaborate on Aubrey's article.

Let's begin the discussion with a brief restatement of the federal law  that may apply. I have emphasized some phrases.

I. The Federal Aviation Administration Authorization Act - 49 U.S.C.A §14501 (c) states:

(1) General Rule: Except as provided in paragraphs (2) and (3), a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of a law related to a price, route, or service of any motor carrier or any other motor private carrier, broker, or freight forwarder with respect to the transportation of property.

(2) Matters not covered - Paragraph 1 -

(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization;

(B) does not apply to the intrastate transportation of household goods; and

(C) (paraphrasing) does not apply to tow truck services.

(3) State standard transportation practices -

(A) Continuation - Paragraph 1 shall not affect any authority of a State... to enact or enforce a law, regulation, or other provision, with respect to the intrastate transportation of property by motor carriers, related to -

(i) uniform cargo liability rules,

(ii) uniform bills of lading or receipts for property being transported,

(iii) uniform cargo credit rules

(iv) antitrust immunity for joint line rates or routes, classifications, milage guides, and pooling, or

(v) antitrust immunity for agent-van line operations, if such law, regulation, or provision meets the requirements of subparagraph (B).

II. Congressional Intent to Preempt

Congressional intent determines if a federal law preempts certain state laws or actions. Owens v. Anthony, 2011 WL 6056409, 2-11-0033 (M.D. Tenn 2011).

The Federal Aviation Administration Authorization Act provides that a state may not enact or enforce a law or regulation related to a price, route, or service of any motor carrier with respect to the transportation of privacy. 49 U.S.C.A §14501(c)(1).

In Rowe v. New Hampshire Motor Transportation Association, 552 U.S. 362, the Supreme Court found that state enforcement actions having "a connection with or reference to" carrier rates, routes or serves are preempted and that such preemption may occur even if a state law’s effect on rates, routes, or services is only indirect. Federal law may not preempt state laws that affect rates in only a tenuous, remote, or peripheral manner. Section 14501(c) requires the Court to determine whether the provision directly or indirectly binds the carrier to a particular price, route, or service and thereby interferes with competitive market forces within the industry.

The above preemption is a general one with several exceptions.

One of which, and the one that relates most closely to personal injury cases, is the rule in regard to a State’s safety regulatory authority by expressly stating that "paragraph 1 shall not restrict regulatory authority of a State with respect to motor vehicles..." 49 U.S.C.A §14501(c)(2). To determine if this exception applies, the Court must decide whether the provision at issue is intended to be, and is, genuinely responsive to motor vehicle safety. American Trucking Association v. City of Los Angeles, 559 F. 3d 1046 (9^th Cir. 2009).

III.  Caselaw

In Chatelaine, Inc. V. Twin Modal, Inc., 737 F. Supp. 2d 638 (N.D. Texas 2010), the court found that 49 U.S.C.A §14501 broadly interprets state law claims regulating interstate transportation of goods and state law claims other than breach of contract are preempted. In Chatelaine, the non-contract claims were for negligence, violation of the Texas Deceptive Trade Practices Act, negligent hiring, and actual loss.

A recent Middle District of Tennessee case, however, held that the federal statute did not preempt state tort claims because the negligence issues presented involved highway safety which is expressly excluded from the preemption statute. Owens, 2011 WL 6056409. This findings that led to this holding are not flawless and could create alternative holdings by other courts. The district court stated that it must determine if the plaintiffs’ negligence claims were related to the price, route, or service of the defendant, but the court never actually made that determination. Instead, the court stated that it "agree[d] with the numerous courts which have found that personal injury negligence claims are not preempted by the FAAAA. Additionally, the court did not outline the analysis applied in determining whether a state action was done under the safety regulatory authority of the state as required by Loyal Tire & Auto Center, Inc. v. Town of Woodbury, 445 F. 3d 136 (C.A. 2 NY 2006). Loyal Tire states that the court must determine whether the legislative body’s purpose and intent was to create a regulation that is genuinely responsive to safety concerns. In Owens, such determination did not take place.

If you want some ideas on how to apply the federal law to argue preemption of the state law claims, read on.

Truck and Accident Reconstruction Jargon

If you're even reading this blog, you likely already know the lingo, but it never hurts to have a refresher. There are many other words and phrases that I could have added here, but I thought I would just make a quick list of some that come to mind.

Please add some acronyms, phrases and names without thinking much about it. Just go with the stream of consciousness and see how many you can add.

ABS

Anti-lock Braking System – separate autonomous systems are used on the tractor and semi trailer to limit wheel slip, prevent wheel lock, and assist the driver in maintaining control and stability of the vehicle

Bill of lading

In general, a document which specifies the content, weight and other aspects of the payload

Bobtail

Driving a tractor without the trailer

Cab over

Tractor with flat front end (no hood), as opposed to a conventional cab(with hood)

CDL

Commercial Driver’s License

CMV

Commercial Motor Vehicle

Computer Simulation

Engineering analysis performed by using a computer

Computer Animation

Graphical presentation of a computer simulation or other analysis

Conspicuity

Ability to attract attention to itself. Conspicuity tape is reflective red and white tape installed on trucks

Deadhead

tractor pulling an empty trailer

Delta V

Change in speed of a vehicle during a collision

Fifth Wheel

Device on tractor in the shape of a horse shoe used to connect the trailer, via the king pin, to the tractor

FMCSR

Federal Motor Carrier Safety Regulations – 49 CFR

LLCW

Lightly Loaded Combination Weight – i.e., having zero payload (other than weight of instrumentation, driver, and test engineers)

GCW

Gross Combined Vehicle Weight – for tractors and semi-trailers, all axles are loaded to GAWR

Glad Hands

Connection between tractor and trailer for air lines

Governor

Device designed to limit the tractor engine maximum speed

GVWR

Gross Vehicle Weight Rating

ICC Bar

Horizontal bar in rear of trailer designed to minimize under ride

Illuminance

Amount of light falling on a surface, measured in foot candles

Inter modal

Multiple modes of transportation

Jake Brake

Slows the truck by acting on the engine directly and slowing the rpm.

King Pin

Pin at front of trailer used to connect the trailer to the tractor via the fifth wheel

Landing Gear

Legs used to set down the front of the trailer when it is unhooked from the tractor

Low Boy

Low flatbed type trailer used to carry oversized equipment

Luminance

Amount of light reflected by a surface

NHTSA

National Highway Traffic Safety Administration

Photogrammetry

Method, using several photographs, used to measure features seen in the photographs

Pigtail

connection between tractor and trailer electrical lines

PM

Preventive Maintenance

Reefer

Refrigerated trailer

Shock

Refers to effect of impact on filaments in light bulbs when energized or not (hot or cold shock)

Slack Adjuster

Device used to keep brakes in adjustment

Tandems

Set of 2 wheels

T Bone

Collision occurring between 2 vehicles at 90 degrees from each other

Under ride

Submarining action of a vehicle. This occurs when the vehicle under riding the other has a significantly lower bumper

Yard Mule

Vehicle used in yards to move trailers. These vehicles are illegal on public streets